State v. Justice Andrade

June 12, 2019

Supreme Court

No. 2017-231-C.A.
(P1/14-3123AG)

State :

v. :

Justice Andrade. :

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. 2017-231-C.A.
(P1/14-3123AG)

State :

v. :

Justice Andrade. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Chief Justice Suttell, for the Court. In the early hours of July 19, 2014, a gathering of

young adults hanging out at 69 River Avenue in Providence came to an abrupt end when gunshots

killed one of the guests, Ty-Shon Perry. After a three-week jury trial, the defendant, Justice

Andrade, was convicted of first-degree murder by use of a firearm he was not licensed to carry.

The defendant was ultimately sentenced to serve two consecutive terms of life in prison, as well

as a consecutive ten-year sentence.

In this direct appeal, defendant asks us to consider four issues. First, defendant challenges

the admission of the statements he gave to the police when he voluntarily turned himself in to their

custody a few days after Perry was killed. Second, defendant asserts that his constitutional right

to counsel was violated because his trial counsel maintained an actual conflict of interest

throughout her representation of him. Third, defendant challenges the admission of testimonial

and photographic evidence suggesting his affiliation with known Providence gangs. Fourth,

defendant challenges specific portions of the instructions given to the jurors prior to their

deliberation as well as the trial justice’s decision not to include two specific instructions defendant

had requested.

For the reasons set forth herein, we affirm the judgment of conviction.

-1-
I

Facts and Procedural History

A

The Shooting

Throughout the afternoon and evening of July 18, 2014, about a dozen young adults were

hanging out at and around 69 River Avenue in Providence. In the moments before the gunshots

started, Perry was standing next to an open front passenger door of a car parked on Allston Street—

one house down from 69 River—talking to one of his cousins, LaShae Cornwell, and her friends,

who were all sitting in the car.1 Cornwell testified at trial that, while Perry was talking to her

through the open car door, she noticed someone in a white T-shirt peeking out from behind a

“good-sized” tree across the street and about two houses down. Despite the late hour and darkness,

she stated that she had no trouble seeing that individual because of the light emanating from the

street lights. Cornwell testified that she then saw this person step out from behind the tree towards

the car she was sitting in and start shooting. Cornwell saw the person’s face, the gun in his hand,

and that he was wearing black basketball shorts. Cornwell saw Perry run from the car before she

ducked down until she “stopped hearing the shots.” When the shooting was over, she went inside

the house at 69 River and saw Perry on the kitchen floor, bleeding. Cornwell identified defendant

as the shooter to the police who responded to the scene; she knew defendant because she previously

had resided a couple of houses away from him. Although she had not seen him in a couple of

years, she was sure defendant was the person who had fired the gun from the area near the tree.

1
Although none of the witnesses testified to the precise time of the shooting, one of the witnesses
indicated that the shooting occurred after midnight and one of the detectives who responded to the
scene testified that he received the call to respond to 69 River Avenue just after 2 a.m.

-2-
Several other young adults who either lived at 69 River Avenue or had been hanging out

there that evening and late into the night also testified at trial. Some of these witnesses testified

about their affiliation with groups or gangs. None of these witnesses identified the shooter, but

some of them heard “Yo, Sheid” from the direction of the shooting immediately before the

gunshots started. Rasheid Lebron, one of the young adults outside 69 River at the time of the

shooting, testified that his nickname is “Sheid” but he had not heard his name called out in the

moments before the shooting started. He did, however, testify that he returned fire at the direction

of the shooter. Another witness also saw the initial shooting come from the direction of a tree and

saw the shooter run down Allston Street, away from River Avenue, and get into a white car which

then sped away.

Scott Bun, who lived one block away from 69 River Avenue on the corner of Robin and

Allston Streets and had no affiliation to the young adults gathered at 69 River, testified that he had

spent July 18 fishing and arrived home between 11:30 p.m. and midnight. Sometime later, he left

his house to walk his dog and noticed a white car parked on the corner of Robin and Allston close

to the stop sign at the corner. As he was walking down Allston, away from River, he heard

gunshots, turned, saw a flash, then watched a black male in a white T-shirt and black basketball

shorts run towards the white car, jump into the driver’s side, and drive away fast. Bun stated that

the car made a rattling noise, “like there was a big hole in the muffler.”

Detectives from the Providence Police Department quickly narrowed in on defendant as

the suspected shooter because Cornwell identified him as the shooter and their investigation

revealed that he had driven his girlfriend’s white car that evening while she worked a shift at

Burger King and that her car had a loud, rattling muffler. On July 19, an arrest warrant was drawn

for defendant. The defendant turned himself in to the Providence police station on July 21, 2014,

-3-
after he saw his picture on a news broadcast stating that he was wanted as a suspect in a murder

investigation. An attorney he had hired the evening before met him at the station. After speaking

privately with the attorney—whom he met for the first time upon arriving at the police station—

for five minutes, defendant waived his Miranda rights and agreed to speak with Detective Stephen

Sullivan. During his interrogation, defendant provided an alibi that he later admitted was not

truthful.

On October 17, 2014, a grand jury returned a three-count indictment alleging defendant

murdered Perry using a firearm that he was not licensed to carry, in violation of G.L. 1956 §§ 11-

23-1, 11-47-3.2(b)(4), and 11-47-8(a).

B

Pretrial Motions

The defendant filed a motion to suppress the statements he made to the police during the

recorded interrogation on the day he turned himself in to the custody of the Providence Police

Department. The defendant argued—through new counsel—that these statements were made after

an involuntary and unintelligent waiver of his Fifth and Sixth Amendment rights because the

attorney he had retained to represent him at the police station provided ineffective assistance during

the interrogation. At the hearing on defendant’s motion, the trial justice heard testimony from

defendant, the attorney who had represented him on July 21, 2014 at the police station, and from

a criminal defense attorney who testified as an expert about representing criminal defendants. The

trial justice denied defendant’s motion to suppress in a bench decision rendered the same day as

the hearing.

The defendant also filed a motion in limine requesting that the trial justice exclude

testimony about gang affiliation and photographs of defendant in which defendant and the other

-4-
young men depicted were allegedly making gang hand signals. The trial justice considered this

motion—along with other motions in limine—at a hearing he held over two days immediately

preceding the trial. At the end of the hearing, the trial justice denied defendant’s request to

categorically exclude all evidence of gang affiliation and activity, but he promised to provide a

cautionary instruction to the jury about the context in which it could consider this evidence.

C

The Trial

Over the course of three weeks in January 2017, a jury heard testimony from several

individuals who had been present at the gathering on July 19, 2014, several members of law

enforcement regarding the investigation that followed the shooting, and several witnesses who

served time with defendant at the Adult Correctional Institutions (ACI). On January 25, 2017, the

jury returned guilty verdicts on all three charges in the indictment: first-degree murder, discharging

a firearm during the commission of the murder, and carrying a pistol without a license. The

judgment of conviction entered on April 11, 2017, sentencing defendant to serve life in prison for

the first-degree murder conviction, a consecutive term of life imprisonment for the firearm-

discharge-in-the-commission-of-a-crime-of-violence conviction, and a consecutive term of ten

years, three to serve and seven suspended, with probation, for carrying a firearm without a license

or permit. The defendant timely appealed.

-5-
II

Discussion

A

Motion to Suppress Statements to Police

The defendant asserts that the trial justice erred by denying his pretrial motion to suppress

the statements he made to the police on July 21, 2014.

1

First Interrogation

At the hearing on his motion to suppress, defendant testified that, after he had seen a news

broadcast stating that the police were looking for him in connection with a murder investigation,

he spoke with an attorney on the evening of July 20, 2014. Over the phone, defendant told the

attorney that he had been at a friend’s house at 10 p.m. on July 18 and then picked up his girlfriend

at Burger King at 2 a.m. The defendant and the attorney made plans to meet at the police station

the next morning. When defendant arrived at the police station the next day, a detective placed

handcuffs on defendant and transported him to an interview room, where he spoke with the

attorney alone for approximately five minutes. The defendant testified that the attorney told him

to tell the police what defendant had told the attorney about his whereabouts on July 18 into the

early hours of July 19. According to defendant, it was his understanding from their conversation

that he would give a statement to the police and then the attorney would get bail for him two weeks

later; the promise of bail was the reason defendant agreed to give the statement.

When the attorney testified, he stated that he had spoken with defendant at least twice on

the phone before meeting him at the police station on July 21. The attorney testified that he told

defendant that he did not have any information from the police about the investigation and could

-6-
not therefore advise him about whether to give a statement to the police, but that defendant had

been adamant with his alibi and that he had not been the shooter. The attorney further testified

that he also told defendant that the police would be checking out the alibi from start to finish, using

phone records, video-surveillance cameras, and a conversation with the friend with whom

defendant claimed to have spent the hours in question. The attorney stated that he had not

conducted his own investigation into defendant’s alibi.

At the end of the suppression hearing, defendant argued that, notwithstanding the waiver

of his Miranda rights before the first interrogation began, the ineffective assistance he received

from his attorney while at the police station resulted in involuntary statements to the police and a

violation of his Sixth Amendment right to effective assistance of counsel. According to defendant,

the attorney should have taken the time to verify the information defendant had told him about

defendant’s whereabouts between 10 p.m. on July 18, 2014 and 2 a.m. on July 19, 2014 and that

he should have advised him not to provide any statement to the police. The defendant contended

that he was not given accurate advice or counseling by the attorney at the police station.

The trial justice denied the motion, concluding that defendant was not entitled to the Sixth

Amendment’s right to effective assistance of counsel during a custodial interrogation prior to the

filing of official charges against him. He also found that the attorney at the police station had

provided all of the advice to defendant he could, but defendant was clearly adamant about telling

the police he had been at his friend’s house from 10 p.m. to 2 a.m.

We ordinarily engage in a two-step analysis to review a trial justice’s decision on a motion

to suppress a statement on the basis that it was not voluntarily given. State v. Bojang, 138 A.3d

171, 178 (R.I. 2016). First, we review the trial justice’s findings that are relevant to the facts

around the circumstances and setting in which the statement was made. Id. We accept the findings

-7-
of fact unless we determine that the findings are clearly erroneous. Id. If we accept the findings

of fact, then we apply them to a de novo review of the trial justice’s determination of the

voluntariness of the statement. Id. Ultimately, we will not overturn a trial justice’s ruling on a

motion to suppress until our independent review of the conclusions establishes that the defendant’s

constitutional rights were denied. Id.

The procedural posture in this case is a little different, however. The trial justice’s denial

of defendant’s motion to suppress was based primarily on his conclusion of law that defendant’s

Sixth Amendment right to effective assistance of counsel had not yet attached because the

custodial interrogation occurred before formal charges had been filed against defendant. This issue

presents a pure question of law; therefore we review it de novo. See State v. Cahill, 196 A.3d 744,

756 (R.I. 2018).

There is no doubt that “the right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,

397 U.S. 759, 771 n.14 (1970); Page v. State, 995 A.2d 934, 938 n.7 (R.I. 2010) (same). “[A]

person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that

adversary judicial proceedings have been initiated * * *.” Kirby v. Illinois, 406 U.S. 682, 688

(1972). In Rhode Island, “the starting point of our whole system of adversary criminal justice [is]

a formal charge”; “a formal accusation of a felony offense must be by way of indictment by a

grand jury or by information of the Attorney General.” State v. Greenberg, 951 A.2d 481, 495

(R.I. 2008) (brackets omitted) (first quoting Kirby, 406 U.S. at 689, then quoting State v. Jennings,

944 A.2d 171, 174 (R.I. 2008)).2 At that time, “the accused has been informed of a formal

2
As the United States Supreme Court explained a few decades ago:

-8-
accusation against him and restrictions are imposed on his liberty.” State v. Oliveira, 961 A.2d

299, 308 (R.I. 2008) (citing Rothgery v. Gillespie County, Texas, 554 U.S. 191, 194 (2008)). The

stage of an investigation when a suspect is “arrested and subjected to interrogation * * * is not

considered to be a formal adversarial proceeding,” so statements made during the interrogation

cannot be “obtained in violation of [the] Sixth Amendment right to counsel.” State v. Baton, 488

A.2d 696, 703 (R.I. 1985). The statements defendant sought to have suppressed were made before

his Sixth Amendment right to counsel attached, therefore his argument regarding his Sixth

Amendment right to effective counsel lacks merit.

We also note that defendant predicates his Sixth Amendment argument on Escobedo v.

Illinois, 378 U.S. 478 (1964). In Escobedo, the United States Supreme Court found a violation of

a Sixth Amendment right to counsel when the police questioned an uncharged suspect without

warning him of his right to remain silent. Escobedo, 378 U.S. at 490-91. The rationale

undergirding Escobedo in the context of custodial interrogations, however, was largely supplanted

by the Fifth Amendment analysis enunciated by the Supreme Court in Miranda v. Arizona, 384

U.S. 436 (1966). See Miranda, 384 U.S. at 465-66; see also Kirby, 406 U.S. at 689. Moreover, in

Kirby, the Supreme Court drew a distinction with Escobedo, noting that “the Court in retrospect

“The initiation of judicial criminal proceedings is far from a mere
formalism. It is the starting point of our whole system of adversary
criminal justice. For it is only then that the government has
committed itself to prosecute, and only then that the adverse
positions of government and defendant have solidified. It is then
that a defendant finds himself faced with the prosecutorial forces of
organized society, and immersed in the intricacies of substantive and
procedural criminal law. It is this point, therefore, that marks the
commencement of the ‘criminal prosecutions’ to which alone the
explicit guarantees of the Sixth Amendment are applicable.” Kirby
v. Illinois, 406 U.S. 682, 689-90 (1972).

-9-
perceived that the ‘prime purpose’ of Escobedo was not to vindicate the constitutional right to

counsel as such, but, like Miranda, ‘to guarantee full effectuation of the privilege against self-

incrimination.’” Kirby, 406 U.S. at 689 (deletion omitted) (quoting Johnson v. New Jersey, 384

U.S. 719, 729 (1966)).

As the trial justice in the present case cogently observed: ‘“The sole concern of the Fifth

Amendment, on which Miranda was based, is governmental coercion.’ The suspect is entitled to

counsel in order to prevent the police from coercing a statement and not to prevent a defendant

from speaking voluntarily. In other words, the purpose of counsel is to ensure that there is no

overreaching or compulsion by the inquiring officers.” (Quoting Colorado v. Connelly, 479 U.S.

157, 170 (1986)). The Supreme Court has also been clear that courts are not expected to be able

to “divine a defendant’s motivation for speaking or acting as he did even though there [has been]

no claim that governmental conduct coerced his decision.” Connelly, 479 U.S. at 165-66.

In the case under review, defendant voluntarily presented himself at the police station,

where he met his attorney and spoke with him for five minutes outside the presence of any law

enforcement agent. The defendant acknowledged that he had been “Miranda’d” and that he did

not have any difficulty understanding what that meant. As the Supreme Court noted in Connelly,

one of the underlying purposes of the exclusionary rule is to “substantially deter future violations

of the Constitution.” Connelly, 479 U.S. at 166. Here, defendant’s Fifth Amendment rights were

not violated and suppression of the statements he made during the first interrogation would not

effectuate this purpose of the exclusionary rule. Therefore, the trial justice did not err by denying

defendant’s motion to suppress the statements from the first interrogation.

- 10 -
2

Second Interrogation

The defendant also argues that the trial justice should have suppressed the statements he

made in the second recorded interrogation on July 21, 2014. A few hours after the first

interrogation—and after defendant’s attorney had left the police station—Det. Sullivan initiated

another conversation with defendant. The statements defendant made during this second

interrogation were not explicitly identified as part of the motion to suppress, and defendant did not

raise any specific objection to the admission of these statements during Det. Sullivan’s trial

testimony. In fact, the trial transcript indicates that defendant’s trial counsel wanted the transcript

of the second interrogation to be entered into evidence if the first transcript was entered over her

objection.

“The raise-or-waive rule imposes upon litigants a duty to raise all their claims for relief in

the trial court and properly articulate them to a judge for a ruling.” Cahill, 196 A.3d at 753 (quoting

State v. Yon, 161 A.3d 1118, 1128 (R.I. 2017)). “It is well settled that the raise-or-waive rule

‘precludes us from considering at the appellate level issues not properly presented before the trial

court.’” Id. (quoting Yon, 161 A.3d at 1128). The trial justice was not asked to specifically

consider whether defendant’s right to counsel was violated when Det. Sullivan resumed the

interrogation after defendant’s attorney had left the police station. The defendant’s argument on

appeal that the statements he made in the second interrogation should have been suppressed are

therefore waived.3

3
If defendant had not waived his arguments regarding the second interrogation, our review of the
transcript created from the audio recording of this interrogation reveals that defendant’s only
disclosure during this brief interrogation was that he could not read a road map, so was not able to
show Det. Sullivan the route he had driven around Providence the night of the shooting.

- 11 -
B

Trial Errors

1

Trial Counsel’s Conflict of Interest

The defendant argues that his Sixth Amendment right to counsel was violated because his

trial counsel had a conflict of interest throughout the trial. The source of the conflict, according to

defendant, is that his trial counsel simultaneously represented another defendant4 whose child’s

mother—LaShae Cornwell—testified against defendant as the main eyewitness to the shooting.

The defendant asserts that his trial counsel deliberately kept this information from him even though

everyone involved in the case except defendant knew about her other client and the connection to

defendant’s case. The defendant also contends that trial counsel used the connection to frame her

cross-examination strategy because the attorney tried to get Cornwell to state during trial that she

was willing to testify against defendant in the hopes that the state would be more lenient toward

her ex-boyfriend and father of her child at his trial. According to defendant, this was a strategy

trial counsel could have developed only by using inside information she obtained from her

professional relationship with her other client.

The state, for its part, argues that defendant has not articulated a conflict of interest created

by trial counsel’s representation of another defendant stemming from a completely unrelated

shooting incident. As a result, the state contends, defendant has failed to show an actual conflict

of interest, “much less one that adversely affected his attorney’s performance.”

4
This other defendant was Michael Stokes, who was convicted for crimes related to shooting
several individuals in a bar. See State v. Stokes, 200 A.3d 144 (R.I. 2019). There is no indication
that there was any connection between the shooting incident in Stokes and the shooting incident in
this case.

- 12 -
Although defendant frames his conflict-of-interest argument as a “violation of his Fifth and

Sixth Amendment rights pursuant to the United States Constitution and [a]rticle I, section[s] 10

and 13 of the Rhode Island Constitution,” his argument clearly implicates only his right to effective

assistance of trial counsel. We first note that his claim is properly cognizable in an application for

postconviction relief rather than on direct appeal. “This Court repeatedly has held that it will not

consider a claim of ineffectiveness of counsel that is raised for the first time on a direct appeal.”

State v. Brouillard, 745 A.2d 759, 768 (R.I. 2000). Moreover, defendant’s claim lacks merit.

This Court employs a specific framework to determine whether a defendant’s Sixth

Amendment right to effective assistance of counsel has been infringed when a defendant asserts

that his attorney had a conflict of interest during his representation. Simpson v. State, 769 A.2d

1257, 1266 (R.I. 2001). “[The] mere possibility of a conflict of interest is not enough to impugn

a criminal conviction under the Sixth Amendment.” Chapdelaine v. State, 32 A.3d 937, 946 (R.I.

2011) (deletion omitted) (quoting Simpson, 769 A.2d at 1266-67). When a defendant does not

raise the conflict issue during the trial court’s proceedings, we require defendant to demonstrate

on appeal that the trial attorney “actively represented conflicting interests and that an actual

conflict of interest adversely affected [the] lawyer’s performance.” Simpson, 769 A.2d at 1267

(quoting Strickland, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). “An ‘actual’

conflict of interest is defined as ‘one that requires that an attorney struggle to serve two

masters.’” Chapdelaine, 32 A.3d at 946 (quoting Simpson, 769 A.2d at 1267). “To determine

whether an actual conflict exists, the Court must look to ‘whether the attorney’s actions were

motivated by divided loyalties and whether the attorney’s conduct lacked a sound strategic

basis.’” Id. (quoting Simpson, 769 A.2d at 1267).

- 13 -
This issue tends to arise when one attorney represents codefendants in the same trial, not

when one attorney is representing two criminal defendants in completely separate prosecutions of

unrelated events. See Holloway v. Arkansas, 435 U.S. 475, 481-82 (1978). The Supreme Court

has been clear that joint representation of codefendants is not a per se actual conflict of interest,

id. at 482; as set forth above, there must be some indication that the attorney in question

“struggle[d] to serve two masters.” Chapdelaine, 32 A.3d at 946 (quoting Simpson, 769 A.2d at

1267).

In the case at bar, the only indication during trial that defendant’s trial counsel also

represented an individual personally connected to a witness for the state was during eyewitness

Cornwell’s testimony. The defendant’s trial counsel asked Cornwell several questions during

cross-examination about her child’s father being at the ACI awaiting trial on the charges for which

he had been indicted, in an effort to elicit that her motive for testifying at defendant’s trial was to

help the state, hoping that the state would be more lenient with the prosecution of her child’s father.

While trial counsel likely became aware that the state’s primary eyewitness in this case was

personally connected to an individual at the ACI awaiting trial only through the trial counsel’s

attorney-client relationship with that individual, the representation of two defendants whose

charges were wholly unrelated to each other does not demonstrate that trial counsel had any

divided loyalties representing both clients. The defendant has tried valiantly to show that his trial

counsel had an actual conflict of interest that was exposed during Cornwell’s testimony, but there

is no indication that the trial counsel’s representation was in any way affected by her representation

of one of the state’s witness’s child’s father. There was, therefore, no actual conflict of interest

and no violation of defendant’s Sixth Amendment rights to effective assistance of counsel in this

way. See Chapdelaine, 32 A.3d at 946.

- 14 -
2

Evidence of Gang Affiliation

The defendant’s motion in limine to exclude testimony about alleged gang involvement

and photographs of defendant and other young men allegedly displaying gang hand signals

asserted that this evidence was not relevant to any issue in the prosecution and would serve only

to “inflame the passions and prejudices of the jury.” During the hearing on his motion, defendant

argued that the evidence should be precluded because there is no evidence that he was a member

of any gang and the photographs—taken years before the shooting—were “enormously

prejudicial” with “marginal, if any, relevance to any issue in this case.” The prosecutor countered

that there was plenty of evidence that defendant associated with known and admitted gang

members and that defendant used recognized gang hand signals in the photographs the state sought

to admit into evidence. The trial justice denied the motion to categorically exclude this evidence

but stated he would provide a cautionary instruction to the jury that defendant’s affiliation with a

gang was not an indication of bad character or a predisposition to commit a crime. On appeal,

defendant argues that the trial justice erred by allowing prejudicial evidence of gang activity

throughout the trial, including admitting as full exhibits four photographs of defendant and his

friends making recognizable gang hand signals.

We have noted on more than one occasion that “a trial justice’s rulings on motions in limine

are preliminary in nature.” State v. Colon, 198 A.3d 1249, 1255 (R.I. 2019). “The inherent purpose

of a motion in limine is to prevent the proponent of potentially prejudicial matter from displaying

it to the jury in any manner until the trial court has ruled upon its admissibility in the context of

the trial itself.” Id. (brackets and deletion omitted) (quoting State v. Buchanan, 81 A.3d 1119, 1126

(R.I. 2014)). “As such, ‘an in limine ruling is not final and a trial justice is vested with broad

- 15 -
discretion to reconsider the ruling as the trial unfolds.’” Id. (quoting Buchanan, 81 A.3d at 1126).

“Accordingly, it is incumbent upon counsel to raise ‘timely and appropriate’ evidentiary objections

throughout the trial in order to preserve the issues for appeal.” Id. (quoting State v. Ciresi, 45 A.3d

1201, 1212 (R.I. 2012)). In addition, “[a]ccording to our well-settled raise or waive rule, issues

that were not preserved by a specific objection at trial, sufficiently focused so as to call the trial

justice’s attention to the basis for said objection, may not be considered on appeal.” State v.

Hallenbeck, 878 A.2d 992, 1018 (R.I. 2005) (quoting State v. Bettencourt, 723 A.2d 1101, 1107

(R.I. 1999)).

As defendant asserts in his brief, gang affiliation and activity permeated the entire trial.

Both the prosecutors and defendant’s trial counsel asked most of the witnesses several questions

about gang affiliation and activity, if any. Moreover, four photographs were admitted into

evidence through Detective Matthew McGloin, who—without any objection or renewed motion

from defendant to exclude the evidence—testified about his knowledge related to street gangs that

are active in Providence. In fact, in a sidebar discussion outside the presence of the jury initiated

by the trial justice, defendant’s trial counsel remained silent while the trial justice and the

prosecutor discussed the scope of Det. McGloin’s expected upcoming testimony. During Det.

McGloin’s testimony, defendant’s trial counsel initiated a sidebar discussion to clarify which

photographs the prosecutor sought to enter into evidence, and she stated a general objection to one

or two of the four photographs marked for identification. She did not press or provide any

foundation for her objection when the trial justice decided to allow all four photographs.

Furthermore, defendant’s trial counsel did not object when the prosecutor moved for the four

photographs discussed with Det. McGloin to be entered as full exhibits. The blanket objection

asserted at sidebar does not suffice for renewing defendant’s objection to the photographs on the

- 16 -
bases articulated during the hearing on the motion in limine.5 The defendant’s arguments regarding

the gang-related testimony and photographs are, therefore, waived.6 See Colon, 198 A.3d at 1255.

C

Jury Instructions

The defendant requested two specific jury instructions: one about eyewitness identification

and one to assist the jurors with their assessment of the credibility of the cooperating witnesses.

The trial justice declined to include either of the two instructions in the final jury instructions but

noted defendant’s objection to his decision, thereby preserving the issue for appellate review, if

needed. On appeal, defendant mentions these requested jury instructions but fails to provide any

accompanying argument or indication as to how or why defendant thinks the trial justice erred by

refusing to give these two instructions. As a result, defendant has waived this jury instruction issue

for our review by “simply stating [this] issue for appellate review, without a meaningful discussion

thereof or legal briefing of the issues * * *.” State v. Patino, 93 A.3d 40, 58 (R.I. 2014) (brackets

omitted) (quoting State v. Chase, 9 A.3d 1248, 1256 (R.I. 2010)); see State v. Florez, 138 A.3d

789, 798 n.10 (R.I. 2016) (“It is not enough merely to mention a possible argument in the most

5
We also note that, had this issue been preserved, the photographs of defendant were probative
evidence of motive for the murder. See State v. Young, 78 A.3d 787, 793 n.7 (R.I. 2013).
6
The defendant also argues—for the first time on appeal—that the trial justice erred by admitting
the photographs because the state had not established any foundation for when and where the
photos were taken. This argument is waived for failure to raise it below. See State v. Hallenbeck,
878 A.2d 992, 1018 (R.I. 2005) (“[T]his [C]ourt will not review objections that were not raised at
trial. Consequently, allegations of error committed at trial are considered waived if they were not
effectively raised at trial, despite their articulation at the appellate level.”) (deletion omitted)
(quoting State v. Bettencourt, 723 A.2d 1101, 1107-08 (R.I. 1999)).

- 17 -
skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put

flesh on its bones.”) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

The defendant does argue, however, that the trial justice erred in three ways with the jury

instructions issued to the jurors prior to their deliberation, including (1) that the limiting instruction

the trial justice provided regarding the testimony about gang affiliation and activity was

ineffective; (2) that the definition of “beyond a reasonable doubt” was wrong; and (3) that the

instruction as to assessing the credibility of all of the witnesses was confusing. Rule 30 of the

Superior Court Rules of Criminal Procedure is crystal clear, however, that “[n]o 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.” The defendant did not raise any of these alleged errors to the

trial justice either before or after the trial justice charged the jury with the instructions proposed

and discussed at the conclusion of the evidence, even when he was provided an express opportunity

to do so. The defendant has therefore also waived direct appellate review of these jury instructions.

III

Conclusion

For the reasons stated herein, the judgment of conviction is affirmed. The record of this

case shall be returned to the Superior Court.

- 18 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Title of Case State v. Justice Andrade.
No. 2017-231-C.A.
Case Number
(P1/14-3123AG)
Date Opinion Filed June 12, 2019
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:

Virginia M. McGinn
Attorney(s) on Appeal
Department of Attorney General
For Defendant:

Richard K. Corley, Esq.

SU‐CMS‐02A (revised June 2016)