State v. Souza
| Decision Date | 10 February 1981 |
| Docket Number | No. 77-270-C,77-270-C |
| Citation | 425 A.2d 893 |
| Parties | STATE v. Anthony SOUZA. A. |
| Court | Rhode Island Supreme Court |
The defendant, Anthony Souza, after jury trial, was found guilty on one count of assault with a dangerous weapon, five counts of robbery, one count of assault with intent to rob, one count of assault with intent to murder a police officer, and one count of possession of a stolen auto. On the robbery counts, the defendant was sentenced to a term of imprisonment for life on each count. On the count charging assault with a dangerous weapon, he was sentenced to a term of ten years' imprisonment. On the count charging assault with intent to murder a police officer, he was sentenced to a twenty-year term of imprisonment. On the count charging possession of a stolen motor vehicle, he received a sentence of five years' imprisonment. On the count charging assault with intent to rob, he was sentenced to a term of twenty years' imprisonment. All sentences were ordered by the trial justice to run concurrently. The defendant has appealed from the judgments of conviction. We affirm.
The multiple charges arose out of a robbery that occurred April 9, 1976, at the Woodlawn Liquor Store in Pawtucket. Two men wearing ski masks confronted eight persons who were in the store, threatened, and in some cases struck, the victims with pistols, and relieved them of various valuable personal effects, including the contents of a cash register. The victims were herded to a cooler in the rear portion of the store. During this activity, three additional customers came to the door and were ordered inside at gunpoint and told to empty their pockets.
While the robbers were still present, two police officers, John Orzechowski and George Kelley, arrived at the scene. While Officer Kelley examined a suspicious-looking automobile parked outside the store, Officer Orzechowski entered the store with his gun drawn. The first robber stripped off his mask and dropped what appeared to be a gun. The second robber fired a shot that hit the officer and propelled him outside onto the sidewalk. The robber continued to fire as the wounded officer crawled under a parked car. The first robber was apprehended by Officer Kelley as the robber attempted to hide behind an automobile. This man was identified as David Cochrane and was later indicted and tried together with defendant Souza. The second robber fled the scene, pulling off his ski mask as he went, and ran down an embankment to nearby railroad tracks. A third policeman, Officer Cates, who arrived just as the robbers left the store, pursued the second robber along the tracks, firing at the fleeing figure as he ran. The robber left the tracks and climbed an embankment. As he did so, Officer Cates fired a final shot, and the robber appeared to stagger. Thereafter Officer Cates lost sight of the unidentified robber and headed back toward the scene of the crime. Shortly afterward, he and other officers followed a trail of blood which ended, after approximately three-quarters of a mile, at a three-family dwelling house, a portion of which was occupied by an aunt of defendant Anthony Souza.
The principal evidence against Souza was given by Robert Louis DePaulo, who testified that on the night of April 9, 1976, Cochrane and Souza came to the apartment of DePaulo's girlfriend in Central Falls and asked to borrow a dent puller, a mask and a coat hanger. Both men were carrying pistols on this occasion. DePaulo provided the coat hanger and gave Souza a jacket, whereupon Souza and Cochrane left in two separate automobiles. DePaulo testified that at about 11 or 11:30 p. m. that same night Souza returned to the apartment bleeding from his left arm. Souza then told DePaulo the story of his involvement in a holdup and subsequent flight. DePaulo dressed his wound, provided a change of clothes for Souza, and attempted to dispose of the soiled clothes as well as a pistol that Souza had given to him. Subsequent to the visit, after learning that a police officer had been shot, DePaulo called the fire department to put out a fire which he had started in a dumpster in order to dispose of Souza's clothes, and later called the Pawtucket police to tell them of his part in assisting Souza and Cochrane. He ultimately became the chief witness for the state and denied any participation in the holdup. DePaulo's testimony was corroborated by that of his girlfriend, Phyllis Lewis. The defendant raises four major issues on appeal. These issues will be considered seriatim, and such additional facts will be supplied as are relevant to each issue.
In support of an application for a wiretap warrant in respect to a public telephone, Lieutenant Collins of the Pawtucket police department had asserted in an affidavit directed to the Presiding Justice of the Superior Court that he believed Robert DePaulo to have been a principal in the liquor store robbery. The basis for this belief was set forth in the affidavit as a tip from an unidentified but reliable informant who had stated that DePaulo "was a principal in the holdup that took place at the Woodlawn Liquor Store, in that he was waiting in a stolen vehicle to be used as the get-a-way car on the night of the holdup." This statement of the informant contradicted DePaulo's later testimony at defendant's bail hearing in which he denied having taken any part in the liquor-store robbery. In order to impeach the credibility of DePaulo, defense counsel moved for disclosure of the identity of the informant. Relying upon the state's privilege of nondisclosure of the identity of informants, the trial justice declined to order such disclosure. The defendant contends that this refusal to disclose the identity of the informant constituted a violation of the balancing principles enunciated by the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In that case the Supreme Court in a nonconstitutional adjudication and in the exercise of its supervisory power 1 required the disclosure of an informant whom the court inferred to have been a participant in a narcotics transaction in which the informant and Roviaro were the sole participants. The Court recognized the existence of a government privilege to withhold from disclosure the identity of persons who furnish information of violations of law, id. at 59, 77 S.Ct. at 627, 1 L.Ed.2d at 644, but found that in a case in which the government's informer was the sole participant other than the accused, his possible testimony was "highly relevant and * * * helpful to the defense." Id. at 63-64, 77 S.Ct. at 629, 1 L.Ed.2d at 647. Nevertheless, the Court declined to adopt a fixed rule in respect to disclosure of unidentified informants and stated the following principles:
Id. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646.
Later in McCray v. Illinois, 386 U.S. 300, 309, 87 S.Ct. 1056, 1061, 18 L.Ed.2d 62, 69 (1967), the Supreme Court traced the development of the privilege with respect to informants' identity and refused to require disclosure of an informant in connection with a motion to suppress when the issue was probable cause as opposed to guilt or innocence. Id. at 311, 314, 87 S.Ct. at 1062, 1063, 18 L.Ed.2d at 70, 72. This privilege has been supported by Professor Wigmore in the following terms:
"That the government has this privilege is well established, and its soundness cannot be questioned." 8 Wigmore, Evidence § 2374 at 761-62 (rev. ed. McNaughton 1961) (footnotes omitted) (emphasis in original).
This court recognized the informant's privilege in State v. Cofone, 112 R.I. 760, 763-66, 315 A.2d 752, 754-55 (1974). Although that case involved a determination of probable cause, the balancing test was adopted when we stated:
"Accordingly, our task is to fashion an approach which will not interrupt the free flow of information to law enforcement officials and at the same time will not bar an accused from presenting a fair defense to the crime charged." Id. at 766, 315 A.2d at 755.
Other courts have applied the balancing test when the issue of guilt or innocence was involved and considered the degree or...
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