State v. Reis, 78-78-C

• Decision Date: 03 June 1981
• Docket Number: No. 78-78-C,78-78-C
• Citation: 430 A.2d 749
• Parties: STATE v. Daniel Lee REIS. A.
• Court: Rhode Island Supreme Court

Page 749

430 A.2d 749

STATE v. Daniel Lee REIS.

No. 78-78-C.A.

Supreme Court of Rhode Island.

June 3, 1981.

Dennis J. Roberts, II, Atty. Gen., Kathryn A. Panciera, Sp. Asst. Atty. Gen., for plaintiff.

Barbara Hurst, Asst. Public Defender, for defendant.

OPINION

MURRAY, Justice.

On November 3, 1976, a criminal information was filed in the Superior Court charging Daniel Lee Reis (Daniel) and his wife, Ramona Reis (Ramona), with several violations of the Rhode Island Controlled Substances Act. ¹ Specifically, the information charged both Daniel and Ramona with unlawful possession of a controlled substance, ² possession with intent to deliver a controlled substance, ³ maintaining a narcotics nuisance in their apartment, ⁴ and conspiracy to violate the Rhode Island Controlled Substances Act (hereinafter referred to as the act). ⁵ Additionally, Daniel alone was charged with maintaining a narcotics nuisance in his car.

The matter proceeded to a trial on October 13, 1977. Although Daniel and Ramona were each represented by separate counsel, they were tried together before a justice and a jury of the Superior Court. The jury subsequently returned a guilty verdict against Daniel on all counts of the information except the fifth one (that of conspiracy to possess a controlled substance and to possess with intent to deliver a controlled substance). With respect to Ramona, the jury returned a guilty verdict on the counts of possession of a controlled substance and of maintaining a narcotics nuisance. Ramona was found not guilty of the two other charges lodged against her.

After the close of all evidence, both Daniel and Ramona brought motions for judgment of acquittal. At that time, the trial justice deferred ruling on those motions. Later, after the jury had returned its verdict, defendants renewed their motions. The trial justice granted Ramona's motion for judgment of acquittal on the two counts upon which the jury found her guilty. Daniel, however, was not so successful as his wife. The trial justice denied his motion for judgment of acquittal as to all the counts upon which he was found guilty. It is the trial justice's denial of that motion which forms the basis of defendant's appeal.

A perusal of the record discloses the following facts. In July 1976, vice-squad officers from the Pawtucket police department placed under surveillance a two-family house located at 417-419 Pawtucket Avenue in the city of Pawtucket. The officers suspected that certain inhabitants of the premises were illegally selling drugs therein. At trial, Sergeant Charles Dolan (Dolan), one of the officers who participated in the surveillance, testified that at around 10:30 on the evening of July 26 he observed defendant drive a black 1966 Cadillac into the driveway of the premises. According to Sergeant Dolan, two men approached defendant as he alighted from the vehicle. The three spoke for a brief interval, after which the two men left and Daniel entered the premises.

The following morning Dolan appeared in the Fifth Division of the Rhode Island District Court in Pawtucket to apply for search warrants for the premises under surveillance. Two warrants were issued, one for the house at 417-419 Pawtucket Avenue, the other for the car that defendant was observed driving into the driveway the previous night. ⁶ At 1:30 that afternoon, Sergeant Dolan, accompanied by Detective Patrick McConaghy and two other officers, proceeded to the house in order to execute the warrants.

Sergeant Dolan testified at trial that upon their arrival at the premises, he and the other officers entered the building and climbed the stairs to the second floor. They paused at the door to the second-floor apartment and as they were about to knock on it, a "young boy" opened it from the inside and walked out. Sergeant Dolan then asked the boy if his parents were inside. The boy responded in the affirmative. Dolan then knocked at the doorjamb and announced their presence and stated that they had a search warrant. According to Sergeant Dolan, the officers waited a few moments for a response. When none came, they knocked again and announced their presence and then entered the apartment.

Before beginning their search, the officers gave the warrants to Daniel and Ramona. Their search came to fruition in the bedroom closet. There, the officers found eight plastic bags, each containing around a hundred "purplish-bluish" and "mint-green" tablets. The officers also seized from elsewhere in the apartment some rent receipts and telephone bills. Detective McConaghy's search of the Cadillac yielded another bag containing a like quantity of the mint-green tablets similar to those found in the apartment.

Samples from the bags were sent to the toxicology laboratories at the Rhode Island Department of Health. At trial, two toxicologists from the Department of Health testified that they performed several tests on these samples and that the tests revealed that the samples contained phencyclidine, a drug classified under Schedule II of G.L. 1956 (1968 Reenactment) § 21-28-2.08, as enacted by P.L. 1974, ch. 183, § 2.

On appeal, defendant contends that the trial justice erred in denying his motion for judgment of acquittal on both counts of maintaining a narcotics nuisance, that his conviction on charges of both possession and possession with intent to deliver a controlled substance is a violation of the double-jeopardy clause of the Fifth and Fourteenth Amendments of the United States Constitution, and art. I, sec. 7 of the Rhode Island Constitution, and finally that there was insufficient evidence for the jury to return a guilty verdict on the crime of possession and possession with intent to deliver a controlled substance.

Turning now to defendant's first contention, we note that G.L. 1956 (1968 Reenactment) § 21-28-4.06(1)(a), as enacted by P.L. 1974, ch. 183, § 2, provides:

"Any store, shop, warehouse, building, vehicle, aircraft, vessel or any place whatever which is used for the unlawful sale, use or keeping of a controlled substance shall be deemed a common nuisance.

"(1) Any person who violates this subsection with respect to:

"(a) knowingly keeping and maintaining such a common nuisance as described in this section may be imprisoned for not more than five (5) years, and fined not more than one thousand dollars ($1,000), or both;

"* * *."

The defendant argued in support of his motion that in order for one to be found guilty of maintaining a narcotics nuisance, there must be a showing that the public was generally annoyed by the activity in question. ⁷

We must assess defendant's arguments in light of the well-settled rule of statutory construction that in enacting a statute the legislature is presumed to have intended that every word, sentence, or provision has some useful purpose and will have some force and effect. Providence Journal Co. v. Mason, 116 R.I. 614, 624, 359 A.2d 682, 687 (1976). The Legislature is also presumed to know the state of existing relevant law when it enacts a statute. Flather v. Norberg, R.I., 377 A.2d 225 (1977); Bailey v. Huling, R.I., 377 A.2d 220 (1977).

In this regard, the use of the words "common nuisance" is significant. The adjective "common" and the phrase "common nuisance" are words of art used since the days of common law. In State v. Russell, 14 R.I. 506 (1884) this court stated that the offense of being a common night walker consisted not "of particular acts but of an habitual practice evidence by a series of acts." Id at 506. ⁸ Indeed, "(t)he whole fraternity (or sorority) of common vagrants, common brawlers, common scolds, common nightwalkers, common drunkards, common prostitutes and common gamblers share the characteristic that their offenses are of a recurring and habitual nature." Skinner v. State, 16 Md.App. 116, 126, 293 A.2d 828, 834 (1972) (footnotes omitted). For example, the New Jersey Court of Errors and Appeals defined a common burglar as one "who by practice and habit is a burglar * * *." Levine v. State, 110 N.J.L. 467, 471, 166 A. 300, 302 (1933). Similarly, in Commonwealth v. McNamee, 112 Mass. 285 (1873), the Massachusetts court defined a common drunkard simply as one who is "an habitual drunkard." ⁹

In other jurisdictions where the specific term "common nuisance" is incorporated into a statutory scheme, courts have held that those words retained their common-law characteristic of requiring a recurrence of the proscribed activity. In Keeth v. State, 193 Ind. 549, 139 N.E. 589 (1923), a prosecution for maintaining a common nuisance by selling liquor in violation of the prohibition laws, the Indiana Supreme Court held that

"(t)he words 'common nuisance' as used in the statute carry with them a notion of continuous or recurrent violation. * * * The words 'maintains' and 'maintaining' denote continuous or recurrent acts approaching permanence. We therefore conclude that the case is analogous to those of keeping a gaming house * * * to the effect that the keeping of such a house is a continuous act, and * * * constitutes but one indivisible offense * * *." Id. at 550-51, 139 N.E. at 590. (Citations omitted).

The same conclusion was reached in State v. Kapicsky, 105 Me. 127, 73 A. 830 (1909), where the court held that resort to places for the consumption of liquor must be common and habitual for the place to be considered a common nuisance.

In light of the above, we conclude that the Legislature intended the words "common nuisance" to have their common-law meaning and that such meaning contemplates acts which are recurrent or of an habitual nature. To construe this language in any other manner would be to ignore the above-stated rules of statutory construction.

Turning now to the merits of the instant case, we note first that when a motion for a judgment of acquittal is made, the trial justice's review of the evidence is limited to that evidence which the state claims is capable of generating proof beyond a...