State v. Chandanoeuth Hay

Supreme Court

No. 2023-235-C.A.
(P1/19-6260AG)

State :

v. :

Chandanoeuth Hay. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2023-235-C.A.
(P1/19-6260AG)

State :

v. :

Chandanoeuth Hay. :

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

OPINION

Justice Robinson, for the Court. The defendant, Chandanoeuth Hay,

appeals from a June 9, 2023 judgment of conviction and commitment following a

jury trial held in the Providence County Superior Court. The defendant was charged

with ten counts stemming from a shooting that took place on June 26, 2018 in

Providence, Rhode Island. The jury found him guilty of all ten counts.

On appeal, defendant presents four grounds for reversal of his conviction. He

asserts that the trial justice erred in (1) allowing a police sergeant to offer a lay

opinion; (2) denying a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978);

(3) allowing a witness to testify about “unrelated shootings;” and (4) admitting

certain photographs of defendant.

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.
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I

Facts and Travel

The criminal prosecution giving rise to this appeal arose from a series of

events that led to the fatal shooting that took place in the immediate vicinity of 100

Lowell Avenue in Providence in the early morning hours of June 26, 2018. That

shooting resulted in the tragic death of David Page.

The genesis of this case began with an unrelated police investigation into the

activities of one Kennedy Terrero, which eventuated in his arrest. After his arrest,

Mr. Terrero cooperated with the police in the investigation of the murder of Mr.

Page. That investigation eventually resulted in the police concluding that defendant

and his codefendant, Jaythan Hang, were involved in that murder.1

On December 9, 2019, a grand jury indicted defendant on ten counts: one

count of first-degree murder; one count of conspiracy; two counts of assault with a

dangerous weapon; three counts of discharging a firearm while committing a crime

of violence; one count of discharging a firearm from a motor vehicle, thereby

1
We preliminarily note that defendant had moved pursuant to Rule 14 of the
Superior Court Rules of Criminal Procedure to sever his trial from that of the
codefendant, Jaythan Hang. The trial justice denied said motion; as a result, the
codefendants were tried in the same trial. It should be emphasized, however, that
this opinion deals only with the appeal of defendant Chandanoeuth Hay.
Nevertheless, for the sake of clarity, it will be necessary for us from time to time to
make reference to codefendant, Jaythan Hang. For the same reason, we shall from
time to time refer to Mr. Hay and Mr. Hang as the codefendants.
-2-
creating a substantial risk of death or serious personal injury; one count of carrying

a firearm without a license; and one count of possession of a firearm after a

conviction of a crime of violence.

On August 30, 2022, defendant filed several pretrial motions.2 Hearings on

those motions were held on August 31, 2022 and on several dates in September of

that year. Before us on appeal are the following pretrial motions which the trial

justice denied: defendant’s motion to suppress certain tangible evidence; defendant’s

motion in limine to exclude certain testimony from Sergeant Jonathan Primiano;

defendant’s motion in limine to exclude testimony from “the cooperating witness,

Kennedy Terrero, or any other witness regarding alleged prior conduct of this

Defendant and his codefendant involving the use of firearms;” and defendant’s

motion in limine to exclude photographic evidence and/or testimony regarding

alleged gang involvement and/or defendant’s membership in a gang. We shall

discuss each of those motions in Part I.A, infra.

On September 12, 2022, jury selection began. Thereafter, a trial took place

over the course of several weeks in September and October of 2022. On October 4,

2022, the jury began deliberations, at the conclusion of which it returned a guilty

verdict on all counts. The defendant subsequently filed a motion for a new trial; and,

2
Although defendant filed several pretrial motions, we discuss in this opinion
only those whose denial has been challenged on appeal.
-3-
on November 1, 2022, there was a hearing on that motion as well as on a motion for

judgment of acquittal (on which the trial justice had reserved). In due course, the

trial justice denied both motions.

On February 13, 2023, defendant was sentenced as follows: two life

sentences, to be served consecutively to each other; three concurrent six-year

sentences, suspended with probation; one concurrent ten-year sentence, to be served;

one concurrent ten-year sentence, suspended with probation; one concurrent

five-year sentence, to be served; two consecutive ten-year sentences, suspended with

probation; and a ten-year consecutive sentence as an habitual offender. The

defendant filed a timely, albeit premature, notice of appeal on February 13, 2023.

We relate below the salient aspects of both the pretrial hearings and the trial

itself.

A

The Pretrial Motions

In his “First Motion in Limine,” defendant contended that the state should

have been barred from “introducing photographic evidence and/or testimony in its

case in chief regarding gang involvement and/or [defendant’s] membership in a gang

* * *.” (Internal quotation marks omitted.) The defendant asserted that such

evidence had no relevance under Rules 401 and 402 of the Rhode Island Rules of

Evidence. The defendant further argued that the evidence should also have been

-4-
excluded pursuant to Rule 403 of the Rhode Island Rules of Evidence because any

probative value that the evidence might have was substantially outweighed by the

danger of unfair prejudice. After having heard the parties’ arguments, the trial

justice denied defendant’s motion, finding that the photographs could be admitted

into evidence to “demonstrate the close relationship between Mr. Terrero and

[defendant].” However, the trial justice specifically barred Mr. Terrero from

testifying as to “the meaning of any gang signs * * * as depicted in that photograph

or any other photographs.” She further added that she was “inclined to offer” a

limiting instruction “as it relates to gang affiliations and group affiliations.”

In defendant’s “Fourth Motion in Limine,” he moved to preclude Mr. Terrero

from providing testimony regarding the “alleged prior conduct of * * * Defendant

* * * involving the use of firearms” in previous shootings. It was defendant’s

contention that such evidence was inadmissible under Rule 404(b) of the Rhode

Island Rules of Evidence and that it was also inadmissible under Rule 403. In ruling

on the motion, the trial justice indicated that testimony concerning the “alleged prior

conduct” would be admissible under Rule 404(b), although she added that it would

be subject to a limiting instruction. She stated that the evidence would tend to be

probative of “the motive, the opportunity, the intent of the defendant’s preparation,

having access to firearms, absence of mistake or accident involving firearms

continually being used.” The trial justice did exclude certain evidence relating to an

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arrest of a different individual, stating that said evidence would constitute “more

guilt by association than true 404(b) evidence * * *.”

The defendant’s “Fifth Motion in Limine” sought to preclude Sgt. Primiano

from testifying that a vehicle depicted in certain surveillance video footage was

consistent with an Audi. It was defendant’s argument that, in view of the provisions

of Rule 701 of the Rhode Island Rules of Evidence, Sgt. Primiano’s testimony would

constitute impermissible lay opinion. Moreover, defendant contended that, if the

state were to introduce that testimony as expert testimony, a Daubert3 hearing would

be required. Prior to rendering her decision on the motion, the trial justice ruled that,

before he testified before the jury, there would be a voir dire examination of Sgt.

Primiano.

In the just-referenced voir dire hearing, Sgt. Primiano testified that he was a

member of the Digital Forensic Unit of the Providence Police Department. He stated

that, within that unit, his particular area of concentration was “[c]omputer and video

forensics.” Sergeant Primiano testified as to his extensive training in seizing,

documenting, and analyzing video evidence. However, he acknowledged that he did

not consider himself to be an expert in the identification of the make and model of

vehicles.

3
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
-6-
Turning to the instant case, Sgt. Primiano testified that he became involved in

the investigation of the murder of Mr. Page in June of 2018. He stated that he had

seized video footage from “Plainfield Meat Market and Wishy Washy Laundromat.”

He added that Detective Michael Otrando was with him when he initially viewed the

footage. Sergeant Primiano further testified that, when viewing the video, he noticed

that there was a “suspect vehicle” involved. He further stated that Det. Otrando

showed him “the two vehicles that he was specifically interested in, the first being a

Cadillac, and the second being a dark vehicle that he believed to be an Audi at the

time.” It was Sgt. Primiano’s testimony that, while he had not performed a formal

analysis, he had agreed with Det. Otrando that, based on his own experience, the

second vehicle looked like an Audi.

Sergeant Primiano testified that he conducted another review of the footage

after the prosecution contacted him about performing a “re-analysis” of the video

footage. He further testified to the “smaller details” that he generally examines when

conducting a frame-by-frame analysis, such as the “shape of taillights, shape of

windows, location of the license plate, * * * rims on the vehicle” as well as “any

other identifiers that would assist [him] in confirming [his] suspicion * * * that it

was an Audi.” He added that he compared images from the video surveillance to

images that he had obtained from the Internet “as well as images [which he] had

obtained of the vehicle which was seized during this investigation.” Sergeant

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Primiano testified that, based on all these factors, it was his opinion that the “suspect

vehicle in th[e] video footage” was “consistent with an Audi A6.”

On cross-examination, Sgt. Primiano stated that he had used “Video Focus

Pro software”4 to further examine the footage. He testified that this software gave

him the ability to view the video at a rate of thirty frames per second. Sergeant

Primiano also acknowledged that, when conducting the Internet search of vehicles,

he only sought pictures of 2006 Audis. He further acknowledged that he did not

make “any comparisons of any other type of vehicle.” Sergeant Primiano

additionally indicated that he had not enhanced or clarified the video.

The trial justice ultimately denied defendant’s “Fifth Motion in Limine.” In

doing so, she relied on this Court’s opinion in State v. Doyle, 235 A.3d 482 (R.I.

2020).5 In noting the similarity between the two cases, the trial justice stated: “Here,

and just like in the [Doyle] case, the testimony or the conclusion, the opinion, the lay

4
With respect to the “Video Focus Pro software,” Sgt. Primiano testified as
follows: “Video Focus Pro is a proprietary software, a forensic tool used by video
forensic analysts to analyze video evidence. I received a one-week training by
Resolution Video in the use of that software and ongoing trainings through webinars
with that software.”
5
In State v. Doyle, 235 A.3d 482 (R.I. 2020), this Court held in pertinent part
that a state police detective who had an established background in accounting and
experience as a fraud examiner was properly permitted to provide lay opinion
testimony regarding certain expenditures that were reflected on a credit card
statement. Doyle, 235 A.3d at 498, 500-01.
-8-
opinion of the police witness is based upon their perceptions.” She also noted that

Sgt. Primiano would be subject to cross-examination.

In addition to the just-summarized motions in limine, defendant also filed a

“Motion to Suppress Tangible Evidence,” which sought suppression of “all evidence

seized pursuant to the July 12, 2018 Search Warrant” and simultaneously moved for

an evidentiary hearing pursuant to Franks v. Delaware. In that motion, defendant

cited to Franks v. Delaware, 438 U.S. 154 (1978), and he argued that the affidavit

in support of the search warrant contained “materially false statements, made

knowingly and intentionally, or with reckless disregard for the truth.” Specifically,

at the pretrial hearing on the motion, defense counsel directed the court’s attention

to page one of the affidavit in support of the search warrant, wherein Detective

Theodore Michael stated: “As Detectives Otrando and Sullivan began the

investigation into this homicide, video surveillance at the time of the incident

showed that the suspect vehicle was that of a Black Audi with heavy tint around all

the windows.” Defense counsel also noted the following additional statement in the

affidavit: “As Detectives Otrando and Sullivan further investigated this vehicle, the

vehicle was observed to be the same vehicle seen in the video footage related to the

homicide.” Defense counsel contended that it was not possible to identify the

vehicle as being a black Audi.

-9-
The trial justice denied both the motion for a Franks hearing and the motion

to suppress that incorporated defendant’s Franks argument. The trial justice found

that, while there could have been an “overstatement” by Det. Otrando, defendant had

failed to prove that the affiant, Det. Michael, had any intent to deceive the court or

that he “proceeded with reckless disregard for the veracity of the statements made

when he conveyed Detective Otrando’s belief * * *.” The trial justice also found

that, even if the just-referenced information had not been included in the affidavit,

its absence would not “alter in any way the probable cause analysis as [to] the

involvement of the black Audi, which comes directly from the so-called cooperating

witness, whom we now know to be Leslie Pereira.”

B

The Trial

There follows the pertinent testimony of those trial witnesses whose testimony

we deem relevant to our resolution of the issues on appeal.

1. The Testimony of Eddie Lee

The state called Eddie Lee as one of its first witnesses. Mr. Lee testified that,

in June of 2018, he would on occasion stay at the residence of his sister, Tiqua Pona,6

which was located at 100 Lowell Avenue in Providence. Mr. Lee testified that,

6
For the sake of clarity, we shall at times refer to the members of the Pona
family by their first names. No disrespect is intended.
- 10 -
during the “late-evening hours of June 25th of 2018 going into the early-morning

hours of June 26th, 2018,” he was at the 100 Lowell Avenue residence with his

mother, Carol Pona, and his sisters, Tiqua and Tonia Pona; he added that, as a result

of a fight, Tiqua “kick[ed] [him] out” of her residence.

Mr. Lee further testified that his mother decided to leave with him and that

she called her friend, David Page, who arrived at 100 Lowell Avenue not long

thereafter. Mr. Lee stated that Mr. Page arrived at the residence in his Cadillac,

which he was driving and “blasting some loud music * * *.” It was his recollection

that he got in the back seat of Mr. Page’s Cadillac when it arrived and that the music

was continuing to play. He added that his mother was in the passenger seat. It was

further Mr. Lee’s testimony that, after getting into the car, he heard shots “coming

[his] way” and that he ducked down. He stated that “it seemed like a car drove by

shooting” and that he assumed that the vehicle from which the shots came was

“[d]ark-colored.” Mr. Lee testified that, after the shooting had ceased, he checked

to see if his mother had been hit and that it was then that he observed that Mr. Page’s

head was resting on the steering wheel.

2. The Testimony of Lieutenant Matthew Jennette

Lieutenant Matthew Jennette of the Providence Police Department stated that,

in the early morning hours of June 26, 2018, he received a call indicating that shots

had been fired at 100 Lowell Avenue and that, upon receiving the call, he responded

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to the scene. He testified that, upon arriving at 100 Lowell Avenue, he noticed a

“Cadillac with a person shot inside the driver’s seat,” which person he noted was

unresponsive. He further recalled “rescue transporting him from the scene.”

3. The Testimony of Doctor Patricia Ogera

Patricia Ogera, M.D., testified as to an autopsy report that she had drafted

regarding an autopsy which she had performed on Mr. Page. She testified that the

autopsy report indicated that the place of Mr. Page’s death was Rhode Island

Hospital and that the date and time of his death was 3:25 in the morning on June 26,

2018. Referring to the autopsy report, Dr. Ogera testified that the injuries which she

had noted were a “gunshot wound to the head, and two scrapes on the back of the

scalp and on the right knee.” According to Dr. Ogera, the cause of Mr. Page’s death

was a gunshot wound to the head. She testified that the manner of death was

homicide.

4. The Testimony of Sergeant Alex Kanelopoulos

Sergeant Alex Kanelopoulos of the Providence Police Department testified

that in 2018 he was an investigator in the Narcotics Unit and that in that year Mr.

Terrero became a target in a narcotics investigation. Sergeant Kanelopoulos testified

that, in the course of that investigation, he focused on two Providence addresses: (1)

59 Mink Road, second floor, Apartment 2; and (2) 156 Hanover Street, third floor.

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Sergeant Kanelopoulos stated that the police obtained search warrants for both

addresses.

Sergeant Kanelopoulos testified that, in executing the search warrant for the

156 Hanover Street address, the police encountered Mr. Terrero and subsequently

detained him. Sergeant Kanelopoulos testified that the police seized a key belonging

to an Audi during the search. He also stated: “It was developed throughout our

investigation during the execution of both search warrants that there was a stolen

vehicle that was * * * at a parking lot * * * near the intersection of Stamford and

Bissell.” He further testified that the key seized from the 156 Hanover Street search

belonged to a “black, stolen Audi.” Sergeant Kanelopoulos testified that, upon

arriving at the intersection of Stamford and Bissell, he observed a black Audi with a

Virginia registration in a parking lot. He further stated that he used the seized Audi

key to unlock the vehicle in order to “confirm that the vehicle key belonged to this

actual vehicle.”

Sergeant Kanelopoulos testified that the police also executed a search warrant

for the 59 Mink Road address, where the police found cocaine residue in the

bedroom of Mr. Terrero and his girlfriend, Leslie Pereira. He added that, in addition,

they found ammunition and drugs in the bedroom of Ms. Pereira’s son as well as

shotgun ammunition in the kitchen. Sergeant Kanelopoulos testified that Ms.

Pereira’s son arrived during the course of the police search and was taken into

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custody. According to Sgt. Kanelopoulos, it was Ms. Pereira who told the police

that the stolen Audi had been dropped off in a parking lot at the intersection of

Stamford and Bissell.

5. The Testimony of Detective Michael Otrando

Detective Michael Otrando of the Providence Police Department testified that

he was assigned to the investigation of the murder of Mr. Page. He testified that one

of the first things he did in the course of the investigation was to review the

surveillance footage from Plainfield Market and Wishy Washy Laundromat. He

added that he had retrieved the surveillance videos accompanied by Sgt. Primiano.

Detective Otrando stated that their review of the surveillance footage included

“zoom[ing] in and actually go[ing] frame by frame and tak[ing] some still shots of

the video as well.” Detective Otrando stated that, in reviewing the footage, they had

observed “the victim’s vehicle enter Lowell Avenue, and approximately ten seconds

later [they] observed a black vehicle, chrome rims with tinted windows, following

behind.”

It was Det. Otrando’s testimony that, based on his review of the footage and

his comparison of the vehicle in the footage with photographs of vehicles which he

found on the Internet, it was his belief that the vehicle in the videos was an Audi.

He added that he then performed a search in the Providence Police database for

stolen cars matching the description of the Audi, and he stated that the search

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produced information about a 2005 black Audi that had been stolen on June 21,

2018. Detective Otrando testified that, when reviewing the stolen-auto report

relative to that vehicle, he noticed that there was a “narcotics narrative,” which led

him to several names that were involved in that investigation, including that of Ms.

Pereira. It was his testimony that Ms. Pereira eventually brought him to the location

of the stolen Audi.

6. The Testimony of Sergeant Jonathan Primiano

Sergeant Jonathan Primiano of the Providence Police Department also

provided testimony. He stated that he had participated in the investigation of the

murder of Mr. Page, and he testified as to his experience and his certifications in

“digital forensics”—which resulted in his being involved in seizing and analyzing

video surveillance. He also stated that he was involved in the reviewing and

extraction of the video surveillance footage relative to this case.

Sergeant Primiano provided testimony concerning the contents of the videos.

However, before the trial justice permitted Sgt. Primiano to express his opinion as

to “the make of the black vehicle that appears in those videos,” she cautioned the

jury as follows:

“Sergeant Primiano’s opinions that will be expressed in
just a moment is not expert in nature, but is offered for
your consideration, and is based upon his personal
observations as a police officer. It is up to you to assess
the credibility of his testimony and determine how much

- 15 -
weight you will give to it, in the same manner that you
consider the testimony of every other witness.”

After the trial justice gave that cautionary instruction, Sgt. Primiano testified that, at

the time of his initial review of the video surveillance footage, he believed “the

vehicle to be consistent with that of an Audi.” Sergeant Primiano’s remaining

testimony as it relates to the video surveillance footage was substantially the same

as the testimony which he had provided during the voir dire hearing on the pretrial

motions.7

7. The Testimony of Kennedy Terrero

The state also called Kennedy Terrero, a cooperating witness, to testify. Mr.

Terrero testified that, in the Spring of 2016, he became a “full-fledged member of

the Hanover Boyz,” a local gang. He testified about another gang called the

“Providence Street Boys.” He explained that the Providence Street Boys gang was

separate and apart from the Hanover Boyz gang. Mr. Terrero further stated that the

number “864” referred to an alliance between the Providence Street Boys and the

Hanover Boyz.

Mr. Terrero also testified regarding his tattoos. He testified that a tattoo on

his right hand reads “864” and is accompanied by a Spartan helmet. He also testified

about a tattoo on his forehead, which reads “Malle;” and he said that that tattoo refers

7
See Part I.A, supra.

- 16 -
to a friend of his who had been murdered.8 Mr. Terrero additionally described a

tattoo on his left hand, which reads “OTF;” and he said that “OTF” stands for “[o]nly

to family,” with “family” meaning one’s gang.

Mr. Terrero testified that he had become familiar with an individual whose

“street name” is Big Kay, and he identified defendant as being that individual. He

indicated that defendant was a part of what he referred to as “that 864 crossover back

in the summer of 2018.” Mr. Terrero further testified that he had also become

familiar with the codefendant, who went by the street name “Ah Jay.” At this point

in the testimony, the trial justice instructed the jury that “mere membership or

affiliation with a gang or group or friendship or association with their members is

not evidence that the defendant * * * is of bad character or that he is necessarily

disposed to commit a crime.” She added that any such evidence “is admitted for the

limited purpose as it may * * * relate to the defendant’s motive, plan, intent, or

knowledge with respect to the charges for which he is presently on trial.”

In the course of Mr. Terrero’s testimony, the state sought to introduce Exhibits

95 to 99, which consisted of a series of photographs depicting Mr. Terrero together

with defendant. Defense counsel objected for the same reasons as were articulated

at the hearing on the pretrial motions. The trial justice overruled the objection, and

8
As will become clear hereinafter, “Malle” is the name used by some witnesses
in this case to refer to the late Jamal Contreras.
- 17 -
the exhibits were admitted into evidence. With respect to Exhibit 98, Mr. Terrero

testified that the photograph shows defendant bearing a Spartan helmet tattoo—

virtually identical to the tattoo that Mr. Terrero testified is on his own right hand.

The state also elicited testimony from Mr. Terrero concerning certain events

that led up to the shooting that took place in the immediate vicinity of 100 Lowell

Avenue on June 26, 2018. First, Mr. Terrero testified that, in May of 2017, he (along

with the codefendants and some “females”) was involved in an incident on Gallup

Street in Providence. Mr. Terrero testified that, at that time, he noticed a vehicle

following the vehicle which he was driving and that defendant then instructed Ah

Jay (i.e., codefendant Hang) to fire “a couple of shots at the car.”

The state also questioned Mr. Terrero about a different incident in May of

2017, which took place “around the Cranston Street Armory.” Regarding that

incident, Mr. Terrero testified that he was driving a stolen vehicle with defendant as

a passenger. He stated that, while he was driving around with defendant, defendant

noticed an “op”—a term that other testimony reveals means an enemy of one’s gang.

Mr. Terrero testified that he then pulled closer to the vehicle containing the “op” and

that defendant began shooting at that vehicle through the sunroof of the vehicle in

which both he and defendant were riding.

Mr. Terrero also testified as to an event that took place on January 23, 2018.

He testified that, on that date, his friend, Jamal “Malle” Contreras, was murdered.

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He stated that, after that incident, the death of Mr. Contreras was frequently

discussed; he added that both defendant and codefendant Hang often took part in

those discussions. Mr. Terrero stated that the murder of Mr. Contreras brought about

what he described as a “tense situation.” He also testified that, on those occasions

when he would speak with the codefendants about the Contreras murder, they would

discuss “retaliation.”

Mr. Terrero also testified as to an incident that occurred in late May of 2018

“at or around the intersection of Academy Avenue and Chalkstone Avenue.” He

stated that he was at a grocery store “at or around Academy and Chalkstone” when

defendant arrived in a separate vehicle and told Mr. Terrero that he had been shot at.

Mr. Terrero testified that the codefendant and the girlfriends of both men were also

present in the vehicle with defendant. He further testified that he observed that the

codefendant’s girlfriend was bleeding.

Mr. Terrero additionally testified as to an incident that occurred during the

morning of June 4, 2018. He stated that he was awakened by the sound of gunshots.

Mr. Terrero testified that he reacted to that sound by grabbing his firearm and going

outside. He stated that, upon going outside, he noticed “bullets on the ground.”

As she had done in the pretrial hearings on defendant’s pretrial motions,

defense counsel objected to the introduction of Mr. Terrero’s testimony about the

several above-referenced events. The trial justice again overruled defense counsel’s

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objections. However, at the request of defense counsel, the trial justice provided a

Rule 404(b) cautionary instruction after the discussion of each incident, with the

exception of the testimony pertaining to Mr. Contreras’s murder. While the exact

phrasing of the cautionary instructions slightly varied, the instructions were

substantially the same. For example, when instructing the jury after the discussion

of the incident that took place around the intersection of Academy Avenue and

Chalkstone Avenue, the trial justice stated:

“I’m just going to once again instruct you jurors that, to
the extent that you’ve heard additional testimony that on
another occasion both [codefendants] were allegedly
involved in another situation involving guns or being shot,
bear in mind that, once again, neither of those individuals
have been charged with any offense arising out of that
situation. And from this evidence, you cannot conclude
that either defendant is a bad person, or that either has the
tendency or proclivity to commit the crimes with which
they are both charged here before this court.
“Any such evidence that you just heard, to the extent
that you decide to consider it, may be admitted only for the
limited purpose as it may, in your minds, relate to either
defendant’s state of mind, motive, knowledge, or intent, or
to show some common scheme, plan, preparation, or
opportunity on either defendant’s part with respect to the
conduct described by Mr. Terrero and the specific charges
for which they each are presently on trial.”

In addition to his testimony relating to prior shootings, Mr. Terrero also

testified that, in or around June of 2018, he stole a black Audi. He stated that the

gang would often use stolen vehicles for “sliding.” (Mr. Terrero indicated that the

term “sliding” refers to driving around in a vehicle and “[l]ooking for enemies.”)
- 20 -
Mr. Terrero added that the black Audi was stolen for “sliding” purposes. He

additionally testified as to a white Acura that he had also stolen and that was also

intended to be used for “sliding.”

Turning to the evening of June 25, 2018, Mr. Terrero testified that Ms. Pereira

was driving the stolen white Acura while he was in the front passenger seat. Mr.

Terrero stated that, for most of that day, they were “[r]iding around, smoking,

drinking, [and] selling drugs.” He stated that at some point he fell asleep and that,

when he later awoke, he noticed that both codefendants were in the back seat. Mr.

Terrero testified that he recalled smoking marijuana at that time, and he also recalled

that defendant had asked him “to take a ride.” He indicated that he understood the

phrase “take a ride” to be synonymous with “slid[ing]” or going to “look for

enemies.” Mr. Terrero testified that he declined “to take a ride” and that this

response angered defendant. Mr. Terrero stated that defendant told him that he

needed his “grip back.” It was Mr. Terrero’s testimony that he believed the word

“grip” to be a reference to the “Smith & Wesson .22 caliber” firearm that had been

previously admitted into evidence. He further explained that that weapon was a gang

“community gun,” which he said meant a firearm “that anybody could use.” Mr.

Terrero stated that, after he met with the codefendants, all four persons then drove

to the 59 Mink Road residence to retrieve the “grip,” with the codefendants

following in the black Audi.

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According to Mr. Terrero, once they arrived at the Mink Road address, he

entered “the residence through the back door, went downstairs, [and] grabbed the

gun.” He stated that, after he retrieved the firearm, he went back outside and gave

it to the codefendants, who were waiting in the black Audi. Mr. Terrero testified

that, after the codefendants left, he instructed Ms. Pereira to “switch cars” so that

she would then be driving her rental Honda Accord.

It was further Mr. Terrero’s testimony that, after he and Ms. Pereira got into

the Honda Accord, they drove to the area of the 156 Hanover Street residence so that

he could take a shower. He further stated that, in the early morning hours of June

26, 2018, he began engaging in a series of text messages with defendant. Mr. Terrero

testified that he received the following text messages from defendant: “Be smooth

Leavin Hanover.” When Mr. Terrero responded “Boys ?” “Or [ops],” which words

he said were meant to refer to the police or to enemies respectively; he said that

defendant replied “Ops.” Mr. Terrero also testified as to a text message that he had

sent to defendant wherein he asked defendant if he needed “food,” which he said

was his way of referring to bullets. He added that defendant also had asked Mr.

Terrero to bring him a hat. Mr. Terrero stated that defendant texted him: “It’s some

op shit”—which phrase he testified meant: “Something that has to do with enemies

is going on.”

- 22 -
Mr. Terrero testified that, after he had finished showering at Hanover Street

and after collecting the items that defendant had requested him to bring, he went

back to the location where Ms. Pereira had parked. He recalled seeing the

codefendants in the Honda Accord with Ms. Pereira, and he testified that he got into

the Honda Accord with them and that the four of them drove off. He added that,

although he was in the front seat and the codefendants were in the back seat, he had

no difficultly hearing the codefendants’ conversation. Mr. Terrero testified that at

one point he heard defendant say: “Ah Jay had no aim.” It was Mr. Terrero’s

recollection that the codefendant did not say anything in response to that comment.

Directing his testimony once again to the black Audi, Mr. Terrero testified

that, after what had occurred on June 25 and 26 of 2018, he along with Ms. Pereira

and the codefendants eventually went to the parking lot where the black Audi was

located and “started cleaning the inside” of the vehicle as well as changing its license

plate. He explained that the “cleaning” entailed taking “some [Clorox] wipes and

wip[ing] the interior down.”

Mr. Terrero additionally testified that, on July 2, 2018, he was arrested at the

156 Hanover Street residence on several charges, including possession of cocaine

with the intent to deliver. Mr. Terrero acknowledged that, in the course of the

statement that he provided to the Providence Police on July 2, he admitted to having

stolen the black Audi. Mr. Terrero also acknowledged that he had entered into a

- 23 -
cooperation agreement with the state regarding the testimony which he provided

during trial.

8. The Testimony of Leslie Pereira

The state next called Leslie Pereira to testify. Ms. Pereira testified that, in

June of 2018, she was living at 59 Mink Road. She stated that, at that time, she was

in a relationship with Mr. Terrero. Ms. Pereira testified that she was with Mr.

Terrero during the afternoon and evening hours of June 25, 2018. She stated that, at

some point during that evening, she and Mr. Terrero went to the “area in and around

th[e] McDonald’s on Broad Street.” Ms. Pereira testified that, while they were

parked in a white Acura, Mr. Terrero fell asleep. She added that defendant arrived

at the same parking lot and that he got into the white Acura with Ms. Pereira and Mr.

Terrero. Ms. Pereira stated that she and Mr. Terrero left the parking lot so that Mr.

Terrero could go “take a shower and lay down.”

Ms. Pereira testified that, when they arrived at 59 Mink Road, Mr. Terrero got

out of the vehicle and entered the back door of the residence. She recalled Mr.

Terrero speaking with defendant in the rear of the 59 Mink Road building. Ms.

Pereira testified that Mr. Terrero eventually reentered the white Acura and drove her

to her car, which was parked near Cranston Street. She stated that, after getting into

her vehicle, she parked near the 156 Hanover Street residence. She later stated that

she did not see Mr. Terrero enter the 156 Hanover Street residence, but she assumed

- 24 -
that he had done so. Ms. Pereira testified that, while waiting in her parked car, she

received a phone call from defendant.

It was Ms. Pereira’s testimony that, after receiving the phone call, she met

defendant at a parking lot. She stated that, when she arrived at the parking lot,

defendant exited from what she believed was a black Audi and entered her vehicle.

Ms. Pereira testified that defendant had asked her for Clorox wipes; however, she

further explained that, because she did not have any wipes to offer, she gave him a

t-shirt. She added that the codefendant was also in the car with defendant. Ms.

Pereira testified that she observed the two men use the t-shirt to wipe down the black

Audi. She stated that they then drove back to the area near the 156 Hanover Street

residence.

Ms. Pereira testified that, when she returned to the 156 Hanover Street area

with the codefendants, Mr. Terrero got into the vehicle. She stated that Mr. Terrero

got in the front passenger seat, while the codefendants were seated in the back.

9. The Subsequent Travel of the Case

At the close of the prosecution’s case, defense counsel moved for a judgment

of acquittal pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure,

contending that the evidence “was inferential in all aspects” and that “there was no

direct evidence of [defendant’s] culpability.” The trial justice stated that she was

going to reserve ruling on the motion until the conclusion of all the evidence. After

- 25 -
defendant indicated that he would not testify and the defense rested, defense counsel

renewed the motion for a judgment of acquittal; but the trial justice stated that she

was “still going to reserve.”

Before closing arguments began, the trial justice instructed the jury. In the

course of her instructions, the trial justice emphasized the following:

“Now, you have heard evidence in this trial that on other
occasions these Defendants allegedly were involved in
other misconduct. Bear in mind that neither Defendant has
been charged with any offense arising out of that
misconduct. That evidence was admitted for a limited
purpose. It cannot be considered as proof of bad character
on their part or proof that they acted in conformity with
the uncharged alleged acts when you consider the charges
in this case. However, if you do wish to do so, you may
consider evidence of uncharged alleged acts for the limited
purpose of proving the Defendant’s intent, knowledge,
motive, plan, or their participation in a felonious scheme
such as a conspiracy and not for any other purpose.”

After the parties presented their closing arguments, the jury began

deliberations on October 4, 2022. On October 6, the jury found defendant guilty on

all counts. Thereafter, defendant filed a motion for a new trial on the grounds that

the evidence was legally insufficient to support a verdict of guilty beyond a

reasonable doubt and that the weight of the evidence was not adequate to sustain a

conviction. Additionally, defendant argued that “it was an error of law to admit

[Rule 404(b)] evidence (of both prior bad acts and gang affiliation) that so drastically

outweighed the direct evidence in this case * * *.”

- 26 -
At a hearing on November 1, 2022, the trial justice addressed defendant’s

motion for a judgment of acquittal as well as his motion for a new trial. After

articulating her reasoning in detail, the trial justice ultimately denied defendant’s

motion for a judgment of acquittal. The trial justice next turned to defendant’s

motion for a new trial. In addressing defendant’s argument as it pertained to the

Rule 404(b) evidence that was admitted at trial, the trial justice noted that, even if

such “evidence clears the 404(b) hurdle, it may still be excluded if it does not survive

scrutiny under 403 * * *.” She repeated, in part, her initial conclusion relative to

that evidence:

“Importantly, this [c]ourt concluded that the incident on
Gallup Street, near the Cranston Street Armory, at
Academy Market, and even outside Kennedy Terrero’s
own apartment on Hanover Street earlier in June of 2018
would allow the jury to hear a complete and coherent story
that the gang affiliation of Kennedy Terrero * * * [and
codefendants] was necessary for such a complete and
coherent story, and that the evidence of shootings in and
around cars demonstrated a common scheme or plan as
well as access that Kennedy Terrero * * * [and
codefendants] all had to firearms.”

The trial justice further noted the fact that some evidence had been excluded because

she had found “such evidence to be unduly prejudicial and [had] excluded such

evidence under a Rule 403 analysis.” The trial justice concluded by denying

defendant’s motion for a new trial.

- 27 -
The trial justice sentenced defendant on February 13, 2023. He received two

life sentences, to be served consecutively to each other; three concurrent six-year

sentences, suspended with probation; one concurrent ten-year sentence, to be served;

one concurrent ten-year sentence, suspended with probation; one concurrent

five-year sentence, to be served; two consecutive ten-year sentences, suspended with

probation; and a ten-year consecutive sentence as an habitual offender.

The defendant filed a notice of appeal on February 13, 2023.

II

Issues on Appeal

The issues raised before this Court by defendant are: (1) whether the trial

justice erred in allowing Sgt. Primiano to offer a lay opinion to the effect that “the

car in the surveillance video was consistent with an Audi, when the surveillance

video was available for the jury to consider on its own;” (2) whether the trial justice

erred in denying a hearing pursuant to Franks v. Delaware; (3) whether the trial

justice erred in allowing Mr. Terrero to testify “about unrelated shootings;” and (4)

whether the trial justice erred in admitting certain photographs of defendant. We

shall address defendant’s contentions seriatim.

- 28 -
III

Standards of Review

A

The Standard of Review as to the Evidentiary Issues

This Court has stated that “[w]hen reviewing the decision of a trial justice to

admit certain evidence, * * * questions as to the admissibility vel non of evidence

are confided to the sound discretion of the trial justice.” State v. Pitts, 990 A.2d 185,

189 (R.I. 2010) (internal quotation marks and deletion omitted); see also State v.

Merida, 960 A.2d 228, 234 (R.I. 2008). Accordingly, “[w]e will not overturn the

ruling of a trial justice with respect to an evidentiary issue unless it constitutes an

abuse of the justice’s discretion and prejudices the complaining party.” Pitts, 990

A.2d at 189 (internal quotation marks omitted). In conducting this review, we “allow

wide latitude to determine both the relevance and the admissibility of evidence.” Id.

(internal quotation marks omitted); see also State v. Dominick, 968 A.2d 279, 282

(R.I. 2009). Additionally, “we are disinclined to perceive an abuse of discretion so

long as the record contains some grounds for supporting the trial justice’s decision.”

Pitts, 990 A.2d at 189-90 (internal quotation marks and deletion omitted).

- 29 -
B

The Standard of Review as to the Franks Hearing Issue

This Court has stated that it reviews “rulings denying Franks hearings with

deference.” State v. Verrecchia, 880 A.2d 89, 99 (R.I. 2005); see also State v.

DeMagistris, 714 A.2d 567, 576 (R.I. 1998) (“[W]e review a lower court’s

determination that the defendant failed to satisfy the Franks standard with

deference.”). We have also stated that the “party seeking a Franks hearing bears the

burden of proof.” Verrecchia, 880 A.2d at 99.

IV

Analysis

A

The Lay Opinion Testimony

On appeal, defendant first contends that the trial justice erred in allowing Sgt.

Primiano to offer testimony that the vehicle depicted in the surveillance video was

consistent with an Audi. The defendant points to the fact that the video surveillance

as well as photographs of the seized Audi had been reproduced and were available

for the jury to review and that therefore the jury did not need Sgt. Primiano’s

“commentary.” The defendant asserts that Sgt. Primiano was not in a better position

than the jury to identify the car, because (1) he had not “manipulated the video to

view, clarify, or enhance images,” and (2) he did not have “specific familiarity with

- 30 -
Audis and he could not identify other black sedans.” Additionally, defendant argues

that the trial justice’s reliance on the case of State v. Doyle, 235 A.3d 482 (R.I. 2020),

was misplaced. It is defendant’s position that admission of this evidence was

prejudicial error and that there was a “reasonable possibility that the admission of

this evidence contributed to the conviction.”

For its part, the state argues that the trial justice “did not abuse her discretion

in finding that Sgt. Primiano’s hours-long examination of the frame-by-frame video

footage might assist the jury in making its initial determination regarding whether

the depicted vehicle was generally an Audi or not.” Moreover, the state posits that

“whether it was the Audi later seized in connection with this case and, furthermore,

whether they believed [Mr.] Terrero and [Ms.] Pereira’s testimony placing

defendants in that Audi that night was entirely up the jurors.”

Rule 701 of the Rhode Island Rules of Evidence provides:

“If the witness is not testifying as an expert, the witness’
testimony in the form of opinions is limited to those
opinions which are (A) rationally based on the perception
of the witness and (B) helpful to a clear understanding of
the witness’ testimony or the determination of a fact in
issue.”

Rule 702 of the Rhode Island Rules of Evidence provides that, when testimony

requires “scientific, technical, or other specialized knowledge,” such testimony

should be presented through a qualified expert.

- 31 -
This Court “has adopted a two-part test for the admission of lay opinion

testimony: (1) the lay witness must have had an opportunity to view the person or

event at issue; and (2) the lay witness must be able to give concrete details on which

the opinion was founded.” State v. Ortiz, 609 A.2d 921, 930 (R.I. 1992) (internal

quotation marks omitted). This Court has further stated that “[a] lay witness may

not invade the jury’s fact-finding role by proffering an opinion, unless that opinion

is based upon personal perception and helps the jury.” State v. Mann, 889 A.2d 164,

168 (R.I. 2005); see also State v. Bettencourt, 723 A.2d 1101, 1111 (R.I. 1999)

(“Opinion testimony may be rendered when the subject matter to which the

testimony relates cannot be reproduced or described to the jury precisely as it

appeared to the witness at the time, and the facts upon which the witness is called to

express an opinion are such that persons in general are capable of comprehending.”)

(internal quotation marks and brackets omitted).

It will be recalled that defendant takes particular exception to the trial justice’s

reliance on State v. Doyle, 235 A.3d 482 (R.I. 2020), which she viewed as

constituting a situation comparable to the one presently before us. In Doyle, this

Court ruled that a state police detective, who had an established background in

accounting and experience as a fraud examiner, was properly permitted to provide

lay opinion testimony regarding certain expenditures on an American Express card.

Doyle, 235 A.3d at 498, 501. A summary of the detective’s “findings as to which

- 32 -
expenses were personal and which were legitimate business expenses under various

credit cards and other accounts was admitted into evidence.” Id. at 499. On appeal,

the defendant contended that the detective did not qualify as an expert and that, as a

lay witness, her testimony was inadmissible. Id. In upholding the trial justice’s

decision to admit the testimony, this Court stated:

“Certainly, Det. Elliott’s rationale for concluding that
certain credit card charges were personal and not Institute-
related was informed by her qualifications and experience,
including a bachelor’s degree in accounting and years of
experience as an accountant in Chicago. Undoubtedly,
Det. Elliott’s opinions were helpful to a clear
understanding of her testimony and the determination of
facts at issue. This witness was available and subject to
cross-examination. The state was not required to introduce
all of the voluminous evidence—upon which Det. Elliott
relied—in order for the jury to reach the same conclusion.”
Id. at 500 (footnote omitted).

The defendant contends that in Doyle the jury did not have “all of the

extensive information the state police detective reviewed and relied on to form her

opinion.” The defendant argues that, in the case at bar by contrast, the jury did have

the information necessary to make a determination because “the state introduced the

video surveillance and photographs of the seized Audi.” Although defendant

concedes that the jury did not have the specific video software that Sgt. Primiano

had used to analyze the footage, he maintains that the jury “could slow it down and

watch it at 30 frames per second and at different time intervals.” We are

unpersuaded by defendant’s attempt to distinguish Doyle.
- 33 -
It is our view that, as was the case with the police detective in Doyle, Sgt.

Primiano’s lay opinion was based upon his perceptions. In Doyle, the Court

emphasized that the detective, who had extensive experience in the field of

accounting, carefully reviewed thousands of transactions and also contacted vendors

to assist her in understanding the nature of the expenditures. Doyle, 235 A.3d at 498,

500. In a similar fashion, Sgt. Primiano, who has had experience and extensive

training in seizing, documenting, and analyzing video evidence, reviewed the video

footage by utilizing Video Focus Pro software. He then compared the images from

the video surveillance to images which he had obtained from the Internet as well as

from “images [he] had obtained of the vehicle which was seized during this

investigation.” Although Sgt. Primiano’s lay opinion was not based upon first-hand

observations, it was nonetheless rationally based on his own perceptions which

resulted from his review of the video footage and other materials. In addition, we

perceive no error in the trial justice’s determination that Sgt. Primiano’s examination

and explanation thereof would assist the jury in determining whether or not the

vehicle depicted in the footage was consistent with an Audi.

We are likewise unpersuaded by defendant’s further attempt to distinguish

this case from Doyle on the grounds that the jury in the instant case (unlike the

situation in Doyle) actually had the video surveillance footage and photographs of

the seized vehicle and therefore did not need Sgt. Primiano’s opinion. We

- 34 -
underscore the fact that the record reveals that the jury did not have the ability, as

Sgt. Primiano did, to review the footage using Video Focus Pro software.

Additionally, the jury was without certain other information that Sgt. Primiano had

utilized in his review. For example, they did not have the hundreds of

frame-by-frame video images or downloaded images of Audi factory rims.

We further note that, unlike the situation in Doyle, where the detective gave

an opinion regarding an issue of ultimate fact in the case (viz., whether there were

unauthorized transactions referenced on the defendant’s credit card statement), Sgt.

Primiano did not testify that the vehicle in the surveillance footage was the vehicle

seized or that it was definitively an Audi. The trial justice expressly limited Sgt.

Primiano’s testimony, allowing him to offer “a lay opinion with respect to the

dark-tinted sedan seen in the video surveillance as being consistent with an Audi.”

In addition, the trial justice emphasized that Sgt. Primiano would be subject to

cross-examination.

Accordingly, we perceive no abuse of discretion in the trial justice’s decision

to allow Sgt. Primiano to offer lay opinion testimony.

B

Request for a Franks Hearing

The defendant’s second contention on appeal is that the trial justice erred in

denying a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The

- 35 -
defendant specifically asserts that Det. Michael made two materially false statements

in his affidavit in support of a warrant application for defendant’s cell phone

information. He claims that the information Det. Otrando relayed to Det. Michael

(viz., that the vehicle depicted in the surveillance footage was a “Black Audi with

heavy tint around all the windows” and that the vehicle later seized during the

narcotics investigation that led to Mr. Terrero’s arrest “was observed to be the same

vehicle as seen in the video footage related to the homicide”) was false because it is

defendant’s claim that the video footage was too unclear to determine the make and

model of the black-tinted vehicle. The defendant asserts that the “government is

accountable for statements, which include omissions, made not only by the affiant,

but those conveyed to the affiant by other government employees.” The defendant

further contends that these allegedly false statements were necessary to finding

probable cause.

It is true that a defendant is “entitled to a hearing to challenge the veracity of

factual statements contained in an affidavit when [the defendant] make[s] a

substantial preliminary showing that a false statement knowingly and intentionally,

or with reckless disregard for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to the finding of probable

cause.” State v. Hudgen, 272 A.3d 1069, 1084 (R.I. 2022) (internal quotation marks

and brackets omitted); see also Franks, 438 U.S. at 155-56. Such a defendant is

- 36 -
required to make an offer of proof that “point[s] out specifically the portion of the

warrant affidavit that is claimed to be false * * *.” Franks, 438 U.S. at 171; see also

Verrecchia, 880 A.2d at 99 (noting that the “party seeking a Franks hearing bears

the burden of proof”). Furthermore, the alleged false aspects of the warrant

application must be “traceable to the affiant’s intent to deceive the magistrate issuing

the warrant or * * * the affiant [must have] proceeded with reckless disregard for the

veracity of the statements included in his or her affidavit.” DeMagistris, 714 A.2d at

575. Finally, the Court in Franks stated that “if, when material that is the subject of

the alleged falsity or reckless disregard is set to one side, there remains sufficient

content in the warrant affidavit to support a finding of probable cause, no hearing is

required.” Id. at 171-72.

It is our opinion that the trial justice did not abuse her discretion in denying

defendant’s motion for a Franks hearing. The trial justice acknowledged that the

statements in the warrant—namely, that the vehicle in the footage was an Audi and

that it was the same vehicle as the one that was later recovered as a result of a

narcotics investigation—could be characterized as overstatements. However, she

also pointed out that the statements were not necessarily baseless—as it had always

been Det. Otrando’s position that the vehicle in the footage was an Audi. See

Verrecchia, 880 A.2d at 99 (observing that there is a presumption of validity with

respect to an affidavit supporting a search warrant). Importantly, the trial justice

- 37 -
also found that, while there may have been some degree of overstatement on Det.

Otrando’s part, there was nothing that would indicate that Det. Michael “acted with

some intent to deceive or with reckless disregard of the veracity of those statements.”

Moreover, the overly broad use of terms does not necessarily constitute a material

falsehood or indicate an intent to deceive.

Even assuming arguendo that the allegations concerning mischaracterizations

in the affidavit are true, there nevertheless remained more than sufficient evidence

to support a finding of probable cause. As the trial justice noted, “the involvement

of the black Audi” stems “directly from the so-called cooperating witness, * * *

[Ms.] Pereira.” Having carefully reviewed the record, it is our opinion that the trial

justice’s decision as to the existence of probable cause is supported by the record.

Consequently, we conclude that defendant was not entitled to a Franks

hearing and that the trial justice did not abuse her discretion in denying such a

hearing.

C

Evidence Admitted Pursuant to Rule 404(b)

The defendant next contends that the trial justice erred in allowing Mr. Terrero

to testify about what defendant characterizes as “unrelated” shootings. He points to

testimonial evidence provided by Mr. Terrero that was admitted concerning: (1) two

shootings involving defendant; (2) two shootings directed at defendant and others;

- 38 -
and (3) the murder of Mr. Terrero’s friend, Mr. Contreras. It is defendant’s argument

that this evidence violated Rule 404(b) by virtue of it being propensity evidence. He

additionally asserts that this evidence was prejudicial because it “announced to the

jury that [defendant] participated in shootings and lived a violent lifestyle.” The

defendant argues that the state relied on “improper evidence to convict” him

because: (1) there was no connection between defendant and the decedent; (2) there

was no showing of a motive for defendant to be involved in the June 26, 2018 events

at 100 Lowell Avenue; (3) the video surveillance footage of “the crime scene was

vague at best;” and (4) there was no direct evidence that placed defendant at the

crime scene.

The defendant also argues that the trial justice failed to conduct the necessary

Rule 403 analysis before admitting the Rule 404(b) evidence. He adds that, had the

trial justice conducted a Rule 403 analysis, “the negligible probative value and

enormous prejudice would have been clear, warranting exclusion of this evidence.”

Additionally, defendant asserts that the instructions given by the trial justice relative

to that evidence could not cure the overly prejudicial nature of the evidence.

In ascertaining whether the trial justice properly admitted evidence pursuant

to Rule 404(b), this Court has emphasized that

“[b]y way of exception to the general prohibition against
admitting evidence of prior bad acts, Rule 404(b) permits
the admission of evidence of other crimes, wrongs, or acts
when such evidence is offered to prove motive,
- 39 -
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.” State v. Jimenez, 882 A.2d 549, 553 (R.I.
2005) (internal quotation marks omitted).

We have further stated, however, that “[e]ven when admissible, * * * this type of

evidence should be sparingly used by the prosecution and only when reasonably

necessary.” Id. (internal quotation marks omitted).

The evidentiary rule seeks to exclude evidence of prior bad acts, crimes, and

wrongs because “admitting this kind of evidence presents the risk that jurors might

convict a defendant for a crime other than the one being charged.” State v. Reis, 815

A.2d 57, 61-62 (R.I. 2003). For that reason, we have cautioned that, in order to

protect against the possibility that a jury might convict a defendant for a crime with

which he or she was not charged, “the trial justice must carefully weigh the probative

value of the evidence against the danger of unfair prejudice * * *.” Id. at 62 (quoting

State v. Pratt, 641 A.2d 732, 742 (R.I. 1994)). And “[i]f the trial justice determines

that the probative value does outweigh the prejudicial effect, he [or she] should offer

a specific instruction to the jury as to the limited purpose for which the evidence is

being introduced.” Id. (internal quotation marks and brackets omitted).

It is our opinion that the trial justice in this case did not abuse her discretion

in admitting, pursuant to Rule 404(b), the evidence concerning the prior shootings.

The record reveals that the trial justice appreciated the background information

- 40 -
provided by this evidence and its resulting probative value. For example, in the

interim between the shootings about which Mr. Terrero testified, Mr. Contreras, a

friend of both Mr. Terrero and defendant, was murdered. There was evidence

elicited by the state from Mr. Terrero to the effect that codefendants and Mr. Terrero

discussed Mr. Contreras’s death and that the “tone of those conversations” was

“tense.” Mr. Terrero indicated that gang members were desirous of revenge. Such

revenge included retaliation which would involve taking “rides” and looking for

rival gang members. What we have just described is relevant in providing context

to defendant’s request for Mr. Terrero to “take a ride” shortly before Mr. Page’s

murder. It also provides some context as to defendant’s text messages to Mr.

Terrero, which were sent shortly after Mr. Page’s murder, wherein he warned Mr.

Terrero of the potential danger involving opposing gangs. See generally United

States v. Abel, 469 U.S. 45, 49 (1984) (unanimously holding that there are occasions

when membership in a gang constitutes admissible evidence).

The defendant asserts that the evidence of the prior shootings has no

evidentiary relevance as to the motive or intent to shoot those persons present at 100

Lowell Avenue on June 26, 2018 and that those persons had no connection to the

codefendants. The state counters by contending that Mr. Terrero’s “testimony and

the previous shootings demonstrated that no specific connection was required to

motivate these gang shootings.” We agree.

- 41 -
As we turn our attention to the Rule 404(b) issues in this case, it is important

to bear in mind that there is a disturbing level of violence in our world, which is very

often the fruit of ready access to firearms and often the result of internecine and

extremely violent interactions between members of rival gangs. In the instant case,

the 864 crossover gang activity involved indiscriminate violent conduct: drive-by

shootings, persons being shot at, and often lawless access to firearms. We are

unpersuaded by defendant’s attempt to suggest that the evidence concerning the

other shootings was too distant in time in relation to the murder of Mr. Page. The

pattern of retaliatory drive-by shootings was a sad reality right up to the time of Mr.

Page’s murder. While we are “quite aware of (and respectful of) the prohibition

against using evidence of prior wrongs to show the defendant’s propensity to commit

the crime with which he is currently charged,” admitting evidence of a pattern of

retaliatory shootings is consistent with the established “principle that evidence of

other conduct, even of a criminal nature, may be received if it is interwoven with the

current charge in a way that tends to establish guilty knowledge, intent, motive,

design, plan, scheme, system, or the like.” State v. John, 881 A.2d 920, 926 (R.I.

2005) (internal quotation marks and brackets omitted); see State v. Colon, 198 A.3d

1249, 1254 (R.I. 2019) (“This Court has 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 coherent story so as to make an accurate

- 42 -
determination of guilt or innocence.”) (internal quotation marks and deletion

omitted); State v. Pona, 948 A.2d 941, 950 (R.I. 2008).

Among other contentions, defendant takes issue with the trial justice having

cited “access to firearms” as a reason to admit the evidence pursuant to Rule 404(b).

The defendant concedes that he had access to firearms; however, he asserts that there

was other evidence, unrelated to other prior shootings, that established this fact.

In State v. Rios, 996 A.2d 635 (R.I. 2010), this Court dealt with a somewhat

similar Rule 404(b) issue in that the state had sought to admit testimony that the

defendant frequently carried a firearm. Rios, 996 A.2d at 637, 639. In addressing

the issue, we noted that “the state did not seek to admit any firearms allegedly

belonging to defendant; rather, it sought to elicit testimony indicating that defendant

had access to a handgun.” Id. at 640. Importantly, we further stated that “[e]vidence

that defendant frequently carried a handgun, if true, was relevant to demonstrate that

he had access to a weapon and had the opportunity to murder [the decedent].” Id.

In the case at bar, we perceive no abuse of discretion on the part of the trial

justice in allowing the admission of testimony about the shootings as tending to be

probative of the fact that defendant had access to firearms. In accord with our

holding in Rios, Mr. Terrero’s testimony indicated that defendant generally had

access to firearms rather than suggesting that a particular firearm belonged to

defendant. Although defendant argues that other, less prejudicial, evidence had been

- 43 -
admitted which supported the concept that defendant had access to firearms, it is our

view that it was not an abuse of discretion to admit the evidence of prior shootings

involving members of the crossover 864 gang. Due to the fact that the timing of

retaliatory actions and the specific sequence of events are such crucial aspects in

understanding gang-related violence, the evidence clearly could be a basis for the

jurors to conclude that defendant had routine access to firearms in the months leading

up to the June 26, 2018 shooting.

Although the trial justice did not provide an explicit Rule 403 analysis on the

record when ruling on the Rule 404(b) issue, we do not consider the absence of such

an explicit analysis to constitute reversible error in the circumstances of this case.

We are satisfied that the trial justice did in actuality, if not in so many words, engage

in such an analysis at the time of her ruling with respect to the Rule 404(b) evidence.

It is apparent from the trial justice’s exclusion of evidence of another gang member’s

arrest for possession of a firearm, which the state sought to utilize to demonstrate

the access to “community guns,” that the trial justice was mindful of the risk of the

overly prejudicial nature of some evidence being introduced pursuant to Rule 404(b).

In excluding the introduction of the just-mentioned evidence, the trial justice stated

that that particular piece of evidence was “more guilt by association than true 404(b)

evidence * * *.”

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Furthermore, the trial justice’s discussion at the hearing on the motion for a

new trial additionally confirms the notion that a Rule 403 analysis was sub silentio

an integral part of her rulings relative to the Rule 404(b) evidence. It is noteworthy

that, in addressing defendant’s contention that evidence had been improperly

admitted pursuant to Rule 404(b), the trial justice explicitly stated at that hearing

that, even if the “evidence clears the 404(b) hurdle, it may still be excluded if it does

not survive scrutiny under 403 * * *.” Significantly, the trial justice also reiterated

her earlier observation that certain additional evidence had been excluded because

she had found “such evidence to be unduly prejudicial and [had] excluded such

evidence under a Rule 403 analysis.”

In State v. Cavanaugh, 158 A.3d 268 (R.I. 2017), we were faced with a similar

situation in which the trial justice failed to engage in an explicit Rule 403 analysis.

Cavanaugh, 158 A.3d at 281. Although we indicated that the trial justice should

have undertaken a Rule 403 analysis, we proceeded to hold that that “error [was]

harmless because the evidence was correctly admitted, and its probative value

outweighed any potential prejudice.” Id. The same rationale applies to the instant

case. Accordingly, even assuming arguendo that the trial justice’s implicit Rule 403

analysis was insufficient, we conclude that it would be harmless error due to the fact

that the evidence was properly admitted in that its probative value outweighed the

risk of unfair prejudice.

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Finally, we are likewise satisfied that the several cautionary instructions given

by the trial justice sufficiently abated any risk of unfair prejudice. The trial justice

provided a practically identical cautionary instruction after the introduction of

virtually every piece of evidence admitted pursuant to Rule 404(b). In addition, her

final jury instructions included the following admonition:

“Now, you have heard evidence in this trial that on other
occasions these Defendants allegedly were involved in
other misconduct. Bear in mind that neither Defendant has
been charged with any offense arising out of that
misconduct. That evidence was admitted for a limited
purpose. It cannot be considered as proof of bad character
on their part or proof that they acted in conformity with
the uncharged alleged acts when you consider the charges
in this case. However, if you do wish to do so, you may
consider evidence of uncharged alleged acts for the limited
purpose of proving the Defendant’s intent, knowledge,
motive, plan, or their participation in a felonious scheme
such as a conspiracy and not for any other purpose.”

The instructions were numerous and comprehensive. See Cavanaugh, 158 A.3d at

282 (“We are satisfied that this cautionary instruction served to eliminate any unfair

prejudice that defendant may have faced from this testimony.”). We also note that,

at no point during the introduction of the Rule 404(b) evidence or when the trial

justice delivered her final instructions did defendant object to the cautionary

instructions concerning the evidence. See id. at 281; see also State v. Cook, 45 A.3d

1272, 1280 (R.I. 2012); Rios, 996 A.2d at 640.

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For these reasons, we perceive no abuse of discretion on the part of the trial

justice in admitting the evidence that was admitted pursuant to Rule 404(b).

D

Admission of Photographic Evidence

As defendant’s final argument, he contends that the trial justice erred in

admitting photographs of defendant holding firearms as well as employing gestures

that could be understood as relating to gang involvement. As previously noted, the

photographic evidence consisted of: (1) two photographs from 2017 which depicted

Mr. Terrero and defendant making certain hand gestures, with defendant holding a

firearm in both photographs; (2) a third photograph from early 2018 which showed

Mr. Terrero and defendant again making hand gestures; and (3) a fourth photograph

from the Spring of 2018 showing one of defendant’s tattoos which displayed a

Spartan helmet containing the numbers “864.”

Citing Rule 401 of the Rules of Evidence, defendant contends that the

photographs have no relevance to the murder of Mr. Page. The defendant

specifically points out that the “two photographs where [defendant] is holding a gun

were taken over a year before the murder.” Moreover, it is defendant’s contention

that there is no connection between the murder weapon and the firearms depicted in

the photographs. Similarly, defendant argues that there is no connection between

“the location of any of these photographs and the planning of [Mr.] Page’s murder.”

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Lasty, defendant posits that there was no evidence that connected the murder to gang

involvement or membership. The state for its part emphasizes that the photographs

were probative of the relationship between Mr. Terrero and defendant, which the

state describes as being “a big part of the case.”

The defendant further argues that, even if this evidence did have limited

probative value, it should have been excluded pursuant to Rule 403. The defendant

offers several reasons in support of his contention that the photographic evidence

should have been excluded. He first asserts that the photographs of defendant

holding a firearm “sent a message to the jury that he was a bad person and

predisposed to commit crimes of violence.” He also submits that some of the hand

gestures in the photographs could have been interpreted as gang signs. Finally, he

argues that the tattoo shown in one of the photographs could have led to a negative

inference that defendant was affiliated with a gang. Additionally, defendant

contends that the photographs were cumulative, confused the issues, and misled the

jury.

Rule 401 defines relevant evidence as “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” See State v.

Thomas, 936 A.2d 1278, 1282 (R.I. 2007) (stating “that evidence which is not

relevant is not admissible”) (brackets and internal quotation marks omitted).

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However, we have further made clear that “it should be remembered that this Court

has interpreted Rule 403 * * * as providing that relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice

to the defendant.” Pitts, 990 A.2d at 190 (internal quotation marks and brackets

omitted); see State v. Silvia, 898 A.2d 707, 717 (R.I. 2006).

We are satisfied that, pursuant to Rule 401, the photographs at issue in this

case were relevant as tending to corroborate Mr. Terrero’s testimony regarding his

relationship with defendant, thereby providing meaningful support for the state’s

theory of the case. Additionally, as the trial justice indicated, the photographs

showing defendant holding a firearm would constitute further evidence of his

“access to firearms.” Although defendant maintains that that there is no direct link

between the firearms in the photographs and the murder weapon, the photographic

evidence nonetheless demonstrated, as the trial justice noted, defendant’s “access to

handguns, having familiarity with handguns.” See State v. Rivera, 640 A.2d 524,

526 (R.I. 1994) (“A photograph is relevant if it has a tendency to prove or disprove

some material fact in issue.”) (internal quotation marks omitted). As to the issue of

the photographs not having been taken in close proximity to the time of the crime,

the trial justice stated that, “notwithstanding the approximately year plus difference

in time between that photograph and the murder on June 26th, 2018, it does

demonstrate the close relationship between Mr. Terrero and [defendant].”

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Accordingly, our examination of the record does not convince us that the trial justice

abused her discretion in permitting the admission of the photographs.

With respect to the defendant’s Rule 403 argument concerning the

photographs, we agree with the trial justice that the probative value of this evidence

was not substantially outweighed by the danger of unfair prejudice. As was the trial

justice’s reasoning, the evidence of the photographs could demonstrate the close

relationship between Mr. Terrero and the defendant, and the contents of those

photographs is not so prejudicial as to warrant exclusion under Rule 403. We are

unable to conclude that the possible prejudice from the admission of these

photographs outweighs the probative value of the evidence—particularly in light of

the fact that the trial justice gave the jury a limiting instruction with respect to gang

or group affiliation. Accordingly, it is our view that the trial justice did not abuse

her discretion in admitting the photographs.

V

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The record may be returned to that tribunal..

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Chandanoeuth Hay.

No. 2023-235-C.A.
Case Number
(P1/19-6260AG)

Date Opinion Filed May 29, 2025

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

Written By Associate Justice William P. Robinson III

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Kristin E. Rodgers

For State:

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

Camille A. McKenna
Rhode Island Public Defender