State v. Parente

• Decision Date: 13 May 1983
• Docket Number: No. 81-106-C,81-106-C
• Parties: STATE v. Al PARENTE. A.
• Court: Rhode Island Supreme Court

Page 430

460 A.2d 430

STATE v. Al PARENTE.

No. 81-106-C.A.

Supreme Court of Rhode Island.

May 13, 1983.

Dennis J. Roberts II, Atty. Gen., Stephen R. Famiglietti, Asst. Atty. Gen., for plaintiff.

John Tramonti, Jr., Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

The defendant, Al Parente, was indicted by a grand jury on May 4, 1979. The indictment charged that he conspired to commit statutory burning in violation of G.L.1956 (1969 Reenactment) § 11-1-6, as enacted by P.L.1975, ch. 283, § 2 and § 11-4-3. ¹ Eugene Roberts (Roberts) John Adams (Adams), and Francis Davis (Davis) were named as coconspirators. ²

The case was tried before a justice of the Superior Court sitting with a jury, which returned a verdict of guilty against defendant. He appeals and assigns as error certain evidentiary and other rulings.

The evidence adduced at trial disclosed that on November 29, 1977, the West Warwick fire department responded to a warehouse fire on Brookside Avenue in West Warwick. Acting in his capacity as battalion commander for the West Warwick fire department, defendant supervised the department's response. The firefighters brought the blaze under control after an hour to an hour and thirty minutes. Although the major portion of the fire occurred at the northeast corner of the warehouse where the electrical box was situated, a second fire was located on the floor where some wooden pallets had been placed.

Discharging his responsibility as battalion commander to check for forced entry, defendant pointed out to Chief Boisclair of the West Warwick fire department and to Officer Osenkowski of the West Warwick police department the fact that one of the doors, which had not been nailed shut from the inside, was missing the nuts from the bolts on the door's hinge. The defendant stated to them that the firefighters encountered no resistance when they pried open the door. The lack of stress marks on the bolts indicated, not that the bolts had been forced off, but that someone had removed the nuts from the bolts.

On November 30, Donald Byrne, the arson investigator of the State Fire Marshal's office began to investigate the fire with the West Warwick police department. Samples of burnt wood and paper were sent to the Laboratory for Scientific Criminal Investigation at the University of Rhode Island. As a result of tests, the samples of burnt wood and paper were determined to contain components chemically similar to those contained in gasoline. Byrne therefore concluded that this evidence, along with the facts that there were two separate fires and that the warehouse had had no electrical problems and had no heating system, established that the fire was incendiary.

Roberts testified that he had rented the warehouse in September of 1977 for the purpose of arson. After the fire, Roberts had planned to file a claim for bankruptcy in order to cover up his losses. Roberts stated that Davis had agreed to set the fire for a fee of $5,000 and would use lighter fluid, cardboard, rags, and candles to ignite the blaze. In order to have the fire appear to have been the result of an electrical fire, Davis and Roberts had agreed to set the fire near the electrical box.

Roberts stated that he had met with defendant several times prior to the blaze and both had agreed that on November 29, defendant, working in his role as battalion commander, would slow down the department's response and ensure that the warehouse burned. In addition, Roberts testified that defendant had advised Roberts to remove the nuts from the bolts on the door's hinges to make the fire appear as though it had been set to cover up a theft. Roberts stated that defendant had told him that he would note a forced entry in his report and would keep him informed of any investigations. Roberts alleged that he paid defendant $3,500 for his role in the conspiracy.

The defendant testified at trial and denied any complicity with the alleged conspiracy.

On appeal, defendant presents the following issues:

1. Whether the trial justice erred in permitting into evidence the fact that Roberts had pleaded guilty to statutory burning.

2. Whether the trial justice committed reversible error by refusing to strike a reference made to "previous trials."

3. Whether the trial justice properly allowed testimony concerning Roberts's bankruptcy fraud.

4. Whether the trial justice should have granted defendant's motion for severance.

5. Whether the trial justice committed error in denying defendant's motions for a mistrial and to excuse a juror because of alleged prejudicial publicity.

6. Whether statements made by the prosecutor in his closing argument prejudiced defendant's right to a fair trial and an impartial jury.

7. Whether the evidence was insufficient to support the trial justice's denial of defendant's motion for judgment of acquittal.

I

After jury selection and opening argument, the state called Roberts as a witness and elicited the fact that he had been charged with statutory burning as a result of this case. The state then sought to have Roberts testify that he had pleaded guilty or nolo contendere to that charge. Codefendant Davis objected, and the trial justice held a bench conference. Arguing that the jury is not entitled to know that a coconspirator may have pleaded guilty, both codefendants moved to pass the case. The trial justice held that the state could question Roberts regarding his conviction and sentence for the crime of statutory burning but not his conviction and sentence for the crime of conspiracy to statutorily burn. Thereafter, the court instructed the jury that the fact of the witness's plea of guilty to a charge of statutory burning should not be taken into consideration as evidence of guilt against either of defendants and is solely permitted for background purposes. Roberts then stated on direct examination that he had pleaded guilty or nolo contendere and received a sentence for the charge of statutory burning that arose out of the facts in this case. The trial justice again cautioned the jury that they could not draw any inferences of guilt against either of defendants because Roberts had pleaded guilty and received a sentence. In addition, the trial justice instructed the jury in his final charge that

"[t]he fact that a person has previously been convicted of a criminal offense, is allowed in evidence, and it can properly be considered by the jury, if the jury wishes to consider it, only in the area of credibility, and may be considered by you as a factor you could weigh with other factors in determining what weight you might give or decide to give to the testimony of such a witness or witnesses. Let me point out that a prior criminal conviction may be used by you only in the area of credibility, and in no other area."

It is a well-established principle of law that use of a coconspirator's guilty plea or conviction as substantive proof of a defendant's complicity is not admissible in evidence. State v. Riendeau, R.I., 448 A.2d 735, 738 (1982); e.g., United States v. Halbert, 640 F.2d 1000, 1004 (9th Cir.1981); Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3rd Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980); State v. Just, 185 Conn. 339, ---, 441 A.2d 98, 103 (1981); State v. Stefanelli, 78 N.J. 418, 430, 396 A.2d 1105, 1111 (1979). However, such evidence is properly admissible and not unduly prejudicial when introduced to impeach a previously convicted defendant testifying in the trial of his codefendant. State v. Riendeau, 448 A.2d at 738. In such instances the trial justice has a paramount responsibility to instruct the jury on the limited evidentiary use of the guilty plea or conviction. Id.; see United States v. Halbert, 640 F.2d at 1004-07; State v. Stefanelli, 78 N.J. at 435, 396 A.2d at 1113. In cases not involving the testimony of a previously convicted codefendant, this court stated in Riendeau that an adequate cautionary instruction or overwhelming evidence of guilt may sufficiently mitigate or render harmless the prejudice that inures to a defendant when a jury learns of a codefendant's guilty plea or conviction. State v. Riendeau, 448 A.2d at 738.

Here, the state elicited the guilty plea of the witness (coconspirator) during direct examination. The prosecution is entitled on direct examination to detail the past convictions of its witness in order to divest the jury of the mistaken impression that it is keeping something from it. State v. Ciulla, 115 R.I. 558, 568, 351 A.2d 580, 586 (1976) (citing United States v. Rothman, 463 F.2d 488, 490 (2d Cir.1972)). Moreover, this maneuver does not constitute impeachment but is merely part of the "legitimate thrust and riposte of trial tactics." State v. Ciulla, 115 R.I. at 568, 351 A.2d at 586 (quoting Commonwealth v. Garrison, 398 Pa. 47, 52, 157 A.2d 75, 77 (1959)). Other courts have held that the prosecution is entitled on direct examination to elicit a codefendant's guilty plea or conviction when it is offered to further the jury's task of evaluating the credibility of a codefendant and when an adequate cautionary instruction is given. United States v. Halbert, 640 F.2d at 1004; see e.g. United States v. Veltre, 591 F.2d 347, 349 (5th Cir.1979); United States v. Rothman, 463 F.2d 488, 490 (2d Cir.), cert. denied, 409 U.S. 956, 93 S.Ct. 291, 34 L.Ed.2d 231 (1972). The Halbert court stated that

"[a]s a result of plea bargaining, it is often the prosecution which produces a codefendant and elicits testimony tending to show the substantive guilt of the defendant. This is, of course, admissible. As a part of that testimony, the trier of fact should know the witness' total connection to the defendant or to the event * * *. Thus, when the prosecution examines the codefendant as its witness in support of its case-in-chief, a question about the guilty plea is legitimate as the purpose is to support the reasonableness of the witness'...