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State v. Rizzo
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1997 ME 215
Docket:		Yor-96-283
Argued:		September 4, 1997
Decided 		November 6, 1997 (corrections made November 20, 1997)

Panel:	WATHEN, C.J., and  ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.




STATE OF MAINE v. ROBERT RIZZO



CLIFFORD, J.

	[¶1]  Robert Rizzo appeals from judgments entered in the Superior
Court (York County, Crowley, J.) following jury verdicts of guilty to the
charges of manslaughter (Class A) in violation of 17-A M.R.S.A. § 203(1)(A),{1}
and aggravated assault (Class B) in violation of 17-A M.R.S.A. § 208(1)(B).{2} 
Rizzo contends that (1) the court erred in refusing to dismiss the
indictment against him because the State violated a court order requiring a
court reporter's presence at the grand jury proceedings and, in addition,
re-presented the same evidence to the grand jury; (2) his Miranda rights
were violated while he was at the hospital; (3) the court improperly allowed
the use of a 911 recording at his trial; and (4) the wording of the jury
instruction unfairly prejudiced him.  Discerning no error or abuse of
discretion, we affirm the judgments.
	[¶2]  The testimony and record show the following:  Rizzo and
Charles Trombley were friends.  On August 15, 1994 between noon and 2:00
p.m. the two were drinking at a bar in Kittery.  Trombley helped Rizzo
home, then returned to the bar.  At 5:00 p.m., Trombley, Ernest Bahmer,
and two friends met and then drank until visibly intoxicated.  Bahmer and
Trombley then walked to Rizzo's house and knocked loudly on the front
door.  Rizzo yelled repeatedly from within:  "I have a gun."  When Trombley
entered, Rizzo recognized him, emptied the shells, and threw the shotgun
on the floor.  After the three drank several whiskeys and talked for a while,
Rizzo discharged a handgun into Trombley's abdomen.  Bahmer dialed 911,
and as he was talking Rizzo "pistol whipped" him.  With the phone off the
hook and the 911 operator recording the fracas, the two wrestled until the
police arrived.
	[¶3]  At the police station, Rizzo was informed of his Miranda rights,
which he waived.  He complained of torso pains and was taken to the
hospital, where he was met by Steven Hamil, a Kittery detective.  Hamil told
Rizzo that he was there to safeguard him and to ask him a few questions. 
For about two hours Hamil observed Rizzo being examined, recording in his
notebook the statements that Rizzo made, such as "I shot Charlie" and
"Those guys broke in, I had to defend myself."   Trombley died the following
day from blood loss caused by the bullet wound.
	[¶4]  On August 26, 1994, the Superior Court (Cole, J.) granted
Rizzo's motion for a court reporter to be present when the grand jury
considered his case.  The grand jury returned an indictment against Rizzo
on September 9, 1994 for the manslaughter death of Trombley.  On October
7, 1994 the grand jury returned a superseding indictment adding an
additional count of aggravated assault with a deadly weapon committed
against Ernest Bahmer.  On May 3, 1995, the grand jury again considered
Rizzo's case and returned a new superseding indictment upgrading the
manslaughter charge to murder and adding an additional count of attempted
murder with a dangerous weapon for his actions against Bahmer.  A court
reporter was present in September, but not for the October and May grand
jury sessions.  Following a jury trial, Rizzo was convicted of manslaughter and
aggravated assault with the use of a weapon, and he appeals those
convictions
I.
	[¶5]  Rizzo unsuccessfully moved to dismiss the indictments on the
grounds that at the October and May sessions of the grand jury the State
violated an outstanding court order that a court reporter be present, and
further that the State impermissably re-presented the same evidence that
had already been found by two grand juries to be insufficient to indict Rizzo
for murder and attempted murder. 
	[¶6]  The denial of a motion to dismiss an indictment on these
grounds is reviewed for an abuse of discretion.  See State v. Cotton, 673 A.2d
1317, 1319 (Me. 1996);  State v. Owens, 638 A.2d 64 (Me. 1994).  In
refusing to dismiss the indictment, the court found that the police had
submitted new evidence to the prosecutor after the first indictment.  It also
found that the State's failure to have a court reporter was a good faith
mistake.  These findings are not challenged.
	[¶7]  In support of his argument that the prosecutors have a duty not
to seek indictments from the grand jury that are not actually supported by
the available evidence, Rizzo relies on State v. Lagasse, 410 A.2d 537 (Me.
1980).  In Lagasse we cautioned prosecutors to "carefully evaluate [the]
evidence to determine whether in fairness to the defendant the charge . . .
ought to be dismissed before the trial commences."  Id.
	[¶8]  That language should not obscure our unequivocal rejection in
that case, and others, of pre-trial motions challenging the sufficiency of
evidence to support indictments.  See also State v. Marshall, 491 A.2d 554,
557 (Me. 1985) ("We have repeatedly held that courts in this jurisdiction
are not authorized to inquire into the sufficiency of the evidence on which
the grand jury acted."); State v. Heald, 307 A.2d 188, 190 (Me. 1973) ("no
reason to depart from our previously well established policy"); Cluchey &
Seitzinger, Maine Criminal Practice § 6.5 at III-17 (rev. ed. 1995) ("Motions
to dismiss indictments based upon the insufficiency or incompetency of the
evidence presented to the grand jury in support of the indictment have no
basis in Maine.").  Rizzo's challenge to the sufficiency of the evidence for the
indictment is without merit.{3}
II.
	[¶9]  Rizzo also contends that the court erred in denying his motion
to suppress statements made while he was in the presence of a police
officer at the hospital.  Rizzo claims that Detective Hamil's presence at the
hospital while Rizzo was being treated was the functional equivalent of an
interrogation.  In denying Rizzo's suppression motion, the court found that
Hamil would have been required to give Rizzo another Miranda warning had
he interrogated him at the hospital, but that no interrogation took place and
Rizzo's utterances were spontaneous.{4}
	[¶10]  Rizzo argues that the detective's announced intention to
question is analogous to the officer's action in State v. Nixon, 599 A.2d 66,
67 (Me. 1991), in which the detective had shown the defendant a crime
scene sketch, pushing it toward him and saying "You might find this
interesting." Nixon, 599 A.2d at 67.  We concluded that in the
circumstances of that case the detective should have known that the act
"was reasonably likely to elicit an incriminating response." Id.  (quoting
Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90
(1980)).
	[¶11]  The Innis requirement that the trial court determine if officer
Hamil's conduct was reasonably likely to elicit an incriminating response
presents a mixed question of fact and law in the sense that the trial court
had to make factual determination about what happened between the Officer
and Rizzo and then apply a legal standard to those factual findings.  While we
have sometimes spoken of a clear error standard in regard to such mixed
questions,{5} it is the appellate court that must make the ultimate legal
determination. See State v. Cefalo, 396 A.2d 233, 240 (Me. 1979) ("[A] trial
judge's findings of historical facts on relevant identification issues will be
overturned only when clearly erroneous. The legal conclusions drawn from
those facts, however, are subject to the independent examination and
judgment of the Law Court.").{6}
	[¶12]  This approach is consistent with the U.S. Supreme Court's
ultimately plenary review of lower court determinations that police conduct
was the functional equivalent of interrogation.  See Arizona v. Mauro, 481
U.S. 520, 528 n.6, 107 S. Ct. 1931, 1936 (1987) ("Our decision . . . does not
overturn any of the factual findings of the Arizona Supreme Court.  Rather, it
rests on a determination that the facts of this case do not . . . satisfy the legal
standard . . . .").
	[¶13]  Hamil's announcement of an intent to question was not the
functional equivalent of interrogation.  Hamil's statement to Rizzo that he
would be asking him some questions, without initiating any further
discussion with Rizzo, is even less coercive than conduct we have held is not
equivalent to interrogation.  See State v. Simoneau 402 A.2d 870, 873 (Me.
1979) ("neutral questions which are not part of an effort to elicit a
confession or admission" and threshold or clarifying questions posed by
police in response to an ambiguous statement by a suspect do not constitute
"interrogation"); State v. Friel, 508 A.2d 123 (Me. 1986) (handing
defendant arrest and search warrants not "the functional equivalent of
interrogation"); State v. Sumabat, 566 A.2d 1081 (Me. 1989) (defendant's
gratuitous statements that were not responsive to routine, non-interrogation
questions did not constitute interrogation); State v. Barnes, 252 A.2d 398
(N.J. 1969) (single question asked "was not the type of question which
centered blameworthiness on the defendant").   There was no error in the
refusal to suppress the defendant's statements at the hospital.
III.
	[¶14]  Over Rizzo's objection the trial court admitted an eleven-
minute tape that was recorded after Ernest Bahmer called  911.  While the
phone was off the hook, Rizzo and Bahmer made audible statements and
wrestled with each other as Trombley moaned in the background.
	[¶15]  The State maintained at trial that the tape established what
had transpired before the police arrived.  In the recording Rizzo can be
heard saying to Bahmer "You're lucky I missed," which the State suggested
was "relevant to show that Mr. Rizzo was conscious that he fired at Mr.
Bahmer and missed him," and saying to Trombley "Charlie, you're going to
die so shut up." 
	[¶16]  Rizzo argues that the "only" clearly audible sounds on the tape
were the cries of a dying man, and thus the risk of "inflaming" the jury far
outweighed the tape's evidentiary value.  Because it was incomplete the
court did not allow a transcript of the call to go the jury, and the court
redacted parts of the tape it found to be unfairly prejudicial.  In allowing a
redacted version of the tape to be played to the jury, the court found the
probative value of the tape to be "very high," and the unfair prejudicial effect
to be low. 
	[¶17]  We review a court's decision to admit evidence pursuant to
Maine Rule of Evidence 403{7} for an abuse of discretion.  See State v.
Thompson, 1997 ME 109, ¶14, 695 A.2d 1174, 1179 (Me. 1997).  See also
United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986) (admission of
audiotape with poor sound quality rests within the discretion of the trial
court).
	[¶18]  In the context of audiotapes, we have distinguished between
unredacted tapes with inaudible and irrelevant portions, and those in which
the trial court has reviewed the tape to ensure that the proponent has
separated out the "vital parts." State v. Rossignol, 580 A.2d 152, 154 (Me.
1990) (quoting State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962)). 
	[¶19]  The record shows that the court took pains to see that the
tape was redacted to address Rizzo's specific concerns about prejudice, and
to prevent the jury from seeing the potentially confusing transcript of the
tape.  It balanced the probative value of the tape with the potential for unfair
prejudice, specifically noting that Bahmer's testimony had discrepancies
which the audiotape could help resolve.  Rizzo's state of mind was the
central issue in the case, since he conceded that he caused Trombley's
death. Hence the recording of the statements Rizzo made to the victims is
very probative.  The spontaneity of these statements gives them a qualitative
difference from later statements made to police officers. The admission of
the tape was within the trial court's discretion.
IV.
	[¶20]  Lastly, Rizzo contends that the court's instruction to the jury
dealing with motive was "negatively worded as to any benefit the defendant
might receive."   There is no error in a jury instruction if the instruction
"fully and accurately informs the jury of the applicable law." State v. Ashley,
666 A.2d 103, 107 (Me. 1995).  Jury instructions "should be developed in
the context of the individual case." Id.  A review of the jury instructions in
their entirety reveals that they were adequate.  State v. Michaud, 611 A.2d
61, 64 (Me. 1992).
	The entry is:
			Judgments affirmed.


Attorneys for State: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Atty Gen., (orally) Thomas Goodwin, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorneys for defendant: Matthew B. Nichols, Esq., (orally) Laurence Gardner, Esq. Boulos & Gardner P O Box 856 Saco, ME 04072-0856
FOOTNOTES******************************** {1} 17-A M.R.S.A. § 203(1)(A) (1964 & Supp. 1996) provides: § 203. Manslaughter 1. A person is guilty of manslaughter if that person: A. Recklessly, or with criminal negligence, causes the death of another human being. {2} 17-A M.R.S.A. § 208(1)(B) (1964) provides: § 208. Aggravated assault 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Bodily injury to another with use of a dangerous weapon . . . . Since this crime was committed with the use of a weapon, sentencing is governed by 17-A M.R.S.A. § 1252(5) (1964 & Supp. 1996), which provides: § 1252. Imprisonment for crimes other than murder 5. Notwithstanding any other provision of this code, except as provided in this subsection, if the State pleads and proves that a Class A, B or C crime was committed with the use of a firearm against a person,. . . when the sentencing class for the crime is class B, the minimum term of imprisonment is 2 years . . . . {3} Rizzo also argues that the indictment should have been dismissed on the grounds that the prosecutor was not fulfilling his ethical responsibility of fairness to the defendant, and that re-presenting a matter to a different grand jury when prior grand juries have rejected a specific charge is a violation of Maine Bar Rule 3.7(i)(1). Rizzo cites no authority for his position. Moreover, because the court found that the State had presented new evidence to the grand jury, we need not address whether, in the absence of new evidence, trial courts have authority to bar resubmission of a case to a grand jury if a previous grand jury has returned a no-bill. See U.S. v. Thompson, 251 U.S. 407, 414 (1920); Commonwealth v. Desabetino, 535 A.2d 169, 172 (Pa. Super. 1987); People v. Cade, 547 N.E.2d 339, 340-41 (N.Y. 1989); People v. Franco, 657 N.E.2d 1321, 1324 (NY. 1995). {4} The court found: Detective Hamil never did question Mr. Rizzo. Instead, Mr. Rizzo blurted out a series of statements which were incriminating. I am satisfied that a mere announcement by a detective that he intends to question someone does not amount to an interrogation. Detective Hamil asked no specific questions, nor did he do anything else that would be considered reasonably likely to have elicited incriminating responses from Mr. Rizzo. {5} See State v. Cusack, 649 A.2d 16 (Me. 1994) (applying Fourth Amendment); State v. May, 608 A.2d 772 (Me. 1992). When the underlying facts are not in dispute, we have consistently reviewed the trial court decision ind