CourtListener 9988140•State v. Dari Garcia
Texte intégral
Supreme Court
No. 2019-205-C.A.
(P1/15-394AG)
(Concurrence begins on
Page 62)
State :
v. :
Dari Garcia. :
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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2019-205-C.A.
(P1/15-394AG)
(Concurrence begins on
Page 62)
State :
v. :
Dari Garcia. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Robinson, for the Court. The defendant, Dari Garcia, appeals from
a May 3, 2018 judgment of conviction and commitment following a jury trial held
in the Superior Court for Providence County. The defendant was charged with
fifteen counts pertaining to several related occurrences that took place in the evening
of August 17, 2014 at a home in North Providence, Rhode Island. On appeal, the
defendant presents nine grounds for reversal of his conviction. He bases his
argument for reversal on a wide variety of reasons, which are enumerated and
discussed in detail below.
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
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I
Facts and Travel
The various charges against defendant arose out of a most regrettable series
of events that led to several tragic consequences, including the death of Richard
Catalano. We preliminarily note that it is undisputed that Richard Catalano was shot
to death in the evening of August 17, 2014 in a house located at 9 Elliot Avenue in
North Providence; and it is further undisputed that Lorie Catalano, Christopher
Tamelleo,1 and Lindsey Onorato were also present in that house on the night of the
shooting.2
On February 12, 2015, a grand jury indicted defendant on fifteen counts: one
count of first-degree murder; three counts of discharging a firearm while committing
a crime of violence; one count of conspiracy; one count of burglary; four counts of
felony assault (three of which were assault with a dangerous weapon); one count of
using a firearm during a crime of violence; one count of carrying a firearm without
1
Christopher Tamelleo was the husband of Lorie Catalano.
2
For the sake of avoiding any confusion, we shall ordinarily refer to Lorie
Catalano and Richard Catalano (mother and son) by their full names. All other
persons will be referred to in the usual manner.
Lorie Catalano was the mother of the murdered Richard Catalano. We note
that the record contains several variations of the spelling of her first name. For the
sake of consistency, we have opted to utilize the spelling “Lorie,” which is how her
name was spelled when she was sworn in as a witness at trial.
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a license; one count of possession of a firearm after conviction of a crime of violence;
one count of alteration of marks of identification on a firearm; and one count of
committing a crime of violence when possessing a stolen firearm.
On November 27, 2017, prior to the start of defendant’s jury trial, a hearing
was held on pretrial motions—including, inter alia, defendant’s motion to dismiss,
defendant’s motion to suppress, and defendant’s motion in limine to exclude any
reference to defendant’s gunshot wound as being self-inflicted. Later that same day,
jury selection began. Thereafter, a trial took place over eight days in November and
December of 2017. On December 12, 2017, the jury, having deliberated, returned a
guilty verdict on Counts One, Two, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven,
Twelve, Fourteen, and Fifteen.3 The defendant subsequently filed a motion for a
new trial, and a hearing on that motion was held on January 5, 2018, after which the
trial justice denied defendant’s motion. On April 13, 2018, defendant was sentenced
as follows: three life sentences—the first two sentences to be served consecutively
3
As noted infra, after the state rested, on December 8, 2017, defendant moved
for a judgment of acquittal pursuant to Rule 29 of the Superior Court Rules of
Criminal Procedure as to Count Three (charging defendant with conspiracy to
commit a robbery), which motion was granted by the trial justice. Moreover, by
stipulation of the parties, the allegations set forth in Count Thirteen were never
presented to the jury. (Count Thirteen had charged defendant with possessing a
firearm during a crime of violence following a prior conviction of a crime of
violence.)
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to each other, and the third life sentence to be served concurrently with the other
two; five consecutive twenty-year sentences; three concurrent ten-year sentences;
one concurrent five-year sentence; and a twenty-five-year consecutive sentence as
an habitual offender. The defendant filed a timely, albeit premature, notice of appeal
on April 13, 2018.4
We relate below the salient aspects of the pretrial hearing, the trial, the motion
for a new trial, and the sentencing.
A
The Pretrial Motions
On October 3, 2017, defendant filed a motion to suppress his verbal statements
made to Rhode Island Deputy Sheriff Ian Banigan, who was guarding defendant
while he was undergoing treatment at Rhode Island Hospital as a result of the events
of August 17, 2014. In his “Complaining Witness Statement,” Sheriff Banigan
reported that defendant had asked Sheriff Banigan if he was “f*****,” at which point
Sheriff Banigan asked defendant what he meant. The defendant then said: “I’m
f*****, they have three bodies on me.” In his motion to suppress, defendant argued
that this inquiry by Sheriff Banigan to defendant as to what his initial question had
4
This Court has consistently “stated that [it] will overlook the premature filing
of a notice of appeal.” State v. Sheridan, 252 A.3d 1236, 1243 n.6 (R.I. 2021)
(internal quotation marks and brackets omitted).
-4-
meant constituted custodial interrogation. The trial justice, citing State v. Grayhurst,
852 A.2d 491 (R.I. 2004), denied defendant’s motion to suppress. She emphasized
that Sheriff Banigan was not at the hospital in order to interrogate defendant, and
she further found that Sheriff Banigan’s response “was merely an instinctive reaction
provoked by the [d]efendant’s initial statement.”
In addition, defendant filed a motion to dismiss Count Seven on double
jeopardy grounds. In his motion, defendant argued that his “alleged assaultive
conduct was part of an unbroken chain of events properly considered a single act,
rather than an unrelated series of discrete crimes.” He contended that, due to the fact
that Count Six and Count Seven charged an identical crime (viz., assault with a
dangerous weapon against Lorie Catalano), Count Seven should have been
dismissed under double jeopardy principles. Specifically, defendant contended that,
even though defendant allegedly shot Lorie Catalano once in her son’s bedroom and
a second time in a separate room, these two alleged shootings “were part of one
continuing event or occurrence * * *.” The trial justice did not rule on this motion
to dismiss at that time, instead suggesting that defendant later “make a Rule 29
motion on that,” and she indicated that she would “rule at that time.”
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B
Jury Selection
Upon the completion of the hearing on the pretrial motions, jury selection
began. In the course of the voir dire process, Juror 98 indicated that she had a son
who was “locked up * * * in Bridgewater”5 because he had “tried to rob a bank.”
Juror 98 further stated that the authorities in Massachusetts had treated her son well,
and she also stated that both the prosecutors and defense counsel were “all very good
with him.” When asked by the trial justice if she could be fair in the instant case,
Juror 98 answered in the affirmative and additionally confirmed that she could “keep
an open mind and consider all the evidence [the parties] offer.” The trial justice
engaged in further questioning and then asked Juror 98 whether, in this case, she
would hold the state to “a higher standard than [beyond a reasonable doubt] because
of the nature of the charges * * *?” Juror 98 responded by stating: “That’s hard to
say.” Subsequently, the following exchange occurred:
“THE COURT: I know. Well, is there anything about you
that would prevent you from sitting in judgment against
somebody in a case like this?
“[JUROR 98]: I never been in a situation like this. I don’t
even know what to say.
5
We infer that, in disclosing the location of her son’s incarceration, Juror 98
was referring to Old Colony Correctional Center, which is located in Bridgewater,
Massachusetts.
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“THE COURT: No, no. Are you a person who just can’t
sit in judgment?
“[JUROR 98]: I probably can’t.
“THE COURT: I’m not suggesting it to you. I’m trying
to get --
“[JUROR 98]: I understand what you’re saying.
“THE COURT: You would have to make a decision --
“[JUROR 98]: That decision, I don’t think I can.
“THE COURT: You don’t think you can do it?
“[JUROR 98]: No.”
Defense counsel then asked Juror 98: “[I]f you feel the State does prove this
case beyond a reasonable doubt, will you be able to follow the Judge’s instructions
and find him guilty?” Juror 98 responded: “Yes, I would. I would be able to follow
the instructions.” The following further questioning then took place between the
trial justice and Juror 98:
“THE COURT: * * * Maybe you suspect he’s guilty, but
[the state] didn’t prove it beyond a reasonable doubt.
Could you say ‘not guilty’?
“[JUROR 98]: If they didn’t prove it, that’s hard.
“THE COURT: That’s hard for you?
“[JUROR 98]: Yeah.
“THE COURT: Why is that?
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“[JUROR 98]: I don’t know.”
The trial justice then posed the following question to Juror 98:
“THE COURT: * * * If the State doesn’t prove each and
every element of the crime charged beyond a reasonable
doubt, even if you suspect the Defendant did it but they
didn’t prove it, even if it’s a strong suspicion, but they
didn’t prove it beyond a reasonable doubt, in spite of the
nature of these charges, could you come back and say ‘not
guilty’? Can you do that?
“[JUROR 98]: If they didn’t prove it?
“THE COURT: Yes.
“* * *
“THE COURT: You’re hesitating.
“[JUROR 98]: If I feel they didn’t prove it, and I feel he’s
not guilty, or if I feel he’s guilty --
“THE COURT: You might feel he’s guilty, but the
question is if they didn’t prove it. You might feel he’s
guilty, but you feel they didn’t prove it beyond a
reasonable doubt. Can you come back and even if you
kind of feel he’s guilty, but they didn’t prove it beyond a
reasonable doubt, can you come back and say ‘not guilty’?
Take your time.
“[JUROR 98]: I can’t say that he’s guilty if they didn’t
prove it.”
The prosecutor proceeded to ask Juror 98 if she had ever been a victim of a
crime, and Juror 98 responded that she had once been “assaulted” while she was
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jogging in a park. When asked if that experience would “hinder [her] ability to be
fair and impartial” in the instant case, Juror 98 replied: “I’m sorry. I can be fair.”
Juror 98 added that she did not believe that the perpetrator of the assault on her was
ever caught. She further indicated that she was “satisfied with the job that the police
did in that case.”
On the next day, the state exercised a peremptory challenge with respect to
Juror 98. Upon the state exercising this peremptory challenge, defense counsel
objected on Batson grounds,6 stating that he felt that the state’s reason for striking
Juror 98 was because “she’s a person of color.” Defense counsel proceeded to assert
that he felt that Juror 98 had been hesitant about answering certain questions due to
how she “understood the language.” Defense counsel pointed out that Juror 98
“made it clear that she would consider what was said and that she would make a
decision based on the evidence that if she felt he was guilty, she would vote guilty.
And if she felt not guilty, she would vote not guilty.” Defense counsel asserted that
“any attempt to parse her testimony, or to microanalyze her personality, is just an
attempt to try to * * * look for a reason to get her off because she’s black.”
The trial justice interrupted, offering the following commentary:
“By the way, I do want to point out that [Juror 98’s] skin
tone is very, very dark. I just want to say, for the record,
6
See Batson v. Kentucky, 476 U.S. 79 (1986).
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the Defendant’s skin tone, although he appears to be a
person of color, is very light as a person of color. She is
not Hispanic. He is Hispanic. I just wanted that on the
record, that she is clearly dark-skinned, even for someone
who is a person of color. He is very light-skinned for a
person of color and Hispanic. I wanted that on the record.”
The trial justice stated: “The issue in Batson is whether or not she is being excused
because of race. That’s the only one. She has a right to serve, and the Defendant
has a right to have her serve if she is systematically being excluded because of race.”
Defense counsel stated that he believed that the questions asked by the state “were a
little more probing than some of the other jurors.” The colloquy between defense
counsel and the trial justice then proceeded as follows:
“[DEFENSE COUNSEL]: * * * [W]hatever deficiencies
there might be in her intellect or communication skills, she
has a right to be a juror. Her being a black person, I think,
especially to try to find fault with her for those
deficiencies, I think is a pretext. Not to insult anybody.
“THE COURT: Well, it is insulting. But that’s okay.
“[DEFENSE COUNSEL]: I have the highest respect for
them.
“THE COURT: You have a right on behalf of your client
to say what you say, but you did insult them. But that’s
okay.[7]
“[DEFENSE COUNSEL]: Okay. That’s what I feel.
7
It is clear from the context that the trial justice’s use of the pronoun “them”
referred to the two prosecutors.
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“THE COURT: It’s your obligation to say what you feel.
“[DEFENSE COUNSEL]: I understand.
“THE COURT: It is insulting, but go ahead.”
Following this exchange, the state offered what it considered to be three
race-neutral explanations for the peremptory challenge. The first reason pertained
to Juror 98’s son. The prosecutor stated:
“[S]he came before the Court, unsolicited, and told us her
son is serving time in Massachusetts and has been
convicted of a robbery. In this case, there’s not a clear
robbery claim, but certainly a conspiracy to rob, and the
facts that arise to what was at least attempted robbery in
this case. So that similarity gives the State concern that
she could be fair and impartial especially, you know,
possibly even feeling sympathy for the Defendant. She
made the comment that her son was a good man, so that
left the State with concern.”
The state’s second reason was a result of Juror 98’s confusion regarding the standard
of proof:
“[A]s far as Your Honor’s questioning of her as to her
understanding the burden of proof, the fact that the State
has to prove beyond a reasonable doubt his guilt, but not
beyond all doubt, the State was concerned by her multiple
times where she hesitated, that she would have a lot of
trouble following that instruction as to the burden of proof.
You know, as to the fact -- well, that’s the second reason.”
Finally, the state’s third reason related to the fact that Juror 98 stated that she was a
victim of a crime:
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“[W]hen going into the normal questions, she did say she
was the victim of a crime. I’m assuming it was assault.
She couldn’t even talk about it. I don’t know if it was
sexual or physical in nature. This is a pretty close case.
So the concern from the State that she could sit and listen
to all of these facts and come out with a judgment was also
a concern.”
After the state concluded its proffer of race-neutral explanations, the trial
justice noted that Juror 98 “was the only person of color seated.”8 She added that
there was a “juror excused for cause, a Hispanic gentleman, who himself asked to
be seen at sidebar and advised the [c]ourt that his English communication skills were
insufficient to follow the evidence and instructions on the law.” Additionally, she
stated that there was also an “Asian gentleman,” who was hostile and not interested
in serving on the jury. As to that juror, the trial justice stated: “It was abundantly
clear in an effort to get out of serving he provided the [c]ourt with every reason why
he couldn’t be fair and impartial.” That person was eventually excused.
Turning next to the race-neutral explanations proffered by the state, the trial
justice began with the significant statement that it was her view that the state “would
have used up a [peremptory] challenge on this woman, had she been white.” The
8
It is noteworthy that, later, after she had overruled the Batson challenge, the
trial justice noted for the record that a particular person who was seated on the jury
(viz., Juror 38) had a skin tone that was “similar to the Defendant, and he’s
Hispanic.”
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trial justice added that, in reaching that conclusion, she had taken into account the
fact that Juror 98’s son “was picked up, charged with * * * attempting to rob a bank,
and must have pled.” The trial justice acknowledged that Juror 98 stated that she
“would not hold that against anyone, and she was clear, by the way, that she was
really able to articulate that she felt he was treated fairly.” However, the trial justice
further commented: “Nonetheless, she clearly loves her son. She made a point she
visits him all the time.”
Moving to the second race-neutral explanation, the trial justice emphasized
that Juror 98 was “very, very confused” about the “very basic instructions.” The
trial justice specifically noted that, when Juror 98 was asked the same questions as
had been posed by the trial justice to several other jurors, she seemed very confused
on the topic of the standard of proof. She did note that Juror 98 was at one point
rehabilitated; but she added that Juror 98’s body language continued to suggest that
she was confused, in that “her body language was such that the time space between
her answers and the questions, she looked like it wasn’t a question of nervousness.”
The trial justice emphasized that this body language suggesting confusion was
especially apparent when compared with her ability to give answers regarding her
son, which the trial justice stated had come “more easily.”
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Lastly, with respect to the state’s third race-neutral explanation, the trial
justice stated that, when Juror 98 was indicating that she had been a victim of a
crime, she was unable to describe the incident in detail and was very distraught.
The trial justice summed up her reasoning by stating that, based on the
prosecutor’s explanations, “had [Juror 98] been white, Anglo-Saxon, Protestant, and
had a very sophisticated educational background, and even had friends who were
police officers, the State would have moved to exclude her.” Accordingly, the trial
justice overruled defense counsel’s Batson challenge.
C
The Trial
There follows the testimony of those witnesses whose testimony we deem
relevant to our resolution of the issues on appeal.
1. The Testimony of Officer Ariel Kurpiewski
Officer Ariel Kurpiewski, who responded to a dispatch call to the 9 Elliot Avenue
address in North Providence on August 17, 2014, testified that what he first observed
upon arriving at the scene was Christopher Tamelleo running toward him while
“screaming and yelling.” According to Officer Kurpiewski, Mr. Tamelleo informed
him that a “black male with a beard entered his house and shot his wife.” Officer
Kurpiewski stated that he then heard the sound of a gunshot in the backyard. He
testified that, after not succeeding in finding anyone in the backyard, he “retreated
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back to [the] vehicle to take cover and waited for other officers to arrive.” Officer
Kurpiewski stated that, when another officer arrived at the scene, he informed him
of the gunshot as well as the fact that, when he had passed in front of the residence,
he had observed Lorie Catalano lying on the front porch covered in blood. When
the two officers made their way to the rear porch, Officer Kurpiewski heard two
gunshots go off from inside the house. Officer Kurpiewski testified that, when he
entered the house at 9 Elliot Avenue, he observed “pry marks around the doorknob
area.” He added that he “also observed a pry bar which had an orange handle directly
beneath the door on the porch.” As the two officers entered the kitchen area, Officer
Kurpiewski also noticed blood all over the floors as well as “spent bullet casings on
the floors” and a “bullet hole in the ceiling.” Officer Kurpiewski further testified
that, shortly after he entered the house, Mr. Tamelleo came into the house, “shouting
that his son is in the room * * *.”
Officer Kurpiewski testified that Mr. Tamelleo then moved outside the house,
and the officers entered a bedroom, where they observed Richard Catalano, who
appeared to have been shot “with his head down with blood all over his shirt.”
Because the door to the bedroom would not open fully, Officer Kurpiewski started
to push it; and, when he looked behind the door, he observed “a black male with a
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beard directly behind the door.” He testified that that person9 had blood on his face;
he added that it appeared that “he had a gunshot wound to the top of his forehead.”
2. The Testimony of Christopher Tamelleo10
The next witness was Christopher Tamelleo, who testified that, on the evening
of August 17, 2014, he woke up to the sound of “vicious banging.” Mr. Tamelleo
stated that, when he tried to determine who was in the house, he noticed a black male
(whom he later identified in his testimony as defendant) standing with a gun pointed
toward Richard Catalano’s bed. He testified that he heard defendant fire the gun at
Richard Catalano and that defendant then said: “Where is the money?” Mr.
Tamelleo testified that he “went and tackled” defendant, while Lorie Catalano dove
over her son’s bed toward defendant. Mr. Tamelleo stated that he witnessed
defendant firing another shot into Lorie Catalano’s shoulder as she dove over the
bed. According to Mr. Tamelleo, when he tackled defendant, the gun flew across
the kitchen floor. Mr. Tamelleo added that defendant was able to retrieve the gun
before he could do so and that defendant put the gun to Mr. Tamelleo’s head.
However, Mr. Tamelleo further testified that he was able to place his “finger behind
the trigger so it wouldn’t engage.”
9
In the course of his testimony, Officer Kurpiewski identified defendant as the
person who had been behind the door.
10
See footnote 1, supra.
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Mr. Tamelleo also testified that, as he was on top of defendant, Lorie Catalano
“came out of the bedroom and jumped on [Mr. Tamelleo’s] back because
[defendant] was hitting [him] over the head with the gun.” He stated that, once he
was able to free himself from defendant, he ran outside and called 911; he added that
he noticed defendant run out the back door onto the porch, apparently uninjured.
3. The Testimony of Lorie Catalano
Lorie Catalano began her testimony by stating that, on the night of August 17,
2014, she was awoken by a “loud bang.” She added that, after hearing the loud
noise, she went to her son’s room and observed that he had been shot. Upon seeing
defendant holding a gun and apparently trying to use the weapon again on her son,
she “hopped over [the bed] and took the shot, took the bullet * * *.” Lorie Catalano
testified that, after she was shot in the shoulder, her son said to her: “Mommy, who
is he? What does he want? Why did he shoot me?” She said that she replied: “I’m
going to clear it. Let me see so I can get you out. I’ll be right back.”
It was Lorie Catalano’s further testimony that she left her son’s room and
found defendant and Mr. Tamelleo struggling on the floor in the hallway. Lorie
Catalano stated that, in an attempt to help Mr. Tamelleo, she hit defendant with a
light fixture. She added that she punched defendant with her left hand and that her
“finger slipped into his mouth and he chewed it * * * off completely.” Lorie
Catalano further testified that she and defendant continued to struggle over the gun
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and that defendant “grabbed it first.” She testified that, once defendant had the gun,
he said: “You f****** bitch whore. You’re a ghost.” She testified that defendant
then proceeded to shoot her in the face.
4. The Testimony of Lindsey Onorato
Lindsey Onorato testified that in 2014 she was living with Richard Catalano,
her boyfriend, at the 9 Elliot Avenue house in North Providence, where Mr.
Tamelleo and Lorie Catalano also resided. She stated that, on August 17, 2014, she
had slept all day because she was feeling ill; she added that Richard Catalano had
been attending a “shoe convention” in Providence. Ms. Onorato testified that, at
approximately 11:45 p.m., she heard a loud bang and then saw a man with a gun
enter the house. According to Ms. Onorato, the man, whom she identified at trial as
defendant, walked into the bedroom, asked Richard Catalano where the money was,
and shot him. Ms. Onorato stated that, upon seeing that Richard Catalano was shot,
she called 911. She testified that she then grabbed her dogs, ran out of the house,
and called 911 again.
During cross-examination, defense counsel sought to inquire about the
possible presence of drugs in the Elliot Avenue house. At sidebar, after a rather
lengthy colloquy with the trial justice as to whether evidence of the existence of
drugs (other than marijuana) in the house could be introduced, the trial justice asked
defense counsel: “So what Rule of Evidence do you ask her about, about using
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heroin? Are you going to be saying, well, was she under the influence so her
impressions aren’t good?” Defense counsel answered in the affirmative. At that
point, the trial justice excused the jury and sought to determine if Ms. Onorato had
been “under the influence at that point in time.”
Outside the presence of the jury, defense counsel asked Ms. Onorato if she
had used any illegal drugs on August 17. Ms. Onorato responded that she had
snorted heroin earlier that day; she specified that she had done so before Richard
Catalano left to go to the shoe convention at approximately 2:00 p.m. When asked
by defense counsel what effect the heroin had on her at approximately 11:45 p.m.,
Ms. Onorato stated that she had been fine as of that time and that she felt as though
the heroin had had no effect on her. The trial justice ruled:
“Absent evidence, and I mean expert evidence, that
snorting heroin, for a person who she said used heroin
early in the day would have an impact on her ability to
perceive at 11:45 at night, the evidence is excluded. The
objection is sustained. Your exception is noted. Your
offer of proof will be your voir dire.”
5. The Testimony of Sheriff Ian Banigan
Sheriff Ian Banigan was also called upon to testify. He testified that, on
September 1, 2014, he had been on “guard detail” of defendant, who was being
treated at Rhode Island Hospital for a gunshot wound. The prosecutor asked Sheriff
Banigan if defendant had said anything to him when he was in the hospital room
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with him. Defense counsel stated that he would be objecting “for the reasons
specified in [his] prior motion.” The trial justice responded: “[O]verruled for the
reasons I gave previously.”
Sheriff Banigan testified that defendant asked him if he was “f*****.” Sheriff
Banigan testified that he reacted by asking defendant what he meant. According to
Sheriff Banigan, defendant then stated: “I’m f*****. They got three bodies on me.”
Sheriff Banigan testified that he believed that he then told defendant, “I don’t know”
in response to what defendant had said. He also stated that he and defendant did not
exchange any further words during the rest of the day.
6. The Three Hernandez Brothers11
Victor Hernandez was next called as a witness by the prosecution. The state
began by asking Victor with whom he had gone to 9 Elliot Avenue on August 17,
2014. Victor replied that he could not “answer that question.” Victor acknowledged
that he had “no Fifth Amendment right whatsoever because [he had] already pled
and [had] been sentenced,” and he confirmed that he had no legal or physical basis
for declining to answer the question. After Victor refused to answer the state’s
question for a second time, the trial justice informed Victor about what would occur
11
For the sake of clarity, we refer to the members of the Hernandez family by
their first names. No disrespect is intended.
- 20 -
if she were to find him in contempt of court, and she gave him a final opportunity to
answer the question. Victor again refused to answer the question. As a result, the
trial justice found him in contempt of court and sentenced him to ten years at the
Adult Correctional Institutions (ACI), to be served consecutively to the sentence
which he was then serving.
After Victor was excused by the trial justice, a man who later identified
himself as Carlos Hernandez spoke out in open court, saying: “Love you, brother.”
The trial justice proceeded to find Carlos in contempt “to vindicate the authority of
the Court,” and she sentenced him to 48 hours at the ACI.
Viclei Hernandez was also called to testify by the state. In response to the
prosecutor’s question as to whether he had given defendant a ride to 9 Elliot Avenue
on August 17, 2014, Viclei stated that he did not remember. The trial justice ordered
that he be given a transcript of his plea for the purpose of refreshing his recollection.
When then asked if his recollection was refreshed, Viclei stated that his previous
statement at the time of his plea was false, that he lied about everything contained in
his previous statement, and that he could not remember what happened on the day
in question. The trial justice emphasized that, because Viclei had pled guilty, he had
no Fifth Amendment right against self-incrimination with respect to the question he
had been asked. In view of Viclei’s responses, the trial justice found him to be in
contempt of court, and she sentenced him to ten years at the ACI, to be served
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consecutively to the sentence that was yet to be imposed on him in connection with
what took place at 9 Elliot Avenue on August 17, 2014.
7. The Testimony of Neil Clapperton
The state next called Neil Clapperton, a “Criminalist II” at the State of Rhode
Island Crime Laboratory. Mr. Clapperton explained that the responsibilities of a
Criminalist II include “the examination of firearms and doing all the analyses
pertaining to firearms and ammunition, which would include test fires, identification
of cartridge cases and projectiles to a particular weapon, tests for operability and
functionality of the firearm, serial number restoration, distance determination, [and]
pellet pattern.” Mr. Clapperton provided testimony as to the definitions of certain
terms such as a firearm, a semiautomatic pistol, and the various components of a
cartridge, among others.
With respect to the instant case, Mr. Clapperton testified that the Crime
Laboratory had received “a firearm with a magazine, a live cartridge, three
projectiles, and five cartridge cases.” He added that there was a second submission
of materials, consisting of two cartridge cases. Several exhibits, which were
identified by Mr. Clapperton as discharged cartridge casings retrieved from the
scene, were introduced into evidence as full exhibits. Shortly thereafter, the
following colloquy occurred:
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“[PROSECUTOR]: Mr. Clapperton, in your expert
opinion to a reasonable degree of scientific certainty, is it
your opinion that items l0, 11, 12, l3 --
“[DEFENSE COUNSEL]: Objection.
“THE COURT: Sustained. Leading. Wrong form. If you
have any questions about the form, confer with counsel,
because I don’t want you to keep doing it.
“* * *
“[PROSECUTOR]: Based upon your examinations of the
cartridge casings, did you form an opinion?
“[WITNESS]: Yes, sir.
“[DEFENSE COUNSEL]: Objection.
“THE COURT: Sustained. Stricken. Did you form an
opinion on what?
“[PROSECUTOR]: Did you form an opinion that the
casings were fired from the firearm --
“[DEFENSE COUNSEL]: Objection.
“THE COURT: Sustained. Ladies and gentlemen, I’m
going to send you upstairs. Okay. Put your pads down. I’m
not going to have a bunch of improper questions asked,
because after a while it’s the question that becomes the
evidence.”
The trial justice further stated:
“THE COURT: Please read [Rules] 703, 705. And if you
need to confer with somebody, confer. But I’m not going
to allow this to continue unless you have it right. And
when you have it right, let me know.
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“* * *
“THE COURT: Do you have the rules of evidence on your
table?
“[PROSECUTOR]: Yes, I do.
“THE COURT: Good.
“* * *
“[PROSECUTOR]: The State is ready, Your Honor. I
apologize.
“THE COURT: Why don’t you come off the record to
sidebar, and let me find out how you’re going to phrase it,
because you end up testifying otherwise.”
8. The Defendant’s Motion for Judgment of Acquittal
At the close of the prosecution’s case, defense counsel moved for a judgment
of acquittal pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure.
Before arguments on the motion began, the trial justice confirmed that the state was
not objecting to dismissal of the conspiracy count (Count Three), and she
subsequently dismissed that count.
Defense counsel then advanced arguments as to why the Rule 29 motion
should be granted as to various counts, including Count Five.
Defense counsel contended that defendant was being charged twice for the
same crime—viz., Count Five, which charged defendant with “discharging a firearm
- 24 -
while committing a crime of violence * * * [t]o wit, burglary resulting in the death
of Richard Catalano,” and Count Two, which charged defendant with “discharging
a firearm while committing a crime of violence, to wit, murder, resulting from the
death of Richard Catalano.”
The state responded that, because “the felony murder, which the State is
putting forth as its theory under the murder count, would be with the intent to commit
an attempted robbery, not a burglary,” the counts were “not duplicative in the sense
that the murder and the burglary are not of the same theory as far as the felony.”
Deferring her ruling on the issue, the trial justice directed the parties to brief the issue
by the end of the day. However, because it had not been determined as of that point
in time whether the defense intended to put on evidence or whether defendant would
testify, the trial justice decided that she was going to “deny the motion, but [she
would] reconsider it in the event that” defendant presented “any evidence.”
Thereafter, the trial justice found that, at that stage in the proceedings, Counts
Five and Two were separate counts; but she indicated that she would “address the
issue again in the event the Defendant is convicted of more than one of those counts
that are the subject matter of [the Rule 29] motion,” in that she would “review it for
purposes of sentencing to make sure sentencing is not duplicative.”
- 25 -
9. The Closing Arguments, the Jury Instructions, the Verdict, and the Motion
for a New Trial
After defendant rested, but before closing arguments began, the trial justice
reminded the jury that “what an attorney says during his or her final argument is not
evidence” and that such statements were not to be considered in the same way in
which the jury should consider “the testimony or the exhibits or the stipulations.”
The trial justice further noted an issue pertaining to the state’s intention to argue to
the jurors that they could infer that defendant’s gunshot wound was self-inflicted, to
which defense counsel objected.12 The trial justice emphasized that she was not
going to allow the prosecution to “suggest that the jury infer that it was self-inflicted
* * *,” but she noted that it was a “legitimate argument to make sure the jury isn’t
confused into thinking somebody else in that house * * * shot him.” The trial justice
stated that she would allow the prosecution to say only that there was no evidence
that anyone in the house shot defendant. However, the trial justice did make clear
that, if defense counsel wanted to suggest in his closing “even subtly that [Mr.
Tamelleo] fired that weapon and caused the injuries to [defendant],” then she would
12
This issue first arose on October 3, 2017, when defense counsel filed a motion
in limine to “preclude references to defendant’s wounds as being self-inflicted.” At
the hearing on the pretrial motions, defense counsel indicated that the state had
agreed that it had “no medical evidence to this effect and [it] will introduce no such
evidence to this effect.” The state confirmed that this assertion was correct.
- 26 -
reverse her ruling and allow the state to suggest defendant’s wounds were self-
inflicted.
In the course of his closing argument, defense counsel twice commented,
among other statements, that there was evidence of Mr. Tamelleo’s DNA on the
trigger. Defense counsel stated that, “based on the testimony of the witnesses, it
seem[ed] likely that his finger was on the trigger and not behind it * * *.”
During her closing argument, the prosecutor stated that, unlike what defense
counsel mentioned in the course of his closing argument, the jury’s task was not to
determine who caused defendant’s injuries; rather, they were to be concerned with
who killed Richard Catalano and who caused injuries to Lorie Catalano and Mr.
Tamelleo. The prosecutor went on to note that the doors to the Elliot Avenue house
were barricaded, and that there were “only two people inside. One is Richard
Catalano who, unfortunately, we know from the testimony that he was already
deceased at that time, and the other person, Dari Garcia. There was only one person
left that could have pulled that trigger.” At this point, defendant objected, and the
objection was overruled.
Later, during the state’s closing argument, the prosecutor stated:
“[L]et’s not forget Lorie Catalano because she will never,
never forget. After 67 surgeries, she has survived the most
horrific night of her life. Every day she’s going to look in
the mirror, she looks in the mirror, and she sees that night.
She remembers that night. When she looks at her face, her
- 27 -
finger, and the scar still left on her shoulder, the restricted
movement, she’s always going to remember that night.
And those physical injuries not only serve as a reminder
of what happened to her, but they serve --”
At that point, defense counsel objected, and the trial justice instructed the prosecutor
to “[m]ove on.” Once the state concluded its closing argument and the jury was
removed from the courtroom, the trial justice, addressing counsel, stated:
“I overruled the objection, because, number one, I
instructed them and will be instructing them that final
argument is not evidence and also because, as I indicated
to you before, Counsel for the Defendant began his final
argument. If the door was opened, I would allow Counsel
for the State to get into the issue of [defendant’s] bullet
wounds, and Counsel for the Defendant chose to focus
some of his attention on the DNA of Christopher Tamelleo
on that firearm and so forth and did certainly infer that
Christopher Tamelleo’s finger on that trigger * * * was for
reasons other than self-protection or might have been. In
any event, the door got opened, and I did allow it, and the
jury will be instructed that what an attorney says during
his or her final argument is not evidence.”
As part of her instructions to the jury, the trial justice emphasized that
“[r]emarks or statements made by counsel in your presence during the course of the
trial or in argument are not evidence and should not be considered as such by you
during the course of your deliberations.”
After deliberations, the jury found defendant guilty of all the remaining counts
of the indictment: Counts One, Two, Four, Five, Six, Seven, Eight, Nine, Ten,
Eleven, Twelve, Fourteen, and Fifteen. On December 19, 2017, defendant filed a
- 28 -
motion for a new trial; and, after a hearing on that motion, the trial justice denied it
on January 5, 2018.
D
The Sentencing and the Subsequent Travel of the Case
On April 13, 2018, during argument from counsel with respect to sentencing,
defense counsel argued that the consecutive life sentence on Count Five was “double
jeopardy duplicative of Count [Two] which is discharging a firearm during the
commission of a violent crime, which is murder.” The trial justice stated that she
intended to decline to sentence defendant on Count Five because it was “duplicative
of the sentence in Count [Two].” She added that she intended to decline to sentence
defendant on Count Eleven because it “appeared duplicative of the sentence” which
she intended to impose with respect to Count Ten.
Additionally, defense counsel asked that, if the trial justice were to determine
that defendant should receive an additional sentence as an habitual offender, she not
“impose a [twenty-five-year] consecutive sentence without parole.” He further
averred that defendant did not “deserve to have the possibility of parole completely
foreclosed at [that] point.” Specifically, defense counsel asserted that, while the
sentences were “compelling,” this was “not a case where the Defendant was
convicted of a life without parole charge” and that, therefore, consideration should
“be given of rehabilitation, of what the Parole Board can do in the future * * *.” He
- 29 -
concluded by arguing that, because defendant had “not been convicted of life
without parole,” the sentence should not be one of “de facto life without parole.”
The trial justice subsequently sentenced defendant to three life sentences—
the first two sentences to be served consecutively to each other, and the third life
sentence to be served concurrently with the other two; five consecutive twenty-year
sentences; three concurrent ten-year sentences; one concurrent five-year sentence;
and a twenty-five-year consecutive sentence as an habitual offender. The trial justice
did not sentence defendant on Count Five, stating that it was duplicative of the
sentence on Count Two. Similarly, she declined to sentence defendant on Count
Eleven, finding that it was duplicative of Count Ten.
A judgment of conviction entered on May 3, 2018. The defendant filed a
premature but valid notice of appeal on April 13, 2018.
II
Issues on Appeal
The issues raised before this Court by defendant are: (1) whether the trial
justice erred in allowing the state to strike a prospective juror in violation of the
principles established in Batson v. Kentucky, 476 U.S. 79 (1986); (2) whether the
trial justice impermissibly allowed into evidence certain testimony by Sheriff
Banigan; (3) whether the trial justice erred in limiting the cross-examination of
Lindsey Onorato and excluding evidence of her drug use; (4) whether the trial justice
- 30 -
erred in allowing two brothers to testify in the presence of the jury even though she
subsequently found both of them and a third brother in contempt of court; (5)
whether the trial justice “impermissibly aided the prosecution” during the
questioning of an expert witness; (6) whether Count Two and Count Five of the
indictment merged for double jeopardy purposes; (7) whether defendant’s
convictions on Count Six and Count Seven violated the double jeopardy clause; (8)
whether certain statements made by the prosecutor in her closing argument were
unduly prejudicial; and (9) whether the trial justice’s sentencing of defendant
resulted in a “de facto life without parole sentence without the necessary statutory
protections.”
We shall address defendant’s contentions seriatim.
III
Analysis
A
The Batson Challenge
The defendant’s first argument is that the trial justice erred “in allowing the
[s]tate to strike a prospective minority juror” in purported violation of the principles
established in Batson v. Kentucky, 476 U.S. 79 (1986). Specifically, defendant
contends that it was clear error for the trial justice, when reviewing the questioning
of Juror 98, to have concluded: (1) that “the prospective juror had been confused,”
- 31 -
and (2) that, even if she had been white, “the State would have moved to exclude
her.” The defendant in effect asserts that the trial justice erred in determining that
the state proffered sufficient race-neutral reasons in response to defendant’s Batson
challenge. The defendant further argues: “Emphatically, the real concern is why
[Juror 98] was the only person of color in the jury pool, excepting a Hispanic male
and an Asian male who were both excluded for cause.” The defendant additionally
emphasizes that the prosecution engaged in a line of questioning that was posed to
no other potential juror; he contends that the prosecution “engaged more
deferentially” in its interaction with other jurors.
For its part, the state argues that the trial justice correctly denied defendant’s
Batson challenge. The state emphasizes that it provided three race-neutral reasons
for the challenge to Juror 98, and it asserts that those reasons were “clearly
supported” by the record.
This Court has held that, “[b]ecause of the nature of the inquiry in a Batson
analysis, a trial justice’s decision is accorded great deference.” State v. Gallop, 89
A.3d 795, 804 (R.I. 2014) (internal quotation marks omitted). For this reason, “the
ruling on the issue of discriminatory intent must be sustained unless it is clearly
erroneous.” Id. (internal quotation marks omitted).
It has been established that the “Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution guarantees the defendant that the State
- 32 -
will not exclude members of [a defendant’s] race from the jury venire on account of
race.” State v. Pona, 66 A.3d 454, 472 (R.I. 2013) (internal quotation marks and
brackets omitted) (Pona II); see also Batson, 476 U.S. at 86; Sanchez v. Roden, 753
F.3d 279, 284 (1st Cir. 2014).
In Batson v. Kentucky, the United States Supreme Court set forth a tripartite
test to ascertain whether a defendant has been deprived of the constitutional
guarantee afforded by the Equal Protection Clause by virtue of a prosecutor
wrongfully exercising a peremptory challenge. Batson, 476 U.S. at 96-98.
The first step in the Batson tripartite test requires that a “defendant must
establish a prima facie case of purposeful discrimination.” Pona II, 66 A.3d at 472
(internal quotation marks and brackets omitted). However, this first prong becomes
moot “if the trial justice moves beyond it to consider the second and third steps.”
Gallop, 89 A.3d at 805. If such a prima facie case of purposeful discrimination has
been established, then the “burden shifts to the prosecution to articulate its race-
neutral reason(s) for challenging that particular juror.” Pona II, 66 A.3d at 472
(quoting State v. Price, 706 A.2d 929, 935 (R.I. 1998)).
Under the second step, it becomes the duty of the prosecutor to “give a clear
and reasonably specific explanation of his [or her] legitimate reasons for exercising
the challenge.” Miller-El v. Dretke, 545 U.S. 231, 239 (2005) (Miller-El II) (quoting
Batson, 476 U.S. at 98) (brackets omitted); see also Pona II, 66 A.3d at 472 (“Upon
- 33 -
such a showing [of purposeful discrimination], the burden shifts to the prosecution
to articulate its race-neutral reason(s) for challenging that particular juror.”) (quoting
Price, 706 A.2d at 935). In order to satisfy the burden, the prosecutor cannot simply
deny that he or she had a discriminatory motive or simply assert that he or she acted
in good faith in carrying out the peremptory strike. See State v. Pona, 926 A.2d 592,
602 (R.I. 2007) (Pona I). However, at this stage, a prosecutor’s race-neutral
explanation “need not rise to the level justifying exercise of a challenge for cause.”
Batson, 476 U.S. at 97. It is also noteworthy that this Court has made clear that
“[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.” Pona I, 926 A.2d at 602 (quoting
Hernandez v. New York, 500 U.S. 352, 360 (1991)).
Finally, at the third step, the trial justice is required “to determine whether the
defendant has carried his or her burden of proving purposeful racial discrimination.”
Pona II, 66 A.3d at 472 (quoting Price, 706 A.2d at 935). If the prosecution presents
a race-neutral basis for the peremptory challenge, “a trial justice must undertake a
sensitive inquiry into such circumstantial and direct evidence of intent as may be
available.” Pona I, 926 A.2d at 602 (internal quotation marks omitted). On that
point, we have noted that “[t]here will seldom be much evidence bearing on that
issue, and the best evidence often will be the demeanor of the attorney who exercises
the challenge.” Pona I, 926 A.2d at 602 (quoting Hernandez, 500 U.S. at 365).
- 34 -
As part of the third step, a trial justice must conduct a probing inquiry into the
proffered race-neutral reason(s) and assess the veracity and credibility of the
prosecutor’s reasons. See Pona I, 926 A.2d at 602 (“[A] trial justice’s finding of
purposeful discrimination at this third step largely will turn on evaluation of
credibility * * *.”) (internal quotation marks omitted). As the Supreme Court has
stated, “[c]redibility can be measured by, among other factors, the prosecutor’s
demeanor; by how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial strategy.” Miller-El
v. Cockrell, 537 U.S. 322, 339 (2003) (Miller-El I). The Supreme Court has further
stated that, “[i]f a prosecutor’s proffered reason for striking a black panelist applies
just as well to an otherwise-similar nonblack who is permitted to serve, that is
evidence tending to prove purposeful discrimination to be considered at Batson’s
third step.” Miller-El II, 545 U.S. at 241. This Court has added that “[t]he trial
justice’s evaluation of the prosecutor’s state of mind is accorded great deference.”
Price, 706 A.2d at 935; see also Flowers v. Mississippi, 588 U.S. 284, 303 (2019)
(noting that, because a trial justice’s findings in the Batson context “largely will turn
on evaluation of credibility, a reviewing court ordinarily should give those findings
great deference”) (quoting Batson, 476 U.S. at 98 n.21).
We begin our analysis by stating that, in this case, we are satisfied that an
extensive discussion of the first step of the Batson tripartite inquiry is not necessary.
- 35 -
A thorough review of the record reveals that the trial justice, without any extended
discussion, moved quite quickly beyond the first prong to address and rule on the
proffered race-neutral reasons. Accordingly, the question of whether defendant
established a prima facie case of purposeful discrimination is not actually before us.
See Gallop, 89 A.3d at 805. Moreover, this Court is convinced that the prosecutor’s
three articulated reasons for the challenge of Juror 98 were facially race-neutral, and
there has been no argument from defendant arguing to the contrary; the second prong
of the Batson tripartite inquiry has therefore been satisfied. Consequently, we are
concerned only with defendant’s arguments as they relate to the trial justice’s
reasoning in her analysis of the third prong of the Batson tripartite inquiry (i.e.,
whether the trial justice properly concluded that the race-neutral reasons for the
peremptory strike did not amount to purposeful discrimination).
The defendant has advanced several arguments with respect to the trial
justice’s rejection of the Batson challenge. First, defendant contends that the state
engaged in more probing questioning of Juror 98 than of any other juror.
Specifically, defendant points to an open-ended question asked by the prosecutor
and what he characterizes as a “lengthy interrogation” by the trial justice and the
prosecutor on the issue of the standard of proof.
It is evident from the record that a lengthy colloquy occurred between Juror
98 and the trial justice. However, when viewing the exchange between Juror 98 and
- 36 -
the trial justice, it becomes evident why the trial justice found that the nature of Juror
98’s responses required her to engage in further probing. After Juror 98 expressed
concerns regarding sitting in judgment of defendant and applying the beyond a
reasonable doubt standard, it was incumbent upon the trial justice and counsel to
conduct further inquiry into the suitability of that juror. While the questioning of
Juror 98 may have differed in some respects from the questioning of other jurors and
while said juror may have been asked different or more questions from those that
were posed to other jurors, a trial justice should consider whether a juror’s
race-neutral answer to a race-neutral question was the basis for the disparate
treatment.
We first take note of the fact that, when the trial justice initially inquired if
Juror 98 could be fair in this case, she answered in the affirmative and additionally
stated that she could “keep an open mind and consider all the evidence [the parties]
offer.” However, when the trial justice proceeded to ask Juror 98 if she would hold
the state to “a higher standard than [the beyond a reasonable doubt standard] because
of the nature of the charges,” Juror 98 responded by stating: “That’s hard to say.”
This undoubtedly candid but nonetheless problematic hesitation by Juror 98
understandably alerted the trial justice to the existence of potential confusion on the
part of Juror 98; and in our view, further questioning was quite clearly called for.
- 37 -
Following the initial colloquy between the trial justice and Juror 98, defense
counsel asked Juror 98: “[I]f you feel the State does prove this case beyond a
reasonable doubt, will you be able to follow the Judge’s instructions and find him
guilty?” Juror 98 responded: “Yes, I would. I would be able to follow the
instructions.” Nevertheless, the record clearly reflects the trial justice’s quite
understandable continuing concerns. Juror 98’s confusion is reflected in the record
once again when the trial justice asked her whether she would be able to return a
verdict of not guilty if the state did not prove that defendant was guilty beyond a
reasonable doubt. Juror 98 responded: “If they didn’t prove it, that’s hard.” Further
questioning took place, and the trial justice noted on the record to Juror 98: “You’re
hesitating.”
It is clear to this Court that, in view of some of Juror 98’s responses up to that
point, the trial justice was left with no alternative but to further question Juror 98 on
her understanding of and willingness to abide by the crucially important standard of
proof in this criminal case. In conducting her Batson analysis, the trial justice stated
that questioning by her as to the standard of proof was routine in the jury selection
process. She added that it was the nature of some of Juror 98’s potentially troubling
answers that called for further probing.
Importantly, the trial justice stated that she was attempting to rehabilitate Juror
98, which comment signals to us that the additional questioning was not racially
- 38 -
motivated; rather it was done in an effort to assist Juror 98. Although the trial justice
stated that, at one point Juror 98 was rehabilitated, the trial justice further made clear
that Juror 98’s body language continued to suggest that she was confused. We are
acutely aware that the trial justice was in a position to observe first-hand Juror 98’s
perceptible confusion and hesitation, to which observations we accord great
deference, and it is noteworthy that the trial justice distinguished Juror 98’s body
language when answering questions pertaining to the standard of proof from her
body language when answering questions about her son, which appeared to reflect
her being more at ease. We further believe that the perplexed nature of Juror 98’s
answers to the additional questions posed by the trial justice after their initial
colloquy on the issue of the standard of proof clearly supports the trial justice’s
determination that Juror 98 was still confused.
We likewise perceive no error in the trial justice’s determination that the
state’s third race-neutral reason was sufficient.13 The trial justice emphasized that
13
Although it is not entirely clear from the record that the trial justice passed
with specificity on the first proffered race-neutral explanation (viz., the incarceration
of Juror 98’s son), there is nothing in the trial justice’s discussion to suggest that she
found the explanation to be insufficient. Cf. State v. Austin, 642 A.2d 673, 678 (R.I.
1994) (“[T]he trial judge reasonably found that the prosecutor exercised a
peremptory challenge because the prospective juror’s son was incarcerated at the
ACI on a robbery conviction. Although the trial justice found that this relationship
was an insufficient reason to excuse the juror for cause, it is certainly sufficient to
verify its race-neutral character.”).
- 39 -
Juror 98 indicated that she had been the victim of an assault. According to the trial
justice, she was unable to articulate facts relating to the incident and she became
very distraught when discussing the matter. The defendant has offered no
convincing reason to disturb the trial justice’s appraisal of this reason relied upon by
the prosecutor. See Pona II, 66 A.3d at 473 (stating that the prosecutor’s reason was
not “facially implausible or unpersuasive so as to compel a finding that it was
pretextual”).
The defendant’s next claim of error relates to the trial justice’s establishing as
a “metric whether the State would have expended a [peremptory] challenge were the
Juror [an] Anglo-Saxon, Protestant, and had a very sophisticated educational
background, and even had friends who were police officers * * *.” While it may be
true that this Court has never clearly indicated that the trial court should employ that
particular criterion, we nevertheless have stated: “[I]f a prosecutor’s proffered
reason for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Pona I, 926 A.2d at 603
(quoting Miller-El II, 545 U.S. at 241). To that end, we have added that:
“[A] trial justice should consider all the evidence
presented both in support of and in contravention to a
purported race-neutral reason and should search beyond
the face of a proffered justification to ensure that, as
applied to the facts of the particular case and with due
- 40 -
regard to a comparison of stricken minority venire
members to those nonminority members allowed to serve,
a peremptory challenge was not, in fact, racially
motivated.” Pona I, 926 A.2d at 610.
In our opinion, the trial justice did not err in considering the proffered race-neutral
reasons by the state by virtue of her use of the above-mentioned “metric.” While the
trial justice’s actual language did not directly align with what we articulated in Pona
I, it is nevertheless our view that the trial justice sought to determine whether the
state’s race-neutral explanations were racially motivated and did so by ascertaining
whether the state would have moved to exclude Juror 98 had she been a nonminority
member of the jury pool.
The defendant next calls into question the trial justice’s arguably
inappropriate observation that Juror 98’s “skin tone is very, very dark,” while she
added that defendant’s skin tone is “very light as a person of color.” It is not entirely
clear to this Court just why the trial justice made this particular observation on the
record. Perhaps it was for the reason suggested by defendant in his brief submitted
to this Court: “It is not impossible to say the notation was to rebut any notion that
race was a factor in as much as the noted difference between the two individuals, the
Juror and the Defendant regarding skin tone.” Additionally, our review of the record
reveals that, in another instance, the trial justice made clear for the record that a
different prospective juror’s skin tone was “similar to the Defendant, and he’s
- 41 -
Hispanic.” As previously stated, we are unable to readily discern the trial justice’s
rationale for so stating in either instance. However, it is clear to us, after carefully
scrutinizing the entire record, that this observation in no way impacted her Batson
analysis.
Finally, defendant also directs this Court’s attention to the trial justice’s
labeling defense counsel’s Batson-based challenge to the prosecutor’s peremptory
challenge as “insulting”—something that happened outside the hearing of the jury.
While we do not endorse the trial justice’s negative commentary on defendant’s
exercise of his constitutional right as explained in Batson, we certainly do not deem
this to be reversible error. After reviewing the trial justice’s careful and meticulous
Batson assessment, we are persuaded that this unnecessary remark did not affect her
thorough reasoning and corresponding ruling.
For the several reasons set forth above, we affirm the trial justice’s denial of
defendant’s Batson challenge.
B
The Motion to Suppress the Statements Made to Sheriff Ian Banigan
The defendant next argues that the statements14 made by him to Sheriff
Banigan while he was being guarded at Rhode Island Hospital and before he was
14
See Part I.A, supra.
- 42 -
read his Miranda rights15 should have been suppressed as the product of “custodial
interrogation.” The defendant asserts that he was in “precarious physical shape,
drugged, handcuffed to a hospital bed, and the sheriff should have known his
statement was likely to elicit an incriminating response.” The state contends that
defendant was not subjected to custodial interrogation at the time the statements
were made. Alternatively, the state argues that any error in admitting defendant’s
statements would be harmless.
We have held that, “when reviewing a trial justice’s decision granting or
denying a motion to suppress, we defer to the factual findings of the trial justice,
applying a clearly erroneous standard.” State v. Depina, 245 A.3d 1222, 1226 (R.I.
2021) (brackets omitted) (quoting State v. Storey, 8 A.3d 454, 459-60 (R.I. 2010)).
However, that is not the end of the process; even while remaining deferential to those
factual findings, it is our role as an appellate court to “conduct a de novo review of
the record and independently consider whether a defendant’s rights have been
violated.” Id. (quoting State v. Parra, 941 A.2d 799, 803 (R.I. 2007)). In performing
this independent examination, we “must view the evidence in the record in the light
most favorable to the state.” Id. (quoting State v. Gonzalez, 136 A.3d 1131, 1145
(R.I. 2016)). We will reverse “a trial justice’s findings on a motion to suppress only
15
See Miranda v. Arizona, 384 U.S. 436 (1966).
- 43 -
if (1) his or her findings * * * reveal clear error, and (2) our independent review of
the conclusions drawn from the historical facts establishes that the defendant’s
federal constitutional rights were denied.” Gonzalez, 136 A.3d at 1145 (internal
quotation marks omitted).
After our de novo review of the record, it is our conclusion that, based on the
undisputed facts and the pertinent case law, defendant has failed to convince us that
he was under custodial interrogation when he made his statements to Sheriff
Banigan. In State v. Grayhurst, 852 A.2d 491 (R.I. 2004), this Court dealt with a
similar issue. In that case, the defendant argued that the trial justice improperly
denied his motion to suppress statements that the defendant made to a police
detective who met with him at the Adult Correctional Institutions for the purpose of
inquiring about allegations lodged against the defendant concerning threats “made
to public officials as well as violations of no-contact orders.” Grayhurst, 852 A.2d
at 513. After the detective informed the defendant of the allegations, he asked him
to read and sign a Miranda rights form. Id. In response, the defendant “became
highly agitated after learning of the charges against him, [and] said ‘something to
the effect that his wife knows what’s coming.’” Id. (brackets omitted). The detective
responded: “[W]hat do you mean?,” to which the defendant answered: “I’m going
to put a bullet in her head.” Id.
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In affirming the denial of the defendant’s motion to suppress those statements,
this Court noted that the defendant’s “first statement to [the detective], which was
that Ms. Grayhurst knew what was coming, was a spontaneous statement, spoken
before [the detective] addressed any questions to him.” Grayhurst, 852 A.2d at 513.
The Court concluded that the statement was thus “not the product of interrogation.”
Id. Similarly, after ruling that the defendant was “estopped from asserting his right
to Miranda’s protection” as it pertained to the second statement because he had
waived his right to be informed, this Court noted that, even if the defendant had not
been estopped from asserting his rights, he had not been subjected to custodial
interrogation. Id. at 514. This Court added that the detective’s question “[W]hat do
you mean?” did not rise to the level of interrogation because it was “merely an
instinctive reaction, provoked by [the] defendant’s initial statement that his wife
knew what was coming.” Id. We emphasized that interrogation “consists of both
direct questioning and of words or actions that the police should know are reasonably
likely to elicit an incriminating response.” Id. (internal quotation marks omitted).
We are of the opinion that an almost identical analysis can be applied to the
facts of the case at bar. First, the trial justice, in ruling on the motion to suppress,
correctly noted that Sheriff Banigan “was charged with the responsibility of
guarding [defendant] when he was in the hospital.” In other words, he was not
directly involved with the criminal investigation that was ongoing at that time, and
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his reason for being there was for non-interrogation purposes. Secondly, it was
defendant who initiated conversation with Sheriff Banigan when he, of his own
volition, asked Sheriff Banigan if he was “f*****.” This, just as we emphasized in
Grayhurst, 852 A.2d at 514, was a spontaneous question posed before Sheriff
Banigan asked defendant anything—and, as such, it was not the product of
interrogation.
Additionally, just as the detective in the Grayhurst case asked the defendant
“[W]hat do you mean?” after the defendant made an unprovoked statement, in the
instant case Sheriff Banigan simply reacted to defendant’s query and rather unclear
statement by asking him what he meant. Grayhurst, 852 A.2d at 513. And just as
we determined in Grayhurst, 852 A.2d at 514, that the response constituted an
instinctive reaction to the question posed, we hold that the same reasoning applies
here in that Sheriff Banigan’s question amounted to a natural response to a
spontaneous question asked by defendant. By the same token, defendant’s answer
to Sheriff Banigan’s question—“I’m f*****, they got three bodies on me”—was not
the product of custodial interrogation. It cannot be said that Sheriff Banigan’s
question as to what defendant meant was of a probing or inquisitorial nature or that
he should have known that there was a reasonable likelihood of it eliciting an
incriminating response. See Grayhurst, 852 A.2d at 514. Accordingly, we perceive
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no error in the trial justice’s denial of defendant’s motion to suppress his statements
to Sheriff Banigan.
C
The Limitation on the Cross-Examination of Lindsey Onorato
The defendant contends that the trial justice improperly excluded
impeachment evidence in the form of Ms. Onorato’s heroin use on August 17, 2014,
the day when the events in this case occurred. He further argues that the exclusion
of this evidence “impeded the [defendant’s] right to confront [the] witness and
denied the jury from facts that could have changed their belief of her credibility.”
Specifically, he states that he “could not assert his full right to confront the witness
in violation of his [Sixth] Amendment rights * * *.”
The state sets forth multiple arguments as to why defendant’s contention in
this regard is meritless. First, the state asserts that defendant did not preserve this
issue for appeal because no Confrontation Clause argument was raised at trial.
Second, the state avers that there is “no substantive merit to [defendant’s]
Confrontation Clause claim.” Lastly, the state contends that “any error in
precluding” defendant from questioning Ms. Onorato “about her heroin use would
be harmless.”
This Court has held that “[t]he ability of a defendant to meaningfully cross-
examine the state’s witnesses is an essential element of the due process guarantees
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of the United States and Rhode Island constitutions.” State v. Lomba, 37 A.3d 615,
621 (R.I. 2012) (internal quotation marks omitted). In order for “cross-examination
to satisfy constitutional guarantees, the trial justice is required to afford the accused
reasonable latitude to establish or reveal bias, prejudice, or ulterior motives as they
may relate to the case being tried.” State v. Bustamante, 756 A.2d 758, 765 (R.I.
2000) (internal quotation marks omitted). However, a defendant’s right to cross-
examination “is not unbounded,” State v. Drew, 919 A.2d 397, 411 (R.I. 2007), and
it may be “circumscribed within reasonable parameters of relevance in the sound
discretion of the trial justice,” State v. Warner, 626 A.2d 205, 209 (R.I. 1993). And
we have made it clear that, when a criminal defendant “claims on appeal that the
introduction of certain evidence violated his constitutional rights of confrontation
and cross-examination, we review such an evidentiary ruling in a de novo manner.”
State v. Moten, 64 A.3d 1232, 1238 (R.I. 2013).
We have previously held that, in instances where a defendant fails to
adequately raise his or her constitutional Confrontation Clause argument at trial, that
issue has not been preserved for appellate review. See Moten, 64 A.3d at 1238. In
arriving at this conclusion, we have emphasized that “a general objection is not
sufficient to preserve an issue for appellate review; rather, assignments of error must
be set forth with sufficient particularity to call the trial justice’s attention to the basis
of the objection.” Union Station Associates v. Rossi, 862 A.2d 185, 192 (R.I. 2004)
- 48 -
(emphasis added); see also Moten, 64 A.3d at 1238. We indicated in Moten that the
defense counsel’s objection without any explanation as to the basis for that objection
was insufficient to preserve the Confrontation Clause issue on appeal. Moten, 64
A.3d at 1239-40. Similarly, we determined that the defendant’s Confrontation
Clause argument in State v. Johnson, 251 A.3d 872 (R.I. 2021), had been waived
because the defendant “did not raise a Confrontation Clause argument but, instead,
merely argued that [the witness’s] statements to police were probative and therefore
admissible under the Rules of Evidence.” Johnson, 251 A.3d at 885.
In the case at bar, our review of the record reveals that no objection on
Confrontation Clause grounds was made to the trial justice’s limiting of defense
counsel’s cross-examination of Ms. Onorato. In the questioning of Ms. Onorato
about her heroin use, which took place outside the presence of the jury, the trial
justice asked defense counsel: “So what Rule of Evidence do you ask her about * * *
using heroin? Are you going to be saying, well, was she under the influence so her
impressions aren’t good?” Defense counsel answered in the affirmative. The trial
justice ultimately sustained the state’s objection to defense counsel’s line of
questioning as it pertained to Ms. Onorato’s heroin use, stating that the “exception
[was] noted” and that the offer of proof would be the voir dire. At no point was the
trial justice alerted to a Confrontation Clause claim. Accordingly, this issue has not
been properly preserved on appeal. See State v. Figuereo, 31 A.3d 1283, 1289 (R.I.
- 49 -
2011) (recognizing the “staunchly” adhered-to principle that this Court “will not
review issues that were not presented to the trial court in such a posture as to alert
the trial justice to the question being raised”) (internal quotation marks omitted).
D
The Testimony and Conduct of the Hernandez Brothers
The defendant’s next contention involves the testimony and conduct of Victor,
Viclei, and Carlos Hernandez as well as the trial justice’s eventual decision to hold
each of these brothers in contempt. The defendant argues that the “testimony and
conduct of the three brothers in front of the jury created a negative impression of the
[defendant] that he could not challenge since the court ruled the witnesses could not
be cross-examined. Allowing this unchallenged testimony to be submitted to the
jury was clear error and prejudicial.”
The state asserts that defendant has not established that the jury was present
when: (1) both Victor and Viclei testified; (2) the trial justice prevented defendant
from cross-examining them; and (3) Carlos was held in contempt. The state adds
that, on “previous occasions, the court permitted inquiry of witnesses outside the
presence of the jury to determine whether it would permit [defendant] to cross-
examine them on certain topics.” In addition, the state contends that “defense
counsel did not object to the procedures that the court used to inquire about whether
- 50 -
Viclei and Victor intended to testify, suggest that the jury was present, or move for
a mistrial.”
We need not reach the substance of defendant’s argument with respect to the
conduct and testimony of the Hernandez brothers because this argument has not been
properly preserved on appeal. According to the raise or waive rule, to which we
staunchly adhere, “issues not properly presented before the trial court may not be
raised for the first time on appeal.” Federal National Mortgage Association v.
Malinou, 101 A.3d 860, 865 (R.I. 2014); see also Figuereo, 31 A.3d at 1289 (“This
Court staunchly adheres to the ‘raise or waive’ rule, which requires parties to raise
an issue first in the trial court before raising it on appeal.”). At trial, defendant did
not take any action such as raising an objection to the trial justice’s handling of the
conduct and testimony provided by the Hernandez brothers or moving for a mistrial
based on the same. As such, defendant’s argument is deemed waived.
E
The Alleged Assistance Provided by the Trial Justice to the Prosecution
The defendant argues that the “trial justice impermissibly aided the
prosecution” when, after sustaining multiple objections by the defense to the
questions which the prosecutor was in the process of asking Neil Clapperton (the
criminalist from the Crime Laboratory), the trial justice excused the jury, asked the
prosecutor to review Rules 703 and 705 of the Rhode Island Rules of Evidence, and
- 51 -
“invited [the prosecutor] to sidebar off the record so she could approve the question
before she brought the jury back.” The state counters this argument by first noting
that defendant did not preserve this issue for appeal. Second, the state points out
that defendant’s discussion of this issue does not “contain any legal authority to
support his claim.” Finally, the state argues that, even if the trial justice erred and
even if the issue were preserved, the error would be harmless.
Our review of the record reveals that this issue has not been properly
preserved for appeal. Other than objecting to the prosecutor’s initial questioning of
Mr. Clapperton, defense counsel did not object when the trial justice told the
prosecutor to read the Rules of Evidence,16 and there was no objection when the trial
justice asked counsel to come to sidebar to further discuss the issue. As a result of
the fact that defense counsel did not lodge an objection to the trial justice’s actions
in this regard, this issue has not been properly preserved for appellate review. See
State v. Bettencourt, 723 A.2d 1101, 1107 (R.I. 1999) (“According 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
16
We pause to note that, when instructing the prosecutor to read the Rules of
Evidence, the trial justice stated: “[I]f you have any doubts, go talk to counsel, make
phone calls. I’m just not going to allow the jury to hear improper question form.”
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objection, may not be considered on appeal.”) (quoting State v. Toole, 640 A.2d 965,
972-73 (R.I. 1994)).
F
The Double Jeopardy Contentions
The defendant raises two issues pertaining to the constitutional right not to be
placed in double jeopardy. First, defendant avers that Count Two, which “charged
[defendant] with discharging a firearm while committing a crime of violence,
murder, death resulting” and Count Five, which “charged [defendant] with
discharging a firearm while committing a crime of violence, burglary, death
resulting,” should merge for double jeopardy purposes. Specifically, defendant
contends that the “conduct for which [defendant] was charged in both counts was
identical: firing the fatal shot into Richard Catalano.” However, as the state points
out in its brief, we need not reach the merits of this argument because defendant has
failed to properly preserve it for our appellate review.
This Court has made it clear that, “[p]ursuant to Rule 12(b)(2) of the Superior
Court Rules of Criminal Procedure, the defense of double jeopardy may be raised
only by motion before trial.” State v. Segrain, 252 A.3d 1255, 1269 (R.I. 2021)
(internal quotation marks omitted). Consequently, “failure to raise such a motion
before trial precludes that defendant from thereafter raising a double jeopardy
challenge.” State v. Day, 925 A.2d 962, 977 (R.I. 2007). It should be noted,
- 53 -
however, that that rule is not entirely inflexible, since we have stated that “[o]nly in
limited circumstances will this [C]ourt review a claim of double jeopardy despite its
improper assertion.” State v. Thomas, 654 A.2d 327, 330 (R.I. 1995). In those
limited circumstances, “the burden is on a defendant to show cause why relief should
be granted notwithstanding the untimely assertion of the defense.” State v. Lee, 502
A.2d 332, 334 (R.I. 1985); see Segrain, 252 A.3d at 1269.
In the case at bar, it is undisputed that defendant failed to file a pretrial motion
to dismiss Count Five on the grounds of double jeopardy pursuant to Rule 12(b)(2).
Indeed, upon a careful review of the entire record, it cannot be said that defendant
brought this particular double jeopardy argument to the trial justice’s attention at any
point. The defendant simply moved for a judgment of acquittal on Count Five, and
he summarily objected to the trial justice charging on both Count Two and Count
Five.17 Additionally, it is our opinion that the present case does not fall within one
of the “limited circumstances” that would allow this Court to review this particular
contention of double jeopardy because defendant has not successfully borne the
burden of “show[ing] cause why relief should be granted notwithstanding the
untimely assertion of the defense.” Lee, 502 A.2d at 334; see Segrain, 252 A.3d at
1269 (stating that the case did not “constitute one of the ‘limited circumstances’”
17
We would also note that, at sentencing, the trial justice declined to impose a
sentence on Count Five because she deemed it duplicative of Count Two.
- 54 -
and that there was therefore no need “to reach the merits of [the] defendant’s
belatedly raised double jeopardy contention”) (internal quotation marks omitted).
For these reasons, we will not assess the merits of defendant’s belated double
jeopardy contention as it relates to Count Two and Count Five.
As to defendant’s second contention based on the double jeopardy clause, he
argues that Count Six, which charged him with “assaulting [Lorie] Catalano with a
dangerous weapon, a firearm” resulting in a shoulder injury, and Count Seven, which
also charged him with assaulting Lorie Catalano with a dangerous weapon, resulting
in a facial injury, should have merged. The defendant attempts to distinguish the
facts of the present case from the facts of State v. Haney, 842 A.2d 1083 (R.I. 2004),
to establish his assertion that, in this case, “everything occurred in the same place
within a few minutes;” on that basis, he contends that Counts Six and Seven should
have merged. We note that defendant did timely raise this particular double jeopardy
argument in a motion to dismiss filed pursuant to Rule 12(b)(2); however, the trial
justice deferred her consideration of the issue and suggested that defendant move for
a judgment of acquittal on double jeopardy grounds, and she said that the issue would
be properly decided at that time.
The state points out that defendant, who did not comply with the trial justice’s
suggestion made when she initially addressed the Rule 12(b)(2) motion to dismiss,
never eventually moved for a judgment of acquittal on Count Six or Count Seven.
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Although it is true that defendant did not raise this argument when he moved
for a judgment of acquittal, we are nonetheless satisfied that the issue has been
sufficiently preserved for review on appeal. A review of the record discloses that
the trial justice did address the merger argument when she was instructing the jury.
When discussing Counts Six and Seven during the jury instructions, defendant
stated: “I believe Your Honor denied the motion.” The trial justice replied: “If I
didn’t, I certainly do. * * * You shoot somebody twice over a period of time, I think
it’s two ADWs * * *.” For these reasons, defendant has not forfeited his right to
raise the double jeopardy argument, and we shall next address the merits of
defendant’s contentions.
We have previously stated that “[o]ur analysis of an alleged error based on
double jeopardy principles is a mixed question of law and fact of constitutional
dimension; thus, our review is de novo.” State v. Oliver, 68 A.3d 549, 557 (R.I. 2013)
(internal quotation marks omitted); see State v. Stone, 924 A.2d 773, 778 (R.I. 2007).
However, we have further noted that, “within that review, we still accord a hearing
justice’s findings of historical fact, and inferences drawn from those facts, great
deference.” Oliver, 68 A.3d at 557 (internal quotation marks and deletion omitted);
see Rice v. State, 38 A.3d 9, 16 (R.I. 2012).
It has long been established that the Fifth Amendment to the United States
Constitution “protects criminal defendants from being ‘twice put in jeopardy’ for the
- 56 -
same offense.” State v. Bolarinho, 850 A.2d 907, 909 (R.I. 2004). This Court
employs the “same evidence test to determine whether a defendant has indeed been
twice put in jeopardy.” Oliver, 68 A.3d at 557 (internal quotation marks omitted);
see also State v. Scanlon, 982 A.2d 1268, 1277 (R.I. 2009). This Court has indicated
that the same evidence test “provides that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Oliver, 68 A.3d at 557 (internal
quotation marks omitted). We have further noted that “[a] double jeopardy situation
arises when, for example, the state charges a defendant with two crimes arising from
the same act or transaction and neither crime charged requires proof of an element
that the other does not.” Haney, 842 A.2d at 1084 (internal quotation marks omitted).
In determining whether two crimes arise from the same transaction, this Court looks
to “whether there was a break or stop in the behavior before it began in another
place.” State v. Narcovich, 244 A.3d 549, 559 (R.I. 2021).
In the instant case, the trial justice determined that Count Six and Count Seven
arose from separate acts because the two assaults took place at different times and
in different locations. We are unable to perceive any error in the trial justice’s
conclusion that Count Six and Count Seven did not arise from the same act or
transaction and, as such, there was no violation of the double jeopardy clause. The
- 57 -
first act of shooting Lorie Catalano occurred at a separate place (albeit within the
same house) from the location of the second shooting. And the two shootings
occurred at different points in time. Lorie Catalano was first shot in the shoulder in
her son’s bedroom. The second act of shooting Lorie Catalano took place in the
kitchen later—after she asked her son to see his wound and told him she was “going
to clear it.” It was Lorie Catalano’s testimony that she had gone to the kitchen,
where she joined her husband in struggling with defendant, who proceeded to shoot
her in the face.
This Court notably emphasized the trial justice’s finding in Haney: “The first
assault had long since been completed before the second assault occurred. There
were physical and temporal interruptions that broke any continuity.” Haney, 842
A.2d at 1085. The same principle applies to the facts of this case. There was no
continuity to the assaults due to the uncontradicted fact that they occurred in different
rooms and at separate times. Although the shootings may have occurred shortly after
each other and in the same house (albeit in different areas thereof), this does not lead
to the conclusion that the assaults were “one continuing offense.” Id. (“The fact that
the parties may have continued to argue with each other during the interim does not
mean that the assaults were one continuing offense.”). Accordingly, the trial justice
correctly determined that Count Six and Count Seven should not have merged
pursuant to double jeopardy principles.
- 58 -
G
The Closing Argument
The defendant’s next claim of error is that the prosecutor made two prejudicial
statements in her closing argument: (1) when she suggested “that there was only one
person left who could have pulled the trigger;” and (2) when she went on “for six
sentences about how grievously Lorie Catalano suffered.” Regarding the first
allegedly prejudicial statement, defendant contends that “the state had stipulated that
it had no evidence that the gunshot wound to [defendant] was self-inflicted.” With
respect to the second perceived error by the prosecutor, defendant argues that “[t]he
sole purpose of this litany was designed to inflame the passions of the jury.”
Additionally, defendant contends that the curative instruction given by the trial
justice “did not suffice to erase the harm done by the prosecutor * * *.”
The state counters defendant’s contentions by arguing that the first statement
“was a response to defense counsel’s closing argument and addressed the issue of
who might have shot [defendant] * * *; the second was a summary of the injuries
that Lorie sustained that night * * *.” Additionally, the state asserts that defendant
failed to preserve these issues for appeal because, while defense counsel did object
to the statements at issue, he neither moved to pass the case nor did he request a
cautionary instruction.
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We have previously stated that “[i]t is well settled in our jurisprudence that,
in order to preserve for appellate review the issue of prejudicial impropriety in a
closing argument, a defendant must not only make an objection at the time when the
allegedly improper comment is made, but he or she must also make a request for a
cautionary instruction or move for a mistrial.” State v. Robat, 49 A.3d 58, 83 (R.I.
2012) (internal quotation marks omitted); see also State v. Fortes, 922 A.2d 143,
149 (R.I. 2007). Although in the present case defense counsel did timely object to
each of the statements with which he takes issue on appeal, he chose neither to move
to pass the case nor to request a cautionary instruction. Accordingly, we deem this
issue not to have been properly preserved for appeal. See Robat, 49 A.3d at 83
(stating that the issue of prejudicial impropriety in a closing argument is not
preserved for appeal if there is a failure to properly follow the established
procedure).
H
The “De Facto Life Without Parole Sentence”
The defendant’s final argument is that the trial justice’s imposition of “two
consecutive life sentences, five twenty-year sentences each [to be] served
consecutively, twenty-five years consecutive to serve without the opportunity to
receive parole as a habitual offender, and numerous concurrent sentences * * *
effectively sentenced [defendant] to life without parole.” For its part, the state argues
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that defendant “does not allege any error on the part of the Superior Court with
respect to the sentence that it imposed or suggest that the sentence is either illegal or
unconstitutional.” Moreover, it is the state’s position that defendant’s challenge to
his sentence is not ripe for review.
This Court has established that “a challenge to a criminal sentence must begin
with the filing of a motion in the Superior Court pursuant to the provisions of Rule
35 of the Superior Court Rules of Criminal Procedure.” Day, 925 A.2d at 985.
Absent extraordinary circumstances, “we will not consider the validity or legality of
a sentence on direct appeal * * *.” Id. (internal quotation marks omitted).
In view of the fact that this is not an appeal from a ruling on a Rule 35 motion
and in view of the further fact that we are aware of no extraordinary circumstances
that would motivate us to deviate from our usual policy of not considering in this
direct appeal the validity or legality of the sentence that was imposed,18 we are not
inclined to consider the defendant’s argument that he received a “de facto life
without parole sentence.” See Day, 925 A.2d at 985.
18
General Laws 1956 § 12-19.2-5 provides that a “defendant shall have the right
to appeal a sentence of life imprisonment without parole to the supreme court of the
state in accordance with the applicable rules of court.” Notably, however, the
defendant in this case did not receive a sentence of life imprisonment without parole.
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IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The record may be returned to that tribunal.
Justice Long, concurring. I agree with the majority’s disposition of Mr.
Garcia’s appeal. However, I write separately to share my reservations related to Mr.
Garcia’s objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). In my view,
although the trial justice’s decision upholding the peremptory strike of Juror 98 does
not run afoul of the Batson doctrine, the circumstances surrounding the objection
and decision nevertheless raise legitimate concerns that deserve attention and require
intervention.
Equal justice under law mandates that individuals receive a criminal trial
devoid of racial discrimination during the jury selection process. Porter v.
Coyne-Fague, 35 F.4th 68, 75 (1st Cir. 2022). To carry out this mandate, the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution
prevents the dismissal of even a single prospective juror for a discriminatory
purpose. Id. The relevant test conducted to evaluate an alleged violation, as
articulated in Batson, involves three steps. First, a defendant must demonstrate a
prima facie showing that the prosecution has used a peremptory strike on the basis
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of race; second, if a defendant has succeeded in making that showing, the state must
then offer a race-neutral basis for striking the prospective juror; and third, the trial
justice must determine whether a defendant has successfully demonstrated that the
prosecution engaged in purposeful discrimination. Id. at 76. The Supreme Court
recently “enforce[d] and reinforce[d]” Batson’s three-part test in a case involving a
Black defendant who was tried six times for the 1996 murder of four people at a
furniture store in Winona, Mississippi. Flowers v. Mississippi, 588 U.S. 284, 287,
288 (2019). The Supreme Court described the history of peremptory strikes and the
tension with the Equal Protection Clause prior to Batson; examined “the whole
picture” surrounding the strike of one of the Black prospective jurors in the
defendant’s sixth trial; and ultimately reversed the judgment of conviction, holding
that the trial court clearly erred in determining that the strike was not motivated in
substantial part by discriminatory intent. Id. at 293-98, 313-14.1
1
Following remand of the case to the Mississippi trial court for further proceedings,
the Attorney General of Mississippi conducted an independent review of the matter.
On September 4, 2020, the Attorney General filed a motion to dismiss the indictment
and stated the following:
“As the evidence stands today, there is no key prosecution
witness that incriminates Mr. Flowers who is alive and
available and has not had multiple, conflicting statements
in the record. Additionally, this Court took judicial notice
that another witness who testified against Mr. Flowers in
the past, was later convicted of multiple counts of federal
income tax fraud; she is now deceased. Several other
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Batson arose out of an extensive and tortured history of individuals using the
jury selection process to prevent Black members of American society from
participating in jury service. See Strauder v. West Virginia, 100 U.S. 303, 312 (1879)
(invalidating a statute that prevented all nonwhite individuals from serving on
juries); Carter v. Texas, 177 U.S. 442, 448 (1900) (invalidating a systemic practice
that prohibited Black jurors from serving on cases involving Black criminal
defendants); Hale v. Kentucky, 303 U.S. 613, 616 (1938) (vacating a conviction after
the defendant successfully demonstrated that Kentucky jury commissioners
systematically excluded Black jurors); Pierre v. Louisiana, 306 U.S. 354, 362 (1939)
(same); Neal v. Delaware, 103 U.S. 370, 397 (1881) (same); Norris v. Alabama, 294
U.S. 587, 599 (1935) (same). Although Batson is the controlling legal authority
intended to prevent this pernicious practice, contemporary efforts to curtail Black
material witnesses are also dead and unavailable to testify
about the events that occurred twenty-four years ago. As
the Court noted at the bail review hearing, the only witness
who offered direct evidence of guilt recanted his prior
testimony, admitting that the was lying when he said Mr.
Flowers made a jailhouse confession to the murders.
Moreover, the Court was made aware of alternative
suspects with violent criminal histories, as well as possible
exculpatory evidence not previously considered.
“Given the facts and circumstances of this case, and based
on the totality of circumstances, it is in the interest of
justice that the State will not seek an unprecedented
seventh trial of Mr. Flowers.”
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jury service persist. See generally Flowers, 588 U.S. 284; Porter, 35 F.4th 68; State
v. Clegg, 867 S.E.2d 885 (N.C. 2022).
In a concurring opinion issued when Batson was decided in 1986, Justice
Marshall identified numerous concerns with this newly created doctrine along with
the inherently problematic nature of peremptory strikes. See Batson, 476 U.S. at 102-
05 (Marshall, J., concurring). Specifically, Justice Marshall highlighted the severe
limitations placed on a trial judge’s ability to uphold Batson’s mandate. Id. at 106.
(“Any prosecutor can easily assert facially neutral reasons for striking a juror, and
trial courts are illequipped to second-guess those reasons. * * * If such easily
generated explanations are sufficient to discharge the prosecutor’s obligation to
justify his strikes on nonracial grounds, then the protection erected by the Court
today may be illusory.”). Importantly, Justice Marshall recognized the challenges
associated with preventing what we now understand to be implicit bias from entering
the jury selection process. Id. (“A prosecutor’s own conscious or unconscious racism
may lead him easily to the conclusion that a prospective black juror is ‘sullen’ or
‘distant,’ a characterization that would not have come to his mind if a white juror
had acted identically. A judge’s own conscious or unconscious racism may lead him
to accept such an explanation as well supported.”). As a result of these concerns,
Justice Marshall ultimately concluded that eliminating peremptory strikes altogether
constituted the only way to end jury discrimination. Id. at 107-08.
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Nearly twenty years later, Justice Breyer voiced his own apprehension
regarding the inherent shortcomings of the Batson doctrine and the continued use of
peremptory challenges in a problematic manner. See Miller-El v. Dretke, 545 U.S.
231, 273 (2005) (Breyer, J., concurring); see also Rice v. Collins, 546 U.S. 333, 344
(2006) (Breyer, J., concurring). Justice Breyer opined that the ongoing use of
peremptory challenges had the potential to weaken the jury’s function in our
democratic system. See Miller-El, 545 U.S. at 272 (“If used to express stereotypical
judgments about race, gender, religion, or national origin, peremptory challenges
betray the jury’s democratic origins and undermine its representative function.”).
He noted that the Constitution does not mandate the use of peremptory challenges
in our legal system before declaring that the Supreme Court should reconsider the
practice of peremptory challenges. Id. at 273 (“And, of course, the right to a jury
free of discriminatory taint is constitutionally protected—the right to use peremptory
challenges is not.”). Furthermore, he echoed Justice Marshall in recognizing the
difficult challenge for trial courts when evaluating the Batson framework. See Rice,
546 U.S. at 343.
The case before this Court illustrates the prescience of Justice Marshall and
the astute perceptiveness of Justice Breyer. In evaluating Mr. Garcia’s claim of error
under Batson, our narrow task is to consider whether all of the relevant facts and
circumstances, taken together, establish that the trial justice clearly erred in
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determining that the state’s peremptory strike of Juror 98 was not motivated in
substantial part by a discriminatory intent. After applying the Batson framework to
this matter, I am compelled to reach the same result as the majority: The trial justice
did not clearly err when she concluded that Mr. Garcia failed to demonstrate that the
state engaged in purposeful discrimination when it struck Juror 98. Nevertheless,
after examining “the whole picture” surrounding the strike of Juror 98, it, in my
view, depicts an awkward, uncomfortable scene that calls into question whether
implicit biases may have been at play; and further presents issues that are difficult
for this Court to evaluate pursuant to our present standard.
Upon being called to occupy seat nine in the jury box, Juror 98 stopped at
sidebar to share that her son was incarcerated in Massachusetts. After confirming
that Juror 98 could be fair, the trial justice asked questions that she had posed to
other jurors, including whether Juror 98 could listen with an open mind to witnesses
with a criminal conviction; whether the defendant’s ethnicity bothered her; and
whether she watches the television show “CSI.” The trial justice then asked, “If the
State proves each and every element of the crime charged by proof beyond a
reasonable doubt, would you find the Defendant guilty?” The following exchange
occurred in response:
“[JUROR 98]: Um, if they prove --
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“THE COURT: If they prove the case beyond a
reasonable doubt, could you come back and say ‘guilty’?
“[JUROR 98]: You have to like consider that. You have
to be like -- I don’t know.
“THE COURT: You have to consider all the evidence put
before you.
“[JUROR 98]: All the evidence.
“THE COURT: And the law that I give to you.
“[JUROR 98]: You have to be really careful with that.
“THE COURT: But would you, beyond a reasonable
doubt? I gave the definition, and I’ll give it again. But they
don’t have to prove the case beyond all doubt or beyond a
shadow of a doubt. The Defendant is entitled to the benefit
of a doubt based on reason, but he’s not entitled to the
benefit of any and all doubts.
Now, would you hold the State to a higher standard
than that because of the nature of the charges, or would
you accept that instruction?
“[JUROR 98]: That’s hard to say.
“THE COURT: It’s hard to say?
“[JUROR 98]: Yeah.
“THE COURT: You’re not sure you would be able to
come back guilty even if they proved it beyond a
reasonable doubt? I see you’re hesitating, and I appreciate
the fact that you’re pondering it. It’s really, really
important.
“[JUROR 98]: It’s hard.
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“THE COURT: It’s okay. It’s really important. This is
the most important question I think I’ve asked you. If the
State proves their case beyond a reasonable doubt, can you
come back and stand up and say ‘guilty’? Be honest.
There’s no right or wrong answer. Only a truthful answer.
“[JUROR 98]: I never been in this situation before.
“THE COURT: I know. Well, is there anything about you
that would prevent you from sitting in judgment against
somebody in a case like this?
“[JUROR 98]: I never been in a situation like this. I don’t
even know what to say.
“THE COURT: No, no. Are you a person who just can’t
sit in judgment?
“[JUROR 98]: I probably can’t.
“THE COURT: I’m not suggesting it to you. I’m trying to
get --
“[JUROR 98]: I understand what you’re saying.
“THE COURT: You would have to make a decision --
“[JUROR 98]: That decision, I don’t think I can.
“THE COURT: You don’t think you can do it?
“[JUROR 98]: No.
“THE COURT: Anything further? [Defense Counsel],
would you like to inquire further?
“[DEFENSE COUNSEL]: It’s tough being questioned.
The purpose of the trial is for the jurors to decide, after
hearing all the evidence, whether the Defendant is guilty
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or not. If you hear all the evidence, and if you think he’s
guilty, is there anything that keeps you -- will you be
willing to join the others and say he’s guilty?
“[JUROR 98]: If I think he’s guilty, yeah.
“[DEFENSE COUNSEL]: All right. If the Judge tells you
what the law is, the State has to prove its case beyond a
reasonable doubt. And if you feel the State does prove this
case beyond a reasonable doubt, will you be able to follow
the Judge’s instructions and find him guilty?
“[JUROR 98]: Yes, I would. I would be able to follow
the instructions.”
When the state had an opportunity to ask questions of Juror 98, the prosecutor
returned to the concept of proof beyond a reasonable doubt and drew an objection
from defense counsel for telling Juror 98, “[Y]ou seemed hesitant.” The trial justice
interjected:
“THE COURT: I will say that when I asked the juror
about beyond a reasonable doubt, and I gave kind of a
shorthand version, I did say that the State has to prove each
and every element of the charges by what we refer to as
beyond a reasonable doubt. A Defendant is entitled to a
doubt based on reason, and if you find a doubt based on
reason, then they didn’t prove it. However, he’s not
entitled to a benefit of any and all doubt. They don’t have
to prove it beyond a shadow of a doubt or --
“[JUROR 98]: Well, I --
“THE COURT: Mere suspicion is not sufficient. In other
words, they have to prove it beyond a reasonable doubt.
You can’t find them guilty if you suspect he did it. Okay?
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“[JUROR 98]: Mmm-hmm.
“THE COURT: If the State proves beyond a reasonable
doubt that the Defendant is guilty of the crimes charged,
could you in your heart of hearts stand up and say ‘guilty’?
“[JUROR 98]: I could, if they found him guilty.
“THE COURT: If the State fails to prove him guilty
beyond a reasonable doubt, could you stand up and say
‘not guilty’ even though it’s a very -- you heard about all
the --
“[JUROR 98]: Even though if I --
“THE COURT: No. If you think he’s guilty and they
proved it, you said you could find him guilty. But what if
you feel they didn’t prove it? Maybe you suspect he’s
guilty, but they didn’t prove it beyond a reasonable doubt.
Could you say ‘not guilty’?
“[JUROR 98]: If they didn’t prove it, that’s hard.
“THE COURT: That’s hard for you?
“[JUROR 98]: Yeah.
“THE COURT: Why is that?
“[JUROR 98]: I don’t know.
“THE COURT: Tell me.
“[JUROR 98]: I couldn’t work in the court system.
“THE COURT: Okay. If the State doesn’t prove each and
every element of the crime charged beyond a reasonable
doubt, even if you suspect the Defendant did it but they
didn’t prove it, even if it’s a strong suspicion, but they
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didn’t prove it beyond a reasonable doubt, in spite of the
nature of these charges, could you come back and say ‘not
guilty’? Can you do that?
“[JUROR 98]: If they didn’t prove it?
“THE COURT: Yes.
[PAUSE]
“THE COURT: You’re hesitating.
“[JUROR 98]: If I feel they didn’t prove it, and I feel he’s
not guilty, or if I feel he’s guilty --
“THE COURT: You might feel he’s guilty, but the
question is if they didn’t prove it. You might feel he’s
guilty, but you feel they didn’t prove it beyond a
reasonable doubt. Can you come back and even if you
kind of feel he’s guilty, but they didn’t prove it beyond a
reasonable doubt, can you come back and say ‘not guilty’?
Take your time.
“[JUROR 98]: I can’t say that he’s guilty if they didn’t
prove it.
“THE COURT: Thank you. Okay. Just relax. You may
inquire further.”
At that prompt, the prosecutor asked Juror 98 a broad, open-ended question
that she did not ask of any of the other forty-five members of the venire: “Is there
anything about your background that would give you reservation about sitting on
this jury?” (Emphasis added.)
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The transcript reveals that Juror 98 was unclear about what the prosecutor was
asking. The exchange proceeded as follows:
“[JUROR 98]: Like what? What do you want to know? I
don’t have no, how do you say it, no criminal background
myself.
“[THE STATE]: Maybe something to do with your son’s
experience. Do you think that would hinder your ability
to be fair and impartial in this case?
“[JUROR 98]: No, not what’s going on with my family,
no. That’s totally different.”
Defense counsel referred to this open-ended questioning when he objected to
the state’s attempt to strike Juror 98, arguing that it was “a little more probing than
some of the other jurors.” He seemed to anticipate that the state would refer to the
communication difficulties that Juror 98 exhibited during the voir dire as a race-
neutral reason to strike her; he asserted that those deficiencies would amount to
pretextual reasons for striking her.2
Rather than simply asking the state to provide race-neutral reasons for the
peremptory strike; proceeding to evaluate defense counsel’s arguments; and
weighing the credibility of the prosecutor, including by assessing the prosecutor’s
demeanor, see Snyder v. Louisiana, 552 U.S. 472, 477 (2008); the trial justice instead
2
Defense counsel also seemed to recognize the awkwardness of arguing that the
prosecutors were engaging in purposeful discrimination; he concluded his step one
argument by saying, “[n]ot to insult anybody.”
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repeatedly characterized the objection as “insulting” before asking the state to
articulate the race-neutral reasons for striking Juror 98. In my view, this exchange
illustrates what Justice Marshall and Justice Breyer recognized as the difficult
challenge facing trial judges:
“[T]he trial judge’s uncertainty about the legal validity of
the exercise of peremptory challenges * * * may reflect the
more general fact that, sometimes, no one, not even the
lawyer herself, can be certain whether a decision to
exercise a peremptory challenge rests upon an
impermissible racial, religious, gender-based, or ethnic
stereotype. * * * How can trial judges second-guess an
instinctive judgment the underlying basis for which may
be a form of stereotyping invisible even to the
prosecutor?” Rice, 546 U.S. at 343.
The uncomfortable reality is that trial judges may succeed in applying the
Batson framework but fail to “prevent racial discrimination from seeping into the
jury selection process.” Flowers, 588 U.S. at 302.
The Supreme Court’s holding in Batson established the federal constitutional
floor in cases involving jury discrimination; state courts—including this Court—
remain free to expand protections regarding jury selection under their respective
constitutions.3 See, e.g., State v. Andujar, 254 A.3d 606, 626 (N.J. 2021) (imposing
additional requirements before the state may conduct background checks on
3
Although this Court possesses the authority to consider Mr. Garcia’s jury-
discrimination objection pursuant to the Rhode Island Constitution, the parties did
not raise this issue in this matter.
- 74 -
prospective jurors); State v. Fleming, 239 A.3d 648, 654 (Me. 2020) (requiring trial
courts “to thoroughly probe the issue of racial bias”). State courts also remain free
to prevent discriminatory practices and the taint of racial bias through other means.
Three years after the Supreme Court decided Batson, the highest court of
Connecticut exercised its “inherent supervisory authority over the administration of
justice” and eliminated step one of the Batson test for criminal cases brought in the
state courts. State v. Holloway, 553 A.2d 166, 171-72 (Conn. 1989). The
Connecticut Constitution protects the right of litigants to strike jurors peremptorily,
but recently, the high court has summoned a task force to investigate and propose
broad changes to the state’s jury-selection process. See State v. Jose A.B., 270 A.3d
656, 672-73, 677 (Conn. 2022).
Similarly, the highest courts in other jurisdictions have undertaken to use
their rulemaking authority to identify and resolve their perceived shortcomings in
the Batson doctrine. See Thomas Ward Frampton & Brandon Charles Osowski, The
End of Batson? Rulemaking, Race, and Criminal Procedure Reform, 124 Colum. L.
Rev. 1, 22-35 (2024). Notably, the Arizona Supreme Court has eliminated the use
of peremptory strikes altogether. Id. at 35-49.
We must remain vigilant of the ways that we can continue to curtail jury
discrimination whenever possible. See Clegg, 867 S.E.2d at 917 (Earls, J.,
concurring) (“If we are to give more than lip service to the principle of equal justice
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under the law, we should not bury our heads in the sand and pretend that thirty-five
years of experience with Batson will magically change. There are a variety of tools
at our disposal, we urgently need to use them.”). It is my opinion that this vigilance
must also take place in our contemporary analysis of past caselaw. As an example,
the majority approvingly cites State v. Austin, 642 A.2d 673 (R.I. 1994), for the
proposition that striking a juror based on the fact that they have an incarcerated
family member constitutes a “race-neutral” rationale pursuant to Batson. See Austin,
642 A.2d at 678. Given the reality of mass incarceration in the United States and
the overwhelming, if not universal, consensus that this movement has
disproportionally affected people of color, this “race-neutral” justification manifests
itself as thinly veiled pretextualism. See generally Michelle Alexander, The New Jim
Crow: Mass Incarceration in the Age of Colorblindness (2010); Dorothy E. Roberts,
The Social and Moral Cost of Mass Incarceration in African American
Communities, 56 Stan. L. Rev. 1271, 1272-73 (2004) (“African Americans
experience a uniquely astronomical rate of imprisonment, and the social effects of
imprisonment are concentrated in their communities.”).
Additionally, I join the growing number of jurists calling for the revision of
jury-selection procedures in state courts. See, e.g., State v. Wellknown, 510 P.3d 84,
100 (Mont. 2022) (Baker, J., concurring); State v. Vandyke, 507 P.3d 339, 346 (Or.
Ct. App. 2022) (Aoyagi, J., concurring); State v. Aziakanou, 498 P.3d 391, 407 n.12
- 76 -
(Utah 2021); State v. Veal, 930 N.W.2d 319, 340, 359 (Iowa 2019) (Cady, C.J.,
concurring) (Wiggins, J., concurring) (Appel, J., concurring in part and dissenting
in part). In my view, this Court should exercise its general supervisory authority to
correct errors and abuses in the jury-selection process by promulgating a rule that
eliminates the use of peremptory strikes in jury trials and directs trial justices to
apply heightened scrutiny to the exercise of for-cause strikes. General Laws 1956
§ 8-1-2; see People v. Suarez, 471 P.3d 509, 567 (Cal. 2020) (Liu, J., concurring)
(“Thus, although much attention has appropriately been paid to the inefficacy of
Batson v. Kentucky * * * in combating racial discrimination in peremptory strikes,
there is significant evidence that removal of jurors for cause is an equally if not more
significant contributor to the exclusion of Black jurors, which may result in juries
with higher levels of implicit bias.”).
The rulemaking process is a holistic way for this Court to seek input from a
variety of stakeholders within Rhode Island’s legal community and to arrive at a
solution that will allow Rhode Island’s judges to continue to uphold our oath to
“administer justice without respect to persons * * * .” General Laws 1956 § 8-3-1.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Dari Garcia.
No. 2019-205-C.A.
Case Number
(P1/15-394AG)
Date Opinion Filed July 2, 2024
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Netti C. Vogel
For State:
Christopher R. Bush
Attorney(s) on Appeal Department of Attorney General
For Defendant:
George J. West, Esq.
SU-CMS-02A (revised November 2022)
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