State v. Roddy
| Decision Date | 25 April 1979 |
| Docket Number | No. 76-390-C,76-390-C |
| Citation | 401 A.2d 23 |
| Parties | STATE v. Gilbert RODDY and Jane B. Roddy. A. |
| Court | Rhode Island Supreme Court |
The defendants, Gilbert and Jane Roddy, are husband and wife. They are before us on their appeal from judgments of conviction entered after a Superior Court jury found both of them guilty of all five charges set forth in a 1973 joint indictment, specifically: unlawful possession of (1) marijuana, (2) lysergic acid diethylamide (LSD), and (3) phencyclidine (PCP); (4) unlawful possession of LSD with intent to sell the same; and (5) the maintenance of a narcotics nuisance. In their appeal the defendants (the Roddys) claim that the Superior Court erred in several respects, including the denials of both a motion to suppress evidence and subsequent motions which sought the dismissal of the indictment on the ground that the Roddys had been denied their constitutional right to a speedy trial. We shall first discuss the denials of the motion to suppress and the speedy trial motions and then go on to discuss only such additional facets of the Roddys' appeal which merit consideration.
The motion to suppress is unique in that it is based upon a direct attack upon the credibility of the affiant whose affidavit led to the issuance of the search warrant. As will be seen, this attack will require us to detail at some length the testimony adduced at the suppression hearing.
The affiant is Wellington Ray, Jr., an inspector of the Rhode Island Division of Drug Control. He typed the affidavit, and in its pertinent parts he states as follows:
(a) at approximately 10:30 a. m. on July 29, 1973, Lieutenant William E. Janes, Jr., a Newport police officer, informed Ray that the police had received information concerning a "substantial" quantity of "contraband drugs" which was located in a dwelling occupied by Gilbert Roddy at 4 Vanderbilt Avenue;
(b) later on in the day a surveillance party consisting of Ray, Janes, and Detective Sergeant Joseph Gallagher took up a position at "a vantage point on Vanderbilt Ave." and during an hour-and-a-half period observed several "subjects," including two known drug users and distributors, entering and leaving the Roddy residence;
(c) at 7:30 p. m. on the 29th, a confidential informant whose prior information had led to an arrest and a conviction was "provided with State funds and dispatched to 4 Vanderbilt Ave." for the specific purpose of buying drugs. The informant was observed "by the above named officers" entering the Roddy home at 8:30 p. m. Ten minutes later he returned empty-handed with the news that "the occupants * * * had just depleted their supply of drugs and a new shipment was to arrive in the afternoon of the 30th";
(d) by 6:30 p. m. on the following day, July 30, the surveillance trio had contacted the informant, provided him with "state funds," and "dispatched (him) to 4 Vanderbilt Ave." The officers observed their informant entering and leaving the premises, and when they met him at 6:45 p. m., he gave them a substance which field tests indicated was marijuana;
(e) the informant reported that during his visit to the Roddy residence he had observed a sizable quantity of drugs.
The suppression hearing took place in 1974 on three different days during a period of almost 3 1/2 months, to wit, May 28, July 3, and September 12. The defense presented as its first witness Lieutenant William E. Janes, Jr., a Newport police officer who in 1973 was chief of the department's Tactical Squad. Janes testified that during the spring and summer of that year his department had been keeping an eye on a novelty shop owned by Gilbert Roddy called the Way Station and located on Broadway in downtown Newport. During his testimony Janes referred several times to the Way Station as a "head shop." 1 Janes testified that on July 29, 1973, he did contact Ray and told the inspector that he, Janes, had information from a confidential informant indicating that drugs were located at the Roddy residence. Janes told the motion justice that he had sent the informant into the Way Station on July 28, 29, and 30 for the specific purpose of buying drugs.
The informant's July 28 effort was unsuccessful, but he was told to return the following day. When the informant returned to the "head shop" at about 6:30 p. m. on July 29, he was informed that "they had run out, but that there would be more on the following day." Janes at one point in his testimony said that Ray was present on Broadway when the informant paid his July 29 visit to the Way Station, but at another point he stated that, while he was observing the goings on at the Way Station, Ray and Gallagher were a mile away maintaining a watch near the Roddy residence. Janes was emphatic as he testified that he was not part of the July 29 surveillance group that spent the better part of the afternoon watching the pedestrian traffic passing by and into 4 Vanderbilt Avenue. The only time, he said, he was "ever at Vanderbilt Avenue was the time we made the raid."
On the evening of the July 30 raid, Janes picked up the informant and the informant's wife and took them to a point near the Way Station. The informant and his wife went to the Way Station at about 6 p. m. but returned empty-handed. The informant was told by an Eddie Kelly that "the stuff wasn't there; it was at the house." Thus, the scene shifted from Broadway to Vanderbilt Avenue.
At approximately 6:45 p. m. Janes dropped off the informant at Ray's surveillance point and left the area, taking with him the informant's wife. According to Janes, he met Ray and the informant at about 8 p. m. in a parking lot near the Newport police headquarters. The "buy" having been made, the police then began processing the paper work that led to the issuance of the search warrant. Janes stated that he had given the informant $20 for the attempted purchase on the 29th, while Ray performed this same chore on the 30th. Janes also said that while he was not sure, he did not believe that the informant entered the Roddy home on the 29th.
Other witnesses at the May 28 hearing included relatives and friends of the Roddys. Their testimony, if believed, would indicate that there was nobody home at 4 Vanderbilt Avenue on July 29 at the time the surveillance trio allegedly saw all sorts of "subjects" going to and coming from that address. The 1973 calendar indicates that July 29 was a Sunday. The Roddys supposedly spent most of that day in Connecticut visiting their respective parents, while Gilbert's brother Paul, and some of the Way Station employees spent the weekend in the state of New York, attending a Watkins Glen rock concert. Many of the witnesses also stressed that the Way Station was never opened on Sundays because it did not have the necessary license. All of this testimony was part of the effort both to counter Ray's averment about the "subjects" that were entering and leaving the Roddys' home and to contradict Janes' statement that he was watching the informant going into the "head shop" on July 29.
The first defense witness at the July 3 hearing was Mary Elizabeth Ross. She told the motion justice that her husband, Jay, was Lieutenant Janes' informant. She gave her version of what occurred the night of the Vanderbilt Avenue "bust." Mary Elizabeth testified that on July 30 she, Jay, and their 2-month-old baby took a bus from Middletown and traveled to downtown Newport. There they met Janes at approximately 7:30 p. m. According to her, Janes gave her husband two $20 bills and "told him to cop 2 ounces" at the "head shop on Broadway." Mary Elizabeth and Jay entered the Way Station seeking a "buy," but they were told by "the boy behind the counter" that "there wasn't any that he knew of in the shop." The counter boy suggested that they go across the street and try the "Riverbelle." Mary Elizabeth returned to Janes, while her husband went over to the Riverbelle, bought 2 ounces, and gave the marijuana to the officer. Mary Elizabeth stated that as her husband gave the marijuana to Janes, Jay also reported that the counter boy at the Riverbelle had told him that "Gilbert had stuff at his house." The wife told the motion justice that at this point she and her husband and their baby took leave of Janes and returned to their Middletown home, where they remained for the "whole night." Mary Elizabeth also insisted that her husband could not have been at the Way Station on the evening of July 29 because at that time he was at home with her. However, she did say that Jay left the house on the 29th to call Janes, but his absence lasted a mere half hour. During cross-examination Mary Elizabeth conceded that the Roddys had done "a lot of favors for me." She also admitted that she was "afraid" of the Roddys.
Other witnesses that day included Jane Roddy. She reported that she finished her work as an operating-room technician on Monday, July 30, at 4 p. m. and arrived home at about 5:30 p. m., where she remained until 9 o'clock. She knew Jay, the informant, but stressed that he did not come into her house on that night. She also insisted that the Vanderbilt Avenue premises were completely vacant during the afternoon and evening of July 29.
Gilbert Roddy followed his wife to the witness stand. At the time of his arrest he was 21 years of age and might have been classified as a dual officeholder. He was an enlisted man on active duty with the United States Navy assigned to a communications unit at the Newport Naval Training Station. He also owned and operated the Way Station. The defense attempted to depict the Way Station as an enterprise that specialized in selling novelties to Newport's tourist trade.
Gilbert acknowledged that he and Jay had met at the Way Station a little after 8 p. m. on the 30th. Jay was seeking...
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