State v. Thornley

• Decision Date: 13 May 1974
• Docket Number: No. 73-130-C,73-130-C
• Citation: 113 R.I. 189,319 A.2d 94
• Parties: STATE v. Ronald THORNLEY. A.
• Court: Rhode Island Supreme Court

Page 94

319 A.2d 94

113 R.I. 189

STATE v. Ronald THORNLEY.

No. 73-130-C.A.

Supreme Court of Rhode Island.

May 13, 1974.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for plaintiff.

William J. Burke, Jr., William P. Butler, Pawtucket, for defendant.

OPINION

DORIS, Justice.

On May 1, 1972, the grand jury returned an indictment charging the defendant, Ronald Thornley, with the crime of assault with a dangerous weapon, and also an indictment charging him with committing a crime of violence while armed with a firearm. The indictments were consolidated for trial. A Superior Court jury found the defendant guilty on each of the indictments. The defendant is before this court on his appeal.

Roberto Ochoa testified that on March 21, 1972, at approximately 7 p.m. he entered the Royal Palms Cafe in the city of Central Falls. He related that sometime later in the evening he observed defendant near the bar in the cafe. He further stated that he consumed eight or nine beers and as he was putting on his coat prior to departing from the cafe, defendant approached him and 'yelled' something at him which he did not understand. According to Ochoa, defendant, using a small gun, then proceeded to shoot him three times in each leg. The victim related that he then left the cafe and was walking on the sidewalk in an attempt to make it to a hospital when he came upon a police patrol car which transported him to the emergency room of the Pawtucket Memorial Hospital.

Mr. Ochoa stated that at approximately 4 or 5 a.m., some four or five hours after being shot, two Central Falls police officers, Robert Choquette and John Fram, came to the hospital and showed him two books of pictures, and that after viewing between 40 to 50 pictures, he identified a picture of defendant as that of his assailant. The victim further related that approximately four or five hours thereafter, the same two police officers returned to the hospital with Edmund J. Fortier, who was to act as interpreter. ¹ Mr. Ochoa stated that after viewing some 40 to 50 pictures he again pointed to a picture of defendant, thus identifying him as his assailant, and communicated that fact to the interpreter. The picture selected was marked with the initials of the victim and the interpreter. At the trial, the trial justice conducted a voir dire hearing regarding procedures used at the identification of defendant in the hospital by the victim. At the conclusion of the voir dire hearing at which Mr. Ochoa and Mr. Fortier testified, the trial justice found that the identification procedures adopted by the police did not violate constitutional standards, and that they complied fully with the standards of fairness.

The defendant, citing the following cases, contends that the procedure used at the pretrial identification was so unnecessarily or impermissibly suggestive that it constituted a denial of his rights under the fourteenth amendment and is therefore grounds for reversal. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). It is unnecessary for us to consider all the principles in these cases since the rule as espoused by this court in State v. Grenier, R.I. 313 A.2d 661 (1973), and State v. Ragonesi, R.I., 309 A.2d 851 (1973), is dispositive of defendant's argument here.

In Grenier and Ragonesi we held that the rule in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), requires that on appeal, we review the record to determine whether or not the procedures utilized in the pretrial identifications were so unnecessarily suggestive and conducive to a mistaken identification as to constitute a denial of due process. In our review of the record, the totality of the circumstances is determinative of whether pretrial procedures were impermissibly suggestive. Simmons v. United States, supra; State v. Ouimette, 110 R.I. 747, 298 A.2d 124 (1972); State v. Souza, 110 R.I. 261, 292 A.2d 214 (1972).

In accordance with our established procedure, the trial justice conducted a hearing in the absence of the jury to determine whether the identification procedure used was a violation of defendant's constitutional protection. State v. Espinosa, 109 R.I. 221, 283 A.2d 465 (1971); State v. Leavitt, 103 R.I. 273, 237 A.2d 309 (1968).

The record discloses that within hours of the shooting the victim, while in the Pawtucket Memorial Hospital, was shown two books of photographs by two police officers, and after viewing 40 to 50 pictures pointed to one of the pictures as that of his assailant. Since he neither understood nor spoke English, the same two police officers returned to the hospital some four or five hours thereafter with an interpreter, and the victim, after viewing approximately 40 to 50 pictures, again identified a picture of defendant as that of his assailant. Edmund J. Fortier, the interpreter, testified that he was present during the second identification and that neither he nor the police officers made any suggestions to the victim nor did they question him during the identification. Mr. Fortier further stated that the victim viewed approximately 50 pictures and then pointed to a picture of defendant and stated that it was a picture of the man who shot him. There is no testimony to even suggest that any improper procedures were used by the police. From the testimony elicited at the voir dire hearing, the trial justice found that the procedures used were constitutionally fair, particularly in view of the fact that the victim looked at 40 to 50 pictures on each of the two occasions he viewed the pictures.

As the record indicates, there is no evidence that the police, in asking Ochoa to identify the photographs, were exerting any suggestive pressure. There was neither highlighting of the pictures nor any statement made to the victim that would indicate any attempt to suggest to him what picture he should identify. The victim had ample opportunity to observe defendant in the cafe before the shooting, which was done at close range. It is our opinion that the circumstances, when viewed in totality, were not impermissibly suggestive during the course of the pretrial identification.

The defendant next contends that the trial justice erred when at the voir dire hearing he limited the cross-examination of Edmund J. Fortier, who had acted as interpreter at the hospital. The witness in question had already been subjected to cross-examination by defendant, and the request to reopen cross-examination is directed to the discretion of the trial justice. The decision of a trial justice on such a motion will not be disturbed unless it is shown that he has clearly abused such discretion. The defendant has failed to persuade us that the trial justice abused his discretion. We parenthetically note that the same witness was later cross-examined by defendant in the presence of the jury without any restriction by the trial justice.

The defendant next contends that the trial justice erred in refusing to allow the expert medical witness to respond to several hypothetical questions.

It is a well-established rule that the admission of a hypothetical question ordinarily rests within the discretion of the trial justice, and his ruling thereon will not be disturbed on appeal except for an abuse of discretion. Araujo v. Technical Casting Co., 100 R.I. 90, 211 A.2d 645 (...