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State v. Milazzo

6 Citing cases

  1. State v. Ashness

    461 A.2d 659 (R.I. 1983)   Cited 51 times
    Holding that "the lack of a formal tender of the witness as an expert and a specific ruling thereon before treating him as an expert and allowing him to testify as such did not constitute prejudicial error"

    Id. at 278, 38 A. at 654; accord, State v. Barella, 73 R.I. 367, 375, 56 A.2d 185, 188-89 (1947). In State v. Milazzo, 116 R.I. 443, 447, 358 A.2d 35, 37 (1976), we reaffirmed the ruling that the actual present ability of the defendant to inflict harm on the victim by using a dangerous weapon is an element of the offense of assault with a dangerous weapon. The evidence shows that Mr. Jones was standing approximately five feet away from the gunman when he fired two shots in the direction of Mr. Bradley.

  2. State v. Marrapese

    583 A.2d 537 (R.I. 1990)   Cited 10 times

    We are not persuaded that we should reconsider these cases in the light of the circumstances of this case. In respect to the suggestion that the trial justice has an obligation to outline the defendant's theory of defense, he cites State v. Milazzo, 116 R.I. 443, 447, 358 A.2d 35, 37 (1976). The defendant's reliance on this case is misdirected.

  3. State v. Jeremiah

    546 A.2d 183 (R.I. 1988)   Cited 25 times
    Noting the well-established rule that "'[t]o constitute an assault with a dangerous weapon it is necessary that the weapon should be presented at the party intended to be assaulted, within the distance at which it may do execution'"

    20 R.I. at 278, 38 A. at 654; accord, State v. Barella, 73 R.I. 367, 375, 56 A.2d 185, 188-89 (1947). In State v. Milazzo, 116 R.I. 443, 447, 358 A.2d 35, 37 (1976), we reaffirmed the principle that the actual present ability of the defendant to inflict harm on the victim by using a dangerous weapon is an element of the offense of assault with a dangerous weapon. See State v. Ashness, 461 A.2d 659, 665 (R.I. 1983).

  4. State v. Hockenhull

    525 A.2d 926 (R.I. 1987)   Cited 52 times
    Holding subsequent entry and seizure by officers other than the initial officers does not fit under the purview of the plain view exception

    A trial justice's refusal to give an instruction to which the defendant is entitled may constitute prejudicial error. State v. Robalewski, 418 A.2d 817 (R.I. 1980); State v. Milazzo, 116 R.I. 443, 358 A.2d 35 (1976); State v. Butler, 107 R.I. 489, 268 A.2d 433 (1970); Macaruso v. Massart, 96 R.I. 168, 190 A.2d 14 (1963). We have repeatedly stated that a criminal defendant is entitled to an instruction on a lesser included offense if such an instruction is warranted by the evidence.

  5. State v. Cipriano

    430 A.2d 1258 (R.I. 1981)   Cited 18 times
    Considering the instruction as a whole and concluding that the trial justice's language requiring the state to prove all elements of the crime beyond a reasonable doubt “effectively neutralized any potential burden-shifting effect that charges, standing alone, might have had on the jury”

    We do not dispute that G.L. 1956 (1969 Reenactment) § 8-2-38 requires the trial court to instruct the jury on the law regarding the issues raised by the evidence in a case, whether criminal or civil, in order to ensure a person's constitutional right to a fair trial. State v. Milazzo, 116 R.I. 443, 358 A.2d 35 (1976). Indeed, "it is almost universally held that where there is evidence in support of any defense offered by an accused, * * * the court should present the issue by an affirmative instruction which fully and fairly declares the law applicable thereto."

  6. State v. Vargas

    420 A.2d 809 (R.I. 1980)   Cited 31 times
    In State v. Vargas, 420 A.2d 809 (R.I. 1980), this court determined "that a party who is surprised by his own witness's testimony may be permitted, in the discretion of the trial justice, to confront the witness with prior inconsistent statements. * * * The rule that a party may not ordinarily impeach his own witness may also be relaxed even in the absence of an allegation and finding of surprise when, in the view of the trial justice, the interests of justice so require."

    Although failure to request a specific instruction does not excuse the trial justice from his general obligation, on appeal a defendant may not challenge the trial justice's failure to so instruct the jury unless at trial he objected to the charge as given. State v. Milazzo, 116 R.I. 443, 447-48, 358 A.2d 35, 37 (1976); cf. State v. Hoyle, R.I., 404 A.2d 69 (1979) (failure to object to adequacy of cautionary instructions bars challenge on appeal). We conclude that the defendant has failed to preserve for our review his challenge to the trial justice's charge to the jury.