State v. Turley

• Decision Date: 24 April 1974
• Docket Number: No. 1931-C,1931-C
• Citation: 318 A.2d 455,113 R.I. 104
• Parties: STATE v. Oscar E. TURLEY, Jr. A.
• Court: Rhode Island Supreme Court

Page 455

318 A.2d 455

113 R.I. 104

STATE v. Oscar E. TURLEY, Jr.

No. 1931-C.A.

Supreme Court of Rhode Island.

April 24, 1974.

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

William F. Reilly, Public Defender, Emanuel J. Lauria, John P. Toscano, Jr., Asst. Public Defenders, Oscar E. Turley, Jr., pro se (filed brief), for defendant.

OPINION

PAOLINO, Justice.

On September 20, 1971, the defendant was arrested under a complaint and warrant charging that on September 19, 1971, he feloniously and with malice aforethought murdered one Roger Nunes. He was brought before the District Court, Sixth Division, and pleaded not guilty to the charge of murder. He was ordered held without bail and the case was continued four weeks for the filing of special pleas. The District Court assigned counsel to represent the defendant.

On November 30, 1971, an indictment charging defendant with murder was returned in the Superior Court. No preliminary hearding had been held in the District Court. On the same day defendant was brought before the Superior Court and his case was referred to the Public Defender. The latter designated one of his assistants as counsel for defendant. The defendant then was arraigned, pleaded not guilty, and was given three weeks to file special pleas. The record shows that his counsel filed numerous motions on behalf of defendant, including motions for speedy trial, for production of tangible evidence, for bill of particulars, etc. Some of these were granted, some denied, and others withdrawn.

On March 20, 1972, the trial on the merits began before a justice of the Superior Court and a jury. The jury found defendant guilty of murder in the second degree. After the denial of his motion for a new trial, defendant filed 'Reasons of Appeal' consisting of 26 exceptions. ¹ However, the only exception briefed and argued is to the denial of his motion for a new trial. Under our rule the others are deemed to be waived.

The relevant facts in this case are not complicated. On the evening of September 18, 1971, defendant moved to a building in Providence to share an apartment with Roger Nunes, a long-time friend. In the early morning hours of September 19, 1971, the Providence Rescue Squad responded to a report of a stabbing in the apartment occupied by defendant and Nunes. When they arrived they found Nunes gasping in his apartment. They transported him to Rhode Island Hospital where he was pronounced dead. He had died from a fatal wound inflicted by a carving fork. The defendant was apprehended outside of the apartment and later charged for the unlawful killing of Nunes.

The state presented the testimony of several witnesses who testified about the circumstances surrounding the incident which resulted in the death of Nunes and the arrest of defendant. Arlene E. Brown, who was acquainted with both Nunes and defendant, testified in substance as follows. At about 9:30-9:45 she had been asked by one of them to share their dinner. She did not share their dinner, but she did have a few drinks with them. She was going back and forth between a friend's apartment and the one belonging to Nunes and defendant. She was asked if she wished to play cards and returned to the friend's apartment to get some pennies. When she returned, Nunes and defendant were arguing about five-dollar bills. Nunes had some five-dollar bills in his hand which defendant said Nunes had stolen from him. When they started to argue she left.

She returned when she heard a loud noise and saw defendant on top of Nunes and both men clutching each other. She left again to try to get help but was unsuccessful. She returned to her friend's apartment and when she heard defendant say, 'I'm going to kill you, you son-of-a-bitch,' she went back to their apartment. Nunes and defendant were still on the floor and defendant had a fork in his hands. She again left to try to find help, but without success. When she returned this time, defendant was sitting on the stairs and said 'Arlene, I think I've killed him.' In his hands he had the 'cat and a fork.' The fork was a carving fork that looked like State's Exhibit 13. She left again and this time succeeded in getting the assistance of a Kenneth Bergin. As to drinking by Nunes and defendant, she said, 'They had been drinking. Heavily, I can't say. They were drinking. They had been drinking. I am not a judge.' She also said that there was 'swearing back and forth' and that their speech was not slurred but they were very angry.

Kenneth Bergin testified that he took the fork from defendant's hand, but when he realized that it might be a murder weapon he threw it on the floor in the hallway. He told a friend who had accompanied him to call the rescue squad. He went back downstairs and had a couple of words with defendant, who jumped up and wanted to fight with him. Nunes was still alive.

Wayne P. Gill, a Providence police officer, testified that he was sent to answer a report concerning a stabbing; that when he got to the scene, he asked what happened; that defendant stepped forward and said 'I did it. I stabbed him'; that defendant walked up the stairs on his own; and that he, Officer Gill, could understand what defendant said.

The defendant testified in his own defense. His defense was amnesia from drinking. He testified that he could not remember anything that happened between him and Nunes on the night of the argument, but he did remember accusing Nunes of playing cards with defendant's money.

Doctor Bruno Franek, a neuropsychiatrist, was called as a witness by defendant. He testified that on the evening of September 21, 1971, at the request of defendant's then assigned counsel, he made a physical examination of defendant at the Adult Correctional Institutions. In his testimony he described certain physical injuries which he saw on various parts of defendant's body and which, he said, were of very recent origin. He also said that defendant showed 'an organic bilateral tremor' and he was questioned about the condition known as 'temporary amnesia' and the effect of the consumption of liquor on such a condition.

We believe that the factual background set forth above is sufficient to convey an understanding of the issues raised in this proceeding. Two briefs have been filed on behalf of defendant, one prepared by the Public Defender's Department and the other by defendant pro se.

We address ourselves first to defendant's pro se brief. One of his claims is that he received ineffective representation by the assistant public defender who represented him at the trial in the Superior Court. The transcript shows that after the jury returned its verdict but before the trial justice denied the motion for a new trial which assigned counsel had filed, defendant wrote a letter to the trial justice charging that he had received ineffective representation by his assigned counsel and requesting a new trial on the ground that he had been denied his federal and state constitutional right to effective assistance of counsel. ² The trial justice found no merit in defendant's claim and, in fact, said that defendant's assigned counsel had done an outstanding job. The defendant again raises this question in his pro se brief. However, although he makes charges of ineffectiveness, there is nothing in this record to support his claims. In the circumstances, even if we assume that this question is properly before us, we are unable to pass on the merits of his claim in the absence of supporting evidence.

The question of whether defense counsel has failed to fulfill his duty to render 'reasonably effective assistance,' People v. White, Colo.,514 P.2d 69, 71 (1973), is a question of fact which must be established by legally competent evidence. Mere unfounded claims and unsupported charges of ineffectiveness are of no avail.

It seems to us that the most expeditious way to advance a claim of ineffectiveness of counsel, after trial, is by an evidentiary hearing pursuant to a petition for habeas corpus in the Superior Court. In this manner an aggrieved defendant may present evidence to support his claim and prepare a record for review in the event of an adverse decision.

The next claim made by defendant in his pro se brief is that he was entitled to a preliminary hearing in the District Court and that his indictment by the grand jury while his case was pending in that court deprived him of his constitutional rights. This question was not raised in the Superior Court and therefore is not properly before us now. State v. Quattrocchi, 103 R.I. 115, 235 A.2d 99 (1967). Since we are satisfied that the absence of a preliminary hearing in the District Court did not prejudice defendant in any manner, we do not believe that strict compliance with procedural requirements should be relaxed or excused in this instance. See State v. Quattrocchi, supra, note 1.

We have examined the other contentions made by defendant in his pro se brief and find that they are without merit.

We come now to defendant's exception to the denial of his motion for a new trial as briefed and argued by his assigned counsel. He based this motion on the grounds that the verdict is against the law, the evidence and the weight thereof. Generally he argues that there is no evidence to support the verdict, that the trial justice failed to exercise his independent judgment in passing on credibility and the weight of the evidence, and that he overlooked material evidence on controlling issues. Specifically he contends that the trial...