State v. Willie Washington , 189 A.3d 43 ( 2018 )

June 29, 2018
Supreme Court
No. 2016-151-C.A.
(P2/15-1538AG)
State :
v. :
Willie Washington. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2016-151-C.A.
(P2/15-1538AG)
State :
v. :
Willie Washington. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Willie Washington, was found
guilty by a jury of four offenses in connection with a shooting that occurred in Providence on
November 15, 2014.1 Following the denial of his motion for a new trial, the defendant was
sentenced to a total of sixty years to serve, with twenty years of that sentence designated as
nonparolable. On March 8, 2016, the defendant timely appealed from the judgment of
conviction.
This appeal has traveled somewhat of an unusual course since it was docketed.
Approximately one year after the appeal was filed, on April 28, 2017, defendant filed in this
Court a motion to hold the appeal in abeyance and remand the matter to the Superior Court to
allow him to seek a new trial based on alleged violations of Brady v. Maryland, 373 U.S. 83
(1963); the state objected. This Court denied defendant’s motion to hold the appeal in abeyance,
but granted the remand motion. This Court remanded the portion of the record necessary for the
1
The offenses are: count 1, carrying a firearm without a license, in violation of G.L. 1956 § 11-
47-8(a); count 2, assault with a dangerous weapon by discharging a firearm and causing injury to
Rudy Basquez, in violation of § 11-47-3.2(b)(2); count 3, possession of a firearm with a previous
federal court conviction, in violation of § 11-47-5; and count 4, assault with a dangerous weapon,
in violation of G.L. 1956 § 11-5-2.
-1-
Superior Court to hear and decide defendant’s Brady-related motion for a new trial. On June 19,
2017, a hearing on the alleged Brady violation was held before the same justice of the Superior
Court who presided over defendant’s trial. Four days after the hearing concluded, defendant
filed a motion to recuse the trial justice. The trial justice held a hearing on defendant’s recusal
motion on June 26, 2017; and, on July 19, 2017, the trial justice issued a decision denying both
the Brady-related motion for a new trial and the recusal motion.
This matter is again before this Court. The defendant now challenges his conviction on
five grounds, contending that the trial justice erred by: (1) denying defendant’s motion to
suppress two witnesses’ show-up identifications; (2) admitting the recording of an anonymous
911 call at trial; (3) “failing to implement the letter and spirit of this Court’s remand order” in the
trial justice’s consideration of defendant’s Brady claim; (4) failing to find that the state withheld
information in violation of Brady after dialing the anonymous 911 caller’s phone number and
speaking with an individual prior to trial; and (5) denying defendant’s motion to recuse. After
careful consideration of defendant’s arguments and a thorough review of the record, we affirm
the judgment of conviction.
I
Facts and Procedural History
A
The Shooting
It is undisputed that on November 15, 2014, at approximately 1 a.m., Rudy Basquez, Jr.,
a food-delivery driver, was shot in the arm in a road-rage incident. Basquez was driving on
Huxley Avenue in Providence after making a food delivery on the Providence College campus
when he saw his brother, Michael Pickering, a food-delivery driver for another establishment,
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parked on Huxley Avenue. Basquez stopped his vehicle next to Pickering’s, and the two
conversed; in doing so, they blocked traffic in both directions. During their conversation, a dark-
colored SUV pulled up behind Basquez’s car, and its driver yelled profanities and repeatedly
honked the SUV’s horn because Basquez’s vehicle was blocking his passage. Basquez and the
driver of the SUV both exited their vehicles and a verbal argument took place. As Basquez and
the SUV driver returned to their respective vehicles, Basquez observed the passenger door of the
SUV open and heard “multiple pops”; Basquez suffered a gunshot wound to his arm. The SUV
subsequently drove off.
B
Pretrial Motions
1
Show-Up Identifications
Prior to trial, defendant sought to suppress identifications made by two percipient
witnesses. At a hearing on defendant’s motion, the following evidence emerged.
Testimony of Laura Ferretti and Brianna Sheetz
On the evening of November 15, 2014, Laura Ferretti and Brianna Sheetz were visiting
friends at Providence College together, and they attended a party. They each claimed to have
consumed one beer approximately two hours before the incident. At 1 a.m., Ferretti and Sheetz
were sitting in Sheetz’s car waiting for friends before they began their drive back home to
Connecticut. Ferretti was sitting in the driver’s seat and Sheetz was sitting in the passenger’s
seat, when a smaller vehicle pulled up alongside Sheetz’s car. The driver of the smaller vehicle
stopped to talk with someone, whom the women could not see, on the other side of the street. A
larger vehicle then pulled up behind the smaller vehicle. Ferretti described the larger vehicle as a
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“greenish-blue” Jeep, “like an SUV.” Sheetz similarly described the larger vehicle as an SUV.
When asked the color of the SUV, Sheetz first stated that she did not recall, then subsequently
stated, “It was light-colored, I believe.”
Then, a heated argument between the occupants of the two vehicles erupted. Ferretti
testified that the SUV honked at the smaller car, and the man in the smaller car exited his vehicle
and “mouth[ed] off” at the SUV driver. Ferretti then saw someone exit the SUV, but she did not
recall from which door he exited. Sheetz testified that both drivers were outside of their vehicles
during the argument. Both Ferretti and Sheetz then witnessed an occupant of the SUV fire
several gunshots in the direction of the smaller vehicle. Ferretti testified that, once the gunshots
began, she and Sheetz put their seats back and made no further observations. Sheetz, however,
recalled that when Ferretti told her “to get down,” she did not duck immediately, but instead
continued to watch as the shooter entered the passenger-side door of the SUV and the vehicle
drove off.
Ferretti testified that the shooter was a tall, average-build, African-American male with a
black beard who was wearing a dark-colored sweatshirt and a dark-colored beanie. Sheetz
described the shooter as “very tall,” with a muscular build, a “light African-American” skin tone,
and wearing a “dark jacket, navy blue probably, or black” with no hood, and a beanie hat.
Sheetz described the shooter’s face as round with facial hair and noted that her opportunity to
observe the shooter’s face was “okay.” When Ferretti was asked if she “g[o]t a good look at [the
shooter’s] face,” she testified “Yes” and described the viewing conditions as well-lit under the
street lamps. Ferretti further testified that she observed the shooter for the “entire time that he
* * * walked out of his car and shot at the [victim,]” which lasted approximately one minute or
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less. Sheetz, however, was uncertain regarding the length of the incident, but indicated that she
observed the shooter for a few minutes.
Ferretti and Sheetz both spoke to officers at the scene following the shooting and then
were transported to the Providence police station. Approximately one hour after the shooting,
Ferretti and Sheetz were driven separately to another location to participate in two discrete show-
up identifications. Ferretti recalled that, prior to the show-up, Detective Ronald Riley, Jr.
informed her that “[the suspect] was going to come out of the police car that they had put him in,
and we were just going to look at him and see if we recognized him.” When they arrived to the
show-up location, Ferretti sat in a police vehicle wearing her contact lenses and viewed the
suspect, without any problem, from approximately thirty-one feet away. The suspect was
removed from a marked police cruiser without handcuffs and under spotlights. Ferretti testified
that there were approximately five officers present at the show-up who were either standing near
the suspect or sitting inside the six marked police cruisers parked close by. Ferretti identified the
suspect as the shooter, had “no doubt” in her identification, and, in particular, recognized the
suspect’s dark-colored sweatshirt and his beard, and noted that he had the “same face” as the
shooter. During the pretrial hearing, Ferretti identified defendant in the courtroom as the
shooter.
Prior to the show-up with Sheetz, Detective Robert Melaragno informed her that she
would be viewing “a possible suspect” and instructed her “that * * * if [she] knew who he was,
to identify him.” While sitting in a police cruiser, Sheetz observed a suspect, well-lit by the
cruiser spotlights, from approximately thirty feet away. Sheetz observed two or three officers
near the suspect, but she could not recall if there were others in the vicinity. She testified that
she “knew it was him when [she] saw him” and that “[h]e was the exact same person as the man
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from the shooting. He was the same height, same build, same outfit, same face.” During the
pretrial hearing, Sheetz stated that she had no doubt that it was the same person; however, during
the show-up, she had told Det. Melaragno that she was only 90 percent certain. She testified that
she had slightly minimized her expression of certainty during the show-up because she “didn’t
want to be wrong,” but testified that she “think[s] that [she] was always sure.” On cross-
examination, when asked why her disposition changed from uncertain to certain, Sheetz
explained that she “had time to think about it.” During the pretrial hearing, however, Sheetz was
unable to identify defendant in the courtroom as the shooter.
Testimony of Patrolman Matthew McGloin
Patrolman Matthew McGloin had been a member of the Providence police department for
six years. On the night of the shooting, Officer McGloin heard a radio broadcast regarding a
shooting on Huxley Avenue that referenced a license plate that he subsequently determined to be
actively registered to defendant. In an effort to locate defendant, he researched defendant’s
visitor list from an earlier incarceration, which included defendant’s girlfriend’s Providence
address. Officer McGloin and Patrolman Sean Lafferty then proceeded to that address to
investigate. Upon arrival, Officer McGloin observed a pickup truck with the engine running
parked on the street adjacent to the residence. The officers drove by the pickup truck, shined a
spotlight inside, and recognized the driver to be Sterling Washington.2
After surveilling the residence, the officers followed as Sterling Washington and an
unidentified passenger drove away in the pickup truck. The officers attempted to stop the pickup
2
The defendant noted in his brief that the familial relationship between Sterling Washington and
defendant is unclear from the record. The state indicated that, following the shooting, Bazquez
identified Sterling Washington, through a photo array, as the driver of the SUV. At trial,
Basquez testified that he had “picked out the gentleman that [he] argued with [at the scene]”
from the photo array.
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truck; the pickup truck slowed down but failed to stop, and the unidentified occupant jumped out
and ran. Officer McGloin recognized that person to be defendant. After radioing for backup
assistance, Officer McGloin and Officer Lafferty chased defendant on foot. Later testimony at
trial revealed that the officers had directed defendant to stop, eventually tackled him, placed him
in handcuffs, and took him into custody.
Testimony of Detective Ronald Riley, Jr.
Detective Ronald Riley, Jr., a member of the Providence police department, had been a
detective for seven-and-a-half years. Detective Riley had responded within five minutes of the
police radio broadcast reporting the shooting on Huxley Avenue. At the scene, Det. Riley spoke
to witnesses Ferretti and Sheetz. After Ferretti and Sheetz had been transported to the police
station,3 Det. Riley learned that a suspect had been apprehended. Approximately ninety minutes
after the shooting, Det. Riley drove Ferretti to the show-up location. Prior to conducting the
show-up, Det. Riley instructed Ferretti that “she was going to be viewing an individual and if she
recognized that individual, to tell [him] so.” Detective Riley further testified that, under street
lights and alley lights, the suspect was removed from the back of a police cruiser, was standing
approximately twenty-five to thirty feet away from Ferretti, was not handcuffed, and was
illuminated by cruiser spotlights. Detective Riley noted that Ferretti positively identified the
suspect as the shooter.
3
Detective Riley testified at trial that, prior to the show-up, Ferretti had provided him with a
description of the shooter indicating that he was a “black male, approximately six feet tall,
wearing dark clothes, dark hoodie, and a darker-colored beanie * * * [with] not a full beard, but a
beard”; however, Ferretti’s description was not recorded until after the show-up procedure had
taken place.
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Testimony of Detective Robert Melaragno
Detective Robert Melaragno testified that he had been a member of the Providence police
department for twenty-one years and a detective for sixteen years. On the evening of the
shooting, Det. Melaragno was tasked with transporting Sheetz to the show-up at approximately
2:30 a.m. Prior to the show-up, he instructed Sheetz that “we were going to view an individual,
and she was to view [the suspect] and tell [him] if she recognized [the suspect].” When Det.
Melaragno arrived with Sheetz to the show-up location, his vehicle’s high beams were trained on
the area where the suspect would be presented for identification, approximately twenty to
twenty-five feet away. The defendant was removed from the back seat of a police cruiser,
without handcuffs, and was surrounded by one or two officers, with other officers in the area.
He testified that Sheetz identified the suspect as the shooter and noted that she was 90 percent
certain in her identification. After transporting Sheetz back to the police station, Det. Melaragno
obtained a recorded statement from her.
Trial Justice’s Decision
After hearing the testimony of the aforementioned witnesses, the trial justice rendered a
decision on defendant’s motion to suppress the identifications made by Ferretti and Sheetz. The
trial justice found that the show-up procedures were marred by “some suggestivity[.]” He
concluded, however, that the witnesses’ identifications were nonetheless admissible because the
suggestiveness of the identifications was “overcome by the reliability and the independent
memories of the two witnesses.”
-8-
2
Admissibility of the Recording of the 911 Call
During the same pretrial hearing, defendant also contested the admissibility of a
recording of a 911 call purporting to provide the license plate number of the shooter’s vehicle.4
The defendant argued that the 911 call was inadmissible because it did not fall under any of the
exceptions to the hearsay rule. Specifically, defendant contended that the recording provided no
foundation to find that the anonymous caller personally observed the license plate. Ultimately,
the trial justice found that the caller “was a percipient witness” to the license plate because he
identified the buildings on campus located in the vicinity of the shooting, indicated that he heard
gunshots, demonstrated a sense of urgency due to the frightening circumstances. In addition, the
trial justice also pointed out that the caller stated “I need you to get here” and the call was
received at the time of the shooting. The trial justice determined that no evidence supported
defendant’s argument that the caller did not personally observe the license plate. The trial justice
found that the caller’s statements about the license plate indicated that he did, in fact, see the
license plate. Accordingly, the trial justice found that the 911 call satisfied the requirement for
the excited-utterance exception to the hearsay rule and deemed it admissible.
C
Trial
The trial began on December 2, 2015. On December 8, 2015, a jury convicted defendant
of four counts: count 1, carrying a firearm without a license in violation of G.L. 1956 § 11-47-
8(a); count 2, assault with a dangerous weapon by discharging a firearm and causing injury to
Rudy Basquez in violation of § 11-47-3.2(b)(2); count 3, possession of a firearm with a previous
4
The license plate number provided in the 911 call was in fact not completely accurate in that it
was missing one digit.
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federal court conviction in violation of § 11-47-5; and count 4, assault with a dangerous weapon
in violation of G.L. 1956 § 11-5-2. Thereafter, defendant was sentenced to a total of sixty years
to serve, with twenty years nonparolable. Approximately one week later, defendant filed a
motion for a new trial, which was denied. Then, on March 8, 2016, defendant filed a notice of
appeal to this Court and argued that the trial justice erred in denying his motion to suppress the
show-up identifications and in admitting the anonymous 911 call into evidence.
D
Remand Hearing
Over a year later, on April 18, 2017, according to an affidavit from an assistant public
defender, the Public Defender’s office spoke with a Providence College student who identified
himself as Chase Rasch. During the phone call, Rasch informed the Public Defender’s office
that he had called 911 on the night of the shooting, had not seen the license plate himself, and
had spoken with a state prosecutor prior to trial, during the summer of 2015.5 This phone call
with Rasch prompted defendant to file in this Court a motion to hold the appeal in abeyance and
remand the matter to the Superior Court on April 28, 2017, alleging that the state had committed
a Brady violation by not disclosing this pretrial phone call with Rasch.
The defendant’s first memorandum in support of his motion to remand alleged that the
state failed to disclose material and exculpatory evidence related to the 911 call, in violation of
defendant’s right to due process under both the Rhode Island and United States Constitutions.
The defendant contended that the state withheld the following information: (1) the state’s phone
call with the 911 caller prior to trial; (2) the identity of the 911 caller; (3) Rasch’s interactions
with police at the scene, namely that he provided police with his name and contact information;
5
It was later revealed that the 911 caller’s name is Stephen Charles Rasch.
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and (4) the fact that the state decided not to call Rasch as a witness at trial, list him in discovery,
or disclose his identity.
Then, in a second memorandum submitted to this Court, defendant indicated that, on May
1, 2017, according to an affidavit from a second assistant public defender, the Public Defender’s
office spoke again with Rasch. According to that affidavit, Rasch called to make a correction to
his previous statement: he had actually spoken with the prosecutor during the week of
Thanksgiving 2015—immediately preceding defendant’s trial—and not during the summer of
2015, as he had previously reported.
On May 15, 2017, this Court denied defendant’s motion to hold the appeal in abeyance,
but granted his motion to remand and ordered that a hearing on defendant’s Brady-related motion
for a new trial take place in the Superior Court within ninety days.
1
Brady Violation
On remand, a hearing on defendant’s Brady-related motion for a new trial took place on
June 19, 2017, before the same trial justice who presided over defendant’s trial. See Brady v.
Maryland, 373 U.S. 83 (1963). At the hearing, the following testimony and documentary
evidence was presented.
Testimony of Special Assistant Attorney General Peter Roklan
Special Assistant Attorney General Peter Roklan testified that he had been a special
assistant attorney general for more than ten years. He indicated that the recording of the 911 call
was requested on November 18, 2015, twelve days prior to the scheduled trial date. He
explained that a few weeks prior to trial, Special Assistant Attorney General Joseph McBurney
joined the prosecutorial team, noticed that the 911 recording was not in the case file, and ordered
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it immediately. Roklan testified that he was not seeking any particular information from the 911
recording, but that “[i]t was just something that [they] realized [they] didn’t have.” He testified
that the state received the 911 recording on November 23, 2015, and sent it to defense counsel
the following day, November 24, which was two days before the Thanksgiving holiday and one
week prior to trial. During the afternoon of November 24, Roklan dialed the 911 caller’s phone
number and spoke to someone. Roklan explained that the individual did not provide a name or
“anything of substance[,]” and only relayed that “they wanted nothing to do with the case.” He
did not recall much of what was said during the seven-minute and forty-two-second phone call,
only that he came away unsure as to whether the individual was in fact the 911 caller. Roklan
maintained that he did not learn that another person was on the scene with the 911 caller during
the phone call, reasoning that, if he had, he would have pursued that person as a potential
witness.
Roklan testified that he had no explicit recollection of informing defense counsel about
the phone call, but noted, “I think we talked about it, but I don’t have a specific memory of ever
saying that we actually reached someone.” In addition, he stated that the fact he had reached
someone was “not something that we were trying to hide or not tell [defense counsel].” Roklan
further noted that the 911 call was not essential evidence to the state’s case because they had still
intended to proceed to trial without it.
Testimony of Stephen “Chase” Rasch
When Rasch testified at the remand hearing, he was a rising senior at Providence College
originally from Dallas, Texas. When the shooting occurred, he was a nineteen-year-old
freshman. Rasch’s testimony and interviews with police shortly before the remand hearing
confirmed that he was indeed the anonymous 911 caller from the night of the shooting and that
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he did not see the license plate, but rather was relayed the license plate number by Alberto
Batista. He explained that he had been willing to, and did, speak with police at the scene, but
was steadfast in his opposition to testifying at trial.
A year after the shooting, on November 24, 2015, Rasch had received a phone call from
Roklan. At the time, Rasch was on his way to the airport to return to Dallas for the
Thanksgiving holiday break from school. He testified that Roklan identified himself when he
called and explained that he worked at the Attorney General’s office. Rasch confirmed that he
was scared, utterly shocked, nervous, caught off guard, and confused when he answered
Roklan’s phone call because he had been under the impression that his 911 call was anonymous.
He further testified that he was not cooperative and noted that traveling to the airport was “a
stressful time.” Rasch did not recall whether Roklan asked if he was the 911 caller or for his
name. Rasch did recall telling Roklan that he was with another individual at the scene of the
shooting, but noted that he did not provide Roklan with that individual’s name or any other
information about that individual. Rasch testified that he took down Roklan’s name and
telephone number and, after the call concluded, immediately texted the information to Batista,
the individual present at the scene with him. Rasch consistently maintained that he did not want
to testify and was afraid of being a witness at trial. Rasch stated, “I can tell you with certainty, I
did not give [Roklan] any of my information or in any way that would cause me to have to be a
witness within the trial.”
Rasch did not speak with Roklan about the license plate during that phone call because he
did not even realize that he had provided a license plate number during his 911 call until Gil
Wilson, a Texas-based private investigator hired by defendant’s girlfriend, told him that he had.
Rasch had spoken on the phone with Wilson at approximately 9 p.m. on March 17, 2017—St.
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Patrick’s Day—while he was with friends. Rasch provided Wilson with the name of the
individual who accompanied him at the scene of the shooting, Batista. Then, approximately one
week later, Rasch spoke on the phone with Edward Pelletier, a local investigator also contacted
by defendant’s girlfriend. Rasch informed Pelletier that, during his 2015 phone call with Roklan,
he had declined Roklan’s request to be a witness. He testified that the phone call from Roklan
caught him “extremely off-guard,” whereas, by the time he spoke with Pelletier, he was “well
accustomed to receiving numerous phone calls on a daily basis” regarding the case and was
therefore “more prepared to talk” about the shooting at that point in time.
In addition to speaking with Wilson and Pelletier, on April 18, 2017, Rasch spoke on the
phone with two attorneys from the Public Defender’s office. On May 1, 2017, Rasch called the
Public Defender’s office to provide the text messages that he had sent to Batista immediately
following his phone call with Roklan and to correct his previous statement regarding the timing
of the phone call with Roklan. He informed the Public Defender’s office that his phone call with
Roklan took place before Thanksgiving, the week prior to trial, and not during the summer of
2015, as he had previously stated.
On May 1 and 2, 2017, Detective Angelo A’Vant of the Providence police department
conducted two in-person, recorded interviews with Rasch. During the interviews, Rasch
indicated that he did not disclose Alberto Batista’s name to Roklan, nor did he disclose the fact
that it was Batista who saw the license plate, not Rasch. Rasch described himself as
“standoffish” during the call with Roklan. He noted that, because he feared that he would have
to testify at trial, he made it clear to Roklan that he did not want to be part of the case.
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Testimony of Special Assistant Attorney General Joseph McBurney
Special Assistant Attorney General Joseph McBurney testified that he became involved
in the case on November 16, 2015, approximately two weeks prior to trial. He noted that Rasch
had not been included in the state’s case file and was never mentioned in his conversations with
the lead detective in the case.
In preparation for the pretrial motions, McBurney and Roklan decided that Roklan would
handle defendant’s motion to suppress the show-up identifications because Roklan was more
knowledgeable about the eyewitnesses; and McBurney would handle defendant’s motion in
limine to exclude the 911 call because he was more skilled at legal research in that area. At trial,
McBurney conducted the examination of Michael Pickering, the victim’s brother, who had
provided police with three potential license plate numbers for the shooter’s vehicle at the scene,
and Officer Thomas Richards, who spoke with Pickering at the scene about the license plate
numbers. Based on Officer Richards’ police report, McBurney had assumed that Pickering had
seen the license plate himself; however, McBurney later learned from defense counsel that
Pickering had obtained the possible license plate numbers from other unknown sources at the
scene.
In regard to Roklan’s pretrial phone call with Rasch, McBurney testified that, although he
was unsure when it had occurred, he had “a recollection of telling [defense counsel] that we got
an individual who was uncooperative, [and] wouldn’t give a name.” He further recalled that, in
response, defense counsel informed him that her investigator encountered the “same problems.”
McBurney further added in his testimony that the individual that Roklan spoke with had not
indicated whether he was in fact the person who made the 911 call. McBurney also
acknowledged that, during the hearing on defendant’s motion in limine to exclude the 911 call,
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he did not inform the trial justice that the state had reached someone by dialing the 911 caller’s
phone number, but explained that such a disclosure was not warranted because the phone call
had revealed only an anonymous person who did not want to provide any information.
McBurney noted that, if he had learned the caller’s name and that he was a student at Providence
College, he would have sought a subpoena for his testimony.
Testimony of Assistant Public Defender Sarah Potter
Assistant Public Defender Sarah Potter testified that she had been employed by the Public
Defender’s office for eight years and had worked on this case from its inception. On October 29,
2015, Potter learned that Pickering did not personally observe the license plate at the scene, but
that he had been relayed the potential license plate numbers from unknown sources at the scene.
Potter shared that information with Roklan in a passing conversation in the hallway of the
courthouse at some point before the originally-scheduled trial date. She testified that neither
Roklan nor McBurney informed her that Roklan had reached someone at the 911 caller’s phone
number prior to trial.
During the hearing on defendant’s motion in limine regarding the admissibility of the 911
call, Potter informed the trial justice that she and an investigator for the Public Defender’s office
had attempted to call the phone number associated with the 911 call, but were unsuccessful in
reaching the caller. She had instructed the investigator not to leave a voice mail, so as not to
“spook” the caller. It was not until sometime after defendant’s case was on appeal that Potter
learned the identity of the 911 caller. Potter also testified that, after the appeal had been
docketed, Roklan informed her, in another passing conversation, that Rasch’s father had
contacted the Attorney General’s office.
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Trial Justice’s Decision
In a later written decision, the trial justice fully credited Roklan’s testimony that he did
not learn from the pretrial phone call whether Rasch was in fact the 911 caller nor did he learn
that another individual accompanied Rasch at the scene. The trial justice did not deem credible
Rasch’s testimony. Accordingly, the trial justice determined that the state did not commit a
Brady violation, and he denied defendant’s Brady-related motion for a new trial.
2
Recusal Motion
Following the hearing on the Brady-related motion for a new trial, but prior to the trial
justice’s issuance of his decision, defendant filed a motion requesting the recusal of the trial
justice, and a hearing was held before the same justice. The defendant’s recusal request was
based on the fact that McBurney had been working on another case with the trial justice’s
daughter, a special assistant attorney general, in what was scheduled to be her first jury trial. The
defendant deemed this significant because defendant alleged that, in deciding the Brady-related
issue, the trial justice was tasked with weighing McBurney’s credibility against Potter’s
credibility because McBurney had testified that he told Potter about the state’s pretrial phone call
with Rasch, and Potter testified that the state had not. Therefore, defendant argued that
McBurney’s professional association with the trial justice’s daughter created an appearance of
impropriety even though the case on which they had been working had been resolved on the day
of the recusal hearing and prior to the issuance of the trial justice’s decision on defendant’s
Brady allegations.
In his decision, the trial justice found that defendant failed to identify the correct
“credibility contest” at issue in the case. He found that his examination of the testimony at the
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remand hearing was not based on a “credibility contest” between McBurney and Potter, but
instead rested on his assessment of Rasch’s credibility. He further explained that his evaluation
of Rasch’s testimony was determinative because, if Rasch did not relay to Roklan any
information that would trigger a Brady violation, then defendant’s motion was meritless. He
proffered that, if a credibility comparison was necessary, then that comparison was between
Roklan and Rasch, not McBurney and Potter. In addition, the trial justice found that defendant
failed to put forth any evidence demonstrating the existence of any judicial bias. The trial justice
also questioned the timing of defendant’s motion—filed after the remand hearing—and surmised
that defendant was merely judge-shopping. Accordingly, he denied defendant’s recusal motion.
II
Issues on Appeal
Following the trial justice’s decisions on remand, the case was once again before this
Court on appeal. The defendant asserts several arguments on appeal. He maintains that the trial
justice erred by: (1) denying his motion to suppress the two show-up identifications; (2)
admitting the recording of the 911 call at trial; (3) “failing to implement the letter and spirit of
this Court’s remand order”; (4) failing to find that the state had committed a Brady violation; and
(5) denying defendant’s motion to recuse.
A
Show-Up Identifications
The defendant contends that the two show-up procedures were impermissibly suggestive.
Under our well-established jurisprudence, the inquiry to determine whether an identification
procedure, such as a show-up, violated a defendant’s right to due process of law is a two-step
analysis. See State v. Texter, 923 A.2d 568, 573 (R.I. 2007). First, the trial justice must
- 18 -
determine whether the show-up was unnecessarily suggestive. Id. at 574. If the trial justice finds
that the show-up was unnecessarily suggestive, then he or she must look at the totality of the
circumstances to determine whether the identification was nevertheless reliable. Id.
The defendant asks this Court to adopt a rule embraced by the Wisconsin Supreme Court
requiring suppression of an identification absent a showing of exigency or necessity.6
Specifically, he avers that use of the show-up procedure was unnecessary here because police
had probable cause to arrest defendant prior to the show-ups; he points out that “the shooter
escaped in a car registered to [defendant,]” defendant was located by the police “nearby” the
scene of the shooting, and defendant “tried to evade the police.” In the alternative, defendant
asks this Court, under the second step of the analysis, to hold that the factors in Neil v. Biggers,
409 U.S. 188 (1972), traditionally employed by this Court, fail to accurately assess reliability. 7
See State v. Patel, 949 A.2d 401, 412 (R.I. 2008); see also Biggers, 409 U.S. at 199. In support
of his argument, defendant urges this Court to join Massachusetts8 and New York9 in finding “an
unduly suggestive procedure [that] results in identification” per se excludable, thereby negating
the second step of the analysis. Lastly, defendant argues that, even if this Court continues to
6
See State v. Dubose, 699 N.W.2d 582, 596, 599 (Wis. 2005) (holding that evidence obtained
from a show-up is not admissible unless the show-up was necessary and that a show-up is not
necessary unless (1) the police lacked probable cause to make an arrest or (2) exigent
circumstances prevented use of a photo array or lineup).
7
The Neil v. Biggers, 409 U.S. 188 (1972), factors include:
“the opportunity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of
time between the crime and the confrontation.” Biggers, 409 U.S.
at 199.
8
See Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995).
9
See People v. Adams, 423 N.E.2d 379, 384 (N.Y. 1981).
- 19 -
utilize both steps of the analysis, the identifications by Ferretti and Sheetz were unreliable under
the second step.
1
Standard of Review
When reviewing a motion to suppress, we “will not overturn a trial justice’s factual
findings unless they are clearly erroneous.” State v. Harrison, 66 A.3d 432, 441 (R.I. 2013). In
our review of any alleged constitutional violation, we “must make an independent examination
of the record to determine if [the defendant’s] rights have been violated.” Id. (quoting State v.
Goulet, 21 A.3d 302, 311 (R.I. 2011)). This independent examination requires this Court to
“view the evidence in the record in the light most favorable to the state.” State v. Santos, 64 A.3d
314, 319 (R.I. 2013) (quoting Goulet, 21 A.3d at 311).
2
Analysis
In his consideration of the first step of the two-step analysis, the trial justice found that
“some” suggestiveness existed in the show-up procedures employed by the police in the present
case. The trial justice pointed out that defendant “was brought from a cruiser, spotlighted, there
were other officers around[,]” and the witnesses testified that “they assumed that they were going
to see a suspect.” As additional evidence of suggestiveness, defendant refers to the Providence
police department’s deviation from its own policy governing show-up identifications.10 The
Providence police department’s policy instructs that officers conducting show-up identifications
10
In 2010, the Rhode Island General Assembly enacted G.L. 1956 § 12-1-16, which created a
task force composed of members of the criminal justice community charged with “develop[ing]
guidelines for policies, procedures and training with respect to the collection and handling of
eyewitness evidence in criminal investigations by law enforcement agencies in Rhode Island.”
The Providence police department codified an order that includes several of the task force’s
recommendations. General Order 360.08 (2013).
- 20 -
should not display to the witness a suspect detained in a department vehicle. It further directs
officers to give the witness four specific instructions before he or she views the suspect.11 Here,
defendant was presented to both Ferretti and Sheetz after he was removed from a marked squad
car, and neither Ferretti nor Sheetz received explicit instructions pursuant to the department’s
policies. Detective Riley instructed Ferretti that “she was going to be viewing an individual and
if she recognized that individual, to tell [him] so.” Detective Melaragno instructed Sheetz that
“we were going to go, and we were going to view an individual, and she was to view him and tell
[Det. Melaragno] if she recognized him.” Although we underscore the importance of the task
force’s efforts, recognize the dangers associated with eyewitness identification, and encourage
the Providence police department to follow its internal procedures, the department’s departure
from those procedures does not require exclusion of evidence at trial under Rhode Island law if
the identifications were nonetheless reliable. See State v. Gallop, 89 A.3d 795, 803 n.6 (R.I.
2014) (noting that the failure to follow policies and procedures created pursuant to G.L. 1956
§ 12-1-16 does not necessarily render an identification procedure constitutionally deficient);
Patel, 949 A.2d at 412 (holding that independently reliable identifications can be admitted into
evidence even if suggestive in nature).
11
General Order 360.08, the subject title of which is “Eyewitness Investigation: Photographic
Line-Ups, Physical Line-Ups & Show-Ups,” sets forth the following procedure, in pertinent part:
“Prior to the show-up, Department personnel shall provide
the following instructions to the victim/witness and ask the
victim/witness if he/she understands same:
“a. That the suspect being detained may or may not be the
perpetrator;
“b. That it is just as important to clear an innocent person
from suspicion as to identify guilty parties;
“c. That the victim/witness should not feel compelled to
make an identification; and
“d. Regardless of whether an identification is made, the
investigation will continue.” General Order 360.08 III.A.4.
- 21 -
The trial justice, finding “some suggestivity” in the show-up identification procedures in
this case, continued on to the second step of the analysis to determine, based on the Biggers
factors, whether the identifications were nonetheless reliable. The Biggers factors include: (1)
the witness’s opportunity to observe the suspect at the time of the crime; (2) the witness’s level
of attention; (3) the accuracy of the witness’s prior description of the suspect; (4) the witness’s
certainty in his or her identification at the time of the confrontation; and (5) the amount of time
that elapsed between the crime and the identification procedure. Patel, 949 A.2d at 411.
Although this Court has traditionally employed the Biggers factors in its analysis, see id.,
defendant instead encourages this Court to adopt an exigency or necessity requirement that must
be met before police can utilize a show-up identification procedure. The defendant also cites to
Massachusetts and New York cases to support his argument that Rhode Island should reject the
totality-of-the-circumstances approach set forth in Biggers and adopt a rule that an impermissibly
suggestive identification is per se excludable.
We note, however, that “[t]his Court never has adopted a per se rule of exclusion when
police officers have employed a procedure in which they show * * * a single individual to a
witness for the purpose of identifying a suspect.” Patel, 949 A.2d at 411. “We have expressly
stated that such a per se rule would ‘often frustrate rather than promote justice in situations
wherein an identification is reliable despite its unnecessarily suggestive nature.’” Texter, 923
A.2d at 574 (quoting State v. Turner, 561 A.2d 869, 871 (R.I. 1989)). “Moreover, as this Court
has previously indicated, the prosecution is not required to demonstrate that exigent
circumstances existed which necessitated the use of a show-up procedure rather than another
type of procedure.” Id.; see also Patel, 949 A.2d at 411 (concluding that “we never have required
the state to show evidence of exigency when [a show-up] procedure is used”). Thus, we
- 22 -
continue to look to the Biggers factors to determine whether the identification was independently
reliable.
The first factor the trial justice considered was the witnesses’ opportunity to observe the
suspect at the time of the crime. The trial justice heard testimony from both Ferretti and Sheetz
regarding their opportunity to observe the shooter during the commission of the crime. Ferretti
had been sitting in the driver’s seat of Sheetz’s car, with Sheetz in the passenger’s seat, when her
attention was drawn to an argument between occupants of two cars. Once the gunshots began,
Ferretti recalled that she and Sheetz put their seats back and she could no longer see what was
happening outside. Sheetz testified that, despite Ferretti directing her to get down when the
gunfire started, she continued to watch and “didn’t get down immediately.” With respect to
Ferretti’s testimony that she observed the shooter for one minute, the trial justice concluded that
one minute “is a fair amount of time[,]” particularly while both witnesses were staring at the
shooter.
The trial justice next considered the second factor—the witnesses’ level of attention. He
found that each witness’s degree of attention was “quite focused,” as no distractions were
present.
In regard to the third factor, defendant argues that the accuracy of both witnesses’
descriptions of the suspect was tainted because the only recorded descriptions from the witnesses
were taken after the show-up procedure and, therefore, were influenced by the witnesses’
observations of defendant during the show-up. However, we note that, while this testimony was
not elicited at the pretrial hearing, Det. Riley, who transported Ferretti to the show-up, testified at
trial that, prior to the show-up, Ferretti provided him with a description of the shooter that
matched defendant, but the description had not been recorded until after the show-up was
- 23 -
conducted. Detective Melaragno, who transported Sheetz to the show-up, testified that he had
not spoken to Sheetz prior to the show-up because, before he had the opportunity to record a
formal witness statement, he was notified that a suspect had been detained. He explained that
“we wanted to go down and do the show-up prior to spending time doing the witness statement.”
The trial justice determined that “the general description[s]” given by Ferretti and Sheetz
matched defendant.
Fourth, the trial justice analyzed the witnesses’ degree of confidence in their
identifications. The trial justice noted that the witnesses’ level of certainty at the time of their
identifications differed: Ferretti was undoubtedly certain and Sheetz was only 90 percent certain.
The trial justice further noted that Ferretti’s “certainty was demonstrable” and that, over time and
with more thought, Sheetz testified at the pretrial hearing that she was certain of her
identification. We note, however, that Sheetz’s testimony regarding her increased certainty was
elicited before she failed to identify defendant in the courtroom at the pretrial hearing.12
Fifth, the trial justice addressed the amount of time that had elapsed between the
commission of the crime and the witnesses’ identifications of the suspect. The trial justice found
that this factor was not “of any great moment” in this case because the show-up occurred “within
an hour or so” of the shooting.
After examining each of the five factors, the trial justice found that any suggestiveness
surrounding the witnesses’ identifications was “overcome by the reliability and the independent
12
This Court is aware of studies that have proffered that a witness’s confidence in his or her
identification does not necessarily correlate with its accuracy. The defendant argues that a
“witness’s degree of certainty is least useful in determining reliability[,]” whereas the
prosecution points out that the research is not conclusive. In the context of this case, even if the
trial justice had treated this factor as neutral, it would not have affected his determination that the
identifications were reliable in the totality of the circumstances. Suffice it to say that a witness’s
degree of certainty in an identification should be weighed with great caution.
- 24 -
memories of the two witnesses.” We conclude that the trial justice, after considering the totality
of the circumstances, was not clearly erroneous in his finding that the Biggers factors weighed
heavily in the state’s favor, thereby rendering both show-up identifications independently
reliable and properly admitted at trial.
B
Admissibility of the Recording of the 911 Call
The defendant contends that the trial justice erred by allowing a recording of the then-
anonymous 911 call to be admitted as evidence at trial. Specifically, defendant argues that the
911 call, which was admitted under the excited-utterance exception to the hearsay rule, lacks any
indicators that the caller was a percipient witness to the SUV’s license plate number relayed
during the 911 call. On appeal, the state admits that “it appears that defendant’s assessment of
the 911 phone call prior to trial was correct: The 911 caller did not personally obtain the license
plate number at the scene, but received it from a third-party witness.” Therefore, the state
“assumes arguendo that the recording constitutes inadmissible hearsay” and argues that the
erroneous admission of the 911 call at trial nevertheless amounted to harmless error because the
evidence was cumulative.
1
Standard of Review
This Court reviews “a trial justice’s decision regarding the admissibility of evidence
pursuant to the excited-utterance exception to the hearsay rule under an abuse of discretion
standard.” State v. Morales, 895 A.2d 114, 118 (R.I. 2006). “It is well settled in this jurisdiction
that ‘[a]ny decision made by a trial justice concerning the admission of excited utterances shall
- 25 -
not be overturned unless clearly wrong.’” Id. (quoting State v. Krakue, 726 A.2d 458, 462 (R.I.
1999)).
2
Analysis
In general, “[h]earsay is ‘a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’”
State v. Oliveira, 961 A.2d 299, 314 (R.I. 2008) (quoting R.I. R. Evid. 801(c)). “Hearsay is not
admissible except as provided by law.” Id. The excited-utterance exception provides that “[a]
statement that otherwise is hearsay is admissible if it ‘relat[es] to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or condition.’”
Id. (quoting R.I. R. Evid. 803(2)). Further, for the excited-utterance exception to apply, “the
declarant must have had firsthand knowledge of the event to which the utterance pertains”
because “[e]xcitement alone, without the opportunity to observe, cannot meet the essential test of
reliability.” State v. Dame, 488 A.2d 418, 425 (R.I. 1985) (quoting In re Kim, 445 A.2d 295, 296,
297 (R.I. 1982) (concluding that in order for hearsay to be admitted under the excited-utterance
exception as a reliable piece of evidence, the declarant must have personally made the
observation).
At the time of the pretrial hearing, the 911 caller was an anonymous person and the trial
justice admitted the evidence under the excited-utterance exception to the hearsay rule after
listening to the recording and determining that the caller’s statements during that call supported a
finding, in his opinion, that the caller had seen the SUV’s license plate. We perceive no abuse of
discretion by the trial justice based on the information before him at that time. See Morales, 895
A.2d at 118. However, when the Public Defender’s office spoke on the phone with Rasch one
- 26 -
year after trial, it came to light that Rasch was the anonymous 911 caller and did not personally
observe the license plate; rather, the number was relayed to him by a third party. We shall
therefore assume, as does the state, that the recording of the 911 call was inadmissible hearsay.
Consequently, we must determine whether the admission at trial of the 911 call as
evidence of the SUV’s license plate number warrants a new trial or whether it was harmless
error. “[T]he admission of hearsay evidence is not prejudicial when the evidence is merely
cumulative and when [the] defendant’s guilt is sufficiently established by proper evidence.” State
v. Watkins, 92 A.3d 172, 189 (R.I. 2014) (quoting State v. Robinson, 989 A.2d 965, 979 (R.I.
2010)). “‘[C]umulative evidence’ is ‘that which tends to prove the same point to which other
evidence has been offered.’” Id. (quoting Robinson, 989 A.2d at 979). “The test to determine
whether or not an item of evidence is cumulative ‘is a retrospective one, administered at the
close of all the evidence to determine whether the admission of certain evidence was harmless in
light of all the evidence admitted on that point.’” Id. (quoting Robinson, 989 A.2d at 979).
The defendant argues that the admission of the 911 call was not harmless because it was
the strongest evidence of the SUV’s license plate number presented at trial. We disagree. The
911 call provided only additional cumulative evidence of the license plate number. At trial, the
following evidence was presented regarding the SUV’s license plate. After the SUV pulled
away from the scene, Pickering, the victim’s brother, called 911 and told the operator that the
shooter was in a blue Volvo. Pickering also informed Officer Richards, with whom he spoke at
the scene, that he had seen a blue Volvo SUV and provided three potential license plate number
combinations relayed to Pickering by “a guy that came up to [him] and said that he got the plate
* * *.” Officer Richards then called the police dispatcher to determine if any of the three
potential license plate numbers were a match for a blue Volvo SUV. The first two plate numbers
- 27 -
did not match Pickering’s description of the vehicle, but the third was a match for a 2006 blue
Volvo registered to defendant. The jury, therefore, could follow a trail of evidence that led from
the license plate numbers that Pickering relayed to Officer Richards, to Pickering’s description of
the shooter’s vehicle, to Ferretti and Sheetz’s testimony that the shooter was an occupant of a
blue-green SUV, to a blue 2006 Volvo registered to defendant. The evidence adduced at trial
clearly pointed towards defendant, without the assistance of the inaccurate license plate number
provided by Rasch’s 911 call.
The defendant further contends that the recording of the 911 call “packed an emotional
gut punch” at trial that was prejudicial to defendant because “the caller sounded like a distressed
college student, terrified by this shooting on his campus.” We note, however, that the 911
evidence was not the only time the jury heard from “terrified” students and eyewitnesses who
were present at the scene of the shooting: the victim, his brother, Ferretti, Sheetz, and three
students who were freshman at Providence College at the time of the shooting all testified at
trial. Each of the student witnesses provided testimony that demonstrated the fear experienced
by those who found themselves caught in the midst of the on-campus shooting. Pickering’s
testimony, as the victim’s brother, was particularly emotionally charged as he described
watching his brother suffer a gunshot wound and explained that he “thought [his] brother was
dead.” Therefore, we conclude that the emotional nature of Rasch’s 911 call is cumulative in
light of the other emotional testimony adduced at trial.
Additionally, defendant contends that the state’s reference to the 911 call in its closing
argument further demonstrates the import of the 911 evidence to the state’s case and, thus, its
prejudicial effect on defendant at trial. During its closing argument, the state reminded the jury
that:
- 28 -
“We have that anonymous 911 phone call * * *. You heard that
call. And, again, I urge you to listen to it upstairs. You can hear
the person’s voice. They’re nervous. They’re distressed. They’re
right there at the scene. They tell you which dorms are right there,
Guzman and Davis. They’re clearly there. They tell you that they
heard the shots and that they have the license plate. You can hear
it in the voice, I have the plate, he’s trying to get the plate to the
police. And what does he tell the police or what does he tell 911?
43862. He gives five digits. He doesn’t give a full six digits. He’s
missing one. He’s missing that second digit. The defendant’s
plate is 483-862. That 911 caller just missed that second digit, that
8.”
Although the state’s reference to the 911 call in its closing argument drew the jury’s attention
again to the 911 call, the evidence presented at trial indicated that defendant was identified by
two eyewitnesses during show-ups, was located by police less than a mile from the shooting, and
fled from police with Sterling Washington—a man identified in a photo array by the victim as
the driver of the Volvo SUV in which the shooter escaped.
We are convinced that the 911 call was merely cumulative and harmless because
defendant’s guilt was sufficiently established by proper evidence. Thus, defendant was not
unduly prejudiced by its admission, even if erroneous.
C
Brady Violation
We next consider defendant’s post-judgment Brady-related motion for a new trial that
was heard by the trial justice pursuant to this Court’s remand order. The state’s eleventh-hour
request for the 911 call, less than two weeks before the trial was scheduled to commence, left
both the state and defendant in a difficult position, as they separately attempted to reach the then-
anonymous 911 caller days before trial, over the Thanksgiving holiday. The defendant was not
successful in reaching the 911 caller and was under the impression that the caller remained
- 29 -
anonymous. Therefore, the only information regarding the 911 caller known to defense counsel
prior to trial was that he was a male caller with a Dallas phone number.
Over one year after trial, while the appeal of this case was pending before this Court, the
Public Defender’s office spoke with Rasch, who indicated that he was the 911 caller and that he
had spoken with a state prosecutor during the summer of 2015. Then, three days after defendant
filed a motion to remand based on this information, the Public Defender’s office had a second
phone call with Rasch during which he corrected his previous timeline of events and indicated
that he had spoken with the state prosecutor during his Thanksgiving holiday break from school,
which was the week prior to trial. The defendant alleged in his papers in support of his remand
motion that “the state deliberately suppressed and misstated the facts * * *.” Ultimately, after
the hearing, the trial justice denied defendant’s Brady-related motion for a new trial, finding that
the state learned “absolutely nothing of value” during the pretrial phone call with Rasch.
On appeal, defendant makes several arguments in support of his allegation that the state’s
failure to disclose its pretrial phone call with Rasch violated Brady. He maintains that the trial
justice erred by interpreting this Court’s remand order as narrowly directing the Superior Court
to review the matter for only a deliberate Brady violation. Moreover, he contends that the trial
justice’s finding that the state did not commit a deliberate Brady violation was an error. He avers
that, even if the state’s failure to disclose was not deliberate, the pretrial phone call was
nonetheless favorable to defendant’s case and material to the determination of his guilt, and the
nondisclosure thereof constituted a Brady violation.
- 30 -
1
Standard of Review
“When reviewing a trial justice’s decision with respect to whether a violation of Rule 16
or Brady occurred, this Court affords great deference to the trial justice and will not disturb that
ruling unless he or she has committed clear error.” State v. McManus, 941 A.2d 222, 229 (R.I.
2008). “We long have recognized that ‘the trial justice is in the best position to determine
whether any harm resulted from noncompliance with discovery motions * * *.’” Id. (quoting
State v. Brisson, 619 A.2d 1099, 1102 (R.I. 1993)).
2
Analysis
“[T]he due process clause of the United States Constitution requires that the state provide
a criminal defendant with certain information.” State v. Nickerson, 94 A.3d 1116, 1125 (R.I.
2014) (quoting McManus, 941 A.2d at 229). “In accordance with Brady, if a prosecutor has
suppressed evidence that would be favorable to the accused and the evidence is material to guilt
or punishment, the defendant’s due-process rights have been violated and a new trial must be
granted.” Tempest v. State, 141 A.3d 677, 682-83 (R.I. 2016) (quoting DeCiantis v. State, 24
A.3d 557, 570 (R.I. 2011)). To satisfy the degree of materiality necessary to establish a Brady
violation, “a defendant must show that ‘there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.’” Cronan
ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I. 2001) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)). However, materiality need not be demonstrated, and a new trial will be
granted, if the state deliberately suppresses evidence. McManus, 941 A.2d at 229. We have held
that “[t]he prosecution acts deliberately when it makes ‘a considered decision to suppress * * *
- 31 -
for the purpose of obstructing’ or where it fails ‘to disclose evidence whose high value to the
defense could not have escaped * * * [its] attention.’” State v. Wyche, 518 A.2d 907, 910 (R.I.
1986) (quoting United States v. Keogh, 391 F.2d 138, 146-47 (2d Cir. 1968)).
In determining whether a Brady violation occurred, the trial justice’s analysis focused on
specific facts in relation to the state’s pretrial phone call with Rasch, which defendant alleged
that the state failed to disclose. These alleged facts included: the identity of the 911 caller,
Rasch’s conversation with police at the scene during which Rasch provided his name and contact
information, the pretrial phone call between Rasch and the state, the state’s decision “not to call
Mr. Rasch as a witness, list him in discovery, or disclose his identity to the defense[,]” and, in
the alternative, the state’s pretrial phone call “to an unknown individual who refused to
cooperate.”
With respect to whether the state learned the identity of the 911 caller during the pretrial
phone call, the trial justice found that it was “inconceivable that Rasch, who so desperately
wanted to conceal his identity in order to avoid becoming a witness in the case, would have
revealed his name and contact information” to Roklan. He also pointed out that Rasch had
testified during the remand hearing that he believed his 911 call was completely anonymous until
he received the call from Roklan. In addition, the trial justice took note of Rasch’s testimony
that the first time he disclosed his identity as the 911 caller, and named Alberto Batista as the
individual who was with him at the scene, was to private investigator Gil Wilson, after defendant
had already been convicted. The trial justice noted “Rasch’s numerous credibility failings
throughout his testimony[,]” and particularly those in regard to whether he identified himself
during the pretrial phone call or whether he informed Roklan about Batista’s presence at the
- 32 -
scene. In contrast, the trial justice fully credited Roklan’s testimony and found that Roklan
obtained “absolutely nothing of value” from the call.
The trial justice further determined that any new information that defendant discovered
after the Public Defender’s office’s phone calls with Rasch “was entirely unknown to the state
before trial[.]” We agree that the testimony elicited at the remand hearing illuminated the phone
call in a different light than that initially described by defendant in his papers submitted to this
Court in support of his motion to remand. The defendant’s preliminary characterization of the
state’s pretrial phone call with Rasch was likely a consequence of haste, lack of readily available
information, and disconcerting suspicions as to why this phone call was not disclosed.
The defendant also contends, in the alternative, that, even if the state did not learn the 911
caller’s identity or other pertinent information from the call, the fact of Rasch’s unwillingness to
cooperate with the state’s case was nevertheless favorable information to defendant and this
information could have been utilized by defendant at trial to impeach the 911 call evidence. The
defendant further avers that, if his defense counsel had known that the state had successfully
reached the 911 caller prior to trial, counsel would have further investigated the 911 call and
pursued a continuance of the trial date.
The trial justice found that “[t]he other evidence produced at [defendant’s] trial was
simply too powerful to overcome.” We are also of the opinion that evidence that the 911 caller
was unwilling to testify at trial, even if used effectively by defense counsel to attack the
anonymous 911 caller’s credibility, would not have made “the difference between conviction and
acquittal” in light of the totality of the evidence adduced at trial. Tempest, 141 A.3d at 685.
Thus, Rasch’s unwillingness to cooperate with the state is not material to defendant’s guilt or
punishment under a Brady analysis. Id. at 683.
- 33 -
Overall, the trial justice noted that, even if the state did fail to disclose the pretrial phone
call to defendant, such nondisclosure was not made either “for the purpose of obstruction” or as
“evidence which the state could possibly have recognized as ‘high value’ to the defense.” In
addition, he indicated that the pretrial phone call was “factually barren, entirely uninformative in
every way, and not at all ‘sufficiently central to the criminal case’ to constitute ‘material’
information.” The trial justice found “that there is no way by which this empty phone call would
have supported any possibility—much less ‘a reasonable probability’—that the results of this
case would have been different * * * or that confidence in the outcome of this case would have
been undermined.” In sum, he noted that “the state’s attorneys never concealed anything of
material importance from the defendant, either deliberately or, for that matter, inadvertently.”
We conclude that the trial justice did not clearly err in determining that the state did not
commit a Brady violation. Accordingly, we affirm the trial justice’s denial of defendant’s
Brady-related motion for a new trial.
D
Recusal Motion
The defendant also contends that the trial justice erred in denying the motion to recuse
himself. Specifically, defendant argues that “a reasonable person would question [the trial
justice’s] ability to remain impartial” because Special Assistant Attorney General McBurney was
set to mentor the trial justice’s daughter, who was also a member of the Attorney General’s
office, in connection with an unrelated trial. He argues that this mentorship was particularly
troubling because the crux of the Brady-related motion for a new trial was the trial justice’s
weighing of McBurney’s credibility against Assistant Public Defender Potter’s credibility. The
defendant maintains that this credibility comparison surfaced when McBurney testified that he
- 34 -
told Potter about the state’s pretrial phone call and Potter testified that she did not recall the
same.
1
Standard of Review
When a party argues on appeal that a trial justice should have recused himself or herself
due to bias or prejudice, we must “scrutinize closely whatever is asserted to have disclosed
prejudice of a character and in such degree as to work a disqualification.” State v. McWilliams,
47 A.3d 251, 257 (R.I. 2012) (quoting State v. Howard, 23 A.3d 1133, 1135-36 (R.I. 2011)).
2
Analysis
We have held that “[t]he party seeking recusal bears the burden of establishing that ‘the
judicial officer possesses a personal bias or prejudice by reason of a preconceived or settled
opinion of a character calculated to impair his [or her] impartiality seriously and to sway his [or
her] judgment.’” Howard, 23 A.3d at 1136 (quoting Mattatall v. State, 947 A.2d 896, 902 (R.I.
2008)). In addition, “justices have an equally great obligation not to disqualify themselves when
there is no sound reason to do so.” McWilliams, 47 A.3d at 260 (emphasis in original) (quoting
State v. Mlyniec, 15 A.3d 983, 999 (R.I. 2011)). “To prevail on a recusal motion based on bias, a
party must show that there are facts present such that it would be ‘reasonable for members of the
public or a litigant or counsel to question the trial justice’s impartiality.’” In re Jermaine H., 9
A.3d 1227, 1230 (R.I. 2010) (quoting In re Antonio, 612 A.2d 650, 653 (R.I. 1992)).
The trial justice concluded that the heart of the Brady-related motion for a new trial was
Rasch’s credibility and not “a credibility contest” between McBurney and Potter as defendant
had maintained. He determined that his assessment of the Brady motion required an examination
- 35 -
of Rasch’s testimony to determine what information was disclosed to Roklan during the pretrial
phone call and whether the state’s failure to disclose that information violated Brady. The trial
justice found that defendant failed to meet his “substantial burden” of proving judicial bias, see
In re Jermaine H., 9 A.3d at 1230, and noted that a trial justice should not recuse himself or
herself unless there is sound reason to do so. See Kelly v. Rhode Island Public Transit Authority,
740 A.2d 1243, 1246 (R.I. 1999). We agree.
We are satisfied that the defendant has failed to put forth any facts establishing a personal
bias, prejudice due to a preconceived opinion, or any reason for a member of the public to
question the trial justice’s impartiality, aside from the defendant pointing out that McBurney and
the trial justice’s daughter were both special assistant attorneys general who worked in the
Attorney General’s office and had a professional relationship that might have been akin to that of
a supervisor-supervisee. See Mlyniec, 15 A.3d at 1000 (“[R]ecusal is not in order by a mere
accusation that is totally unsupported by substantial fact.”) (quoting State v. Clark, 423 A.2d
1151, 1158 (R.I. 1980)). It is insufficient for the defendant to merely allege that there was an
appearance of impropriety because one of the prosecutors in the defendant’s case had a working
relationship with the trial justice’s daughter, without asserting any supporting evidence that
would demonstrate judicial bias. Thus, the defendant has failed to meet the “substantial burden”
required to prevail on a recusal motion. In re Jermaine H., 9 A.3d at 1230 (quoting In re Shawn
B., 864 A.2d 621, 624 (R.I. 2005)). Accordingly, we affirm the trial justice’s denial of the
defendant’s recusal motion.
- 36 -
III
Conclusion
This case no doubt represents an unfortunate chapter in the annals of Rhode Island’s
criminal justice system. The integrity and credibility of a number of assistant attorneys general
and assistant public defenders have been besmirched, and the impartiality of a thirty-year trial
justice has been brought into question. We decline to enter into this fray, other than to observe
that we have the highest respect for the men and women who labor diligently and daily in our
criminal courts. And we will continue to have such regard until we are presented with
convincing evidence that our esteem is ill-founded.
We understand that, in the course of zealous advocacy, passions may become inflamed
and accusations may be improvidently made. Rhode Island, however, has long forsworn the
battle cry of “victory at any cost” in favor of “justice at any price.” We expect our attorneys not
only to adhere assiduously to our rules and procedures, but also to practice before our courts with
complete candor. The goal of every criminal trial must always be to obtain a just result.
For the reasons set forth herein, we affirm the judgment of conviction and remand this
case to the Superior Court.
- 37 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. Willie Washington.
No. 2016-151-C.A.
Case Number
(P2/15-1538AG)
Date Opinion Filed June 29, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Robert D. Krause
For State:
Lauren S. Zurier
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Kara J. Maguire
Office of the Public Defender
SU-CMS-02A (revised June 2016)