State v. Robalewski

Citation418 A.2d 817
Decision Date28 July 1980
Docket NumberNo. 79-20-C,79-20-C
PartiesSTATE v. Joseph N. ROBALEWSKI. A.
CourtUnited States State Supreme Court of Rhode Island
OPINION

BEVILACQUA, Chief Justice.

This is an appeal by the defendant, Joseph N. Robalewski, from the judgments of conviction entered after a jury trial in the Superior Court. The jury returned guilty verdicts on six felony counts under indictment No. 76-640: 1 count 1, escape while a prisoner confined to the maximum custodial unit of the Adult Correctional Institutions (ACI), in violation of G.L.1956 (1969 Reenactment) § 11-25-2; count 3, robbery, in violation of § 11-39-1; count 4, possession of a firearm, a pistol, after having been convicted of a crime of violence, in violation of § 11-47-5; count 5, committing a crime of violence, robbery, while armed with a firearm, a pistol, in violation of § 11-47-3; count 6, carrying a pistol on his person without a license, in violation of § 11-47-8, as amended by P.L.1975, ch. 278, § 1; count 7, assaulting a correctional officer while a prisoner in the maximum custodial unit at the ACI, in violation of § 11-25-2. Count 2 of said indictment, charging the defendant with assault with a dangerous weapon, a pistol, in violation of § 11-5-2, was dismissed prior to trial pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure.

On March 20, 1976, defendant was an inmate of the ACI in maximum security custody at the Institute of Mental Health (IMH). At about 4 p. m., correctional officer Darryl Superczynski arrived at the IMH to guard defendant. Mr. Superczynski, after having been given a loaded revolver by the officer he replaced, took up his post opposite defendant's room. At the time, defendant had a visitor, Ann Marie Martin (Ann Marie). At approximately 4:15 p. m., defendant was served his meal. The defendant apparently was not satisfied with the meal because he asked Mr. Superczynski if Ann Marie could use the officer's car to purchase some different food for him at a local delicatessen. Mr. Superczynski consented, and thereafter Ann Marie went out and returned with a brown paper bag filled with food wrapped in aluminum foil. Under Mr. Superczynski's observation these items were taken out of the bag. At about the same time, Ann Marie returned to Mr. Superczynski his car keys.

Around 7:30 p. m., defendant asked Mr. Superczynski if he would like something to eat. In response Mr. Superczynski left his chair and stepped into the doorway of defendant's room. Mr. Superczynski, however, eventually declined the offer, whereupon he turned to leave the room. As he did so, defendant grabbed him by the neck and, while holding a pointed metallic object to his throat, threatened to kill him if he offered any resistance. The defendant then took the officer's gun and threw him into a chair. As defendant began changing into street clothes, Mr. Superczynski attempted to move toward him. The defendant struck the officer on the head with the gun, and Mr. Superczynski slumped back in the chair. The defendant subsequently punched Mr. Superczynski in the right eye. Once dressed and armed with the guard's gun, defendant threatened Mr. Superczynski and obtained from him his car keys and his handcuffs. Before leaving, defendant handcuffed Mr. Superczynski to a part of the washbasin in the room. Ann Marie accompanied defendant in his flight from the IMH.

On May 22, 1976, Detective John J. O'Neil of the Rhode Island State Police, together with numerous other state and local police officers, entered an apartment located in the city of Warwick, intending to arrest defendant. The officers had split into two groups, planning to enter simultaneously through both the front and rear entrances of the apartment. One of the officers who had entered the apartment through the front door immediately recognized defendant sitting alone at a table in the kitchen area of the apartment. The officer walked directly over to defendant and placed him under arrest. At about the same time, the officers assigned to enter through the rear door made their appearance.

There were several adults (apparently the owners or tenants of the apartment) and children present during defendant's arrest. At the time of the arrest, at least seven officers were present in the apartment. After defendant was under arrest, Detective O'Neil asked the other persons where defendant had been staying. In response, one of the children identified a jacket lying on a living-room couch as belonging to defendant. Detective O'Neil walked over to the couch and, upon examining the jacket, found a revolver in one of its pockets. The revolver was introduced at defendant's trial.

The defendant in this appeal challenges (1) the adequacy of the trial justice's charge defining the elements of robbery, (2) the admissibility of evidence seized without a warrant, and (3) the validity of his multiple convictions.

I

We shall address initially defendant's contention that the trial justice's charge on the elements that the state had to prove to establish the crime of robbery was inadequate. The defendant contends that an essential element of the crime of robbery is the specific intent to deprive another of his property permanently, and he submits that the trial justice erred in not including this element in the instructions. 2 Moreover, defendant urges that the charge actually given by the trial justice was erroneous because it defined the term "feloniously" as merely "criminally or illegally."

The state concedes that the trial justice did not instruct the jury on the element of specific intent to deprive another of his property permanently. However, the state argues that the definition was sufficiently adequate to inform the jury that the taking must have been done with such an intent.

Of course, the state must prove beyond a reasonable doubt each element necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); In re John Doe, R.I., 390 A.2d 920, 924-25 (1978). Accordingly, before jurors can pass upon each element of an offense charged, the trial justice must give them a proper and clear statement of each element that the state must prove. If a trial justice neglects to instruct a jury on every element of the offense, he commits plain error. Jackson v. United States, 348 F.2d 772, 773-74 (D.C.Cir.1965); see State v. Russo, 113 R.I. 248, 254, 319 A.2d 655, 658 (1974); G.L.1956 (1969 Reenactment) § 8-2-38.

In Rhode Island we have accepted the common-law definition of robbery. State v. Domanski, 57 R.I. 500, 190 A. 854 (1937). In State v. Reposa, 99 R.I. 147, 206 A.2d 213 (1965), this court held that robbery

"consists of the 'felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear.' 4 Black.Comm. 241. The taking, just as in larceny, must be animo furandi, Rex v. Hall, 3 Car. & P. 409, Rex v. Donnally, 1 Leach 193, 195, and 'The felonious quality consists in the intention of the prisoner to defraud the owner and to apply the thing stolen to his own use * * *.' 4 Black.Comm. 232 n.6. In other words, for a taking to be felonious, there must be a specific intention to deprive another wholly and permanently of his property * * *." (emphasis in original) Id. at 149, 206 A.2d at 215.

Thus, under our definition an essential element of the crime of robbery is the specific intention to deprive another wholly and permanently of his property. See also State v. McGehearty, R.I., 394 A.2d 1348, 1351 (1978).

The trial justice in the instant case instructed the jury with respect to count 3 and count 5 (the robbery counts) that

"(f)eloniously, ladies and gentlemen, means criminally or illegally. There are four elements to the crime of robbery, each of which the State must prove beyond a reasonable doubt. The State must prove (1) the felonious taking of money or goods (2) from the person of another or in his presence (3) against his will (4) by violence or by putting him in fear. The State must prove each of these elements beyond a reasonable doubt. If the State does prove all four elements beyond a reasonable doubt your obligation is to return a verdict of guilty. If the State has failed to prove any one or more of these elements, your verdict on this robbery count must be not guilty."

In passing on the sufficiency of a trial justice's instruction, we determine how a jury composed of ordinarily intelligent lay persons listening to it at the close of trial would have appreciated the instructions as a whole. We assume that the actual jurors in the case before us would have similarly understood the charge. State v. Carillo, 113 R.I. 32, 41, 317 A.2d 449, 455 (1974); State v. Reid, 101 R.I. 363, 366, 223 A.2d 444, 446 (1966).

After examining the trial justice's instructions on the robbery counts, we conclude that the ordinary jury would not have comprehended that an essential element of the crime of robbery is the intent to deprive another wholly and permanently of his property. Moreover, we find no merit in the state's contention that, for all practical purposes, the evidence presented at trial could lead only to the conclusion that defendant possessed the requisite intent to rob. In light of the trial justice's failure to recite proper instructions on an essential element of the offense, we cannot be satisfied that the jury considered this element before returning the verdict. We must therefore conclude that the charge was erroneous and that this error constitutes reversible error requiring a new trial of count 3 (robbery) and count 5 (committing a crime of violence, robbery, while armed with a pistol).

II

The defendant next contends that the revolver admitted in evidence against him was obtained in contravention of his right under U.S.Const. amend. IV and ...

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