State v. Patriarca, 1566-E

CourtUnited States State Supreme Court of Rhode Island
Citation112 R.I. 14,308 A.2d 300
Decision Date20 July 1973
Docket NumberNo. 1566-E,1566-E
PartiesSTATE v. Raymond L. S. PATRIARCA. x. &c.

Page 300

308 A.2d 300
112 R.I. 14

Raymond L. S. PATRIARCA.
No. 1566-Ex. &c.
Supreme Court of Rhode Island.
July 20, 1973.
Reargument Denied Sept. 26, 1973.

Page 300

[112 R.I. 56]

Page 305

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Providence, for plaintiff.

Harris Berson, Frank R. Mazzeo, Providence, Harvey Brower, Swampscott, Mass., Robert Napolitano, Portland, Me., for defendant.


ROBERTS, Chief Justice.

It appears that at about 2:30 on the afternoon of Saturday, April 20, 1968, Rudolph Marfeo and Anthony Melei were shot to death while shopping in a market on Pocasset Avenue in the city of Providence. Apparently, it was Marfeo's custom to shop for groceries in that market on Saturday afternoons, and while he and Melei were in the market two masked gunmen entered and shot them both.

Thereafter, on June 2, 1969, as a result of these homicides three indictments were returned by the grand jury. Indictment No. 69-769 charged the appellant here, Raymond L. S. Patriarca, with conspiring to murder Rudolph Marfeo. Others named in that indictment were Maurice R. Lerner, Robert E. Fairbrothers, John Rossi, and Rudolpho G. Sciarra. In Indictment No. 69-767 the appellant here and Sciarra were charged with being accessories to the murder of Marfeo, while Lerner, Fairbrothers, and Rossi were charged with the murder of Marfeo. In Indictment No. 69-768 the appellant here and Sciarra were charged with being accessories to the murder of Anthony Melei, while Lerner, Fairbrothers, and Rossi were charged with Melei's murder.

The five defendants were tried jointly on all three indictments. With respect to Indictment No. 69-767, the jury found Lerner guilty of murder but returned no verdict against the other four defendants. In Indictment No. 69-768 the jury again found Lerner guilty of murder but returned no verdict against the other defendants. In Indictment No. 69-769 all five defendants were found guilty of [112 R.I. 19] the conspiracy charge. The defendant Patriarca, the appellant here, is now prosecuting a bill of exceptions. 1

The state relied primarily on the testimony of John J. Kelley of Watertown,

Page 306

Massachusetts, who testified after he had been granted immunity from prosecution. Kelley testified that in the spring of 1968 he was approached by defendant Lerner in Boston, who asked Kelley to come to Providence to plan an escape route from the market where it was intended that Marfeo be shot. Lerner explained that Marfeo was interfering with Patriarca's gambling operation in Providence and Patriarca wanted him killed. A day or two after that conversation Kelley and Lerner traveled from Boston to the Holiday Inn in Seekonk, Massachusetts. There, Kelley testified, he engaged in conversation with Sciarra, Lerner, and two individuals identified during the trial only as Richard Roe and John Doe concerning the proposed shooting of Marfeo. Later that day Kelley visited with Richard Roe and Lerner the market area where the shootings later occurred and then returned to Boston with Lerner.

The following day Kelley drove to the market area once alone and then for a second time accompanied by Roe and Lerner. That evening he returned to Boston with Lerner. He further testified that he went to New York where he purchased face masks. At his home in Watertown he 'cut [112 R.I. 20] down' a shotgun which he and Lerner later delivered, along with the masks, to Doe in the Holiday Inn in Seekonk.

Kelley further testified that he had returned to a room occupied by Roe at the motel in the company of Lerner on Friday evening, April 5, 1968. There Sciarra, Doe, and Roe participated in a conversation. On the following day, a Saturday, Kelley and Roe left the motel and drove to a cafe about one-half mile from the market. Kelley's car which was to be used in the 'get away' was left in the parking lot of the cafe. However, later at the motel Lerner told Kelley that they had gotten to the market too late, just as Marfeo was leaving.

Later Doe suggested to Kelley that a different place be found to leave the stolen car which was to be used in going to and leaving the market. Kelley and Roe then went out looking for a more suitable place to leave the stolen car, concluding that it should be left at the Triggs Golf Course in Providence. On the following evening, April 7, 1968, Kelley, Lerner, Sciarra, Roe, and Doe allegedly met with defendant Patriarca in front of an eating place in Providence known as the Gaslight Restaurant. According to Kelley's testimony, Patriarca, upset over the delay, said: 'I don't want to hear any stories, I just want him (Marfeo) killed.'

Kelley then testified that on the evening of Friday, April 12, he and Lerner drove from Boston to the motel in Seekonk, where they met Doe and Roe. According to Kelley, the killings were to take place on the following day. However, the event was postponed for reasons not material here. On the following Friday, April 19, Kelley and Lerner returned to the motel, once again meeting with Roe and Doe. Kelley said that he stayed at the motel room with Roe, while Lerner, Fairbrothers, and Rossi spent the night at Doe's house.

[112 R.I. 21] The following morning Kelley and Roe left the motel and drove to Providence, where Kelley left his own car at the cafe parking lot and drove with Roe to the golf course. There, Kelley testified, he saw a maroon Buick sedan parked at the far corner of the parking lot. Several hours later he saw Doe drive a vehicle into the parking lot, and three men immediately got out of that vehicle and drove off in the maroon Buick. According to Kelley, these men were Rossi, who got into the driver's seat, Lerner, who got into the rear seat, and Fairbrothers, who sat in the front passenger's seat. Roe then drove Kelley back to the area of the cafe and Kelley got out of the car. Kelley then saw Lerner shooting out of a side street in the 'get-

Page 307

away' car. Roe followed Lerner, while Kelley walked to downtown Providence. There he took a taxi to a diner in East Providence where he was later picked up by Roe, who drove back to the motel. In the motel room Lerner indicated that the weapons had been left in the 'get-away' car but had been 'wiped clean.'

Kelley testified further that a few months after the incident he, Rossi, Lerner, and Fairbrothers met together in Methuen, Massachusetts. At that time Lerner allegedly said to Kelley: 'He had always thought I (Kelley) was a very good driver, but no one could drive any better than Johnny (Rossi) did, the way he drove up to the store and afterwards.' Fairbrothers allegedly responded: 'No one could get out of the car any faster than Lerner.'

I. Jury Selection

We turn, first, to defendant's contention that because of prejudicial publicity concerning him, he was deprived of a fair trial by an impartial jury. As we understand it, the thrust of defendant's argument is that publicity concerning his role in organized crime was of such torrential proportions that he is not required to isolate the prejudice that resulted from it. He urges that it was so pervasive in the [112 R.I. 22] community as to make it impossible for any member of the community exposed to it to avoid forming an opinion concerning his guilt that would be irreversible and, therefore, deprived him of a fair trial in a fair tribunal. 'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.' (emphasis added) In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946 (1955).

The defendant refers us to Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), as a case involving such extraordinary publicity. There is no question but that the Court in that case concluded that circumstances exist in which a showing of actual prejudice is not a prerequisite to a reversal. The Court said: 'It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.' Id. at 542-543, 85 S.Ct. at 1632-1633, 14 L.Ed.2d at 550.

In Estes the Court clearly recognized the occurrence of exceptional or unusual situations wherein pervasive and massive publicity will in all probability result in so prejudicing the defendant as to deprive him of a fair trial. In Estes the publicity was so intense and of such a character that the Court concluded that it would implant in the minds of prospective jurors an irreversible opinion as to the defendant's guilt.

The reasoning that led the Court to such a conclusion is made clear in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The Court talked about a disclosure of a 'pattern of deep and bitter prejudice' shown to be present in the community, usually through publicity of [112 R.I. 23] one form or another concerning the defendant's activities. The Court said: 'With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man.' Id. at 727, 81 S.Ct. at 1645, 6 L.Ed.2d at 759.

The cases to which defendant refers us in support of his position all relate to situations marked by unusual, extensive, and prejudicial publicity concerning a defendant. The existence of such exceptional situations was conceded by Justices Clark and Harlan in their dissenting opinion in Rideau

Page 308

v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1420, 10 L.Ed.2d 663, 666 (1963). They recognized that adverse publicity may...

To continue reading

Request your trial
92 cases
  • People v. Gainer, Cr. 19660
    • United States
    • United States State Supreme Court (California)
    • 31 Agosto 1977
    ...(1972) 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674; Commonwealth v. Spencer (1971) 442 Pa. 328, 275 A.2d 299; State v. Patriarca (1973) 112 R.I. 14, 308 A.2d 300; Kersey v. State (Tenn.1975) 525 S.W.2d 139; Kelley v. State (1971) 51 Wis.2d 641, 187 N.W.2d 810; Elmer v. State (Wyo.1969) 463 ......
  • Lerner v. Gill, 82-208-C
    • United States
    • United States State Supreme Court of Rhode Island
    • 5 Agosto 1983
    ...murders of which Lerner was accused occurred in the Silver Lake section of Providence on April 20, 1968. See State v. Patriarca, 112 R.I. 14, 18-21, 308 A.2d 300, 305-07 (1973). Nearly two years later, on March 27, 1970, he was convicted of two counts of murder and one count of conspiracy t......
  • People v. Foster
    • United States
    • New York Supreme Court Appellate Division
    • 12 Marzo 1984
    ...265 Ind. 153, 352 N.E.2d 721; Bufford v. State, 148 Neb. 38, 26 N.W.2d 383; State v. Uhler, 32 N.D. 483, 156 N.W. 220; State v. Patriarca, 112 R.I. 14, 308 A.2d 300; see Voir Dire Examination--Challenges for Cause and Abuse of Discretion, 41 Missouri L.Rev. Here there was no peremptory chal......
  • State v. Rivenbark, 55
    • United States
    • Court of Appeals of Maryland
    • 20 Noviembre 1987
    ...500 P.2d 610, 616, 103 Cal.Rptr. 698, 704 (1972); Napier v. Commonwealth, 515 S.W.2d 615, 616 Page 155 (Ky. 1974); State v. Patriarca, 112 R.I. 14, 40-41, 308 A.2d 300, 316 (1973). See also State v. Tilley, 292 N.C. 132, 141, 232 S.E.2d 433, 440 (1977) ("absent special allegation and proof,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT