Dana Gallop v. State of Rhode Island

Supreme Court

No. 2023-82-M.P.
(PM 16-2668)

Dana Gallop :

v. :

State of Rhode Island. :

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. 2023-82-M.P.
(PM 16-2668)

Dana Gallop :

v. :

State of Rhode Island. :

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

OPINION

Justice Goldberg, for the Court. The petitioner, Dana Gallop (petitioner or

Gallop), seeks review of a judgment of the Superior Court denying his application

for postconviction relief. On certiorari, Gallop challenges what he characterizes as

the trial justice’s decision to deny his motion for summary disposition, as well as the

state’s purported failure to disclose alleged inducements given to two eyewitnesses

in exchange for their testimony. For the reasons discussed, we reject the claims of

error and affirm the judgment of the Superior Court.

Factual Background

The facts underlying Gallop’s conviction are set forth more fully in State v.

Gallop, 89 A.3d 795 (R.I. 2014). We recite the salient facts.

-1-
On December 13, 2008, a disc jockey of some repute was performing during

the late evening hours at Passions, a nightclub in Providence, Rhode Island. In the

early morning hours of December 14, 2008, the nightclub closed and an estimated

800 patrons began dispersing onto the streets outside the venue. Suddenly, at

approximately 2:27 a.m., gunfire erupted. Within seconds, two people were struck,

one of whom, Anthony Parrish, later succumbed to his injuries. Two eyewitnesses

identified Gallop as the shooter.

Shamair Barboza was twenty-seven years old at the time of trial.1 She testified

that she had known Gallop since she was ten years old and that Parrish was a close

friend. On the late evening/early morning of the shooting, Barboza was at the

Passions nightclub and separately recognized Parrish and Gallop as patrons. When

the nightclub closed, Barboza left the premises and watched as Parrish began

walking toward Gallop. As Barboza testified at trial, she was fixated upon this

impending interaction “[b]ecause I knew that they had bad blood,” “[t]hey weren’t

very friendly with each other,” and “I just knew there wasn’t going to be a good

outcome.” Barboza’s premonition proved ominously prophetic; she witnessed

Gallop as he lifted his hoodie, retrieved a weapon, and fired it. Parrish fell to the

ground, mortally wounded.

1
The record reflects different spellings of the witness’s first name. We adopt the
spelling used in State v. Gallop, 89 A.3d 795 (R.I. 2014).
-2-
Nakia Green was also outside the Passions nightclub at the time of the

early-morning shooting. At the moment of the initial gunshot, Green was

approximately eight feet from Gallop and focused on him for five to ten seconds.

Although she had never had any previous interaction with Gallop, eight days after

the shooting, on December 22, 2008, she made a positive identification from a

photographic lineup.

A jury convicted Gallop of first-degree murder and related criminal offenses.

He was sentenced to two life sentences and a twenty-year sentence, all to be served

consecutively. Gallop also received two ten-year sentences, concurrent with the first

life sentence. Finally, pursuant to the habitual-offender statute, see G.L. 1956

§ 12-19-21, the trial justice sentenced Gallop to an additional nonparoleable

twenty-five-year sentence, consecutive to the twenty-year consecutive sentence.

Gallop appealed the conviction to this Court, which we affirmed. See Gallop, 89

A.3d at 806.

In June 2016, Gallop filed a pro se application for postconviction relief. After

the passage of several years, on September 20, 2021, Gallop, now represented by

legal counsel, filed a memorandum in support of his motion for summary disposition

pursuant to G.L. 1956 § 10-9.1-6(c). The crux of Gallop’s legal argument was that

prior to trial, the state failed to disclose that Barboza and Green were in the witness

-3-
protection program (WPP)2 and had been financially compensated in exchange for

their testimony. The state filed a memorandum in opposition and subsequently, the

trial justice scheduled the matter for a hearing on Monday, July 18, 2022. On June

1, 2022, Gallop filed a response and, on Thursday, July 14, 2022—days before the

scheduled hearing—he filed yet another memorandum with an accompanying

appendix. The trial justice promptly issued an order declaring that “[o]n Thursday,

July 14, 2022, petitioner unexpectedly filed a twenty-one (21) page Supplemental

Memorandum in Support of his [Postconviction-Relief] Application. Because of

this eleventh-hour filing, the July 18, 2022 hearing is hereby cancelled.” (Emphasis

omitted.)

On January 18, 2023, an evidentiary hearing on the application for

postconviction relief ensued. The petitioner presented the testimony of his trial

counsel, and the state called the prosecutor. Trial counsel, a former prosecutor,

testified forthrightly and professionally that, based on discussions with the

prosecutor, he “was well aware early on * * * that there was a great reluctance, on

behalf of Miss Green, to come forward, and that there would be some type of

attempt, at her request * * * to be relocated prior to trial.” Based upon this

2
The witness protection program was created through G.L. 1956 chapter 30 of title
12, entitled “Protection and Supervision of Criminal Witnesses.” A witness
protection review board reviews and approves, among other things, “the nature and
cost of the protection to be afforded.” Section 12-30-4.
-4-
knowledge, trial counsel also related that he “assumed that there would be some

expenditure,” adding, “that’s only natural.” Although trial counsel initially testified

that he had no recollection of having a conversation during which the state similarly

advised him that Barboza would be in the WPP, he later added that he “may have

[had such a conversation with the prosecutor]. I don’t have any recollection of that

at this time.” Trial counsel was steadfast that the state never revealed that Barboza

was receiving financial support.

The assistant attorney general who prosecuted the case contradicted trial

counsel’s testimony on several important points. For instance, she testified that

whether a witness was in the WPP was, in her opinion, “always discoverable,” but

she did so orally and never in writing to avoid public disclosure of information that

could jeopardize a witness’s security. She stressed that no direct payments were

made to Barboza or Green in exchange for their testimony and that she was

“confident that I told [trial counsel] about Miss Green being in witness protection,

and I am equally confident that I told [trial counsel] that Miss Barboza was going to

be utilizing witness protection.”

In resolving the application for postconviction relief, the trial justice

recognized that there was no dispute that the state had disclosed that Green was in

the WPP. With respect to Barboza, the trial justice expressed:

“In all, I find, unreservedly, that [the prosecutor’s] testimony
and memory that she had spoken to [trial counsel] about
-5-
[Shamair] Barboza being in witness protection, just as she
had discussed with him that Nakia Green was in witness
protection, is the most reliable and trustworthy.
“Put simply, there would have been absolutely no reason for
[the prosecutor] to withhold that information about [Shamair]
Barboza. She had told [trial counsel] about Nakia Green;
they discussed it. And there is no doubt in my mind, from
where I sat as a front-row observer at the
[postconviction-relief] hearing, that [the prosecutor’s]
memory is accurate and that she told [trial counsel] about
[Shamair] Barboza.
“Withholding that information from [trial counsel] would
have been foolhardy, not to mention entirely unprofessional
and unethical, and I categorically decline to ascribe such
conduct to her in this case.”
Accordingly, the trial justice concluded that the state had disclosed that Barboza and

Green were in the WPP and that Gallop had not carried his burden of proof; thus he

denied the application for postconviction relief.

Gallop promptly alerted the trial justice that the bench decision did not address

the alleged nondisclosure of the WPP expenditures. The trial justice initially expressed

that the expenditure issue was not raised during the postconviction-relief hearing, but

thereafter concluded, “I don’t think it’s at all meaningful or material at all. And I would

not in any way suggest by nuance, or hint, or scintilla, or iota of evidence that this has

anything whatsoever to do with this [postconviction-relief] hearing and the outcome of

the case.” Judgment entered for the state and Gallop filed a petition for a writ of

certiorari, which we granted.

Additional relevant facts will be discussed as necessary.
-6-
Standard of Review

Pursuant to § 10-9.1-1, postconviction relief “is available to a defendant

convicted of a crime who contends that his original conviction or sentence violated

rights that the state or federal constitutions secured to him.” Gordon v. State, 18 A.3d

467, 473 (R.I. 2011) (quoting Young v. State, 877 A.2d 625, 628 (R.I. 2005)). “This

Court will not disturb a trial justice’s factual findings made on an application for

post-conviction relief absent clear error or a showing that the trial justice overlooked

or misconceived material evidence in arriving at those findings.” Id. (quoting

Bustamante v. Wall, 866 A.2d 516, 522 (R.I. 2005)). “When we review a

determination of whether a violation of Rule 16 [of the Superior Court Rules of

Criminal Procedure] or Brady [v. Maryland, 373 U.S. 83 (1963)] occurred, the

applicable standard [of review] is narrow: the trial justice must have committed clear

error.” State v. Briggs, 886 A.2d 735, 755 (R.I. 2005).

Discussion

The petitioner contends that the trial justice erred when he denied (1) the

motion for summary disposition and (2) the application for postconviction relief,

which was based upon the state’s purported failure to disclose that Barboza and

Green were in the WPP and incurred related expenses. Gallop claims that the

purported nondisclosures violated Rule 16 and Brady. We disagree.

-7-
A

The Motion for Summary Disposition

Section 10-9.1-6(c) provides that “[t]he court may grant a motion by either

party for summary disposition of the application when it appears from the pleadings,

depositions, answers to interrogatories, and admissions and agreements of fact,

together with any affidavits submitted, that there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law.” “[S]ummary

dismissal under § 10-9.1-6(c) ‘closely resembles’ a grant of summary judgment

under Rule 56 of the Superior Court Rules of Civil Procedure * * *.” Reyes v. State,

141 A.3d 644, 652 (R.I. 2016) (quoting Palmigiano v. State, 120 R.I. 402, 405, 387

A.2d 1382, 1384 (1978)).

In this matter, Gallop filed a memorandum in support of his motion for

summary disposition; the state filed an objection, and, on June 1, 2022, Gallop

submitted a response. At this juncture, the parties had completed their written

arguments and the motion was due to be heard on the previously scheduled date,

Monday, July 18, 2022. However, on Thursday, July 14, 2022—just days before the

scheduled hearing—petitioner surprisingly filed an additional twenty-one-page

supplemental memorandum and, for the first time, a thirty-four-page appendix. The

trial justice responded to what he described as an “unexpectedly * * * eleventh-hour

filing” by promptly canceling the July 18, 2022 summary-disposition hearing.

-8-
Although Gallop insists that the trial justice erred when he “denied” the motion for

summary disposition,3 the state counters that a hearing on the motion never occurred

and that petitioner never raised an objection. Thus, the state submits, this issue is

waived. We agree.

It is beyond question that “this Court staunchly adheres to the raise or waive

rule.” State v. Barros, 148 A.3d 168, 174 (R.I. 2016) (brackets omitted) (quoting

State v. Figuereo, 31 A.3d 1283, 1289 (R.I. 2011)). “As we have said on

innumerable occasions, ‘a litigant cannot raise an objection or advance a new theory

on appeal if it was not raised before the trial court.’” Id. at 172 (quoting State v. Bido,

941 A.2d 822, 829 (R.I. 2008)). Generally, we “will not overturn a judgment based

on an alleged error that was not brought to the attention of the trial justice.” State v.

Tavares, 312 A.3d 449, 458 (R.I. 2024).

The record is pellucid that Gallop never objected to the cancellation of the

hearing on the motion for summary disposition. Nor did Gallop complain to the trial

3
Relatedly, Gallop contends that the trial justice erred when he assessed the
credibility of the witnesses (trial counsel and the prosecutor) during the
summary-disposition hearing. As discussed, the trial justice canceled the hearing on
the motion for summary disposition, and Gallop raised no objection. Rather, the
record is clear that the trial justice conducted an evidentiary hearing on the merits.
See G.L. 1956 § 10-9.1-6(b) (“Disposition on the pleadings and record is not proper
if there exists a genuine issue of material fact.”). Because a hearing on the motion
for summary disposition did not occur, Gallop’s argument that the trial justice erred
by making factual findings is misplaced.

-9-
justice that he was deprived of a hearing on the motion for summary disposition.

Accordingly, this issue is waived, and we have no occasion to consider it.4

B

The Eyewitnesses’ Participation in the WPP

Next, Gallop avers that the state intentionally withheld discovery that would

have revealed that Barboza and Green were in the WPP. The petitioner contends

that the nondisclosure violated Rule 16 and Brady, and, thus, the trial justice erred

when he denied the application for postconviction relief. We swiftly dispense with

this claim.

As a result of an evidentiary hearing, the trial justice resolved a factual dispute

and supportably concluded that the state had disclosed that Barboza and Green were

in the WPP. In this regard, it is undisputed that during the postconviction-relief

hearing, trial counsel testified that he had “a very specific recollection of [the

prosecutor] early on indicating that Miss Green * * * at some point she was going to

4
Notwithstanding the cancellation of the hearing on the motion for summary
disposition, for the reasons detailed in this opinion, the motion should have been
denied. The denial of a motion for summary disposition is an interlocutory order
and, “absent ‘peculiar circumstances,’” is not immediately appealable to this Court.
See Henderson v. Nationwide Insurance Company, 35 A.3d 902, 905 n.6 (R.I. 2012)
(quoting Estate of McAlpine v. Estate of McAlpine, 120 R.I. 135, 143, 386 A.2d 179,
183 (1978)). Moreover, “[a]ny error in denying the motion is rendered harmless by
a fair determination of the merits at trial.” Estate of McAlpine, 120 R.I. at 143, 386
A.2d at 183. As discussed herein, Gallop was afforded an evidentiary hearing on his
application for postconviction relief and a judgment on the merits followed.

- 10 -
be relocating. * * * There’s no question [the prosecutor] and I had discussions with

regard to Nakia Green.” Although the evidence may have been conflicting

concerning whether the state similarly advised Gallop that Barboza would be in the

WPP, the trial justice reviewed the record and concluded that the state made such an

oral disclosure. Likewise, we have carefully reviewed the record and conclude that,

in arriving at this determination, the trial justice did not overlook or misconceive any

material evidence.5 See, e.g., Gordon, 18 A.3d at 473 (“This Court will not disturb a trial

5
The trial justice supported this credibility determination. In the first instance, the
trial justice recalled trial counsel’s testimony that he had no recollection concerning
having any conversations regarding Barboza’s participation in the WPP. But
somewhat contradictorily, when trial counsel was later asked whether he had “any
oral conversation” with the prosecutor about Barboza’s participation in the WPP, he
answered, “I may have. I don’t have any recollection of that at this time.” In a
second instance, the trial justice referenced a notable discrepancy concerning
petitioner’s age and Barboza’s age on the date of the shooting. Trial counsel testified
that it was his recollection that Barboza was a few years younger than Gallop and
trial counsel also recalled testifying at his deposition that Barboza was as many as
ten years younger than Gallop. In actuality, Barboza testified during trial that she
was twenty-seven years old, approximately one year older than Gallop. When
confronted with this testimony, trial counsel simply retorted, “I don’t have any
recollection of that” and “I could be mistaken.” As noted by the trial justice, this
discrepancy was material because if Barboza was a decade younger than Gallop, she
would have been “about 14 or so at a bar when she witnessed the events * * *.” In
a third instance, trial counsel testified that prior to trial it was his intention that the
jury not learn that Barboza or Green were in fear of Gallop. When confronted with
the trial testimony documenting such an inquiry, trial counsel responded that he had
“no recollection of asking that question.”

Notwithstanding these discrepancies and the trial justice’s determination that
the prosecutor’s recollection was more reliable, the trial justice elucidated:

- 11 -
justice’s factual findings made on an application for post-conviction relief absent clear

error or a showing that the trial justice overlooked or misconceived material evidence in

arriving at those findings.”) (quoting Bustamante, 866 A.2d at 522). For these reasons,

we conclude that the trial justice did not err when he determined that the state disclosed

that Barboza and Green were in the WPP.

C

The WPP Expenditures and Rule 16

Gallop also maintains that the state violated Rule 16 when it failed to provide

discovery related to the expenditures incurred as a result of Barboza’s and Green’s

participation in the WPP. Although Gallop claims that the amount received by the

two eyewitnesses was approximately $18,000, our examination of the record

establishes that in the period leading up to trial, only the minimal amount of $2,500

was expended for Barboza’s participation.6 With respect to the amount expended

“[I]n no way am I suggesting that [trial counsel’s]
performance, either at trial or at the [postconviction-relief]
hearing, was unprofessional, substandard, or ineffective.
He is a highly regarded practitioner, just as is [the
prosecutor].

“I simply find that with respect to this issue, I believe [the
prosecutor’s] recollection is better and more reliable than
his.”
6
Our review reveals that the witness protection review board approved
approximately $18,000 in expenditures for both Barboza and Green, but only $2,500
was expended on behalf of Barboza’s protection. See § 12-30-4. We discern no
- 12 -
for Green’s protection, the record is silent. Critically, Gallop fails to direct our

attention to any provision of Rule 16 requiring such disclosure, and our review

discovers none.

This Court has recognized that “with respect to ‘persons whom the state

expects to call as witnesses,’ Rule 16 * * * requires that the state produce only prior

recorded statements of a witness, a summary of the witness’s expected trial

testimony, and any records of prior convictions.” State v. Chalk, 816 A.2d 413, 418

(R.I. 2002) (brackets omitted) (quoting Super. R. Crim. P. 16).

Here, the expenditure information does not fall within the above-identified

categories. Nor does the information fall within any provision of Rule 16 requiring

disclosure. See Super. R. Crim. P. 16(a)(1)-(10). While such information, to the

extent it existed, could have been sought through a motion for promises,

inducements, and rewards—or a similar and common defense request—trial counsel

candidly acknowledged that no such motion or request was filed. In the absence of

a court order or rule requiring the disclosure of the WPP expenditure information,

the state’s nondisclosure did not violate Rule 16.7

evidence that any funds were paid directly to either eyewitness in exchange for their
testimony.

7
The petitioner’s reliance upon State v. Stravato, 935 A.2d 948 (R.I. 2007), and
State v. Adams, 481 A.2d 718 (R.I. 1984), is misplaced. In Stravato, the defendant
filed a request for discovery, and we determined that pursuant to Rule 16(a)(8) of
the Superior Court Rules of Criminal Procedure, the state was required to disclose a
- 13 -
D

The WPP Expenditures and Brady

Finally, we consider petitioner’s contention that the state violated Brady when

it failed to disclose the WPP expenditures. The record is silent concerning whether

the state disclosed to the defense the $2,500 expenditure incurred for Barboza’s

protection.

“Beyond the mandates of Rule 16, the due process clause of the federal

constitution, as interpreted by Brady and its progeny, require the state to turn over

certain information.” Briggs, 886 A.2d at 754-55. “Regardless of whether a

defendant requests the information, ‘the suppression by the prosecution of evidence

favorable to the accused violates due process where the evidence is material either

to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.’”

Id. at 755 (deletion omitted) (quoting Cronan ex rel. State v. Cronan, 774 A.2d 866,

880 (R.I. 2001)). “Material evidence, either in the nature of exculpatory or

impeachment evidence, must be sufficiently central to the criminal case; there must

victim-impact statement containing statements of the complaining witness. See
Stravato, 935 A.2d at 955-56. The failure to do so, we concluded, represented a
deliberate nondisclosure. See id. at 956. Similarly in Adams, we observed that the
defendant “moved under Rule 16(a)(5) for discovery of all scientific tests and any
tangible evidence connected thereto.” Adams, 481 A.2d at 722. When the state failed
to disclose a scientific report, this Court concluded that “the prosecutor was
absolutely without authority to interpret Rule 16(a)(5) so as to excuse the
nondisclosure * * * on the basis that it would not be used at trial.” See id. at 724.
- 14 -
be ‘a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.’” Id. (footnote omitted) (quoting

Cronan, 774 A.2d at 880).

“While the United States Supreme Court has chosen to tailor its analysis toward

the impact of nondisclosure on the trial outcome, we * * * adopt[ed] a variable standard

of materiality based on the degree of prosecutorial culpability.” State v. Wyche, 518 A.2d

907, 910 (R.I. 1986). “When the failure to disclose is deliberate, this [C]ourt will not

concern itself with the degree of harm caused to the defendant by the prosecution’s

misconduct; we shall simply grant the defendant a new trial.” Id. In so doing, “[t]he

prosecution acts deliberately when it makes ‘a considered decision to suppress for the

purpose of obstructing’ or where it fails ‘to disclose evidence whose high value to the

defense could not have escaped its attention.’” Id. (brackets and deletions omitted)

(quoting United States v. Keogh, 391 F.2d 138, 146-47 (2d Cir. 1968)).

In cases involving inadvertent nondisclosure, we examine “the prejudicial effect

of the nondisclosure.” Chalk, 816 A.2d at 419. Under these circumstances, the

“defendant bears the burden of establishing that it was prejudicial * * * by showing that

the nondisclosed evidence was material because ‘there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have

been different.’” Id. (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)).

- 15 -
As noted, at the conclusion of the postconviction-relief hearing, petitioner alerted

the trial justice that the bench decision did not address the issue of expenditures. The

trial justice responded, “I don’t think it’s at all meaningful or material at all. And I would

not in any way suggest by nuance, or hint, or scintilla, or iota of evidence that this has

anything whatsoever to do with this [postconviction-relief] hearing and the outcome of

the case.” We agree with the trial justice’s conclusion.

1

Reason for the Nondisclosure

“The first factor we examine in the due process inquiry is the reason for the

nondisclosure.” Chalk, 816 A.2d at 418. Although Gallop repeatedly claims the state’s

nondisclosure was deliberate, he provides no authoritative support or explanation for

that conclusionary statement. It is undisputed that the state disclosed that Green was in

the WPP; additionally, the trial justice concluded that the state disclosed that Barboza

was in the WPP. Those findings are meaningful and lead to the inescapable conclusion

that expenditures would, in all likelihood, be incurred on their behalf. Trial counsel

confirmed this reasoning, testifying that based upon his awareness that Green was in the

WPP, he “assumed that there would be some expenditure * * *. I mean, that’s only

natural.”

To be sure, trial counsel testified that he did not anticipate expenditures for

Barboza, most notably because, he believed, the state failed to disclose that she was in

- 16 -
the WPP. But this testimony does not advance petitioner’s position because the trial

justice rejected that argument. Having concluded that the state also revealed that

Barboza was in the WPP, see supra, it remains “only natural” that expenditures would,

in all likelihood, have been incurred on her behalf.8

Based upon the foregoing, we are satisfied that the state’s nondisclosure of the

$2,500 expenditure (and the nearly $18,000 that had been approved for expenditures)

did not represent “a considered decision to suppress for the purpose of obstructing” or

constitute “evidence whose high value to the defense could not have escaped its

attention.” Chalk, 816 A.2d at 419 (emphasis, deletions, and brackets omitted) (quoting

Cronan, 774 A.2d at 880). In short, “there is nothing in the record of the instant case

indicating that this was a deliberate nondisclosure.” Gordon, 18 A.3d at 475; see also

Briggs, 886 A.2d at 759 (“[D]efendant fails to point to evidence that persuades us that

the state made a ‘considered decision’ to withhold the evidence.”).

8
Our review of the record reveals additional evidence that supported the trial
justice’s conclusion that Gallop and trial counsel were aware—or should have been
aware—that Barboza was in the WPP. During the postconviction-relief hearing, trial
counsel was confronted with trial testimony showing that he asked Barboza if she
was in fear of Gallop. Based upon that inquiry, trial counsel acknowledged that he
must have had some indication that Barboza was in fear of petitioner. Trial counsel
further acknowledged knowing that Barboza had two family members killed within
weeks of the Passions nightclub shooting and that Barboza was a reluctant
eyewitness “based on the neighborhood that [she and Gallop] grew up in.” These
considerations advance the conclusion that trial counsel and Gallop were aware—or
should have been aware—that Barboza was a reluctant eyewitness who feared
Gallop and was a prime candidate for the WPP.
- 17 -
2

The Materiality Prong

“When, as here, the nondisclosure was unintentional, we next consider the

prejudicial effect of the nondisclosure.” Chalk, 816 A.2d at 419. “In these

circumstances, defendant bears the burden of establishing that it was prejudicial * * *

by showing that the nondisclosed evidence was material because ‘there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.’” Id. (quoting Strickler, 527 U.S. at 280). After

reviewing the record, we conclude that Gallop has not satisfied his burden.

This Court has recognized, “evidence is not considered suppressed and, therefore,

a new trial is not necessary if the defendant knew or should have known of the essential

facts permitting him to take advantage of that evidence.” State v. McManus, 941 A.2d

222, 230 (R.I. 2008). Here, the record is clear that the state disclosed that Barboza and

Green were in the WPP, and therefore we are satisfied that Gallop knew—or should

have known—that both eyewitnesses could have incurred WPP expenses. As trial

counsel testified, “that’s only natural.”

Of equal importance, the $2,500 expended for Barboza’s protection prior to and

during trial was de minimis, and the evidence of Gallop’s guilt was overwhelming.

Gallop was identified as the shooter by two eyewitnesses with no connection to each

other. Green—regarding whom the record is silent concerning whether she incurred any

- 18 -
WPP expenditures—testified that she was approximately eight feet from the shooter and

after hearing the initial gunshot, she concentrated on Gallop for five to ten seconds. She

had never interacted with Gallop but within days of the shooting, she identified him from

a photographic lineup. Independently, Barboza had known petitioner for more than

fifteen years and was focused upon him in the moments before the shooting, testifying

that “I just knew there wasn’t going to be a good outcome.” Barboza related that she

had a “clear view” as she witnessed him lift his hoodie, retrieve a firearm, aim it at

Parrish, and shoot. Because Barboza had known Gallop since childhood and had

witnessed the shooting, her identification was a direct hit to the defense.

Daniel O’Connell, a detective with the Providence Police Department, also

testified that nine days after the shooting, on December 23, 2008, he arrived at the

Massachusetts State Police barracks to bring Gallop into custody. Before leaving the

barracks, Det. O’Connell escorted petitioner into a nearby interview room; without being

prompted, Gallop spontaneously queried, “What do you get for murder in Rhode

Island?” Immediately, Det. O’Connell read Gallop his constitutional rights and upon

being questioned, petitioner not only denied being in Providence on the date of the

shooting but insisted that he had not visited Providence during the preceding year.

The state submitted evidence that contradicted Gallop’s exculpatory denial.

Joseph Trawicki, an employee with Sprint Nextel, testified concerning the location of

Gallop’s cellphone in the moments before and after the shooting. Trawicki related that

- 19 -
at approximately 2:07 a.m.—about twenty minutes before the shooting—Gallop’s

cellphone relayed off a tower near 59 Central Street in Providence. Trawicki continued

to testify concerning petitioner’s cellphone, tracking its movement at 2:27 a.m. to

Providence, at 2:29 a.m. to East Providence, and thereafter into Massachusetts.

Detective O’Connell testified that 59 Central Street—the location of the cell tower that

connected to Gallop’s cellphone in the minutes before the shooting—was approximately

150 to 200 yards from the crime scene. The petitioner’s claim that he was not in

Providence on the morning of the shooting—or during the preceding year—was soundly

repudiated.

In the face of this damning evidence, the record demonstrates that trial counsel

performed admirably and professionally. He impeached Barboza, noting that her

identification was made nearly a year after the shooting and after multiple failed

opportunities to alert law enforcement that Gallop was the person who murdered her

friend. This point was vociferously argued during closing arguments when trial counsel

suggested that, in the year between the shooting and the identification, Barboza heard

from others that Gallop was the shooter. Trial counsel also attacked the ability of

Barboza to make an accurate identification when she was approximately 100 feet from

the shooter, who, at that time, was intermingled with an estimated 400 to 600 other

people exiting the nightclub; and trial counsel also challenged Green’s ability to make

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an accurate identification when she admittedly had been drinking prior to the shooting

and testified that she was only 90 percent certain that Gallop was the shooter.

Additionally, trial counsel referenced the medical examiner’s testimony that the

trajectory of the bullet entered Parrish’s midlevel and traveled in an upward path. As

argued, Gallop and Parrish were both six feet tall, and thus, “No way. No way * * * two

people of equal height, strikes them in upward trajectory like that as demonstrated by

the medical examiner. No way.”

Considering the state’s evidence of guilt and trial counsel’s wide-ranging

impeachment efforts, we cannot conclude that had the $2,500 WPP expenditure been

disclosed, there was a reasonable probability that “the result of the proceeding would

have been different.” Chalk, 816 A.2d at 419 (quoting Strickler, 527 U.S. at 280); see

also Mastracchio v. Moran, 698 A.2d 706, 715 (R.I. 1997) (“We conclude in light of

the self-corroborating nature of the testimony given by Gilbert to the jury at Gerald’s

trial, and the exposure to the jury by defense counsel of Gilbert’s criminal and personal

background, that the so-called posttrial newly discovered evidence relating to Gilbert’s

activities while in police custody, even if known to the trial jury, would not have in any

circumstance created a reasonable probability that the jury’s verdict would have been

any different.”).

In this regard, the record details the inculpatory risk to Gallop in eliciting

testimony that the eyewitnesses had been afforded protection because they feared him

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and that Barboza had incurred the minimal amount of $2,500 in WPP expenditures.

Such a line of inquiry, trial counsel indicated, is “detrimental in my opinion to the client’s

interests * * *.” Indeed, not only would this line of questioning have informed the jury

that the man on trial for murder was feared by the two eyewitnesses, but trial counsel

also testified that he believed it was “legitimate that [the state] would pay relocation

expenses for however long the [s]tate felt it was necessary for either witness.”

Admittedly, trial counsel pondered, “[w]hen you’re starting in at that 5, 10, 15 thousand

dollar range, you know, maybe [that] changes the calculations somewhat. I don’t

know.” But, when the amount expended was less than $5,000, trial counsel suggested

during his deposition, “I don’t think my advice -- you know, it’s hard to say, but probably

would not have changed, don’t go down that road, it’s opened up a lot of doors.”9

At bottom, if the state had disclosed that Barboza received $2,500 in WPP

expenditures, it is entirely speculative whether Gallop would have used this

disclosure to elicit additional impeachment evidence, particularly in light of trial

9
Trial counsel’s deposition testimony, which was marked as a full exhibit during the
postconviction-relief hearing, related to Green; however, the rationale remains constant.
The $2,500 expended on Barboza was de minimis, and particularly so when considering
that impeaching Barboza on the WPP expenditures would necessarily reveal that she
was in the WPP. See, e.g., Commonwealth v. Treiber, 121 A.3d 435, 462 (Pa. 2015)
(“Appellant fails to acknowledge Mr. Pianta was essentially placed in a
witness-protection program because he feared appellant would retaliate after he
implicated him in the arson and murder * * *. The challenged evidence was not material
or helpful to appellant, as it would have raised the inference he would retaliate.”).

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counsel’s understandable concern that the jury not learn that the eyewitnesses were

in the WPP and in fear of Gallop. “In our opinion, [petitioner] merely raising the

possibility of doing so is not sufficient to establish that, had the evidence been

produced sooner, there is a reasonable probability that [Gallop] would not have been

convicted.” Chalk, 816 A.2d at 419. Considering trial counsel’s already extensive

impeachment efforts, “any additional impeaching statements ‘would merely have

been cumulative for impeachment purposes,’ and thus they ‘fail the test of the

likelihood that they would have produced a reasonable doubt of guilt.’” Id. at 420

(brackets omitted) (quoting State v. Bassett, 447 A.2d 371, 377 (R.I. 1982)). Gallop

has failed to identify “how his defense would have been different had he learned

about the [WPP expenditures or approvals] sooner.” Id.

Finally, it is significant that Barboza and Green both identified Gallop as the

shooter well before entering the WPP. After entering the WPP in 2010, their

identifications never changed. See Mastracchio v. Vose, 274 F.3d 590, 604 (1st Cir.

2001) (“The fact that Gilbert had staked out his position well before he received any

emoluments renders remote any possibility that the jury would have thought that he

had fabricated his story in return for cash.”); Mastracchio, 698 A.2d at 718

(“Gilbert’s testimony * * * was completely consistent with at least three prior

statements given by him in 1985 before his witness-sentence agreement with the

state and before the occurrence of the alleged abuses of Gilbert’s confinement.”).

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Consequently, we conclude that Gallop has failed to demonstrate that the

nondisclosure was prejudicial.

Conclusion

For the reasons stated, the judgment of the Superior Court is affirmed. The papers

in this case are remanded to the Superior Court.

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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 Dana Gallop v. State of Rhode Island.

No..2023-82-M.P.
Case Number
(PM 16-2668)

Date Opinion Filed November 26, 2025

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:

Christopher R. Bush
Attorney(s) on Appeal Department of Attorney General
For Petitioner:

Richard K. Corley, Esq.