State v. Robertson

• Decision Date: 08 August 1967
• Docket Number: No. 10752,10752
• Citation: 102 R.I. 623,232 A.2d 781
• Court: Rhode Island Supreme Court
• Parties: STATE v. Frederick ROBERTSON. Ex. &c.

Page 781

232 A.2d 781

102 R.I. 623

STATE v. Frederick ROBERTSON.

Ex. &c. No. 10752.

Supreme Court of Rhode Island.

Aug. 8, 1967.

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Special Asst. Atty. Gen., Providence, for plaintiff.

Leo Patrick McGowan, Public Defender, and William F. Reilly, Sp. Counsel, Providence, for defendant.

OPINION

PAOLINO, Justice.

This indictment charging the defendant with the murder of one John W. Koniak, Jr., was tried before a justice of the superior court sitting with a jury and resulted in a verdict of guilty of murder in the second degree. After the defendant's motion for a new trial was denied, he was sentenced to life imprisonment. The case is here on his bill of exceptions to the denial of such motion and to certain rulings during the trial.

The nature of defendant's exceptions is such that it is unnecessary to discuss the evidence in detail. It suffices to point out that on April 20, 1963, the deceased was found slumped over the steering wheel of his truck. The medical testimony indicates that he received two gunshot wounds to his head which caused his death. The defendant was subsequently arrested, charged, indicted and found guilty. He has briefed and argued his exceptions under four main points; for convenience we shall treat them in like manner.

Under point I defendant has briefed and argued a group of exceptions on which he bases his contention that the search of his tenement was illegal because it was made without a search warrant, without his consent, and prior to his arrest. Consequently, he argues, the evidence obtained through such search, to wit, the revolver allegedly used in the killing, was inadmissible. The evidence does not support defendant's claim that his tenement was searched and, therefore, assuming that this question is properly before us, we hold that defendant has no standing to raise the claim that his constitutional rights against unlawful search and seizure have been violated. State v. Cairo, 74 R.I. 377, 60 A.2d 841. See also concurring opinion of Joslin, J., in State v. Dufour, R.I., 206 A.2d 82, 89-91.

Insofar as pertinent to a consideration of the issues raised under point I, the evidence is as follows. A Mr. and Mrs. Frye owned a dwelling house at 14 Emmett street in the city of Providence in which they lived on the second floor and rented one room on the third floor to defendant and another to one Howie Clement. There are also two other rooms on the third floor which were unrented, one of which is at the head of the rear stairs. In the latter room Mr. Frye had stored some clothes and a zipper bag belonging to one Marc Jones, who had occasionally roomed with Mr. and Mrs. Frye in their former home.

On April 24, 1963, two Providence police officers, together with Marc Jones, went to the Frye residence. The police officers informed Mr. Frye that they would like to look at the third floor room where Marc Jones's articles were stored. After the conversation with Mr. Frye, the four of them went to that room. At the request of the police officers Marc Jones opened the zipper bag. It contained a revolver which Jones said belonged to him and which was subsequently admitted in evidence as state's exhibit 46. The state presented expert testimony that this revolver was the weapon used in killing John W. Koniak, Jr.

There is no evidence that the room in which the gun was found was rented to defendant; nor is there any evidence that, prior to the search of the unrented room, the police had searched the room rented and occupied by defendant. Moreover, defendant testified that while he lived at 14 Emmett street he never went into the room in which Marc Jones's gun was found. Since the search complained of did not involve a premises occupied by defendant, he has no standing to complain. As the court said in State v. Cairo, supra, 74 R.I. 377, 385, 60 A.2d at 845:

'* * * the only person who can set up the claim that his constitutional rights have been invaded is one who claims an unlawful search or seizure committed on premises occupied by him. Immunity from unlawful search or seizure is entirely personal and can be availed of only by the persons wronged.'

We next consider a group of exceptions challenging the correctness of certain rulings by the trial justice relating to the examination of three witnesses, two of whom were presented by the state and the third by defendant. For convenience we shall treat such examination separately.

The first relates to the examination of Pearlie May Dennis, defendant's girl friend, who was called as a witness by the state. It appears from the transcript that her answers to certain questions by the prosecutor were inconsistent with prior statements made by her to the police which indicated that three weeks before the April 20, 1963, incident she had seen defendant with a gun and told him to get rid of it. The prosecutor pleaded surprise and requested permission by 'voir dire' to examine the witness in the absence of the jury. The prosecutor then argued further, in the absence of the jury, that he had been taken by surprise by the answer of the witness to certain other questions, and asked to examine the witness in the absence of the jury.

The defendant contends that the trial justice erred in permitting the prosecutor to conduct a 'voir dire' examination of the witness. Although the prosecutor used the term 'voir dire,' we shall treat his request merely as a motion to examine the witness, in the absence of the jury, to prove that he was surprised by the answers of the witness which were contrary to a written statement she had previously given. After the examination the jury was returned and the prosecutor was allowed to ask the witness questions which showed she had made a prior inconsistent statement. We find no error in the ruling of the trial justice.

Where a party is surprised by the answer of his own witness the trial justice may in his discretion permit him to inquire whether the witness has made prior inconsistent statements. 3 Wigmore, Evidence § 904, p. 397, § 905, p. 404, § 918, p. 441 (3d ed. 1940). As the court said in Barker v. Rhode Island Co., 35 R.I. 406, 409, 87 A. 174, 175:

'* * * It is settled that the judge presiding at a trial may in his discretion permit counsel who is surprised by the answer of his own witness to ask if the witness has not on some previous occasion made a statement different from the one testified to. This is permitted not for the purpose of laying the foundation for the impeachment of his own witness, but for the purpose of permitting an explanation of the contradictory statement and if the explanation should not be satisfactory for the purpose of neutralizing the effect of the testimony. Such interrogation is admissible only when the judge is satisfied that the counsel is surprised by the adverse testimony. * * * The extent, however, to which a court shall go in permitting a relaxation of the ordinary rule in regard to the cross-examination of counsel's own witness is a matter entirely within the sound judicial discretion of the justice presiding. Unless there has been an abuse of this discretion the refusal of the trial court to permit such question to be asked is not a ground for exception.'

See also Manocchio v. Pettine, 84 R.I. 167, 122 A.2d 152; State v. Saccoccio, 50 R.I. 356, 147 A. 878; Hildreth v. Aldrich, 15 R.I. 163, 1 A. 249.

In Manocchio v. Pettine, supra, at 171, 122 A.2d at 154, the court stated the rule as follows:

'* * * Ordinarily, aside from the statute, a party calling a witness may not impeach him. Souza v. United Electric Rys. Co., 51 R.I. 124, 152 A. 419. This rule may be relaxed in the sound discretion of the trial justice where the circumstances seem to require it in the interest of justice and especially when the element of surprise is present.'

The parties have cited no case by this court, nor have we found any, which sets forth the procedure which should be followed in conducting such an examination. But this problem did arise in State v. Gallicchio, 44 N.J. 540, 545, 210 A.2d 409, 412, where in answer to defendant's contention that the trial court improperly permitted the use of neutralization, the court said:

'* * * By neutralization is meant the erasure or cancellation of unexpected harmful testimony by a showing-either by cross-examination or by other witnesses-that the witness has made a statement in conflict with his present testimony. Where a party calls a witness who, to the surprise of the proponent, testifies in conflict with a previous statement, and to the harm of the proponent's case, the proponent is permitted to utilize the previous statement 'to neutralize' the witness's harmful testimony.'

And at page 547, supra, 210 A.2d 413, the court went on to say that when a proponent has no prior indication

'* * * and is surprised by the witness's contradictory testimony, the trial court should, at side bar, determine the propriety of its invocation. Preliminarily the trial court must decide that the party has a prior statement of the witness which is contradictory to his present testimony, that the party is without prior knowledge that the witness would testify contrary to such prior statement (i.e., the party is surprised thereby), and that the present testimony is harmful in that it is prejudicial or detrimental to the proponent's case. Its findings, if favorable to the proponent, should not be revealed to the jury.'

The procedure followed in the case at bar was substantially similar to that in State v. Gallicchio. As we have already stated, the trial justice allowed the prosecutor to examine the witness, in the absence of the jury, to prove surprise, and then allowed him, in the presence of the jury, to ask the witness questions which showed she had made a prior inconsistent statement. We find no abuse of discretion and therefore hold that the trial justice did not err in allowing the examination in question. See ...