State v. Powers

• Decision Date: 01 December 1989
• Docket Number: No. 88-467-C,88-467-C
• Citation: 566 A.2d 1298
• Parties: STATE v. James J. POWERS. A.
• Court: Rhode Island Supreme Court

Page 1298

566 A.2d 1298

STATE v. James J. POWERS.

No. 88-467-C.A.

Supreme Court of Rhode Island.

Dec. 1, 1989.

James E. O'Neil, Atty. Gen., Jeffrey J. Greer, Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Barbara Hurst, Asst. Public Defender, Edward L. Gerstein, Providence, for defendant.

Before FAY, C.J., and KELLEHER, WEISBERGER, MURRAY and SHEA, JJ.

OPINION

SHEA, Justice.

This matter has come before the Supreme Court a second time following our remand in State v. Powers, 526 A.2d 489 (R.I.1987). We affirm.

On July 3, 1981, at approximately 10 p.m. two witnesses saw a man wearing a nylon stocking over his head enter and rob the E Mart Gas station on Warwick Avenue in Warwick, Rhode Island. During the course of the robbery the night attendant at the station, a seventeen-year-old male, was shot and later died. At trial witnesses testified that defendant had borrowed a handgun prior to the robbery and later admitted shooting the attendant. The jury convicted defendant of robbery and felony murder. For a full narration of the facts we refer the reader to our earlier opinion.

The remand was ordered after our consideration of defendant's appeal from his convictions for felony murder and robbery. The defendant claimed that the state had violated his rights to pretrial discovery under Rule 16 of the Superior Court Rules of Criminal Procedure, as well as other issues. On the probability that the resolution of one of the Rule 16 issues would be dispositive, we ordered the remand and directed the Superior Court to conduct an evidentiary hearing. At that hearing the trial justice was to consider the facts surrounding the nondisclosure of statements attributed to defendant but not disclosed to him in pretrial discovery.

It was the defendant's claim that the prosecution had deliberately withheld the statements from the defense. The statements in question, as alleged to have been made by defendant, were as follows:

1. "The only person that can get me is me," made July 10 or 11, 1981, about seven days after the murder and robbery, to a Warwick city police lieutenant and overheard by another detective.

2. "Do you think I could have done this?" asked of a Warwick police detective July 9, 1981, while they were inspecting the crime scene.

3. On September 11, 1981, while in the custody of Providence police, two Warwick police officers alleged the defendant made the statement that "when we had somebody that saw him pull the trigger, if he did it, then we would have something. Until such time as that, in effect, [we] had nothing * * *. [A]ll [police] had is what people had told us." ¹

At the hearing the police officers testified that in the police reports of their investigation they had made only brief notations that the conversations had taken place. Verbatim narrations of the conversations were not prepared.

Following that hearing the trial justice made the following findings:

1. That the prosecutor at the trial, first learned of the nature and content of the three oral statements involved in the remand order on the evening of May 11, 1982, at approximately 7:30 p.m.

2. That after learning of the three oral statements, the prosecutor, at the earliest available time, May 12, 1982, at approximately 9:30 a.m., made the contents of all three statements available to the chief defense trial attorney.

3. The defendant Powers did not testify until some five days after the nature and contents of the three oral statements had been furnished to his counsel.

4. At the time that the police officers testified on rebuttal on May 18, 1982, the defendant's counsel had been informed some six days before as to both the nature and content of what each officer would be expected to testify, if permitted to testify, regarding each of the three statements.

The trial court also found that the state had met its burden of proof by clear and convincing evidence. Such findings of fact will not be disturbed on appeal unless they are shown to be clearly erroneous. Frenning v. Dow, 544 A.2d 145, 146 (R.I.1988).

Our review of the record fails to reveal any indication of a deliberate withholding of the fact that these statements were made by defendant. The prosecutor testified as to how he became aware of the statements, which he promptly discussed with defendant's counsel. There is no evidence in the record of the hearing that would support defendant's allegations that the prosecutor's carelessness in reviewing his files during the pretrial discovery prevented the disclosure of these statements along with other pretrial discovery material.

A review of the record leads us to the conclusion that the investigating officers did not report the statements to the prosecutor at an earlier time because they did not recognize that the statements in question had any evidentiary value. The statements were not of a type that a police officer would normally consider to be an admission crucial to an investigation. It is also apparent that this defendant's attitude and rather surly manner of speaking with the police officers was likely to have resulted in their concluding that the specific statements were not important. Furthermore, in view of other evidence presented by the prosecution, the statements in question were practically insignificant. The other evidence we refer to is testimony of Peter D'Ambra and Gary LeMay, who testified that defendant had admitted to them that he had committed the robbery and shot the victim.

Without evidence to the contrary, this court will assume that nondisclosure of the type complained of here is inadvertent rather than deliberate. State v. Lionberg, 533 A.2d 1172, 1180 (R.I.1987); State v. Concannon, 457 A.2d 1350, 1353 (R.I.1983). In our opinion the findings of the trial justice were not clearly wrong.

Having reached that conclusion, however, we find our task is not finished. The defendant argues that after the trial justice found no deliberate nondisclosure, he nevertheless should have then made a determination regarding whether defendant had suffered any procedural prejudice. Procedural prejudice would occur if the discovery violation prevented a defendant from preparing an adequate defense. State v. Coelho, 454 A.2d 241, 244-45 (R.I.1982). The defendant here had attempted during the hearing to amend his allegations to include claims of both deliberate nondisclosure and, alternatively, nondeliberate nondisclosure that resulted in procedural prejudice.

The trial justice declined to consider that question. In view of this refusal, the state has suggested that we remand again to the trial justice for a hearing on that point. That will not be necessary, however, because the complete record before us will enable us to perform that analysis ourselves. We shall perform that analysis by examining the four factors set forth in Coelho to determine whether a sanction for nondisclosure is warranted.

We first consider the reason given for the nondisclosure. The trial justice has concluded after a hearing that the nondisclosure was unintentional. As we have noted, our review of the record persuades us that he was not clearly wrong.

We next consider the extent of prejudice caused to defendant. In this case two witnesses, who were friends of defendant, testified that defendant admitted to them he had shot the victim during a robbery. In the face of that testimony and other highly incriminating evidence, it would be difficult to say that defendant was significantly prejudiced by the statements in question. None of the statements were admissions of guilt. At the most they tended to show a confidence or cockiness that offended the police and which might offend the jurors. In view of all the other evidence presented by the state, however, it is not likely that the jury verdict would have been different if the rebuttal evidence had not been admitted.

The next consideration, the feasibility of rectifying any prejudice by a continuance, seems not to apply in this case. A continuance was suggested by the Attorney General when the issue arose. The defendant did not request one. The statements were disclosed to defense counsel, as the trial justice found, six days before the rebuttal evidence was presented and five days before defendant testified.

The final factor is whether there were any other considerations that would warrant the imposition of sanctions. We believe that there are none. Consequently we conclude that defendant is not entitled to relief on this issue.

In defendant's first appeal we considered only the implications of the rebuttal testimony because it appeared at the time that that issue could be dispositive of the appeal. Since we have now resolved that issue in favor of the state, we must consider the other issues raised in Powers's original appeal.

There were several other discovery violations alleged by defendant. He claimed that the prosecution failed to inform him that the owner of the gas station where the robbery and homicide occurred would testify that money was missing. The trial justice overruled defendant's objection. He did so because that witness had previously given the same testimony at defendant's bail hearing. Since defendant was aware of the prior testimony, the trial justice was justified in allowing it into the record. See State v. Long, 488 A.2d 427, 434 (R.I.1985).

The defendant also complains of the admission, over his objection, of a photograph of a gun barrel. According to defendant, the photograph had not been produced at a tangible-evidence viewing. The state insists that it was available. At trial a witness testified about digging up the barrel itself, and the barrel was admitted into evidence without objection. The trial justice ruled that there was no surprise and that it was well within his discretion to admit the photograph. State v. Brash, 512 A.2d 1375, 1378 (R.I.1986).

In addition, defendant objected to the testimony about the use of a mask, claiming that...