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State v. Veltri1/11/2001
t raised before or during trial, the state posits, defendant's belated Carcieri arguments were waived and should not have formed the basis for vacating his conviction and dismissing the charges against him.
Second, the state contends, even if defendant's invocation of Carcieri had occurred before the guilty verdict, dismissal of the charges still would have been too drastic a remedy. According to the state, Carcieri itself held that a dismissal of the charges would not constitute an appropriate remedy for a violation of § 12-7-20 *fn3 -- except as a last resort in a case involving extreme and substantial prejudice to a defendant. This, the state contends, was not such a case.
We agree with the state that the trial justice erred in relying upon Rule 33 in this case as a predicate to dismissing the charges against defendant. The second sentence of Rule 33 provides that, in response to a defendant's motion for a new trial, the court in a non-jury case may vacate the judgment, take additional testimony, and then direct the entry of a new judgment. As the state suggests, it is the taking of new testimony that allows the court to direct the entry of a new judgment based upon the additional evidence presented. *fn4 But Rule 33 does not authorize the court to vacate a judgment of conviction for a mere perceived error of law that could have been but was not raised before or during the trial.
Here, the trial justice vacated the conviction based upon the failure of the police to provide defendant with a free telephone call after his arrest. But if this constituted an error, it was not one "occurring at the trial." Super. R. Crim. P. 33. And if defendant properly had raised a challenge to the lack of a free phone call either before or during his trial, *fn5 the trial justice could have ruled on that motion at that time. In any event, such a ruling by the trial justice, if erroneous, would have been an error of law that was not subject to review under Rule 33 on a motion for a new trial.
In short, defendant waived any right to challenge the failure of the arresting officer to provide him with access to a free telephone call by failing to do so before or during his trial. Thus, the trial justice erred in relying upon Rule 33 to grant the requested relief, not only because he vacated the verdict and dismissed the case without taking any additional testimony, as the rule requires, but also because the mere failure of the police to comply with this obligation is not necessarily a ground for vacating the verdict and entering a new one.
Moreover, based upon this Court's opinion in Carcieri, we conclude that the sanction of dismissing the charges for failing to provide defendant with the requisite telephone call was too extreme a measure in this case. Carcieri involved certified questions to this court relative to § 12-7-20. Carcieri, 730 A.2d at 13.
That statute provides that a person who has been arrested must be permitted to make a confidential telephone call as soon as a practicable opportunity arises for the purpose of contacting an attorney or arranging for bail. The focus in Carcieri was on the confidential nature of the telephone call provided to the defendant. Id. The defendant in that case initiated three calls in an unsuccessful attempt to contact an attorney. During those calls, a police officer stood approximately eight feet away from him. Id. We ruled that the mere presence of the police officer was not a per se violation of the defendant's right to a confidential telephone call. Id. at 15. In so ruling, however, we pointed out that "a suspect is entitled, at minimum, to a telephone call free of charge on an unrecorded line." Id. That one sentence, it appears, is th
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