State v. Page

• Decision Date: 17 July 1968
• Docket Number: No. 10722-E,10722-E
• Citation: 104 R.I. 323,244 A.2d 258
• Court: Rhode Island Supreme Court
• Parties: STATE v. Marc Mickey PAGE. x. &c.

Page 258

244 A.2d 258

104 R.I. 323

STATE v. Marc Mickey PAGE.

No. 10722-Ex. &c.

Supreme Court of Rhode Island.

July 17, 1968.

Reargument Denied July 26, 1968.

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Luc R. LaBrosse, Special Asst. Atty. Gen., for complainant

James Cardono, Public Defender, Eugene F. Toro, Asst. Public Defender, for defendant.

OPINION

KELLEHER, Justice.

This is an indictment for murder. The defendant was tried before a jury in the superior court and found guilty of murder in the first degree. The trial justice denied the defendant's motion for a new trial. The case is before us on his bill of exceptions.

Annie M. Greene was a well-known schoolteacher who lived alone in a secluded part of the town of Exeter. She was killed in the kitchen of her cottage in the late afternoon of June 15, 1960. At the time of her death, Mrs. Greene, who was a widow, was approximately 70 years old. Her body was discovered at about 9:30 o'clock the following morning. Death was due to a hemorrhage and shock following multiple fractures of the skull. The fractures had been produced by numerous blows of a blunt instrument identified at the trial as a claw hammer.

Upon discovery of the body, the state police were summoned. They immediately commenced an investigation. The defendant had lived in Exeter and knew the deceased. He had been paroled from prison five days before the crime in question on June 10, 1960. These facts, together with defendant's past record of crimes of violence made him a prime suspect. In the late afternoon the focus of the investigation shifted from Exeter to the city of Providence when the deceased's station wagon was found abandoned on Westminster Street. Two hours later, defendant was apprehended in Providence and taken to that city's police headquarters. He admitted killing Mrs. Greene and then driving her motor vehicle to Providence where he left it on Westminster Street. He was returned to the Greene property where he showed the police the location of the murder weapon. The defendant was then taken to the state police barracks in Hope Valley where he signed three written statements ¹ which expanded on the sketchy account he had given in Providence of his activities on June 15. The last statement given by defendant was obtained by the police after they had received certain information from the state pathologist relative to the autopsy performed on Mrs. Greene. In that statement, defendant said that he had raped the deceased and then killed her because she had said she was going to report his actions to the authorities. The defendant was charged with murder and the present indictment was returned by the Washington County grand jury during the latter portion of June, 1960. The defendant filed a general plea of not guilty and a special plea of not guilty by reason of lack of sufficient mental capacity.

The trial began in superior court November 21, 1960. One of the state's witnesses was Captain Arthur J. Newton. This officer who was the head of the detective division of the state police was in charge of the investigation which led to defendant's arrest. While under cross-examination, the captain testified that during the time this homicide was being investigated all of his subordinates (over 40 in number) rendered oral reports to him as to the manner in which they carried out their assigned duties.

Captain Newton said that he had reduced these reports to writing and compiled them in a document which was on file in his office at state police headquarters in Scituate. Defense counsel thereupon made a motion that the trial justice order the witness to produce the document as an aid in his cross-examination of the witness. The trial judge denied this request. It is this denial which provides the basis for defendant's first exception.

I Use of the State Police File for Impeachment Purposes

In urging that this file be made available to him, defendant relies on the holding in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. In Jencks, the United States Supreme Court ruled that a defendant in a federal criminal proceeding should have access to pretrial statements for impeachment purposes submitted by a witness to the government concerning activities about which the witness testifies at trial-without the necessity of the defendant first establishing a conflict between the witness's testimony and his pretrial statement. Congress reacted to the Jencks decision and on September 2, 1957, enacted Pub.L. 85-269, 71 Stat. 595, now cited as 18 U.S.C.A., § 3500, which limited to some extent the Jencks decision by providing that upon objection by the government the requested statement shall be first examined by the trial justice in camera for a determination of its relevancy. Later in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287, Justice Frankfurter in speaking for the court observed that the rule in Jencks was not grounded on any constitutional right but was promulgated by the Court in the exercise of its power to provide procedures for the administration of justice in the federal courts.

Although the Jencks case is not binding in state courts, it had led to a consideration and reconsideration in several jurisdictions as to a defendant's right to pretrial statements of the prosecution's witnesses. It appears that various states are about evenly divided ² as to whether they will or will not follow the federal rule.

In Rhode Island we have no controlling decision on this question. We came close to it recently in State v. Bradshaw, 101 R.I. 233, 221 A.2d 815, where this court held that where a police officer has testified that he refreshed his recollection by consulting his report before taking the stand, the defense was entitled to examine the report and use it in its cross-examination of the officer. Although in Bradshaw we stated that Jencks gave strong support for our holding, we do not believe that it affords any strength for the position espoused by defendant in the instant appeal. In his testimony Captain Newton plainly declared that he did not refresh his recollection prior to the trial as to information contained in the documents requested by the defense. Nothing has been shown by defendant in this appeal that would lead us to conclude that Newton had jogged his memory as to what took place during the course of the investigation by a prior preparatory reading of the police reports. On the contrary, we accept the witness's assertion that his testimony was based on his present recollection of the events and circumstances which occurred during the investigation over which he presided in a supervisory capacity. Hence, the Bradshaw rule is inapplicable here.

Let us now examine the applicability of the Jencks rule to the present case. In Jencks, the court described the basic requirements which must be established before the motion to produce will be entertained by the trial court. In doing so, it cited Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, wherein a proper foundation for such a motion was described as one where the (1) demand was for specific documents and did not propose any broad fishing expedition among the documents possessed by the government in the hope that something impeaching might turn up, (2) the demand was for statements taken from persons offered as the witnesses, and (3) the material sought must be relevant, competent and outside of any exclusionary rule. The defendant's request, in our opinion, did not satisfy the prerequisites as set forth in Gordon.

We think the Jencks case is clearly distinguishable from the one at bar. First, the documents sought in Jencks were reports written by witnesses as to events which the witnesses personally observed and about which they were testifying. In the present case, defendant seeks access to a document which is to a large extent a synthesis of reports made by officers other than the witness, most of whom were not scheduled to call to testify at the trial. Thus, the defense was seeking a report which was saturated with exclusionary hearsay and therefore outside the scope of Jencks. Secondly, in Jencks the motion for production was directed to a singularly identified, highly relevant and material set of documents which contained, theoretically at least, a written account of the precise matters about which the witnesses were testifying. In the instant case, however, defendant offered a blunderbuss motion for a report which contained heaps of irrelevant, meaningless, and unimportant detail about which the witness was not testifying. In effect, to permit defendant to probe the supervisory report prepared by Newton would have been equivalent to the issuance to defendant of a veritable license to engage in a fishing expedition of the type specifically proscribed in Gordon. We therefore believe that the rule in Jencks is inapposite for purposes of this case and accordingly hold that the trial justice properly denied defendant's request for the state police report.

Likewise, we also overrule defendant's exception to the court's refusal to allow counsel to ask a question of Captain Newton as to whether his recollection was as of the time of the investigation or at some later time. At the time this question was posed, the court was conducting an inquiry in the absence of the jury as to the voluntariness of certain answers given to certain questions by defendant in the Providence police station. Whether the witness was or was not testifying from memory was not germane to the issue then before the court, and defendant's question was therefore irrelevant. The defendant did ask this witness several times while the jury was present if he had used the headquarters' file to refresh his memory prior to his testifying in court. Captain Newton insisted that he had not. The witness stated that he was testifying from memory as to the events which transpired...