State v. Picerno, C.A. No. P1-02-3047B (R.I. Super 1/30/2004)

• Decision Date: 30 January 2004
• Docket Number: C.A. No. P1-02-3047B
• Parties: STATE OF RHODE ISLAND v. ROBERT PICERNO.
• Court: Rhode Island Superior Court

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STATE OF RHODE ISLAND v. ROBERT PICERNO.

C.A. No. P1-02-3047B

Superior Court of Rhode Island.

Filed: January 30, 2004

DECISION

SAVAGE, J.

Before this Court for decision is a motion filed by defendant Robert R. Picerno to suppress certain of his alleged verbal and written statements and other tangible evidence at trial. The State of Rhode Island has charged defendant Picerno, a former member of the Lincoln Planning Board, with four counts of soliciting or attempting to solicit a bribe and three counts of conspiracy to do the same in violation of R.I. Gen. Laws §§ 11-7-3 and 11-1-6 (1956). This Court conducted a suppression hearing from November 17, 2003 to November 20, 2003, after which the parties filed extensive legal memoranda. In December 2003, on the eve of this Court rendering its decision on the defendant's suppression motion, the defendant moved for postponement of that decision and subsequently moved to reopen the suppression hearing. At the request of defendant Picerno, the Court postponed its initial decision and granted the defendant's motion to reopen the suppression hearing. It accepted additional evidence in support of and in opposition to the defendant's motion to suppress on January 12 and 13, 2004.

Defendant Picerno moves to suppress all of the statements he made from the time period following his arrest on February 15, 2002 at 1:30 p.m. through the conclusion of his recorded statement in the late afternoon of February 16, 2002. Defendant Picerno also seeks to suppress the tangible evidence seized from his residence on the evening of February 15, 2002. Defendant Picerno maintains that the State violated his state and federal constitutional rights against self-incrimination, right to effective assistance of counsel, and freedom from unreasonable searches and seizures, so as to warrant suppression of all of this evidence at trial.¹ For the reasons set forth in this Decision, this Court denies defendant Picerno's motion to suppress in its entirety.²

I. FINDINGS OF FACT

A. Arrest

At 1:30 p.m. on February 15, 2002, detectives of the Rhode Island State Police Financial Crimes Unit arrested defendant Picerno as he exited the offices of Major Construction in West Warwick, Rhode Island. Present at the scene were Sergeant Brian K. Casilli, Lieutenant Stephen Bannon, Inspector Elwood N. Johnson, Jr., and Corporal John Lemont. Although defendant Picerno began his direct testimony at the suppression hearing by describing his arrest as a violent one in which he was jumped by nine or ten police officers and forcefully pushed down onto the top of a police cruiser, a videotape of the arrest introduced into evidence by the State showed nothing of the sort; the arrest was conventional, swift, calm, and involved only four police officers. This example of gross exaggeration and distortion of the facts by defendant Picerno to try to show overreaching by the police — which became apparent to the Court even before his cross-examination — set the tone for defendant Picerno's testimony. It would be the first of many such moments during the suppression hearing that would serve only to undermine defendant Picerno's credibility and corroborate the opposing testimony of the State's witnesses.

Upon handcuffing defendant Picerno and taking him into custody, Detective Casilli told defendant Picerno that he was under arrest for bribery and corruption and would be taken to state police headquarters. Detective Bannon then verbally advised defendant Picerno of his Miranda rights³ with the assistance of a small card on which the rights were printed. After being informed of his rights, defendant Picerno indicated that he understood them.

Detectives Casilli and Lemont transported defendant Picerno in an unmarked detective car to State Police headquarters. While in the car, Detective Casilli again advised defendant Picerno of his Miranda rights. The trip took approximately twenty-five minutes, during which time the parties engaged in "casual conversation" and "general pleasantries"; the parties discussed nothing of substance to the investigation. Defendant Picerno acknowledged during the ride that he knew he was in serious trouble. Upon arriving at State Police headquarters, the detectives placed defendant Picerno in an interview room with dimensions of approximately twelve feet by eighteen to twenty feet. At some point soon thereafter, the detectives removed defendant Picerno's handcuffs.

B. Afternoon Interrogation

Before speaking with defendant Picerno, at approximately 2:15 p.m., Detectives Casilli and Lemont again advised him of his Miranda rights via a written, standard form. Detective Casilli first read the rights to defendant Picerno and then gave the rights form to defendant Picerno to read. Detectives Casilli and Lemont were present while defendant Picerno read and initialed each paragraph of the rights form. All three parties placed their signatures at the bottom of the form.

Detectives Casilli and Lemont then told defendant Picerno that they wanted to speak with him and asked the defendant if he was willing to answer some questions. Defendant Picerno agreed to speak with them. The discussion began at approximately 2:30 p.m. At no time before this discussion had defendant Picerno requested the assistance of an attorney.

Detectives Casilli and Lemont questioned defendant Picerno for the next two to two and one-half hours. Defendant Picerno was not fully cooperative with the questioning. The detectives thought that he was "holding back" information. Defendant Picerno admitted as much at the suppression hearing, while also conceding that he volunteered some information. The detectives would tell defendant Picerno about information they had about his activities, and he would be asked to acknowledge certain facts. Defendant Picerno was aware from the officers' statements that his phones had been tapped, as there would have been no way for them to know certain information otherwise. Throughout the afternoon questioning, the detectives did not threaten defendant Picerno, use physical force, or make any promises; yet the detectives would "press certain issues" and "re-ask questions in different ways." Defendant Picerno never asked to stop the questioning or requested the assistance of legal counsel. The State Police continued to monitor defendant Picerno's telephones as part of their ongoing electronic surveillance.

After the detectives had questioned him about several topics of their investigation, defendant Picerno expressed an interest in cooperating and offered to "give [the detectives] Oster" in exchange for "a deal."⁴ The time was now approximately 5:00 p.m. No one other than the two detectives had met yet with defendant Picerno. The detectives informed defendant Picerno that deals were the prerogative of the Assistant Attorneys General. Defendant Picerno then asked to speak with the prosecutors.

The detectives next told Assistant Attorneys General William Ferland and Stephen Dambruch (the "Assistant Attorneys General"), who were involved in the investigation and standing by outside the interrogation room, that defendant Picerno wanted to cooperate in exchange for a deal. The prosecutors met briefly with defendant Picerno to discuss his cooperation options while the detectives waited just outside the room. The Assistant Attorneys General agreed to refrain from prosecuting defendant Picerno's wife and son in exchange for defendant Picerno's cooperation.⁵ The prosecutors in no way indicated that if defendant Picerno failed to cooperate, they would prosecute his wife and son. Defendant Picerno, not being interested in what they could do for his family, then asked what they could do for him; the prosecutors made no specific promises regarding jail time for the defendant.

C. The Late Afternoon: Call to Jonathan Oster and Attempt to Record Statement

Defendant Picerno then agreed to call Jonathan Oster to set up a "sting operation" for the following morning.⁶ The prosecutors informed defendant Picerno that if he wanted to benefit from cooperation, he and they would have to act quickly in setting up a meeting between defendant Picerno and Oster, before news spread of defendant Picerno's arrest. Defendant Picerno placed the call to Oster from his cellular phone shortly after 5:00 p.m. As he could not reach Oster by phone at that time, defendant Picerno left a message for Oster to return his call.

The State Police did not record the interrogation or any verbal statements defendant Picerno made during the afternoon on either audio or video tape; instead, Detective Casilli memorialized those statements in his notes and then later incorporated his notes into his activity report. Detective Casilli testified that it is standard procedure to review information verbally with a suspect before seeking a formal taped or written statement.

After defendant Picerno left the message for Oster, however, Detectives Casilli and Lemont then tried to get a formal, taped statement from defendant Picerno. Defendant Picerno hesitated and expressed a concern that he might be "screwing" himself by recording a statement without a deal. He also questioned whether he should have a lawyer to finalize their deal before recording a statement. Defendant Picerno did not ask for an attorney; he merely asked whether he should have an attorney. The detectives conferred and, out of an abundance of caution, suggested to defendant Picerno that he might want to contact an attorney. The parties took a break and the detectives made available to defendant Picerno a conference room, telephone, and phonebook. At approximately 5:30 p.m., defendant Picerno called his wife, Joyce Picerno, and asked her to contact attorneys John and Tom DeSimone.

Mrs. Picerno could not immediately reach the DeSimones but continued trying. Defendant Picerno awaited a return call from his wife or the DeSimones. Although defendant Picerno did not refuse to cooperate...