State v. Delahunt

1261. 401 A.2d Raymond W. Delahunt. State vs. 24, 1979.

MAY Kelleher, Weisberger, Bevilacqua, J., Joslin, C Doris JJ. Present: 4, 1976, a Court jury On Superior Doris, J. June Delahunt on indictment convicted Raymond single his intent rob. After with with him assault charging on denied, was entered for a new trial was motion judgment at the he to serve 10 years the verdict and was sentenced Correctional Institutions. Adult for reversal

In this defendant raises sundry appeal grounds thrust his is directed at of his conviction. The attack certain in-court identifications defendant allegedly out-of-court identifications. were tainted by prior addition, the court below erroneously he contends was and that he admitted evidence of a act prior as denied a trial. The facts are follows: speedy pertinent At about the afternoon of February 4:15 on p.m., left Island Sherlock the Rhode Mary Hospital (Sherlock) where she and went to her car the hospital worked parking car, her a man As she the driver’s side of lot. approached said, car her “I have a Get in the came behind and up gun. and took her car and me man keys give keys.” car to car, her that “he wanted the to start attempted stating discovered, car he Sherlook’s out of the state.” Rut as soon get in a somewhat condition was dilapidated required familiar he skill hand to be started. spent of a Consequently, this five futile to start the car. During minutes attempting barrel, black time, saw the of a small she stated that she from his left hand. With her assailant handgun protruding thus Sherlock stated that she took the engaged, opportunity toward the front door of the When she glance hospital. her, saw toward she fled the car. people Moments exiting later, her assailant likewise fled.

Sherlock called the from the police hospital lobby, four to five cruisers arrived within minutes. She described her assailant and the commenced an area police search. Sherlock them in one of the cruisers. accompanied Twenty- later, five minutes she was taken to view a at a suspect location near the There she identified defendant, hospital. Delahunt, W. as her Raymond assailant. Later that evening, she defendant out of a station picked police lineup.

Paul also identified defendant at this Gurghigian lineup. At trial his Gurghigian explained involvement with defendant. He stated that 1, 1975, on at about February — the same afternoon p.m. as the incident at the Rhode — Island lot Sherlock he Hospital was involving parking at a counter at Grant’s sitting Providence. At Hobby Shop time, man, whom he identified in young court as defendant, entered the store and asked to see a starter’s testified that he pistol. scrutinized Gurghigian this man because, as a customer of store, the he regular had a habit of a on the protective clerk keeping eye who was then elderly on defendant. The waiting defendant was a shown small black When the handgun. clerk handed the to defendant gun for examination, testified that defendant Gurghigian ran from the store and headed in the direction of the general Rhode Island Hospital. trial,

At the did state not introduce Gurghigian’s lineup Instead, identification. the state relied upon Gurghigian’s and Sherlock’s in-court identifications and upon testimony field Sherlock’s identification made regarding after shortly the crime.

PRIOR CRIMINAL ACT The defendant’s first of error the assignment challenges of The attack is multifaceted. testimony Gurghigian. the concern- he that admission testimony Initially, argues — the defendant starter gun criminal' conduct by ing prior — that such defendant states theft was error. The correctly however, concedes, He relevance. evidence lacks generally admits such evidence to rule that well-settled exception motive, intent, if it tends to establish “guilty knowledge, the scheme, or like.” State Colangelo, system design, plan, 170, 173-74, A. The defendant is that elucidated Colangelo exception argues to other in this case because it only applies inapplicable to the has a similar modus operandi criminal conduct that Here, contends, of the tried. he conduct crime being to the bears no resemblance in the store hobby person lot. For this in the hospital parking conduct person is reason, concludes, he Colangelo exception inapposite. We disagree. not limited to is in Colangelo outlined exception It to series also applies any similar acts.

situations involving — — constituting plan dissimilar factually events although Here an ultimate objective. or achieve design on a voir dire concluded, after a trial reasonably justice theft, store committed that the hobby motion suppress, incident, was lot part before some 20 minutes parking that Moreover, we do not believe car. to steal a a larger plan its inherent this testimony outweighed the prejudice value. probative

LINEUP IDENTIFICATION in-court next Gurghigian’s The defendant argues tainted an earlier suggest was by of defendant identification and two Gurghigian At the hearing. ive suppression lineup.1 against 1 Asimilar attack had been made Sherlock’s in-court identification at a suppression justice pretrial hearing. hearing, At ruled that motion it Sherlock’s identification was not tainted since derived from an — is, independent perceptions source from made at the crime scene rather Wade, perceptions lineup. United States than made at the Under 388 U.S. finding necessity 87 S. Ct. 18 L. Ed. 2d 1149 such a obviated the However, lineup by Gurghigian’s analyzing propriety the viewed Sherlock. lineup hearing. challenged was It was first identification not discussed jury. Although during hearing independent dire source trial voir without counsel, opinion subject. justice expressed issue was discussed trial no on officers testified to the and conduct of the police makeup addition, In of the was lineup. photograph lineup introduced. This evidence indicated that viewed Gurghigian four white males of the same Each approximately height. had a similar moustache and each had a style similar hair Each was Furthermore, dressed. length. casually defendant was not the blue described to the wearing jacket previously as a salient feature in the police identification of the man in Grant’s From Hobby Shop. selected lineup Gurghigian defendant without hesitation. The defendant was without counsel. The in only discrepancy Gurghigian’s testimony concerned the number of in the and whether persons lineup were or they He he had standing viewed a sitting. thought of five or individuals, six seated lineup as in the depicted At the of the lineup conclusion the trial photograph. hearing, denied the motion to justice that the suppress, opining lineup exceeded the standards of fairness.

We see no reason to disturb this The defendant finding. places on the fact that great significance Gurghigian thought that he had viewed a more numerous lineup, apparent conflict with the fail, however, lineup We to see photograph. how this minor renders the discrepancy constitution- lineup infirm. ally

RIGHT TO COUNSEL The defendant also contravened the lineup argues to counsel Federal Rhode Island right provision Constitutions and thus tainted the in-court identification made first examine the We federal consti- by Gurghigian. tutional argument. held that a Court post-indictment Supreme for sixth critical of the criminal process was a stage counsel therefore the

amendment purposes Wade, attached to United States such proceedings.2 Therefore, while we think ample support finding there was evidence to such a regarding identification, Gurghigian’s in-court we decline to make such fact Rowe, appellate determinations at the Compare level. State v. 314 A.2d (Me. 1974). provides pertinent 2 Thesixth part: amendment prosecutions, “In all criminal Const, * * * the accused shall have the assistance of counsel for his defense.” U.S. amend. VI.

571 1926, L. Ed. 2d 1149 Reme- 218, S. Ct. 18 (1967). U.S. 87 rule exclusionary the Court prophylactic dially, proffered identifications conducted without presence for lineup 1951, 263, 288 87 S. Ct. Gilbert v. U.S. counsel. California, to 2d these 18 L. Ed. 1178 Subsequent pronounce- (1967). ments, however, whether the to existed some question right See, also extended to counsel pre-indictment lineups. e.g., 615, A.2d In 1972 the 268 723 re Holley (1970). Illinois, v. in Court resolved this uncertainty Kirby Supreme 1877, 92 32 Ed. 2d 411 406 U.S. S. Ct. L. “after where it indicated that the counsel first arose right — criminal of adversary initiation judicial proceedings whether of formal by way preliminary hearing, charge, information, 92 S. indictment, or Id. arraignment.” 2d 417. Ct. at 32 L. Ed.

In the after the instant case took place shortly crime, well before the initiation of commission any Thus, formal in judicial proceedings. light Kirby, defendant had no under Federal Constitution right counsel his to the is without contrary clearly argument merit. defendant’s right-to-counsel

The second portion for support. Constitution to the Rhode Island looks argument some Court’s opinion Kirby, of the Supreme In the wake to counsel have preindictment courts recognized state State, P.2d v. 558 Blue See constitutions. their state under 323, 217 Jackson, 391 Mich. v. 1977); People 636 (Alas. to construe Kirby have chosen Others 22 (1974). N.W.2d adversary at which the point when determining narrowly their under particular begin proceedings judicial Richman, 458 Pa. v. See Commonwealth procedure. courts more of state But many A.2d 351 320 (1974). See, State e.g. have followed Kirby. the issue considered have Johnson, 327 State 236 Malani, 1978); P.2d (Haw. 400, 510 2d 29 Utah v. Easthope, State 2d 388 1976); So. (La. L. Mo. K.C. at 46 U. collected See also cases P.2d (1973). n.35 Rev.

Our Rhode Island Constitution provides, language similar to its Federal that “In all textually counterpart, * * * the accused shall have the prosecutions, Const, I, assistance of counsel in his defense.” R.I. art. §10. We do not believe case, that the in the instant police lineup held three crime, hours after the awas of criminal phase for of our prosecution constitution. As the purposes Kirby stated: opinion

“In this case we are asked to into routine a import an absolute police constitutional investigation guarantee and historically after the rationally applicable only onset of formal prosecutorial We decline to proceedings. do so. Less than a after year Wade Gilbert were decided, the Court the rule of those explained decisions as follows: ‘The of rationale those cases was that an accused is entitled to counsel at any-“critical stage a prosecution,” post-indictment is such ’ a “critical stage.” v. (Emphasis Simmons supplied.) States, 377, United 390 U.S. 382-383. We decline to from that depart rationale today by se imposing per rule exclusionary an identi- upon testimony concerning fication that took before the place commencement long of whatever.” 406 any prosecution 690, U.S. at 92 S. Ct. at 1882-83, 32 L. Ed. 2d at 418.

We are aware that has been received with mixed Kirby reactions.3 Nevertheless, we do not believe that our consti- tutional provision assistance of requires counsel at any earlier than its stage Federal we counterpart. Accordingly, adhere to the decision for of Kirby our consti- interpretation Accord, tution. 459, State v. 294 A.2d Boyd, 1972). (Me.

SHOWUP IDENTIFICATION assails, defendant next on due process grounds, Sherlock’s identification at a of defendant “showup” shortly after the crime. The defendant that the was argues showup and hence unfairly tainted suggestive Sherlock’s in-court 3 See,e.g., 423, 1975 Wash. U. L. Rev. 433-34. all almost one-to-one

identification. as Although suggestive, of are, we believe under “totality confrontations case not was circumstances” showup 293, Denno, 388 U.S. 87 S. unfair. Stovall constitutionally 2d In Stovall the Court Ct. 18 L. Ed. 1199 (1967). is se violation indicated that a not showup per suggestive Rather, clause. reach constitutional the due process rise a very must suggestiveness “give proportions, misidentification.” likelihood of irreparable substantial States, U.S. 88 S. Ct. Simmons United of the need for 971, 19 L. Ed. 2d Because an ad hoc “totality the Stovall advanced opinion flexibility, an standard for reliability the circumstances” testing Ed. 302, 1972, at 18 L. 388 U.S. at 87 S. Ct. identification. 98, 97 S. Ct. Brathwaite, 2d 1206. 432 U.S. at See Manson Sobel, 140 2243, 53 L. Ed. 2d See Eye- (1977). generally in to be considered Witness Factors (1972). §37 Identification this include: test applying the

“the of the witness to view opportunity attention, crime, the time of the the of witness’ degree of the the of the witness’ description accuracy prior the criminal, the level demonstrated of certainty confrontation, time witness length between the crime and the confrontation.” Neil 382, 188, 199-200, 375, Ct. 34 L. 409 U.S. 93 S. Biggers, 401, Ed. 2d 411 (1972). mind, we to facts

With these factors turn defendant, viewed case. The victim testified that she instant car, the front of her for six who was beside her on seat sitting but minutes. It was late afternoon still daylight. to seven to the from defendant her at times shifted Although gaze was her of attentiveness front door of the hospital, degree able no observer. She was later acute. She was casual assailant, of her furnish the with detailed police description at the she defendant color. And when saw including eye crime, confrontation, her street 45 minutes after the mere identification was instantaneous certain.

574

Balanced these against factors we must consider the sug- of the gestiveness The victim in sat the rear showup. seat of a car defendant, and viewed police who was in front standing car, of the the front windshield. The through headlights the car were on. The defendant was handcuffed and sur- rounded officers. by police Although suggestive police this was the thought culprit, was procedure not unreasonable the nature of the crime considering and the Moreover, danger escape. took showup place shortly after the crime when the victim’s was freshest and memory least susceptible Thus, factors. suggestive considering “totality circumstances,” we do not believe that the was showup impermissibly See suggestive. Lewis, State v. 341 A.2d 744 (1975).

SPEEDY TRIAL The defendant next contends that he was denied his sixth amendment to a trial. speedy constitu applicable tional standard for trial evaluating speedy violations is laid out in Barker v. 407 U.S. Wingo, 92 S. Ct. L. Ed. 2d 101 See (1972). State v. Paquette, R.I. 368 A.2d 566 State v. (1977); R.I. McDonough, A.2d 41 noted in 11 Suffolk U. L. Rev. 662 , Barker the Court listed four elements for consideration: of the delay,

(1) length reason for the delay,

(2) amendment assertion of sixth rights, (3) to the accused. (4) prejudice interrelated; cautioned, elements, the Court are they These in an ad hoc fashion each other must be balanced against — no one factor of a case the of the facts particular light decisive. being case, on we first focus factors in the instant these

Applying 1-4, was tried on The defendant the delay. length June 9 months after his 1976, after his arrest and 16 months face, the time, on its indictment. This triggers length factors, 407 into the other three Barker for necessity inquiry 117. 2192, 33 L. Ed. 2d at 530, Ct. at U.S. at 92 S. into reason for the delay. next the we inquire Accordingly, to it months took seven why does not indicate The record is And record similarly arrest. indict defendant after his to nine after the indictment bring it took months unclear why trial, 1976, 14, before his trial. On shortly defendant to May of a to dismiss for lack heard on a motion defendant was occasion, truncated this a rather hearing On trial. speedy for the offered no which state explanation took place this matter was a Indeed, reference to trial delay. only the motion concern- rather reference made by justice oblique record, the court calendar. the number of cases on ing therefore, reliance in its the state’s is insufficient to support circumstance. on as brief court congestion mitigating factor reason-for-delay must we weigh Accordingly, 729, the state. See State v. Crapo, negatively against 437, 440-41 A.2d defendant asserted his Next consider what we degree — factor trial the pivotal amendment to a speedy sixth filed motions The defendant two concern- in our disquisition. trial on for a one October speedy matter: ing of a 6, 1976, dismissal for lack one on for speedy May first However, defendant filed his trial. on May Failure to identification testimony. motion to suppress a basic in trial suggests such step preparation complete trial most of the ready defendant was not for period during Thus, trial. such between indictment and procrastination motions dilutes of defendant’s prior concerning the vitality speedy-trial rights. accused we must assess the caused

Finally, prejudice The record before us indicates during delay. indictment, he trial on the instant was awaiting period at sentence the Adult a two-year defendant was serving crime. Institutions for another Notwithstanding Correctional for or that chance he had this, parole defendant argues any inmate were lost as for various as well privileges, furlough, 576 is he trial. The force defendant’s

while awaited argument 14, 1976, however, that, the diminished, fact at May by that defendant’s the motion indicated hearing justice for See record lessened his chances parole. extensive Rollins, 280, 283-84, A.2d State U. L. Rev. 1017 noted in Suffolk in on the balance, all of the above discussion On light denied matter, not that defendant has been we are persuaded trial. his constitutional to speedy right raised have considered other arguments We carefully and find them without merit. in the defendant’s brief dismissed, The defendant’s is denied arid appeal is re- from is affirmed and case appealed judgment manded to the Court. Superior that neither the

Mr. concurring. agree Joslin, I Justice federal nor our own state constitution entitles an accused to the assistance of counsel at a preindictment Concur- lineup. rence on score, however, does not mean that I am unaware that the for potential suggestive for procedures abuse is at a present preindictment as it is at one lineup just that occurs to the subsequent initiation of adversary judicial The Constitution proceedings. minimizes potential post-indictment by lineups an accused the guaranteeing to the presence counsel. v. Illinois, 406 U.S. Kirby S. Ct. 32 L. Ed. 2d 411 United States v. (1972); Wade, 388 U.S. 87 S. Ct. 18 L. Ed. 2d 1149 (1967). By fairness of monitoring lineup procedures, counsel can assist an accused both his protecting rights lineup preserving for later challenges review.

I would the accused at protect as preindictment lineups well the law enforcement requiring authorities to take a color and additional photograph color photo- of each graphs participant, thereby enabling reviewing court effectively evaluate fairness. procedural Although failure to such should prosecution’s produce photographs not identification, itself invalidate an I such believe that an

577 omission, to be evidence if should be deemed unexplained, v. was tainted State by procedures. the lineup suggestive 552, 2, 282 A.2d 3 Earle, 550, (1972). 60 N.J. with courts have cited police

Several approval regulations for other forms of lineups or recording requiring photographs Hamilton, 1292, v. 420 F.2d 1295 United later review. States 160, 163, Jones, v. 47 Mich. Cir. 1969); People App. (D.C. 322, Fowler, 1 3d 209 324 see Cal. N.W.2d People (1973); 346-48, 643, 652-53, 363, 335, 461 P.2d 82 Cal. 372-73 Rptr. have Commentators also similar suggested pro- (1969). Sobel, cedures. E.g., Eye-Witness §56.03 Identification 107 The Criminal at Home Murray, Lineup (1972); 610, I Abroad, 1966 Utah L. Rev. 627-28. would adopt because an accused who unable to reconstruct is requirement an it. a be denied effective means of may lineup challenging with whom Mr. Chief Kelleher, Mr. Justice Justice In joins, Bevilacqua 1970 this court dissenting. held that to counsel enunciated in right Wade and Gilbert applies to all whether are lineups, conducted they before or after the return of indictment. re 615, 618-19, In R.I. 107 268 Holley, A.2d 725-26 At that we time considered Court’s reference to post-indictment lineups those cases as merely being descriptive particular factual situation then later, Almost 2 present. years Illinois, Kirby U.S. S. Ct. 32 L. Ed. 2d 411 United States said Supreme otherwise. a deci- plurality sion, Mr. Stewart held that an accused’s sixth- Justice fourteenth-amendment right counsel attaches “at or after — the initiation of adversary judicial criminal proceedings whether by way formal charge, preliminary hearing, indictment, information, or Id. at arraignment.” S. Ct. at 32 L. Ed. 2d at 417.

Today, holds that majority an accused in this state no longer enjoys counsel at a preindictment under either the United States or Rhode Island Constitution since it is not a “phase I prosecution.” While that we are bound agree by Court’s Kirby interpretation Constitution, of the Federal I feel that the individual liberties stake here that we standard of require adopt higher the assistance-of-counsel upon protection relying guaran- tee afforded Declaration of is embodied Rights I, art. of the Rhode Island Constitution. In the §10, we past have a similar course of action. v. See State adopted Maloof, 380, 389, 676, 333 A.2d 681 (1975). era,

In the at least three states have held that an post-Kirby accused is entitled to have counsel at a present preindictment State, identification v. Blue 558 P.2d 636 proceeding. (Alas. Jackson, 323, v. 391 Mich. 1977); People N.W.2d Richman, Commonwealth 458 Pa. (1974); 320 A.2d 351 (1974).

In Richman defendant had been found guilty and and on burglary that he had rape appeal been argued denied his to counsel at a conducted some AA right hours after his arrest but before he had been indicted. The Court of Supreme reasoned that Pennsylvania Kirby’s ultimate concern was with a balance between the striking of a to be “right suspect from protected prejudicial and the interest of procedures and society prompt of an purposeful unsolved crime.” 406 U.S. investigation at 92 S. Ct. at 32 L. Ed. 2d at 418-19. Stating to only limit the rule when Kirby sought Wade the interest of enhanced, would be society the court held that in Penn sylvania, judicial time of proceedings arrest. The begin was, Wade rule therefore, held to to all confrontations apply conducted after arrest. court hastened to add that its decision did not counsel at require on-the-scene prompt indentifications. Richman, Commonwealth v. 458 Pa. at 174 N.5, 320 A.2d at 354 n.5. the defendant had been convicted of assault Jackson

with intent to rob. On he issues, raised several appeal among which was the one that the trial should stating have judge excluded the victim’s in-court identification as well testimony as testimony to her identifications pertaining because pretrial he had been apparently denied counsel at certain photo- Aside from graphic lineup procedures. the Wade- involved Gilbert-Kirby trilogy, appeal United States Ash, 413 U.S. 93 S. Ct. 37 L. Ed. 2d 619 where the Court held that the sixth amendment Supreme not an accused the to counsel at does guarantee photo- which witnesses attempt identify graphic displays case, After each suspect. discussing Michigan Supreme Court held that Federal constitutional mandate

“independent any * * * before and after commencement both of a is entitled to be prosecution, judicial phase suspect counsel at a identification or a represented by corporeal identification unless the circumstances photographic the conduct an identification before justify procedure can be an suspect given opportunity request that, in obtain counsel and circum- except exigent stances, of a known to be in photographs suspect or who can be a for custody readily produced lineup Jackson, not be to witnesses.” v. may displayed People Mich, 391 at 217 N.W.2d at 27.1 The court’s decision was based on its view that the best evidence of an identification of a is his eyewitness’ suspect to a conducted unaffected an earlier response fairly lineup by photographic display suspect.

In Blue the Court of ruled Alaska that under its Supreme in constitution a is entitled to have counsel custody suspect at a unless circum- present preindictment lineup exigent stances in which exist efforts to counsel would provide interfere with a and unduly prompt purposeful investigaton. concluded, however, The court counsel at providing Blue’s which was conducted 3 hours after lineup, just crime 11 and at could have the state’s p.m., precluded to obtain an identification while the diligent attempt was still fresh. eyewitness’ memory 1 In a footnote the court stated that violation of either or both rules will “[a] entitle a hearing subsequent defendant to a to determine whether the witness’ corporeal independent identification photographic has a source Jackson, n.16, People identification.” 391 Mich. 217 N.W.2d n.16. in the sentiments

I to expressed subscribe Jackson for a the state’s concern “prompt In Blue. balancing with a crime” of an unsolved investigation purposeful from procedures,” “to be prejudicial protected suspect’s right have to in has that a once custody, I believe suspect, unless exigent at a lineup counsel present preindictment at this court length exist. quoted circumstances Holley 643, 82 Cal. 335, 461 P.2d Fowler, 1 Cal. 3d from People in Court the California where Supreme Rptr. not rules were held that the Wade-Gilbert decision pre-Kirby I feel it necessary lineups.2 restricted post-indictment to the which occurs point now that prior reiterate “[a] with the same risks suggestions be fraught question may result in the same after that and may as one point, occurring 342, 461 Id. at for the defendant.” consequences far-reaching “In 369. As Sobel states: 82 Cal. Judge P.2d Rptr. not reversed has only effect plurality Kirby practical but also Wade’s principal Wade’s counsel requirement Indeed, as distinguished salutary accomplishment.” to counsel is out, the federal constitutional right jurist points needs time when “he least afforded to a defendant at a now at 33 Sobel, it.” Eye-Witness §17 Identification I find evidence that state’s investigation Since can no would have been providing here placed jeopardy I the lineup, defendant with counsel conducting prior to counsel under hold that he has been denied his would right standard, I I., of our constitition. §10, applying art. Gannites, in State v. follow the we set forth would principle hold 219-21, 221 622-23 A.2d place to counsel would lineups taking apply of this 7 opinion. days following publication 2 In 1973 Supreme light Kirby California Court stated that in its Fowler 759, 764, longer People decision was no controlling Chojnacky, 8 Ca. 3d 530, 533, P.2d Rptr. (1973). dispute Cal. There is’some whether Johnson, 684,_, Chojnacky People App. overrules Fowler. See 85 Cal. 3d Rptr. 149 Cal. 664-65 S. II, General. Roberts Attorney Foley,

Dennis John J. General, for Assistant Attorney plaintiff. Special Mann, ir R. for defendant. Mann Robert Roney, 401 A.2d 1275. S. Major.

Karla J. Major vs. John MAY 1979. Kelleher, Weisberger, C.J., Joslin, Bevilacqua, Doris

Present: JJ. hus- were and Karla) (John ligitants Kelleher, J. of divorce decree 12, 1976, a final On and wife. August band Later, December on Court. the Fámily entered was had remarried in time was who at point John, of the first minor children the two custody actual physical

Case Details

Case Name: State v. Delahunt

Court Name: Supreme Court of Rhode Island

Date Published: May 24, 1979

Citation: 401 A.2d 1261

Docket Number: 78-40-C.A

Court Abbreviation: R.I.