State v. Pailin
| Decision Date | 11 June 1975 |
| Docket Number | No. 74-142-C,74-142-C |
| Citation | 114 R.I. 725,339 A.2d 253 |
| Parties | STATE v. Philip A. PAILIN. A. |
| Court | Rhode Island Supreme Court |
The defendant was convicted by a Superior Court jury on an indictment charging him with rape, breaking and entering with intent to commit rape, and breaking and entering with intent to commit larceny. He asks that we overturn this conviction because of prejudice which he claims occurred as a result of three incidents during his trial.
The prosecutrix was 69 years old at the time of trial. She lived on the first floor of a small apartment house. The defendant was the boyfriend of the prosecutrix' upstairs neighbor. The evidence shows that defendant often stayed with his girlfriend and her three children. He sometimes received mail there.
On February 5, 1973, the prosecutrix was up very early, and at about 5:30 a.m. she went out of her apartment into the common hallway to put her cat outside. There she saw and spoke briefly to defendant. She returned to her apartment and minutes later heard the crash of the front door being broken down and found herself face-to-face with defendant. The defendant queried the prosecutrix about her available cash, saying he needed it to fix his car; he then forced her into the bedroom and raped her. He left threatening her with death if she went to the police.
The complaining witness took a bus to her landlord's office and reported the incident to him. He sent a handyman with his tenant to secure the apartment, fix the broken door, and to drive her to the police station where she reported the incident.
The defendant was apprehended at his girlfriend's apartment some 7 months later and was brought to trial. Through his own testimony and that of his brother, defendant placed his alibi before the jury. His story was that he had gone to Philadelphia with his brother and his brother's girlfriend Diane. His brother placed the date of the move as sometime in January, but upon having his memory refreshed on cross-examination with a motor vehicle registration card showing that the car in which the trio traveled to Philadelphia was registered in Providence on February 2, he decided that they has left on that date. The defendant corroborated his brother's story and told the jury that he moved to Philadelphia where he stayed until his return to Providence the following September. Diane did not testify at the trial.
The prosecutor, in his closing argument to the jury, reviewed the cast of witnesses who had testified for either side. In commenting on the defense, he said, His summation was cut short by a defense objection and, after a brief bench conference, the prosecutor continued his argument to the jury on a different issue and did not again refer to the missing Diane.
The defendant argues before us that this attempt by the state to use the 'empty-chair doctrine' was improper and that its resultant effect was prejudicial to his right to a fair trial. This court has not yet had the occasion to delineate the permissible use of this trial tactic in criminal cases where the defendant presents a defense and also takes the stand himself. We likewise will not decide the question now.
We have made it perfectly clear that for a defendant to preserve a question of prejudicial error in closing argument for our review he must not only make an objection at the time, but must make a request for cautionary instructions. Except under circumstances where the trial justice could find no fault with the challenged remarks, or where they are so flagrant that no precautionary instruction could dilute their effect, this failure to request instructions is fatal. State v. Plante, 111 R.I. 386, 302 A.2d 804 (1973); State v. Mancini, 108 R.I. 261, 274 A.2d 742 (1971). The defendant asked the trial justice to declare a mistrial, but once this request was denied, he remained silent and did not request instructions either at the bench conference or at the close of the state's argument, nor did he object to any of the justice's charges to the jury in regard to this point. Having failed at trial to request curative measures of the allegedly prejudicial remarks of the prosecutor, defendant will not be heard to complain here.
In addition to offering testimony by the prosecutrix, her landlord, and his maintenance man about the events surrounding the rape, the state put the 13-year-old son of defendant's girlfriend on the witness stand. His testimony placed defendant in the upstairs apartment on the night of the 4th and the morning of the 5th. This obviously damaging testimony was directly contradictory to defendant's alibi defense. The defendant makes no attack on this portion of the young man's testimony; he does, however, allege that certain hearsay testimony which came before the jury during his cross-examination of the child was prejudicial and should have required a mistrial.
On cross-examination, defendant asked the boy if he had heard any noises during the night. The boy responded th...
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...justice. State v. Hoyle, R.I., 404 A.2d 69, 70 (1979); State v. Marrapese, 116 R.I. 1, 7, 351 A.2d 95, 98 (1976); State v. Pailin, 114 R.I. 725, 729, 339 A.2d 253, 255 (1975). When a defendant complains of allegedly prejudicial comments or remarks, the trial justice must assess the potentia......
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