State v. Rizzo

• Decision Date: 06 November 1997
• Citation: 1997 ME 215,704 A.2d 339
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Robert RIZZO.

Page 339

704 A.2d 339

1997 ME 215

STATE of Maine v. Robert RIZZO.

Supreme Judicial Court of Maine.

Argued Sept. 4, 1997.

Decided Nov. 6, 1997.

Andrew Ketterer, Attorney General, Donald W. Macomber, Asst. Atty Gen. (orally), Thomas Goodwin, Asst. Atty. Gen., Augusta, for State.

Matthew B. Nichols (orally), Laurence Gardner, Boulos & Gardner, Saco, for defendant.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

CLIFFORD, Justice.

¶1 Robert Rizzo appeals from judgments entered in the Superior Court (York County, Crowley, J.) following jury verdicts of guilty to the charges of manslaughter (Class A) in violation of 17-A M.R.S.A. § 203(1)(A), ¹ and aggravated assault (Class B) in violation of 17-A M.R.S.A. § 208(1)(B). ² Rizzo contends that (1) the court erred in refusing to dismiss the indictment against him because the State violated a court order requiring a court reporter's presence at the grand jury proceedings and, in addition, re-presented the same evidence to the grand jury; (2) his Miranda rights were violated while he was at the hospital; (3) the court improperly allowed the use of a 911 recording at his trial; and (4) the wording of the jury instruction unfairly prejudiced him. Discerning no error or abuse of discretion, we affirm the judgments.

¶2 The testimony and record show the following: Rizzo and Charles Trombley were friends. On August 15, 1994 between noon and 2:00 p.m. the two were drinking at a bar in Kittery. Trombley helped Rizzo home, then returned to the bar. At 5:00 p.m., Trombley, Ernest Bahmer, and two friends met and then drank until visibly intoxicated. Bahmer and Trombley then walked to Rizzo's house and knocked loudly on the front door. Rizzo yelled repeatedly from within: "I have a gun." When Trombley entered, Rizzo recognized him, emptied the shells, and threw the shotgun on the floor. After the three drank several whiskeys and talked for a while, Rizzo discharged a handgun into Trombley's abdomen. Bahmer dialed 911, and as he was talking Rizzo "pistol whipped" him. With the phone off the hook and the 911 operator recording the fracas, the two wrestled until the police arrived.

¶3 At the police station, Rizzo was informed of his Miranda rights, which he waived. He complained of torso pains and was taken to the hospital, where he was met by Steven Hamil, a Kittery detective. Hamil told Rizzo that he was there to safeguard him and to ask him a few questions. For about two hours Hamil observed Rizzo being examined, recording in his notebook the statements that Rizzo made, such as "I shot Charlie" and "Those guys broke in, I had to defend myself." Trombley died the following day from blood loss caused by the bullet wound.

¶4 On August 26, 1994, the Superior Court (Cole, J.) granted Rizzo's motion for a court reporter to be present when the grand jury considered his case. The grand jury returned an indictment against Rizzo on September 9, 1994 for the manslaughter death of Trombley. On October 7, 1994 the grand jury returned a superseding indictment adding an additional count of aggravated assault with a deadly weapon committed against Ernest Bahmer. On May 3, 1995, the grand jury again considered Rizzo's case and returned a new superseding indictment upgrading the manslaughter charge to murder and adding an additional count of attempted murder with a dangerous weapon for his actions against Bahmer. A court reporter was present in September, but not for the October and May grand jury sessions. Following a jury trial, Rizzo was convicted of manslaughter and aggravated assault with the use of a weapon, and he appeals those convictions.

I.

¶5 Rizzo unsuccessfully moved to dismiss the indictments on the grounds that at the October and May sessions of the grand jury the State violated an outstanding court order that a court reporter be present, and further that the State impermissibly re-presented the same evidence that had already been found by two grand juries to be insufficient to indict Rizzo for murder and attempted murder.

¶6 The denial of a motion to dismiss an indictment on these grounds is reviewed for an abuse of discretion. See State v. Cotton, 673 A.2d 1317, 1319 (Me.1996); State v. Owens, 638 A.2d 64 (Me.1994). In refusing to dismiss the indictment, the court found that the police had submitted new evidence to the prosecutor after the first indictment. It also found that the State's failure to have a court reporter was a good faith mistake. These findings are not challenged.

¶7 In support of his argument that the prosecutors have a duty not to seek indictments from the grand jury that are not actually supported by the available evidence Rizzo relies on State v. Lagasse, 410 A.2d 537 (Me.1980). In Lagasse we cautioned prosecutors to "carefully evaluate [the] evidence to determine whether in fairness to the defendant the charge ... ought to be dismissed before the trial commences." Id.

¶8 That language should not obscure our unequivocal rejection in that case, and others, of pre-trial motions challenging the sufficiency of evidence to support indictments. See also State v. Marshall, 491 A.2d 554, 557 (Me.1985) ("We have repeatedly held that courts in this jurisdiction are not authorized to inquire into the sufficiency of the evidence on which the grand jury acted."); State v. Heald, 307 A.2d 188, 190 (Me.1973) ("no reason to depart from our previously well established policy"); Cluchey & Seitzinger, Maine Criminal Practice § 6.5 at III-17 (rev. ed. 1995) ("Motions to dismiss indictments based upon the insufficiency or incompetency of the evidence presented to the grand jury in support of the indictment have no basis in Maine."). Rizzo's challenge to the sufficiency of the evidence for the indictment is without merit. ³

II.

¶9 Rizzo also contends that the court erred in denying his motion to suppress statements made while he was in the presence of a police officer at the hospital. Rizzo claims that Detective Hamil's presence at the hospital while Rizzo was being treated was the functional equivalent of an interrogation. In denying Rizzo's suppression motion, the court found that Hamil would have been required to give Rizzo another Miranda warning had he interrogated him at the hospital, but that no interrogation took place and Rizzo's utterances were spontaneous. ⁴

¶10 Rizzo argues that the detective's announced intention to question is analogous to the officer's action in State v. Nixon, 599 A.2d 66, 67 (Me.1991), in which the detective had shown the defendant a crime scene sketch, pushing it toward him and saying "You might find this interesting." Nixon, 599 A.2d at 67. We concluded that in the circumstances of that case the detective should have known that the act "was reasonably likely to elicit an incriminating response." Id. (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980)).

¶11 The Innis requirement that the trial court determine if officer Hamil's conduct was reasonably likely to elicit an incriminating response presents a mixed question of fact and law in the sense that the trial court had to make factual determination about what happened between the Officer and Rizzo and then apply a legal standard to those factual findings. While we have sometimes spoken of a clear error standard in regard to such mixed questions, ⁵ it is the appellate court which must make the ultimate legal determination. See State v. Cefalo, 396 A.2d 233, 240 (Me.1979) ("[A] trial judge's findings of historical facts on relevant identification issues will be overturned only when clearly erroneous. The legal conclusions drawn from those facts, however, are subject to the independent examination and judgment of the Law Court."). ⁶

¶12 This approach is consistent with the U.S. Supreme Court's ultimately plenary review of lower court determinations that police conduct was the functional equivalent of interrogation. See Arizona v. Mauro, 481 U.S. 520, 528 n. 6, 107 S.Ct. 1931, 1936 n. 6, 95 L.Ed.2d 458 (1987) ("Our decision ... does not overturn any of the factual findings of the Arizona Supreme Court. Rather, it rests on a determination that the facts of this case do not ... satisfy the legal standard....").

¶13 Hamil's announcement of an intent to question was not the functional equivalent of interrogation. Hamil's statement to Rizzo that he would be asking him some questions, without initiating any further discussion with Rizzo, is even less coercive than conduct we have held is not equivalent to interrogation. See State v. Simoneau, 402 A.2d 870, 873 (Me.1979) ("neutral questions which are not part of an effort to elicit a confession or admission" and threshold or clarifying questions posed by police in response to an ambiguous statement by a suspect do not constitute interrogation); State v. Friel, 508 A.2d 123 (Me.1986) (handing defendant arrest and search warrants not "the functional equivalent of interrogation"); State v. Sumabat, 566 A.2d 1081 (Me.1989) (defendant's gratuitous statements that were not responsive to routine, non-interrogation questions did not constitute interrogation); State v. Barnes, 54 N.J. 1, 252 A.2d 398 (1969) (single question asked "was not the type of question which centered blameworthiness on the defendant"). There was no error in the refusal to suppress the defendant's statements at the hospital.

III.

¶14 Over Rizzo's objection the trial court admitted an eleven-minute tape that was recorded after Ernest Bahmer called 911. While the phone was off the hook, Rizzo and Bahmer made audible statements and wrestled with each other as Trombley moaned in the background.

¶15 The State maintained at trial that the tape established what had transpired before the police arrived. In the recording Rizzo can be heard saying to Bahmer "You're lucky I missed," which the State suggested was "relevant to show that Mr. Rizzo was conscious that he fired at Mr. Bahmer and missed him," and...