State v. Russo
| Decision Date | 28 May 1974 |
| Docket Number | No. 1963-C,1963-C |
| Parties | STATE v. Vito N. RUSSO. A. |
| Court | Rhode Island Supreme Court |
This is an indictment charging the defendant with carrying a pistol or revolver, without a license, in a motor vehicle in violation of G.L.1956 (1969 Reenactment) § 11-47-8, P.L.1968, ch. 183, sec. 3. He pleaded not guilty and filed a motion to suppress, which was denied. The case was subsequently heard before a justice of the Superior Court sitting with a jury and resulted in a verdict of guilty. After the denial of his motion for a new trial the defendant filed a notice of intention to file a bill of exceptions. 1
The record discloses the following pertinent facts. At about 1:30 in the morning on August 16, 1970, the Providence Police Department received a call complaining about a gun being discharged in the area of Lexington Avenue. It appears from the report that a man driving a black Lincoln was involved in the shooting. At about 3 o'clock on the same morning another call was received saying that the man responsible for the shooting was then at that location. Detective Gilbert L. Ethier, responding to the complaint, came upon defendant in the area of Lexington Avenue and Niagara Street. The defendant was seated with a woman companion in a white Thunderbird automobile with Rhode Island dealer plate No. 220.
After some conversation between the officer and defendant about the shots and the Lincoln automobile, the latter left and the officer followed him to the area of 1402 Westminster Street. The defendant drove the Thunderbird into the driveway adjacent to 1402 Westminster Street and went into the building at that address. About 50 minutes later he came out and drove the Thunderbird out into the street. He then entered a second vehicle, a 1962 Lincoln with Rhode Island registration No. BG-295, which was also parked in the driveway. During the time that defendant was in the house, Detective Ethier was watching the area and during the same period he went up to the Lincoln, shined his flashlight in it and saw nothing.
The defendant drove the Lincoln out of the driveway and took off. Detective Ethier followed him, pulled up beside him, and motioned him to pull over. The defendant then took off again with the officer following and did not stop until he hit the back end of a parked police car. Detective Ethier approached defendant's car. The defendant opened the door and, while he was still in the car behind the wheel, the officer saw the pistol '(r)ight out in plain view' on the right-hand side of the floor, on the passenger side of the car. The defendant was then taken to the police station and charged with possession of the weapon. The motor vehicle in which the weapon was found was registered in defendant's name.
Under points I and II of his brief defendant contends that the trial justice committed reversible error in failing to charge that proof of knowledge that the weapon was in his vehicle was required in order to find defendant guilty of the offense charged and his failure to so charge was reversible error. The defendant claims that the record is devoid of any evidence that he knew that the gun was anywhere in the motor vehicle.
Initially we consider the state's argument that procedurally the issue raised by defendant under points I and II is not properly before us because defendant failed to request the specific charge which now forms the basis of his argument.
The trial justice was sufficiently apprised of defendant's objection to the charge as given, and of the precise reason for the objection. In fact he stated that knowledge was not an essential element of the offense charged. In the circumstance we feel that defendant's objection was properly taken. Compare Woonsocket Housing Authority v. Allard, 106 R.I. 7, 255 A.2d 158 (1969). 2
The narrow issue raised by defendant under points I and II is whether knowledge of the presence of the pistol in defendant's vehicle is an essential element of the offense charged under § 11-47-8. We are faced here with a two-statute situation. Section 11-47-8 reads, in pertinent part, as follows:
'No person shall, without a license therefor, issued as provided in §§ 11-47-11, 11-47-12 and 11-47-18, carry a pistol or revolver in any vehicle or conveyance * * * Every person violating the provision of this section shall, upon conviction, be punished by imprisonment for not less than one (1) nor more than five (5) years * * *.'
General Laws 1956 (1969 Reenactment) § 11-47-27, reads as follows:
'Proof of unlawfulness of carrying.-No negative allegation of any kind need be averred or proved in any complaint under §§ 11-47-1 to 11-47-34, inclusive, and the carrying or use of any firearm contrary to the provisions of said sections shall be evidence that the possession, carrying or use of any such firearm in unlawful, but the respondent in any such case may show any fact that would render the possession, or use, or carrying of such firearm lawful.'
Notwithstanding the statutory presumption of unlawful carrying of the weapon created by proof that it was in his vehicle, State v. Maloney, 109 R.I. 166, 170, 283 A.2d 34, 36 (1971), defendant argues that proof of knowledge of the presence of the pistol is an essential element of the offense charged under § 11-47-8. In support of this argument defendant relies primarily on State v. Motyka, 111 R.I. 38, 298 A.2d 793 (1973) and State v. Gilman, 110 R.I. 207, 291 A.2d 425 (1972).
One of the indictments in Gilman charged defendant with the alleged unlawful possession of a central nervous system stimulant in violation of § 21-29-3(d). That section in pertinent part states: 'The following shall be unlawful: * * * (d) The actual or constructive possession or control of a barbiturate or a central nervous system stimulant by any person * * *.'
In Gilman we held that § 21-29-3(d) implicitly required a showing of knowledge. In so holding we discussed at great length the concept of strict criminal liability without regard to whether an accused knew the contraband was in his possession. We pointed out that the Legislature may make criminal an act regardless of the awareness, or lack thereof, on the part of the accused of the factors that make his conduct criminal, and we said that in such a case only the doing of the proscribed act need be shown. Further, in holding that the prosecution must show a conscious possession of the contraband involved in that case, we said we would follow those jurisdictions which construe the word 'possess,' when used used in a criminal statute, to mean an intentional control of a designated object with knowledge of its nature.
We also pointed out in Gilman that since we are dealing with the word 'possession' as used in a criminal statute, a strict construction of its definition is required. We then said that proof of knowledge essential to a conviction may be shown by evidence of acts,...
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...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) § In Rhode Island we have accepted the common-law definition of robbery. State v. Doman......
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