State v. Jairo Esdel

Supreme Court

No. 2022-304-C.A.
(P1/20-3310AG)

State :

v. :

Jairo Esdel. :

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
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Supreme Court

No. 2022-304-C.A.
(P1/20-3310AG)

State :

v. :

Jairo Esdel. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Goldberg, for the Court. The defendant, Jairo Esdel (defendant or

Esdel), appeals from a Superior Court judgment of conviction for second-degree

murder;1 discharging a firearm during a crime of violence, resulting in the death of

the decedent, Joel Rosario (the decedent or Rosario); and several additional firearm

offenses. On appeal, the defendant contends that the trial justice erred by (1)

refusing to give a lesser-included offense instruction on voluntary manslaughter; (2)

excluding testimony from the defendant’s grandfather about a verbal threat to kill

the defendant made by the decedent shortly before the shooting; (3) excluding the

1
We note at the outset that the judgment of conviction in this case is incorrect. The
judgment declares that defendant was convicted of murder in the first-degree.
According to the transcript, the jury found defendant guilty of second-degree murder
and the court’s sentence reflected second-degree murder.
-1-
testimony of the defendant’s grandfather and another witness, both of whom

witnessed a violent prior altercation instigated by the decedent upon the defendant;

and (4) determining that a social media post (the WhatsApp video), depicting the

decedent brandishing a firearm, was inadmissible. For the reasons stated herein, we

vacate the judgment of the Superior Court.

Overview

By way of background, this appeal arises out of events that transpired on the

evening of October 31, 2020. That evening, defendant was driving on Lonsdale

Avenue and stopped for a traffic light at the intersection of Lonsdale and Mineral

Spring Avenues in Pawtucket, Rhode Island. When the light turned green the

events—to which several witnesses and defendant testified at trial—occurred within

a matter of seconds. Several other vehicles were also waiting for the light to change.

When the light eventually changed, however, the vehicles in the front and side of

Esdel’s vehicle came to an abrupt stop; several individuals—some of whom were

armed—exited their vehicles, and quickly surrounded defendant, who remained

inside his vehicle.2

2
According to a video from a Grubhub food delivery driver (the Grubhub video)
that was presented at trial, there were approximately four to five vehicles
surrounding defendant’s vehicle (the Jeep). We note, however, that some witnesses
testified that not all of the vehicles were related to the shooting. Despite defendant’s
attempts to escape the scene—testifying that he put the Jeep in reverse “as much as
[he] possibly [could,]” then “[he] put the car in drive,” and that his “sensors in [his]
Jeep [were] going off * * * letting [him] know that there’s either a person or an
-2-
In those few seconds, Esdel—who testified that he was trapped, felt

threatened, and thought that his life was in peril—reached for his bag, grabbed a

revolver, raised his right arm, and fired a single shot through his passenger window.

The defendant shot Rosario, an individual with whom he had previous encounters.

Rosario later died at a nearby hospital. At trial, defendant asserted the defense of

self-defense. This Court observed in State v. Tribble, 428 A.2d 1079 (R.I. 1981),

that “the very essence of the defense of self-defense is how the defendant perceived

the situation at the time of the incident in question.” Tribble, 428 A.2d at 1085. Thus,

we focus the relevant facts of this appeal on defendant’s trial testimony and

supplement the facts with the testimony of other witnesses.

Facts and Travel

On or about October 31, 2020, defendant awakened at approximately 8 or

9 a.m. to go to work, where he was scheduled to work a nine-hour shift from 11 a.m.

to 8 p.m. At the end of his shift, Esdel drove to Central Falls to visit his friend,

Claudia Silva (Silva), with whom he shared a romantic relationship; however, when

Esdel arrived at Silva’s home, she told him she was sick and not to come inside.

Because Esdel had already planned to stop by his mother’s house to retrieve a few

items of clothing, he offered to pick up food for Silva along the way on nearby

object close by. So [he] didn’t have any space, any room to go forward[]”—
defendant appears in the video to be trapped.
-3-
Thayer Street. When Esdel arrived at his mother’s home, he testified, he packed a

few things, including his friend’s revolver, and then “[took] the duffle bag. I [got]

in my vehicle,” and was on his way.3 The defendant was driving a 2019 Jeep Grand

Cherokee (the Jeep) and placed the duffel bag, with the revolver, on the front

passenger seat. The defendant eventually turned onto Pine Street and then took

another turn onto Rand Street, at which point he noticed two vehicles—one of which

was a Toyota Corolla, which he recognized as belonging to Sleither Feliz (Sleither).4

Esdel turned onto Watson Street and briefly lost sight of Sleither’s Toyota and the

other vehicle.

As he turned onto Lonsdale Avenue, defendant testified, he yielded to two

vehicles in front of him and recounted that it appeared these two vehicles were

together. From Lonsdale Avenue, defendant proceeded toward I-95 South; however,

defendant testified that while on Lonsdale Avenue he saw the decedent “hang[ing]

out [one] of the vehicle[s]” and making hand gestures, including the gesture of

3
At trial, Esdel admitted he did not own this revolver, but that it was his friend’s
revolver, which he was temporarily holding onto at his friend’s request.
4
We note that there are multiple individuals involved with this case who share the
same surname, as well as individuals who were referred to by first name in the lower
court proceedings. As indicated at each individual’s introduction, we refer to these
individuals by first name in order to avoid confusion. We intend no disrespect.
-4-
holding a gun. 5 Esdel continued on Lonsdale Avenue and stopped for a red light at

the intersection of Lonsdale Avenue and Mineral Spring Avenue, where these events

unfolded.

While waiting at the light, Esdel noticed Sleither’s vehicle. The defendant

testified that he was not afraid as he waited for the light to change, but fear set in

after the light turned green and the vehicles in front of him abruptly stopped and

disgorged passengers. Specifically, defendant recalled that when the light turned

green, he and the surrounding cars began to proceed, but the car immediately in front

of him suddenly “stop[ped] on a dime.” Esdel rolled down his passenger window to

urge the driver to continue with the flow of traffic, but it was too late. The decedent

had exited Sleither’s vehicle, wearing a white ski mask and carrying what appeared

to be a bottle in his right hand.6 Throughout trial, defendant maintained that he

observed the decedent exiting Sleither’s vehicle wearing a “ski mask [that] was fully

on the whole entire time.” The defendant testified that the decedent approached the

Jeep and made a hand gesture to defendant signaling that he was carrying a firearm.

5
Esdel clarified during his testimony that he did not see a firearm at this point, but
that the decedent only made the hand gesture of holding a gun while hanging out of
the vehicle.
6
There is trial testimony that is contradictory as to whether or not the decedent struck
the Jeep with the bottle. However, on cross-examination, Esdel maintained that the
decedent hit the hood of his car because he heard the loud bang and felt the vibrations
from below.
-5-
Esdel later testified that he saw what appeared to be the handle of a black pistol on

the decedent’s person, stating that “[a]t that time my passenger window was halfway

down,” and the decedent “showed me a firearm.”

Within seconds, Esdel was surrounded by individuals from three or four

vehicles: two were at the front of his Jeep, two others at his passenger door, and one

individual standing in the middle of the roadway. Although it was defendant’s initial

intent to urge the driver in front of him to proceed forward, Esdel froze and testified

that by the time he did so, “[he] didn’t get to say anything because right after [he

rolled his window down,] [the decedent] and the rest of the individuals had gotten

out of the vehicles.” “Everything happened so fast * * *.” 7

According to defendant, when he saw who he believed to be the decedent

carrying a black pistol, he ducked down, reached over to his duffel bag, retrieved a

revolver, and simultaneously attempted to put his Jeep into reverse, and then into

drive, in the hope, he testified, of escaping the situation. But as defendant

maintained throughout his testimony, it was too late; defendant was surrounded.

Sensing he was in grave danger, Esdel reiterated several times what ran through his

mind, stating:

“[DEFENDANT]: * * * I didn’t have any space, any room
to go forward. So at that time, my heart’s going fast. I
7
These events appear on the Grubhub video, including a man wearing a ski mask,
surrounding defendant’s vehicle.

-6-
panic. And I lift up my right arm, and I let off a shot. I let
off a single shot off the passenger door.

“* * *

“[DEFENDANT]: I was in fear for my life. Yes. I was
under attack. I was seeing someone right next to my
window with a ski mask. I seen him previously with a
firearm. I know him to previously carry firearms. I would
always see him with firearms.”

After the gunshot, defendant testified that “[e]veryone backed away from my

vehicle, and I immediately took off.” Esdel testified that he left the scene because

“I didn’t want to be there in the first place. I felt boxed in. I felt cornered. I just

wanted to get out of the area. I wanted to leave the area. I thought my life was over

at that point. I wanted to leave the area.”

In support of his claim of self-defense, defendant sought to introduce

testimony and other evidence regarding three separate incidents involving the

contentious relationship between the decedent and defendant. First, defendant

contends that the trial justice improperly excluded the testimony of his grandfather,

Jaime Galva (Jaime or grandfather),8 who, defendant claims, was an eyewitness to a

threat to kill that the decedent made to him, shortly before the shooting, telling Jaime,

8
We refer to defendant’s grandfather as “Jaime” or “grandfather” to avoid confusion
with defendant who also shares the same surname. We further note that defendant
clarified any discrepancies as to his legal name and provided that some official
documents refer to him as “Jairo Esdel Galva.” We intend no disrespect.
-7-
“Take Jairo for dead.” The defendant further testified that when his grandfather told

him later that day about this threat, defendant stated that he felt “nervous for myself,”

but that he was also concerned for his eighty-three-year-old grandfather.

Second, defendant asserts that the trial justice’s exclusion of two individuals

who were eyewitnesses to a pistol-whipping incident was erroneous. On June 16,

2018, defendant arrived at his mother’s home and saw Sleither and the decedent

hanging out in front of her house. Esdel testified that he “immediately went over

there and I told them that I didn’t want them anywhere near my family’s house. I

told them I wanted them to leave the area.” He was insistent that Sleither and the

decedent leave because he knew that they would be selling drugs, and that “[he]

didn’t want anything happening in front of [his] mother’s house * * *.” Sleither and

the decedent began yelling, “but they eventually got in their cars and they left.” This

initial encounter on June 16, 2018, did not become physical, but that evening,

between 9 and 10 p.m., the decedent and Sleither returned to Esdel’s mother’s home

and stopped in the middle of the street, and “[t]hey immediately jump[ed] out of

[Sleither’s] vehicle. [The decedent] comes out of the passenger side. When [the

decedent] comes out, he comes out with a gun * * *.” According to defendant—

who was standing on the sidewalk with his sister—he saw the decedent approach

him while loading a gun, and recounted that he froze, stating that he did not know

what to do because “[t]here was nowhere for me to run.” Once the decedent was

-8-
close enough, he pistol-whipped defendant, causing him to fall to the pavement, and

a scuffle ensued. As a result of the pistol-whipping, defendant testified, he sustained

a scar on his head where he had been hit. Esdel’s family, who were in the backyard

of his mother’s home, heard the commotion. The defendant’s stepfather intervened

and grabbed Rosario. Rosario struck defendant’s stepfather with the gun and fled

the scene immediately. Although the Central Falls police responded to defendant’s

mother’s home a total of three times that day, Esdel did not report the

pistol-whipping incident, and instead, repeatedly told officers that he was fine and

refused medical assistance for his obvious injuries.

The defendant’s third contention on appeal concerns evidence of a social

media post that the trial justice ultimately determined to be inadmissible because the

video lacked proper authentication pursuant to Rule 901 of the Rhode Island Rules

of Evidence.9 See R.I. R. Evid. 901. This WhatsApp video purportedly depicted the

decedent “listening to Spanish rap, * * * waving a gun around and singing a song,

the lyrics to the rap.” Before this Court, defendant submits that the WhatsApp video,

9
Rule 901 of the Rhode Island Rules of Evidence, “Requirement of authentication
or identification,” states in part:

“(a) General Provision. The requirement of authentication
or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.”
-9-
purportedly published the day of the incident, was critically relevant to the jury’s

consideration of whether the decedent, in fact, possessed a firearm on the day he was

killed.

Significantly, the events that unfolded at the intersection of Lonsdale and

Mineral Spring Avenues on October 31, 2020, were also captured on video (the

Grubhub video) by John Viveiros (Viveiros), a bystander witness to the incident that

evening, who was picking up a food delivery order, when he saw the decedent and

several individuals surround defendant’s Jeep. Viveiros submitted the video

evidence to the Pawtucket police and testified at trial as to the events he observed

that evening. The Grubhub video went before the jury. Viveiros testified that, at

approximately 10:30 p.m. on October 31, 2020, he was at the McDonald’s located

at the intersection of Lonsdale and Mineral Spring Avenues. As he left McDonald’s

with the food order, there was “[a] disturbance in front of [his] vehicle[,]” and he

heard “a bunch of yelling” from the vehicles on the roadway. After Viveiros heard

the shouting, he testified, “they all started swarming the [Jeep], and then you heard

the bang,” which “definitely came from the [Jeep].” After the gunshot, he testified,

“everyone scattered away. * * * I didn’t think it was a gunshot * * *. I thought it

was like a fire cracker or something, it was Halloween night, and that’s when I did

my delivery, and then I watched the video after.” Viveiros did not realize it was a

gunshot until after the fact, nor did he realize someone had been shot. Viveiros

- 10 -
completed a few more deliveries, and then turned the video over to the Pawtucket

police, stating that from what he could see that night, he did not notice any of the

individuals in the roadway with weapons, but that he saw one individual wearing a

mask.

According to several witnesses and the Grubhub video, after the gun was fired

the decedent ran towards Sleither, told him he had been shot, and with the help of

Starlyn Mercado (Starlyn), one of the participants in this melee, entered Sleither’s

vehicle and immediately was driven to the hospital. Starlyn carried the decedent

into the hospital, and after some time elapsed, Starlyn and the assemblage, consisting

of Sleither and Jeremy Rosario (Jeremy)—another individual involved in the

incident, along with several others—were informed that the decedent had died.

The Pawtucket police had arrived and began conducting witness interviews.

Patrolman Nicholas Sisto of the Pawtucket Police Department testified that on the

evening of the incident, he was dispatched to 1057 Main Street to a call of a “rolling

disturbance.” He arrived at the hospital approximately two minutes after receiving

the dispatch to investigate and determine the “baseline story.” Officer Sisto also

testified that Sleither’s vehicle was secured at the scene “so nobody could go near

it” and that the vehicle was later transported to the Pawtucket police headquarters.

Detective Andrew Torres testified that he was assigned as lead detective; when he

arrived at the hospital, Sleither’s Toyota had been secured, and the Pawtucket Police

- 11 -
Department’s Bureau of Criminal Investigation (BCI) had been notified to document

the vehicle and take photographs. Detective Torres further recounted that, after the

BCI responded, the Toyota was towed to the Pawtucket police station. During

closing arguments, the state argued to the jury that no weapon was recovered from

Sleither’s vehicle when the Pawtucket police conducted an inventory search.10 This

was after the participants exited the vehicle at the hospital.

On November 16, 2020, Esdel was indicted by a grand jury and charged with

the following counts: murder, in violation of G.L. 1956 § 11-23-1 (count 1);

discharging a firearm while committing a crime of violence, in violation of G.L.

1956 § 11-47-3.2(b)(4) (count 2); discharging a firearm from a motor vehicle in a

manner that created a substantial risk of death or serious injury, in violation of

§ 11-47-61 (count 3); and carrying a pistol without a license or permit, in violation

of § 11-47-8(a) (count 4). The defendant was found guilty on all counts. As to count

1, the trial justice sentenced Esdel to life in prison for second-degree murder (count

1); as to count 2, defendant was sentenced to serve a second life sentence, which was

to be served consecutively to count 1; as to count 3, defendant was sentenced to

serve an additional ten years suspended and ten years of probation, consecutive to

count 2; and as to count 4, defendant was sentenced to ten years suspended and ten

10
Before this Court, defendant additionally notes that no ski mask was found in the
Toyota.
- 12 -
years of probation to run concurrently with count 3 and consecutively to count 2.

This timely appeal ensued. Additional relevant facts will be set forth as necessary.

Standards of Review
Jury Instructions

“This Court reviews ‘jury instructions on a de novo basis.’” State v. Isom, 251

A.3d 1, 6 (R.I. 2021) (quoting State v. Ros, 973 A.2d 1148, 1166 (R.I. 2009)). “It is

well established that, on review, we examine jury instructions in their entirety to

ascertain the manner in which a jury of ordinary intelligent lay people would have

understood them.” Id. (quoting Ros, 973 A.2d at 1166). “This Court will not

examine a single sentence apart from the rest of the instructions, but rather the

challenged portions must be examined in the context in which they were

rendered.” Id. (quoting Ros, 973 A.2d at 1166).

Evidentiary Issues
“When an issue concerning the admission or exclusion of trial evidence is

properly preserved for appellate review, this Court employs an abuse of discretion

standard of review.” State v. Doyle, 235 A.3d 482, 493 (R.I. 2020). We have also

stated that “we will reverse a trial justice’s ruling on the admissibility of evidence

only where it constitutes a clear abuse of discretion.” Id. (quoting State v. Clements,

83 A.3d 553, 561 (R.I. 2014)).

- 13 -
Discussion
Voluntary Manslaughter Instruction
On appeal, defendant argues that the trial justice committed reversible error

by not instructing the jury on the lesser-included offense of voluntary manslaughter.

Although the trial justice instructed the jury on self-defense, he refused to include

an instruction of voluntary manslaughter. Based on the evidence presented at trial,

Esdel asserts that there was sufficient evidence to support a conviction of voluntary

manslaughter, and, therefore, the trial justice erred in refusing to so instruct. We

agree.

“When determining whether a trial justice’s refusal to give an instruction was

warranted, ‘this Court will examine the record in the case and determine whether the

evidence justifies such an instruction.’” State v. Fry, 130 A.3d 812, 820 (R.I. 2016)

(quoting State v. Motyka, 893 A.2d 267, 281 (R.I. 2006)). “In making this

determination, our review is limited to ‘ascertaining whether an actual and adequate

dispute exists as to the distinguishing element between the lesser and greater

offenses in question.’” Id. (quoting Motyka, 893 A.2d at 281). This Court has also

stressed that an instruction on a lesser-included offense should be given when “some

minimal evidence exists that, if credited by the jury, could support a conviction for

the lesser-included offense.” Id. (quoting Motyka, 893 A.2d at 284). “On the other

hand, however, this Court has repeatedly recognized that ‘a trial justice is not

- 14 -
required to instruct the jury on a lesser-included offense when the evidence presented

at trial completely fails to support such a charge.’” Id. (brackets omitted) (quoting

Motyka, 893 A.2d at 285).

In State v. Gautier, 950 A.2d 400 (R.I. 2008), we observed that, “[i]n

determining whether the evidence calls for a lesser-included-offense instruction, the

trial justice should not weigh the credibility of the testimony; rather, he or she should

consider whether, at the very least, some minimal evidence exists that, if credited by

the jury, could support a conviction for the lesser-included offense.” Gautier, 950

A.2d at 414 (emphasis added) (quoting State v. McGuy, 841 A.2d 1109, 1112 (R.I.

2003)). In State v. Ruffner, 911 A.2d 680 (R.I. 2006), we recognized that the element

of malice is the distinguishing factor between voluntary manslaughter and murder.

Ruffner, 911 A.2d at 686. “Murder, both first and second degree, ‘is the unlawful

killing of a human being with malice aforethought.’” Id. (brackets omitted) (quoting

§ 11-23-1). Whereas “[v]oluntary manslaughter is a lesser-included offense within

the crime of murder, and is defined as ‘an intentional homicide without malice

aforethought committed in a sudden heat of passion as a result of adequate legal

provocation.’” Ruffner, 911 A.2d at 686 (brackets omitted) (emphasis added)

(quoting State v. Ortiz, 824 A.2d 473, 486 (R.I. 2003)).

Voluntary manslaughter is defined as “an intentional homicide that does not

include the element of malice aforethought by reason of one or more mitigating

- 15 -
factors.” State v. Ventre, 811 A.2d 1178, 1184 (R.I. 2002). “The usual view of

voluntary manslaughter thus presupposes an intent to kill (or perhaps an intent to do

serious injury or to engage in very reckless conduct), holding that in spite of the

existence of this bad intent the circumstances may reduce the homicide to

manslaughter.” Ortiz, 824 A.2d at 486 (quoting Wayne R. LaFave, Criminal Law

§ 7.01(a) at 704 (3d ed. 2000)). Second-degree murder can be established in cases

in which the evidence demonstrates that the accused acted with wanton recklessness

resulting in the death of one or more persons. See State v. Iovino, 524 A.2d 556, 558

(R.I. 1987). It is well established that “wanton recklessness can supply the element

of malice that is necessary to raise homicide to the level of common-law murder.”

Id. Malice can consist of “an unjustified disregard for the possibility of death or

great bodily harm and an extreme indifference to the sanctity of human life.” State

v. McGranahan, 415 A.2d 1298, 1302 (R.I. 1980).

Voluntary manslaughter requires adequate provocation, which “arises, inter

alia, when the defendant reasonably fears imminent death or serious bodily harm.”

Ruffner, 911 A.2d at 686. This Court has stated that “[h]eat-of-passion manslaughter

exists when: ‘(1) the provocation * * * is so gross as to cause the ordinary reasonable

man to lose his self-control and to use violence with fatal results, and (2) the

defendant * * * is deprived of his self-control under the stress of such provocation

and * * * committed the crime while so deprived.’” Id. (brackets omitted) (quoting

- 16 -
State v. Garcia, 883 A.2d 1131, 1137-38 (R.I. 2005)). “Courts should apply an

objective standard to determine whether an alleged provocation is legally sufficient”

to warrant an instruction on voluntary manslaughter. McGuy, 841 A.2d at 1113. The

element of adequate provocation is satisfied by evidence that establishes a

reasonable fear of imminent death or serious bodily harm. Id. In Ventre, this Court

held that “[i]n light of [the] defendant’s claim of having been set upon by four

assailants, an instruction on manslaughter would have been appropriate.” Ventre,

811 A.2d at 1184. It is well established that “[h]eat of passion may be aroused by

fear and terror as well as anger.” Id. (quoting State v. Fetzik, 577 A.2d 990, 995 (R.I.

1990)).

According to Esdel’s testimony, it is apparent that defendant, the decedent,

and the other individuals in adjacent vehicles began to proceed through the

intersection when everyone came to an abrupt stop. Esdel, who was forced to stop,

rolled down his window, and within seconds saw the decedent exit the vehicle,

wearing a white ski mask covering his entire face, holding a bottle in his right hand,

and making gestures with his other hand, suggesting that he was carrying a pistol. 11

It was at this moment that defendant froze.

11
Although some witnesses at trial disputed whether the decedent’s bottle actually
struck the hood of Esdel’s Jeep, Esdel stated that “I heard it. I felt it inside the
vehicle. [The decedent] hit it pretty hard.” Based on the Pawtucket police BCI unit’s
photographs of defendant’s Jeep, Detective Torres testified that the dent that was
present on the hood of the vehicle was “consistent with witness accounts.”
- 17 -
The defendant immediately was surrounded and outnumbered by a group of

angry individuals, including the decedent and Starlyn—who defendant testified were

peering into his passenger window—and heard them yell “[defendant is] alone, he’s

alone.” The defendant also testified that he could hear people grabbing the door

handles of his locked Jeep, while the decedent shouted, “I’m going to kill you. Come

out the car. Stop the car.” Outnumbered, and in fear of his life, Esdel—who had

ducked down below his passenger window—testified that he reached over and

grabbed the revolver because “[he] didn’t have any space, any room to go forward

* * * [defendant] lift[ed] up [his] right arm, and [he] let off a * * * single shot off

the passenger door.”

Repeatedly throughout his testimony, defendant expressed his belief that his

life was in grave danger and that he had no choice but to fire his weapon, stating:

“[DEFENDANT]: * * * I believe the person on my
passenger door is going to let off a shot. I can’t -- I don’t
-- I can’t see what he’s doing with his hands. * * * So I
didn’t have any * * * room to go forward. So at that time,
my heart’s going fast. I panic. And I lift up my right arm,
and I let off a shot.

“* * *

We note that at least one witness was less than truthful, and directly
contradicted herself during her testimony. We credit defendant’s testimony pursuant
to our caselaw under State v. Tribble, 428 A.2d 1079 (R.I. 1981), that “the very
essence of the defense of self-defense is how the defendant perceived the situation
at the time of the incident in question.” Tribble, 428 A.2d at 1085.
- 18 -
“[DEFENDANT]: * * * I believe my life was at risk. I
believe I had to shoot. I never seen -- every time I see
someone with a ski mask, they want to do something bad,
their intentions -- they want to do something bad. And not
only that, I would see that individual and that queue of
individuals with guns all the time. So I knew my life was
-- I knew my life was at danger.

“* * *

“[DEFENSE COUNSEL]: So just one last question, at the
very moment that you pulled that trigger of that revolver,
did you fear for your life?

“[DEFENDANT]: I was in fear for my life. Yes. I was
under attack. I was seeing someone right next to my
window with a ski mask. I seen him previously with a
firearm. I know him to previously carry firearms. I would
always see him with firearms. Yes.” (Emphases added.)

We are hard-pressed to perceive why an instruction on voluntary

manslaughter was not warranted in this case. The record does not assist us. The

facts are straightforward. It was late evening when the incident occurred. The

defendant, who had to “stop on a dime,” at the intersection when the light already

had turned green, quickly became outnumbered, and testified that the decedent was

wearing a ski mask, carrying a pistol, and making verbal threats (viz., “I’m going to

kill you. Come out the car. Stop the car.”). Esdel testified that—in a matter of

seconds—he responded to these life-threatening circumstances by raising his right

arm and letting off a single shot through his passenger window. The credibility of

- 19 -
this testimony is committed to the jury; and, if believed, this evidence can serve to

negate the element of malice aforethought for second-degree murder.

With respect to the element of “sudden heat of passion,” we conclude that the

evidence in this case, if believed, included more than a scintilla of evidence that

defendant acted in a sudden heat of passion prompted by fear such that a jury could

find defendant was so “deprived of his self-control” under the stress of such

provocation that led him to quickly lean over to this passenger seat, grab the

revolver, and let off a single warning shot. See Ruffner, 911 A.2d at 686 (brackets

omitted); see also § 11-23-1.

At the close of evidence, and prior to charging the jury, the court held an

in-chambers conference, on the record, concerning his jury instructions. 12 At the

outset of his ruling, the trial justice noted “now that [defendant’s] testimony is of

record it is clear to me that a second degree recklessness [instruction] must be given.

Beyond that I will not reach.” The trial justice explained why he intended to instruct

the jury on second-degree murder and made a passing reference to voluntary

manslaughter. In doing so, he referenced defendant’s testimony:

12
During the in-chambers conference, the trial justice assured counsel that their
“objections will serve as objections were you to have come to the bench after my
charge, so that you don’t have to do it again.” In other words, the trial justice stated
that “[a]ny objections [counsel] place and speak upon the record[,] [in chambers,]
will be preserved.”

- 20 -
“I look at the facts and the evidence before me and what I
consider from the defendant’s own testimony: That he was
ducking and bobbing up and down, trying to back up with
his hand on the gearshift and at the same time with his
hand on the weapon, trying to control the steering wheel
and crouching down behind what he thought was a tinted
window on his own to hide, sensors in the vehicle going
off, and firing blindly, as he called it, a warning shot, in
the very direction of where he had seen [the decedent]
beside his passenger window. That is about as reckless the
use of a firearm as one can imagine, and, accordingly, it’s
clear that the second-degree recklessness instruction must
be given.”13 (Emphasis added.)

His ruling on a voluntary manslaughter instruction consisted of the following:

“The instruction that I have drafted, * * * does not need
your comment about adequate provocation. That speaks
to voluntary manslaughter, not second-degree murder.”14

In reviewing defendant’s testimony, the previous violent assault, the recent

threat to kill made by the decedent, and the Grubhub video, which is compelling

evidence, we conclude there was more than minimal evidence placed before the jury

to support a conviction for voluntary manslaughter. See Gautier, 950 A.2d at 414.

The evidence in this case that defendant was in fear for his life coupled with how

13
Legal malice to support a conviction for second-degree murder “can arise from
either an express intent to kill or to inflict great bodily harm, or from wanton
recklessness.” State v. Mattatall, 603 A.2d 1098, 1106 (R.I. 1992).
14
We note that the jury deliberations in this case spanned three days. On the final
day of deliberations, the jury sent the trial justice a note that read: “We are split
between Second degree and Self defense.” However, before the trial justice had an
opportunity to address the note, a verdict for second-degree murder was reached.
- 21 -
quickly these events transpired, and the decedent’s prior hostile history with

defendant—who was known to carry a firearm—are factors that could lead

defendant to fire the weapon in the heat of passion on sudden provocation.

In refusing to instruct on the lesser-included offense, the trial justice abused

his discretion and committed reversible error. The record before us contains more

than minimal evidence, which, if credited by the jury, could have supported a

conviction for voluntary manslaughter.

Exclusion of Testimony

Two of the four issues defendant raises on appeal concern whether the trial

justice’s exclusion of certain witness testimony prejudiced defendant’s claim of

self-defense. First, defendant asserts that the trial justice should have permitted

Esdel’s grandfather to testify about a threat to kill that the decedent made to him

relative to Esdel shortly before the shooting. Second, defendant contends that the

trial justice erred when he precluded the testimony of another witness, and also that

of defendant’s grandfather, both of whom witnessed an altercation between the

decedent and defendant in 2018, during which the decedent pistol-whipped

defendant. Esdel submits that the trial justice’s exclusion of those witnesses

deprived him of relevant evidence to establish his claim of self-defense. We agree

and conclude that the exclusion of defendant’s grandfather from testifying about the

decedent threatening to kill defendant shortly before this incident is reversible error,

- 22 -
but the preclusion of testimony regarding the 2018 pistol-whipping encounter,

although erroneous, amounted to harmless error.

We first reiterate this Court’s longstanding principles of self-defense.

“Under the law relating to self-defense, one may defend
oneself whenever one reasonably believes that he or she is
in imminent danger of bodily harm at the hands of another.
Such a person, having the fear, need not wait for the other
to strike the first blow. However, such a person must use
only such force as is reasonably necessary for his own
protection. The permissible degree of force used in
defense of oneself varies with the particular set of
circumstances in which he or she acts, but in no set of
circumstances may one apply more than that degree of
force necessary to prevent bodily injury.” In re J.S., 91
A.3d 845, 851 (R.I. 2014) (quoting State v. Linde, 876
A.2d 1115, 1129 (R.I. 2005)).

“[T]he very essence of the defense of self-defense is how the defendant perceived

the situation at the time of the incident in question.” Id. (internal quotation marks

omitted) (quoting State v. Urena, 899 A.2d 1281, 1288 (R.I. 2006)). It is this Court’s

longstanding principle “that a defendant who contends that he or she acted in

self-defense is entitled to present evidence” of prior violent acts by the decedent that

were known to the accused “in order to show that the defendant’s fear of injury was

reasonable or to show that the victim was the aggressor.” Id. (quoting State v. Cotty,

899 A.2d 482, 494 (R.I. 2000)). Evidence of prior acts that were known to the

accused is not restricted to defendant’s testimony. See Tribble, 428 A.2d at 1085.

“Once a defendant has satisfied the burden of presenting sufficient evidence to raise

- 23 -
the issue of whether he or she acted in self-defense, it becomes the state’s burden to

disprove [self-defense] beyond a reasonable doubt.” In re J.S., 91 A.3d at 851

(brackets omitted) (quoting State v. Lopez, 943 A.2d 1035, 1045 (R.I. 2008)). Thus,

we have held:

“Evidence of specific acts of violence committed by the
victim against third parties of which acts the defendant
was aware would enlighten the jury on the defendant’s
state of mind at the time of the confrontation. It would
enable them to evaluate the rationality of the defendant’s
actions under the circumstances.” Tribble, 428 A.2d at
1085 (emphasis added).

“[T]he highly probative nature of such relevant evidence, in an appropriate case, far

outweighs any prejudice caused by the admission of such evidence.” Id. at 1084.

“Knowledge of prior violent acts of the victim may weigh
heavily upon the mind of a defendant when, as asserted,
he moved to blunt the aggression of the victim. Indeed,
knowledge of specific instances of violence by the victim
may have a more significant impact on a defendant’s
mental state than any vague awareness of a general
reputation for violence.” Id. (quoting People v. Miller, 349
N.E.2d 841, 847 (N.Y. 1976)).

It is, therefore, this Court’s determination, that the purpose of our rules of evidence

is to “ensure that the trier of fact will have before it all relevant, reliable, and

probative evidence on the issues in dispute.” Id. at 1085.

This Court had the occasion to address our holding in Tribble in State v.

Dellay, 687 A.2d 435 (R.I. 1996), and declared that:

- 24 -
“A defendant who asserts the defense of self-defense is
now entitled to adduce relevant evidence of specific acts
of violence perpetrated by the victim against third parties,
provided however, that the defendant was aware of these
acts at the time of his encounter with the victim. This rule,
however, is not to be implemented without limitation.
* * * Such evidence is only to be considered with regard
to the reasonableness of the defendant’s fear that the
victim was about to inflict bodily harm upon him * * *
[and] the evidence is not to be considered for the purpose
of establishing that he probably acted in conformity, on the
occasion in question, with his prior acts of violence.”
Dellay, 687 A.2d at 438 (brackets and original emphasis
omitted) (emphasis added) (quoting Tribble, 428 A.2d at
1085).

With these principles in mind, we turn to the trial justice’s preclusion of the

grandfather’s testimony about the threat to kill, and the preclusion of eyewitness

testimony with respect to the 2018 pistol-whipping altercation.

“Take Jairo For Dead”

The defendant submits that the trial justice’s decision to preclude Jaime’s

testimony inhibited defendant’s affirmative defense of self-defense and argues that

Jaime’s anticipated testimony of the threat, “Take Jairo for dead[,]” is nonhearsay

evidence and serves as circumstantial evidence to support defendant’s state of mind

at the time of this incident and whether he was in fear of death or serious bodily

harm. The defendant has argued that his grandfather would have testified that a mere

two weeks before this incident, the decedent approached him and verbally threatened

- 25 -
to kill defendant, his grandson. The defendant pointed to Ventre, where this Court

observed:

“[W]hen self-defense is asserted, a defendant has a right
to present not only reputation evidence but specific
instances that tend to prove a victim’s propensity for
violence. This is particularly true when these instances of
violence are known to defendant and would be relevant to
determining his state of mind and whether he would be in
fear of death or serious bodily harm.” Ventre, 811 A.2d at
1182.

Before trial, defendant contended that Jaime’s testimony would have

demonstrated a reputation for violence by the decedent and that this threat was

known to defendant. See Ventre, 811 A.2d at 1182. Had the jury heard Jaime’s

testimony regarding this threat, defendant asserts it would have established that the

decedent declared an intent to kill defendant to his grandfather shortly before the

shooting in this case. This evidence was offered to show that defendant’s fear was

reasonable and that he was under threat of death when he fired a single shot, and

further was evidence that the decedent was the aggressor.

The defendant filed a motion in limine seeking to introduce this evidence

pursuant to Rule 803(3).15 The state objected, arguing that there was “no indication

15
Rule 803 of the Rhode Island Rules of Evidence, “Hearsay exceptions; availability
of declarant immaterial,” states in part:

“(3) Then Existing Mental, Emotional, or Physical
Condition. A statement of the declarant’s then existing
- 26 -
of where this occurred, when it occurred, [or] whether anybody else was present”

and that the statement was inadmissible hearsay. After considering the parties’

arguments, the trial justice initially determined that the evidence would not be

admissible. Although the issue remained open for reconsideration at trial, the trial

justice ultimately excluded the testimony under Rule 403.16 The defendant was

permitted to testify that his grandfather conveyed the threat to him, with no hearsay

objection from the state, and recounted that after his grandfather told him what had

occurred, he was nervous for himself and he was also concerned for his grandfather.

In a midtrial in-chambers conference, on the record, defense counsel

reiterated that as part of defendant’s claim of self-defense, he wished to present two

state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain,
and bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation,
identification, or terms of declarant’s will.”

16
Rule 403 of the Rhode Island Rules of Evidence, “Exclusion of relevant evidence
on grounds of prejudice, confusion, or waste of time,” states:

“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.”
(Brackets omitted.)

- 27 -
additional witnesses, one of which was Jaime. 17 In a pretrial hearing, defense

counsel previously represented that defendant’s grandfather, an eyewitness, would

testify that the decedent approached him and repeated the verbal threat “Take Jairo

for dead” three times. Defense counsel also sought to have Jaime and another

eyewitness testify as to the 2018 pistol-whipping incident. The state objected and

argued that defendant could offer this testimony but that these witnesses could only

offer opinion evidence about the decedent’s reputation for violence, and could not

testify about specific acts. The state further objected, contending that although

defendant may testify to any specific act that is relevant to his reasonable fear, it

must be relative to “[defendant’s] subjective reasonable fear on the night in

question.” The trial justice excluded defendant’s grandfather from testifying on Rule

403 grounds. He determined:

“THE COURT: * * * Clearly the defendant was not
present to hear [the decedent] pass the alleged comment to
Jaime Galva.

“* * *

“I’m not about to permit others to take the stand and recite
more of what was scarcely permissible, if at all, the first
time, from the defendant’s testimony. It would, in any

17
Defense counsel sought to introduce Rafael Acevedo (Acevedo), a witness who it
was anticipated would offer his observations regarding the alleged 2018
pistol-whipping incident. Acevedo’s testimony and the court’s ruling will be
addressed infra.

- 28 -
event, be entirely inappropriate even if the evidence which
defense counsel now seeks to be admitted were marginally
relevant. * * * It should be disallowed as it would
undoubtedly lead to mini trials during the State’s
anticipated rebuttal * * *.”

And further stated:

“[A]side from admissibility problems, any such evidence
would, under Rule 403, * * * if somehow marginally
relevant, [be] * * * substantially outweighed by the clear
danger of unfair prejudice, confusion and/or misleading
the jury.

“The defendant’s objections to these witnesses [(Jaime
Galva and Rafael Acevedo)] is sustained. They shall not
testify.”

We deem this error and are hard-pressed to discern, on the basis of this ruling,

the grounds upon which this testimony was “scarcely permissible, if at all * * * from

the defendant’s testimony.” Simply put, defendant’s grandfather, to whom the threat

to kill was made, should have been permitted to testify as a defense witness about a

specific act perpetrated by the decedent and conveyed to his grandson. We reject

the state’s argument that Jaime’s anticipated testimony was not admissible as

hearsay, or under Rule 404 of the Rhode Island Rules of Evidence,18 or that it “would

18
Rule 404(a)(2) of the Rhode Island Rules of Evidence, states:

“(a) Character Evidence Generally. Evidence of a
person’s character or a trait of the person’s character is not
admissible for the purpose of proving that he or she acted
in conformity therewith on a particular occasion, except:
- 29 -
have been cumulative” or that the exclusion of Jaime’s testimony amounts to

harmless error.

Although the trial justice did not exclude this evidence as hearsay, we briefly

address the state’s contention. Rule 801(c) of the Rhode Island Rules of Evidence

defines hearsay as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” R.I. R. Evid. 801(c); see also United States v. Bellinger, 652 F. App’x

143, 147-48 (4th Cir. 2016). A statement “does not violate the hearsay rule [if] the

statements and evidence are not offered to prove the truth of the matter asserted * * *

but merely as a basis for the defendant’s state of mind.” Tribble, 428 A.2d at 1085

n.8. “A statement in which a decedent threatens a defendant charged with murder

bears on the defendant’s state of mind and is * * * relevant in determining whether

a killing was second degree murder, manslaughter, or self-defense.” Bellinger, 652

F. App’x at 147 (internal quotation marks and brackets omitted) (quoting United

“(2) Character of Victim. In cases in which the
defendant has raised self-defense, evidence of a
pertinent trait of character of the victim of the crime
offered by an accused, or by the prosecution to rebut
the same, or evidence of a character trait of
peacefulness of the victim offered by the
prosecution to rebut evidence that the victim was
the first aggressor[.]” (Emphasis added.)

- 30 -
States v. Cline, 570 F.2d 731, 734-35 (8th Cir. 1978)). This testimony about such a

threat is nonhearsay and is admissible.

The trial justice rejected this evidence on Rule 403 grounds as it “would

undoubtedly lead to mini trials during the [s]tate’s anticipated rebuttal * * *.” We

disagree. This is the defendant’s trial. The defendant is accused of murder and has

raised the defense of self-defense. The fact that the decedent repeated a threat to kill

defendant to his grandfather three times just two weeks before this incident was

clearly relevant to the defense of self-defense. The trial justice’s assessment that

this evidence was marginally relevant is incorrect. This is highly relevant proof in

a self-defense case and not subject to exclusion as overly prejudicial where the

defendant has asserted self-defense. See Tribble, 428 A.2d at 1085; see, e.g., 2 John

H. Wigmore, Evidence in Trials at Common Law § 247 at 54 (3d ed. 1940)

(“Defendant in Homicide: (b) Threats by the Deceased[:] * * * [T]hreats of violence

against the defendant, uttered by the deceased, and brought to the knowledge of the

defendant, are relevant to show his belief of impending danger from the deceased.”);

id. at 58 (“[S]pecific threats of violence have a more decided bearing on the

probability of aggression than mere dangerousness of character.”); McCormick’s

Handbook of the Law of Evidence § 295 at 697, 700 (2d ed. 1972) (“Declarations of

Mental State: (b) Declarations of Intention Offered to Show Subsequent Acts of

Declarant[:] * * * Homicide and assault cases present another special problem. If

- 31 -
the accused claims self-defense, and threats of the victim were known to the accused,

these threats are admissible to prove the accused’s apprehension of danger and its

reasonableness.”).19

We next turn to the state’s contention that the exclusion of this proffered

testimony was harmless error, and that “[e]ven if the trial court’s ruling was in error,

it does not amount to reversible error” because “[t]he improper exclusion of evidence

* * * is reversible error only if the excluded evidence would have had a controlling

influence * * *.” (Quoting State v. Burke, 522 A.2d 725, 730 (R.I. 1987).) In Burke,

this Court stated that it will “not mandate a new trial unless the preclusion of

testimony causes substantial injury to the party seeking its admission,” or in other

words, “whether the rejected evidence reasonably could have altered the result.”

Burke, 522 A.2d at 730. Our careful review of this record leads us to conclude that

evidence of a recent threat to kill defendant, made to his grandfather, qualifies as a

controlling influence on a material aspect of the case—whether defendant acted in

self-defense. Under the totality of the circumstances, we considered the following

facts that were presented to the jury, and conclude that these facts would have

influenced the jury’s deliberations if Jaime was permitted to testify at trial: (1) a

19
We need not reach the state’s argument that this evidence was cumulative because
the threat was made to Jaime, an eyewitness. The threat was relevant to defendant’s
state of mind during the incident because defendant testified that he was aware of
the decedent’s threat to kill him.
- 32 -
threat, indicating defendant was a dead man, was made to defendant’s grandfather

merely weeks before the incident; (2) the threat was made by an individual with

whom defendant shared a confrontational past; and (3) the events that unfolded at

the traffic light, where defendant consistently testified to being in fear of his life,

hearing the decedent say, “I’m going to kill you. Come out the car. Stop the car.”

As we have held, a defendant who posits the defense of self-defense “is

entitled to present evidence that the victim had a reputation for being violent in order

to show that the defendant’s fear of injury was reasonable or to show that the victim

was the aggressor.” In re J.S., 91 A.3d at 851 (emphasis added) (quoting Cotty, 899

A.2d at 494). This evidence is not limited to a reputation for violence. In Ventre,

we held “that when self-defense is asserted, a defendant has a right to present not

only reputation evidence but specific instances that tend to establish a victim’s

propensity for violence.” Ventre, 811 A.2d at 1182. “This is particularly true when

these instances of violence are known to defendant and would be relevant to

determining his state of mind and whether he would be in fear of death or serious

bodily harm.” Id.

There is nothing in our caselaw that limits this evidence to the testimony of

the accused, who, of course, is not required to testify. Eyewitnesses or victims of

these acts of violence of which a defendant was aware may testify, subject to

limitation within the discretion of the trial justice. See Tribble, 428 A.2d at 1085.

- 33 -
Following our holding in Tribble, the Court does not limit the evidence of specific

acts of violence committed against third parties to be admissible only through the

testimony of the defendant. See id. at 1083. Rather, Tribble is broader, observing

that “evidence of such awareness may be highly relevant to the question of the

reasonableness of the defendant’s fear of imminent bodily injury at the hands of the

victim.” Id. Because a reasonable jury could have concluded that Jaime’s testimony

was a factor in deciding whether defendant’s fear of injury was reasonable, thereby

supporting defendant’s claim of self-defense, its exclusion is reversible error.

2018 Pistol-Whipping Incident
At trial, defendant testified about an incident that occurred in June 2018,

which involved the decedent, the decedent’s friend Sleither, and a firearm.

According to defendant, the June 2018 incident involved an altercation with the

decedent and Sleither, in which he was beaten by the decedent with a firearm.20 The

defendant argues on appeal that the trial justice erred in precluding the testimony

from two eyewitnesses to the June 2018 pistol-whipping incident.

While defendant acknowledges that under State v. Lomba, 37 A.3d 615 (R.I.

2012), a court’s decision to preclude testimony is left to the discretion of the trial

20
The defendant also testified that his stepfather was struck with the pistol when he
intervened. We note, of course, had defendant’s stepfather—another alleged victim
of the decedent’s violence—been offered as a witness at trial, his testimony also
would have been admissible.
- 34 -
justice, he asserts that the trial justice erred by excluding the testimony of Rafael

Acevedo (Acevedo) and defendant’s grandfather, both of whom witnessed the June

2018 pistol-whipping incident. Lomba, 37 A.3d at 621. The defendant further

submits that the testimony of Acevedo and Jaime would have evidenced “a traumatic

act of violence against [defendant]” and goes “directly to the jury’s assessment of

the reasonableness of [defendant’s] actions on October 31, 2020,” and that,

therefore, such error warrants reversal. (Emphasis omitted.)

In determining whether the trial justice abused his discretion by excluding the

testimony related to the 2018 pistol-whipping incident, we apply the same analysis

addressed in our previous discussion regarding Jaime’s anticipated testimony of the

verbal threat. We begin with considering whether the trial justice’s decision to

exclude the 2018 pistol-whipping incident testimony was harmless error. See Burke,

522 A.2d at 730. As we have stated, this Court will “not mandate a new trial unless

the preclusion of testimony causes substantial injury to the party seeking its

admission.” Id. Finally, we also consider whether the rejected evidence “could have

altered the result.” Id.

During the previously referenced in-chambers conference, the trial justice

denied defendant’s request to present Acevedo and Jaime because defendant testified

to the incident and admitted that he never reported the 2018 pistol-whipping incident

to the police, and that “[defendant] said more than once that he sustained a scar on

- 35 -
his forehead as a result of the pistol-whipping, and [the state’s prosecutor] did not

even attempt to broach that assertion.” The trial justice explained:

“THE COURT: * * * The defendant intends to present
Rafael Acevedo and Jaime Galva in an effort to bolster the
defendant’s testimony regarding his state of mind relative
to his self-defense claim at the time of the [October 31,
2020] incident. The [s]tate will then understandably
expect to be allowed to counter much of that evidence and
turn the defense state of mind testimony through these
witnesses into a mini trial of events which preceded the
October 31st, 2020 shooting * * *. I will not permit that.

“* * *

“THE COURT: * * * I’m not about to permit others to take
the stand and recite more of what was scarcely
permissible, if at all, the first time, from the defendant’s
testimony. It would in any event, be entirely inappropriate
even if the evidence which defense counsel now seeks to
be admitted were marginally relevant. * * * It should be
disallowed as it would undoubtedly lead to mini trials
during the [s]tate’s anticipated rebuttal * * *.”

Thereafter, the trial justice precluded this evidence on Rule 403 grounds.

Although we deem this ruling an abuse of discretion, and declare that this evidence

is admissible on remand, we are satisfied that in the context of this case, its omission

was harmless error. The record discloses that the trial justice failed to consider that

the state conceded to defendant testifying, under Rule 404(b), arguing that Esdel

could testify about the 2018 pistol-whipping incident “because it is directly relevant

to his * * * subjective reasonable fear on the night in question.” Based on the state’s

- 36 -
concession, and in light of our discussion of Tribble herein, it is our view that the

testimony of these eyewitnesses to the 2018 pistol-whipping altercation was

admissible, subject to limitation by the trial justice. Again, evidence of acts of

violence by the decedent perpetrated upon defendant is highly relevant on the issue

of self-defense, and we fail to see that the possibility of rebuttal by the state

substantially outweighs its probative force.

In State v. Sinapi, 295 A.3d 787 (R.I. 2023), we held that “[h]armless error is

recognized to be an error that in the setting of a particular case is so unimportant and

insignificant that it may, consistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the conviction.” Sinapi, 295 A.3d

at 809 (brackets omitted) (quoting State v. Terzian, 162 A.3d 1230, 1244 (R.I.

2017)).

We therefore conclude that the exclusion of these witnesses does not carry

that same “controlling influence” set forth in Burke. See Burke, 522 A.2d at 730. As

this Court stated in Lomba, the decision to preclude testimony is left to the discretion

of the trial justice. Lomba, 37 A.3d at 621. After carefully reviewing the record, we

are of the opinion that this evidence is admissible, but its exclusion in the context of

this case amounts to harmless error.

- 37 -
The WhatsApp Video
“Reliability is the linchpin of the law of evidence.” State v. Mulcahey, 219

A.3d 735, 739 (R.I. 2019). Pursuant to Rule 901 of the Rhode Island Rules of

Evidence, authentication “is a threshold requirement to establishing the reliability of

a matter of evidence.” Id. Rule 901(a) provides in part:

“The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in
question is what its proponent claims.” R.I. R. Evid.
901(a).

We note at the outset that “[t]he burden of proof for authentication, however,

is slight.” Mulcahey, 219 A.3d at 739 (quoting State v. Adams, 161 A.3d 1182, 1199

(R.I. 2017)). Moreover, we have further held that it is the trial justice who “must

decide whether there is enough support in the record to conclude that it is ‘reasonably

probable’ that the evidence is what its offeror proclaims it to be.” Id. (quoting Adams,

161 A.3d at 1199). “If so, then the evidence’s persuasive force is for the jury to

decide.” Id. (brackets omitted) (quoting Adams, 161 A.3d at 1199). Therefore “a

trial justice need not find that the evidence is necessarily what the proponent claims,

but only that there is sufficient evidence that the jury ultimately might do so.” Id.

(emphasis added) (quoting Adams, 161 A.3d at 1199).

This Court has had limited occasions to address issues of authenticity in the

context of various electronic communication platforms. In O’Connor v. Newport

- 38 -
Hospital, 111 A.3d 317 (R.I. 2015), we addressed, inter alia, the issue of

authentication with respect to a printed copy of an e-mail communication. See

O’Connor, 111 A.3d at 323. More recently, we confronted the issue of the

authenticity of a text message in Mulcahey, and we acknowledged the “fundamental

difference between text messages, which generally are sent to one person known to

the sender, and an e-mail.” Mulcahey, 219 A.3d at 740. At the time Mulcahey was

decided, the issue of authenticating a text message was a matter of first impression

and we noted that “Rhode Island [R]ule [901] mirrors the federal rule * * *.” Id. at

739, 740. Accordingly, we turned to federal caselaw for guidance. Id. at 740.

For example, we noted that United States v. Davis, 918 F.3d 397 (4th Cir.

2019), “addressed the use of text messages and held that authentication of text

message evidence under Rule 901 of the Federal Rules of Evidence requires ‘only a

prima facie showing that the true author is who the proponent claims it to be.’”

Mulcahey, 219 A.3d at 740 (quoting Davis, 918 F.3d at 402). We further noted that

“the prima facie showing may be accomplished largely by offering circumstantial

evidence that the documents in question are what they purport to be.” Id. (quoting

Davis, 918 F.3d at 402).

The issue before us concerns communications and observations of a social

media post, a video, which was posted on the social media/electronic communication

- 39 -
platform known as “WhatsApp.”21 The WhatsApp video was retrieved by the state

and disclosed to the defense when it requested the decedent’s telephone records.

Although our caselaw does not directly align with the WhatsApp social media

platform, we are satisfied that the characteristics of a WhatsApp video closely

resemble that of a text message, rather than a printed copy of an e-mail or the e-mail

itself. See Mulcahey, 219 A.3d at 740; Cf. O’Connor, 111 A.3d at 322-25.

Accordingly, we look to Mulcahey for guidance on the issue of authentication

concerning the WhatsApp video. See Mulcahey, 219 A.3d at 739-40.

At trial, it was argued that the WhatsApp video in question places a gun in the

decedent’s hand on the day he died. Wilka Rosario (Wilka)—who considered the

decedent “like a brother”—testified and gave conflicting testimony. She was not

present at the scene of the shooting, but testified to the events leading up to the

moment she received a phone call reporting that the decedent had been shot. She

recited that earlier in the evening on the night the decedent was killed, she threw a

surprise birthday party for the decedent. The birthday party began around “7:10,

7:15 or so[,]” and ended around 9:45 p.m. At approximately 10:40 p.m., Wilka

21
It is our understanding that “WhatsApp started as an alternative to [Short
Message/Messaging Service (SMS)]. [WhatsApp] now supports sending and
receiving a variety of media: text, photos, videos, documents, and location, as well
as voice calls.” See WhatsApp, About Us, https://www.whatsapp.com/about (last
visited July 9, 2024).

- 40 -
received a call from Jeremy, who told her that the decedent had been shot and that

they were headed to the hospital.

The defendant argues to this Court that, on questioning by the trial justice

outside the presence of the jury, the authenticity of the WhatsApp video was

acknowledged by Wilka, who had “seen a video” of the decedent brandishing a gun

on a WhatsApp video, but vaguely asserted that this was “[a] couple days before”

the shooting and that “[i]t wasn’t the day of the party at all.”22 She also provided a

detailed description of the decedent waving a gun around in the video, thus

identifying the decedent “singing a song, the lyrics to the rap.” This was the only

time Wilka observed a video of the decedent brandishing a firearm which she

testified as having been taken at the decedent’s home. 23

22
Prior to the sidebar that ensued, Wilka confirmed her telephone number during
cross-examination and further represented that she did not give that telephone, with
that telephone number, to anyone else on the night of October 31, 2020. Wilka later
testified that the telephone number which she confirmed belonged to her was the
same telephone number associated with her WhatsApp account.
23
During voir dire, Wilka testified that the video, which was posted as a status, “stays
24 hours, and if you decide to delete it you can delete it, but the most it stays * * *
is 24 hours.” Wilka further testified that she did not watch the entire video because
“like, Snapchat [(another social media platform)], you can record minutes or just a
couple of seconds * * * or you just swipe off and go to the next person.”

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Significantly, this disclosure was made after Wilka denied seeing the video

on cross-examination and after counsel’s offer of proof, which led to a voir dire

examination by the trial justice. The defendant’s offer of proof provided:

“[DEFENSE COUNSEL]: * * * Our expert who reviewed
the phone data extraction can show that [Wilka] received
two messages on that evening that had [the decedent]
brandishing firearms. She received them. I have the times,
and she received them at that telephone number.”
(Emphasis added.)

The record also reflects that there were other videos extracted from the

decedent’s cellphone the day he was killed that were admitted into evidence and,

according to defendant, “were precisely as they purported to be on the extraction of

the decedent Rosario’s time-stamped phone” that was produced by the state. In

addition to Wilka’s testimony, defense counsel urged the trial justice to allow the

state’s witness, Jonathan Galva (Jonathan) to be cross-examined about “a recorded

interview where [Jonathan] expressly states he viewed, on the night in question * * *

a video that [the decedent] sent to him brandishing a firearm, singing and rapping.”

The court responded with, “what does that have to do with seeing some video that

you cannot establish by way of authentication? You don’t know when it was taken,

you don’t know if it was received, and you don’t even [know] who sent it.” Defense

counsel argued that he could prove that the WhatsApp video was sent by the

decedent to Jonathan, and further prove that Jonathan read the message, viewed the

- 42 -
video, and admitted during a recorded interview to viewing the WhatsApp video.

The trial justice was not persuaded by defense counsel’s argument and excluded this

evidence, stating, “What does [the video] have to do with seeing weapons on the

street during the event in question? Some video taken God knows when.”24

During trial, a sidebar commenced, and the court revisited the admissibility

issue concerning the WhatsApp video. Based on defendant’s testimony—he

testified on both direct and cross-examination that he observed the decedent with a

firearm on the evening of the incident—defense counsel submitted that the

WhatsApp video was admissible as it was relevant for the jury to consider whether

the decedent possessed a firearm on the evening of the incident and establish the

decedent’s state of mind at the moment the decedent set upon defendant. The state

conceded that “defendant is allowed to testify about the specific acts of the victim

relative to a state of mind on the night in question” and that it is relevant in relation

to the issue of self-defense. (Emphasis added.) However, the state nonetheless

maintained that because defendant did not testify that “he saw [the WhatsApp

video], [or] what platform he saw [this] video[] on,” or what was depicted in that

video, defendant’s testimony “was not * * * close to what is necessary to get in [the

WhatsApp video] * * *.”

24
When the video was produced is not determinative on the question of authenticity;
the relevant factor is when the video was published. If it was published at or close
to the date of the incident, it is admissible.
- 43 -
The trial justice determined that defendant’s testimony did not elicit a

sufficient basis to authenticate the WhatsApp video under Rule 901. He concluded

that the WhatsApp video was inadmissible, stating:

“[The defendant] could have gotten on the stand and
spoken about it; he did not. We don’t know when these
videos were taken. We don’t know who took them. We
don’t know if they can even be authenticated. We don’t
even know where they were taken.

“Regarding Wilka * * * she said she might have seen it
two days before. We don’t know if [the WhatsApp video
was] altered. [Wilka] didn’t even know if [the decedent]
had a real gun * * * or a toy gun. * * * Beyond that, she
did not have any other good information relative to the
[WhatsApp] video.”

We recognize that the evidence as to authenticity in the case at bar is

distinguishable from the facts presented in Mulcahey. See Mulcahey, 219 A.3d at

739-41. In Mulcahey, the victim “testified that defendant personally provided her

with his cell phone number about a year before the assault”; that the victim and

defendant had exchanged multiple text messages prior to the date of the assault; and

that the text that was produced at trial was apologetic in nature, and sent within hours

of the assault. Id. at 741. Under those circumstances, we concluded that “sufficient

circumstantial evidence [established] that the defendant authored the text messages.”

Id. Here, by contrast, there is insufficient testimony in the record indicating that

either party properly laid a foundation to authenticate the WhatsApp video. Clearly,

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a video of the decedent brandishing a firearm on or close to the date he was killed is

highly relevant to whether the decedent had a firearm on the night in question. Given

the significance of this evidence to both sides in this case, it must be authenticated

to be deemed admissible.

Having carefully reviewed the record before us, we are of the opinion that, if

properly authenticated as to having been published by the decedent within a

reasonable time before the shooting, the video should be admissible on remand

because it potentially can serve as circumstantial evidence that the decedent was

armed on the night of the incident. The defendant shall be afforded a full opportunity

to present evidence, including expert witness testimony, if necessary, to establish the

authenticity of the video.

Conclusion
For the reasons stated herein, we hold that there was sufficient evidence from

which a jury could have found the defendant guilty of the lesser-included offense of

voluntary manslaughter and that the trial justice committed reversible error in

refusing to so instruct. We further conclude that the trial justice abused his discretion

by precluding the testimony of Jaime Galva at trial. We deem the trial justice’s

decision to exclude witnesses from testifying about the 2018 pistol-whipping

incident as harmless error, and we direct that the issue of the authenticity of the

WhatsApp video be fully litigated in advance of the new trial.

- 45 -
Accordingly, we vacate the judgment of the Superior Court. The record in

this case is remanded to the Superior Court for a new trial on the charge of

second-degree murder and the lesser-included offense of manslaughter.

- 46 -
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. Jairo Esdel.

No. 2022-304-C.A.
Case Number
(P1/20-3310AG)

Date Opinion Filed July 15, 2024

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Robert D. Krause

For State:

Sean Paul Malloy
Attorney(s) on Appeal Department of Attorney General
For Defendant:

Aaron L. Weisman, Esq.

SU-CMS-02A (revised November 2022)