State v. Sciarra

• Decision Date: 03 August 1982
• Docket Number: No. 81-503-C,81-503-C
• Citation: 448 A.2d 1215
• Parties: STATE v. Rudolph E. SCIARRA. A.
• Court: Rhode Island Supreme Court

Page 1215

448 A.2d 1215

STATE v. Rudolph E. SCIARRA.

No. 81-503-C.A.

Supreme Court of Rhode Island.

Aug. 3, 1982.

Dennis J. Roberts II, Atty. Gen., David H. Leach, Asst. Atty. Gen., for plaintiff.

Bevilacqua, DeSimone & Gosz, Joseph A. Bevilacqua, Jr., Providence, Griffin & Higgins, Kirk Y. Griffin, Boston, Mass., for defendant.

OPINION

MURRAY, Justice.

On December 12, 1980, a Providence County Grand Jury indicted Rudolph Earl Sciarra (defendant), Nicholas A. Palmigiano (Palmigiano), and Raymond L. S. Patriarca (Patriarca). The indictment charged Palmigiano with the murder of Raymond Curcio (Curcio) on February 19, 1965. The indictment also charged the defendant and Patriarca with being accessories before the fact to the murder of Curcio.

Of the three individuals named in the indictment, only the case against defendant has gone to trial. Palmigiano pleaded guilty to the count of murder and was given a life sentence retroactive to April 10, 1969, which was to run concurrently with another life sentence he was serving. The case against Patriarca was severed from the case against defendant and has been continued indefinitely because of various health problems experienced by Patriarca. On June 8, 1981, defendant's case proceeded to trial before a justice of the Superior Court sitting with a jury. The jury found defendant guilty as charged, and the trial justice sentenced him to the mandatory life imprisonment. The defendant has been held without bail since January 8, 1981, the date of his arraignment, and he remains incarcerated while we consider his appeal from the judgment of conviction.

After the appeal was docketed, a pre-briefing conference was held with a justice of this court. Thereafter, on February 12, 1982, an order was entered directing the state:

" * * * to show cause why the judgment of conviction should not be vacated and a new trial granted because of the trial justice's alleged error in refusing to allow Dr. Kenneth Russell to testify in behalf of the defense."

On March 3, 1982, a hearing was held on such show cause order before four members of this court. Subsequent to the hearing, we filed another order. This order stated that the state had shown cause at the initial hearing and that the case required more extensive briefing and argument. We also directed the parties to address in their briefs the following two issues:

"(a) Whether the trial justice committed reversible error in excluding the proffered testimony of the expert witness, Dr. Kenneth Russell, in light of Rule 16 of the Superior Court Rules of Criminal Procedure, and in further light of the defendant's right to present a defense.

"(b) Whether the trial justice committed reversible error in responding to an inquiry submitted by the jury after deliberations had begun without affording counsel an opportunity to be heard prior to the giving of said response."

The issues were argued orally before the court on April 12, 1982. Although the consideration of the first issue is sufficient to dispose of the case, we are of the opinion that it is beneficial to the administration of justice in this state that we address the second issue as well. Initially, we set forth a basic factual background for the case; additional facts necessary to the discussion of the two issues raised will be presented in the resolution of such issues.

The facts relating to the murder of Curcio are extracted in essence from the testimony of Palmigiano. On the morning of February 19, 1965, Palmigiano was having breakfast in a Providence restaurant when defendant entered the restaurant and approached him. According to Palmigiano, defendant told Palmigiano that "the 'old man' wanted to see [both of them]." Palmigiano knew the "old man" to be Patriarca. In an alleyway next to Patriarca's place of business and a short distance from the restaurant, a meeting of the three men was held. Richard Callei (Callei), since deceased, was also present at the meeting. Palmigiano testified that at the meeting Patriarca ordered him to kill Curcio "right away" and directed that Callei set Curcio up for the kill. According to Palmigiano, defendant offered to supply the weapons necessary for the mission.

After the meeting, Palmigiano returned home and requested that his wife leave for the day. While Palmigiano was at his apartment, between 11:00 a. m. and 11:30 a. m., defendant delivered a brown paper bag containing two weapons: a .38 caliber revolver and a .32 caliber automatic. The defendant advised that the .38 was for the use of Callei. The defendant never left his car and the exchange took place in front of the Palmigiano residence. After defendant had left the area, Palmigiano returned to his apartment and began to clean the guns and bullets in an effort to ensure that no fingerprints remained on them. In his testimony, Palmigiano claimed that while cleaning the guns he found them to be fully loaded.

Subsequently, at 2 p. m., Palmigiano again descended the stairs of his third-floor apartment; this time Callei was waiting in his car. Palmigiano got into Callei's car and the two proceeded to an area near an abandoned housing project where the two would take Curcio later that night to his death. The pair also decided on a location where Callei's car would be parked later that evening for use as a getaway vehicle. The two then returned to Palmigiano's house where he allegedly gave Callei the .38 caliber revolver supplied by defendant. He then got into his car and drove to the site where the Callei vehicle was to be left. Callei had parked his car; he then got into Palmigiano's car. Palmigiano drove to Callei's mother-in-law's house where Callei was dropped off. Palmigiano proceeded home and waited for Callei's return.

At approximately 8:15 p. m., after certain initial difficulties, Callei returned to the Palmigiano home sitting in the passenger's seat of a car driven by Curcio. Palmigiano, who had been waiting in the cold, sat in the rear and positioned himself in the middle of the seat. Initially, Callei remarked that "this [had] better be a good score." Because Curcio had been informed that the trio was to commit a burglary, Callei's statement was made to put Curcio at ease. As the car approached the earlier-chosen site, Palmigiano slid behind Curcio and fired two shots into the back of his head. Callei, using the .38, fired three shots into the victim. As he left the car, Palmigiano fired another bullet at Curcio through an open window on the passenger's side of the car.

The pair proceeded to Callei's car and then drove to Palmigiano's apartment. After a wash of his hands with vinegar and a check for bloodstains, Callei departed from the apartment. The gloves he had worn and the gun he had used were left behind so that Palmigiano could dispose of them. After Palmigiano had dropped Callei's gloves into a wastepaper basket, he descended the stairs of his apartment with the two pistols in his possession. According to Palmigiano's testimony, he got into his car and drove to Canada Pond where he dropped the pistols and his gloves into the water.

The following morning, February 20, 1965, Curcio's body was found in the automobile by the police. No one was charged with the crime until December 12, 1980. The guns allegedly used in the crime were not recovered until October of 1980.

I

Initially, we consider the issue of whether the trial justice committed reversible error in excluding the testimony of Dr. Kenneth Russell (Dr. Russell), a Professor of Metallurgy at the Massachusetts Institute of Technology. The trial justice refused to allow the proffered testimony because of defendant's failure to comply with Rule 16 of the Superior Court Rules of Criminal Procedure.

Rule 16 in pertinent part provides:

" * * *

"(b) Discovery by the State. A defendant who seeks any discovery under subdivision (a) of this rule shall permit the State, upon receipt of written request, to inspect or listen to and copy or photograph any of the following items within the possession, custody or control of the defendant or his attorney:

" * * *

"(2) all results or reports in writing, or copies thereof, of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case and prepared by a person whom the defendant intends to call as a witness at the trial and, subject to an appropriate protective order under paragraph (f), any tangible objects still in existence that were the subject of such tests or experiments;

"(3) a written list of the names and addresses of all persons other than the defendant whom the defendant expects to call as witnesses at the trial in the event the State presents a prima facie case;

"(4) as to those persons other than the defendant whom the defendant expects to call as witnesses at the trial, all written or recorded verbatim statements, signed or unsigned, of such persons and, if no such statement of a witness is in the possession of the defendant, a summary of the testimony such person is expected to give at the trial.

" * * *

"(h) Continuing Duty to Disclose. If, subsequent to compliance with a request for discovery or with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requested which is subject to discovery or inspection under this rule, he shall promptly notify the other party of the existence thereof.

"(i) Failure to Comply. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to provide the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material which or testimony of a witness whose identity or statement were not disclosed, or it may enter such other order as it deems appropriate."

The record reveals that Dr. Russell...