State v. Romano, 81-130-C

• Decision Date: 21 February 1983
• Docket Number: No. 81-130-C,81-130-C
• Citation: 456 A.2d 746
• Parties: STATE v. Salvatore ROMANO. A.
• Court: Rhode Island Supreme Court

Page 746

456 A.2d 746

STATE v. Salvatore ROMANO.

No. 81-130-C.A.

Supreme Court of Rhode Island.

Feb. 21, 1983.

Reargument Denied March 24, 1983.

Dennis J. Roberts, II, Atty. Gen., Melanie Wilk Spencer, Asst. Atty. Gen., for plaintiff.

Griffin & Higgins, Kirk Y. Griffin, Geline W. Williams, Andrew P. Hier, Boston, Mass., John A. O'Neill, Jr., Providence, for defendant.

OPINION

KELLEHER, Justice.

This appeal is a sequel to the events described in State v. Barton, R.I., 424 A.2d 1033 (1981), R.I., 427 A.2d 1311 (1981) (reargument denied), where we affirmed the Superior Court conviction of Ronald F. Barton (Barton) and James Murphy (Murphy) on charges that they (1) conspired with several codefendants, including one Anthony Fiore (Fiore), to break into and enter the Lincoln, Rhode Island, manufacturing plant of Vennerbeck & Clase, Inc. (Vennerbeck); (2) possessed burglary tools; and (3) maliciously destroyed communication lines belonging to New England Telephone Company.

In Barton the court alluded to a lengthy, ongoing, highly sophisticated surveillance, during the spring of 1977 by members of the Rhode Island State Police (State Police) and the Federal Bureau of Investigation (FBI), of Fiore and Barton and several other individuals as they went about proceeding to execute a plan to steal from Vennerbeck its inventory of precious metals which at the time had a value in excess of $1 million.

The conspiratorial endeavor went awry at approximately 11:15 p.m. on May 30, 1977, when Murphy, after hearing one of his colleagues report by radio that "we've got a problem here. Go back," ran from an open manhole cover in front of Vennerbeck's plant directly into the arms of three FBI agents who had secreted themselves nearby. Sometime after midnight but before 1 a.m of May 31, Barton was arrested at gunpoint as he attempted to back his Pontiac sedan down a driveway onto Rolling Woods Drive. The driveway was part of the premises situated at 1 Rolling Woods Drive. At this particular time, the driveway was also serving as a parking area for two other vehicles, an Oldsmobile Cutlass and a Dodge van.

When the police knocked on the door and rang the front-door bell at 1 Rolling Woods Drive, they were met by Salvatore Romano (Romano), a member of the Rhode Island Bar. He is before us on his appeal from his conviction on five of the six counts laid out in an indictment that was returned by the grand jury for Providence and Bristol Counties in late October 1979.

The Superior Court jury returned guilty verdicts on charges that Romano had (1) conspired with Fiore, Barton, Murphy, and other individuals to break into Vennerbeck's plant; (2) maliciously destroyed telephone lines; (3) and (4) possessed stolen property, to wit, two walkie-talkies belonging to a Massachusetts newspaper and two other walkie-talkies belonging to a Pawtucket scrap-metals dealer; and (5) committed perjury when he testified as a prosecution witness at the Barton-Murphy trial. However, the jury did acquit Romano of a charge that he had possessed burglary tools.

In his appeal, ¹ Romano raises a variety of issues which, when grouped, relate to (1) Romano's effort to dismiss the indictment, (2) the trial justice's refusal to sever the perjury count, (3) the sufficiency of the evidence, and (4) the charge to the jury. We shall consider each group seriatim.

Dismissal of the Indictment

The dismissal-of-the-indictment facet of Romano's appeal centers on three motions, one of which sought the dismissal of the indictment on the ground of alleged prosecutorial misconduct by Attorney General Dennis J. Roberts II, another of which asked that the trial justice recuse himself from consideration of the prosecutorial-misconduct motion because he had a long-standing personal, social, professional, and business relationship with the Attorney General and the Attorney General's uncle, a former Governor of Rhode Island, Dennis J. Roberts, and the third of which sought a dismissal because of an allegedly unconstitutionally composed grand jury.

a. Prosecutorial Misconduct

To put Romano's claim of prosecutorial misconduct in its true perspective, we shall briefly refer to some of the events that preceded the return of the indictment now before us. Our source of reference is a front-page story published by the Providence Evening Bulletin on the afternoon of October 10, 1979, with a page-wide headline reading, "ROBERTS HALTED INDICTMENT OF LAWYER." ²

Romano had testified for the state at the February 7, 1979 trial of Barton and Murphy. At that time he insisted that he knew nothing about the aborted break and had no idea who had placed a substantial quantity of burglary tools in his garage. The presence of two cars and a van in his driveway was of no consequence to him because it was "not unusual for me to have cars in my driveway." "It's a large garage," he reported, "and it's not uncommon for me to have clients coming by at various hours."

After the Barton-Murphy trial had concluded, the justice who presided at that trial, Mr. Justice Joseph F. Rodgers, Jr., wrote to the Attorney General and suggested to him that the Attorney General's department investigate the possibility of Romano's having committed perjury when he testified for the state. At the time of trial, Romano was serving as legal counsel to the judiciary committee of the Rhode Island Senate. After accepting the trial justice's suggestion, the Attorney General notified the judiciary committee chairman that its counsel was a "potential target of a grand jury investigation." The chairman in turn notified one of Romano's law partners of the impending investigation. The partner then conferred with the Attorney General with the express purpose of effecting a change of mind by the Attorney General. However, the partner was told that although Romano's involvement or lack of involvement with the attempted break-in was going to be presented to the grand jury, the Attorney General promised that at the time the Vennerbeck episode came before the grand jury, Romano would be free to come before the panel and present his side of the story.

On May 23, 1979, the Attorney General was out of the state attending a meeting of the National District Attorneys Association while one of his assistants, who was totally unaware of the agreement reached with Romano's law partner, was presenting the issue of Romano's involvement to the grand jury. When the Attorney General learned what had occurred, he directed the assistant attorney general to tell the grand jury of the agreement he had made with Romano's partner. Consequently, when the grand jury made its report, it did not return an indictment against Romano even though it had earlier voted to do so. When, in October of 1979, he was questioned by the press about this development, the Attorney General said, "I am not trying to suppress any indictment against Sal Romano, but I have never given my word and broken it."

The morning after the Bulletin's front-page story was published, the October 11 edition of the Providence Journal carried a front-page story in which the Attorney General was quoted as feeling "comfortable" that a new grand jury would vote to indict Romano. "I think we've got a good case--a prosecutable case," he said. He also added that Romano would be afforded the opportunity to appear before the grand jury. Romano did appear before the grand jury, and subsequently, on October 29, the grand jury returned the indictment that Romano now seeks to have dismissed.

As we begin our consideration of Romano's claim of prosecutorial misconduct, we would first note that the remedy he seeks, dismissal of an indictment, is an extraordinary one. To dismiss an indictment because of such misconduct means that even though a jury unanimously found a defendant guilty beyond a reasonable doubt, we would nevertheless void his conviction because the prosecution had made a misstep in obtaining a grand-jury determination of probable cause. Hence, the sanction sought is reserved for very limited and extreme circumstances. United States v. Thibadeau, 671 F.2d 75, 77-78 (2d Cir.1982).

We agree with Romano when he says his due-process rights include a guarantee of impartiality that is as applicable to grand-jury deliberations as it is to petit-jury deliberations. We said so in State v. Jenison, R.I., 405 A.2d 3, 7 (1979). We part company, however, when he argues that prejudice will be presumed whenever "substantial rights are imperiled by government conduct."

At the dismissal hearing, Romano's counsel acknowledged that he had been unable to find one case in which the appellate tribunal had upheld a dismissal of an indictment on the ground that a grand jury had been prejudiced by preindictment publicity. ³ Although this acknowledged appellate unity may have been reached in different ways, two common governing approaches can be seen. First, it has been recognized that a grand jury need not deliberate in a vacuum, totally unaware of what is happening in our society, for as Judge Harold R. Medina so aptly observed in United States v. Nunan, 236 F.2d 576, 593 (2d Cir.1956) "[A] Grand Jury is not confined to a passive role, but may and often should proceed on its own initiative... That it is induced to such action by newspaper reports forms a continuum with its historic function of ferreting out crime and corruption, and is in no way inconsistent with its duty to decide on and in accordance with the evidence adduced before it." ⁴

The second universal principle is a requirement that the one seeking dismissal of the indictment prove that he has suffered actual prejudice as a result of the publicity.

As we join ranks with our colleagues who have been confronted with an attempt to dismiss indictments on the basis of prejudicial preindictment publicity, we subscribe to the sentiments expressed by the First Circuit Court of Appeals in United States v. Brien, 617 F.2d 299, 313 (1st Cir.1980), where ...