State v. Simpson

• Decision Date: 26 May 1995
• Docket Number: No. 94-679-C,94-679-C
• Citation: State v. Simpson, 658 A.2d 522 (R.I. 1995)
• Parties: STATE v. Rodger SIMPSON. A.
• Court: Rhode Island Supreme Court

Page 522

658 A.2d 522

STATE v. Rodger SIMPSON.

No. 94-679-C.A.

Supreme Court of Rhode Island.

May 26, 1995.

Jeffrey Pine, Atty. Gen., Jane McSoley, Sp. Asst. Atty. Gen., Aaron Weisman, Asst. Atty. Gen., for plaintiff.

Joseph Victor Smith, Newport, for defendant.

OPINION

MURRAY, Justice.

This matter is before the Supreme Court on the appeal of Rodger Simpson (defendant) from judgments of conviction on counts of first-degree murder, second-degree murder, assault with a dangerous weapon, and breaking and entering with intent to commit murder. After a jury trial in Superior Court, the defendant was sentenced to serve two consecutive life sentences on the counts of first-degree murder and second-degree murder; he received a twenty-year sentence on the charge of assault with a dangerous weapon, to run concurrently with the life sentences, and ten years on the count of breaking and entering with intent to commit murder, to run concurrently with the life sentences. On appeal the defendant argued that the trial justice erred in denying his motions (1) to dismiss the grand jury indictment for first-degree murder, (2) to suppress a photograph taken of him following his arrest, and (3) to pass the case on the basis of comments made by the prosecutor to the jury during closing arguments. We affirm the judgments for the reasons stated below. The facts of the case insofar as pertinent to this appeal are as follows.

On December 17, 1992, defendant was charged by criminal indictment No. P1/92-3741A with two counts in the murders of Beth Crisp (Crisp) and Michael Harris (Harris) in violation of G.L.1956 (1981 Reenactment) § 11-23-1, as amended by P.L.1990, ch. 284, § 4. The defendant was also indicted on one count of assault with a dangerous weapon on the person of Francesco Guerra (Guerra) in violation of G.L.1956 (1981 Reenactment) § 11-5-2, as amended by P.L.1991, ch. 324, § 1, and one count of breaking and entering with intent to commit murder in violation of G.L.1956 (1981 Reenactment) § 11-8-3.

Testimony presented at trial revealed that defendant and Crisp had dated for a period of approximately three years when Crisp terminated the relationship in August of 1992. The defendant apparently had difficulty accepting the breakup and as a result became distraught. On one occasion defendant crashed a party that Crisp was attending and assaulted her when she told him that she did not want to see him anymore. The defendant, aware that Crisp was dating Harris, informed his mother in a handwritten note that he couldn't deal with losing Crisp in addition to losing his job and that he planned to kill Crisp.

On the morning of September 7, 1992, between 9:30 and 9:45 a.m. Guerra, a second-floor tenant of a three-story tenement house located at 11 Roosevelt Avenue in North Providence, heard the sound of six or seven gunshots. When Guerra heard this noise, he quickly opened the front door to his apartment to check if something was wrong and saw defendant coming down the stairs from the third floor with a silver-colored gun in his hand. The defendant then apparently pointed the gun in Guerra's direction, whereupon Guerra slammed the door shut and threw himself to the floor. From a window in his apartment, Guerra then watched defendant walk outside, put the gun into a holster, enter his truck, and leave.

Guerra had previously seen defendant and was aware that he was the boyfriend of Crisp who lived in the third-floor apartment at 11 Roosevelt Avenue. In fact Guerra had seen defendant the previous day, September 6, 1992, driving by the tenement house in his vehicle. Guerra testified that it was the same vehicle he observed defendant driving on September 7, 1992.

Joan Coulmbe (Coulmbe), the first-floor resident at 11 Roosevelt Avenue, heard "popping noises" between 9:30 and 9:45 a.m. on September 7, 1992. When she heard the noise, she jumped up, ran to the door of her apartment, and opened it. She heard the sound of a fire alarm and then heard someone walking down the stairs very slowly. Coulmbe then closed the door and through its peephole observed defendant proceed down the stairs. Coulmbe had previously seen defendant in the company of Crisp and was aware that defendant had once been Crisp's boyfriend. She watched defendant walk outside and then drive away in his vehicle. Coulmbe summoned the police and then went outside to wait with Guerra.

Detective Charles Fish (Fish) responded to the call to 11 Roosevelt Avenue and observed damage to the door lock and frame of the doorway to the third-floor apartment where Crisp lived. He saw the bodies of Crisp and Harris lying on the kitchen floor, and he noted the smell of gunpowder in the apartment. Fish also observed shell casings and a bullet on the kitchen floor and apparent bullet damage to the kitchen ceiling. Police retrieved a handwritten note from the wastebasket in Crisp's apartment, apparently written by defendant in which he made references to Crisp's sleeping with other men. An empty cartridge shell, empty shell casings, and a spent bullet were also seized from the apartment.

Police obtained a search warrant for defendant's vehicle and from it collected a Colt Delta Elite handgun with two ammunition clips. Two spent bullets compatible with the weapon were found in defendant's vehicle. Police also seized a note pad from defendant's vehicle imprinted with a logo that was identical to that on a note found on the windshield of Harris's vehicle, which was parked in the driveway at the murder scene.

Sergeant John Arzoomanian (Arzoomanian) of the North Providence police department responded to the call to the scene, photographed it, collected evidence, and took measurements. Later that day, as Captain Albert DeCristofano (DeCristofano) was preparing an arrest warrant for defendant, defendant appeared at the North Providence police station with counsel to cooperate in the investigation, whereupon he was immediately arrested. Photographs and fingerprints were taken of defendant.

The defendant contends that the trial justice erred in denying his pretrial motion to dismiss that part of the indictment which charged him with murder as defined by § 11-23-1. He maintains that the members of the grand jury were erroneously instructed only in regard to murder generally, without specification of degree, which in Rhode Island is second-degree murder. Because the members of the grand jury were not instructed as to the specific statutory elements of first-degree murder, defendant avers the indictment does not constitute a prime facie finding of probable cause of first-degree murder and must therefore be limited to second-degree murder. We disagree.

We have long recognized "that a grand jury is an appendage of [this] court and subject to [our] supervision." In re Buxton, 111 R.I. 480, 482, 304 A.2d 350, 352 (1973); State v. Edwards, 89 R.I. 378, 385, 153 A.2d 153, 158 (1959). Generally we have subscribed to the principle articulated by the United States Supreme Court that "[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397, 402-03 (1956). Accordingly, we have taken the view that the dismissal of an indictment on review is an extraordinary sanction. State v. Chakouian, 537 A.2d 409, 413 (R.I.1988). "To dismiss an indictment on review '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.' " Id. (quoting State v. Romano, 456 A.2d 746, 750 (R.I.1983)). Moreover, "[b]oth this court and the United States Supreme Court have held that a conviction by a petit jury after a full trial on the merits renders harmless any defect occurring during the grand jury proceedings." State v. Woodson, 551 A.2d 1187, 1190 (R.I.1988).

In ruling on defendant's motion to dismiss the indictment, the trial justice questioned the prosecutor about whether the state had in fact explained to the members of the grand jury the elements of first-degree murder. The prosecutor for the state, who was the same prosecutor who presented the case to the grand jury, responded that he had "read the statute" to the grand jury. The trial justice, satisfied that the members of the grand jury had been properly charged, denied defendant's motion to dismiss the indictment.

Our review of the instructions given to the grand jury reveals that the prosecutor did not read § 11-23-1 in its entirety but instead articulated the following instruction:

"[T]he unlawful killing of a human being with malice aforethought is murder, so any unlawful killing of another human being with malice aforethought is murder. It's not your consideration at this point to determine what degree of murder it is, there are lesser included offenses that some day a petit jury will probably consider if you choose to indict. But for our purposes all we'd like you to consider here is murder--whether or not the unlawful killing of a human being with malice aforethought was reasonably satisfied--that was perpetrated by Rodger Simpson on Beth Crisp and Michael S. Harris."

The prosecutor further instructed the members of the grand jury with respect to the definition of malice aforethought. That instruction provided as follows:

"Malice aforethought express or implied is an element of both first and second degree murder. Malice may consist of an unjustified disregard for the possibility of death or great bodily harm and extreme indifference to the sanctity of human life. Malice may be inferred from the very nature of the killing itself. Malice aforethought is the sole element of second...