State v. Pella, 10758

• Decision Date: 15 June 1966
• Docket Number: No. 10758,10758
• Citation: 101 R.I. 62,220 A.2d 226
• Parties: STATE v. Biagio PELLA et al. Ex.
• Court: Rhode Island Supreme Court

Page 226

220 A.2d 226

101 R.I. 62

STATE v. Biagio PELLA et al.

Ex. No. 10758.

Supreme Court of Rhode Island.

June 15, 1966.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Asst. Atty. Gen., for the State.

Curran & Friedman, Charles A. Curran, Harold I. Kessler, Providence, for defendants.

OPINION

ROBERTS, Chief Justice.

This is an indictment wherein three defendants are charged with having conspired to defraud the city of Providence. After a trial to a jury had begun in the superior court, a third defendant withdrew his plea of not guilty, pleaded nolo contendere to the indictment, and testified on behalf of the state during subsequent proceedings. The jury thereafter found the remaining defendants guilty, and their subsequent motions for new trials were denied by the trial justice. Each defendant is now prosecuting in this court a bill of exceptions to certain rulings and decisions of the court below.

The defendants contend that the court's denial of their motions to excuse two jurors for cause constituted prejudicial error. They argue that these jurors on the voir dire disclosed that they had 'formulated a fixed opinion' on the basis of pretrial publicity and, therefore, were not qualified by reason of such opinions to serve as jurors. The constitutional right to a trial by jury guarantees a trial by an impartial jury. In Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, the court said: 'In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.'

One challenging the qualification of jurors on the ground that they do not stand indifferent has the burden of establishing this want of indifference. "The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside * * *. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed." 366 U.S. 723, 81 S.Ct. 1643. This court has long adhered to this view as to the burden of proof. In State v. Greene, 74 R.I. 437, at page 442, 60 A.2d 711, at page 714, we said that in the disqualification of jurors for cause during examination on the voir dire, 'much must be left to the discretion of the trial justice and where no abuse of discretion is shown conviction will not be reversed.'

In support of their contention, defendants argue that each juror had testified on the voir dire that about a year before the trial began they had read news items which were concerned with an apparently nonexistent employee of the department of public works. These news items charged that such person had been carried on the payroll of that department for some years and that checks reflecting the payment of wages to him had been regularly issued. Further information went to relate to the disposition of such pay checks after their issuance. It is clear from the transcript that each potential juror conceded that he had formed an opinion at that time that such employee was nonexistent and that in all the circumstances someone must have been guilty of fraud. In each instance the court, after substantial inquiry had been made into the present state of mind of each of these jurors, had denied the motions to dismiss for disqualification by reason of the prior opinions.

In Irvin v. Dowd, supra, it is stated as a basic principle of law that the mere existence of an opinion as to guilt or innocence, standing alone, is not sufficient to disqualify a potential juror. In that case 366 U.S. at page 723, 81 S.Ct. at page 1642 the court said: 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' The same principle has long been followed in this state, the test being whether the opinions or impressions are such as could be laid aside by the jurors at a trial 'and which would not prevent them from giving to the legal evidence, produced before them at the trial, its proper weight and effect.' State v. Jacques, 30 R.I. 578, 583, 76 A. 652, 655. This view we reiterated in Kelley v. City Council, 61 R.I. 472, 482, 1 A.2d 185, 189: 'On the other hand, a juror, even in a criminal case, is not disqualified merely because he may entertain an opinion on the matter in dispute, unless his opinion is so fixed and settled as to require evidence to remove that opinion before he could consider the legal evidence in the case impartially and give to such evidence its proper weight and effect.'

In the instant case each juror testified on the voir dire that he could sit on the case and, on the evidence presented and the law given to him by the court, decide impartially between defendants and the state. Each testified also as to his acceptance of the doctrine of the presumption of innocence, of the inconclusiveness of an indictment on the question of defendants' guilt, and his understanding that the failure of defendant to take the stand to testify in his defense is not to be considered as evidence of guilt. A reading of the transcript discloses that despite some rather subtle interrogation on these issues, each of the jurors steadfastly maintained that despite his prior notions or opinions he was capable of deciding the case impartially. The trial justice had the opportunity to observe these jurors as they testified on the voir dire, and from his comments in denying the motion it is clear that he gave full credibility to their statements concerning their impartiality and their ability to put aside such prior opinions and decide the case on the law and evidence adduced at trial. In these circumstances we are unable to conclude that the trial justice abused his discretion in denying the motions to excuse, and these exceptions of defendants are overruled.

We turn to defendants' exceptions to the denial of their several motions to pass the case and conclude that these are clearly without merit. Three such motions to declare mistrial were made, and all were denied. However, it is our opinion that the third motion, which was made on the morning of July 1, 1964, is inclusive of the grounds urged to support the prior motions to pass. This particular motion was made after the publication on June 30, 1964 of a story relating to the effect of pretrial publicity in criminal cases on the availability of completely impartial jurors.

This article, when read in its entirety, can hardly be termed to have been prejudicial to defendants or to their counsel, as was argued. To the contrary, the article deals with the problem 'of how to find unbiased jurors for a case which has received widespread publicity.' The writer thereafter discusses the issue of...