State v. Vargas, 78-85-C

• Decision Date: 16 September 1980
• Docket Number: No. 78-85-C,78-85-C
• Citation: 420 A.2d 809
• Parties: STATE v. Raul VARGAS. A.
• Court: Rhode Island Supreme Court

Page 809

420 A.2d 809

STATE v. Raul VARGAS.

No. 78-85-C.A.

Supreme Court of Rhode Island.

Sept. 16, 1980.

Dennis J. Roberts, II, Atty. Gen., Faith A. LaSalle, Sp. Asst. Atty. Gen., for plaintiff.

Barbara Hurst, Asst. Public Defender, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is a criminal appeal from the defendant's judgment of conviction for first-degree murder in violation of G.L. 1956 (1969 Reenactment) § 11-23-1.

The defendant, Raul Vargas, and the victim, Angel Lopez, were involved in a heated discussion outside Louis' Bar in Pawtucket sometime after midnight on September 4, 1976. It is not disputed that Angel Lopez provoked the confrontation by insulting defendant and his wife, and defendant testified that Lopez challenged him to a fight with knives. The two were separated, and subsequently defendant left the bar with a childhood friend from Puerto Rico, Eduardo Guitard, to help fix Guitard's automobile, which had broken down earlier in the evening on Interstate 95. Instead of driving directly to I-95, however, defendant and Guitard stopped for some beer at a friend's apartment in Crook Manor, a project in Pawtucket. What ensued after their arrival at Crook Manor was the subject of a considerable amount of conflicting testimony in pretrial hearings and at trial.

Debra Lewandowski testified that at about 1 or 1:30 a. m. she observed defendant and Guitard drive up in front of the apartments. She then saw the driver of the car, defendant Vargas, get out of the car, go to the trunk, and remove a "big long box," which he then put into the back seat of the car. Shortly thereafter, he put the box back into the truck. She also testified that about five minutes later, another car pulled up directly behind defendant's car. The occupants of the second car, among whom was Angel Lopez, immediately got out and began conversing among themselves. Miss Lewandowski testified that defendant then got out of his car, whereupon he and Angel Lopez once again began to curse and insult each other. The defendant then returned to his car, took out the shotgun, and walked back toward Lopez. According to Miss Lewandowski, Lopez had his hands in his pockets and said that "he didn't want trouble," but Vargas "just put the gun in (Lopez's) mouth and he shot." She testified that defendant then got into his car and drove away. ¹

The defendant took the stand and testified that when Angel Lopez and his friends arrived at Crook Manor, Guitard got out of the car to talk to them. The defendant said that he remained in the car. After a short while, however, defendant got out of the car to attempt to persuade Guitard to leave. According to Vargas, Angel Lopez interrupted and began cursing and insulting defendant. The defendant testified that because he was outnumbered, he became worried that Lopez and his friends might plan to attack him. He therefore returned to his car, took the keys out of the ignition, opened the trunk, removed the box containing the shotgun, took it to the back seat, and assembled and loaded it. He then walked toward the group, holding the shotgun across his chest, and asked Lopez why he was looking for trouble. Then, according to defendant, Lopez approached him with his hands in his pockets. When Lopez got close, defendant, fearing that Lopez had a knife concealed and concerned about the others, attempted to push Lopez back with the shotgun. He testified that as he was looking at the others, the shotgun went off. He saw Lopez fall backwards but did not think that Lopez had been shot. The defendant then got into his car and drove off. ²

The state called Eduardo Guitard as its witness at trial, expecting him to corroborate Debra Lewandowski's testimony concerning the timing of defendant's actions immediately before the shooting. The prosecutor based this expectation on pretrial discussions with Guitard and on a written statement given by Guitard to the Pawtucket police three hours after the shooting on the morning of September 4, 1976. In that statement, Guitard asserted that well before Angel Lopez arrived, defendant had taken the shotgun out of the trunk and had assembled it in the back seat. The defendant allegedly told Guitard that he wanted to be prepared in case Lopez should come to Crook Manor. During the trial, however, Guitard altered the substance of his previous testimony; and the trial justice permitted the prosecutor to use the prior, inconsistent statements to impeach his own witness.

The defendant contends that the trial justice's decision to allow the prosecutor to impeach Guitard was erroneous. He also argues that it was an abuse of discretion to deny defendant the opportunity to be heard and to rule that Guitard had surprised the prosecutor in the absence of a specific allegation of surprise. Finally, he contends that the decision to admit the police statement as an exhibit was also erroneous.

In Hildreth v. Aldrich, 15 R.I. 163, 1 A. 249 (1885), this court stated that although a party may attempt to refresh his witness's memory by referring to prior contradictory statements, he may not introduce those statements to impeach. It is now well settled in this jurisdiction, however, that a party who is surprised by his own witness's testimony may be permitted, in the discretion of the trial justice, to confront the witness with prior inconsistent statements. State v. Robertson, 102 R.I. 623, 627, 232 A.2d 781, 784 (1967). The rule that a party may not ordinarily impeach his own witness may also be relaxed even in the absence of an allegation and finding of surprise when, in the view of the trial justice, the interests of justice so require. State v. Quattrocchi, 103 R.I. 115, 124-25, 235 A.2d 99, 104-05 (1967); accord, State v. Giorgi, 115 R.I. 1, 6, 339 A.2d 268, 271-72 (1975).

The record before us indicates that on direct examination Guitard testified that he and defendant had had no conversation in the car before Lopez's arrival. The prosecutor was clearly disappointed by the witness's failure to recall the conversation. He attempted to refresh Guitard's recollection by referring to the police statement and transcripts from prior hearings. When in response to the prosecutor's questions about the timing of Vargas's assemblage of the shotgun the witness stated that he had not seen the gun until Vargas brought it out after Angel Lopez had arrived, the trial justice immediately sent out the jury. The bench conference focused on the prosecutor's privilege to employ the police statement as a prior, inconsistent statement to neutralize the adverse testimony under the rule of State v. Giorgi, supra. The trial justice, however, was concerned that the premature admission and use of the police statement to impeach a witness whose trial testimony had not been fully developed would conflict with the rule that such statements may not be considered by the jury for their substantive content. See State v. Quattrocchi, 103 R.I. at 123; 235 A.2d at 104. He therefore did not allow the prosecutor to impeach Guitard at that point.

On cross-examination, the witness testified that he and "Junior" Augustine, one of Angel Lopez's friends, had struggled for control of a second rifle and the gun had discharged; about two seconds later, defendant's shotgun delivered the fatal shot through Lopez's mouth. On redirect examination, the prosecutor immediately referred to the police statement and had it marked for identification as an exhibit. He then proceeded to lay a foundation for impeaching Guitard, whereupon defense counsel objected. But the trial justice ruled that the witness had surprised the prosecutor and had become hostile. He then permitted the impeachment to proceed.

The defendant's contentions have merit only if in this case there was no finding of surprise or if the interests of justice did not necessitate the use of the statement for impeachment of the witness. See State v. Quattrocchi, 103 R.I. at 124, 235 A.2d at 104. In Quattrocchi, we held that the statements were not admissible under the surprise exception because the trial justice had made "no finding that the prosecutor was surprised by the witness's adverse testimony. ³ " Id. at 125, 235 A.2d at 105. In the instant case, the trial justice specifically found that the prosecutor had been surprised. What defendant contends, however, is that the admission of the statements under the surprise exception was an abuse of discretion because it was preceded neither by an allegation of surprise nor by a voir dire hearing in which the defendant would have had an opportunity to be heard. We believe the record, viewed objectively, indicates otherwise. First, during direct examination the prosecutor expressed his surprise, although perhaps somewhat inartfully. That the prosecutor was surprised was clear to the trial justice when, sua sponte, he sent the jury out after the witness had testified that he did not see Vargas assemble the shotgun in the car prior to Lopez's arrival. Immediately after the jury had left, the trial justice in fact conducted a hearing on the prosecutor's privilege to impeach by prior statements during which defendant's counsel was heard. The trial justice recognized that privilege but declined to permit the prosecutor to exercise the privilege because the witness's testimony had not been developed. He specifically indicated, however, that he would permit impeachment if the witness's testimony had the effect of absolving defendant. Having observed the prosecutor's obvious surprise during direct examination and having afforded both parties an opportunity to be heard on the issue, the trial justice did not abuse his discretion when on redirect examination, he permitted the prosecutor to attempt to neutralize the adverse testimony of the witness given during cross-examination.

The defendant's contentions that the admission of Guitard's police statement was improper under the rules of evidence governing "present recollection...