DocketNumber: P1-91-2006
Judges: <underline>Pederzani, J.</underline>
Filed Date: 3/3/1992
Status: Non-Precedential
Modified Date: 4/18/2021
The facts of this case are as follows. On February 28, 1985, Peter Gilbert was arrested on minor drug and weapons charges. He was arraigned in District Court on March 8, 1985. In lieu of a bail determination, he agreed to become a witness against individuals accused of committing a series of murders. Accordingly, Gilbert signed a waiver of his constitutional rights and consented to be held in undefined informal custody by the Providence Police Department.
On August 1, 1985, Gilbert was arraigned in Superior Court on a charge of second degree murder and related capital offenses. He was ordered held without bail in the custody of the Providence Police.
On June 18, 1986, while still in Providence Police custody, Gilbert pleaded guilty, in a Florida Superior Court, to eight criminal counts of burglary and grand theft. On July 17, 1986, again while in Providence Police custody, Gilbert pleaded guilty, in a Maine Superior Court, to three felony charges of burglary. In these cases, the Florida and Maine Superior Courts each sentenced Gilbert to ten years to serve concurrent with his Rhode Island sentence, and within the custody of the Providence Police.
Gilbert remained in Providence Police custody until March 30, 1987, at which time he pleaded guilty to a variety of criminal charges, including murder. He received a fifty year sentence, forty years suspended and ten years to serve. Gilbert, however, was not sent to the Adult Correctional Institution; rather, he was returned to Providence Police custody retroactive to March 1, 1985.
On June 25, 1987, the Attorney General's Department filed a petition in the Superior Court requesting that the Providence Police be allowed to transfer Gilbert to an undisclosed safehouse. The petition was approved and signed by Justice Orton. The petition granted control of Gilbert's custody to the Providence Police, such control to be exercised in their discretion, and designated the defendant as the officer in charge of Gilbert's custody at that location.
On June 11, 1988, while still in Providence Police custody, Gilbert suffered a fatal heart attack at a roadside gasoline station in Connecticut. At the time of his death, Gilbert was unaccompanied by any police guard and was driving a car bearing a confidential Providence Police Department registration. In addition to this incident, the state asserts that between June 1985 and June 11, 1988, the defendant allowed Gilbert to travel continuously and repeatedly without a police escort. Said occurrences, the state alleges, included approximately forty-seven skydiving trips.
On June 10, 1991, the special statewide grand jury investigating matters relating to the custody of Peter Gilbert, returned an indictment charging the defendant with violating R.I. Gen. Laws 1956 (1981 Reenactment) §
The Providence Police Department has received much criticism regarding the custody of Peter Gilbert. The actions of the police officers in charge of that custody, including the defendant, were blatantly inappropriate. Clearly, mistakes were made.1 The paramount issue here, however, is not whether the defendant's conduct was appropriate; certainly it was not. The issue is whether the defendant's conduct was criminal.
Officer negligently allowing escape. — Every jailer or other officer who shall be convicted of negligently suffering any prisoner in his custody upon conviction or upon any criminal charge to escape, shall be punished by imprisonment for not more than (5) five years, or by a fine of not more than five hundred dollars ($500), or both.
In general, the state is required to prove every element of a crime beyond a reasonable doubt. Therefore, if as a matter of law an element of a crime cannot be proved, the indictment must be dismissed. The elements which must be proved under §
The determination of whether the defendant was negligent is a question of fact to be decided by the jury; thus it will not be addressed here. Assuming arguendo, however, that the defendant was negligent in allowing Gilbert to travel unaccompanied, that negligence would not be culpable unless Gilbert actually escaped. Therefore, addressing the defendant's motion to dismiss, this court is limited to the threshold inquiries of whether the defendant was a "jailer or other officer" and whether Gilbert committed an escape from lawful custody, within the meaning of §
The defense asserts that Title 11, Chapter 25 of the Rhode Island General Laws targets the Adult Correctional Institution and therefore does not contemplate the defendant. The defendant avers that the language used in other sections within Chapter 25 indicates that §
Specifically, defendant points to §§
This court does not agree with defendant's interpretation. The language in §§
Practically speaking, to construe §
Section
The defendant alternatively argues that if this court determines that §
At the time of the incidents giving rise to this action, the defendant was a lieutenant in the Providence Police Department. Furthermore, he was certainly aware of the fact that Gilbert was a recently convicted murderer. This court is satisfied that as a police lieutenant and career law enforcement officer, the defendant was clearly an individual of at least ordinary intelligence. As such, the defendant was certainly aware that he would be subject to recourse if he negligently allowed a convicted murderer, with whose custody he was charged, to escape. Therefore, application of §
For the reasons set forth above, this court finds that §
The term custody does not necessarily connote physical restraint or incarceration. As the defense aptly points out, the word "custody" may mean anything from release on personal recognizance to 24-hour lock-up. Black's Law Dictionary
describes custody as follows: "[t]he term is very elastic and may mean actual imprisonment or mere power, legal or physical, of imprisonment of taking manual possession." Black's LawDictionary (6th Ed. 1986). Furthermore, in Lemme v. Langlois,
the Rhode Island Supreme Court held that a person on bail remains in custody in the eyes of the law.
This court finds that Gilbert's status as a prisoner, while traveling unaccompanied, was akin to that of a prisoner on a work release or furlough program thus constituting custody within the holding of Furlong. Certainly, Gilbert did not have all the liberties afforded a free man, because his failure to return would have rendered him a fugitive from justice. Although he was not under direct supervision, the restraints placed on him were at least as burdensome as those placed on an individual on bail.Cf. Lemme v. Langlois, supra. Therefore, consistent withLemme v. Langlois and State v. Furlong, this court finds that the Providence Police maintained custody of Gilbert while he travelled without police escort.
The next issue this court addresses is whether Gilbert effectuated an escape while he was unaccompanied. So long as Gilbert intended to, and did, return, then he did not possess the requisite mens rea to absent himself from lawful custody, and hence did not commit an escape. Gilbert is now deceased. It is therefore impossible to ascertain his state of mind during his unaccompanied trips.
According to the state, Gilbert went on approximately 47 skydiving trips similar to the one he was on when he died, as well as numerous unaccompanied visits with friends, doctor's appointments, and meetings with his lawyer. Since he returned each time, this court is satisfied that he did not have the requisite intent to escape on any of those occasions. Furthermore, there has been no evidence presented which would indicate that Gilbert's last unaccompanied trip was different in any significant respect from his previous trips. After careful examination of Gilbert's actions this court is satisfied that there is insufficient evidence to support a finding beyond a reasonable doubt that Gilbert did not intend to return from his last fateful excursion, and hence did not commit an escape.
The state claims that the defendant's unaccompanied trips themselves constituted escapes. To support this position, the state points to a Memorandum of Agreement (MOA), which the state suggests embodies the agreement among Gilbert, the Attorney General's Office, and the Providence Police Department. The state relies specifically on paragraph 7 and 9 of this MOA, which read as follows:
7. The defendant understands that he will be remanded to and in the custody of the Providence Police, until such time as his sentences have been completed.
9. While the defendant is remanded to the Providence Police custody, his freedom is restricted to that authorized by the Providence Police and in any event at no time during his sentences will he be without law enforcement detention.
The state avers that this agreement is a formalization of a plea between the state and Gilbert, and that pursuant thereto the defendant had the responsibility for the Providence Police to assure compliance with its conditions, including the requirement that Gilbert remain in "law enforcement detention" during the term of his sentence. This court, however, does not agree with the state as to the significance of this MOA.
There is no evidence that this agreement was formally executed. The only copy provided to this court is not signed by any of the parties that the state contends are bound by its terms. Furthermore, it was not signed by a judge and therefore lacks the binding effect of a court order.
The document does indicate in typed print that the parties to the agreement are Peter Gilbert, the Attorney General's Department, and the Providence Police. During oral argument before this court on February 4, 1992, the state took the position that the agreement is binding upon the parties listed thereon.
This court's findings do not comport with the state's position. Absent signatures of the parties to this MOA, it is not effective. Moreover, the defendant was not specifically named thereon. The parties listed at the beginning of the document were Peter Gilbert, the Rhode Island Attorney General's Department, and the Providence Police. This court is unwilling to hold the defendant criminally responsible for the terms of an agreement which is not a court order, and to which he was not a signatory.
The first instance in which the defendant was named as having any responsibility regarding the custody of Gilbert was in the petition signed by a Justice Orton, on June 26, 1987. Pursuant to this petition, Gilbert was to be transferred to an undisclosed safehouse, and his custody at that location was to be controlled according to the discretion of the Providence Police Department, and under the command of the defendant.
Neither the waiver signed by Gilbert, by which he was originally placed in Providence Police custody, nor the June 26, 1987 petition, indicates that Gilbert was to remain incarcerated during the term of his sentence.3 The terms and limitations of Gilbert's custody were within the purview of the defendant's authority. Thus, if the defendant, as the state pleads, gave Gilbert permission to travel unaccompanied, then technically he remained in Providence Police custody provided he acted within the guidelines of that permission. Therefore, since Gilbert returned on every occasion, this court is satisfied that his unaccompanied trips did not constitute escapes within the meaning of the law. Accordingly, since Gilbert did not escape, the defendant cannot be held responsible for negligently suffering that escape.
The state also argues that allowing Gilbert to travel unaccompanied constituted escape under the Florida and Maine sentences. To support this assertion the state points to language in the Maine Superior Court order of Judgment and Commitment which states that Gilbert was to be in the "custody of the Maine State Prison, to be punished by imprisonment for a term of [ten] years, concurrent with the time now serving in Rhode Island."4 The state asserts that this language indicates that the Maine Superior Court expected that Gilbert would be imprisoned while serving his sentence in Rhode Island.
The state fails to note, however, that it was the Rhode Island Attorney General's Department that appeared before the Florida and Maine Superior Courts and requested that Gilbert remain in Providence Police custody while serving the sentences imposed by those courts. Furthermore, the state fails to point out that it was the Rhode Island Attorney General's Department that subsequently presented the petition to Judge Orton requesting that Gilbert be transferred to a safehouse where the terms of his custody were entirely within the undefined discretion of the Providence Police, with the defendant specifically named as the individual in charge. Essentially, the state is attempting to hold the defendant criminally liable for acting within authority procured by the state from the Rhode Island Superior Court. This court is not prepared to do so.
The fact that this court is dismissing the indictment against the defendant is no testimony as to the propriety of his conduct. This motion is granted solely on the grounds that due to the absence of specific guidelines for Gilbert's custody and to the discretion accorded the defendant, Gilbert's actions technically did not constitute escape. Clearly, the defendant's actions afforded Gilbert the opportunity to escape. Fortunately for the defendant, Gilbert chose not to do so. The irony of this situation is that the defendant is relieved of all criminal liability because Gilbert did not take advantage of the engraved invitation to escape which the defendant presented to him. This court believes that had Gilbert decided to escape he certainly could have done so and the defendant would have found himself dangling from the other end of the rope.
For the reasons set forth herein, the defendant's motion to dismiss is hereby granted.
Lemme v. Langlois , 104 R.I. 352 ( 1968 )
State v. Furlong , 110 R.I. 174 ( 1972 )
State v. Alegria , 1982 R.I. LEXIS 994 ( 1982 )
People v. Rivera , 37 Colo. App. 4 ( 1975 )
Little v. Conflict of Interest Commission , 121 R.I. 232 ( 1979 )