State v. Powers

• Decision Date: 01 June 1987
• Docket Number: No. 82-574-C,82-574-C
• Citation: 526 A.2d 489
• Parties: STATE v. James J. POWERS. A.
• Court: Rhode Island Supreme Court

Page 489

526 A.2d 489

STATE v. James J. POWERS.

No. 82-574-C.A.

Supreme Court of Rhode Island.

June 1, 1987.

William E. Reilly, Public Defender, Barbara Hurst, Janice M. Weisfeld Asst. Public Defenders, Providence, for plaintiff.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Asst. Atty. Gen., Providence, for defendant.

OPINION

MURRAY, Justice.

The defendant, James J. Powers, was convicted of robbery and murder. He appeals.

At about 10 p.m. on July 3, 1981, Adam Mowry and Pauline Krueger were sitting in front of the Pilgrim Lutheran Church across from the E Mart gas station on Warwick Avenue in Warwick, Rhode Island. They saw a man wearing a nylon stocking over his head and holding what appeared to be a small handgun emerge from the wooded area behind the gas station and enter the station office. The man, who was wearing jeans and a denim jacket, grabbed the night attendant. A shot rang out and the attendant fell. The masked man ran out of the office and over to the corner of the building, then turned and went back into the office. He ran back out carrying a small box, then headed through the wooded area behind the station. Mowry ran after the masked man but was unable to catch him. Krueger found the attendant, a seventeen-year-old boy, in the office lying on his back. He was bluish in color and there was blood on the floor.

Within minutes the police arrived. Sergeant Marky Carnahan observed the young victim lying on the floor, bleeding from the nose and from the back of the head. The victim was not breathing and Sergeant Carnahan found no pulse. The sergeant began mouth-to-mouth resuscitation and chest massage and was able to restore the victim's breathing and pulse.

Two hours later, however, at Kent County Memorial Hospital, the victim was pronounced dead. According to the state medical examiner the cause of death was a gunshot wound to the neck, inflicted at close range.

At trial the owner of the E Mart gas station testified that the next day he discovered $366 and a cigar box with some change in it missing.

Antonetta D'Ambra testified that shortly after 10 p.m. the night of the robbery, defendant appeared unexpectedly at her home, a short distance from the E Mart. Mrs. D'Ambra testified that she heard sirens outside and asked defendant whether the police were looking for him. The defendant said that he had been in a fight with some boys, but that the police were not after him. He added that he was supposed to meet Mrs. D'Ambra's son, Peter D'Ambra, there at her home.

Mrs. D'Ambra's daughter, Norma Bloom, testified that she was with Mrs. D'Ambra when defendant arrived. She said that defendant was wearing what looked like a denim jacket and jeans. Norma called her brother, Peter, and gave the phone to defendant, who asked Peter to come pick him up. Peter arrived a short time later and left with defendant.

Donna Jean Simas testified that she lived with Peter D'Ambra and was with him at their apartment on the night in question. At about 10 p.m. she received a phone call from someone wishing to speak with Peter. Peter took the phone and spoke for a few minutes, hung up, and asked to borrow Simas's car to go to his mother's. He took the car and picked up defendant at Mrs. D'Ambra's house. They returned to the apartment together.

Peter D'Ambra testified that during the last week of June 1981 defendant had asked him if he could get a gun for defendant. Peter testified that he had obtained a gun and had lent it to defendant the early evening of July 3. The gun was a .22-caliber handgun. When the two returned to Peter's and Simas's apartment, Peter retrieved the gun from defendant. Peter testified that defendant admitted to robbing the gas station and to shooting the attendant.

Raymond Ross testified that he was asked by defendant the evening of July 3 where defendant could get some .22-caliber bullets. Ross didn't know. Ross also testified that three or four weeks earlier defendant had asked him where defendant could get a gun.

Colleen McCabe testified that at about 5 p.m. on July 3 she received a phone call from defendant during which defendant asked her if she wanted to go out and eat with him later that night. She asked defendant how he planned on eating out since he didn't have any money. The defendant told her he would get some money. McCabe asked him how, and he said "the only way he knew how." She did not see him later that evening.

McCabe also testified that she had been in California with defendant some weeks before July 3 and that at that time he had told her he was going to return to Rhode Island "to make money." He said that after he returned to Rhode Island, he was going to try to get a gun.

Gary LeMay testified that on July 18 he spoke with defendant in Whittier, California. The defendant told LeMay that defendant had been questioned by Warwick police about a murder. When LeMay asked if defendant did it, defendant replied, "[Y]es, I killed the fuckin' kid." The defendant said he held up the gas station attendant with a .22-caliber gun, and because "he thought that the guy noticed his face, his mask, he turned him around and he shot him."

The defendant took the stand on his own behalf. He admitted to being a professional thief with an extensive criminal record and to wanting a gun in early July to "make some money" for himself, but denied robbing the gas station or shooting the attendant. Peter D'Ambra was the responsible party, defendant maintained.

The jury convicted defendant of robbery and of felony murder, with robbery as the underlying felony. The trial justice sentenced him to life imprisonment for the felony murder, but did not impose sentence for the robbery.

On appeal defendant objects to rulings by the trial justice concerning (1) the admission of various evidence not produced in discovery, (2) the scope of cross-examination of Gary LeMay, (3) the jury's awareness that defendant was in custody, (4) the statement by a witness that defendant had previously been in prison, (5) the admission of evidence of the circumstances surrounding defendant's arrest, and (6) the robbery conviction.

Because we feel that resolution of one of the discovery issues on remand might well be dispositive of the case we need not reach, at this time, defendant's other contentions, except we reverse his robbery conviction. All of the defendant's arguments are, of course, preserved, should the case again reach us on appeal.

Rhode Island's criminal-discovery provision, Rule 16 of the Superior Court Rules of Criminal Procedure, is one of the most liberal criminal-discovery mechanisms in the United States. State v. Darcy, 442 A.2d 900, 903 (R.I. 1982). The rule, which requires extensive pretrial disclosure of facts, was designed to be broad in scope so that neither the defense nor the prosecution is surprised at trial. State v. Wyche 518 A.2d 907, 910 (R.I. 1986). The rule helps to ensure the accurate determination of the guilt or innocence of the accused. State v. Quintal, 479 A.2d 117, 119 (R.I. 1984).

The defense in this case requested "all relevant written or recorded statements or confessions, signed or unsigned, or written summaries of oral statements or confessions made by the defendant, or copies thereof." Rule 16(a)(1) states:

"Discovery and inspection.--(a) Discovery by Defendant. Upon written request by a defendant, the attorney for the State shall permit the defendant to inspect or listen to and copy or photograph any of the following items within the possession, custody, or control of the State, the existence of which is known, or by the exercise of due diligence may become known to the attorney for the State:

(1) all relevant written or recorded statements or confessions, signed or unsigned, or written summaries of oral statements or confessions made by the defendant, or copies thereof."

At trial the prosecution introduced the testimony of several witnesses to rebut the testimony of defendant, who took the stand on his own behalf. The record indicates that the prosecution's sole purpose in calling three of these rebuttal witnesses was to elicit from each of them a distinct prior statement made by defendant. The defense objected to the introduction of each of the statements, one of which had previously been disallowed by the trial justice when the prosecution sought to elicit it from the same witness during its case in chief. The defense argued that it had received none of the statements, as requested, in discovery.

The first of the three statements came in through Warwick Police Lieutenant William Morgan III. Morgan testified that he had spoken with defendant on July 10 or 11, 1981, about the robbery and murder at the E Mart a week earlier. Morgan said that defendant told him at that time, "[T]he only person that can get me, is me." On cross-examination Morgan said that he had not made any notes of the conversation, nor had he included it in any reports.

The second statement came in through Warwick Police Detective Jerome Bessell, who had previously testified for the state during its case in chief. Bessell was apparently part of the prosecution team; he had been sitting at counsel's table through the entire trial. The statement, which Bessell said defendant related to him on July 9, 1981, when Bessell was investigating the scene of the crime, was, "[D]o you think that I could have done this?" It is not clear whether the statement itself was recorded verbatim by Bessell, but on cross-examination Bessell admitted that in his "report" he had "stated a short conversation between [him]self and Mr. Powers." He also corroborated Morgan's testimony, stating that he had heard defendant relate to Morgan the statement Morgan had attributed to defendant.

When Bessell was first called as a witness for the state during the state's case in chief, the trial justice would not allow him to testify to defendant's July 9 statement. The justice told the prosecutor, who had been arguing that...