State v. Plante

• Decision Date: 12 April 1973
• Docket Number: No. 1547-E,1547-E
• Parties: STATE v. Donald Albert PLANTE. x.
• Court: Rhode Island Supreme Court

Page 804

302 A.2d 804

111 R.I. 386

STATE v. Donald Albert PLANTE.

No. 1547-Ex.

Supreme Court of Rhode Island.

April 12, 1973.

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

William F. Reilly, Public Defender, Benedetto A Cerilli, Jr., Sp. Counsel to the Public Defender, Providence, for defendant.

OPINION

DORIS, Justice.

These are two criminal complaints and warrants which were consolidated for trial to a Superior Court justice and jury in December, 1970. ¹ The jury returned a verdict of guilty to each complaint. They are before this court on defendant's bills of exceptions which were seasonably prosecuted following the conviction of the defendant in each case.

On the evening of July 18, 1970, shortly after 9:30 p.m., Brian Gordon Berry heard a noise outside his home which sounded like someone taking hubcaps off his car, a 1965 Oldsmobile station wagon. He directed his wife to call the police and went outdoors to investigate. There he observed a man bent down by the right front wheel of the Oldsmobile. Berry called out to the intruder who, turning from the station wagon, approached and assaulted him. On knocking Berry to the ground, the intruder took flight and called to someone else in another car to do likewise. Berry scrambled to his feet in time to see the other car rounding the corner of the house. It appeared to be the same type of vehicle as his own and bore Rhode Island registration QP-2.

The police officer who arrived at Berry's home in a cruiser was told by the latter of the attempted larceny of his hubcaps and the assault on him. Berry also gave the officer the registration number QP-2 as that of the vehicle which had been operated by someone to whom Berry's assailant had shouted. This officer then cruised the area and observed the car bearing registration QP-2 standing unattended in a driveway leading to an open-air theatre. Near this vehicle, however, was another car which was surrounded by some six people. The officer inquired of them as to who owned the automobile bearing registration QP-2. The defendant, who was one of the six individuals at the scene, acknowledged the car to be his. ²

On learning that defendant was the owner of QP-2, the police officer called the officer who was taking a report from Berry to request that Berry be brought to the scene. On arriving, Berry identified defendant as his assailant.

In consequence of the foregoing, defendant was charged with attempted larceny of the hubcaps and with an assault and battery on Berry.

At trial, defendant produced an alibi witness who, on direct examination, testified, in essence, that he and defendant were together at a place removed from the scene of the offenses and were so together at the time the offenses were committed.

On cross-examination, however, the alibi witness was confronted with a signed statement in which he had stated that he and not defendant, had committed the offenses in question.

The defendant objected to the use of the signed statement by the prosecution, but this objection was overruled and the witness admitted having signed the statement in question. When questioned by the prosecution as to whether his testimony on direct examination or the signed statements were the truth, the witness then testified that they were true and that he, not defendant, had in fact committed the offenses.

In his summation to the jury counsel for the state, making reference to the witness's direct evidence testimony vis-a -vis his written statement, said: 'Do you believe this key witness they have? On October 27th he says one thing; on December 15th he says another ³ * * * that man is on trial right there and Mr. Rameaka, his brother-in-law, is only a witness for him. He's a liar.'

At this point, counsel for defendant objected to the prosecution's categorization of the witness as a liar. The trial justice overruled this objection and counsel for defendant excepted. Continuing his summation, counsel for the state remarked, 'Look at the evidence and the facts and the facts are this is an Oldsmobile hubcap. The defendant had no hubcaps, that his car was an Oldsmobile, that he put a liar on the stand as a witness and expects you to believe it.' Counsel for defendant again objected to this categorization and was again overruled by the trial justice. Exception to this ruling by counsel for defendant was duly noted.

It is the two exceptions heretofore narrated on which defendant predicates his appeals to this court. In support thereof defendant contends that reference to the alibi witness as 'a liar' by counsel for the state deprived defendant of a fair and impartial trial, in that said reference was merely an opinion, not based on the facts in evidence.

So contending, he calls our attention to Gibson v. United States, 131 U.S.App.D.C. 163, 403 F.2d 569 (1968); People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617 (1962); State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967); State v. Parker, 235 Or. 366, 384 P.2d 986 (1963).

It is to be noted that defendant cites no Rhode Island cases and this, in all probability, is because the exact question has not previously been considered by this court. However, we have had occasion in the past to consider the alleged tainting of a fair trial process by counsel who, in summation to the jury, has expressed an opinion which, it was alleged, was predicated on a personal belief not supported by evidence in the record. See State v. Mancini, 108 R.I. 261, 274 A.2d 742 (1971); State v. Kozukonis, 100 R.I. 298, 214 A.2d 893 (1965); State v. Werner, 87 R.I. 314, 140 A.2d 502 (1958).

In each of those cases, ...