Petition — Patriarca v. Taylor
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Supreme Court of the United States.
Octoser Term, 1976.
No. A-1072.
RAYMOND L. S. PATRIARCA,
PETITIONER,
Vv.
DONALD TAYLOR er au,
RESPONDENTS.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit.
Icnatius R. J. Piscrre.10,
Harvey Brower,
11 Lawrence Street,
Lawrence, Massachusetts 01840.
(617) 688-7997
ADDISON C. GETCHELL & SON, INC., THE LAWYERS’ PRINTER, BOSTON
Table of Contents.
Opinions below
Jurisdiction
Questions presented
Statute involved
Statement of the case
Reason for granting the writ
Conclusion
Appendix A—opinion and order of the United
States Court of Appeals for the First Circuit
denying certificate of probable cause
Appendix B—opinion and order of the United
States District Court for the District of Rhode
Island denying certificate of probable cause
Appendix C—opinion and order of the United
States District Court for the District of Rhode
Island denying habeas corpus relief
Appendix D—opinion and order of the Supreme
Court of Rhode Island denying a new trial
Appendix E—opinion and order of the Supreme
Court of Rhode Island affirming the conspiracy
conviction
Appendix F—28 U.S.C. 4 2253
Table of Authorities Cited.
Cases.
Ex parte Farrell, 189 F. 2d 540 (1st. Cir. 1951), cert.
den. Farrell v. O’Brien, 342 U.S. 839 (1951)
Giglio v. United States, 405 U.S. 150 (1972)
or wh WY Ww eH
11
13
62
li TABLE OF AUTHORITIES CITED
Glasser v. United States, 315 U.S. 60 (1942) 5
Glynn v. Donnelly, 485 F. 2d 692 (1st. Cir. 1973),
cert. den. 416 U.S. 957 (1974) 4
Napue v. Illinois, 360 U.S. 264 (1959) 6
Patriarca v. State, R.I. ; 329 A. 2d 186
(S. Ct. 1974) 2
Pettibone v. United States, 148 U.S. 197 (1893) 5
State v. Carsetti, 111 R.I. 642; 306 A. 2d 166 (1973) 7
State v. Giorgi, R.I. ———-; 339 A. 2d 268
(S. Ct. 1975) 5
State v. Lima, 113 R.I. 6; 316 A. 2d 501 (1974) 7
State v. Patriarca, 112 R.I. 14; 308 A. 2d 300 (S. Ct.
1973) 2
Thompson v. Louisville, 362 U.S. 199 (1960) 6
Townsend v. Sain, 372 U.S. 293 (1963) 5
United States v. Bradley, 455 F. 2d 1181 (1st. Cir.
1972), aff’d sub nom. Bradley v. United States,
410 U.S. 605 (1973) 5
CONSTITUTIONAL Provisions AND STATUTES.
United States Constitution, Fourteenth Amend-
ment 4, 6, 7
28 U.S.C. § 1254(1) 2
28 U.S.C. § 2253 2, 3
Supreme Court of the United States.
Ocroser Term, 1976.
No. A-1072.
RAYMOND L. S. PATRIARCA,
PETITIONER,
v.
DONALD TAYLOR er at,
RESPONDENTS.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit.
The petitioner prays that a writ of certiorari issue to
review the judgment of the United States Court of Ap-
peals for the First Circuit, entered in the above entitled
matter on March 15, 1976, denying the petitioner’s appli-
cation for a certificate of probable cause.
Opinions Below.
The opinion of the United States Court of Appeals for
the First Circuit denying the petitioner’s application for
a certificate of probable cause is unreported and is printed
in appendix A hereto.
The opinion of the United States District Court for
the District of Rhode Island denying the petitioner’s ap-
plication for a certificate of probable cause is unreported
and is printed in appendix B hereto.
2
The opinion of the United States District Court for the
District of Rhode Island denying the petitioner’s appli-
cation for habeas corpus relief is unreported and is printed
in appendix C hereto. |
The opinion of the Supreme Court of Rhode Island de-
nying the petitioner’s petition for a new trial is reported
as Patriarca v. State, R.1. , 329 A. 2d 186
(S. Ct. 1974), and is printed in appendix D hereto.
The opinion of the Supreme Court of Rhode Island
affirming the petitioner’s conviction is reported as State
v. Patriarca, 112 R.I. 14, 308 A. 2d 300 (S. Ct. 1973), and is
printed in appendix E hereto.
Jurisdiction.
The jurisdiction of this Court to review the case on a
petition for a writ of certiorari rests on 28 U.S.C. § 1254
(1).
The petitioner seeks review of the judgment of the
United States Court of Appeals entered on March 15, 1976.
By order of June 7, 1976, Justice Brennan granted a
30-day extension of the time in which to petition for cer-
tiorari, to and including July 13, 1976.
Questions Presented.
Whether or not a certificate of probable ¢ “se should
be granted in Miscellaneous no. 76-8027, styles “aymond
L. S. Patriarea, Petitioner v. Donald Taylor « ul. Re-
spondents.
Statute Involved.
The statutory provision involved in this matter is 28
U.S.C. § 2253, which statute is printed as appendix F
hereto.
3
Statement of the Case.
The petitioner was convicted on March 26, 1970 of con-
spiracy to commit murder. The jury was unable to reach
a verdict on two other indictments charging the petitioner
with being an access>ry to murder. On retrial of these
indictments the petitioner was found not guilty on June 4,
1972. The petitioner’s conspiracy conviction was affirmed
by the Supreme Court of Rhode Island by a written opin-
ion (appendix E) on July 20, 1973, reargument was de-
nied on September 26, 1973. On December 9, 1974, the
Supreme Court of Rhode Island, by a written opinion
(appendix D), denied the petitioner’s petition for a new
trial on the basis of newly discovered evidence. There-
after, the petitioner filed an application for a writ of
habeas corpus in the United States District Court for the
District of Rhode Island. The District Court, by a writ-
ten opinion (appendix C), denied the petitioner’s applica-
tion for habeas corpus relief on January 30, 1976. The
petitioner noticed his appea! on February 13, 1976 and
petitioned the District Court to issue a certificate of prob-
able cause in order to obtain appellate review of the
District Court’s denial of habeas corpus relief. On Feb-
ruary 27, 1976, the District Court indge, by a written
opinion (appendix B), refused to ison¢ the certificate of
probable cause. Thereafter the petitioner applied to the
United States Court of Appeals for the First Circuit for
a certificate of probable cause pursuant to 28 U.S.C. § 2253.
The Court of Appeals denied the petitioner’s application
for a certificate of probable cause by a written opinion
entered March 15, 1976 (appendix A).
4
The evidence developed at the petitioner’s two trials
below, which forms the basis of this petition, is summar-
ized in the opinion of the Supreme Court of Rhode Is-
land appearing in appendix D.
Reason for Granting the Writ.
The decision of the United States Court of Appeals for
the First Circuit denying a certificate of probable cause
is erroneous in that the petitioner made a substantial
showing of the denial of his federal constitutional rights
under the Fourteenth Amendment to the Constitution of
the United States.
The decision of the Court of Appeals denying a certifi-
cate of probable cause conflicts with its prior position
that such certificate should be denied only where a pe-
titioner makes no substantial showing of the denial of
a federal constitutional right. Glynn v. Donnelly, 485
F. 2d 692, 693 (1st Cir. 1973), cert. den. 416 U.S. 957
(1974); Ex parte Farrell, 189 F. 2d 540, 543 (1st Cir.
1951), cert. den. Farrell v. O’Brien, 342 U.S. 839 (1951).
The issues presented to the court below are as follows:
A. Newly discovered evidence strips the state convic-
tion of all evidential support, and the conviction is there-
fore a violation of the petitioner’s due process rights
under the Fourteenth Amendment to the Constitution of
the United States. At his first trial the petitioner was
convicted of conspiracy on the sole testimony of John
J. Kelley as to a single conspiratorial meeting April 6,
1968 in a restaurant parking lot. At the petitioner’s
second trial on the accessory indictments arising out of
this conspiratorial meeting, Kelley testified he had been
‘‘wrong’’ at the first trial as to the date and location
5
of the meeting. Kelley then testified the conspiratorial
meeting actually occurred on April 7, 1968 in a restaurant
doorway. Acting on this new evidence as to the date and
location of the alleged meeting, the petitioner introduced
evidence as to the physical appearance of the alleged
meeting place and Kelley’s whereabouts on April 7, 1968.
The petitioner also produced evidence on the location of
a motor vehicle allegedly used to transport Kelley to the
April 7, 1968 meeting. Kelley’s story was impeached,
and the petitioner was acquitted of both accessory charges.
The gravamen of a conspiracy charge is agreeing with
the intention of achieving a certain proscribed objective.
Pettibone v. United States, 148 U.S. 197 (1893); State v.
Giorgi, R.I. , 339 A. 2d 268 (S. Ct. 1975).
Kelley’s testimony as to the April 6, 1968 meeting was
the only direct evidence of the petitioner’s participation
in an unlawful agreement. All other evidence regarding
the petitioner was hearsay, the admission of which was
predicated on the petitioner’s participation in the April 6,
1968 meeting. Glasser v. United States, 315 U.S. 60, 74
(1942); United States v. Bradley, 455 F. 2d 1181, 1189
(1st Cir. 1972), affd. sub nom. Bradley v. United States,
410 U.S. 605 (1973).
The new evidence given by Kelley, the state’s primary
witness testifying on direct examination, that the April 6,
1968 meeting never occurred voids the sole basis of the
petitioner’s conviction. No proof exists of the petition-
er’s participation in an unlawful agreement.
Townsend v. Sain, 372 U.S. 293, 317 (1963), permits
relief by habeas corpus where new evidence bears on the
constitutionality of the applicant’s detention. The new
evidence here is not merely relevant to guilt, it precludes
guilt. A conviction and detention unsupported by evi-
dence—conspiracy without proof of agreement—is a vio-
6
lation of due process. Thompson v. Louisville, 362 U.S.
199, 206 (1960).
B. The state conviction, resting wholly on false, re-
canted testimony, is so fundamentally unfair that it con-
stitutes a violation of the petitioner’s due process rights
under the Fourteenth Amendment to the Constitution of
the United States. Since Kelley’s testimony that the pe-
titioner met with other co-conspirators on April 6, 1968
was the only direct evidence of an unlawful agreement,
the jury necessarily relied on this testimony to convict
the petitioner of conspiracy. Kelley testified at the peti-
tioner’s second trial that his prior testimony had been
‘‘wrong,’’ and that the April 6, 1968 meeting in the res-
taurant parking lot never took place.
False, recanted testimony est:.blished the single element
of the conspiracy charge against the petitioner.
It is a clear violation of due process for the prosecu-
tion to knowingly use false testimony to obtain a convic-
tion. Napue v. Illinois, 360 U.S. 264 (1959); Giglio v.
United States, 405 U.S. 150 (1972) (false testimony re-
garding promises of lenience in return for testimony).
It is no less a violation of due process for the court to
acquiesce in a conviction which false testimony alone sup-
ports.
‘‘Just as ‘Conviction upon a charge not made would
be sheer denial of due process,’ so it is a violation of
due process . . . to convict and punish a man with-
out evidence of his guilt’’ (footnote omitted). Thomp-
son v. Louisville, 362 U.S. 199, 206 (1960).
The petitioner’s conviction is unsupported by evidence of
guilt.
(. The state courts’ denials of the petitioner’s motions
for a new trial were so clearly erroneous as to deny the
7
petitioner due process of law guaranteed by the Four-
teenth Amendment to the Constitution of the United States.
When Kelley, the state’s primary witness at both trials,
recanted his original testimony as to the April 6, 1968
meeting and testified the meeting occurred on April 7,
1968 at a different location, he provided the petitioner
with new evidence regarding the alleged meeting. Only
in light of this new evidence did Kelley’s activities on
April 7, 1968 and the physical appearance of the meeting
place become relevant.
The critical import of this new evidence regarding the
changed date and place of the alleged conspiratorial meet-
ing is neither speculative nor hypothetical. The state pro-
ceeded with the petitioner’s second trial, on accessory in-
dictments, on the theory that the conspiratorial meeting
occurred ia a restaurant doorway on Apri! 7, 1968. The
petitioner introduced evidence completely discrediting Kel-
ley’s story, and the petitioner was acquitted of both ac-
cessory charges.
The state courts’ conclusion that the new evidence—
testimony of the primary prosecution witness and evi-
dence derived therefrom on the sole issue in the con-
spiracy trial—was not credible and probably would not
affect the verdict in a new trial is so clearly erroneous
and is an abuse of discretion under state law, State v.
Carsetti, 111 R.I. 642, 306 A. 2d 166 (1973); State v. Lima,
113 R.I. 6, 316 A. 2d 501 (1974), as to constitute a denial
of due process.
8
Conclusion.
Therefore, the petitioner prays that his petition for a
writ of certiorari be granted, that the judgment and order
of the United States Court of Appeals for the First Cir-
cuit be reversed, and that the issuance of a certificate of
probable cause be directed.
Respectfully submitted,
IGNATIUS R. J. PISCITELLO,
HARVEY BROWER,
11 Lawrence Street,
Lawrence, Massachusetts 01840.
(617) 688-7997
Counsel for Petitioner.
9
Appendix A.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Mise. No. 76-8027.
RAYMOND L. S. PATRIARCA,
Petitioner,
v.
DONALD TAYLOR, et al.,
Respondents.
MEMORANDUM AND ORDER
Entered March 15, 1976
Before Coffin, Chief Judge,
McEntee and Campbell, Circuit Judges.
On Petition for Certificate of Probable Cause
Petitioner seeks a certificate of probable cause to ap-
peal the district court’s denial of habeas relief. The pe-
tition for a writ of habeas corpus alleged error on the
part of the state trial judge in denying his motion for
new trial on the basis of newly discovered evidence.
The alleged new evidence included testimony, subse-
quent to petitioner’s trial, by the key prosecution witness
that a critical meeting with petitioner had taken place
on April 7, 1968, rather than on April 6, 1968, as the
10
witness had testified at petitioner’s trial. A witness was
said to be available to establish that the key prosecution
witness was in another community on the evening of
April 7, 1968 and therefore could not have met with pe-
titioner. Additional alleged evidence would have tended
to impeach the key prosecution witness’ testimony as to
a car he had used and the precise spot where a conversa-
tion had taken place.
The state judge, who had presided over petitioner’s
trial, heard argument which noted that even in the trial
the key witness had mentioned both dates. The court
noted that some of the new evidence would be open to
attacks on credibility and concluded that even though the
proffered evidence might not be wholly cumulative, ‘‘the
matters presented here today would [not] control on ma-
terial issues, . . . or even come close to it.’’
For the reasons set forth by the district court in its
opinion and order of January 30, 1976, we see no substan-
tial constitutional issue.
The petition is denied.
By the Court,
/s/ DANA H. GALLUP
Clerk
[Cert. copy, Clerk, U.S.D.C, R.I.; ce: Messrs. Murphy,
Brower and Berson. ]
il
Appendix B.
DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF RHODE ISLAND
Civil Action No. 750027
RAYMOND L. S. PATRIARCA
V.
DONALD TAYLOR, et al.
MEMORANDUM ON CERTIFICATE OF
PROBABLE CAUSE
February 27, 1976
This court by opinion and order on January 30, 1976,
denied petitioner’s application for habeas corpus relief,
sought under 28 U.S.C. 2254 and petitioner noticed his
appeal on February 13, 1976.
The instant question before The Court is whether a cer-
tificate of Probable Cause should issue as required pur-
suant to 28 U.S.C. 2253 and Rule 22(b), F.R.A.P. so as
to entitle petitioner to an appellate review of this Court’s
denial of habeas relief.
Here petitioner as his grounds for habeas relief urges
that newly acquired evidence discovered after his trial
and conviction for conspiring to commit murder so under-
mined the basis for his conviction as to amount to a de-
nial cf due process under the Fourteenth Amendment.
So much of the question of newly discovered evidence
was considered by the R. I. Courts and it was resolved
against petitioner in denying his motion for new trial.
12
This Court’s opinion of January 30, 1976, sets forth its
reasons for the non-availability of habeas relief for this
petitioner.
The state trial judge considered, as he has discretion
to do, the after-acquired evidence — that the key prose-
cution witness met with petitioner and other co-conspira-
tors on Sunday, April 7, 1968. At Patriarca’s trial the
same witness testified that the meeting took place the pre-
vious day, Saturday, April 6, 1968. In the exercise of his
discretion the trial judge concluded that the evidence re-
lied upon would probably not lead to a different outcome
in a retrial.
Given this record and the contentions of petitioner urg-
ing in argument questions of constitutional dimensions,
I do not find that questions of constitutional magnitude
are fairly raised, to provide a basis for habeas relief.
The Court entertains no doubt as to the correctness
of its ruling adverse to the petitioner. I conclude, as I
must, that the instant appeal is without substantial merit.
Accordingly, and for the reasons set forth in this Court’s
opinion of January 30, 1976, the Court declines to issue
a certificate of Probable Cause.
ENTER:
/s/ Raymond J. Pettine
Chief Judge
February 3/1/76
13
Appendix C.
DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF RHODE ISLAND
Civil Action No. 750027
RAYMOND LS. PATRIARCA
v.
DONALD TAYLOR, et al.
OPINION AND ORDER
January 30, 1976
The petitioner, Raymond L.S. Patriarca, was convicted
on March 28, 1970, by a jury in a Rhode Island Superior
Court for conspiring to commit murder. His conviction
was affirmed by the Rhode Island Supreme Court, State
v. Patriarca, 112 R.I, 14, 308 A.2d 300 (1973), and after
serving part of a 10-year sentence, the petitioner was re-
leased on parole on January 9, 1975. Patriarca now brings
this petition for habeas corpus on the ground that new
evidence, discovered after his trial and conviction, so un-
dermines the basis for that conviction as to amount to
a denial of due process under the Fourteenth Amendment.
Respondents concede that the petitioner is ‘‘in eustody’’
within the meaning of 28 U.S.C. §2254, and, because pe-
titioner’s motions for new trial before both the state Su-
perior Court and Supreme Court were denied, this Court
ruled on April 3, 1975, that the petitioner has exhausted
state judicial remedies as required by 28 U.S.C. §2254(b).
A federal court can entertain an application for a writ
of habeas corpus in behalf of a person in state custody
‘‘only on the ground that he is in eustody in violation of
the Constitution or laws or treaties of the United States.’’
28 U.S.C. §2254(a). Thus, the initial question this Court
14
must face is whether the denials by the Rhode Island
state courts of the petitioner’s motions for a new trial
based on newly discovered evidence were founded on er-
rors of constitutional dimension.
Under ordinary circumstances, an alleged error in a
state trial court’s denial of a motion for a new trial
based on newly discovered evidence is of insufficient con-
stitutional magnitude to provide a basis for a habeas
corpus petition. Alleged errors in such cases appear to
fall into the same category as alleged errors in trial pro-
ceedings, which ‘‘cannot be reviewed by habeas corpus un-
less there has been a deprivation of Constitutional rights
such as to render the judgment void, or to amount to a
denial of due process.’’ Bizup v. Timsley, 316 F.2d 284,
285 (10th Cir. 1963) (citations omitted). In Townsend
v. Sain, the United States Supreme Court categorically
stated that an allegation of newly discovered evidence is
relevant to a habeas corpus petition only if such evidence
‘*bear[s] upon the constitutionality of the applicant’s
detention; the existence merely of newly discovered
evidence relevant to the guilt of a state prisoner is
not a ground for relief on federal habeas corpus.”’
372 U.S. 293, 317 (1963).
In the case at bar, the petitioner alleges that newly dis-
covered evidence sheds new light on the testimony of the
key prosecution witness, thus totally undermining the
basis of his conviction. At Patriarea’s March, 1970 trial,
according to the petitioner, a witness named John J. Kel-
ley testified that he met with the petitioner and the other
alleged conspirators on Saturday, April 6, 1968. This
was the only direct evidence that Patriarca ever met with
the other conspirators in relation to the charges against
him, and Kelley’s testimony was thus a critical element
15
in the prosecution’s case. At a later trial on several
other indictments arising out of this same conspiracy,
however, held in June of 1972, this same witness testified
that the meeting between Partiarca and the other conspir-
ators actually occurred on Sunday, April 7, 1968. The
petitioner claims that if this testimony had been pre-
sented at his first trial, he could have produced a wit-
ness to testify that he was actually somewhere else at
the time of the purported April 7th meeting. This testi-
mony, he argues, would have resulted in a different ver-
dict from the jury. It seems clear, however, that the
newly discovered evidence the petitioner is relying on is
strictly relevant to his guilt or innocence, and such a
claim standing alone cannot support a habeas corpus ac-
tion. Townsend v. Sain, supra.
The petitioner argues, on the other hand, that constitu-
tional standards of due process are not satisfied where the
false testimony of a witness could reasonably have affected
the jury’s verdict. The line of cases the petitioner has cited
in support of this contention, however, is not applicable
to the instant case. In Napue v. Illinois, 360 U.S.
204 (1959), the Supreme Court held that it was a viola-
tion of due process for a prosecutor to knowingly let his
witness lie and not correct the false testimony. Similar
holdings can be found in Mooney v. Holohan, 294 U.S.
103 (1935), and Giglio v. United States, 405 U.S. 150 (1972).
In all these cases, the prosecution was knowingly attempt-
ing to take advantage of false testimony in order to ob-
tain a conviction. No such allegation has been made in
this case, and no facts have been offered into evidence
which would support one. A review of the transcripts
reveals that the witness Kelley was confused as to the
correct date of the meeting of the conspirators even at
the first trial, and the difference in his testimony at the
16
two trials seem more a result of faulty memory than of
conscious misrepresentations. Even if it could be shown
that Kelley perjured himself at the first trial, the only
federal courts that appear to have addressed the ques-
tion hold that newly acquired evidence that a witness per-
jured himself does not constitute a basis for habeas corpus
relief unless the prosecution knowingly used the perjured
testimony. E.g. Jackson v. United States, 384 F.2d 375
(5th Cir. 1967); Purkhiser v. Wainwright, 338 F.Supp.
369 (S.D.Fla. 1971), aff’d. 455 F.2d 506 (5th Cir. 1972).
The petitioner has cited no authorities justifying a con-
trary result.
Of course there would be a constitutional basis for this
habeas corpus petition if it could be shown that the state
courts’ rulings denying the petitioner’s motions for a new
trial were such abuses of discretion as to amount to de-
nials of due process. There is no support for such a
conclusion in the present case, however. It must be noted,
first of all, that the federal courts are generally reluctant
to overturn trial courts’ denials of motions for new trials
As the Court of Appeals for this Cireuit recently stated:
‘‘Even in reviewing denials of motions for new trials
in federal courts, we recognize a wide degree of dis-
cretion on the part of the trial judge. It is a remedy
which is ‘sparingly used.’ ”’
Sawyer v. Mullaney, 510 F.2d 1220, 1221 (1st Cir.
1975).
Under Rhode Island law, the issues posed by motions
for new trials are for the determination of the trial judge
in the exercise of sound judicial discretion in the light
of certain relevant criteria. State v. Lima, 316 A.2d 501
(1974). Key criteria for evaluating claims based on newly
discovered evidence are the credibility of the evidence
17
and whether the new evidence would probably change the
verdict at a new trial. State v. Corsetti, 111 R.I. 642
(1973). These are two of the same criteria that federal
judges are tc weigh when similar motions are made in
federal criminal cases under Fed.R.Crim.P. 33. See Edgar
v. Finley, 312 F.2d 533 (8th Cir. 1963); ‘‘ Developments
in the Law — Federal Habeas Corpus,’’ 83 Harv.L.Rev.
1038, 1128 (1970).
In the instant case, a full hearing on the merits of pe-
titioner’s new evidence allegations was conducted in the
Superior Court before the same judge who had presided
over Patriarca’s first trial, and in the exercise of his
discretion, Judge Bulman concluded that the evidence re-
lied on would probably not lead to a different outcome
in a retrial. A review of the record in this case indicates
no basis for a finding that Judge Bulman’s conclusion
was an abuse of discretion or clearly erroneous. Judge
Bulman was in the best position to evaluate the credibil-
ity of the testimony offered and to judge the impact the
new evidence could have in the context of the entire rec-
ord, and no allegation has been made that he was in any
way biased or reckless in the exercise of his judgment.
The petition for habeas corpus is hereby denied.
By Order,
Darrell E. Doane
Deputy Clerk
Enter:
/s/ Raymond J. Pettine
Chief Judge
January 30, 1976
18
Appendix D.
RAYMOND LS. PATRIARCA
v.
STATE
No. 74-44-M.P.
Filed
Dec. 9
1974
OPINION
JOSLIN, Justice.
The petitioner, Raymond L. 8. Patriarca, was tried be-
fore a judge and jury in the Superior Court on three in-
dictments. One charged him with conspiracy to murder,
and two with being an accessory to a murder. The jury
returned a guilty verdict on the conspiracy charge, but
failed to agree on the accessory charges. Another jury
at a second trial, however, found the petitioner not guilty
of the accessory charges. The petitioner’s motion for a
new trial on the conspiracy indictment was denied, and
on August 31, 1970, he was sentenced to a term of 10
years. On appeal we sustained that conviction. State v.
Patriarea, 112 R.I. 14, 308 A.2d 300 (1973). Thereafter,
the petitioner moved for a new trial on the conspiracy
charge on the ground of newly discovered evidence. In-
stead of appealing from the Superior Court’s denial of
that motion, the petitioner, about 314 months thereafter,
filed an original petition in this court asking us on the
basis of the same newly discovered evidence to order the
Superior Court to grant him a new trial. We denied the
state’s motion to dismiss the petition, Patriarca v. State,
R.I., 319 A.2d 102 (1974), and then heard the matter on
briefs and oral arguments.
19
The petitioner’s claim pertains essentially to John J.
Kelley’s testimony upon which the state relied primarily
at both the first and second trials. While the parties do
not fully agree on the effect of that testimony, we view
it, arguendo, in the light most favorable to petitioner.
Thus, it appears that at the first trial Kelley testified that
the alleged conspiracy was hatched on Saturday, April 6,
1968, in a Providence automobile parking lot across the
street from the Gaslight Restaurant. At the second trial,
however, Kelley told a different story. He said then that
the alleged conspiratorial meeting occurred a day later,
on Sunday, April 7, 1968, in the doorway in front of the
Gaslight Restaurant, and that there was nothing unusual
about the Gaslight’s appearance.
The petitioner now argues that these changes in Kel-
ley’s testimony enabied him at his second trial to dis-
credit Kelley with testimony to the effect that he (Kelley)
was in Boston, Massachusetts, on the evening of April 7,
1968. Further, petitioner claims he was able to rebut
Kelley’s testimony that there was nothing unusual about
the Gaslight’s appearance by introducing evidence that
prior to the alleged meeting the restaurant had been de-
stroyed by fire, and that on April 7th, its doors and win-
dows were ‘‘boarded up’’ and the sidewalk and street in
front of the restaurant were blocked off by wooden horses
and ropes.
In addition, petitioner directs our attention to Kelley’s
testimony at the first trial that he had been driven to
the alleged meeting place by Frank Vendituoli in the
latter’s 1967 green Chrysler. He argues that he was un-
able to rebut that testimony at the time because Vendi-
tuoli was then a fugitive from justice whose whereabouts
were unknown. By the time of the second trial, however,
Vendituoli had bee. apprehended, and testified that his
20
automobile was unavailable to transport Kelley to Provi-
dence on April 7, because it was then in an automobile
repair shop undergoing extensive body repairs.
In substance, petitioner now contends that the changes
in Kelley’s testimony together with the new evidence to
which those changes led, undoubtedly contributed to his
second trial acquittals. It is not unreasonable, he con-
tinues, to believe that the presentation of that evidence
at a new trial on the conspiracy charge might alse result
in a not guilty verdict. He concludes that in these cir-
cumstances G.L.1956 (1969 Reenactment) §§ 9-21-5 and 9-
21-6 contemplate that he be afforded an opportunity io
present that evidence at a new trial.
Before we come to grips with these contentions, we
note that just as we have accepted petitioner’s version of
the relevant testimony for the limited purposes of these
proceedings, so, too, do we now for the same purpose as-
sume, without deciding, that petitioner is correct in his
assertions that (1) § 9-21-5 applies to criminal as well
as to civil matters; (2) the applicable version of § 9-21-6
is that which was in effect when petitioner was tried
in 1970 rather than that which became operable when
P.L.1973, ch. 204, sec. 1 was enacted; and (3) the limita-
tion period within which petitioner was required to seek
relief under either § 9-21-5 or § 9-21-6 began to run on
July 20, 1973, when this court sustained petitioner’s con-
viction on appeal, rather than on August 31, 1970, when
the Superior Court imposed sentence.
But even granted these favorable assumptions concern-
ing the relevant facts and the operable law, petitioner
cannot prevail. First, § 9-21-5 does not contemplate the
remedy sought. Insofar as here pertinent, that section
provides that this court may, at any time within one year
after judgment, order a new trial in the Superior Court
21
for any party whose trial in that court ‘‘was not full,
fair, and impartial.’’ While we have not heretofore pre-
cisely delineated the criteria for measuring whether a
trial has fallen short of the required standard, we have
said that mere error by the trial court which is correct-
able on appeal does not warrant a new trial on those
grounds. Campbell v. Campbell, 29 R.I. 428, 71 A. 1058
(1909); Bristow v. Nichols, 19 R.I. 719, 37 A. 1033 (1897).
In this case the Superior Court’s denial of petitioner’s
motion for a new trial on the ground of newly discovered
evidence, if deemed erroneous by petitioner, could have
been appealed. This, therefore, was a ruling which, if
erroneous, would have been correctable on appeal. The
decision in Chapin v. Stone, 32 R.I. 311, 79 A. 787 (1911),
clearly holds that § 9-21-5’s precursor was an inappro-
priate procedural route for seeking a new trial on the
ground of newly discovered evidence. We see no sound
reason, nor has any been suggested, why that case is not
dispositive.’
Second, petitioner’s contention that § 9-21-6 authorizes
us to grant the relief he seeks completely misconceives
the purport of that section. Instead, insofar as here rele-
vant, § 9-21-6 provides only that even though the time or-
dinarily fixed for the filing of a motion on the ground of
1The Supreme Court has said that due process will not tole-
rate the prosecution’s knowing reliance upon false testimony or
its suppression of material evidence favorable to the accused
upon request. Miller v. Pate, 386 U.S. 1, 87 8.Ct. 785, 17 L.Ed.2d
690 (1967); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17
L.Ed.2d 737 (1967); Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959) ; Mooney v. Holohan, 294 U.S.
103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). The petitioner does not
contend-—and we are not otherwise led to believe—that the newly
discovered evidence here asserted is sufficient to support a con-
stitutional claim to a new trial based upon these decisions.
22
newly discovered evidence may have elapsed, this court
may nonetheless, where appropriate, permit a party to
file such a motion in the Superior Court.
To grant that relief on this petition, however, would
be both improper and undoubtedly futile. This is so be-
cause the Superior Court has already heard and denied
petitioner’s motion for a new trial and that motion was
based upon the same newly discovered evidence asserted
here. In short, petitioner has already been afforded all
the benefits to which he could be entitled under § 9-21-6.
Nothing in the statute suggests that he merits a second
hearing in the same forum on the identical subject matter.
Michon v. Williams, 97 R.I. 74, 76-77, 195 A.2d 751, 752
(1963) ; Caleagni v. Cirino, 62 R.I. 49, 51, 2 A.2d 891, 892
(1938).
The petitioner was obviously dissatisfied when his mo-
tion for a new trial on the ground of newly discovered
evidence was denied by the Superior Court, and he wanted
this court to review that ruling. The proper way for him
to have obtained that review was by appealing from that
ruling, and not by petitioning this court directly for a
new trial under §¢ 9-21-5 and 9-21-6. Both of those pro-
visions are inappropriate for the relief he seeks.
For the reasons indicated, the petition is deficient and
must be denied and dismissed.
PAOLINO, J., did not participate.
23
Appendix E.
STATE
vs.
RAYMOND L. S. PATRIARCA
No. 1566 - Ex. & ce.
Filed
July 20
1973
ROBERTS, Chief Justice.
It appears that at about 2:30 on the afternoon of Sat-
urday, April 20, 1968, Rudolph Marfeo and Anthony Melei
were shot to death while shopping in a market on Pocasset
Avenue in the city of Providence. Apparently, it was
Marfeo’s custom to shop for groceries in that market on
Saturday afternoons, and while he and Melei were in
the market two masked gunmen entered and shot them
both.
Thereafter, on June 2, 1969, as a result of these homi-
cides three indictments were returned by the grand jury.
Indictment No. 69-769 charged the appellant here, Ray-
mond L. 8. Patriarea, with conspiring to murder Rudolph
Marfeo. Ohers named in that indictment were Maurice
R. Lerner, Robert E. Fairbrothers, John Rossi, and Ru-
dolpho G. Sciarra. In Indictment No. 69-767 the appel-
lant here and Sciarra were charged with being accessories
to the murder of Marfeo, while Lerner, Fairbrothers, and
Rossi were charged with the murder of Marfeo. In In-
dictment No. 69-768 the appellant here and Sciarra were
charged with being accessories to the murder of Anthony
Melei, while Lerner, Fairbrothers, and Rossi were charged
with Melei’s murder.
24
The five defendants were tried jointly on all three in-
dictments. With respect to Indictment No. 69-767, the
jury found Lerner guilty of murder but returned no ver-
dict against the other four defendants. In Indictment
No. 69-768 the jury again found Lerner guilty of murder
but returned no verdict against the other defendants. In
Indictment No. 69-769 all five defendants were found guilty
of the conspiracy charge. The defendant Patriarca, the
appellant here, is now prosecuting a bill of exceptions.’
The state relied primarily on the testimony of John
J. Kelley of Watertown, Massachusetts, who testified after
he had been granted immunity from prosecution. Kelley
testified that in the spring of 1968 he was approached
by defendant Lerner in Boston, who asked Kelley to come
to Providence to plan an escape route from the market
where it was intended that Marfeo be shot. Lerner ex-
plained that Marfeo was interfering with Patriarca’s
gambling operation in Providence and Patriarca wanted
him killed. A day or two after that conversation Kelley
and Lerner traveled from Boston to the Holiday Inn in
Seekonk, Massachusetts. There, Kelley testified, he en-
gaged in conversation with Sciarra, Lerner, and two in-
dividuals identified during the trial only as Richard Roe
‘The instant defendant, Raymond L. S. Patriarea, was again
tried on Indictments 69-767 and 69-768, each charging him with
being an accessory to murder, and after trial on June 4, 1972,
the jury returned a verdict of not guilty with respect to each
indictment. We consider in this opinion only the exceptions
of defendant Patriarca that are pertinent to his appeal from
his conviction under Indictment No. 69-769 for conspiracy to
murder. This is not to say that our rulings here do not dis-
pose of similar exceptions taken by co-defendants. We have
already noted that after nearly three days of deliberation the
jury failed to return verdicts against this defendant under In-
dictments Nos. 69-767 and 69-76, in which he was charged with
being an accessory to each of the murders, and consequently the
jury was dismissed by the trial justice.
25
and John Doe concerning the proposed shooting of Marfeo.
Later that day Kelley visited with Richard Roe and Lerner
the market area where the shootings later occurred and
then returned to Boston with Lerner.
The following day Kelley drove to the market area
once alone and then for a second time accompanied by
Roe and Lerner. That evening he returned to Boston
with Lerner. He further testified that he went to New
York where he purchased face masks. At his home in
Watertown he ‘‘cut down’’ a shotgun which he and Lerner
later delivered, along with the masks, to Doe in the Holli-
day Inn in Seekonk.
Kelley further testified that he had returned to a room
occupied by Roe at the motel in the company of Lerner
on Friday evening, April 5, 1968. There Sciarra, Doe,
and Roe participated in a conversation. On the follow-
ing day, a Saturday, Kelley and Roe left the motel and
drove to a cafe about one-half mile from the market.
Kelley’s car which was to be used in the ‘‘get away”’
was left in the parking lot of the cafe. However, later
at the motel Lerner told Kelley that they had gotten to
the market too late, just as Marfeo was leaving.
Later Doe suggested to Kelley that a different place
be found to leave the stolen car which was to be used
in going to and leaving the market. Kelley and Roe then
went out looking for a more suitable place to leave the
stolen car, concluding that it should be left at the Triggs
Golf Course in Providence. On the following evening,
April 7, 1968, Kelley, Lerner, Sciarra, Roe, and Doe
allegedly met with defendant Patriarca in front of an
eating place in Providence known as the Gaslight Restau-
rant. According to Kelley’s testimony, Patriarca, upset
over the delay, said: ‘‘I don’t want to hear any stories,
I just want him [Marfeo] killed.’’
26
Kelley then testified that on the evening of Friday,
April 12, he and Lerner drove from Boston to the motel
in Seekonk, where they met Doe and Roe. According to
Kelley, the killings were to take place on the following
day. However, the event was postponed for reasons not
material here. On the following Friday, April 19, Kelley
and Lerner returned to the motel, once again meeting with
Roe and Doe. Kelley said that he stayed at the motel
room with Roe, while Lerner, Fairbrothers, and Rossi
spent the night at Doe’s house.
The following morning Kelley and Roe left the motel
and drove to Providence, where Kelley left his own car
at the cafe parking lot and drove with Roe to the golf
eourse. There, Kelley testified, he saw a maroon Buick
sedan parked at the far corner of the parking lot. Several
hours later he saw Doe drive a vehicle into the parking
lot, and three men immediately got out of that vehicle
and drove off in the maroon Buick. According to Kelley,
these men were Rossi, who got into the driver’s seat,
Lerner, who got into the rear seat, and Fairbrothers, who
sat in the front passenger’s seat. Roe then drove Kelley
back to the area of the cafe and Kelley got out of the
ear. Kelley then saw Lerner shooting out of a side street
in the ‘‘get-away’’ car. Roe followed Lerner, while Kel-
ley walked to downtown Providence. There he took a
taxi to a diner in East Providence where he was later
picked up by Roe, who drove back to the motel. In the
motel room Lerner indicated that the weapons had been
left in the ‘‘get-away’’ car but had been ‘‘wiped clean.’’
Kelley testified further that a few months after the inci-
dent he, Rossi, Lerner, and Fairbrothers met together in
Methuen, Massachusetts. At thet time Lerner allegedly
said to Kelley: ‘‘He had always thought I [Kelley] was a
very good driver, but no one could drive any better than
27
Johnny [Rossi] did, the way he drove up to the store and
afterwards.’’ Fairbrothers allegedly responded: ‘‘No one
could get out of the car any faster than Lerner.”’
I. Jury Selection
We turn, first, to defendant’s contention that because of
prejudicial publicity concerning him, he was deprived of a
fair trial by an impartial jury. As we understand it, the
thrust of defendant’s argument is that publicity concerning
his role in organized crime was of such torrential propor-
tions that he is not required to isolate the prejudice that
resulted from it. He urges that it was so pervasive in the
community as to make it impossible for any member of the
community exposed to it to avoid forming an opinion con-
cerning his guilt that would be irreversible and, therefore,
deprived him of a fair trial in a fair tribunal. ‘‘A fair trial
in a fair tribunal is a basic requirement of due process.
Fairness of course requires an absence of actual bias in the
trial of cases. But our system of law has always endeavored
to prevent even the probability of unfairness.’’ (emphasis
added) In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625,
99 L.Ed. 942, 946 (-955).
The defendant refers us to Estes v. Texas, 381 U.S. 532,
85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), as a case involving
such extraordinary publicity. There is no question but that
the Court in that case concluded that circumstances exist in
which a showing of actual prejudice is not a prerequisite to
a reversal. The Court said: ‘‘It is true that in most cases
involving claims of due process deprivations we require a
showing of identifiable prejudice to the accused. Neverthe-
less, at times a procedure employed by the State involves
such a probability that prejudice will result that it is deemed
inherently lacking in due process.’’ Id. at 542-543, 85 S.Ct.
at 1632-1633, 14 L.Ed.2d at 550.
28
In Estes the Court clearly recognized the occurrence of
exceptional or unusual situations wherein pervasive and
massive publicity will in all probability result in so preju-
dicing the defendant as to deprive him of a fair trial. In
Estes the publicity was so intense and of such a character
that the Court concluded that it would implant in the minds
of prospective jurors an irreversible opinion as to the de-
fendant’s guilt.
The reasoning that led the Court to such a conclusion is
made in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961). The Court talked about a disclosure of a ‘‘pat-
tern of deep and bitter prejudice’’ shown to be present in
the community, usually through publicity of one form or an-
other concerning the defendant’s activities. The Court said:
‘‘With such an opinion permeating their minds, it would be
difficult to say that each could exclude this preconception of
guilt from his deliberations. The influence that lurks in an
opinion once formed is so persistent that it unconsciously
fights detachment from the mental processes of the average
man.’’ Id. at 727, 81 S.Ct. at 1645, 6 L.Ed.2d at 759.
The cases to which defendant refers us in support of his
position all relate to situations marked by unusual, exten-
sive, and prejudicial publicity concerning a defendant. The
existence of such exceptional situations was conceded by
Justices Clark and Harlan in their dissenting opinion in
Rideau v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1420,
10 L.Ed.2d 663, 666 (1963). They recognized that adverse
publicity may ‘‘* * * in unusual circumstances, fatally in-
fect a trial when it enters the courtroom indelibly imbedded
ia the minds of the jurors.’’ Jd. at 730, 83 S.Ct. at 1421,
10 L.Ed.2d at 667. The question that confronts us, then, is
whether the publicity in the instant case was so intense and
pervasive as to compel by its nature or character the con-
clusion that jurors who had been exposed to it would form
opinions as to defendant’s guilt that would preclude their
determining that issue on the evidence developed in the
29
ease. We think not. It was not the kind of publicity, despite
its massive dissemination, that would have the effect con-
templated in Estes.
In the first place, the publicity here was not generated
and disseminated as a result of defendant’s being charged
with this crime nor directed to this trial. It had accrued
over a period of years as a natural consequence of the noto-
riety acquired by defendant because of his purported par-
ticipation in the activities of and leadership in organized
crime in New England. Nothing in the record discloses that
it was initiated by the prosecution or the news media just
prior to or during the trial in a design to flood the com-
munity with rumors of defendant’s connection with the
crime. Neither was there any dissemination to the public
through the press, radio, or television of admissions or con-
fessions made by defendant. It is our opinion that the con-
currence of at least some of these factors must be shown to
establish the possibility of irreversible pre‘udice in the
minds of the jurors and, therefore, to deprive defendant of
due process. Patriarca v. United States, 402 F.2d 314, 315-
318 (1st Cir. 1969). An examination of the federal cases to
which we have been referred by defendant’s brief persuades
us that one or more of such factors are a prerequisite to the
establishment of the irreversible prejudice generated by the
publicity.”
“Some such factors have been specifically identified by the Su-
preme Court: the broadcasting over television of out-of-court in-
criminating statements made to the sheriff, Rideau v. Louisiana, 373
U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) ; publication of testi-
mony given at a recent trial incriminating the defendants, United
States v. Dioguardi, 147 F.Supp. 421 (S.D.N.Y.1956) ; intensive
publication of testimony given at congressional hearings involving
an alleged scandal in which the defendant was involved, Delaney
v. United States, 199 F.2d 107 (1st Cir. 1952) ; widespread publica-
tion of information concerning the defendant that had been ex-
eluded from or would be inadmissible in evidence, Marshall v.
United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).
30
Absent such unusual publicity, the fact that a prospective
juror has knowledge concerning a case does not necessarily
require his disqualification if the court, on inquiring, is satis-
fied that he is capable of standing indifferent and of render-
ing a decision based on the evidence developed at the trial.
In Irvin the Court made this view clear. There the Court
said: ‘‘It is not required, however, that the jurors be totally
ignorant of the facts and issues involved. In these days of
swift, widespread and diverse methods of communication,
an important case can be expected to arouse the interest of
the public in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some im-
pression or opinion as to the merits of the case. This is
particularly true in criminal cases. To hold that the mere
existence of any preconceived notion as to the guilt or in-
nocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality would
be to establish an impossible standard. It is sufficient if
the juror can lay aside his impression or opinion and ren-
der a verdict based on the evidence presented in court.’’
Irvin v. Dowd, supra at 722-723 of 366 U.S. at 1642-1643 of
81 S.Ct. at 756 of 6 L.Ed.2d. See also the dissenting opinion
of Justices Clark and Harlan in Rideau v. Louisiana, supra.
This rule, however, does not relieve the trial court of
the necessity for determining whether a juror does,
in fact, stand indifferent. The adoption of such a rule
‘** * * cannot foreclose inquiry as to whether, in a given
case, the application of that rule works a deprivation of the
prisoner’s life or liberty without due process of law.’’
Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86
L.Ed. 166, 180 (1941). In Jrvin the Court went on to point
out that the burden of proof as to the existence of prejudice
is on the challenger and is a question of mixed law and fact.
There the Court, quoting from Reynolds v. United States,
98 U.S. 145, 157, 25 L.Ed. 244, 247 (1878), said: ‘‘ ‘Unless
31
he shows the actual existence of such an opinion in the
mind of the juror as will raise the presumpticn of partiality,
the juror need not necessarily be set aside * * *.’’’ Irvin v.
Dowd, supra at 723 of 336 U.S., at 1643 of 81 S.Ct. at 756
of 6 L.Ed.2d.
The application of these constitutional principles to the
facts leaves the duty of adjudication with the trial justice,
and his finding on the intensity of the prospective juror’s
opinion should not be set aside unless the error is manifest.
Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed,
1021 (1910); Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 21, 31
L.Ed. 80 (1887) ; Hopt v. Utah, 120 U.S 430, 7 S.Ct. 614, 30
L.Ed. 708 (1887).
The defendant urges that it was error for the trial jus-
tice to refuse to inquire whether any of the prospective
jurors had read certain specified books. Counsel for defend-
ant asserted that in such books, ‘‘Mr. Patriarca is men-
tioned by name extensively.’"** We cannot agree that the
trial justice erred in refusing to conduct such an inquiry.
In the first place, defendant did not show that such books
constituted a potent source of prejudice to defendant. It is
not established that they were anything more than the usual
‘*notboilers’’ published concerning those whose activi*is
arouse a public curiosity. However, the trial justice, in our
opinion, conducted an exhaustive voir dire. The transcript
discloses that he inquired of prospective jurors individually
the extent to which they had acquired information con-
cerning defendant from what they had read or heard. He
® The books to which the defense referred specifically are ‘‘The
Godfather,’’ ‘‘Tue Valachi Papers,’’ ‘‘Theft of a Nation,’ and
‘*The Grim Reaper,’’ all of which purport to disclose the activities
and the identity of certain organizations and individuals possessed
of a powerful status in organized crime in this country.
32
also inquired whether this information would prevent them
form reaching a verdict based solely upon the evidence de-
veloped at the trial, and he was assured that they could
reach such a verdict. We are unable to conclude that in
these circumstances his refusal to make the specific inquiry
requested was error.
The defendant has directed our attention also to the fact
that two of the jurors on the panel had disclosed on the
voir dire that they had some knowledge of the prior trial
and conviction of defendant in Boston on a criminal charge.
The record discloses that defendant had challenged each of
these jurors for cause on the voir dire, which challenge had
been overruled. The defendant, conceding that his peremp-
tory challenges were not exhausted, failed to use any to dis-
miss those challenged jurors. He now contends that he was
prejudiced by the refusal of the court to disqualify these
jurors.
The burden of establishing the partiality of these jurors
was on defendant. He has not, in our opinion, met that
burden. While we find no error in the refusal to disqualify
the challenged jurors, any objection is deemed waived where
defendant’s peremptory challenges remain unexhausted. In
State v. Eaton, 19 Ohio St.2d 145, 149, 249 N.E.2d 897, 900
1969), the court said: ‘‘A party cannot complain of preju-
dicial error in the overruling of a challenge for cause if it
does not force him to exhaust his peremptory challenges.”’
This rule has had general acceptance by the courts. United
States v. Ragland, 375 F.2d 471 (2d Cir. 1967); Jordan v.
United States, 295 F.2d 355 (10th Cir. 1961); People v.
Miller, 71 Cal.2d 459, 78 Cal.Rptr. 449, 455 P.2d 377 (1969) ;
Manning v. State, 123 Ga.App. 844, 182 S.E.2d 690 (1971) ;
State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970); see
33
also Hopt v. Utah, supra; Stroud v. United States, 251 US.
380, 40 S.Ct. 176, 64 L.Ed. 317 (1920).
The defendant in this court seeks to justify his failure to
use his peremptory challenges to remove these particular
jurors from the panel. He contends that the trial justice
erred in construing G.L.1956 (1969 Reenactment) § 9-10-18,*
as providing that the five defendants were jointly entitled
to one peremptory for every four jurors called for each of
the three indictments. He now argues that had he exercised
a peremptory challenge after the ruling of the court, he
would have waived his exception to that ruling.
We see no merit in this contention. The meaning of §
9-10-18 has been established in State v. Sutton, 10 R.I. 159
(1872), decided by this court more than a hundred years
ago. There we said: ‘‘However numerous the defendants
may be, they are together but one party * * *. It was so in
regard to peremptory challenges at common law. The right
was not given to each person, but to the parties defendant
capitally charged, and if more than one persva, they were
to join in the challenge.’’ Jd. at 161. We reaffirmed this
view in State v. Ballou, 20 R.I. 607, 40 A. 861 (1898), and
again in State v. Brown, 45 R.I. 9, 119 A. 324 (1923). We
perceive no merit in defendant’s contention that the trial
justice erred in construing the statute or that, in view of
his exception to the ruling thus made, he was obliged to
forego exercising his peremptory challenges.
“ Section 9-10-18 reads as follows: “‘Peremptory Challenges—Ei-
ther party in a civil action, or in any criminal proceedings, may,
before the opening of such action or proceeding to the jury, chal-
lenge in writing, address to the clerk of the court, any qualified
jurors called for the trial of said cause or proceeding, not exceed-
ing one (1) in four (4), without alleging or showing any cause
therefor; and after such objection the challenged jurors shall not
sit in the trial of such cause, but other jurors shall be called to take
the place of the challenged jurors for the trial for the cause.’’
34
Il. Severance
The defendant contends that the denial by the trial jus-
tice of his motions for severance constituted prejudicial
error. He does not appear to dispute the basic rule that
severance is not a matter of right and that the motion there-
for is directed to the discretion of the trial justice. He con-
cedes that the denial of such a motion does not constitute a
ground for reversal unless there has been clear abuse of
discretion. State v. Kieon, 89 R.1. 320, 152 A.2d 531 (1959) ;
State v. Ballou, supra at 608 of 20 R.L, at 862 of 40 A.
Generally, the accepted view in both federal and state
courts is that denial of a motion for a severance will not be
reversed unless it is affirmatively shown that the defendant
did, in fact, suffer prejudice sufficiently substantial to im-
pinge upon his right to a fair trial. Maupin v. United
States, 225 F.2d 680, 682 (10th Cir. 1955). The Supreme
Court of the United States has recognized that ‘‘* * * the
convenience of trying different crimes against the same per-
son, and connected crimes against different defendants, in
the same trial is a valid governmental interest.’’ Spencer v.
Texas, 385 U.S. 554, 562, 87 S.Ct. 648, 653, 17 L.Ed.2d 606,
613 (1967). However, this interest may be overridden where
it is demonstrated that a fair trial guaranteed by the due
process clause of the fourteenth amendment has been denied.
The determination of whether prejudice resulted from
the joinder involves the balance of efficiency and conven-
ience in judicial administration on the one hand and the
defendant’s right to a fair trial without prejudice on the
other. The potential for prejudice may be deemed in-
substantial when balanced against such considerations as
crowded court calendars; the expense of multiple trials;
probable reluctance of witnesses to appear at several trials;
and that in the future witnesses may become unavailable.
35
However, when these same considerations are balanced
against something more than mere abstract prejudice, the
prejudice may be substantial and impinge upon the de-
fendant’s right to a fair trial. Gregory v. United States,
125 U.S,App.D.C. 140, 369 F.2d 185, 189 (1966).
Generally, contentions that the jury was confused by evi-
dence applicable to each of several co-defendants, by the
creation of an unfavorable atmosphere at the trial because
of the presence of a particui.. defendant, that one defend-
ant made statements incriminatory or inadmissible in evi-
dence against a co-defendant, or that the prosecution gained
some advantage from the joint trial, do not support a find-
ing that sufficient prejudice existed to reverse a trial jus-
tice’s denial of his motion to sever. Real prejudice is some-
thing more than mere disadvantage, but generally it will be
found when the court determines that there is a real doubt
about how the trial irregularity may have affected the jury.
Drew v. United States, 118 U.S. App.D.C. 11, 331 F.2d 85
(1964); Barton v. United States, 263 F.2d 894 (5th Cir.
1959).
In Drew the court noted that the argument against join-
der is that a defendant may be prejudiced for one or more
of the following reasons: ‘‘(1) he may become embarrassed
or confounded in presenting separate defenses ; (2) the jury
may use the evidence of one of the crimes charged to infer
a criminal disposition on the part of the defendant from
which is found his guilt of the other crime or crimes
charged; or (3) the jury may cumulate the evidence of the
various crimes charged and find guilt when, if considered
separately, it would not so find. A less tangible, but per-
haps equally persuasive, element of prejudice may reside in
a latent feeling of hostility engendered by the charging of
several crimes as distinct from only one. Thus, in any given
case the court must weigh prejudice to the defendant caused
36
by the joinder against the obviously important considera-
tions of economy and expedition in judicial administration.”’
Drew v. United States, supra at 88 of 331 F.2d.
Considering the instant case in the light of the criteria
set out in Drew, we are unable to agree that defendant was
so prejudiced by the denial of his motions to sever as to
require now a reversal of his conviction. The jury, while
convicting this defendant on the conspiracy charge, re-
turned no verdict against him with respect to either of the
substantive charges brought against him in the other indict-
ments. The defendant has failed to demonstrate any basis
upon which we might conclude that the jury cumulated
evidence, inferred a criminal disposition on the part of
defendant, or was moved by any latent hostile feelings to-
ward him. It is our opinion, therefore, that the denial of
defendant’s motions to sever was not fundamentally preju-
dicial to his right to a fair trial as guaranteed by the four-
teenth amendment of the United States Constitution.
The defendant raises specifically the question of whether
the admission of certain hearsay testimony through the
witness Kelley violated his rights under Bruton v. United
States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),
and thereby justified severance. For the reasons stated in
Part VI of this opinion, infra, we conclude that Bruton has
no application in this situation.
III. Inspection of Record of Jury Commissioner
During hearings on pretrial motions on January 5, 1970,
counsel for defendant requested the court’s permission to
examine the records of the jury commissioner relating to
the investigation made of the prospective jurors by that
official. The jury commissioner is required by statute, G.L.
1956 (1969 Reenactment) § 9-9-23, to conduct an investiga-
tion of all those who are drawn for jury duty. Section 9-9-23
ee
37
requires that the jury commissioner make such investiga-
tions and that he ‘‘* * * shall preserve a full record of such
investigation, which shall not be disclosed to any person
except by order of a justice of the superior court * * *.’’
The court, apparently treating the request as a motion pur-
suant to the statute for an inspection of the jury commis-
sioner’s records, denied it. The defendant now contends
that because of the denial of the motion, he was without
material information as to the jurors’ backgrounds to use
in examining them on the voir dire and that the ruling,
therefore, constituted prejudicial error.
Counsel for defendant stated that he understood ‘‘* * *
that the Attorney General has a biographical sketch of each
juror as to their education, their occupation, their place of
birth. I would ask that the defendants be furnished with
that information prior to impaneling.’’ The court, treating
it as a motion under § 9-9-23, said it would be inclined to
deny it. At that point counsel for defendant stated that he
believed ‘‘the Attorney General has them on cards.’’ Upon
inquiry by the court as to whether the state possessed such
records, the prosecutor said: ‘‘We’ve discontinued that
practice, in view of the availability of the Jury Commis-
sioner’s records to us or the defendants on motion.’’ While
the response was ambiguous, it was apparently accepted
by the court and defense counsel as stating that he had no
such records in his posession.
Thereupon, counsel for defendant requested that he be
allowed to examine such records. The court replied: ‘‘ You
know, that it is here someplace. I don’t think I’ll take the
time to look it up. It’s there, but that is done in advance
of trial. You can’t move at this last minute for me to have
the Jury Commissioner open his records.’’ He then denied
the motion. Again counsel for defendant asked the court to
authorize him to inspect such records if the jury commis-
sioner had no objection. To this the court responded: ‘‘It
38
isn’t whether he has an objection or not. We have a statute
that I’m not going to look up.’’
Section 9-9-23 was construed, in pertinent part, by this
court in State v. Busch, 59 R.I. 382, 388-390, 195 A. 487, 490-
491 (1937). It appears that in 1937 it had become an estab-
lished practice of the clerk of the Superior Court to furnish
the state with information concerning the investigations
made of potential jurors pursuant to a standing order of a
justice of the Superior Court. In Busch the defendant ar-
gued that the information so furnished to the state deprived
him of a fair and impartial trial. The court noted that it
was conceivable that under that practice, circumstances
might arise in a criminal case which would raise a serious
question of whether the defendant was so prejudiced as to
be deprived of an otherwise fair and impartial trial.
As we then said, the statute was intended to operate to
preclude indiscriminate examinations of the records of the
jury commissioner. However, it is obvious that the statute
was further intended to provide an equal opportunity for
the parties to a trial to have available essential information
concerning the jurors who comprise the panel. As we said
in Busch, the motion is, of course, addressed to the sound
discretion of the trial court. The court went on to say:
‘*But, in a proper case and upon proper application, the
above-mentioned statute permits the superior court, in
the exercise of a sound discretion, to order the disclosure of
such information, or so much thereof as may be pertinent,
by the clerk of that court.’’ Jd. at 390, 195 A. at 491. This
court, however, noted that the record did not disclose that
any motion had been made by the defendant for such an
examination and indicated that had such a motion been
made, a serious question could have been presented for its
consideration. However, on the basis of the absence of such
a motion, the court held that the defendant in Busch had
not been prejudiced.
|
39
The instant case, however, differs from Busch for in that
case the state had the information, while the defendant did
not. Here it was not established to the trial court’s satis-
faction that the state had such records in its possession,
and, therefore, the question of the prosecution having an
unfair advantage is not present. The question here is sim-
ply whether the denial constituted an abuse of discretion on
the part of the trial justice and substantially prejudiced
defendant.
The primary purpose for the enactment of this statute
was to make the voir dire a more meaningful procedure by
providing available information relating to the members of
the panel to counsel for both the prosecution ay the de-
fense. It is true that in this state counsel are rurnished
with a printed list of the potential jurors drawn for the jury
during each jury period. This list informs counsel of the
name, address, and occupation of each potential juror.
However, a more comprehensive report as to the identity
and background of the potential jurors is contained in the
records of the jury commissioner’s investigations, and the
availability to counsel of such information assures a more
adequate examination of potential jurors on the voir dire.
The legislative intent, as we have said, is to make this
information available to counsel subject to the approval of
a request therefor by a justice of the Superior Court. The
power granted such a justice is clearly negative, that is, 2e-
signed to authorize a denial of the request where such in-
spection would have an adverse effect u»on the duties of the
jury commissioner or would impinge upon the effective ad-
ministration of justice. We are persuaded that such a re-
quest should be denied only for compelling reasons.
The trial justice here apparently based his denial on his
view that it was a ‘‘last minute’’ attempt to have the jury
commissioner open his records. The record discloses that
40
the motion was made on January 5, 1970, and that the voir
dire did not begin until February 17, 1970. We cannot agree
that in such circumstances the request was untimely. We
feel that its denial constituted error on the part of the trial
justice. However, in our opinion, defendant was not preju-
diced by this denial. The record indicates that he possessed
the regular jury list indicating the name, address, and occu-
pation of each potential juror. Apparently, this is the same
information the state had, and nothing in the record sug-
gests that the state had an unfair advantage In such cir-
cumstances, we find nothing to demonstrate that the re-
fusal of the trial justice to order the jury commissioner to
release the requested information affected the jury’s ver-
dicts. As such, we conclude that the trial justice’s denial
was harmless error.
IV. Association of Defendants Prior to the Beginning
of the Conspiracy
In the course of the trial two police officers testified that
they had observed defendants in the company of one an-
other on several occasions prior to the date set out in the
indictment as the time of the beginning of the conspiracy,
March 1, 1968. Philip Paquin, a member of the Attleboro
Police Department, testified that in August of 1967 he had
observed defendants Sciarra and Lerner, together with a
third man, sitting in a parked motor vehicle at the Holiday
Inn in South Attleboro. Donald F. Kennedy, a member of
the Providence Police Department, testified that during the
course of his regular patrols in the Federal Hill section of
Providence, he frequently observed the various defendants
in the company of one another. Kennedy’s testimony related
to observations made during a period of about six months
preceding the slaying on April 20, 1968.
41
The defendant now argues that the admission of this
testimony was prejudicial error on the theory that evidence
of the acts of co-conspirators is admissible only when en-
gaged in during the term of the conspiracy. Conceding that
this testimony related to a period prior to March 1, 1968,
we cannot agree that it was inadmissible.
In United States v. Armone, 363 F.2d 385, 403-404 (2d
Cir. 1966), the Second Circuit held that since agreement is
an element of conspiracy, evidence of association between
alleged co-conspirators is relevant. In that case the court
held that the admission into evidence of a nightclub photo-
graph showing some of the defendants sitting together and
a telephone number book containing the names of several
defendants was proper as providing evidence from which
the jury could infer that the defendants knew one another
and had the opportunity to reach an agreement with regard
to the object of the conspiracy. See also Williamson v.
United States, 310 F.2d 192, 199 (9th Cir. 1962).
The trial justice placed this evidence in the proper con-
text when he instructed the jury that ‘‘[mJere suspicion,
speculation or associating together of those accused does
not establish a conspiracy * * * [However,] common design
or conspiracy may be deduced from circumstances, where
they exclude every reasonable hypothesis but that of de-
fendants’ guilt of conspiracy. In other words, the proof
must not only be consistent with guilt, but at the same time
it must be inconsistent with a reasonable hypothesis of
innocence.’’ Through this instruction the trial justice ap-
prised the jury of the fact that mere association did not
constitute conspiracy but was a circumstance which the jury
might consider in determining the existence of an agree-
ment to commit a crime. Theerfore, defendant’s exception
is overruled.
42
V. Denial of the Motion to Pass
This defendant joined with the other defendants in mov-
ing that the case be passed prior to the swearing of the
jury and again prior to the presentation of the state’s case.
They urged that because of the unavailability of an alleged
material witness, Alfredo Rossi, father of defendant Rossi,
the motion to pass should have been granted. On both oc-
casions the court denied the motion without prejudice to
its being renewed by any of the defendants during the
course of trial. However, it does not appear from the rec-
ord that the motion to pass was renewed either by this de-
fendant or by the others during the month in which testi-
mony was taken.
No offer of proof was made, but generally it appears that
Rossi’s father might have testified as to the whereabouts of
Rossi during the afternoon of April 20, the time of the
slayings. Such evidence, if believed, might have established
an alibi for Rossi relating to the time of the slayings, but
we are unable to agree that Patriarca would have been preju-
diced by the denial of the motion even if it constituted error.
However, Patriarca, along with the other defendants, ar-
gues that, being accused of having conspired with the others
primarily on the basis of the testimony given by Kelley at
trial, any testimony which might tend to impeach the credi-
bility of Kelley would weaken the probative force of his
testimony against the remaining defendants.
At the trial the defense offered testimony through Mi-
chael Accetta, a friend of the Rossi family, who testified
that on the day of the slayings he saw John Rossi at his
home sometime between 1:30 and 2 o’clock in the afternoon.
The defendant Rossi’s mother then testified that her son
had spent the evening preceding the slayings at home, that
she awakened her son about 11 a.m., and that he left the
Qe CN tin nasi hanna Canine. 0 maeamspemaaeall
43
house between 1:30 and 2 o’clock just as Acceta arrived.
Kelley had testified that Lerner, Fairbrothers, and Rossi
had slept at Doe’s house on the night before the slayings.
As we noted, defendant contends that the testimony of
Rossi’s father would not only have established an alibi for
Rossi at the time of the slayings but would have tended to
impeach Kelley’s testimony concerning his participation in
the conspiracy.
It is well established that a motion of this nature is di-
rected to the sound discretion of the trial justice. Strzebin-
ska v. Jary, 58 R.I. 496, 193 A. 747 (1937). However, that
discretion must be exercised in a manner consistent with
the constitutional guarantees involved. State v. Rossi, 71
R.I. 284, 43 A.2d 323 (1945). In that case we recognized
that a limitation upon the sixth amendment’s guarantee
‘‘to have compulsory process for obtaining witnesses in
[defendant’s] favor’’ may arise where the trial justice
denies a motion to pass or continue trial due to the un-
availability of a defense witness. Due process requires that
every defendant have a full opportunity to establish the best
and fullest defense available to him.
In orde. to establish that the denial constituted an abuse
of discretion, it is the obligation of the appellant to show,
first, that the testimony of the absent witness would be
material; second, that he had used due diligence to procure
the attendance of the witness or his deposition; third, that
it is reasonably certain that the presence or testimony can
be procured at the time to which the trial would be post-
poned; and fourth, that such testimony be not merely cu-
mulative. Jackson v. State, 214 Md. 454, 459, 135 A.2d 638,
640 (1957); State v. Wilcox, 21 S.D. 532, 114 N.W. 687
(1908) ; Lacks v. Comonwealth, 182 Va. 318, 324, 28 S.E.2d
713, 715 (1944). In Wilcox, supra, at 536-537, 114 N.W. at
44
689, the South Dakota court indicated that if a motion for
a continuance or to pass a case fails to establish any one
of these conditions, the motion is properly denied.
We are of the opinion that no testimony was offered to
indicate that Alfredo Rossi’s testimony would in any man-
ner differ from that of Accetta or defendant Rossi’s mother.
Nor did defendant make any offer of proof to indicate that
the elder Rossi’s testimony would be material or that he
had used the due diligence to procure the attendance of the
elder Rossi during the trial. We have held that where a
defendant seeks on appeal to establish the materiality of
any evidence, we will consider it only where an offer of
proof has been made during the trial. State v. Jefferds,
91 R.I. 214, 217, 162 A.2d 536, 538 (1960). No such offer of
proof was made in this case. It is our opinion, then, that the
denial of the motion to pass the case was not error.
The defendant has not directed our attention to an at-
tempt on his part or on the part of any of the other de-
fendants to renew the motion to pass the case at any time
during the presentation of the state’s case and the defense.
We have held that where trial counsel desires an exercise
of a trial court’s judicial discretion, it is incumbent upon
him to invoke such action through the medium of an ap-
propriate motion wherein the purpose thereof is clearly
and expressly stated. The record does not disclose any such
action in the instant case. Consequently, there was no rul-
ing by the court that would now be subject to a valid excep-
tion requiring us to review the question of whether the
court abused its discretion. State v. Ouimette, R.I., 298
A.2d 124, 136 (1972). This exception is without merit.
VI. Right of Confrontation
The defendant again directs our attention to a conversa-
tion alleged to have taken place in Methuen, Massachusetts,
some months after the date of the slayings. It appears that
ee ee a)
. rs ——e ws 7 a
— — sec, ite at ES Le ON ORE ORGS 4 Re" MEO rn
ee
45
Kelley, Lerner, Fairbrothers, and Rossi were the partici-
pants, while Patriarca and Sciarra were not present. As we
have already noted, this conversation was, in a very limited
way, a rehash of the events that occurred on the day of the
slayings. Kelley testified that Lerner said no one could
drive better than Rossi did ‘‘the way he drove up to the
store and afterwards.’’ He testified also that Fairbrothers
had said: ‘‘No one could get out of the car any faster than
Lerner.”’
The defendant now coniends that these statements, hav-
ing been made after the termination of the conspiracy, were
admissible in evidence, if at all, only against the declarants
and certainly were not admissible against him. Generally,
under the exception to the hearsay rule, declarations of co-
conspirators made after the termination of the conspiracy
may be received only against the declarant, and where such
evidence is admitted, co-conspirators are entitled to an
instruction that such statement may be considered only
against the conspirator who made it. 3 Underhill, Criminal
Evidence § 864 at 178 (5th ed. 1970 Supp.) ; see also United
States v. Miller, 340 F.2d 421, 423 (4th Cir. 1965) ; People
v. Chavez, 50 Cal.2d 778, 790, 329 P.2d 907, 914-915 (1958) ;
Malcolm v. State, 232 Md. 222, 225, 192 A.2d 281, 283 (1962).
In the federal courts ‘‘* * * it is firmly established that
where made in furtherance of the objectives of a going con-
spiracy, such statements are admissible as exceptions to
the hearsay rule. This prerequisite to admissiblity, that
hearsay statements by some conspirators to be admissible
against others must be made in furtherance of the con-
spiracy charged, has been scrupulously observed by federal
courts.’’ Krulewitch v. United States, 336 U.S. 440, 443-
444, 69 S.Ct. 716, 718, 93 L.Ed. 790, 794 (1949).
In some jurisdictions, however, deciarations of a con-
spirator are admissible against a co-conspirator when they
46
are made during the pendency of the conspiracy, and this
includes not only the period prior to the perpetration of
the offense but also the period of its subseqeunt conceal-
ment. This is on the theory that there is an implied agree-
ment among the conspirators to act together to conceal their
participation in the criminal act. 2 Wharton, Criminal Evi-
dence § 430 at 204-05 (12th ed. 1955); see also Dutton v.
Evans, 400 U.S. 74, 81, 91, S.Ct. 210, 215-216, 27 L.Ed.2d
213, 222 (1970).
We are not aware that this court has expressly adopted
either view. In our opinion, however, the rationale under-
lying the federal rule is sound and persuades us to hold
that declarations of a co-conspirator made after the termi-
nation of the conspiracy are admissible only against the
declarant. We, like the federal courts, tend to look with dis-
favor on attempts to broaden the already pervasive and
wide-sweeping nets of conspiracy prosecution. Grunewald
v. United States, 353 U.S. 391, 404, 77 S.Ct. 963, 974, 1
L.Ed.2d 931, 943 (1957). For this reason we agree with
defendant’s contention that, as to him, the testimony of
Kelley was inadmissible.
The defendant suggests alternatively that the jury should
have been given a cautionary instruction that the evidence
so adduced is not applicable to him. In fact, though, he is
contending that under Bruton v. United States, 391 U.S.
123, 88 S.Ct. 1620, 20 L.E.2d 476 (1968), any cautionary in-
struction given would have been inadequate to cause the
jury to follow that instruction and apply such evidence only
to the declarants. This, he contends, effectually deprived
him of his right of cross-examination with respect to the de-
clarants, Lerner and Rossi.
The defendant Bruton had been charged with participat-
ing with a co-defendant, Evans, in a postal robbery. At a
joint trial of both defendants, a postal inspector testified
Mad Be end
-
lite te
47
that Evans had confessed to him prior to the trial and had
involved Bruton in the commission thereof. It cannot be
doubted that the confession was inadmissible as against
Bruton. The trial justice, however, admitted such testimony
against the declarant, instructing the jury that the con-
fession was inadmissible as to Bruton and that it should be
disregarded in passing upon the question of Bruton’s guilt.
The Supreme Court reversed the conviction, concluding that
it could not be said with any certainty that the jury would
disregard such a positive piece of evidence as the testimony
concerning the co-defendant’s confessions.
In Bruton the Court overruled Delli Paoli v. United
States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). In
that case the Court had held that it would presume that a
jury would follow the limiting instructions of the court and,
therefore, avoid an encroachment upon the right of con-
frontation by an appropriate instruction to the jury to dis-
regard the inadmissible hearsay evidence. In Bruton, how-
ever, the Court considered the substantial risk, in the cir-
cumstances of that case, that a jury, despite instructions to
the contrary, would look to the incriminating extrajudicial
statements in determining a co-defendant’s guilt and held,
therefore, that the admission of the Evans confession to the
postal inspector at the joint trial violated the petitioner’s
right to cross-examination secured by the confrontation
clause.
The question to be resolved is whether the rule in Bruton
is applicable in the instant case. The Supreme Court in
Dutton casts considerable light on the real thrust of the
opinion in Bruton. In that case, involving the admission
into evidence of statements by an alleged co-conspirator,
the Court said: ‘‘This case does not involve evidence in
any sense ‘crucial’ or ‘devastating,’ as did all the cases
just discussed. It does not involve the use, or misuse, of
48
a confession made in the coercive atmosphere of official in-
terrogation, as did Douglas [Douglas v. Alabama, 380 U.S.
415, 85 S.Ct. 1074, 13 L.Ed.2d 934], Brookhart [Brookhart
v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314], Bruton,
and Roberts [Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921,
20 L.Ed.2d 1100]. It does not involve any suggestion of
prosecutorial misconduct or even negligence, as did Pointer
[Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d
923], Douglas, and Barber [Barber v. Page, 390 U.S. 719, 88
S.Ct. 1318, 20 L.Ed.2d 255]. It does not involve the use by
the prosecution of a paper transcript, as did Pointer,
Brookhart and Barber. * * * And it certainly does not in-
volve the wholesale denial of cross-examination, as did
Brookhart.’’ Dutton v. Evans, supra at 87 of 400 U.S., at
219 of 91 S.Ct., at 226 of 27 L.Ed.2d.
In our opinion, then, the Court in Dutton explained the
limitations on the application of the rule in Bruton to cases
in which the fact situations are such that it would be un-
reasonable to expect that the jury would follow the limiting
instructions of the trial court. In short, Bruton is appli-
cable only where it appears that there exists a substantial
risk of prejudice to the defendant because the evidence in
question consists of direct potent incriminatory extrajudi-
cial statements made by the co-defendant put before the
jury in a joint trial, so that it is clear that the jury could not
reasonably be expected to follow limiting instructions.
The circumstances of the instant case do not require an
application of the rule in Bruton. The hearsay here was
not the devastating, crucial, incriminatory statement con-
sidered in Bruton. In the first place, the testimony of
Kelley regarding the conversations at Methuen, Massachu-
setts, implicated neither Patriarca nor Sciarra, nor were
the statements made in the atmosphere of coercion that
surrounds custodial interrogation. These statements did
- -
EE LS
Pease ores me
49
nothing more than suggest that those persons at the meet-
ing in Methuen had participated in the slayings, a fact
which had been fully established by prior testimony of the
witness Kelley. In short, the testimony here cannot be said
to have given rise to the substantial risk of prejudice to
either Patriarca or Sciarra.
Secondly, the hearsay admitted here is not so lacking in
reliability as to make manifest a violation of the confronta-
tion clause. The need for cross-examination under the con-
frontation clause becomes critical where it is necessary to
determine the reliability of the truth-determining process
in criminal trials. California v. Green, 399 U.S. 149, 90
S.Ct. 1930, 26 L.Ed.2d 489 (1970). Obviously, the reli-
ability of such hearsay being important, the unreliability
thereof is intolerably compounded when the alleged accom-
plice does not testify and cannot be tested by cross-exami-
nation. It was against such threats to a fair trial that the
confrontation clause was directed. Bruton v. United States,
supra at 136 of 391 U.S., at 1628 of 88 S.Ct., at 485 of 20
L.Ed.2d.
Obviously, the statements were not made for the purpose
of incriminating others, particularly defendants Patriarca
and Sciarra. There was no reason for either Lerner or
Fairbrothers to lie under those conditions. Kelley, testify-
ing as to what occurred at Triggs Golf Course on the day
of the slaying, placed Rossi behind the wheel of the car
used, with Fairbrothers beside him on the front seat and
Lerner in the rear seat. Kelley had been extensively cross-
examined about this testimony. In our opinion, such indicia
of reliability are generally regarded as the basis for a con-
stitutionally valid hearsay exception and are determina-
tive of whether a statement made may be placed before the
jury, even though there is no opportunity for cross-exami-
nation of the declarant. Dutton v. Evans, supra at 89 of
50
400 U.S., at 220 of 91 S.Ct., at 227 of 27 L.Ed.2d. In the
circumstances, we conclude that these exceptions are with-
out merit.
We note parenthetically that the record does not disclose
that the trial justice gave any cautionary instruction to the
jurors limiting the applicability to the declarants of the
statements to which Kelley testified. The defendant, while
objecting to their admission and moving for severance on
the basis thereof, did not request any such cautionary in-
struction. Further, we note that the court in its charge in-
structed the jury that declarations made by a co-conspirator
during the course of the conspiracy are admissible against
all co-conspirators. However, he specifically instructed
them that the conspiracy terminated on April 20, 1968, the
day of the slayings. Consequently, it appears that the jury
was instructed on the basis of the federal rule and should
not, in passing on the guilt of any of the defendants, con-
sider any act or statement of a co-conspirator made after
April 20, 1968. The trial justice’s instruction to the jury on
the law of conspiracy precluded consideration of these
statements against Patriarca. We must assume the jury
followed those instructions in view of our conclusion that
Bruton has no application in this case.
VII. Rebuttal Testimony of Reverend Joseph Invernizzi
The Reverend Joseph Invernizzi testified for the defense
concerning a visit he made to the home of Fairbrothers.
His testimony was apparently an attempt to establish an
alibi for Fairbrothers on the day of the slaying. This wit-
ness testified that he had been in the Fairbrothers home,
somewhere between 1:30 and 2 o’clock in the afternoon, and
remained for 20 to 30 minutes. He did not testify, nor was
he asked, either on direct examination or on cross by the
prosecutor, what day of the week it was that he made this
- -
Aen wre meet —
all a
51
visit, However, on direct examination the priest had testi-
fied that on Saturday afternoons confessions were heard
in his parish from 3 to 6 and 7 to 9 and that there was a
schedule which assigned each priest to an hour. The cross-
examination was concluded, and no redirect examination
was desired.
After a midmorning recess the prosecution requested
leave to ask a few more questions of the witness on cross-
examination. The court made no decision on this request
until after the noon recess. At that time, noting that the
prosecutor had interviewed the priest during the noon re-
cess, the court refused to allow any further cross-examina-
tion but did say that the state could call him as a rebuttal
witness if it so desired. After objections to this procedure
were made known to the court, rebuttal evidence was ad-
duced by the prosecutor to the effect that the priest could
not testify that it was on Saturday that he went to the
Fairbrothers home and that he could not say what day of
the week it was. Thereafter, a motion was made by the
defense to strike the rebuttal testimony, which motion was
granted.
The defendant now contends that the testimony offered
in rebuttal was so prejudicial to defendant that it consti-
tuted reversible error. Obviously, any error arising out of
the admission of the rebuttal testimony, so called, is not
before us, the motion to strike having been granted. How-
ever, defendant, as we understand him, is arguing that this
testimony referring to the inability of the priest to state
the day of the visit to Fairbrothers’ home was so prejudi-
cial that it constituted reversible error. The defendant’s
argument rests, again, on the theory that a mere instruction
to the jury that the evidence was being stricken and that
they were to disregard it was insufficient to warrant an as-
sumption that the jury would follow such an instruction.
i Be
52
We were confronted with a contention of similar import
in State v. Ouimette, R.I., 298 A.2d 124, 139 (1972). There
we held, relying on Bruton, supra, that it is not unreason-
able to conclude that in many cases involving the mere ad-
mission of improper evidence the jury can and will follow
the instruction of the court to disregard such evidence.
Relying upon Bruton v. United States, supra, and the cases
cited therein, we pointed out: ‘‘ ‘Not every admission of
inadmissible hearsay or other evidence can be considered
to be reversible error unavoidable through limiting instruc-
tion; instances occur in almost every trial where inadmis-
sible evidence creeps in, usually inadvertently. * * * It is
not unreasonable to conclude that in many such cases the
jury can and will follow the trial judge’s instructions to
disregard such information.’ ’’ The defendant here, as in
Ouimette, has failed to establish the peculiar risk of preju-
dice which we have held is necessary to constitute reversible
error. Therefore, this exception is overruled.
VIII. Rebuttal Testimony of Thomas Marfeo
The defendant alleges that the trial justice committed
prejudicial error in permitting the rebuttal testimony of
Thomas Marfeo, brother of the victim, Rudolph Marfeo.
Marfeo testified that on several occasions prior to the mur-
der, his brother had related to him that he believed that a
great deal of ill will existed between himself and Patriarca
and that he believed his life to be ‘‘in jeopardy because of
Raymond Patriarca.’’ The state contends that this testi-
mony was offered to show the state of mind of the victim in
rebuttal to the testimony of another brother of the victim,
Frank Marfeo, who had testified that the relationship be-
tween his brother, Rudolph, and Patriarca was very cordial
and friendly.
What has been described by the prosecution as the state-
of-mind exception to the hearsay rule has a very narrow
OO,
- -
ae he
nb te a
we
53
and limited application. The state of mind or intent of a
person, whenever material, may be reflected in his out-of-
court statements. Many very fine distinctions have been
made with regard to the admission of statements designed
to prove the state of mind of the declarant.°
The victim’s declarations regarding fear or threats re-
lated in court by a third person fall within the state-of-
mind exception, but have been regarded with a wary eye by
many courts. The first approach, which has been adopted
in Massachusetts, precludes the introduction of evidence of
a murder victim’s declarations asserting the defendant’s
threats or other hostile conduct toward the declarant un-
less the conduct or statements were made by the accused in
the presence of the witness. Testimony concerning threats
preceding a crime can properly come only from one who
heard them or witnessed them. Commonwealth v. Del-
Valle, 351 Mass. 489, 495, 221 N.E.2d 922, 926 (1966).
A second approach, which has been adopted in Cali-
fornia and which we adopt here, would permit the use of
such testimony to demonstrate the state of mind of the
5In State v. Vaccaro, R.I., 298 A.2d 788, 790 (1973), we indi-
cated that when evidence is not introduced to prove the truth of a
statement, it does not actually fall within the hearsay rule. Two
distinct types of statements may be used to demonstrate the state
of mind of the declarant. The first is simply a statement as to his
feeling or his state of mind. In other cases the declarations are not
assertive of the declarant’s present state of mind but rather simply
provide evidence from which that state of mind may be inferred.
In a treatise on evidence, Professor McCormick has indicated that
‘‘fejourts, however, have tended to lump together declarations as-
serting the declarant’s state of mind with those tending to prove
the state of mind circumstantially and have developed a general
exception to the hearsay rule for them without regard to the possi-
bility that many could be treated simply as nonhearsay.’’ MeCor-
mick, Evidence 4 294 at 694 (2d ed. 1972).
54
victim where the question of fear is in issue. However,
even the California rule is restrictive. It requires not only
that the state of mind of the declarant be in issue but also
that such testimony refer only to threats concerning future
conduct on the part of the accused, that such declarations
be shown to have been made under circumstances indicat-
ing that they are reasonably trustworthy, and that they
show primarily the state of mind of the accused at the time
the declaration was made. People v. Hamilton, 55 Cal.2d
881, 362 P.2d 473, 13 Cal.Rptr. 649 (1961); People v.
Schindler, 273 Cal. App.2d 624, 637-640, 78 Cal.Rptr. 633,
641-642 (Ct. of App.1969) ; People v. Finch, 213 Cal.App.2d
752, 763-770, 29 Cal.Rptr. 420, 427-430 (Ct. of App.1963).°
The state of mind of the victim Marfeo was placed in is-
sue inasmuch as the defense offered evidence to show a cor-
dial, friendly relationship between Marfeo and Patriarca.
The state offered the testimony now criticized simply to re-
but that defense contention. Statements as related by the
witness apparently do refer to threats as to future conduct
on the part of the accused and do reflect the state of mind of
the victim at the time the statements were made. The pre-
cise circumstances under which the statements were made
which would tend to indicate whether or not they were rea-
sonably trustworthy were not outlined in the testimony.
However, defendant made no effort to ascertain whether
the circumstances in which these statements were made
tended to suggest the unreliability thereof. That being so,
we find no error in the admission of this testimony as
rebuttal evidence.
* These cases represent a recognized exception to the rule stated
in Cal.Evid. Code § 1250 ( West 1968).
en el
ee CO ae ee ey i ye sat nen
—
55
IX. Coercion in Charging the Jury
The defendant alleges that various remarks to the jury by
the trial justice were coercive and prompted compromise
and inconsistent verdicts. The record does disclose that the
trial justice indicated his desire to complete the trial in
time to have the jury home for the Easter holiday. The de-
fendant has translated such references into coercion. We
find no justification for the conclusion that the guilty ver-
dicts which are before us here were coerced by the trial
justice’s remarks. The jury deliberated for nearly three
full days before returning its verdicts. The defendant fails
to substantiate by his brief in any meaningful way that
the verdicts are inconsistent. He does make reference to
the fact that Kelley’s testimony placed defendants, Fair-
brothers and Rossi, in one of the vehicles used as transpor-
tation to and from the scene of the crime. He suggests that
if the jury believed this testimony, it had no choice but to
find these defendants guilty of both conspiracy and mur-
der. However, it would seem that if, as defendant alleges,
there is little to link Fairbrothers and Rossi to the alleged
crimes, except Kelley’s testimony as to their presence in
the vehicle, it is quite conceivable that the jury could have
believed that the pair was involved in the conspiracy and
at the same time believe that their guilt on the murder
charge was not established beyond a reasonable doubt.
The defendant further contends that the dismissal by
the trial justice of the jury before it reached verdicts on all
charges was improper. He alleges that the dismissal was
another indication of the trial justice’s desire to end the
trial quickly and that he failed to take precautions neces-
sary to assure himself that the jury was hopelessly dead-
locked. We need not consider whether the trial justice
abused his discretion in dismissing the jury, despite the
56
fact that it appears from the record that he had ample justi-
fication to believe that the jury was stalemated.’
The defendant is unable to demonstrate any prejudice,
since the dismissal of the jury in no way invalidates the
guilty verdict which they returned, and defendant was sub-
sequently retried and acquitted of all of the offenses upon
which this jury failed to reach verdicts. The authorities
to which defendant directs our attention all represent in-
stances where a defendant challenges the validity of a re-
trial on charges upon which a previous jury had been dis-
missed before a verdict was reached. Because defendant’s
claim that the trial justice had acted improperly in dis-
missing the jury might bar retrial if an abuse of discretion
could be established, such a claim in no way constitutes
an impediment to the guilty verdict which was reached
through full and fair deliberation prior to the dismissal. See
United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d
543 (1971) (retrial precluded on double jeopardy grounds) ;
State v. Nelson, 19 R.I. 467, 34 A. 990 (1896).
X. Psychological Coercion of the Jury
The defendant contends that he has been deprived of a
fair and impartial trial by jury guaranteed by the sixth and
fourteenth amendments, inasmuch as various remarks made
by the trial justice to the jury constituted prejudicial error.
He first contends that it was error for the trial justice to
call the jury to the courtroom after it had deliberated for
7 At 5:40 p.m. on Friday, March 27, 1970, the third day of de-
liberation, the trial justice summoned the jury to the courtroom.
At that time the jury indicated that it had reached verdicts “in
some of the cases as to some of the defendants’’ but that it ‘‘could
not come to deliberation. The record indicates that later in the
evening the trial justice inquired of the jury: ‘‘ Have they agreed
on any further verdicts since they returned or are they dead-
locked?’’ The foreman answered: ‘‘We’ve not agreed upon any
further verdicts. We’re deadlocked.”’
ee
scene”.
57
nearly three days to give them the Boswell charge, so
called. At that time the trial justice reminded the jury that
it should attempt to reach a unanimous verdict without com-
promising any firm conviction as to guilt or innocence sim-
ply to join the others.
The defendant objects specifically to his language sug-
gesting: ‘‘[J Juries almost always reach unanimity in fairly
and open mindedly passing on the evidence. It must be
obvious to you that the jury system just would not work
otherwise * * * another jury at a future date will have to
sit through another trial of these cases. I am sure no other
jury to be selected in the future would be any better quali-
fied to hear and decide the cases than you are. They have
been exhaustively tried over a period of several weeks.
Another trial would entail additional heavy expense upon
both the state and the defendants.’’ This is essentially the
same language which in State v. Boswell, 73 R.I. 358, 366,
56 A.2d 196, 200 (1947), we held was the means by which the
trial justice ‘‘* * * asked the jury to continue consideration
of the case and advised them to try for an agreement
through the process of fair discussion and dispassionate
reasoning.’’ The defendant compares this language to that
of the Allen charge, so called, which was upheld by the
United States Supreme Court in Allen v. United States,
164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), but which
has been criticized of late. See, e. g-, Thaggard v. United
States, 354 F.2d 735, 739 (Sth Cir. 1965) (concurring opin-
ion); State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959) ;
State v. Randall, 137 Mont. 534, 353 P.2d 1054 (1960) ;
A.B.A. Project on Minimum Standards for Criminal Jus-
tice, Trial by Jury, § 5.4(b) and Comment (approved draft
1968). He suggests that the language used by the trial jus-
58
tice in this case was more prejudicial then that of Allen and
its progeny.®
The most frequent criticism of the Allen charge is di-
rected toward the fact that a juror who holds a minority
position is directed to question his own thinking simply be-
cause several of his fellow jurors have reached a contrary
conclusion. It has been contended that such a direction adds
unjustified weight to the majority view on a divided jury
without suggesting that those in the majority should also
re-evaluate the strength of the minority view. United States
v. Fioravanti, 412 F.2d 407, 417 (3d Cir. 1969). In the
instant case the trial justice made no reference whatever to
the minority but simply encouraged all jurors to make an
effort to reach unanimity. In doing so, he exercised an
abundance of caution in advising the jurors not to abandon
conscientiously held views simply to accommodate others.
For this reason we are unable to conclude that the trial
justice abused his discretion in recalling the jury as he did.
It is our opinion that this case demonstrates the need
for a solution to forestall continued litigation over the valid-
ity of the Allen charge. Such a solution, in our opinion, is
* The particular language of the Allen charge to which most crit-
icism has been directed is substantially as follows: ‘‘* * * although
the verdict must be the verdict of each individual juror, and not
a mere acquiescence in the conclusion of his fellows, yet they
should examine the question submitted with candor, and with a
proper regard and deference to the opinions of each other; that it
was their duty to decide the case if they could conscientiously do
so; that they should listen, with a disposition to be convinced, to
each other’s arguments; that, if much the larger number were for
conviction, a dissenting juror should consider whether his doubt was
a reasonable one which made no impression upon the minds of so
many men, equally honest, equally intelligent with himself. If,
upon the other hand, the majority was for acquittal, the minority
ought to ask themselves whether they might not reasonably doubt
the correctness of a judgment which was not coneurred in by the
majority.’’ Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154,
157, 41 L.Ed. 528, 530-531 (1896).
59
to be found in the A.B.A. Project on Minimum Standards
for Criminal Justice, Trial by Jury, § 5.4(a) and (b) (ap-
proved draft 1968). That section provides that before de-
liberation the court may instruct the jury: (1) that in order
to return a verdict, each juror must agree thereto; (2) that
jurors have a duty to consult with one another and to de-
liberate with a view to reaching an agreement, if it can be
done without violence to individual judgment; (3) that each
juror must decide the case for himself, but only after an
impartial consideration of the evidence with his fellow
jurors; (4) that in the course of deliberations, a juror
should not hesitate to re-examine his own views and change
his opinion if convinced it is erroneous ; and (5) that no juror
should surrender his honest conviction as to the weight or
effect of the evidence solely because of the opinion of his
fellow jurors, or for the mere purpose of returning a ver-
dict.
In an effort to alleviate possible interference with the de-
liberation of jurors, § 5.4(b) provides that when, in the ex-
ercise of his discretion, the trial justice concludes that it is
necessary to recharge the jury under circumstances like
those presented by the instant case, he may do nothing more
than repeat those instructions set out in subsection (a).
Without intending to limit the discretion of the trial justice
in the matter of instructing jurors as to their duty to seek
verdicts in criminal trials, we suggest that consideration be
given to compliance with the provisions of § 5.4(a) and (b).
Further, defendant alleges prejudice in the charge, inas-
much as the trial justice fixed a specific period of time in
which the jury could continue its deliberations.’ There is
authority which provides that a fixed period for delibera-
tion by the jury is coercive in that it places pressure upon
® At the conclusion of the disputed charge, the trial justice said:
‘*(¥]jou go back upstairs for a reasonable time and at the end of
that time I'll send you another note, after three quarters of an hour
perhaps. %?
60
the members of the jury to reach a decision before a fixed
deadline. Goff v. United States, 446 F.2d 623 (10th Cir.
1971) ; Burroughs v. United States, 365 F.2d 431 (10th Cir.
1966). However, in both Goff and Burroughs the jury had
returned guilty verdicts within the time period set and, hav-
ing concluded that that verdict may have been prompted by
a desire to reach a decision within the period fixed by the
trial justice, the court in each case reversed the guilty ver-
dict.
The dialogue between the trial justice and jury in this
case set out in note 9, supra, clearly indicates that the trial
justice’s action in fixing the period for continued delibera-
tion did not prompt a verdict of any kind. All of the ver-
dicts which were finally returned had been determined, ac-
cording to the foreman’s answers, before the trial justice
set a time limit on the deliberations. Therefore, there is no
justification in suggesting that the time limitation prompted
the guilty verdict which is now before us under this bill of
exceptions.
XI. Armed Marshals in the Courtroom
The defendant alleges that the trial justice committed
prejudicial error in permitting the removal of the jury from
the courtroom while the state’s witness, John Kelley, was
escorted into the courtroom by U. S. marshals and in allow-
ing those marshals to stand nearby during the course of
Kelley’s testimony. The defendant contends that the mar-
shals’ presence created a circus-like atmosphere designed to
impress the jury with the importance of this particular wit-
ness and the notorious reputation of defendant.
In MeDonald v. United States, 89 F.2d 128, 136 (8th Cir.
1937), the Eighth Circuit established what appears to be a
salutary rule to govern situations such as the one presented
by these facts. The court said: ‘‘It is too obvious for argu-
ment that hardly any other matter can better be relegated
61
to the discretion of the trial court than that of safeguarding
the court, counsel, jury, and spectators, and assuring the
continued presence and attendance of the accused at the
trial. Absent incontrovertible evidence of hurt, the trial
court should be permitted to use such means, to secure the
named ends, as the nature of the case, the known criminal
record, character, associates in crime, and reputation of the
accused shall reasonably call for * * *.’’ Accord, Leyvas v.
United States, 264 F.2d 272, 277 (9th Cir. 1958).
The transcript indicates that the trial justice was keenly
aware of the necessity to balance the need for reasonable
security with the rights of defendant to receive a fair trial.
At the request of counsel for defendant, he made certain
that none of the weapons carried by the marshals were
visible to the jury. In view of all of the circumstances, there
is no basis for us to conclude that the trial justice abused
his diseretion in permitting the U. S. marshals to be present
during the course of Kelley’s testimony.
In addition, we believe that the defendant’s contention
that the statement of Robert E. Sheehan, a special agent
of the FBI, that the witness Kelley was ‘‘under the pro-
tection of the United States of America’’ was so prejudi-
cial as to constitute reversible error is without merit.
While there is some merit in the contention that such a
statement has little relevance within the context of Shee-
han’s testimony, we are hard pressed to believe that this
statement, standing alone, created prejudice in the minds of
the jurors sufficient to preclude them from reaching a fair
and impartial verdict. These exceptions are without merit.
All of the exceptions of the defendant are overruled, the
judgment of conviction is sustained, and the case is remitted
to the Superior Court.
POWERS, J., participated in the decision but retired
prior to its announcement.
PAOLINO, JOSLIN and DORIS, JJ., did not participate.
62
Appendix F.
28 U.S.C. § 2253.
Appeal
In a habeas corpus proceeding before a circuit or district
judge, the final order shall be subject to review, on appeal,
by the court of appeals for the circuit where the proceeding
is had.
There shall be no right of appeal from such an order in a
proceeding to test the validity of a warrant to remove, to
another district or place for commitment or trial, a person
charged with a criminal offense against the United States,
or to test the validity of his detention pending removal pro-
ceedings.
An appeal may not be taken to the court of appeals from
the final order in a habeas corpus proceeding where the de-
tention complained of arises out of process issued by a
State court, unless the justice or judge who rendered the
order or a circuit justice or judge issues a certificate of
probable cause.
June 25, 1948, c. 646, 62 Stat. 967 ; May 24, 1949, c. 139, § 113,
63 Stat. 105; Oct. 31, 1951, c. 655, 4 52, 65 Stat. 727.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.