State v. Taylor

• Decision Date: 26 February 1981
• Docket Number: No. 79-35-C,79-35-C
• Citation: 425 A.2d 1231
• Parties: STATE v. Richard D. TAYLOR. A.
• Court: Rhode Island Supreme Court

Page 1231

425 A.2d 1231

STATE v. Richard D. TAYLOR.

No. 79-35-C.A.

Supreme Court of Rhode Island.

Feb. 26, 1981.

Dennis J. Roberts II, Atty.Gen., Alfred French Goldstein, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Asst. Public Defender, for defendant.

OPINION

WEISBERGER, Justice.

The defendant, Richard D. Taylor, was convicted by a jury in the Superior Court pursuant to a criminal information which charged him with knowingly receiving a stolen chattel with a value in excess of $500, to wit, a 1978 Mercury Cougar XR7, in violation of G.L.1956 (1969 Reenactment) § 11-41-2, punishable under § 11-41-5. ¹ On appeal the defendant makes the following assignments of error: that the trial justice erred in her instructions to the jury concerning the statutory presumption of knowledge in respect to stolen goods ² and in defining reasonable doubt. The defendant further asserts that the response of the trial justice to defense objections to improper prosecutorial comments during final argument was inadequate. Our determination of the issue of improper prosecutorial conduct is dispositive; therefore, we will not reach the other issues raised.

On the afternoon of January 27, 1978, when Richard Taylor was traveling on Route 5 in Smithfield, Rhode Island in a silver 1978 Mercury Cougar XR7 with his friend, Rhonda Brent, he was stopped by State Police Corporal John Racine. The stopping of the vehicle was precipitated by circumstances that caused the officer to form a suspicion concerning its registration. Upon request for license and registration, Richard Taylor produced his Rhode Island driver's license but admitted that the automobile was unregistered. Mr. Taylor explained that he had recently purchased the car from a woman in Kentucky and had not yet registered it. Additionally, Richard Taylor was unable to produce a bill of sale or any other proof of ownership.

At Corporal Racine's request Richard Taylor followed the officer in his automobile to the State Police barracks. An initial check with the National Auto Theft Bureau came back negative. Richard Taylor was released but the car was impounded pending proof of ownership. The following day Richard Taylor notified the police that he did not have a bill of sale for the car. At this point a factory trace of the vehicle identification number was made. This trace showed that the car had been shipped to Preston Lincoln-Mercury of Nashville, Tennessee. The Rhode Island State Police notified the car dealership in Nashville and requested that they investigate further. Shortly thereafter, on February 1, 1978, the silver Mercury Cougar XR7 that had been impounded by the Rhode Island State Police was reported stolen. Richard Taylor was charged by criminal information on April 26, 1978, with

"knowingly receiv(ing) stolen goods, chattels and property, to wit, a 1978 Mercury Cougar XR7, VIN # 8H93H540494, belonging to PRESTON LINCOLN MERCURY, a Tennessee Corporation, being of the value of over Five hundred dollars ($500.00), in violation of § 11-41-2 and § 11-41-5 of the General Laws of Rhode Island, 1956, as amended (Reenactment of 1969)."

At trial in the Superior Court for Providence County, the defense presented two witnesses: the defendant, Richard Taylor, and his passenger at the time of the automobile stop, Rhonda Brent. The defense contended that Richard Taylor had purchased the automobile while living in Nashville, Tennessee, for adequate consideration without notice of a defect in the seller's title, thus refuting the essential knowledge element of the offense of receiving stolen goods. State v. Kurowski, 100 R.I. 25, 210 A.2d 873 (1965); State v. O'Neill, 53 R.I. 497, 167 A. 263 (1933); see In re Vincent, R.I., 413 A.2d 78 (1980).

The defendant testified that he had been working temporarily in Nashville on a construction job. While there, he purchased the Cougar in nearby Kentucky from an acquaintance, Judy Campbell Sartain, for $5,500. A stipulation by the parties concerning depreciation of the automobile resulting from damage and mileage gave support to the reasonableness of the $5,500 purchase price. A slip of paper on which was written Ms. Sartain's name and address was admitted into evidence and identified as one of the papers defendant gave to officer Racine, when stopped, to identify his vendor. Richard Taylor testified that at the time of the purchase Ms. Sartain gave him two sets of keys and a dealership warranty card and that she promised to mail him the title certificate within the next few weeks. The defendant also explained that he had paid for the car with cash because while working away from home, it was his practice to carry "a lot" of money. He stated that he had several sources of income which included his construction pay, income from pool hustling, and money sent to him by his parents and grandparents.

Although in the course of defense testimony individuals were identified who could have corroborated defendant's testimony, namely Judy Campbell Sartain and the parents and grandparents of defendant, they were not called to testify on defendant's behalf. In final argument to the jury, the prosecutor twice commented directly on the failure of defendant to call corroborating witnesses. The defendant argues that these statements were improper under our holding in State v. Jefferson, 116 R.I. 124, 353 A.2d 190 (1976), and that the cautionary instruction given by the trial justice was inadequate. ³ We agree.

The prosecutor first argued:

"(The defendant) said his mother sent him money, his grandmother (sic). I didn't see them come in to testify. He raised that issue. I didn't see them come in here and say "

After the trial justice's admonition, the prosecutor again argued:

"The deal probably was so good, he couldn't resist, and he returned to Rhode Island and was caught, and now he tries to cover his tracts. Yet, he cannot produce, or he did not make any effort to show us this girl (sic) that he bought the car from in Tennessee."

State v. Jefferson, supra, forbids prosecutorial comment on the failure of a defendant to present witnesses. ⁴ We have no doubt that the prosecutor's comments offend the principles enunciated in Jefferson :

"While there is support for a rule that a jury can consider a defendant's unexplained failure to present a witness who, if the defense is genuine, might be expected to corroborate that defense, we believe a better rule was adopted by the court in State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974). There the Minnesota Supreme Court declared that a 'prosecutor may not comment on a defendant's failure to call witnesses.' Id. at 127, 218 N.W.2d at 200. The court stated two reasons for its ruling: 'First, such comment might suggest to the jury that defendant has some duty to produce witnesses or that he bears some burden of proof; second, the comment might erroneously suggest to the jury that defendant did not call the witnesses because he knew their testimony would be unfavorable.' " State v. Jefferson, 116 R.I. at 139, 353 A.2d at 199 (footnote omitted).

In spite of the impropriety of such comment, we have recognized that a timely and adequate cautionary instruction given by the trial justice is effective to correct improper reference to the "empty chair." State v. Sepe, R.I., 410 A.2d 127 (1980); State v. Jefferson, supra. In Jefferson this court found sufficient an "instantaneous response" by the trial justice informing the jury that the "comment was improper," 116 R.I. at 136, 353 A.2d at 198, "with the specific understanding that (the defendant) was not obligated to explain anything at all to anyone." Id. Again, in State v. Sepe, supra, we found a cautionary instruction sufficient because it was given "immediately" and it unambiguously identified the prosecutor's error and explained the burden of proof as it related to the ongoing criminal trial. State v. Sepe, R.I., 410 A.2d at 132.

The teaching of previous opinions causes us to conclude that the cautionary instruction must (1) identify the prosecutor's conduct as improper, (2) unequivocally indicate that the jury must disregard it, and (3) unequivocally indicate that since the defendant has no duty to present witnesses or any other evidence, his failure to do so cannot be construed as an admission that the evidence, if produced, would have been adverse. These criteria may be satisfied in as many different ways as there may be circumstances in which the need for a cautionary instruction will arise. We cannot prescribe a specific cautionary instruction to be uttered verbatim when the "empty chair" doctrine is invoked, for the same instruction may be adequate in one case and far less than what is required in another.

The first objectionable comment called attention to the failure of defendant to produce his mother and grandmother. In response to defendant's motion for mistrial, the trial justice declined to pass the case but gave the following cautionary instruction:

"Members of the jury, you'll recall at the outset I said that it's always the obligation of the State to prove every element of the crime beyond a reasonable doubt, as I...