State v. Charles Pona

Supreme Court
No. 2004-234-C.A.
(P1/02-2571AG)
State 	:
v. 	:
Charles Pona. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Flaherty, for the Court. 	Jennifer Rivera, an eighth-grade student at Roger
Williams Middle School, who stood five feet, one-inch tall and weighed all of seventy-two
pounds, was murdered by Dennard Walker, who fired three gunshots into the back of her head
while she was standing on the sidewalk outside her home in Providence on May 21, 2000. What
distinguishes this homicide from the other mindless violence to which we sadly have become
accustomed is that Jennifer had testified at a bail hearing at which she had identified a suspect in
the murder of Hector Feliciano, and she was scheduled to testify at the imminent murder trial.
The defendant in that case was Charles “Manny” Pona, also the defendant in this case. Jennifer’s
murderer, Dennard Walker, is Pona’s half brother. 	There is no question that Walker, who pled
guilty to killing Jennifer, murdered this young girl to prevent her from testifying against Pona.
Although Walker admitted to being the triggerman in this unspeakable act, which shakes
the very foundation of our system of justice, Pona also was indicted for Jennifer’s murder on the
theory that he had conspired with Walker and Miguel Perez to have her killed. 	Specifically,
Pona was charged with murder, conspiracy to murder, carrying a firearm without a license,
committing a crime of violence while carrying a firearm, and obstruction of justice. 	A jury
1

convicted Pona on all counts, and he was sentenced to life imprisonment for murder to be served
consecutively with the sentence he now is serving for killing seventeen-year-old Hector
Feliciano.1 Pona also was sentenced to serve two terms of ten years for committing a crime of
violence while armed with a firearm and carrying a handgun without a license, both running
consecutively to the life sentence, another ten years for conspiracy, to be served concurrently,
and five years for obstruction of justice, also to be served concurrently.
On appeal, defendant argues that an amalgam of errors was made during his trial for
Jennifer’s murder, and that the culmination of these errors deprived him of the right to a fair trial
by an impartial jury. 	These claimed errors include: (1) that the trial justice did not conduct a
separate in camera hearing to question two jurors who admitted to seeing television news
coverage on Pona, (2) that the trial justice should have passed the case because of pretrial
publicity, (3) that defendant’s constitutional right to a jury of his peers was violated because all
members of the jury were white, (4) that certain evidence relative to the Feliciano murder,
including a police photopack, pager, and fingerprint evidence, should not have been admitted
into evidence during his trial for the murder of Jennifer, (5) that the admission of the entire tape
recording of Jennifer’s bail testimony was not only unfairly prejudicial and inadmissible hearsay,
but also violated defendant’s Sixth Amendment right to confrontation, (6) that a mistrial was
warranted because of the unanticipated statement of a witness that defendant was a frequent
purchaser of crack cocaine, (7) that a new trial should have been granted because the verdict was
against the great weight of the evidence, and (8) that the sentence was excessively harsh and
constituted cruel and unusual punishment.
After reviewing the record in this case, we agree that the trial justice erred in admitting
1 We affirmed Pona’s conviction for the murder of Hector Feliciano in State v. Pona, 926 A.2d
592, 596 (R.I. 2007).
2

“other crimes” evidence that related solely to Pona’s conviction for Feliciano’s murder, namely
that Pona’s pager that was found at the scene of Feliciano’s murder and his fingerprints that were
left in the car that was used to flee the area where that homicide occurred. 	We also are of the
opinion that the trial justice committed reversible error when he admitted the entire audio-tape
recording of Jennifer’s bail-hearing testimony, permitting the jury to hear the young victim’s
“voice from the grave” (as described by the prosecutor in closing) for hours on end, especially
when some of the substance of the bail-testimony tape focused entirely on demonstrating to the
jury that Pona already was a dangerous murderer. Finally, although we reverse on other grounds,
we are convinced that the unanticipated testimony concerning Pona’s prior cocaine use,
combined with an ineffective curative instruction, was error.
Although the shocking nature of this crime causes a tremor to the very core of our
society, it is no less important that those accused of such heinous acts receive a fair trial. For the
reasons set forth in this opinion, we vacate the judgments of conviction and we remand to the
Superior Court for a new trial.
I
Facts and Procedural History2
On August 28, 1999, Jennifer Rivera was cooking in her kitchen when she heard a series
of gunshots.3 She looked through her kitchen window and watched as a young black male, with
2 The complete facts with respect to the murder of Hector Feliciano are set forth in Pona, 926
A.2d at 596-99 and Rivera v. Rhode Island, 402 F.3d 27, 30-31 (1st Cir. 2005). 	We will refer
only to the facts significant to the issues presented here.
3 There is a sad commentary on the state of our society reflected in the colloquoy between
Jennifer and defense counsel at Pona’s bail hearing:
“Q. How do you know what a gunshot sounds like?
“A. It is loud. It sounds like a gun.
“Q. Well a car backfiring’s loud too, doesn’t it? 	What is your familiarity with
gunshots prior to August 28th, 1999?
3

a “fade”4 style haircut, jumped a fence, got into a grey jeep, and drove away. About ten minutes
later, Jennifer left her apartment to investigate what had happened. In the parking lot across the
street, she found Hector Feliciano lying on the ground, mortally wounded. 	After rescue
personnel and the police arrived on the scene, Jennifer spoke with the police, telling them what
she had seen. She later picked out defendant from a photopack at the police station. After Pona
was charged with the murder of Feliciano, Jennifer identified him in court at a bail hearing. She
was the only witness who was able and willing to identify his face.
The very night before Pona’s trial for the Feliciano murder was to begin, his half brother,
Walker, fired three shots at Jennifer’s head at point-blank range. The bullets were fired in rapid
succession; two rounds entered the back of her skull, one round exited her face, and the other
exited her neck. 	Walker not only pled guilty to murder but, significantly, to conspiring with
Pona and Miguel Perez to kill Jennifer.5
After an intensive investigation, defendant was charged with conspiracy to commit
murder, murder, carrying a pistol without a license, committing a crime of violence while
carrying a firearm, and obstruction of justice.
At a pretrial hearing, defendant argued that any reference to his conviction for killing
Feliciano unfairly would prejudice him in the eyes of the jury. 	The trial justice agreed and
granted a motion to “exclude and preclude the State from mentioning that the defendant has been
“A. Come on. That is not the first time I hear a gun.”
4 “‘Fade or Temple Fade – a short tapered cut. 	The hair at the back and sides is tapered from
zero length lower down up to around half an inch. 	The hair may be short or longer over the
crown of the head. On top, the hair is longer (up to 2 to 3 inches) and may be layered.’” State v.
Hall, 940 A.2d 645, 649 n.6 (R.I. 2008).
5 During Pona’s trial for Jennifer’s murder, Walker testified that he killed Jennifer because of his
love for his brother and because he wanted to prevent his brother from receiving a life sentence
in prison for murdering Feliciano.
4

convicted of murder.” 	The defendant also offered to stipulate “to the fact that Mr. Pona was
charged with a felony, and the principal witness and the only witness was Jennifer Rivera.”
The state agreed that a reference to Pona’s conviction for Feliciano’s murder would be
unfairly prejudicial, but it successfully urged the trial justice to admit certain evidence that
pertained to the Feliciano murder, including a photopack from which Jennifer identified Pona as
the man she saw running after she heard gunshots, and the entire audio-tape recording of her bail
testimony hearing for that murder (plus a full transcript of that hearing). The state argued that all
the evidence regarding the events leading up to Pona’s trial for killing Feliciano should be
admitted because those events were “inextricably intertwined” with the murderous assault
against Jennifer. Furthermore, the state argued that the evidence fell under an exception to Rule
404(b) of the Rhode Island Rules of Evidence6 because this evidence was being introduced to
show defendant’s motive to have Jennifer murdered. The state contended that admission of the
evidence against Pona in the first trial for the murder of Feliciano was necessary because two
state witnesses, Dennis Fullen and Miguel Perez, would testify that defendant had conversations
with them about the evidence in his case in the context of killing Jennifer.
The defendant urged that the evidence was irrelevant and that it also unfairly prejudiced
defendant because it was an attempted run-around the trial justice’s earlier ruling that Pona’s
conviction would be excluded. The defendant argued that excluding the fact of conviction while
6 Rule 404(b) of the Rhode Island Rules of Evidence provides:
“Other Crimes, Wrongs, or Acts. 	Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show that the
person acted in conformity therewith. 	It may, however, be admissible for other
purposes, 	such 	as 	proof 	of 	motive, 	opportunity, 	intent, 	preparation, 	plan,
knowledge, identity, absence of mistake or accident, or to prove that defendant
feared imminent bodily harm and that the fear was reasonable.”
5

continuing to interject the facts connecting Pona to the Feliciano murder into this trial unfairly
prejudiced him.
The Superior Court accepted the state’s position and, citing Commonwealth v. Paddy,
800 A.2d 294, 307-08 (Pa. 2002), the trial justice ruled that the evidence surrounding the
Feliciano murder was not admissible to prove his bad character, but was admissible as an
exception to Rule 404(b) to explore the intensity of his motive to have Jennifer killed.7
At Pona’s trial for Jennifer’s murder, the state offered the testimony of numerous
witnesses. 	The state presented the testimony of (1) Det. James Marsland, who had spoken to
Jennifer at the scene of the Feliciano homicide; (2) Kong Meng Lee, a witness who testified to
hearing gunshots and seeing someone run from the scene of Jennifer’s murder; (3) Officer
Stephen Gencarella and (4) Officer Joseph Donnelly, who both had arrived at the scene after
Jennifer was shot; (5) Officer Vincent Mansolillo and (6) Officer Stephen Mokler, who had
spoken with both Perez and Fullen about Pona’s participation in Jennifer’s murder; (7) Elizabeth
Laposata, the medical examiner who conducted Jennifer’s autopsy; (8) Dennis Fullen, who was
housed at the Adult Correctional Institutions (ACI) with defendant; (9) Dennard Walker, who
confessed to committing Jennifer’s murder; and (10) Miguel Perez, who confessed to driving the
7 In Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002), the defendant was on trial for the
murder of Lashawn Whaley, who was scheduled to be a witness against the defendant in the
murder trial of two people. Id. at 300. During the trial, evidence was presented that included a
redacted statement of Whaley that established she had witnessed the event, she had been
interviewed by police, and she had identified Paddy as the shooter, and the testimony of Freddy
Murphy that the defendant’s friends had taken Whaley on a trip to Maryland and threatened to
kill her if she testified. 	Id. at 300-02. 	On appeal, the defendant argued that he received
ineffective assistance of counsel because of the breadth of “other crimes” evidence that was
admitted into evidence during his trial. Id. at 307. The Pennsylvania Supreme Court upheld the
conviction and stated that the prosecution was entitled “to demonstrate the strength of the
proffered motive” and “the intensity with which [the defendant] pursued his goal of silencing
Lashawn.” Id. at 308.
6

vehicle that Walker and Pona escaped in after the shooting. 	The following facts are harvested
from the various witnesses’ testimonies.
Fullen testified that he was a close family friend of Pona’s late father, Charles Porter, and
he said he knew Pona’s family intimately for a number of years. 	Fullen said that during his
incarceration at the ACI, he and Pona shared a cell for more than two months while Pona awaited
release on bail after he was indicted for Feliciano’s murder. Fullen said that Pona discussed with
him the evidence that the state had against him in that case and that Pona said he would have to
“dump” Jennifer to defend the case successfully. 	Fullen understood that to mean that Pona
believed that he had to kill her. 	Fullen also testified that Pona was angry at Perez after he
learned that Perez shot a bullet into the air to scare Jennifer, but that he did not kill her. Fullen
testified that Pona said that he needed to make bail to insure that “it was done the correct way.”
Fullen understood this to mean that Pona intended to see that Jennifer was killed. During trial, it
was revealed that in exchange for his testimony against Pona, Fullen was given a reduction in his
sentence to serve at the ACI, and his wife and children were placed in the Witness Protection
Program.
During an aggressive cross-examination, Fullen blurted out that Pona had purchased
crack cocaine from him on a regular basis. Before an objection could pass defendant’s lips, the
trial justice struck the unexpected comment from the record and the jury was instructed to ignore
what had been said:
“Q. But you can say you saw Mr. Pona [at Lockwood Plaza] every day?
“A. Yeah, I seen him. 	Matter of fact, you know what, I tell you the truth, Mr.
Pona used to meet me and buy crack off me. 	I used to sell him eight balls.[ ]	8 I
hung with him every day.
8 This is equal to one-eighth of an ounce, or three and one-half grams. 	See United States v.
Whirlwind Soldier, 499 F.3d 862, 867 n.2 (8th Cir. 2007) (citing United States v. Campos, 306
F.3d 577, 581 (8th Cir. 2002)).
7

“THE COURT: The answer is stricken.
Members of the jury, you’re instructed to ignore that answer.
Mr. Fullen, answer the question that is asked.”
The defendant motioned to pass the case because of the prejudicial statement. The Court denied
the motion, ruling that its instructions were sufficient.
Miguel Perez also testified on behalf of the state. 	Perez already had pled guilty to his
involvement in Jennifer’s murder; he was the driver of the vehicle in which Walker fled the
scene. 	In exchange for his testimony, the state agreed not to charge Perez with first-degree
murder if he would plead to a charge of second-degree murder. 	Perez had a child with Pona’s
sister, and he had known Pona for approximately seven years. 	Perez testified that about two
weeks before Pona was released on bail, he saw Jennifer in front of her house playing with a
group of other girls. 	Corroborating Fullen’s story, Perez admitted to getting out of his car and
firing a single shot into the air. Perez testified that he did this to scare Jennifer so that she would
not testify against Pona in the Feliciano trial.
Eventually, Pona was released on bail. 	Perez testified that he, Pona, and Walker drove
together in the vicinity of Jennifer’s house the day she died. 	Perez testified that they saw
Jennifer outside playing, and he circled the block before stopping on a nearby street. 	Before
Walker got out of the car, Perez testified that Pona told Walker, “Make sure you do it right,”
which Perez understood as meaning that Walker should kill Jennifer. 	Walker replied, “Don’t
worry. [You] can’t do life.” Perez then told Walker to meet him at a prearranged location, close
to Jennifer’s apartment. Perez testified that he and Pona drove to the meeting spot and waited in
the car. After hearing three gunshots, Perez watched Walker run toward them. Once Walker got
into the car, Perez testified that Walker said, “I got her. 	I got her. 	Jet. 	Jet. 	Jet.” 	After this,
Pona replied, “I love you. I love you.”
8

Before his confession for his role in Jennifer’s murder, Perez was held in the ACI on
unrelated charges. 	While there, Perez received a letter written by Pona. 	In the letter, Pona
described how police officers had visited him to discuss Jennifer’s murder, but that he had said
nothing to them. In the letter, Pona also wrote, “I’m fighting to get on an [sic] appeal.”
The letter was admitted into evidence and read to the jury over defendant’s objection. He
argued that the reference to his appeal indicated that Pona was convicted for the Feliciano
murder and that it was unfairly prejudicial. 	The trial justice overruled the objection. 	He
reasoned that he already had given sufficient cautionary instructions to the jurors that they should
not infer anything from Pona’s incarceration. 	The trial justice decided that it would be even
more prejudicial to point out that defendant was incarcerated at that point, and he favored
making another cautionary instruction later in the trial.
Walker, Jennifer’s self-proclaimed murderer, then testified. 	Walker already had pled
guilty to conspiring with Pona and Perez to kill Jennifer.9 However, on the witness stand, he
9 At trial, the prosecutor read portions of a transcript from Walker’s hearing in which he pled
guilty to murdering Jennifer:
“Q. 	* * * The Court then instructs you to be seated and asks to hear from the
State as to the nature of the offenses * * * .
‘If the matter had proceeded to trial on Indictment P1/01-1968AG, the
State would show on Count 1 that Mr. Walker, along with Miguel Perez and a
previously disclosed co-conspirator, Manny Pona, all of Providence County, on
the 21st of May, 2000, in Providence, did murder Jennifer Rivera, that murder
being a murder in the first degree. 	On Count 2, Mr. Walker, along with Miguel
Perez and Manny Pona, again on May 21, 2000, in Providence, conspired or
entered into an agreement to commit that murder of Jennifer Rivera in violation of
the General Laws. Count 3, Mr. Walker and Mr. Perez, * * * along with Manny
Pona, on the 21st day of May, 2000, in Providence, did, without a license, carry a
handgun on or about their person in violation of the General Laws. On Count 4,
Mr. Walker, along with Mr. Perez and Manny Pona, on the 21st day of May,
2000, in Providence, committed a crime of violence, namely, the murder of
Jennifer Rivera, while being armed with a firearm; and, Count 5, Mr. Walker,
9

flatly denied that either Perez or Pona were with him when he killed Jennifer. 	Under oath,
Walker asserted that he decided to kill Jennifer on his own, without discussing the matter with
anyone else. 	Walker testified that he drove himself to the scene, murdered the young girl by
himself, and then left the area alone. He disavowed not only his guilty plea to the extent that it
implicated Perez and Pona, but also a tape-recorded conversation that he had with Fullen at the
ACI that also implicated Perez and Pona. There is no doubt that the facts surrounding Jennifer’s
murder in Walker’s prior statements corresponded with Perez’s version of the events of that day.
During his tape-recorded conversation with Fullen, Walker admitted to being dropped off by
Perez and Pona, walking up to Jennifer alone, and shooting her. 	He also stated that Perez and
Pona waited in the car for him, and that they drove off together.
Our primary focus is on the testimony of Det. James Marsland, the detective who was
present at the scene of the Feliciano shooting and who spoke to Jennifer there. 	During Det.
Marsland’s testimony, the state moved to admit the photopack Jennifer used to identify
defendant. The prosecutor also solicited testimony from the detective that defendant’s pager was
found at the scene of Feliciano’s murder and that defendant’s fingerprints were found inside the
along with Miguel Perez and Manny Pona, on the 21st day of May, 2000, in
Providence, did, by force, namely killing Jennifer Rivera, endeavor to influence,
obstruct and impede the administration of justice in violation of the General
Laws.’
“* * *
“And the Court then asks you, Mr. Walker, ‘Mr. Walker, have you heard
what the State’s attorneys have told me? Is what they told me true?’
“Do you remember what your answer was?
“A. Yes.
“Q. What was your answer?
“A. Yes. Because I committed the crime, that’s why.”
10

vehicle that was observed leaving the area of the murder scene.10 The defendant objected and
moved to strike the testimony, but the trial justice overruled the objection.
Detective Marsland also testified that he met Jennifer Rivera at the Feliciano murder
scene that day, and that she was the only person present who said she could identify the face of
the man she saw running after the gunshots were fired. At this point, the trial justice stopped the
detective’s testimony and gave a cautionary instruction, in accordance with Rule 404(b), that the
jury could consider that particular evidence only for the purpose of demonstrating that Pona had
a motive, intent, or plan to kill Jennifer.11 After the state rested, defendant did not testify, nor
did he present any witnesses.
10 On direct examination Det. Marsland discussed the full extent of the evidence found at
the scene of the Feliciano murder.
“Q. * * * Did you discover any physical evidence that may have helped in your
investigation [of the Feliciano homicide]?
“A. Yes.
“Q. What was that?
“MR. RUGGIERO: 	Objection. 	Your Honor. 	I don’t see the relevance of it,
Judge.
“THE COURT: Overruled. He may answer.
“THE WITNESS: 	Approximately two or three feet from where the victim had
been found lying, we found a black pager * * * [that] was linked to the defendant,
Charles Manny Pona.
“* * *
“Q. In addition to that pager, was anything else discovered in the course of your
investigation that linked the defendant to the crime?
“A. Yes.
“Q. What else?
“MR. RUGGIERO: Objection once again, Judge.
“THE COURT: Overruled, you may answer.
“A. During the course of the investigation, we learned that after the shooting, the
suspect had fled the area in a vehicle, and we later found the vehicle, and through
our BCI processing the vehicle, they lifted latent fingerprints from inside the
vehicle and those prints were later matched also to the defendant, Charles Pona.
“MR. RUGGIERO: Motion to strike, Judge.
“MR. GENDRON: Your Honor –
“THE COURT: I’ll allow it. The answer may stand.”
11 The trial justice warned the jurors,
11

In our opinion, even though Pona was standing trial for participating in the murder of
Jennifer, the admission of the evidence of Pona’s pager and fingerprints led the jury to the
inescapable conclusion that he also killed Feliciano, a crime for which he was not on trial. 	It
seems to us that this was a clear abuse of discretion by the trial justice. 	The impact of this
evidence was to highlight the propensity of Pona as a person who had murdered before and who
would not hesitate to murder again. 	It is our opinion that the admission of this evidence,
combined with the playing of the entire audio tape of Jennifer’s bail-hearing testimony, in which
her forever-stilled teenage voice was both un-redacted and hours-long, constitutes reversible
error. By allowing this highly prejudicial evidence to come before the jury, the trial court placed
the facts of another crime, the Feliciano murder, onto center stage, tempting the jury to hold
defendant accountable on the facts of a case for which he was not on trial.12
II
The “Other Crimes” Rule and the Evidence from the Feliciano Murder
American jurisprudence has a long history of prohibiting the use of “other crimes,
wrongs, or acts” as evidence to prove the propensity of a defendant to commit crimes. 	Rule
404(b). “The overriding policy of excluding such evidence * * * is the practical experience that
“that you may not draw any inference that Mr. Pona committed the criminal
offenses for which he is on trial before you simply because on some prior
occasion, he allegedly committed other improper conduct. * * * [T]he State
cannot utilize the so-called bad acts evidence to show that because the defendant
may have, on some prior occasion, acted improperly, he, therefore, must have
committed those crimes before you in this trial.
“However, * * * it is admitted for your consideration for the limited
purpose of deciding issues such as whether the defendant Charles Pona had a
motive for committing the murder of Jennifer Rivera; whether the defendant,
Charles Pona, had a specific intent to commit the murder of Jennifer Rivera;
whether the defendant, Charles Pona, had a plan to murder Jennifer Rivera. You
may not consider this evidence for any other purpose.”
12 Because we reverse on these stated grounds, we decline to reach the other issues presented.
12

its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.” State
v. Gallagher, 654 A.2d 1206, 1210 (R.I. 1995) (quoting State v. Colvin, 425 A.2d 508, 511 (R.I.
1981)).
“When a jury is allowed to consider independent crimes for which a defendant is
not on trial, a real possibility exists that such an indication of bad character or bad
acts would create prejudice in the minds of the jurors and improperly influence
their decision in regard to the crimes charged. * * * The danger is that jurors may
believe that the prior crimes or bad acts denote a propensity in a defendant to
commit the crime with which he or she is charged.” Gallagher, 654 A.2d at 1210.
When other crimes evidence is “prejudicial and irrelevant,” its exclusion obviously is
required; however, when relevance exists for purposes other than to show propensity, there are
exceptions to the general rule that permit such evidence to be admitted. State v. Martinez, 651
A.2d 1189, 1194 (R.I. 1994). 	Rule 404(b) permits the admission of “other crimes” evidence
when it is offered to show something apart from “a probability that he has committed the crime
on trial because he is a man of criminal character.” State v. Jalette, 119 R.I. 614, 624, 382 A.2d
526, 532 (1978) (quoting McCormick, Evidence § 190 at 447 (2d ed. 1972)). 	Rule 404(b)
contains a list of exceptions, including when the evidence offered establishes the motive or intent
of the defendant, or when it is relevant to prove a material element of the crime with which the
defendant is charged. Gallagher, 654 A.2d at 1210. We also have permitted the introduction of
“other crimes” evidence when crimes are interwoven or in instances when introduction is
necessary for “a trier of fact to hear a complete and, it is to be hoped, coherent story so as to
make an accurate determination of guilt or innocence.” State v. Gomes, 690 A.2d 310, 316 (R.I.
1997).
We 	have 	said 	that 	“[t]he 	line 	between 	Rule 	404(b) 	evidence 	presented 	for 	the
impermissible purpose of demonstrating propensity and Rule 404(b) evidence presented for one
of the specific non-propensity exceptions is ‘both a fine one to draw and an even more difficult
13

one for judges and juries to follow.’” State v. Brown, 900 A.2d 1155, 1160 (R.I. 2006) (quoting
State v. Garcia, 743 A.2d 1038, 1052 (R.I. 2000)).
“In deciding whether to admit evidence pursuant to Rule 404(b), a trial
justice must carefully weigh the possibility that this evidence will unfairly
prejudice the accused, and in the event the trial justice finds that the probative
value of the evidence outweighs the danger of unfair prejudice, the trial justice
must offer ‘a specific instruction as to the limited purpose for which the evidence
is being introduced.’” 	State v. Brown, 626 A.2d 228, 233 (R.I. 1993) (quoting
State v. Chartier, 619 A.2d 1119, 1123 (R.I. 1993)).
Even if “other crimes” evidence clears the Rule 404(b) hurdle, it may still be excluded if
it does not survive scrutiny under Rule 403 of the Rhode Island Rules of Evidence, which
provides:
“Although 	relevant, 	evidence 	may 	be 	excluded 	if 	its 	probative 	value 	is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.”
Under Rule 403, we have said that the discretion to exclude evidence must be used
sparingly. 	Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188, 1193 (R.I. 1994). 	It is when
evidence is marginally relevant and enormously prejudicial that a trial justice must exclude it.
State v. Silvia, 898 A.2d 707, 717 (R.I. 2006) (citing Wells, 635 A.2d at 1193). 	It is upon the
completion of these twin analyses that a defendant’s Sixth Amendment constitutional right to a
fair trial by an impartial jury may be safeguarded, and it is to this inquiry that we now turn.
A. Pona’s Pager and Fingerprints
We begin by noting that the trial justice below did not engage in the careful weighing that
is required when admitting evidence under Rule 404(b). 	See Brown, 900 A.2d at 1160. 	After
considering the probative value of this evidence, we disagree with the state that the pager and
fingerprints were sufficiently relevant to show Pona’s motive to kill Jennifer. 	Rather, in our
opinion, defendant had a motive to kill Jennifer because she had testified against him at his bail
14

hearing, and he knew she was scheduled to testify against him at a trial in which he faced
potential life imprisonment. 	Apart from the motive issue, the specific facts of the murder of
Hector Feliciano have little, if any, probative value with respect to any conspiracy surrounding
Jennifer’s murder, except perhaps to demonstrate that defendant was prone to kill. See State v.
Jenkins, 840 A.2d 242, 253-54 (N.J. 2004).13
In Gallagher, 654 A.2d at 1207, the defendant was charged with robbery and kidnapping.
During trial, Kenneth, a defense witness and friend of the defendant, testified that the defendant
was with a group of friends, after they had finished a game of basketball, when several police
officers detained them. 	Id. at 1209. 	On cross-examination, the prosecution asked Kenneth
several questions about the shooting of a Navy man in Newport, and whether he knew if that was
why the police had stopped them. 	Id. 	Later, during the testimony of a rebuttal witness for the
state, the arresting police officer explained that he stopped the defendant and his friends on that
night because they did not have a front license plate displayed on their car. 	Id. 	He then
continued to testify that he also stopped Kenneth at a later time because the police had
information that there was going to be a possible shooting of a military person. 	Id. 	The state
argued that the evidence was offered to prove that Kenneth was confusing two separate events
and that the defendant was not present when the police searched Kenneth for a gun. Id. at 1210.
This Court held that the evidence, implying that the defendant and his friends were suspects in
the shooting of the Navy man, was irrelevant and sufficiently prejudicial to constitute reversible
error.
13 With respect to the state’s argument that Fullen and Perez mentioned the pager and
fingerprints during their testimony about their conversations with Pona, our review of the record
reflects that those references were fleeting and insignificant. 	The overwhelming substance of
their testimony concerns Pona’s expressions and desires to be rid of Jennifer to improve his
prospects of avoiding a conviction for killing Feliciano.
15

In Gallagher, this Court reversed precisely because we could not allow the jury to find “a
defendant guilty based upon unrelated crimes rather than upon the evidence pertaining to the
charged offense.” 	Gallagher, 654 A.2d at 1211 (quoting State v. Cardoza, 465 A.2d 200, 202
(R.I. 1983)). Here, the specific admission of the evidence about the pager and fingerprints was
confusing and unnecessary because it placed before the jury the facts of a wholly different
murder, to say nothing of its enormously prejudicial impact.
The main issue at Pona’s trial was whether he conspired with his half brother to kill
Jennifer for defendant’s benefit. 	The trial justice ruled that any reference to Pona’s conviction
for murder would be excluded, yet he allowed the state to introduce evidence that would lead the
jury to the inevitable conclusion that he also killed Feliciano. This evidence had little probative
value with respect to defendant’s motive to eliminate Jennifer and it did much more to confuse
the issues before the jury.
“If evidence of other crimes is admitted, all that is necessary to show prejudice is
a reasonable possibility that the improper evidence contributed to a defendant’s
conviction. * * * Furthermore, this [C]ourt has held that ‘if we are unable to say
whether the jury would have reached the same verdict if the evidence had not
been 	improperly 	admitted, 	we 	will 	enter 	a 	finding 	of 	reversible 	error.’”
Gallagher, 654 A.2d at 1211 (quoting State v. Burke, 427 A.2d 1302, 1304 (R.I.
1981)).
Once the jurors were burdened with the damning evidence from the Feliciano murder,
there was a substantial risk that they would conclude they were dealing with a defendant who
had murdered before and who was prone to do so again. 	We do not agree that the pager and
fingerprint evidence is probative enough to demonstrate motive. 	Rather, the relevancy of the
pager and fingerprints was remote and the relationship to Jennifer’s murder remained tenuous.
Furthermore, we are of the opinion that this evidence essentially proved that Pona was
the murderer of another teenager and was extremely prejudicial. 	Therefore, this highly
16

prejudicial “other crimes” evidence should have been excluded from trial.14 We conclude that
this error was far from harmless, and that it denied defendant a right to a fair trial on the charge
for which he was on trial.
B. The Bail-Hearing Testimony
Before trial, defendant objected to the introduction of Jennifer’s bail-hearing testimony
citing Old Chief v. United States, 519 U.S. 172, 174 (1997). 	In that case, the United States
Supreme Court held that the nature of a defendant’s previous conviction (as distinguished from
the simple fact of that conviction) was not admissible to show the prior-felony-conviction
element of the offense of possession of a firearm by a felon. Id. Pona argued to the trial justice
that the admission of a tape recording of Jennifer’s bail-hearing testimony relating to the
Feliciano murder charge was both unnecessary and overly prejudicial, especially in light of
defendant’s offer to stipulate that Jennifer was the prime witness for the prosecution in an
upcoming trial. Indeed, the trial justice initially inquired as to why it was necessary for the jury
to view the entire transcript, but then he eventually admitted the entire audio-tape recording, as
well as the complete transcript, over defendant’s objection, reasoning that the testimony went
directly to Pona’s motive to kill Jennifer.
Pona argues that this case bears remarkable similarity to Jenkins, 840 A.2d at 246, in
which the Supreme Court of New Jersey held that a new trial was required because of the
combination of the improper admission of videotape of the victim’s prior testimony against the
defendant in an earlier prosecution and additional “other crimes” evidence concerning the
defendant. 	In Jenkins, the defendant and his friends were sitting on the porch of an apartment
14 We note that it is undisputed that Walker killed Jennifer for the sole reason of preventing her
from testifying against defendant. 	The prosecutor is not prevented from presenting facts in his
case-in-chief that are undisputed, including how Jennifer became involved in the first case and
the gruesome manner of her death.
17

complex when the victim, Arthur Thomas, approached the group seeking to buy some drugs. Id.
After completing the transaction, Thomas began to walk away, at which point the defendant
recognized him as the man who had testified against him when he was on trial for another
murder. Id. Although the defendant was acquitted in that case, he apparently still bore a grudge
against Thomas. Id. The defendant picked up a brick and slammed it into the back of Thomas’
head, causing him to fall down a flight of stairs and land on the concrete below, head-first. Id.
Thomas died from skull and brain injuries resulting from his fall. Id.
At trial, the prosecution presented evidence indicating that the defendant attacked
Thomas in retaliation for his testimony against the defendant. 	Jenkins, 840 A.2d at 247. 	That
evidence included a detective’s testimony that in an earlier case the victim had seen the
defendant with a gun and had identified the defendant as the killer from a photographic array.
Id. The prosecution then presented an excerpted videotape recording of Thomas’ testimony from
the first trial. 	Id. 	The Appellate Division vacated the defendant’s conviction, concluding that
“the cumulative effect of the multitude of other crimes evidence admitted at trial without clear
and complete limiting instructions deprived defendant of a fair trial.” Id. at 252 (quoting State v.
Jenkins, 812 A.2d 1143, 1153 (N.J. Super.Ct.App.Div. 2003)). The New Jersey Supreme Court
agreed, and it also held that the trial court erred when it admitted the videotape as well. 	Id. at
253. 	The Court reasoned that “the critical question concerns the extent and character of the
evidence that the trial court should have allowed to demonstrate motive in these circumstances.”
Id. “More important, less prejudicial evidence exist[ed] to prove motive in these circumstances.”
Id.
In our opinion, this holding parallels our own jurisprudence requiring close scrutiny of
the manner in which “other crimes” evidence is presented to the jury and how witnesses are
18

questioned about the details of prior bad acts of a defendant. It is an old adage that the devil is in
the details, and here, references to the murder of Feliciano should have been kept to a minimum.
See Brown, 900 A.2d at 1163, 1164. We feel constrained to repeat that “[i]n this sensitive area
of the law, the trial court can do much to strike a proper balance[] * * * between the
prosecution’s right to present necessary and relevant evidence and the accused’s right to have his
guilt or innocence determined by an impartial jury, free from the disruptive influences which
accompany irrelevant, prejudicial, and extraneous evidence.” Jalette, 119 R.I. at 627, 382 A.2d
at 533-34.
Whether Pona was involved in Jennifer’s murder, there is no question that her testimony
at Pona’s bail hearing, and the fact that she was to testify when he was tried for murdering
Feliciano, led to her being killed. 	It was at the bail hearing that defendant and his comrades
learned of her existence, where she lived, what she looked like, and what she witnessed after
Feliciano was shot. We agree that reference to her testimony was reasonable to demonstrate the
event that precipitated her tragic death. 	However, the Superior Court erred when it did not
attempt to strike a balance between the necessity of admission and the danger of unfair prejudice
occasioned by the wholesale adoption of the bail-hearing testimony. This type of evidence must
be received “with great caution,” and a careful review of her testimony reveals that there are
particular statements that should have been excluded.15 State v. Peters, 86 R.I. 447, 450, 136
15 Although we do not attempt an exhaustive review of Jennifer’s bail-hearing testimony on
appeal, it is clear that during the pretrial hearing the prosecutor argued that her testimony was far
less damaging because she did not witness Pona actually murder Feliciano. 	Yet, throughout
Jennifer’s testimony there are direct references to the fact that Pona was Feliciano’s murderer,
making it no less damaging than if she actually had witnessed the first murder in its entirety. For
example:
“Q. And you knew that they were looking for someone that allegedly killed
Hector Feliciano, right?
“A. Yeah.
19

A.2d 620, 621 (1957). Although we will not go so far as to deny the prosecution the opportunity
to make any reference to the fact that defendant was charged with murder, we nonetheless hold
that the quantum of evidence admitted here was extremely prejudicial to defendant and requires
reversal.16
C. The Testimony Regarding Cocaine Use
As mentioned above, defendant unsuccessfully moved for a mistrial after Dennis Fullen
unexpectedly exclaimed on cross examination that he frequently engaged in the illegal drug trade
with defendant. We are satisfied that the trial justice erred when he failed to grant the motion for
mistrial, given the gravity of the unanticipated testimony and especially in light of the woefully
inadequate instruction imparted to the jury. 	It may well be that no curative instruction could
have overcome the impact of the witness’ statements. 	However, we are confident that the one
given here was completely ineffectual. See State v. Manfredi, 118 R.I. 144, 149, 372 A.2d 975,
977 (1977) (holding that reversible error was committed when the Court could not determine that
the instruction given by the trial justice was sufficient to remove the taint of the statement and
“* * *
“Q. Did they tell you why they wanted you to pick out a photograph?
“A. Cause they wanted to get the guy.
“Q. That the guy that what?
“A. That killed Hector.
“* * *
“Q. Now, you know that Mr. Pona is being charged with murder, right?
“A. Yes.
“Q. And you know that if you identify him as the person running from a lot where
a shooting just took place, he has got some problems. You know that, right?
“A. I know that.”
16 We note that the Superior Court did not attempt to weigh the tape’s probative value against the
danger of unfair prejudice under Rule 403 of the Rhode Island Rules of Evidence. By allowing
hours of testimony from a teenage “voice from the grave,” without engaging in the exercise of
comparing its prejudice with its probative value, the Court failed to strike a balance that would
allow the state to present its case without depriving defendant of his right to a fair trial by an
impartial jury.
20

such doubt was to be resolved in favor of the defendant); see also State v. Costa, 111 R.I. 602,
609-10, 306 A.2d 36, 40 (1973) (stating that “there remains for the appellate court the question
of whether such instructions were adequate to have disabused the jury’s mind of the prejudicial
effect of the objectionable evidence”).
III
Conclusion
As we said at the outset of this opinion, the murder of Jennifer Rivera was especially
repugnant; it was a profound affront to the basic norms of civilized society. 	Nonetheless, even
those accused of despicable acts are entitled to a fair trial. 	In this instance, we have concluded
that the defendant did not receive a fair trial, and we are convinced that it is our responsibility to
that same civilized society to reverse for a new trial.
Therefore, and for the reasons stated herein, we vacate the judgments of conviction. The
record in this case shall be remanded to the Superior Court for a new trial.
21