State v. Raymond, 81-145-C

• Decision Date: 27 May 1982
• Docket Number: No. 81-145-C,81-145-C
• Citation: 446 A.2d 743
• Parties: STATE v. Tammy L. RAYMOND. A.
• Court: Rhode Island Supreme Court

Page 743

446 A.2d 743

STATE v. Tammy L. RAYMOND.

No. 81-145-C.A.

Supreme Court of Rhode Island.

May 27, 1982.

Dennis J. Roberts II, Atty. Gen., Anthony F. Del Bonis, Sp. Asst. Atty. Gen., for plaintiff.

John F. Cicilline, Providence, for defendant.

OPINION

MURRAY, Justice.

On August 29, 1980, two indictments were returned against the defendant, Tammy L. Raymond, charging her with two counts of robbery and two counts of conspiracy to rob. ¹ The indictments were consolidated for trial, after which a Superior Court jury found the defendant guilty of all the counts against her. The case is before us now on the defendant's appeal from the judgment entered on that verdict.

The charges against defendant stemmed from the August 5, 1980 robberies of two Cumberland Farms stores. The first robbery occurred at about 7:15 p. m. at the Cumberland store. At approximately 10 p.m. that same evening, the Lincoln store was also robbed. The clerks at both stores testified that defendant assisted a male companion in the commission of the robberies.

The principal witness against defendant was Charlene Surabian (Charlene), who drove defendant and Rivera to the two stores and, later, to the train station in Providence. Charlene testified that defendant had telephoned her early in the evening of August 5 and suggested that they "go for a few drinks." Charlene agreed to pick up defendant and shortly thereafter drove to the location designated by her.

After Charlene and defendant had driven a short way, defendant saw a man she knew (codefendant Rivera) and asked Charlene if he could come along. Charlene agreed and stopped to take on the additional passenger. Charlene further testified that Rivera showed her a sawed-off rifle and threatened to shoot her if she refused to follow his orders. On his instructions, Charlene drove to the Cumberland and Lincoln stores and waited each time for defendant and Rivera to return. ² Charlene's ordeal finally ended after she drove defendant and Rivera to the Providence train station.

The first issue raised by defendant involves the granting of the state's motions to consolidate the two indictments against her. The defendant argues principally that the evidence supporting each indictment, when received separately, was inadequate. However, joinder of the two offenses for trial permitted the jury to supplement the evidence in one case with evidence from the other. The defendant claims that joinder of the charges prejudiced her right to a fair trial and constituted reversible error.

The question of joinder of indictments is a matter within the sound discretion of the trial justice, and this court shall not disturb that decision absent a clear abuse. State v. Cline, R.I., 405 A.2d 1192, 1210 (1979). In the case before us, the trial justice correctly applied the test of Rule 13 of the Superior Court Rules of Criminal Procedure, which permits joinder of indictments for trial "if the offenses * * * could have been joined in a single indictment * * *." The trial justice found that this was in fact the case with regard to the indictments in question, noting that they were virtually identical with respect to time, defendant, and crimes charged.

It is true that under Super.R.Crim.P. 14 a defendant may obtain relief from a Rule 13 joinder if it would prejudice his or her right to a fair trial. However, the defendant in the instant case has failed to demonstrate that she was in fact prejudiced. In State v. Sharbuno, 120 R.I. 714, 390 A.2d 915 (1978), we held that a defendant's right to fair trial is not prejudiced by joinder of the charges against him if the outcome would have been the same if separate trials had been held. In the case before us, the evidence supporting each indictment was overwhelming, and it is clear that separate trials would not have had a different result. The trial justice in this case properly exercised his discretion in this matter, and his decision will not be disturbed on appeal.

In the second claim of error defendant challenges the manner in which the state exercised its peremptory challenges. The defendant argues that by challenging three young female jurors the prosecutor deprived defendant of her right to be tried by a representative cross section of the community.

This claim is flawed in two important respects. The defendant is unquestionably entitled to a jury that is chosen from a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). However, the fair-cross-section requirement does not mean that the jury actually chosen must reflect this cross section. In Taylor v. Louisiana, 419 U.S. at 538, 95 S.Ct. at 702, 42 L.Ed.2d at 703, the United States Supreme Court noted that "[d]efendants are not entitled to a jury of any particular composition * * *."

In order for a violation of the fair-cross-section requirement to be proved, a systematic exclusion of an identifiable segment of the community must be demonstrated. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587 (1979); Taylor v. Louisiana, 419 U.S. at 538, 95 S.Ct. at 702, 42 L.Ed.2d at 703; Swain v. Alabama, 380 U.S. 202, 226, 85 S.Ct. 824, 839, 13 L.Ed.2d 759, 776 (1965). The jury-selection process as a whole must be shown to have resulted in jury venires in which a particular group is underrepresented. Duren v. Missouri, 439 U.S. at 366, 99 S.Ct. at 669, 58 L.Ed.2d at 588. It must also be demonstrated that the cause of the underrepresentation is systematic rather than occasional. ³

The defendant in the case before us has clearly failed to make the required showing. She has presented no statistical data upon which to base a finding that there was a systematic exclusion of young women from the jury venire. The Supreme Court opinions cited above clearly indicate that a claim involving the fair-cross-section requirement must fail if unsupported by data beyond the case at hand. ⁴

In the final issue before us, defendant claims that the trial justice erred in failing to grant a new trial after the jury heard testimony that the codefendant Rivera had previously robbed one of the Cumberland Farms store clerks.

On direct examination, Diane Ryan, the clerk at the...