State v. Pope

• Decision Date: 09 May 1980
• Docket Number: No. 77-449-C,77-449-C
• Citation: 414 A.2d 781
• Parties: STATE v. Vincent POPE. A.
• Court: Rhode Island Supreme Court

Page 781

414 A.2d 781

STATE v. Vincent POPE.

No. 77-449-C.A.

Supreme Court of Rhode Island.

May 9, 1980.

Dennis J. Roberts II, Atty. Gen., Kenneth P. Madden, Sp. Asst. Atty. Gen., for plaintiff.

Mann & Roney, Robert B. Mann, Providence, for defendant.

OPINION

KELLEHER, Justice.

The defendant, Vincent Pope (Pope), was charged in a multicount information with committing the crimes of assault with intent to rob, assault with a dangerous weapon extortion, and carrying a gun without a license. A Superior Court jury returned guilty verdicts with respect to all four counts. Pope's motion for a new trial was denied. Thereafter, the trial justice imposed a series of concurrent prison sentences. Pope is before us on an appeal in which he raises a multitude of issues, most of which merit little consideration.

At about 5 a. m. on September 5, 1976, a Providence obstetrician, Dr. John Barrall, while dressed in his "scrub suit," had left his East Side home and was driving in a westerly direction on Douglas Avenue, headed toward Women & Infants Hospital where he was to minister to the needs of a patient in labor. As the physician neared an entrance ramp that begins at the easterly curb and leads to the southbound lanes of U.S. Interstate Route 95, he struck the rear of a station wagon that had just turned onto the ramp. When the obstetrician alighted from his vehicle to meet with the occupants of the wagon, he was met by the wagon's driver, who grabbed Dr. Barrall by the throat, demanded $300 as the cost of repairing his car, and repeatedly struck the physician about the side of his head.

Approximately ten minutes later the wagon's passenger, whom the police later identified as Pope, appeared at the doctor's side, put a .22 caliber pistol to the physician's throat, and ordered him to "get the money up." Pope gave additional emphasis to his demand by discharging the firearm into the air. Doctor Barrall then attempted to search the glove compartment of the car but came up with no cash.

The first officer to arrive at the collision scene observed one man running down the entrance ramp and two others, Pope and Dr. Barrall, at the physician's vehicle. This officer testified that he found the pistol stuffed between a seat cushion and the "wall of the rear seat." An examination of the weapon disclosed that it contained five live rounds of ammunition and one empty shell.

Pope conceded that he had carried the pistol on the day in question but denied threatening the obstetrician in any fashion whatsoever. He explained to the jury that in order to avoid being found in possession of the pistol, he had drawn the weapon from his belt; somewhere in the withdrawal process, the gun's hammer was accidentally pulled back. He thereupon fired the weapon and secreted it inside the vehicle. Pope insisted that he had employed this unorthodox method of securing the gun's trigger because his right hand was so badly injured in the collision that it was impossible for him to restore the hammer manually to a closed position.

During its cross-examination of Pope, the state sought to impeach his credibility by having him admit to two prior convictions. One conviction occurred in 1958 and involved an assault with a dangerous weapon. The other conviction occurred in 1968, and it concerned a charge of illegal possession of a pistol. Pope now claims that the trial justice erred in allowing this evidence because not only were the two convictions remote in time, but they were also of the same nature as the offenses for which he was being tried in the winter of 1977.

In this jurisdiction, remoteness is the sole crucial factor to be considered by a trial court when an effort is made to impeach a witness's credibility by evidence of his prior involvement with the law. State v. O'Brien, 412 A.2d 231 (R.I.1980); State v. Bennett, R.I., 405 A.2d 1181 (1979); State v. Lombardi, 113 R.I. 206, 319 A.2d 346 (1974). Remoteness is not, however, measured solely by the passage of time, since a trial court, in the exercise of its discretion, can take into account convictions intervening between the past conviction and the crime for which the defendant is being tried. The factfinder has a right to consider whether one who repeatedly refuses to comply with the law is more likely to ignore the obligation of truthfulness than a law-abiding citizen. See State v. Sands, 76 N.J. 127, 144-145, 386 A.2d 378, 387 (1978).

Here, the assault-with-a-dangerous-weapon charge arose nineteen years before the trial. Pope's illegal possession of the gun occurred about nine years before the trial and about ten years subsequent to the assault conviction. The trial justice reminded the jury that they were to consider the convictions solely for the purpose of impeachment; ¹ in light of what we have just said, we cannot fault the trial justice in his refusal to exclude the assault-with-a-dangerous-weapon conviction.

Pope operated a South Providence nightclub. He attempted to excuse his licenseless possession of the pistol by claiming that the weapon provided an extra measure of protection from anyone who might want to rob him of the nightclub's receipts. According to Pope, at the time of the collision he was headed homeward carrying with him some $370 in cash. The cash represented the night's receipts at the club.

In rebuttal the prosecution presented a Providence police officer who worked in the detention area at police headquarters. This officer explained that any new "prisoner" entering the detention area is searched, after which all his belongings are taken from him and placed in a bag containing his name; the bag is then placed in a locker. The witness identified a document as a "lockup sheet." The sheet is dated September 5 and lists the names of eight prisoners. It indicates that Pope occupied "Cell 3," being on "Hold" for the "C Squad," and that his "Traps" consisted of ".71cents." Pope now claims that the trial justice erred when he ruled that the sheet qualified as a business record. The officer testified that he made the entries listed on the sheet as part of his duties, and he also observed that the sheet was kept in the regular course of police business and that the notations occurred simultaneously with the search and seizure.

In State v. Jamgochian, 109 R.I. 46, 49, 280 A.2d 320, 322 (1971), we once again pointed out that although our business-record legislation, G.L.1956 (1969 Reenactment) § 9-19-13, refers only to "civil proceedings," a record may be admitted into evidence under the common-law exception to the hearsay rule as being an entry made in the regular course of business. In Jamgochian we referred to the holding in State v. Guaraneri, 59 R.I. 173, 177, 194 A. 589, 591 (1937), which laid down the following common-law requirements: (1) it must appear that there was a duty to keep the record in the regular course of business; (2) the person whose duty it was to keep such a record must, if alive, competent, and within the jurisdiction, testify that the entry was made in the regular course of business in his handwriting or under his immediate supervision. The officer touched all the necessary common-law bases.

In essence, Pope's objections go to the weight to be given to such a document because he points out such factors as the records' being in pencil rather than in ink, and the officer's coming to work at 8 a. m., three hours after Pope's arrest.

Pope also argues that the trial justice should have permitted certain defense witnesses to testify as to why he was carrying a pistol on the morning he encountered Dr. Barrall. The trial justice rejected offers of proof indicating that two defense witnesses were prepared to testify that at one time Pope had testified for the prosecution at a murder trial and since that time had been subject to threats, shootings at his nightclub, and other acts of violence against him and his family. These reprisals, according to Pope, would justify his being armed.

The trial justice's rejection of the offers of proof is well warranted. The reasons for the pistol's presence were totally irrelevant. The sole issue on the gun-carrying charge was whether Pope had a license to carry the weapon. His reasons for carrying the pistol were of no concern to the jury. As an aside, the transcript clearly indicates that soon after Pope began his testimony, the jury was made well aware of why he had the gun. He told the jury that his friend had been shot, that a fire bomb had been thrown into his basement, that his guard had been executed, and that various other acts of violence had been committed. Pope claimed that all of these acts were in retribution for his witness-stand appearance. The jury, consequently, was well aware of Pope's reasons for being armed, but it obviously thought that these events were no excuse for his not having a license.

As the trial was about to begin, Pope's appointed trial counsel informed the trial justice that Pope had written to the Superior Court's Presiding Justice, asking that he be afforded the services of a new attorney, for he no longer wanted his present counsel "to represent me in this matter or any other matter." Pope addressed the court and faulted his counsel because "there was (sic) things that should have been said that hadn't been said during the bail hearing * * * ." The trial justice, in rejecting Pope's request, observed: "Mr. Pope is certainly entitled to effective counsel. He's not privileged to have counsel of his own choice but merely to have effective counsel and a fair trial." The trial justice then commented favorably on the quality of service that Pope had received from his present counsel. Pope now claims that the denial of his request amounts to the denial of his right to obtain counsel of his own...