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State v. Veltri1/11/2001
e sole basis on which the trial justice in this case vacated the verdict and then dismissed the charges.
Although we stated in Carcieri that § 12-7-20 requires police officers to notify suspects of their right to a confidential telephone call, 730 A.2d at 15, we further opined that "the failure to notify a suspect of his right to use a telephone is not fatal to the state's case unless a defendant is prejudiced thereby." Id. More specifically, we held that a violation of § 12-7-20 does not necessarily require a dismissal of the charges against a defendant. 730 A.2d at 16-17. We pointed out that even in cases in which evidence has been obtained in violation of the defendant's constitutional or statutory rights, *fn6 the remedy usually imposed is not to dismiss the indictment or charges, but to suppress any evidence obtained because of the violation or to order a new trial if any such evidence has been wrongfully admitted. Id. at 16. And we noted that certain violations of an arrestee's rights are subject to a harmless-error analysis. Id. Also, when determining the appropriate remedy for police or prosecutorial misconduct, we stated that dismissal "is employed only as a last resort, and is limited to cases of extreme and substantial prejudice." Id. Finally, we concluded, in the absence of a showing of substantial prejudice, and based upon the facts of that case, the defendant was not entitled to a dismissal of the charges against him. Id. at 17.
Similarly, we hold that, because the defendant in this case made no showing of having suffered any substantial prejudice after the police had failed to provide him with a free telephone call, he was not entitled to a dismissal of the charges against him. As the state points out, all the evidence used to convict the defendant had been obtained lawfully before the defendant even arrived at the police barracks, where he was directed to the pay telephone. Thus, the failure of the police to have provided the defendant with a free telephone call at this late juncture in the evidence-gathering process constituted only harmless error. Certainly, the defendant failed to establish that he suffered any substantial and irremediable prejudice as a result of the arresting officers' failure to provide him with a free telephone call. Moreover, the mere possibility that the defendant may have been able to telephone a lawyer, who in turn may have helped him to arrange for his own breath-analysis test, which, if it were to have generated results that were favorable to the defendant, may have provided him with some exculpatory evidence to counter the prosecution's case, provided a much too attenuated, hypothetical, and speculative scenario to constitute a showing of substantial prejudice.
For the reasons set forth herein, we grant the state's petition for certiorari, quash the trial justice's dismissal of the complaint, and remand the papers in this case to the Superior Court with this Court's opinion endorsed thereon and with directions for that court to re-enter the original judgment of conviction.
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