State v. Ouimette, 77-316-C

• Decision Date: 20 June 1980
• Docket Number: No. 77-316-C,77-316-C
• Citation: 415 A.2d 1052
• Parties: STATE v. Gerard T. OUIMETTE. A.
• Court: Rhode Island Supreme Court

Page 1052

415 A.2d 1052

STATE v. Gerard T. OUIMETTE.

No. 77-316-C.A.

Supreme Court of Rhode Island.

June 20, 1980.

Dennis J. Roberts, II, Atty. Gen., Stephen Lichatin, III, Sp. Asst. Atty. Gen., Chief, App. Division, for plaintiff.

Peter A. DiBiase, Providence, for defendant.

OPINION

DORIS, Justice.

This is an appeal by the state from a decision of the Superior Court to sustain the defendant's, Gerard Ouimette's, motion to dismiss a charge of perjury, a violation of G.L.1956 (1969 Reenactment) § 11-33-1.

This case evolves from an October 1975 incident at the Adult Correctional Institutions (A.C.I.) in which two prison inmates, Pasco Meo and Charles Fenner were assaulted. Ouimette and three other prison inmates, Ralph DeMasi, Ronald Sweet, and Richard Gomes were charged with these assaults.

Following plea negotiations, Ouimette entered nolo contendere pleas which were accepted by the Superior Court. Subsequently, the state called Ouimette as a witness in the trial of one of his co-defendants, Ralph DeMasi. As a result of his testimony at this trial, the state charged Ouimette with eight counts of perjury. (Information No. P 2/77-550). Pursuant to Super. R. Crim. P. 9.1, ¹ Ouimette filed a motion to dismiss these perjury charges. The Superior Court sustained this motion to dismiss on all eight counts of perjury.

The state is now appealing the trial justice's dismissal of count 8 of the perjury charges. Count 8 specifically alleges that Ouimette testified falsely at Ralph DeMasi's trial to a series of six questions wherein he denied having a conversation with Julio Costa. The state contends that the trial justice sustained the motion to dismiss on the basis of "technicalities" rather than on the basis of a failure to demonstrate probable cause as required by Super. R. Crim. P. 9.1, and G.L.1956 (1969 Reenactment) § 12-12-1.7 as enacted by P.L.1974, ch. 118, § 11.

The first priority in the examination of this appeal is the establishment of the standard of review to be applied. This standard of review is succinctly delineated in Wolf v. Wolf, 114 R.I. 375, 333 A.2d 138 (1975);

"In reviewing the decision of the justice below, where he is passing on a motion to dismiss, we merely determined whether his findings are supported by the evidence or whether in making such findings he misconceived or overlooked material evidence. His findings are entitled to great weight and will not be set aside unless they are clearly erroneous or fail to do justice between the parties. Krawcyzk v. Krawcyzk, 81 R.I. 335, 102 A.2d 870 (1954)." (Emphasis added) Id. at 376, 333 A.2d at 139.

A review of the record does not indicate that the trial justice was clearly erroneous in finding that there was no probable cause that Ouimette committed perjury as detailed in count 8. Count 8 is based on the disparity between Ouimette's testimony at Ralph DeMasi's trial ² and a statement from Correctional Officer Julio Costa ³ obtained during the police investigation of the assault incident. Specifically, Julio Costa's statement indicates that while Costa was entering the "caged area" of the A.C.I. and Ronald Sweet was beating Pasco Meo, Ouimette shouted at him "Don't come in here." In response to questions, Ouimette denied (1) having a "conversation" with anybody, and specifically with Julio Costa, (2) directing any comments to a correctional officer after Ronald Sweet beat Pasco Meo, and (3) telling "anybody" not to come into the "wing area."

In comparing the details of Costa's statement and Ouimette's precise responses to the questions put to him, the trial justice concluded there was no perjurious disparity. He found that the alleged shout "Don't come in here" did not constitute a "conversation." Thus, when Ouimette was asked if he had a "conversation" with anybody or with Julio Costa, it was not perjurious to respond "No."

Further, the trial justice concurred with defendant's argument that there is a distinction between the "caged area" and the "wing area" at the A.C.I. Thus, since Costa stated that Ouimette allegedly shouted "Don't come in here" as Costa was entering the caged area, it was not perjurious for Ouimette to respond that he at no time told anyone not to come into the wing area.

The state argues that these findings by the trial justice negating Ouimette's alleged perjury are "mere technicalities" and as such are not a proper basis for sustaining a motion to dismiss. Although the trial justice also refers to his findings regarding count 8 as "technicalities," such references are clearly appropriate when dealing with a perjury charge. In BRONSTON V. UNITED STATES, 409 U.S. 352, 93 S.CT. 595, 34 L.ED.2D 568 (1973)⁴, the Court makes it clear that a defendant's responses to questions, if literally true even though perhaps shrewdly misleading are not perjurious,

"The cases support petitioner's position that the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner -solong as the witness speaks the literal truth. It may well be that petitioner's answers were not guileless but were shrewdly calculated to evade. Nevertheless, we are constrained to agree with Judge Lumbard, * * * that any special problems arising from the literally true but unresponsive answer are to be remedied through the 'questioner's acuity' and not by a federal perjury prosecution." Id. at 360-62, 93 S.Ct. at 601-02, 34 L.Ed.2d at 575-76.

Thus, it is clearly necessary to examine Ouimette's testimony with minute particularity to assess whether his responses to the questions regarding the alleged shout were literally true, albeit perhaps misleading. The trial justice correctly performed this function and concluded that Ouimette's responses were not perjurious.

Finally, it is the duty of the trial justice to assess from all the evidence before him whether there was probable cause to believe the defendant willfully perjured himself. ⁵ The transcript of Ouimette's plea-bargaining session was entered into evidence at the hearing on the motion to dismiss. This transcript indicates that Ouimette candidly admitted to the court that he did encourage his friends to assault Pasco Meo and Charles Fenner and that he watched as they beat them up. Thus, the trial justice could consider this information in assessing whether...