State v. Miguel Davis ( 2016 )

Supreme Court
No. 2013-312-C.A.
(P1/12-2479AG)
State :
v. :
Miguel Davis. :
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 Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
Supreme Court
No. 2013-312-C.A.
(P1/12-2479AG)
State :
v. :
Miguel Davis. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The defendant, Miguel Davis, appeals from a judgment
of conviction entered after a jury found him guilty of three offenses: the murder of Dominique
Gay, in violation of G.L. 1956 §§ 11-23-1 and 11-23-2; using a firearm while committing a
crime of violence resulting in the death of Dominique Gay, in violation of G.L. 1956 § 11-47-
3.2; and carrying a pistol without a license, in violation of § 11-47-8(a). The trial justice
sentenced the defendant to two consecutive life sentences on counts 1 and 2 and one ten-year
sentence on count 5 to be served concurrently with the sentence on the first count. 1 The
defendant filed a timely notice of appeal. This case came before the Supreme Court for
argument on September 30, 2015. The defendant advances a host of arguments on appeal,
including two claims that the trial justice committed error when he instructed the jury, two
claims that the trial justice abused his discretion when he admitted prejudicial evidence, and one
1
Counts 3 and 4 of the original indictment—assault of Dean Robinson with a dangerous weapon,
to wit, a firearm, in violation of G.L. 1956 § 11-5-2, and using a firearm while in the commission
of a crime of violence, to wit, an assault with a dangerous weapon against Dean Robinson, in
violation of G.L. 1956 § 11-47-3.2(a)—were dismissed during trial.
-1-
claim that the trial justice erred when he denied his motion for a new trial. After a careful
consideration of the defendant’s arguments and a thorough review of the record, we affirm the
judgments of conviction.
1
Facts and Travel
On March 20, 2009, Dominique Gay was shot and killed in broad daylight while he was
walking with two friends, Dean Robinson and Wilson Andujar. Over three years later,
defendant, Miguel Davis, was charged with that murder.
The history of the case is replete with conflict between Gay and Davis over the attention
and affection of Crystal Dutra, a young woman who is the mother of Gay’s child. When Dutra
and Gay broke up, they agreed that each could see other people “as long as it wasn’t anybody
that [either Dutra or Gay] knew.” Soon, Dutra began a relationship with defendant. Dutra
testified that, in keeping with her agreement with Gay, she asked Davis whether he knew Gay,
going so far as to point out several pictures of Gay in her home; however, each time Davis
responded that he did not know Gay.
But at some point after Dutra began dating defendant, Gay told Dutra that he did know
Davis. Dutra said that Gay told her that defendant was “one of the younger crowd that they
hanged [sic] with.” Indeed, Gay was able to describe defendant to her, describing his “long hair,
braids and ‘Loyalty’ [tattooed] on his neck.” Dutra rebuffed Gay and told him that he did not
know Davis and that he was just jealous that she was dating someone else.
Unfortunately, that did not end the matter. Gay began to confront defendant repeatedly
between the summer of 2007 and January 2009, tensions escalating drastically with each
encounter. Those incidents included several occasions when Gay challenged defendant to
engage in fisticuffs or when defendant was otherwise threatened by Gay. On one occasion,
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Dutra allowed Gay to spend the night at her house, because he had nowhere else to go. When
defendant also needed a place to stay that night, Dutra allowed Gay to stay, while defendant slept
in his car outside her apartment. The bad blood continued even after defendant and Dutra ended
their relationship and Dutra restarted an intermittent liaison with Gay.
Dutra moved to Boston for almost a year, but when she returned to Providence and
resumed her relationship with Gay, she heard about several more incidents between Gay and
defendant. Dutra said that Gay’s challenges continued into the fall of 2008. She recalled that
one day that Gay woke her up after he received a call from Robinson. Gay demanded that she
drive him “really fast” to the Domino’s Pizza on Broad Street. When they got there, Robinson
was holding onto someone and Gay told Dutra to remain in the parking lot while he went inside.
Dutra observed as Gay walked to the front of the Domino’s and said that “he grabbed [a] kid and
* * * lifted the kid in the air by his shirt.” She then heard Gay say that he was not there for him,
that “his beef was with Miguel.” Gay then gave the young man a piece of paper with his phone
number and told him to give it to defendant and have him call Gay.
Dutra admitted that she never saw defendant pursuing or looking for Gay and that, during
each confrontation, defendant was either running from or avoiding Gay. She said that she
understood that Gay was confronting defendant because “it was a respect thing * * * [Gay] said
he wanted to fight him.”
Another serious incident occurred in early January 2009, when defendant was with his
then girlfriend, Lisa. 2 On that night, Lisa, defendant, and defendant’s friend, Juan Arciliares,
drove to Arciliares’s house. After Lisa parked her car, defendant took her keys and her cell
phone, and he and Arciliares went into the building, leaving her behind. Suddenly, Lisa heard
2
We have assigned a pseudonym to defendant’s former girlfriend to protect her privacy.
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the windows of her car shatter from a gunshot, although she was unable to determine the
direction from which the shots came. Lisa’s rear windshield was smashed, there was a hole
through the front windshield on the passenger side, and a bullet was lodged in the grille of the
car. After the shots were fired, Lisa began screaming to defendant to bring her keys back so that
she could leave. The defendant did not come down immediately, but responded through the
window of the apartment, “It wasn’t for you, it was for me.”
Kevin Santiago, a somewhat younger friend who hung out with defendant and his
associates, testified that he was in Arciliares’s apartment playing video games when the shooting
happened. Santiago testified that defendant told them that “Mike Stokes and Dean – and
Dominique were shooting at him.”
The Eyewitness
The only eyewitness to Gay’s murder who testified at trial was Wilson Andujar. 3
Andujar testified that, after moving away, he moved back to Providence toward the end of 2008.
At that time, Andujar reconnected with old friends, but met Gay for the first time about a month
after returning to Rhode Island. Andujar and Gay became friends; he said that the pair would see
each other about two or three times each week.
Andujar testified that on the day of the murder, March 20, 2009, Gay showed up at his
house that morning around 9 or 10 a.m., looking for a way to smoke some marijuana. They
decided to go to a store to buy a cigar for that purpose and, on their way, Andujar and Gay
decided to call on Robinson to see if he wished to join them. After picking up Robinson, the
three friends walked to a gas station, bought a cigar, and then went to a restaurant. After they
left the restaurant, the group decided to walk back to Robinson’s house.
3
Dean Robinson, who also was present when Gay was shot, was expected to testify at trial, but
unexpectedly invoked his Fifth Amendment right against self-incrimination.
-4-
Andujar explained that they walked side-by-side with Andujar in the middle, Gay to his
left, and Robinson to his right. Andujar testified that there was an alley behind a laundromat
where a dumpster was located. As they approached the alley, he heard “a gravel noise” and then
looked to his left and saw defendant standing beside the dumpster pointing a handgun at them.
Almost immediately, Andujar said, “Right there where I looked, I heard the first shot. Right
when I went to run, I slipped. That’s right there, when I slipped [I] heard a second shot. I
kept—I started to run.” Andujar also testified, on cross-examination, that he saw a black
handgun, but that he did not know whether the weapon was a revolver or what caliber it might
have been.
Andujar further testified that the assailant was wearing a “hoodie” that covered part of his
head but that the hood was not pulled all the way forward. The gunman also had a bandanna that
covered part of his face, from the tip of his nose past his chin, so that the only portion of his face
that Andujar could see was his hairline, his forehead, his eyes, and part of his nose. When asked
if he was able to recognize the person holding the weapon, Andujar responded that it was Miguel
Davis. He said that he recognized Davis because he knew him from 2006—three years prior to
the shooting and seven years prior to trial—when they were in school together for “a couple
weeks.” 4 Andujar identified defendant in the courtroom as the man he had seen with the gun on
March 20, 2009; however, when asked at what point he realized that it was Miguel Davis with
the gun, Andujar testified that it was not immediate; it was not until later, when “it just * * *
clicked in my head who I just saw.”
After fleeing from the gunman, Andujar said, he looked over his left shoulder and saw
Robinson being chased by another man, whom he eventually identified as Christopher “Ucci”
4
Although Andujar testified that he knew defendant, he said that they were not friends and they
did not talk to each other in school or hang out together.
-5-
Martinez. Andujar testified that Ucci was not the same person he saw with a gun, that Ucci did
not have anything covering his face when he saw him pursuing Robinson, and that he was also
wearing “a black hoodie.” 5 When he did not hear any more gunshots, Andujar lay down on the
ground and called 9-1-1.
Andujar soon came upon Robinson, who was crying, yelling, and saying, “They got
him.” From where they were standing, Andujar said, he could see Gay’s body, lying on the
sidewalk near the dumpster, and he began to cry himself.
Andujar and Robinson were brought to the police station to be questioned. Andujar said
he was not cooperative and merely told the police “the simple fact that we got shot at, I didn’t
see nothing.” When asked at trial if that was true, Andujar said no, that “I was just going by the
so-called street code and I was * * * fearing for my life of what just happened” and that he feared
that he “could be retaliated.” He testified that he did not discuss the shooting with Robinson at
the police station, but that they did discuss it at Gay’s funeral. At that time, he said, he told
Robinson that he had seen defendant shoot Gay.
Andujar left the state shortly after the shooting, determined, he said, to turn his life
around. The next time Andujar saw or heard anything about his friend’s murder was more than
three years later, in September 2012, when a friend sent a Facebook message to him that said he
should look at an accompanying link to a video clip. The video clip was a news report of a
“break in the case,” showing defendant in a courtroom being arraigned for the murder of
5
The color of the hoodie that the gunman wore was not discussed until cross-examination during
the following exchange:
“Q And you say that Ucci is wearing a black hoodie; right?
“A Correct.
“* * *
“Q Same black hoodie you said you saw on the shooter; right?
“A Correct.”
-6-
Dominique Gay. Soon after he viewed that video, Andujar was contacted by Robinson. Andujar
and Robinson specifically discussed that defendant had been arrested for the murder of Gay.
Andujar then returned to Rhode Island at the request and expense of the Providence
police, and he met with police and prosecutors. During that meeting, Andujar disclosed to the
police, for the first time, that he had seen Davis shoot Gay. The police showed two photo arrays
to Andujar. In the first six-photo array, Andujar identified a photo of Ucci and, in the second, he
identified a picture of defendant.
Forensic Evidence
During the trial, the state called Dr. Alexander Chirkov, who performed the autopsy on
Dominique Gay. He testified that he found two bullet wounds in Gay’s body and that both
wounds were fatal. The state also called Providence Bureau of Criminal Information Det.
Douglas Allin to testify about forensic evidence that had been found at the scene, including two
cartridge casings and two full cartridges that had been found near the dumpster.
Robert A. Hathaway, an expert in firearm and toolmark examination at the Rhode Island
State Crime Laboratory, testified about the forensic examination conducted on the spent casings.
Hathaway observed that both were 9 mm Luger Winchester cartridge cases. Hathaway testified
that it was his expert opinion that both rounds had been fired from the same weapon.
However, after analyzing the two lead projectiles extracted from Gay’s body, Hathaway
was unable to positively identify them as having been fired from the same weapon. Hathaway
was, however, able to conclude, based on the weight and diameter of both projectiles, that the
bullets would have been in the “.38 caliber class” of bullets. He further testified that that class
would include such weapons as the .38 special, .38 S&W, 9 mm Luger, and .357 Magnum.
-7-
Access to Guns
At trial, the state was unable to produce the murder weapon or to directly link the
forensic evidence to defendant, but it did introduce extensive evidence of defendant’s access to
guns. The state’s primary witness on that front was Santiago. Santiago was interviewed by
Providence police one week after Gay was murdered and at a time when Santiago had a pending
robbery charge. During that interview, Santiago gave the police information about defendant’s
access to firearms. At trial, Santiago testified that defendant told him and some friends that he
was romantically involved with Lisa and that, while Lisa’s grandfather was in Florida, the pair
had used the grandfather’s Johnston home for a liaison.
Santiago said that, according to defendant, while Lisa was in the bathroom, he rummaged
through the grandfather’s bedroom and discovered a 9 mm handgun, two shotguns, a 20-gauge
and a 12-gauge, as well as a .22-caliber rifle under the bed. Santiago said defendant had brought
those guns to Arciliares’s garage. He described the handgun as being chrome with a black
handle, and he said defendant kept it on his person at all times. He also said that defendant
stashed the other weapons at Arciliares’s house and that they often fired them into a punching
bag in Arciliares’s garage. Santiago also claimed that defendant admitted to him on several
occasions that it was he who had killed Dominique Gay. The defendant, he said, claimed that he
was “hiding behind the dumpster until he seen Dominique Gay come out [sic] the house, that’s
when he started shooting at Dominique Gay.”
Lisa also testified about defendant’s access to her grandfather’s guns. She said that her
grandfather was a retired correctional officer, that he was a hunter, and that she was aware that
he kept firearms in his house. She said that her grandparents had given her a key to their house
and asked her to check on it while they were in Florida. She testified that she met defendant in
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October of 2008 and, for a few months, she saw him almost every day. During that time, Lisa
said, she and defendant frequently drove around or hung out with his friends, during which time
she recalled hearing conversations about guns, including descriptions such as a “nina” and
numbers such as “38 something.”
Lisa testified that she brought defendant to her grandparents’ house on two occasions in
November. On both of those occasions, Lisa stated that she and defendant were in the house for
about an hour, that they had engaged in sexual intercourse, and that Lisa briefly went to the
bathroom before they left. She said that, on a few occasions, defendant had borrowed her car for
several hours and that the key to her grandparents’ house was on her key ring. Yet, despite
seeing defendant every day from October to January, she testified that she never saw him holding
any firearm. Lisa testified that she asked defendant if he took her grandfather’s gun and he
responded, jokingly, saying, “Yeah, I took your grandfather’s gun. Why would I take it?”
The state also offered the testimony of another witness, Louise, 6 Lisa’s aunt. Louise
testified that she received a call from her father, Lisa’s grandfather, asking that she check on the
condition of his home. She said that her father “was afraid something might have happened.
There may have been a robbery or something could’ve been disturbed in some way.” When she
and her husband visited the house, she called her father to tell him they had arrived. He asked
her if anything looked disturbed, and she said everything looked normal. Her father then asked
them to look for a handgun that he kept in the bedroom between the mattress and the box spring.
When they lifted the mattress, there was no handgun; the only thing they noticed was a darkened,
soiled spot on the sheet. After that, Louise and her husband removed multiple weapons from the
6
We have assigned a pseudonym to Lisa’s aunt in the interest of protecting her privacy.
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house. She had no idea how many guns were removed, or even whether the weapons removed
were handguns, because all the weapons were in cases.
After the close of all evidence, the jury returned a verdict of guilty on the counts
submitted to it.
2
Issues on Appeal
Before this Court, defendant argues that his convictions should be vacated for several
reasons. First, defendant argues that the trial justice erred in not instructing the jury about: (1)
prejudicial opening statements that detailed the expected testimony of Dean Robinson; and (2) a
specific limiting instruction on the unreliability of eyewitness testimony.
Second, defendant argues that the trial justice abused his discretion when he allowed
three witnesses to testify about firearms that allegedly had been stolen by defendant from the
home of his girlfriend’s grandparents.
Third, defendant contends that the trial justice erred in permitting the prosecution to
display an “in-life” family portrait of the victim, his daughter, and his daughter’s mother because
the state’s sole purpose for admitting it was to invoke the jurors’ sympathy for the victim.
Fourth, defendant claims that the trial justice erred when he did not grant defendant’s
motion for a new trial.
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3
Discussion
A
Jury Instructions
i
The Opening Statement
During the state’s forty-minute opening statement, the prosecutor informed the jury about
the testimony that the state expected to present during the course of the trial, explaining that both
Andujar, and particularly Robinson, would testify to the events of the day. The prosecutor told
the jury that:
“The case will be proved directly. It’s going to be proved by two
men, Wilson Andujar and Dean Robinson, who will tell you
directly what they saw. They saw him. They’ll both tell you that
they knew him, that they recognized him * * *. And both will tell
you that according to Dean Robinson, it’s as soon as he saw him he
knew it was him.”
The state repeatedly indicated that both Andujar and Robinson would say that they were
acquainted with defendant and that they knew he was the shooter, but that neither had identified
defendant to the police right after the crime was committed. The prosecutor explained to the jury
that Andujar immediately left the state out of fear. He then said that Robinson would testify that
he did not tell the police right away who the shooter was, but that he did tell Crystal Dutra “that
he had seen and knew that Miguel Davis was the shooter of Dominique Gay.” Furthermore, the
state claimed that Robinson would say that he did not want to tell the police whom he saw
“because he wanted to take care of it himself. He wanted to do to Miguel Davis what Miguel
Davis had done to Dominique Gay.”
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The prosecutor also said that Robinson, for his own reasons, had declined to cooperate
with them, but “now finally * * * [would] tell the police and did tell the police what he had seen
happen to his dearest friend, this man shooting and killing him.” The state ended its lengthy
soliloquy by telling the jury the following:
“Finally, you know from what you were told before you
were chosen that for lack of bail this Defendant is at the ACI.
You’ll hear that. So is Dean Robinson. The deal he cut about his
robbery landed him two years in jail, that he’s now serving. He’s
expected to tell you, when he comes before you, that his path in
November of 2012 passed with his old friend Miguel Davis about
his – who he’s going to give you testimony, and Miguel Davis said
to him, ‘Stop talking to the police.’” 7
However, on the very day he was expected to testify, counsel for Robinson informed the court
that he had advised his client to invoke his Fifth Amendment right against self-incrimination and
had further advised him not to testify at defendant’s trial. The trial justice had Robinson
confirm, on the record and outside the presence of the jury, that he had been advised against
testifying and would invoke his privilege against self-incrimination. The defendant did not move
for a mistrial.
The defendant argues that the trial justice committed reversible error when he failed to
accede to his request to impart a limiting instruction to the jury to remedy the prosecutor’s
lengthy opening statements about expected testimony from Dean Robinson, testimony the jury
never heard because the witness invoked his Fifth Amendment right against self-incrimination.
The defendant concedes that the prosecutor did not act in bad faith when he described the
expected testimony. However, he urges that he nonetheless was prejudiced by the detailed and
lengthy nature of the prosecutor’s comments, including an alleged threat made by defendant to
7
Defense counsel repeatedly objected during the prosecutor’s opening statements, twelve times
in all, but each time he was overruled.
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Robinson while both of them were incarcerated. The state responds that defendant waived any
right to review of this issue because he failed to renew his objection at the conclusion of the trial
justice’s charge to the jury. The state further argues that the trial court was not required to give
any curative instruction because the prosecutor’s opening statements did not cause incurable
prejudice to defendant. Indeed, the state argues that any prejudice resulting from the statement
and the unfulfilled promises that it contained actually harmed the state.
1
Standard of Review
“[T]he standard of review for jury instructions is well settled. A charge ‘need only
adequately cover[] the law.’” State v. Long, 61 A.3d 439, 445 (R.I. 2013) (quoting State v.
Cardona, 969 A.2d 667, 674 (R.I. 2009)). “This Court examines ‘the instructions in their
entirety to ascertain the manner in which a jury of ordinary intelligent lay people would have
understood them, * * * and * * * review[s the] challenged portions * * * in the context in which
they were rendered.’” Id. (quoting Cardona, 969 A.2d at 674). “A ‘trial justice is bound to
ensure that the jury charge sufficiently addresses the requested instructions and correctly states
the applicable law.’” Id. (quoting State v. Sivo, 925 A.2d 901, 913 (R.I. 2007)). “[A]n
erroneous charge warrants reversal only if it can be shown that the jury ‘could have been misled’
to the resultant prejudice of the complaining party.” Id. (quoting Sivo, 925 A.2d at 913).
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2
Waiver
As a threshold issue, this Court must consider whether defendant adequately preserved
the issues on jury instructions for appeal. The state maintains that this issue was not preserved
because defense counsel failed to renew his objection after the trial justice completed his
instructions to the jury.
Rule 30 of the Superior Court Rules of Criminal Procedure requires as follows:
“At the close of the evidence or at such earlier time during the trial
as the court reasonably directs, any party may file written requests
that the court instruct the jury on the law as set forth in the request.
* * * If a defendant relies upon an affirmative defense, or
justification, or matter in mitigation and wishes the court to
instruct the jury with respect to such, he or she shall so advise the
court in writing no later than at the close of the evidence. No party
may assign as error any portion of the charge or omission
therefrom unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which the party
objects and the grounds of the party’s objection. Objections shall
be made out of the presence of the jury.” (Emphases added.)
“The purpose of the rule is to ensure that the trial justice is alerted to any deficiencies in
the charge while there is still an opportunity for cure.” State v. Hanes, 783 A.2d 920, 924 (R.I.
2001). In the numerous cases where this Court has declined to address a particular issue on
appeal, the reasoning is frequently directed at trial counsel’s failure to alert the trial justice to the
particular objection at any point in the trial. See State v. Lynch, 854 A.2d 1022, 1034 (R.I.
2004) (“waived by [the] defendant’s failure to object after the trial justice instructed the jury”);
State v. Catalano, 750 A.2d 426, 429 (R.I. 2000) (defense counsel submitted numerous requested
jury instructions; following the trial justice’s charge, counsel objected to request Nos. 2, 3, 5, 7,
8, 9, and 10, but did not mention No. 6); State v. Brown, 744 A.2d 831, 837-38, 838 (R.I. 2000)
(defense counsel renewed request for simple-assault instruction but not second-degree murder;
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Court held that objection was waived because “counsel failed to elucidate the reasons for [his
objection to a] second-degree murder instruction”).
Objections may also be waived if they lack specificity because “[g]eneral objections to
instructions, without specific grounds are not a sufficient basis for review by this Court.” State
v. Hallenbeck, 878 A.2d 992, 1007 (R.I. 2005) (quoting State v. Ibrahim, 862 A.2d 787, 795
(R.I. 2004)). In State v. Fetzik, 577 A.2d 990, 993 (R.I. 1990), this Court considered whether an
objection was raised with sufficient specificity and held that the objection and proffered
supplemental instruction concerning an affirmative defense, that was not timely filed, was
nevertheless preserved. We reasoned that:
“[a]lthough the instruction was technically late, the trial justice
appears to have had an adequate opportunity to consider this
instruction. The requested instruction was one that could easily
have been included with those that were given. * * * The time limit
was intended to promote the orderly conduct of a trial. It was
never intended to be an unalterable condition in the face of an
otherwise meritorious request for an instruction that was of
considerable importance to a defendant.” Id.
Furthermore, this Court specifically held that “[b]y failing to raise a proper objection, defendant
deprived the trial justice of any opportunity to remedy possible deficiencies in the instructions
before they were delivered.” State v. Viveiros, 45 A.3d 1232, 1244 (R.I. 2012) (emphasis
added).
Finally, this Court noted that “[w]e are aware that Rule 30 * * * does not explicitly
mandate that objections to instructions be made after the instructions are given.” State v. Palmer,
962 A.2d 758, 766 n.5 (R.I. 2009). Nevertheless, this Court held that the objection was waived
because “the trial justice informed counsel in no uncertain terms that objections were to be made
after he instructed the jury.” Id.
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At the close of the state’s case, the trial justice addressed several matters on the record
but outside the jury’s presence, including jury instructions. The following discussion occurred
on the record:
“[Trial Justice]: I gave to counsel yesterday a list of the
instructions I intend to give.
“* * *
“[Trial Justice]: I don’t disagree that the presence of Dean
Robinson at the scene alleges his presence at the scene. Based on
evidence submitted, it’s unavoidable to mention his name.
“The issue has arisen as to whether or not you will be
permitted to effectively invoke the missing chair doctrine by
arguing, where is he? Why didn’t the State call him? Why did he
promise you that he would? That’s the kind of problem that has
arisen.
“[Defense counsel]: And my point with regard to that, Your Honor,
is that the jury has heard a long litany of testimony about what
Dean Robinson would testify to and he never testified. And, [the
prosecutor], as I remember, went on for at least 45 minutes, going
into detail about what each witness would testify to.
“I’d ask the Court to instruct the jury to completely
disregard anything that [the prosecutor] said about Dean Robinson
in his opening argument. And if the Court is not willing to do that,
then I should be willing to at least reference the fact that Mr.
Robinson did not testify.”
The trial justice then ruled that, because Robinson was unavailable as a matter of law,
defense counsel would not be allowed to specifically comment that he did not appear, nor would
the trial justice give an instruction that would “specifically hone in and single out [the
prosecutor]’s statements about Dean Robinson and that they should somehow be disregarded or
stricken.” In our opinion, defense counsel’s objection met the specificity requirement of Rule 30
because it “state[d] distinctly the matter to which the party object[ed] and the grounds of the
party’s objection.”
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At the close of instructions, counsel for both parties were called to the bench for the
purpose of expressing concerns about or objections to the charge. Although defense counsel
brought some concerns to the trial justice’s attention, it is significant that he made no objection
about Dean Robinson or the state’s opening statement. Therefore, this Court must decide
whether, in the context of this case, the failure to do so was fatal.
On that point, this Court’s determination in State v. Pailin, 114 R.I. 725, 339 A.2d 253
(1975), is illuminating. There, the defendant objected to statements made by the state in its
closing argument and moved for a mistrial. Id. at 727, 339 A.2d at 255. This Court explained as
follows:
“We have made it perfectly clear that for a defendant to
preserve a question of prejudicial error in closing argument for our
review he must not only make an objection at the time, but must
make a request for cautionary instructions. Except under
circumstances where the trial justice could find no fault with the
challenged remarks, or where they are so flagrant that no
precautionary instruction could dilute their effect, this failure to
request instructions is fatal. * * * The defendant asked the trial
justice to declare a mistrial, but once this request was denied, he
remained silent and did not request instructions either at the bench
conference or at the close of the state’s argument, nor did he object
to any of the justice’s charges to the jury in regard to this point.
Having failed at trial to request curative measures of the allegedly
prejudicial remarks of the prosecutor, defendant will not be heard
to complain here.” Id. at 728, 339 A.2d at 255 (emphases added).
After a thorough review of the record, it is our opinion that we would be elevating form over
substance if we were to hold that defendant failed to adequately preserve the issue of the trial
justice’s denial of a request for a limiting instruction. We observe that, although defendant did
not renew the objection after the trial justice instructed the jury, he did object the day before
during a recorded charging conference after instructions were provided to the parties and in
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response to the trial justice’s request for specific objections. Therefore, defendant adequately
preserved the issue of the trial justice’s denial for a limiting jury instruction for appeal.
3
Did the Opening Statement Cause Prejudice Requiring a Limiting Instruction?
The defendant argues that the state predetermined the outcome of this case by virtue of its
opening statement because it was permitted to present to the jury a lengthy and persuasive
narrative of the events, introducing anticipated direct quotes from Robinson, the most important
eyewitness, without giving defendant a chance to cross-examine. The defendant contends that
Robinson’s “phantom” corroboration of Andujar’s identification, particularly when paired with
the state’s concluding allegation that defendant warned Robinson not to testify, doomed
defendant. The state maintains that it operated on the good-faith belief that Robinson was going
to testify exactly as it laid out in its opening, and that any prejudice that might have arisen as a
consequence of Robinson’s failure to appear before the jury inhered against the state, because it
failed to deliver on its promise to present him. 8
It is well settled that “[t]he prosecutor is entitled, during opening statements, to comment
on evidence the prosecutor believed in good faith will be available and admissible.” State v.
Usenia, 599 A.2d 1026, 1032 (R.I. 1991). “The general rule in such situations is that there must
be a good-faith and reasonable basis upon which a prosecutor may believe that such evidence
will be offered and deemed admissible at trial.” State v. Ware, 524 A.2d 1110, 1112 (R.I. 1987).
8
As an initial matter, this Court feels obliged to note that despite defendant’s not having raised a
constitutional claim under the Confrontation Clause during the trial with respect to this issue,
such a claim would have no traction. This is so because we have held that “[w]hen a witness
refuses to testify and invokes a legitimate Fifth Amendment privilege, the Sixth Amendment
Confrontation Clause no longer applies because the witness is unavailable.” State v. Ramirez,
936 A.2d 1254, 1265 (R.I. 2007) (citing California v. Green, 399 U.S. 149, 167-68 (1970)).
- 18 -
Although this issue most often arises in the context of a motion to pass, the following rule is
instructive:
“When a defendant complains of allegedly prejudicial
remarks made by a prosecutor, the trial justice must [assess] the
potential prejudicial impact of the challenged comments. If the
prejudice is inexpiable, the motion to pass should be granted. If
the prejudice can be cured, timely and effective instructions must
be given.” State v. Collazo, 446 A.2d 1006, 1010 (R.I. 1982)
(citing State v. Marrapese, 116 R.I. 1, 351 A.2d 95 (1976)).
Furthermore, the “[d]etermination of whether a challenged remark is harmful or prejudicial
cannot be decided by any fixed rule of law.” Id. (citing State v. Peters, 82 R.I. 292, 107 A.2d
428 (1954)). “Rather, the justice must evaluate its probable effect on the outcome of the case by
examining the remark in its factual context.” Id. (citing State v. Pugliese, 117 R.I. 21, 362 A.2d
124 (1976)). “Prejudice inheres if the comments ‘are totally extraneous to the issues in the case
and tend to inflame and arouse the passions of the jury’ against the defendant.” Ware, 524 A.2d
at 1112 (quoting Collazo, 446 A.2d at 1010).
In Usenia, 599 A.2d at 1032, the defendant challenged a comment by the prosecutor that
“[i]ncriminating evidence is found both inside the car and on the person of the people inside the
car,” because that incriminating evidence was not later admitted. We held that there was no error
in overruling the defendant’s objection, reasoning as follows:
“The prosecutor was justified at that time in believing that these
relevant items would be admitted into evidence. The prosecutor is
entitled to tell the jury what he intends to prove. If the prosecution
is unable to prove what has been promised, it will lose credibility
with the jury and [the] defendant will benefit.” Id.
In Collazo, 446 A.2d at 1009, the defendant challenged comments made by the prosecutor to the
jury that the murder weapon had been stolen by the defendant from an off-duty policeman. This
Court determined that those remarks were improper because there was no competent and
- 19 -
admissible evidence to support the claim that the defendant stole the murder weapon. Id. at
1010. However, because there was substantial other evidence submitted at trial from which the
jury could infer premeditation—the basis for which the state claimed it made the improper
comment—this Court held that “the challenged remarks did not have any effect on the
determination of [the] defendant’s guilt or innocence.” Id. at 1011.
Here, because defendant concedes that the state acted in good faith when it offered a
preview of Robinson’s expected testimony, we need only address whether the comments were so
prejudicial that the trial justice was required to give specific limiting instructions. The comments
throughout the state’s opening statement centered on testimony that it believed would be directly
presented to the jury by Robinson.
We believe it to be significant that the trial justice attempted to cure whatever prejudice
that might have inhered to defendant by repeatedly admonishing the jury that “the statements of
lawyers are not evidence.” See State v. Monteiro, 924 A.2d 784, 792 (R.I. 2007). The trial
justice made this comment before the state’s opening statement, at the close of evidence, and
again in the course of his jury instructions. Indeed, it is readily apparent that the trial justice
tailored his remarks to the jury in response to defendant’s concern that he might be prejudiced,
telling the panel: “As I said to you at the beginning of the trial, statements of lawyers are in no
way to be considered as evidence. I renew that sentiment again, and remind you that anything a
lawyer has said or is about to say in closing arguments is not evidence.”
Therefore, we discern no error by the trial justice when he declined to give the specific
limiting instruction requested by defendant to disregard what the state said in its opening
statement about Dean Robinson.
- 20 -
ii
Eyewitness Identification Testimony
The defendant argues that the trial justice committed reversible error when he refused to
grant defendant’s request for instructions on certain factors for the jury to consider when
assessing the reliability of eyewitness identification testimony. The defendant urges that,
because Andujar’s identification was so unreliable, 9 a specific instruction was necessary to
ensure that the jury properly considered all the risks associated with misidentification. The
defendant argues that Andujar’s identification was particularly unreliable because he could not
have viewed the gunman for more than a second or two, because he began to run as soon as he
saw the gun and the first shot was fired, and because the gunman’s features were partially
covered. Also, defendant contends that, although he asserted that he knew defendant, he had not
seen him for several years and had never spoken to him, and he did not identify defendant as the
shooter until after watching a video of defendant being arraigned for this specific crime, more
than three years after the shooting. For those reasons, defendant requested that the trial justice
give the jury “some sort of Neil v. Biggers identification instruction.” The state responds that the
trial justice’s decision comported completely with Rhode Island law and to hold otherwise would
result in a rejection of thirty years of this Court’s precedent.
1
Waiver
The state concedes that defendant’s objection to the trial justice’s refusal to include an
instruction on eyewitness identification testimony was preserved for the record. Indeed, the trial
justice said that “[defendant’s] objection of my not including such a charge is noted for the
9
It should be noted that defendant did not press an earlier motion to suppress Andujar’s
identification of defendant.
- 21 -
record.” However, before this Court, defendant advances a host of essays, studies, and scientific
data that attack the reliability of eyewitness identification. Therefore, and in accordance with our
uniform and well settled precedent, those theories that were not raised before the trial court
cannot be considered on appeal. E.g., State v. Bido, 941 A.2d 822, 828 (R.I. 2008).
2
The Need for Eyewitness Identification Instructions
The defendant argues that Andujar’s identification of defendant was particularly
unreliable and that the trial justice failed to consider the unique facts of this case to determine
whether limiting instructions would be appropriate. The state responds that the trial justice did
precisely what this Court’s precedents on the issue require. 10
In the seminal case of State v. Andrade, 544 A.2d 1140, 1142-43 (R.I. 1988), this Court
reviewed a trial justice’s refusal to give specific jury instructions on identification testimony, one
of which cite contained the five factors set forth by the United States Supreme Court in Neil v.
Biggers, 409 U.S. 188, 199-200 (1972). 11 We affirmed the conviction and held, as the trial
justice in this case remarked, that “the better practice for a trial justice is to rely on general
instructions concerning identification.” Andrade, 544 A.2d at 1143. In Andrade, we also
10
The standard of review for jury instructions is described in State v. Long, 61 A.3d 439, 445
(R.I. 2013).
11
“The factors to be considered when determining the independent reliability of an identification
are the opportunity of the witness to view the criminal at the time of the crime, the witness’s
degree of attention, the accuracy of his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the crime and the confrontation.” State
v. Gatone, 698 A.2d 230, 236 (R.I. 1997) (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
Although the Neil v. Biggers test was developed to determine the admissibility of an
identification, the factors have repeatedly been asserted when requesting jury instructions on the
subject. See State v. Lynch, 770 A.2d 840, 845 (R.I. 2001); State v. Williams, 733 A.2d 723,
725 (R.I. 1999) (mem.); State v. Gomes, 604 A.2d 1249, 1256 (R.I. 1992); State v. Andrade, 544
A.2d 1140, 1142-43 (R.I. 1988) (requested jury instruction cited five factors from Neil v.
Biggers.).
- 22 -
admonished that “[i]t remains a rule in this jurisdiction that judges are inhibited from
commenting upon the evidence, unless they do so in a completely impartial manner.” Id. We
revisited and reinforced the holding in Andrade one year later, where we said that “it is
established Rhode Island law that a specific jury instruction on identification is not mandatory
and failure to give such an instruction is not reversible error.” State v. Payette, 557 A.2d 72, 73
(R.I. 1989).
Although we have never turned away from our holdings in Andrade and Payette, we
have, nevertheless, approved instructions focusing on the reliability of eyewitnesses in a number
of subsequent decisions. See State v. Austin, 114 A.3d 87, 92-93, 97-98 (R.I. 2015); State v.
Figuereo, 31 A.3d 1283 (R.I. 2011); State v. Werner, 851 A.2d 1093 (R.I. 2004) (Werner II);
State v. Werner, 831 A.2d 183 (R.I. 2003) (Werner I); State v. Gomes, 604 A.2d 1249, 1256
(R.I. 1992).
Indeed, in Werner I, 831 A.2d at 205, this Court explicitly rejected an argument that
giving an instruction on eyewitness identification “constituted an unfair comment upon the
evidence,” and we sought to clarify Andrade and Payette by explaining that “[i]n none of these
cases did we state that giving a portion of this general instruction on a photograph array would
constitute reversible error. At most, we said that this model instruction need not be given.” Id.
at 206. In Werner II, 851 A.2d at 1099, we were asked to determine whether the trial justice
erred in denying the defendant’s motion to introduce testimony of an expert witness on the
subject of eyewitness testimony. In affirming the trial justice’s decision to exclude the expert
testimony, this Court reasoned that the trial justice “was careful to address the issue that
concerned [the] defendant about eyewitness identification during his jury instructions.” Id. at
- 23 -
1102. Notably, this Court reviewed the lengthy instruction given on eyewitness identifications
and wrote the following:
“Most importantly, the trial justice went beyond the scope of
concerns brought to his attention by [the] defendant and said
authoritatively that eyewitness ‘identification must be viewed with
great caution.’ The trial justice’s instructions had much of the
same effect on the jury as listening to an expert. Juries give great
weight to what a trial justice says, so by alerting the jury to the
inherent problems with eyewitness identifications, the jury was
sufficiently reminded to use common sense to determine what
evidence to believe and what to question.” Id. at 1102-03.
That instruction was not only affirmed as adequately covering the law, but was approved by this
Court because it straddled the fine line between directing the jury’s attention to the inherent
problems of eyewitness testimony and improperly commenting on issues “within the framework
of lay opinion.” Id. at 1103 (quoting State v. Gardiner, 636 A.2d 710, 713 (R.I. 1994)).
In Figuereo, 31 A.3d at 1288, the defendant challenged the trial justice’s refusal to
include a specific instruction that “an eye witness’s certainty is not a reliable indicator of eye
witness accuracy.” However, the instruction that the trial justice did provide focused great
attention on the issue of witness identification; the trial justice told the jury that “you don’t have
to believe that the identification witness was lying or not to find the defendant not guilty. It is
enough that you conclude that the witness was mistaken in her belief or impression.” Id. at
1290-91. When we reviewed that instruction on appeal, we said:
“Although the trial justice did not explicitly employ the
defendant’s requested language, he nonetheless did convey to the
jurors the message (1) that they should scrutinize the testimony of
an identification witness from several points of view and (2) that
they were free to (in the words of the trial justice) ‘conclude that
the witness was mistaken in her belief or impression.’” Id. at
1291.
- 24 -
Finally, this Court recently decided, in Austin, 114 A.3d at 97-98, that instructions on
eyewitness testimony that identified several factors for the jury to consider—such as “the
witness’s state of mind at the time of the offense, and other circumstances affecting the witness’s
opportunity to observe the person committing the offense”—adequately covered the law
concerning eyewitness identifications. Despite the trial justice’s refusal to give, at the
defendant’s urging, a thirteen-page instruction based on factors compiled by the Innocence
Project, 12 this Court held that the instruction, which touched upon the potential unreliability of
eyewitness identification testimony, was appropriate and an adequate instruction on the law. Id.
Here, the trial justice articulated the following reasoning for declining defendant’s oral
request to give “some sort of Neil v. Biggers identification instruction”:
“It is not my practice to give the jury that type of
instruction. And the case law from our Supreme Court in a
number of instances has indicated that it is not necessary to give
that instruction, and that counsel should argue the issue. See State
v. Andrade, 544 A.2d 1140 (1988), where the Court indicates, We
believe that the better practice for a trial justice is to rely on
general instructions concerning identification. Counsel should
argue the case – excuse me, counsel should argue the issue. Citing
Fenner 503 A.2d, at Page 525.
“The other cases that are in accord with that type of
language, see Gomes 604 A.2d 1249, 1256; State v. Payette, 557
A.2d 72 (1989): Where the Court notes that a specific instruction
setting forth the factors to be considered in determining reliability
of a witness’s identification is not required, but the jury should be
told that the State must prove beyond a reasonable doubt that the
defendant was, in fact, the person who committed the offense.
That language is also contained in Andrade. See also Desroisers
559 A.2d 641, 645 and 646 (1989); State v. Maxie 554 A.2d 1028
(1989).”
12
State v. Austin, 114 A.3d 87, 97 n.11 (R.I. 2015) (citing the instruction given in the New
Jersey Supreme Court opinion of State v. Henderson, 27 A.3d 872 (N.J. 2011)); “The Innocence
Project is a national litigation and public policy organization dedicated to exonerating wrongfully
convicted individuals through DNA testing and reforming the criminal justice system to prevent
future injustice.” The Innocence Project, http://www.innocenceproject.org/about-innocence-
project (last visited Jan. 15, 2016).
- 25 -
Because this Court repeatedly has confirmed that an instruction on the reliability of an
eyewitness identification is not mandatory, but, at the same time, has held that it is not error to
decline to give such an instruction, it is certainly fair to say that we have not adopted a hard-and-
fast rule and that trial justices retain significant discretion with respect to the issue of eyewitness
identification. After a review of the record in this case, it is our opinion that the trial justice did
not stray beyond the bounds of that considerable discretion. 13
There can be no doubt that the circumstances of this case highlight the problematic nature
of eyewitness identification and its potential for misidentification; for instance, the assailant was
in disguise, held a gun, the only eyewitness testified that he ran as soon as he saw the weapon
and heard it discharge, the eyewitness did not identify this defendant for more than three years,
and the first identification was made just days after the only eyewitness saw a video of defendant
being arraigned for this crime. However, because the witness testified that he had known
defendant in the past, and because the problematic nature of reliability of eyewitness
identifications was not articulated in the tribunal below, we do not believe this is an opportune
13
It bears noting that this Court is cognizant of the growing concern in other jurisdictions with
reliance on eyewitness identification testimony, the growing body of scientific and psychological
studies regarding the questionable accuracy of the accounts of eyewitnesses, and the efforts made
to prevent a miscarriage of justice. However, in this case, that issue was not raised before the
trial justice and is not properly before us. See Commonwealth v. Gomes, 22 N.E.3d 897, 907-16
(Mass. 2015) (updating model instructions on eyewitness identifications to include several
“generally accepted principles”, holding modified by Commonwealth v. Bastaldo, 32 N.E.3d
873, 877 (Mass. 2015) (requiring that “a cross-racial instruction should always be included when
giving the model eyewitness identification instruction, unless the parties agree that there was no
cross-racial identification”)); see also State v. Cabagbag, 277 P.3d 1027, 1038-39 (Haw. 2012)
(deciding that “when eyewitness identification is central to the case, circuit courts must give a
specific jury instruction upon the request of the defendant to focus the jury’s attention on the
trustworthiness of the identification”); Henderson, 27 A.3d at 919, 920-21 (overturning long-
standing precedent on evaluating trustworthiness of identification evidence; specifying many
more variables that courts must consider beyond the five Neil v. Biggers factors, and clarifying
when identifications are deemed admissible).
- 26 -
time to reverse thirty years of precedent. We are, therefore, constrained to address only the issue
contested at trial: whether the trial justice abused his discretion in denying defendant’s somewhat
vague request for “some sort of Neil v. Biggers identification instruction.”
As a result, we cannot say that we discern any error in the trial justice’s decision to rule
in accordance with our prior decisions in Andrade and Payette and to refrain from commenting
personally on the issue, leaving it instead to the arguments of counsel. Nevertheless, we pause to
note that the better practice would be for courts to provide the jury with more comprehensive
instructions when eyewitness testimony is an issue, similar, for example, to those that were
imparted in Austin, 114 A.3d at 92-93; and Figuereo, 31 A.3d at 1290-91.
B
Admission of Gun Evidence
The defendant argues that the trial court abused its discretion in permitting the admission
of evidence of prior bad acts; namely that defendant allegedly stole guns from the home of his
ex-girlfriend’s grandfather. This, he says, violated Rule 404(b) of the Rhode Island Rules of
Evidence. The defendant argues that it is undisputed that the murder weapon was never found
and that evidence that he allegedly stole four guns—a handgun, two shotguns, and a rifle—was
irrelevant, highly prejudicial, and introduced for the sole purpose of casting his character in an
unfavorable light. The state responds that defendant has waived the right to press this issue on
appeal because he never articulated in the trial court that the evidence violated Rule 404(b).
Instead, defendant repeatedly focused his objections on the foundation and relevance of the gun
evidence. Additionally, the state argues, as it did in the trial court, that the evidence was
necessary to show that defendant had access to firearms.
- 27 -
i
Waiver
At trial, the judge, the prosecutors, and counsel for defendant discussed the admissibility
of the “gun evidence” at length. At first, defendant moved, in limine, to exclude the gun
evidence because the grandfather had died and, consequently, no one was able to testify as to
what type of handgun the grandfather may have owned. The parties discussed at length what
testimony was expected from the numerous witnesses, with the state urging that the evidence
was admissible because it demonstrated that defendant had access to firearms. However, the
following discussion then occurred:
“[Trial Justice]: Now, there were other guns that were taken from
the house, as I recall.
“[Prosecutor]: There were.
“[Trial Justice]: Do you have some design on bringing in evidence
of other guns stolen? They were long arms, as I recall, not
handguns.
“[Prosecutor]: .22 rifle and a .20 caliber shotgun, Your Honor.
“[Trial Justice]: I don’t know that that has any bearing upon this
case.
“[Prosecutor]: I don’t disagree with you, Your Honor. But Kevin
Santiago would be the only one at this point, that we’re aware of,
that could provide that information, that those guns were taken
from the grandfather’s house of the girl that the defendant was
dating. Additionally, Your Honor –
“* * *
“[Prosecutor]: Santiago would [stay] at Juan Arciliares’s house on
Union Avenue, in a garage, when Miguel Davis came in with these
three firearms and said, I was having sex with this girl, I looked
under the bed, I just got these. The same day he gets them –
“[Trial Justice]: Okay.
- 28 -
“* * *
“[Prosecutor]: That [Lisa]’s testimony would not be that she knew
where the firearms were, but she was well aware that her
grandfather, who was a retired correctional officer, had – and a
hunter, had rifles and she had seen the rifles for the cases and knew
of them to have rifles. So providing a little bit more support that
these would’ve been rifles that were taken from him, as Santiago
will testify to.
“* * *
“[Defense counsel]: From what I gather from the discovery,
Santiago said – the grandfather left for Florida November 17th,
2008. He came back January 14, 2009. Santiago said he met
Miguel Davis on or about [December 10th, 2008]. And he doesn’t
say that when he met him that he came walking in with, you know,
with any firearms, but the main point that I was trying to make is
that the daughter, who received a call from the grandfather, she
can’t testify that it was a .9 millimeter that was taken or that the
grandfather had a .9 millimeter. And there’s nobody that can
testify that the grandfather checked for the .9 millimeter before
getting on the plane. So the .9 millimeter could have been missing
six months earlier. Could’ve been missing two months earlier.
“[Trial Justice]: That’s a matter for argument, not admissibility.
That’s something you would argue to a jury for its weight.
“* * *
“[Trial Justice]: I don’t know that the State contends that that’s the
only person who went in the house. But the State’s contending
that it was your client who was among them and that your client
was the one, according to Santiago, who stole the guns. It was
your client, according to Dean Robinson, who shot Dominique
Gay. And the State has designs on showing access by your client
to firearms. And in State v. Rios, 996 A.2d 639 (2010), the Rhode
Island Supreme Court indicated that that kind of material,
particularly access to firearms, even though it may not have been
the very firearm that was used in the event, is admissible evidence.
You read those cases that are cited there and I think you will see
that admissibility is here.
“* * *
- 29 -
“I can only tell you that it’s admissible under a case like Rios, and
there are others like them. I distinguish this from the Brash case.
This is not the Brash case. This is the testimony of your client to
another person saying, ‘I took these guns.’”
The trial justice later revisited the gun issue, discussing whether Lisa could testify that
she had seen guns in the house or that she knew there were guns in the house. There was a brief
reference to a hearsay objection regarding Lisa’s testimony that she had heard defendant and his
friends talk about guns, but that she was unable to identify exactly who had mentioned guns. At
that time, defense counsel also advanced an objection pursuant to Rule 403 of the Rhode Island
Rules of Evidence because, he argued, the discussion of guns was not probative of his having a
gun on March 20, 2009, and that any probative value was outweighed by its prejudicial impact.
Contemporaneously, defense counsel and the trial justice had a conversation about proposed
testimony by Dutra that she saw defendant with a gun in 2007. Then a pointed discussion of the
relevance of guns took place:
“[Defense counsel]: I don’t think the Rios case says that if you’ve
ever had a gun. Where is the cut-off? If he had a gun when he was
14, is that admissible as well? If he had a gun and went to the
Training School at 15, is that admissible? I mean, where do we
have a cut-off? There has to be some nexus to the event.
“[Trial Justice]: I disagree with you. That’s not what the cases
hold. Jackson, in the year 2000 doesn’t hold that; neither does
Rios. In fact, Jackson speaks about distinguishing the Brash case.
The weapons in Brash were never linked to the crime charged.
They were simply used for target practice at a location
unconnected to the crime; that’s Brash. But Jackson distinguishes
Brash.
“* * *
“[Defense counsel]: My reading of Brash is that possession of a
weapon * * * may be used to establish that a person had the means
by which to commit a crime. If he had a weapon in 2007, how
does that give him the means to commit a crime in 2009?
- 30 -
“[Trial Justice]: Are you suggesting that prior handgun ownership
is not relevant?
“[Defense counsel]: I’m saying in this particular case prior
handgun ownership is not relevant.
“[Trial Justice]: When is it relevant?
“[Defense counsel]: I think when there’s a nexus between the gun
and the death of the person.
“* * *
“[Defense counsel]: The introduction, Your Honor, of evidence
from Dutra with regards to a past gun is certainly spoken to
pursuant to Rule 404(b), which says it prohibits the use of evidence
of past crimes – the 2007 is him possessing a firearm, which is a
crime – wrongs, acts to show the defendant’s propensity to commit
the crime with which he is currently charged. That’s exactly what
they’re looking to do, and that’s exactly what the rule precludes
them from doing.
“Pointing to a 2007 crime, which is the possession of a gun,
to now say that based upon that past crime, or that past wrong, or
those past acts, that the defendant has a propensity to commit – to
commit crimes regarding firearms, therefore he must have
committed this shooting.
“[Trial Justice]: That’s not what I think the State is offering it for.
It’s offering it to show that the defendant had an interest and access
to firearms; and, indeed, in the past possessed a firearm. Unless I
misread the State’s intention. [Prosecutors].
“[Prosecutor]: It is what the Court has just enunciated, and it is
additionally with respect to the 404(b) analysis that I intended it.
Miss Dutra’s claim of having seen a gun in 2007 is reviewed by
her in her Grand Jury testimony * * *.
“* * *
“In context, the State submits, that in addition to the
Rios/Jackson line of access to guns, if analyzed under 404(b), he’s
also suggesting not only does he have an interest in guns, he’s
never without one. He wants her to be with him that night. She
says, No. Go home. And he takes out the gun and says, ‘I’m
never alone.’ In other words, ‘I always carry this.’
- 31 -
“[Defense counsel]: * * * But I mean, equally important what Rios
also said is this: It is only when evidence of prior acts is offered to
prove that the accused has a criminal disposition and therefore is
more – is more likely to have committed the crime for which he
stands accused and Rule 404(b) requires its exclusion.
“* * *
“[Trial Justice]: Let’s do this: I think, number one, I will permit
the testimony that [Lisa] would offer relating to a conversation she
overheard the defendant involved in with his friends talking about
guns. And that from her point of view and from knowing him, as
she said at Page 18 in the Grand Jury, ‘Miguel had an interest in
guns.’ I’ll let her testify to that.
“As to whether or not I’ll permit the 2007 incident that
Dutra would testify to, if permitted, I’m going to reserve on that.
I’m not sure. I hear both your arguments. The motion in limine to
exclude Dutra from testifying to that I’m going to hold off because
I’m not sure yet. I have to see how the case unfolds.”
No further rulings were made during that discussion on the issue of the guns defendant allegedly
took from the house.
Several days later, the parties once again addressed the issue of guns. The defendant
again objected to the testimony of Lisa and Louise on the grounds that there was no testimony
about when the handgun was last seen under the mattress. The defendant further argued to the
trial justice that the evidence was irrelevant because no one saw the make of the grandfather’s
handgun, and Santiago’s testimony that it was a chrome gun contravened Andujar’s testimony
that he saw a dark gun. The trial justice decided that Louise could testify to her father’s
statements because, pursuant to Rule 804(c) of the Rhode Island Rules of Evidence, they were
declarations of a deceased person made in good faith.
During that pretrial discussion about firearms evidence, the comments about Lisa and
Dutra became confused, but the trial justice ultimately ruled as follows:
“[Trial Justice]: Pulling the gun out, making the comment to her,
‘I’m never alone,’ in the context of all the other evidence that’s
- 32 -
coming in: The conversations about guns that he’s interested in;
Santiago seeing him with the gun; Santiago being told by Davis
that he got these guns, that’s all a whole panoply of evidence that’s
intertwined among and between each other. And that kind of
evidence becomes very relevant and admissible and outweighs any
prejudice that might [inure].
“[Defense counsel]: So the 2007 – you’re saying that the 2007
statement by [Lisa] about seeing a gun is relevant.
“[Prosecutor]: Crystal [Dutra].
“[Defense counsel]: To Crystal [Dutra] seeing the gun is relevant
to a killing that took place in 2009, without any evidence to show
that he was in continuing possession of that firearm for two years.
“[Trial Justice]: I’m saying that given all the evidence that has
been offered or proffered, plus Rios, and the Michigan case, and
the cases that speak of intertwining of evidence that is relevant, it’s
coming in. Your request to exclude it is denied * * * You have
your exception. I’ve made my ruling.
“[Defense counsel]: I have another motion then. Motion to
exclude evidence of other crimes. That firearm coming in is
evidence of another crime. It’s evidence that he possessed a
firearm illegally two years earlier.
“[Trial Justice]: I have told you it’s coming in. I will give a
cautionary instruction. On balance, on Rule 403 I have decided
it’s much more relevant and probative than it is prejudicial, based
on the comments I made yesterday, based on the comments I’ve
made today. Your objection is noted for the record. It’s coming
in.”
Before Lisa testified, defense counsel requested a sidebar. During that discussion,
defense counsel asserted that, because he was advised to raise again any objections that had been
addressed in motions in limine, he wished to “re-rais[e] the issue with regard to [Lisa]’s
testimony about the shooting on Union Street.” Later in the testimony, defendant objected,
without indicating a basis, to the question “Now, did you ever bring the defendant to your
grandparents’ house in Johnston?” The objection was overruled. The defendant similarly
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interjected objections throughout Louise’s testimony without providing a basis; however, he did
not attempt to renew any arguments that he had raised in limine at the start of Louise’s
testimony.
The state argues that defendant waived any issue about prior bad acts on appeal because
he did not adequately raise a Rule 404(b) objection to either Lisa or Louise’s testimony about
defendant’s access to guns to the trial justice in his motions in limine. The state also asserts that,
even assuming defendant properly raised the issue before trial, he did not properly preserve the
issue for appeal because he failed to object to the same evidence when it was proffered at trial.
The defendant responds that the trial justice repeatedly denied defendant’s motions on issues of
relevancy and other misconduct evidence on the grounds that State v. Rios, 996 A.2d 635 (R.I.
2010), permitted evidence of access to guns. The defendant urges that the trial justice’s rulings
to pretrial motions squarely addressed the issues raised on appeal and were sufficiently definitive
to satisfy defendant’s obligation to raise the issue again during trial.
“According to our well settled ‘raise or waive rule,’ a litigant must make a timely and
appropriate objection during the lower court proceedings before this Court will indulge the issue
on appeal.” State v. Grant, 840 A.2d 541, 546 (R.I. 2004) (citing State v. Toole, 640 A.2d 965,
972-73 (R.I. 1994)). “[T]he objection must be ‘sufficiently focused so as to call the trial justice’s
attention to [its] basis * * *.’” State v. Ciresi, 45 A.3d 1201, 1212 (R.I. 2012) (quoting State v.
Brown, 9 A.3d 1240, 1245 (R.I. 2010)). Furthermore, “[t]he preliminary grant or denial of an in
limine motion need not be taken as a final determination of the admissibility of the evidence
referred to in the motion.” State v. Gadson, 87 A.3d 1044, 1053 (R.I. 2014) (quoting State v.
Torres, 787 A.2d 1214, 1220 (R.I. 2002)). “We repeatedly have expressed our view that a failure
to object ‘in the vital context of the trial itself (except where the in limine ruling was
- 34 -
unequivocally definitive) [constitutes] a waiver of the evidentiary objection and [is] therefore an
issue that may not be raised on appeal.’” State v. Andujar, 899 A.2d 1209, 1222 (R.I. 2006)
(quoting State v. Kaner, 876 A.2d 1133, 1134 n.4 (R.I. 2005) (mem.)).
In Andujar, this Court held that a trial justice’s in limine ruling was unequivocally
definitive based on the following language:
“No one, no witness, no counsel, no pro se litigant will offer any
witness, evidence, statement or argument that [the defendant] was
acquitted [of those charges]. I will instruct the jury if there’s any
reference to that case at all that it is totally irrelevant and
immaterial as to whether or not that case has even been resolved,
let alone what the result was. * * * You can’t mention the
outcome. That’s the court’s order. You can appeal me.” Andujar,
899 A.2d at 1222.
We decided in that case that “the phrase ‘[y]ou can appeal me’ clearly indicates a certain
finality.” Id. We further reasoned that “[t]he effect of such a categorical ruling is to force a
defendant to adapt his trial strategy to compensate for the loss of this valuable evidence, thereby
lessening the likelihood that he will attempt to admit it at trial in contravention of the trial
justice’s clear order.” Id.
Initially, we are not persuaded by the state’s argument that defendant’s objection was not
“sufficiently focused,” because, although he raised Rule 404(b) in addressing Dutra’s expected
testimony, his objection was neither focused nor articulate and conflated the testimony of Dutra
and Lisa. The defendant repeatedly argued to the trial justice that the “stolen guns” evidence
was highly prejudicial, that there was not a sufficient nexus between the guns that had been
stolen and the murder weapon, and he specifically challenged the trial justice’s reliance on our
holding in Rios.
The sole issue that this Court addressed in Rios, 996 A.2d at 638, was whether the trial
justice committed error because evidence that two witnesses had observed the defendant in
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possession of a handgun several months prior to the murder was inadmissible under Rule 404(b).
This Court determined “that the trial justice engaged in the appropriate analysis of the testimony
offered by both [witnesses] by first evaluating the relevance of the proffered testimony under
Rule 404(b) and then carefully weighing the probative value of the testimony against the danger
of unfair prejudice under Rule 403.” Rios, 966 A.2d at 640-41. The trial justice in the case at
bar conducted precisely the same analysis at defense counsel’s urging. Thus, it is readily
apparent to this Court that, in founding his decision squarely on our ruling in Rios, the trial
justice was adequately alerted to the basis of defendant’s objection on Rule 404(b) grounds.
However, we are not convinced that the trial justice’s several and temporized rulings on
the pretrial motion were “unequivocally definitive” to relieve defendant of his obligation to raise
the issue again in “the vital context of the trial itself.” See Andujar, 899 A.2d at 1222 (quoting
Kaner, 876 A.2d at 1134 n.4). Not only were the issues of access to or interest in guns
repeatedly reargued before trial, but the issues became intertwined and conflated. On more than
one occasion, the trial justice indicated that he was unsure of what his final decision would be
and that he wished to reevaluate his rulings after seeing how the trial progressed. 14
Therefore, it is our considered opinion that defendant did not properly preserve the issue
for appeal and we will not address the merits of the argument.
C
In-Life Family Portrait Photograph
The defendant next argues that the trial justice committed reversible error when he
allowed the state to introduce an “in-life” family portrait-style photograph of the victim, Dutra,
14
On the occasion that the trial justice was most definitive—when he said, “Your objection is
noted for the record. It’s coming in.”—he was specifically referring to the testimony of Dutra
that she saw defendant with a gun in 2007. That evidence was not, in the end, admitted and
therefore is not at issue in this appeal.
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and their daughter. The defendant urges that the photograph had no probative value and was
introduced by the state for the sole purpose of engendering the jury’s sympathy, thereby
prejudicing defendant. The state responds that (1) this issue was not preserved for appeal and (2)
that it needed the photograph to meet its burden of proving all the elements of the case, including
the identity of the victim, and to show that defendant knew the victim.
i
Waiver
The defendant included an objection to the photograph among his motions in limine. The
trial justice made the following ruling on the record:
“I’m satisfied that there’s nothing prejudicial about this
photograph, to the extent that you are concerned about sympathy
being generated. [Defense counsel], both you and [the
prosecution] may have already told the jury that they must not be
swayed by sympathy. Of course, I will be telling them the same
thing. This was a rather tame photograph. There’s nothing
prejudicial about it, in any event. That will be admitted if proper
foundation is laid.”
During the trial, Dutra was asked if she recognized the photo, to which she responded
affirmatively. The state then moved to have the photo marked as a full exhibit and there was no
objection. When the state asked Dutra if the photo was something that was displayed in her
home, defendant objected without providing any basis; the objection was overruled. No
objection was made when the state asked the witness if defendant had claimed that he did not
know Gay.
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It is clear to us that the trial justice’s in limine ruling on the admission of the photograph
was not “unequivocally definitive,” and, therefore, defendant’s failure to object when the
photograph was introduced is fatal to his arguing the issue on appeal. 15
D
Motion for New Trial
The defendant’s final argument on appeal challenges the trial justice’s denial of his
motion for a new trial, pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure.
The defendant submits that the trial justice was clearly wrong in affirming the jury’s verdict
because the state’s two key witnesses, Andujar and Santiago, were either unreliable or otherwise
unworthy of belief.
i
Standard of Review
“When ruling on a motion for a new trial, the trial justice acts as a thirteenth juror,
exercising ‘independent judgment on the credibility of witnesses and on the weight of the
evidence.’” State v. Heredia, 10 A.3d 443, 446 (R.I. 2010) (quoting State v. Imbruglia, 913 A.2d
1022, 1028 (R.I. 2007)). “Specifically, ‘the trial justice must (1) consider the evidence in light of
the jury charge, (2) independently assess the credibility of the witnesses and the weight of the
15
We pause to note that, had defendant properly preserved his objection, we would not have
identified an abuse of discretion in admitting the photograph. “Decisions about the admissibility
of evidence on relevancy grounds are left to the sound discretion of the trial justice * * *.
Furthermore, when reviewing such decisions, we will not conclude that a trial justice abused his
or her discretion as long as some grounds to support the decision appear in the record.” State v.
Pena-Rojas, 822 A.2d 921, 924 (R.I. 2003). Here, the trial justice considered defendant’s
argument and the proffered relevance of the photo by the state, finding that it was relevant and
not prejudicial. The trial justice further offered to protect defendant from any prejudice by
instructing the jury “that they must not be swayed by sympathy.” See also State v. Spratt, 742
A.2d 1194, 1198 (R.I. 1999) (finding in-life photograph of victim relevant to the victim’s
identity, which the state “is burdened with proving to support the charge of murder”); State v.
Bertram, 591 A.2d 14, 23 (R.I. 1991) (same).
- 38 -
evidence, and then (3) determine whether he or she would have reached a result different from
that reached by the jury.’” Id. (quoting State v. Texieira, 944 A.2d 132, 140 (R.I. 2008)). “If,
after conducting this independent review, the trial justice agrees with the jury’s verdict or if the
evidence is such that reasonable minds could differ as to the outcome, the motion for a new trial
should be denied.” State v. Otero, 788 A.2d 469, 472 (R.I. 2002) (citing State v. Marini, 638
A.2d 507, 515-16 (R.I. 1994) and State v. Clark, 603 A.2d 1094, 1096 (R.I. 1992)). “If,
however, ‘the trial justice finds that the state has failed to sustain its burden of proof, a new trial
must be ordered.’” Id. (quoting Clark, 603 A.2d at 1096).
ii
Analysis
The trial justice began his consideration of the motion for a new trial with this astute
observation: “If Kevin Santiago’s testimony was credible, there was no way Miguel Davis was
going to avoid conviction in this case.” Santiago testified that defendant admitted to him that he
shot the decedent, and it was clear from the verdict that the jury accepted that testimony, an
acceptance that the trial justice said he could not fault. The trial justice noted that Santiago was
“vigorously” cross-examined and related details on some important factual items that showed he
was not simply making up facts to impress the jury. Many of those details—“[f]or example, he
recounted how the defendant had told him he had had sex with [Lisa] at her grandparents’ house,
that he knew where the house was, and he knew the guns were under the bed, and that the
grandfather may have been some kind of a law enforcement officer”—corroborated his
testimony about defendant. Moreover, Santiago’s testimony that defendant showed him a 9 mm
handgun was corroborated by the forensic evidence revealing that a 9 mm handgun was used to
murder Dominique Gay.
- 39 -
The trial justice explained that he too found Santiago’s testimony to be credible and that
it was supported by Dutra, who provided a motive for defendant to bring harm to Gay. He
further found that with the testimony of Andujar, “the evidence of guilt becomes overwhelming.”
The trial justice described that Andujar was not a stranger to defendant and, despite the shooter’s
attempt to hide his identity, Andujar testified that he had known that the assailant was defendant
since the day of the shooting. Additionally, the trial justice found that Andujar’s explanations
for not telling the police what he knew were believable—particularly that he was in fear for his
life because he had just seen his friend murdered while he was walking with him on a public
street. Finally, the trial justice said he was not at all critical of the jury’s apparent acceptance of
Andujar’s testimony.
The trial justice also addressed several of the arguments defendant has raised on appeal,
explaining that each of the issues was addressed before and during trial and that he stood by his
rulings. Finally, the trial justice concluded that he was “convinced beyond peradventure that the
jury’s verdict was absolutely the correct one, that it was beyond a reasonable doubt, that the
defendant’s guilt was established.”
Our review of the record convinces us that the trial justice more than met his obligations
to consider the evidence in light of the jury charge, independently assess the credibility of the
two most important witnesses, Andujar and Santiago, and determine whether he agreed with the
jury’s ultimate verdict. With that, our review of the trial justice’s decision to deny the
defendant’s motion for a new trial comes to an end. We see no error in the trial justice’s
considered determinations.
- 40 -
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The record is remanded to that tribunal.
- 41 -
RHODE ISLAND SUPREME COURT CLERK’S
OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Miguel Davis.
CASE NO: No. 2013-312-C.A.
(P1/12-2479AG)
COURT: Supreme Court
DATE OPINION FILED: February 5, 2016
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Francis X. Flaherty
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Robert D. Krause
ATTORNEYS ON APPEAL:
For State: Lauren S. Zurier
Department of Attorney General
For Defendant: Catherine Gibran
Office of the Public Defender