State v. Oster
| Citation | 922 A.2d 151 |
| Decision Date | 22 May 2007 |
| Docket Number | No. 2004-324-C.A.,2004-324-C.A. |
| Parties | STATE v. Jonathan OSTER. |
| Court | United States State Supreme Court of Rhode Island |
Lauren S. Zurier, Providence, for Plaintiff.
John A. MacFadyen, Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
This case came before the Supreme Court on January 29, 2007, on the state's appeal from two Superior Court orders that excluded wiretap evidence and compelled the state to produce additional discovery. The state contends that: (1) the trial justice erroneously granted the defendant's motion to suppress certain wiretap evidence, and (2) the trial justice erred when she ordered the state to provide the defendant with a comprehensive discovery response that the state alleges exceeds the requirements of Rule 16 of the Superior Court Rules of Criminal Procedure. For the reasons stated in this opinion, we affirm the order of the Superior Court in part and hold that the wiretap evidence is inadmissible, but we vacate the order compelling the state to provide additional discovery.
The defendant, Jonathan Oster (defendant or Oster), the former town administrator for the Town of Lincoln, was indicted by a grand jury on two counts of obtaining or attempting to obtain a bribe by a public official in violation of G.L.1956 § 11-7-31 and two counts of conspiracy to obtain a bribe by a public official in violation of G.L.1956 § 11-1-6 and § 11-7-3, based on conduct alleged to have occurred between January 2, 2001, the day he took office, and February 16, 2002, the date of his arrest. A codefendant, Robert Picerno (Picerno), was charged in the same indictment with four counts of bribery by a public official in violation of § 11-7-3 and three counts of conspiracy to obtain a bribe by a public official. Although the cases were severed for trial, the trial justice, by agreement of the parties, heard and decided several pretrial motions in a joint proceeding.
The indictment against Oster and Picerno resulted from an investigation by the Financial Crimes Unit (unit) of the Rhode Island State Police (State Police). As part of the probe, in late 2001 and early 2002, the Attorney General sought authorization to intercept Picerno's telephone conversations under G.L. 1956 chapter 5.1 of title 12,2 entitled "Interception of Wire and Oral Communications" (Wiretap Act). The state alleged that there was probable cause to believe that Picerno and other unknown persons had committed or were about to commit the crimes of extortion, solicitation or acceptance of a bribe, and conspiracy to commit those crimes, and that there was probable cause to believe that communications supporting the charges could be obtained through the requested wiretap.
The Presiding Justice of the Superior Court (the Presiding Justice) issued an order authorizing the interception of telephone conversations that are "for the purpose of committing the [enumerated] offenses" including the transmission of communications to coconspirators concerning, inter alia, extortion, solicitation and the receipt of bribes, and "the planning, implementation and continued operation of extortionate schemes[.]" Thereafter, the Presiding Justice issued additional orders, based on supplementary applications by the state, as well as applications to extend the original wiretap authorization. Overall, the State Police intercepted 1,576 phone calls in connection with three separate wiretap orders designated as Sprint 113,3 Sprint 114, and Verizon 115.
Picerno was arrested on February 15, 2002; he was taken to State Police headquarters where he was interrogated for more than two hours by unit detectives. He offered to cooperate and implicate Oster in exchange for a cooperation agreement. Picerno agreed to participate in a so-called sting operation aimed at Oster. A plan was developed in which Picerno was to call Oster and arrange a meeting. After the two spoke by telephone, Picerno spent the night in custody at State Police headquarters.
On the morning of February 16, 2002, Picerno met Oster at Oster's law office and delivered an envelope containing $10,000 in cash. Unit detectives maintained audio, video, and visual surveillance of this encounter. Oster was arrested and a grand jury subsequently returned a four-count indictment against him.
Both Oster and Picerno filed several pretrial motions, including motions to suppress the electronic surveillance evidence obtained by the state. The defendants alleged that the state had violated the Wiretap Act by failing to establish probable cause and neglecting to demonstrate the necessity for the electronic surveillance.4 Additionally, defendants alleged that the state failed to minimize the number of non-pertinent conversations that were intercepted5 and that wiretap evidence was disclosed through the discovery process.6 Finally, defendants sought exclusion of the evidence based on the failure of the state to properly seal and store the wiretap evidence.7
On March 10, 2004, the trial justice issued the first of two written decisions in this case. She denied the motions to suppress on all grounds, except the alleged sealing violation. The trial justice reserved decision on this issue and ordered an evidentiary hearing. That hearing commenced on April 26, 2004, during which the state called six witnesses, including an investigator and a detective from the unit, as well as four employees or former employees from the Department of the Attorney General (the department). Additionally, by stipulation of the parties, an affidavit of the Presiding Justice was received into evidence.
The testimony established the chain of custody of the wiretap tapes, the sealing of the tapes under the direction of the Presiding Justice, and the negligent manner in which the tapes were stored and maintained under the supervision of various members of the department. Clifford Coutcher (Coutcher), an investigator employed by the State Police, testified that the investigation was conducted from a secure facility inside an old National Guard hanger. On February 16, 2002, he received orders to shut down the operation. Coutcher testified that he counted the tapes to ensure that the total number of tapes corresponded to the recording logs and placed the original tapes inside a "banker's box."8 He transported the box to State Police headquarters and locked the tapes in a cabinet to which only he had access. The next day, Coutcher inventoried the tapes and verified that he was in possession of all the tapes from the Sprint 114 and Verizon 115 wiretaps.
On February 19, 2002, Det. Sgt. Brian Casilli transported the tapes to the Superior Court, where he met with the Presiding Justice, along with Peter Neronha (Neronha), an Assistant Attorney General, and Saray Desnoyers (Desnoyers), a paralegal in the Criminal Division of the department. Under the direction of the Presiding Justice, the tapes were sealed, the Presiding Justice and Neronha signed labels that were affixed to each individual tape, and the tapes were placed in a box that also was sealed with the remaining signed labels.9
The record discloses that after the box was sealed, Desnoyers was responsible for delivering the tapes to a bank safe-deposit box maintained by the department. Desnoyers admitted that she took possession of the box, but rather than storing it in a bank vault, she left it under her desk, purportedly because the storage space at the bank was full. According to Desnoyers, this was a temporary measure, "until we were able to go to the bank vault to make room for [the box of tapes]." Although Desnoyers said that her superiors were aware of the situation and that she had notified Neronha of the problem, Neronha disputed that testimony. Nevertheless, the box of wiretap tapes remained on the floor, under Desnoyers's desk, for approximately a year.
In January 2003, a new Attorney General assumed office and there was a change of administration in the department.10 During the transition period, another employee, Alyson Adalio (Adalio), administrative assistant to the chief of the Criminal Division, took over Desnoyers's workspace. During the week of January 7, 2003, Adalio notified Marianne DeSimone (DeSimone), the chief paralegal of the Criminal Division, about the box of tapes. Ultimately, Adalio and DeSimone moved the box of wiretap tapes to vault storage located in the department. DeSimone testified that at some point during the next month, as they were taking the box to the vault, she noticed that the seal on the box was broken. DeSimone admitted that she opened the box, and, on a sheet of paper, described its contents. The box was then stored in a locked area in the department, where it remained for several months.
On October 3, 2003, the state produced the box containing the Sprint 114 and Verizon 115 wiretap tapes in Superior Court and admitted that the seal on the box had been compromised, and later acknowledged that the box had been opened. The record discloses that the Presiding Justice confirmed "that the seal has been broken, and it appears to be, obviously, intentional."
Thereafter, Oster and Picerno moved to suppress the wiretap evidence from the Sprint 114 and Verizon 115 tapes, arguing, inter alia, that the sealing violation, coupled with the failure of the state to store the box in a safe-deposit box, violated § 12-5.1-8(a).11
As noted, the trial justice issued two decisions in this case; in the first decision, she declared that exclusion of the evidence was required because of a sealing violation and that this result was separate and apart from other provisions in the statute providing for suppression for aggrieved persons, as defined by the Wiretap Act.12 The trial justice found that § 12-5.1-8 contains explicit language prohibiting the use or disclosure of the contents of "any wire, electronic or oral communication if the seal provided...
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