State v.Ezekial Johnson

May 26, 2021
Supreme Court

No. 2019-35-C.A.
(P1/17-3082AG)

State :

v. :

Ezekial Johnson. :

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

No. 2019-35-C.A.
(P1/17-3082AG)

State :

v. :

Ezekial Johnson. :

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

OPINION

Chief Justice Suttell, for the Court. The defendant, Ezekial Johnson, was

convicted by a jury of one count of first-degree murder (count one); one count of

discharging a firearm during the commission of a crime of violence, to wit, murder

(count two); and one count of carrying a firearm without a license (count three). He

was sentenced to consecutive life sentences on count one and count two and ten

years to serve on count three.

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

in-court identification evidence; (2) limiting cross-examination; and (3) denying

defendant’s motion for a new trial. The defendant maintains that each of these errors

entitles him to have his conviction vacated and be granted a new trial. After careful

consideration of defendant’s arguments and a thorough review of the record, we

affirm the judgment of conviction.

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I

Facts and Travel

On July 16, 2007, Jose Rodriguez was shot and killed while driving his

taxicab. Over ten years later, on October 27, 2017, a Providence County grand jury

returned an indictment charging defendant with one count of murder; one count of

discharging a firearm during the commission of a crime of violence, to wit, murder;

and one count of carrying a firearm without a license. A jury trial was held over two

weeks in July 2018. At trial, the testimony revealed the following.

Rodriguez was employed as a taxicab driver for Gonzalez Cab; and, on July

16, 2007, he was dispatched around noon to transport a fare from Providence to

Central Falls. While making the trip, Rodriguez spoke on the telephone to his wife,

Anna,1 and told her that the three men in his taxicab were behaving suspiciously.2

Soon after Rodriguez shared his concern about the passengers, the call suddenly

disconnected. Anna repeatedly attempted to call him back. Although she was unable

to reach her husband, one of her calls did connect to his phone, and she heard

someone laughing.

1
There were inconsistencies in the record as to Anna’s last name; accordingly, we
use only her first name in this opinion. No disrespect is intended.
2
Because Anna passed away in 2011, the details about her conversation with
Rodriguez were elicited through the testimony of her daughter.

-2-
At around the same time, Lymari Gonzalez (Gonzalez) was standing outside

her home on Garfield Street in Central Falls when she noticed a taxicab that “was

going way too slow.” Gonzalez turned to look at the taxicab and observed three men

seated in the back seat. She watched the taxicab as it continued to drive slowly on

Garfield Street and then turn right onto Fuller Avenue. After the taxicab turned the

corner, Gonzalez heard a gunshot followed by the sound of a crash. Seconds later,

she observed the three male passengers from the taxicab running towards her, while

they were looking back in the direction of the taxicab; and she watched as two of the

men flung the hats they were wearing into the bushes in front of the home at 99

Garfield Street.

Once the three men were out of sight, Gonzalez and her husband ran to the

corner of Garfield Street and Fuller Avenue, where they observed that the taxicab

had crashed. When Gonzalez approached the taxicab, she saw that the driver was

still inside holding a cell phone and had blood coming down his neck. As other

people arrived on the scene, Gonzalez returned to her home.

Later that day, Anna, who was still attempting to locate her husband, went to

the hospital, where she learned that he had been shot and was on life support.

Rodriguez was disconnected from life support and died the following day.

On the evening of the shooting, Gonzalez went to the Central Falls Police

Department to report what she had witnessed, including the fact that she had watched

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two of the men toss the hats that they were wearing into the bushes. Police officers

showed Gonzalez a photographic array, but she did not recognize any of the

individuals in the photographs as being the men whom she had seen in the taxicab.

Two days later, upon her return to the Central Falls police station, Gonzalez was

shown a different photographic array and identified two men she believed she had

seen in the taxicab. Those men, however, were subsequently eliminated as suspects.

After her second meeting with police, Gonzalez had no further contact with law

enforcement until ten years later, in October 2017.

As part of the investigation, the Central Falls police obtained video taken from

a surveillance camera at 114 Garfield Street, which showed Rodriguez’s taxicab

driving down Garfield Street towards Fuller Avenue around noon on the day of the

murder.3 Approximately a minute and a half later, the video showed “three black

males” “running down Garfield towards Dexter.” Police attempted to enhance the

video for purposes of identifying the three men but were unsuccessful in doing so.

The police also seized the two hats that were thrown into the bushes in front

of the home at 99 Garfield Street—one red and one black baseball cap. In 2009, the

Central Falls police submitted the hats to the Rhode Island Department of Health

3
Officer Nathan McGarry of the Central Falls Police Department testified that the
time stamp on the video was off by “approximately 50 minutes” and that he had
compared the time stamp to his watch in real time in order to determine that the
actual time of the video recording was approximately noon, despite the time stamp
on the video displaying “1:18[.]”

-4-
(RIDOH) for DNA testing. Although there was DNA found on each hat, the DNA

was not compared to any reference sample at that time. Both hats were returned to

the Central Falls Police Department along with their corresponding DNA analysis

reports.

Nearly seven years after the murder, the police received information

concerning Rodriguez’s murder from Jon Thomas (Thomas), who subsequently

entered into cooperation agreements to provide information in two other criminal

cases. Thomas grew up on the south side of Providence and joined the YNIC “gang”

around age thirteen.4 According to Thomas, a few days after Rodriguez’s murder,

he met up with fellow YNIC members Jayquan Garlington (Garlington) and

defendant. While the three were together, Garlington told Thomas that Garlington,

defendant, and another YNIC member, Dwayne Morris (Morris), had taken a taxicab

to Central Falls with the plan of getting out of the taxicab without paying the fare.

According to Thomas, Garlington was upset when he was relaying the story because

things had not gone as planned; Garlington told him that, instead of simply exiting

the cab without paying, defendant pulled out a gun and shot the taxicab driver in the

back of the head while the driver was talking on his cell phone. Thomas also recalled

that Garlington had stated that, after the driver was shot, the men were laughing

4
Due to the epithetical nature of the gang’s full name, we will refer to the gang using
only its acronym throughout this opinion.

-5-
because they tripped as they jumped out of the moving taxicab. As Garlington

relayed the story to Thomas, defendant was laughing and “[n]odding his head up and

down.”

In 2017, the Central Falls Police Department sent the hats that were seized

from the crime scene back to RIDOH for further DNA analysis. Senior Forensic

Scientist, Tamara Wong (Wong), developed DNA reference profiles from buccal

swabs taken from defendant, Garlington, and Morris. When Wong compared the

DNA profile from the black hat to the DNA of defendant, she determined that the

major component of that DNA was consistent with defendant’s DNA, with the

likelihood that it came from anyone other than defendant being “one in a hundred

and twenty-eight quintillion.”

A

Pretrial Motion to Suppress

At defendant’s bail hearing on November 15, 2017, Gonzalez was called to

testify and, for the first time, identified defendant as one of the men she saw in the

taxicab.5 On June 26, 2018, defendant filed a motion to suppress Gonzalez’s in-court

identification, on the basis that the identification procedure was impermissibly

5
This Court was not provided a transcript of the November 15, 2017 bail hearing;
however, it is undisputed that defendant did not object to Gonzalez’s identification
during the hearing, nor did he request an evidentiary hearing before the identification
was introduced.

-6-
suggestive and resulted in identification evidence that was unreliable. Further,

defendant argued that Gonzalez did not have personal knowledge with respect to

defendant, and therefore she was not competent to identify him pursuant to Rule 602

of the Rhode Island Rules of Evidence.

On July 6, 2018, a hearing was held on defendant’s motion to suppress.

During the hearing, Gonzalez testified that, at around noon on July 16, 2007, “a

traumatic thing * * * happened * * * that [she] just can’t forget.” She recounted that

she had been standing on the sidewalk in front of her home on Garfield Street when

a slow-moving taxicab caught her attention. She testified that she had observed three

“youngish” men with “dark skin” arguing in the back seat of the taxicab and that she

had stared at them as the taxicab passed within approximately six feet of her.

Gonzalez further testified that, after she heard a gunshot, she watched the three men

from the taxicab run down the sidewalk towards her. When asked if any of the men

had looked at her while they ran down the sidewalk, Gonzalez responded in the

affirmative and identified defendant in the courtroom as one of the men who looked

at her that day. Further, she testified that she had stared at defendant as he crossed

the street because she “knew something was going to happen[,]” and, thus, she

focused her attention on defendant and could not forget his face.

On cross-examination, Gonzalez admitted that she could not recall where

defendant was sitting in the taxicab, nor could she recall what defendant was wearing

-7-
as he ran down the street—including whether he was one of the individuals wearing

a hat. She also confirmed that she had merely provided police with a general

description of the suspects, reporting that all three were dark-skinned men who were

approximately six feet tall and weighed about 150 pounds. Further, she

acknowledged that, on July 18, 2007, she identified two individuals in a

photographic array because she was certain that they were two of the men that she

had seen in the taxicab and running down Garfield Street on July 16, 2007. She also

testified, however, that she was never shown a photograph of defendant and had not

seen defendant at any point between the murder in 2007 and bail hearing in 2017.

Moreover, Gonzalez testified at the suppression hearing that she recognized

defendant as soon as she saw him at the bail hearing, stating,

“When I saw him that day, when I came in, I got real
nervous. My body was shaking. I tried not to look at him.
And I was sweating. As soon as I look at his eye, I knew
it was him. I tried not to look at him the rest of the case[.]”

On redirect examination, Gonzalez explained that, although she did not know

defendant’s name prior to the bail hearing, she knew defendant and his family from

growing up in Central Falls. She also provided inconsistent testimony as to whether

or not defendant was wearing handcuffs during the bail hearing.

In ruling on defendant’s motion to suppress, the trial justice rejected

defendant’s argument that Gonzalez’s identification was impermissibly suggestive

due to the fact that defendant was the “only African American male at the [defense]

-8-
table, and was shackled in handcuffs.” The trial justice explained that most federal

circuit courts have rejected similar arguments and discussed United States v.

Thomas, 849 F.3d 906 (10th Cir. 2017),6 as one such example. The trial justice went

on to discuss how, in Thomas, “[t]he eyewitness had never been asked to identify

the robber before, and her in-court identification occurred more than 19 months after

the robbery.” He further noted that the defendant in Thomas “contended that the

in-court identification * * * was unduly suggestive because he was the only

African-American man at counsel table.” The trial justice noted that the Tenth

Circuit, however, held that the circumstances were not the product of improper

conduct by law enforcement and that, therefore, the identification procedure was not

impermissibly suggestive.

The trial justice concluded that the circumstances in Thomas were analogous

to this case. He also found that there was no improper state action in this case,

finding: “The [s]tate did nothing. [The defendant] demanded the bail hearing. [The

defendant] didn’t object to the identification when it was made in court. In fact,

[defendant] capitalized her [sic] in cross-examination on her misidentification of two

other individuals, knowing that she had previously misidentified other individuals.”

6
Although the trial justice referred to the case as “United States v. Thompson,” it is
clear from his recitation of the facts, issue, and holding that he was referring to
United States v. Thomas, 849 F.3d 906 (10th Cir. 2017).

-9-
Next, the trial justice examined the reliability of Gonzalez’s testimony

utilizing the factors set out in Neil v. Biggers, 409 U.S. 188 (1972). See Biggers, 409

U.S. at 199-200. Under the first prong—the opportunity to view the defendant at

the time of the crime—he found that Gonzalez had “full opportunity” to view

defendant, as she was six feet away from the taxicab as it drove by “well below the

speed limit” and “[e]ye contact [wa]s made.”

Turning to the second prong—the witness’s degree of attention—the trial

justice found that Gonzalez was “very focused” on the car and its occupants. He

noted that “she never took her eyes off the cab[,] [s]he stared at the occupants[,]

[t]hey stared back[,]” and she even observed that the driver was on the telephone.

Ultimately, the trial justice concluded that the witness’s degree of attention was

“extraordinary.”

Examining the third prong—the accuracy of the witness’s prior description of

the defendant—the trial justice found that Gonzalez’s memory of defendant from

the neighborhood was “weighty.” The trial justice deemed the third prong satisfied

and dismissed defendant’s assertion that Gonzalez had previously only given a

general description of the three suspects and did not provide police with any

distinguishing features. He further explained that “[t]hese are issues that go to the

weight of her testimony that you can argue to a jury. It doesn’t go to her

incompetence to testify[.]”

- 10 -
Next, the trial justice concluded that the fourth prong—the witness’s level of

certainty in her identification at the time of the identification—had been satisfied,

finding that “she walked into the courtroom at the bail hearing and virtually froze,

in a cold sweat, as soon as she saw him.”7 As to the fifth and final prong—the length

of time between the crime and the identification—the trial justice stated:

“Yes, it’s a decade. It’s a long time. I know that. I can’t
explain why the police officer decided not to the [sic]
show this lady a photo array, and it’s going to be great food
for you to argue to the jury as to why they didn’t, and that
her identification ten years later must be flawed because
the police dropped the ball. That’s argument [sic] that I
will fully expect you to make.”

Ultimately, the trial justice concluded that he was “well satisfied from the

totality of the circumstances, and applying the Biggers factors, that this witness has

demonstrated before [him], as a front-row observer, that her identification [was]

based upon an independent reliable memory and not affected by any suggestiveness

of the in-court proceedings[.]” He found that Gonzalez should be permitted to make

another in-court identification, if requested by the state at trial, because there was

“ample, sufficient, independent reliability inherent in her identification.”

7
The trial justice correctly noted that the level of certainty at the time of the
identification is, as he described it, an “element that the courts have softened a lot.”
See State v. Washington, 189 A.3d 43, 58-59 n.12 (R.I. 2018) (recognizing that
studies have shown “that a witness’s confidence in his or her identification does not
necessarily correlate with its accuracy” and acknowledging “that a witness’s degree
of certainty in an identification should be weighed with great caution”).

- 11 -
In addition, the trial justice rejected defendant’s argument that Gonzalez was

not a competent witness under Rule 602 of the Rhode Island Rules of Evidence. He

noted that this Court has rejected such competency claims, even in close cases. The

trial justice then denied defendant’s motion to suppress.

B

Trial

The defendant’s trial commenced on July 9, 2018. At trial, the state presented

testimony from sixteen individuals, including Lymari Gonzalez, Jon Thomas, and

Marcus Gibbs (Gibbs). Gibbs, defendant’s cousin, testified that in 2009 Thadious

Parker (Parker), Morris, and defendant visited him at his home; and that, while the

four men were together, defendant and Morris got into an argument after which

defendant suggested “that things would have went differently if [Morris] didn’t have

information that could put him away for life.” The defendant called Parker as his

sole witness; Parker testified that he had never been present in a house with Gibbs

and defendant. After hearing eight days of testimony, a jury found defendant guilty

of all charges.

C

Motion for a New Trial

On July 20, 2018, defendant filed a motion for a new trial. During the July

30, 2018 hearing on defendant’s motion, defendant argued that “there were quite a

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few inconsistencies with” the testimony of the primary witnesses in this case—

Gonzalez, Thomas, and Gibbs. With respect to Gonzalez, defendant emphasized

that, days after the shooting, she had misidentified two individuals; he argued that

inconsistencies in her testimony—including for how long she had observed the

taxicab, varying descriptions of the height of the men in the taxicab, and her

confusion over who threw the hats—all rendered her testimony “not worthy of

acceptance[.]” As for Thomas, defendant claimed that Thomas’s account of the

meeting that took place with defendant and Garlington was “perplexing” because,

according to Thomas, Garlington was agitated and defendant was not and was

instead joking; further, defendant pointed to Thomas’s claim that he had no interest

in the case. Finally, regarding Gibbs, defendant averred that “either Thadious Parker

was telling the truth or Marcus Gibbs was telling the truth” and claimed that the

jury’s decision to accept Gibbs’s testimony was “mind-boggling[,]” given that Gibbs

had testified that he was not in a gang but had an Ocean State Gang tattoo.

In rendering his decision on defendant’s motion for a new trial, the trial justice

acknowledged that “[s]ave for the DNA evidence, which is hardly to be ignored, this

case was, for a major part, a credibility test of the [s]tate’s witnesses: Jon Thomas,

Marcus Gibbs, and Lymari Gonzalez, and the defendant’s witness, Thadious

Parker.” Further, he explained that “inconsistencies between witnesses would not

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preclude a determination that the witnesses were credible.” He then reviewed the

testimony and the evidence presented during trial.

With respect to Gonzalez, the trial justice found that she “was adamant that

she saw the defendant in the back seat with two others in Jose Rodriguez’s taxicab,

and that he and the other two occupants also ran past her after she heard what turned

out to be the fatal gunshot.” Additionally, Gonzalez testified that she had seen the

men running down Garfield Street, where two of the men discarded hats—one of

which was later determined to have defendant’s DNA on it. While recognizing that

Gonzalez had previously incorrectly identified two other men, the trial justice noted

that Gonzalez was never shown a photograph of Morris, Garlington, or defendant.

Moreover, the trial justice found that Gonzalez’s identification of defendant was

“significantly strengthened because she had previously known [him] from the

neighborhood.” Further, the trial justice noted that Gonzalez “also described in

chilling fashion how she felt when she walked into the courtroom at the bail hearing

and saw [defendant].” Ultimately, the trial justice concluded that Gonzalez’s

testimony was credible and that the DNA evidence in combination with Gonzalez’s

testimony placed defendant at the scene of the crime.

The trial justice then turned to the testimony of Thomas, who “recounted the

meeting he had with [defendant] and Garlington, where Garlington described the

events leading up to the shooting, and described how [defendant] shot Mr. Rodriguez

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in the head as he was talking on his cell phone.” Further, he noted that Thomas

testified, both during trial and at the suppression hearing, “that [defendant] was

holding his head affirmatively and giggling” as Garlington recounted the event.

Additionally, the trial justice noted that the cell-phone records and Rodriguez’s

daughter’s testimony both corroborated Thomas’s testimony that Rodriguez was on

his cell phone at the time of the shooting.

Next, the trial justice discussed the testimony by Gibbs, finding that, “if

accepted,” the testimony was “inculpatory” because Gibbs “flatly uprighted [sic] and

accused [defendant], his first cousin * * * of having killed an innocent cab driver.”

Further, the trial justice recalled that Gibbs testified that, in response to the

accusation, defendant “simply responded by saying, ‘I did what I had to do.’”

Moreover, the trial justice found that “Gibbs satisfactorily explained” that the Ocean

State Gang was a rap group and not a “group of violent people.”

Finally, the trial justice briefly discussed the testimony of defense witness

Parker. The trial justice noted that Parker “denied ever being in Gibbs’s or

[defendant’s] presence, except for basketball games and having also seen

[defendant] at a truck driving school.” Additionally, the trial justice noted that

Parker had “accumulated several convictions[.]”

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Ultimately, the trial justice concluded that the “jury was offered a variety of

testimony, and they opted to accept the testimony of Thomas and Gibbs, not

Thadious Parker.” Moreover, he stated:

“From my perspective as a front-row observer, I frankly
do not fault the jury in any way crediting the testimony of
Thomas and Gibbs. Notwithstanding their criminal
history and/or cooperation agreements, they offered
unembellished and forthright testimony, which I did not
find lacking in candor or credibility. To the contrary, their
unvarnished testimony, despite severe cross-examination,
had a distinct air and ring of credibility and the jury was
well-warranted in accepting it.

“So, too, the testimony of Lymari Gonzalez, who was an
entirely disinterested eyewitness, offered credible
testimony.

“And Tamara Wong’s expert analysis was not, in the end,
helpful, in my view, in exculpating [defendant].”

Accordingly, the trial justice denied defendant’s motion for a new trial. The

defendant filed a timely notice of appeal on October 4, 2018.

II

Discussion

The defendant asserts several arguments on appeal. He maintains that the trial

justice erred by (1) denying his motion to suppress Gonzalez’s in-court

identification; (2) limiting defendant’s cross-examination of Thomas and Detective

Jeff Araujo in violation of his rights under the Confrontation Clause; and (3) denying

- 16 -
defendant’s motion for a new trial. We discuss each of defendant’s arguments in

more detail seriatim.

A

In-Court Identification

With regard to Gonzalez’s in-court identification, defendant advances two

lines of argument. First, he argues that, pursuant to Rule 602 of the Rhode Island

Rules of Evidence, Gonzalez was not competent to testify because she lacked

personal knowledge. Second, he avers that the trial justice erred in denying his

motion to suppress Gonzalez’s in-court identification because the identification was

impermissibly suggestive and in violation of his due process rights.

1

Rule 602

“A trial justice’s ruling on whether ‘the witness could not have actually

perceived or observed the perpetrator’ will be reversed only for an abuse of

discretion.” State v. Hall, 940 A.2d 645, 654 (R.I. 2008) (quoting State v. Gatone,

698 A.2d 230, 238 (R.I. 1997)). Rule 602 of the Rhode Island Rules of Evidence

states, in pertinent part: “A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge

of the matter. Evidence to prove personal knowledge may, but need not, consist of

the testimony of the witness himself or herself.” “In deciding whether a witness is

- 17 -
competent for purposes of Rule 602, the trial justice must determine whether a

witness had a sufficient opportunity to perceive the subject matter about which he

[or she] is testifying.” State v. Ranieri, 586 A.2d 1094, 1098 (R.I. 1991). The trial

justice need not make a credibility determination nor judge “whether the witness is

accurately and truthfully relating that which he [or she] perceived.” Id. “Evidence

should be excluded under this rule only if the court finds that the witness could not

actually have perceived the subject matter of his or her testimony.” State v. Nhek,

687 A.2d 81, 83 (R.I. 1997) (emphasis in original).

The defendant argues that Gonzalez was not a competent witness because “she

readily admitted that she was observing a moving vehicle, the timeframe of

observation was short,” and “[t]here were three men to observe.” Further, according

to defendant, Gonzalez’s previous misidentification of individuals in a photographic

array is “strong evidence of [her] inability to recall the identity of the men in

question[.]” We disagree.

This Court has long held “[i]n a situation in which the question of a witness’s

Rule 602 competency is close (that is, the jury could find that the witness perceived

the matter testified to), the judge should admit the testimony since the matter then

becomes one of credibility and is properly for the jury.” Ranieri, 586 A.2d at 1098.

We cannot say that the trial justice abused his discretion in the present case when he

found that Gonzalez testified from her personal knowledge. The mere fact that

- 18 -
Gonzalez was observing a moving vehicle with multiple passengers for a short

period of time relates to her credibility as a witness and not her opportunity to view

the perpetrators. See Hall, 940 A.2d at 655 (holding that lighting conditions and the

witness not wearing her glasses were issues relating to witness credibility rather than

competence). We are well satisfied that Gonzalez had ample opportunity to view

the perpetrators—both when they were in the taxicab and when they were running

down the street—and that the trial justice did not abuse his discretion in determining

that she was a competent witness.

2

Identification Procedure

“When reviewing a motion to suppress, we ‘will not overturn a trial justice’s

factual findings unless they are clearly erroneous.’” State v. Washington, 189 A.3d

43, 56 (R.I. 2018) (quoting State v. Harrison, 66 A.3d 432, 441 (R.I. 2013)). “In our

review of any alleged constitutional violation, we ‘must make an independent

examination of the record to determine if the defendant’s rights have been violated.’”

Id. (brackets omitted) (quoting Harrison, 66 A.3d at 441). “This independent

examination requires this Court to ‘view the evidence in the record in the light most

favorable to the state.’” Id. (quoting State v. Santos, 64 A.3d 314, 319 (R.I. 2013)).

“In reviewing the denial of a motion to suppress an identification that was

allegedly tainted by an unduly suggestive procedure, we carry out a two-step

- 19 -
analysis.” State v. Alves, 183 A.3d 539, 543 (R.I. 2018) (quoting State v. Franco,

750 A.2d 415, 420 (R.I. 2000)). “First, we must determine whether the totality of

circumstances discloses procedures that were so unnecessarily suggestive and

conducive to irreparable mistaken identification that it constituted a denial of due

process of law.” Id. (quoting Franco, 750 A.2d at 420). “Only if we determine that

the procedures were unduly suggestive do we proceed to the second step of our

analysis and assess the reliability of the identification.” Id. (quoting Franco, 750

A.2d at 420). This is because “even if a court were to find that the procedures were

unduly suggestive, admission of tainted identification testimony does not violate a

defendant’s due process rights, so long as the identification possesses sufficient

aspects of reliability.” Franco, 750 A.2d at 420 (brackets omitted) (quoting State v.

Vanover, 721 A.2d 430, 436 (R.I. 1998)).

The crux of defendant’s argument in support of his motion to suppress was

that Gonzalez’s identification of defendant at the bail hearing was impermissibly

suggestive because, at the time of the identification, defendant was the only African

American seated at counsel table and was handcuffed. The defendant argues before

this Court that allowing Gonzalez’s in-court identification “did irreparable harm to

the defendant’s due process rights and the prospect of a fair trial.”

“Most eyewitness identifications involve some element of suggestion.

Indeed, all in-court identifications do.” Perry v. New Hampshire, 565 U.S. 228, 244

- 20 -
(2012). While we agree with the trial justice’s conclusion that Gonzalez’s in-court

identification of defendant was not the result of unnecessarily suggestive

circumstances arranged by law enforcement, we stop short of endorsing the trial

justice’s conclusion that “[t]he [s]tate did nothing.” After all, the prosecutor, who is

unquestionably a state actor, called Gonzalez to the witness stand, in part to secure

the in-court identification. Cf. Spratt v. State, 41 A.3d 984, 989 (R.I. 2012) (holding

that an in-court identification made by a witness who recognized the defendant only

after seeing him in the presence of two marshals in the courthouse was not

impermissibly suggestive because there was “no evidence that police or

prosecutors” orchestrated the encounter) (emphasis added).

The First Circuit Court of Appeals recently considered a case “involving a

prosecutor’s securing an in-court identification under supposedly suggestive

circumstances” in United States v. Correa-Osorio, 784 F.3d 11 (1st Cir. 2015).

Correa-Osorio, 784 F.3d at 19. In its analysis, the First Circuit recognized that

“[a]n in-court identification may be unduly suggestive if,
for example, the prosecutor drew the witness’s attention to
the defendant (say, by pointing to him) or asked questions
that suggested the hoped-for result, or if the defendant
looked different from others in the courtroom or at counsel
table when the identification occurred (say, by being the
only black person present).” Id. at 21 (emphasis added)
(footnote omitted).

Finding that the in-court identification in that case did not implicate these

“constitutional danger zones,” the First Circuit held that the defendant was unable

- 21 -
to establish that the in-court identification was impermissibly suggestive; thus, the

Biggers test was not triggered. Id. at 21-22.

Arguably, one of these “constitutional danger zones” is implicated in the case

at bar, because defendant had argued that, at the time of Gonzalez’s identification at

the bail hearing, defendant was the “only African American male at the [defense]

table, and was shackled in handcuffs.”8 Even if we were to assume, without

deciding, that the in-court identification here was impermissibly suggestive, that

does not necessarily render the identification inadmissible, because “admission of

tainted identification testimony does not violate a defendant’s due process rights, so

long as the identification possesses sufficient aspects of reliability.” Franco, 750

A.2d at 420 (quoting Vanover, 721 A.2d at 436).

Having thoroughly reviewed Gonzalez’s testimony, we hold that the trial

justice did not err in finding that the identification had “sufficient aspects of

reliability.” Franco, 750 A.2d at 420 (quoting Vanover, 721 A.2d at 436). The trial

justice properly “look[ed] to the Biggers factors to determine whether the

identification was independently reliable.” Washington, 189 A.3d at 58. After

thoroughly examining each of the five factors, the trial justice found that Gonzalez

demonstrated “that her identification [wa]s based upon an independent reliable

8
We pause to note that defense counsel made no requests to avoid this factual
scenario, such as moving to absent the accused during Gonzalez’s testimony
describing the assailants or other similar measures.

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memory and not affected by any suggestiveness of the in-court proceedings[.]” We

conclude that the trial justice, after considering the totality of the circumstances, was

not clearly erroneous in his finding that the Biggers factors weighed in the state’s

favor, thereby rendering Gonzalez’s in-court identification independently reliable

and admissible at trial.

B

Limitations on Cross-Examination

The defendant also argues that the trial justice’s limitation on witness

cross-examination violated his Sixth Amendment right to confront a witness against

him. More specifically, he identifies two instances of error with regard to

cross-examination. First, he argues that his right of confrontation was violated when

the trial justice declined to allow him to elicit statements that Morris had made to

police through the testimony of Detective Jeff Araujo, because “Morris had asserted

the Fifth Amendment” and was “thus rendered an unavailable witness.” Second,

defendant contends that the trial justice erred in limiting his inquiry into the subject

of Thomas’s ex-girlfriend’s relationship with Garlington. It is defendant’s position

that cross-examination should not have been restrained on these issues because the

testimony related to Morris would have “undermin[ed] the notion” that Garlington,

Morris, and defendant were together on the date of Rodriguez’s murder, and the

- 23 -
proposed Thomas line of inquiry “went straight to the heart of the motivation of the

cooperator[.]”

“The ability of a defendant to meaningfully cross-examine the state’s

witnesses is an essential element of the due process guarantees of the United States

and Rhode Island constitutions.” State v. Storey, 102 A.3d 641, 648-49 (R.I. 2014)

(quoting State v. Lomba, 37 A.3d 615, 621 (R.I. 2012)). “To satisfy the

constitutional right of cross-examination, ‘the trial justice is required to afford the

accused reasonable latitude to establish or reveal bias, prejudice, or ulterior motives

as they may relate to the case being tried.’” State v. Clark, 974 A.2d 558, 575 (R.I.

2009) (quoting State v. Bustamante, 756 A.2d 758, 765 (R.I. 2000)). “However,

once sufficient cross-examination has been permitted to satisfy the constitutional

safeguards, the trial justice is vested with discretion to limit the scope of additional

cross-examination and that decision will not be disturbed by this Court absent an

abuse of discretion.” Id. It is within the trial justice’s discretion “to sustain

objections to lines of inquiry that are ‘potentially misleading or irrelevant, that offer

little or no probative value, or that exceed the scope of direct examination[.]’”

Storey, 102 A.3d at 649 (quoting State v. Wright, 817 A.2d 600, 610 (R.I. 2003)).

- 24 -
1

Morris

We need not reach the merits of defendant’s Confrontation Clause argument

with respect to Morris, because this argument has been waived.9 At trial, defendant

did not raise a Confrontation Clause argument but, instead, merely argued that

Morris’s statements to police were probative and therefore admissible under the

Rules of Evidence. “It is well settled that the raise-or-waive rule precludes us from

considering at the appellate level issues not properly presented before the trial

court.” State v. Andrade, 209 A.3d 1185, 1194 (R.I. 2019) (quoting State v. Cahill,

196 A.3d 744, 753 (R.I. 2018)).

2

Thomas

During the defense’s cross-examination of Thomas, defendant introduced a

photograph of Renee Rogers, the mother of Thomas’s child. Upon introduction of

the photograph, the state immediately requested a sidebar conference, during which

the following exchange occurred:

“THE COURT: Okay. And where are we going with this?

9
This Court has previously held that “[w]hen a witness refuses to testify and invokes
a legitimate Fifth Amendment privilege, the Sixth Amendment Confrontation
Clause no longer applies because the witness is unavailable.” State v. Ramirez, 936
A.2d 1254, 1265 (R.I. 2007) (citing California v. Green, 399 U.S. 149, 167-68
(1970)). As such, even if defendant’s argument with respect to Morris were not
waived, the argument would still swiftly fail.

- 25 -
“[DEFENSE COUNSEL]: He found out that she was
cheating on him with Jayquan Garlington, and he has
absolute detest for Jayquan Garlington due to the fact that
she carried on an affair with him that he didn’t know about,
and he has stated to many others and has made public that
he would do anything he had to do to get back at Mr.
Garlington for having this affair with his girlfriend. And I
think the jury should be entitled to know that.

“[PROSECUTOR]: Judge, this is the first we’re hearing
this information again, but I think it confuses the issues
completely. This is not Jayquan Garlington’s trial, this is
Ezekial Johnson’s trial. It’s totally going to mislead the
jury and totally confuse the issues about who is having an
affair with who, and, I mean—he’s providing information
as Ezekial Johnson [sic] in this case.

“[DEFENSE COUNSEL]: And they’re using a statement,
supposedly that he says that Jayquan Garlington made—

“* * *

“[DEFENSE COUNSEL]: —to bury my client and to have
him try [sic] to have him convicted.

“THE COURT: The point is not necessarily what Jayquan
Garlington said. It’s your client’s reaction to the story that
is attributed to Jayquan Garlington. Even if he made up a
story about what Jayquan Garlington said, and I don’t
know that I can make that decision, it’s the action of
Ezekial Johnson that is paramount. I’m going to sustain
any objection to going into that business about Jayquan
Garlington having an affair with his girlfriend.”

We see no error in the trial justice’s decision to exclude this line of

questioning, because the issue of Thomas harboring a grudge against defendant’s

alleged co-conspirator “is so tenuously related, if at all, to the issue of [his] possible

- 26 -
bias against defendant[.]” State v. Veluzat, 578 A.2d 93, 95 (R.I. 1990) (holding that

the trial justice did not abuse his discretion in excluding questioning about witness’s

grudge against the defendant). Moreover, defendant was afforded “reasonable

latitude” to establish biases that Thomas might have—including Thomas’s

involvement in and benefit from cooperation agreements, his relationship with law

enforcement, and the benefits he received through his participation in the witness

protection program. See Clark, 974 A.2d at 575 (quoting Bustamante, 756 A.2d at

765). After a careful review of Thomas’s testimony, we are satisfied that sufficient

cross-examination was permitted to satisfy the constitutional safeguards, and that

the trial justice did not abuse his discretion in excluding questions about Thomas’s

possible grudge against Garlington.

C

Motion for a New Trial

Finally, defendant argues that the trial justice erred in denying his motion for

a new trial because, according to defendant, “the evidence failed to establish any

culpability of the defendant beyond a reasonable doubt.” In support of this

argument, defendant claims that there were “manifold inconsistencies” in testimony,

specifically pointing to the testimony of Gonzalez, Thomas, and Gibbs. Further,

defendant avers that “the jury should not have been exposed to [Gonzalez’s] in-court

- 27 -
identification[,]” and that the DNA evidence did not establish that defendant was at

the scene of the crime.

When presented with a motion for a new trial based on the weight of the

evidence, the trial justice “acts as a thirteenth juror and exercises independent

judgment on the credibility of witnesses and on the weight of the evidence.” State v.

Gumkowski, 223 A.3d 321, 328 (R.I. 2020) (quoting State v. Johnson, 199 A.3d

1046, 1050-51 (R.I. 2019)). “The trial justice must consider the evidence in light of

the jury charge, then independently assess the credibility of the witnesses and the

weight of the evidence, and also ultimately determine whether he or she would have

reached a result different from that reached by the jury.” Id. (quoting Johnson, 199

A.3d at 1051). “If, after conducting this independent review, the trial justice agrees

with the jury’s verdict or if the evidence is such that reasonable minds could differ

as to the outcome, the motion for a new trial should be denied.” Id. (quoting Johnson,

199 A.3d at 1051). “Only when the trial justice does not agree with the jury’s

verdict, must he or she embark on a fourth analytical step.” Id. (quoting Johnson,

199 A.3d at 1051).

“This Court’s review of a denial of a motion for a new trial is deferential

because the trial justice is in an especially good position to evaluate the facts and to

judge the credibility of the witnesses.” Gumkowski, 223 A.3d at 328 (quoting

Johnson, 199 A.3d at 1051). “If the trial justice has articulated adequate grounds for

- 28 -
denying the motion, his or her decision is entitled to great weight and will not be

overturned by this Court unless he or she has overlooked or misconceived material

evidence or was otherwise clearly wrong.” Id. (quoting Johnson, 199 A.3d at 1051).

In denying defendant’s motion, the trial justice began by acknowledging that

“[s]ave for the DNA evidence, which is hardly to be ignored, this case was, for a

major part, a credibility test of the [s]tate’s witnesses: Jon Thomas, Marcus Gibbs,

and Lymari Gonzalez, and the defendant’s witness, Thadious Parker.” Further, he

correctly explained that “inconsistencies between witnesses would not preclude a

determination that the witnesses were credible.” See State v. Lopez, 129 A.3d 77, 85

(R.I. 2016) (holding that testimonial inconsistencies do not necessarily discredit all

of the witness’s testimony). He then considered each witness’s testimony and

explained the reasoning for his credibility assessments.

Regarding Gonzalez, the trial justice recognized that Gonzalez had incorrectly

identified two other men; however, he emphasized that she was never shown a

photograph of defendant, Garlington, or Morris. Further, the trial justice explained

that Gonzalez’s “identification of the defendant was significantly strengthened

because she had previously known [defendant] from the neighborhood[,]” and she

described “in chilling fashion how she felt when she walked into the courtroom at

the bail hearing and saw [defendant].” Ultimately, the trial justice concluded that

Gonzalez testified “with the utmost conviction,” which he found to be credible.

- 29 -
Next, the trial justice turned to the testimony by Thomas and Gibbs. First, he

found that cell-phone records corroborated Thomas’s testimony that Rodriguez was

on his cell phone at the time of the shooting. Second, the trial justice acknowledged

that Gibbs had outright “accused [defendant] * * * of having killed an innocent cab

driver.” He explained that Gibbs had “satisfactorily explained his tattoo of the

Ocean State Gang as a rap group” and had also explained the “dissimilarities” in his

testimony. The trial justice declined to fault the jury for crediting the testimony by

Thomas and Gibbs, stating, “[n]otwithstanding their criminal history and/or

cooperation agreements, they offered unembellished and forthright testimony, which

I did not find lacking in candor or credibility.”

With regard to the evidence presented, the trial justice found that the DNA

evidence in conjunction with Gonzalez’s testimony placed defendant at the scene of

the crime. Further, he explained that “[t]he jury was free to conclude that someone

other than [defendant] had worn the hat last and tossed it, but obviously the

fact-finders determined that it was [defendant], not some unknown person who had

that hat on that day and had discarded it while running down Garfield Street.”

Additionally, he noted that “Tamara Wong’s expert analysis” was not helpful in

exculpating defendant and that cell-phone records corroborated the testimony by

Rodriguez’s daughter concerning her mother’s last phone calls to her father.

- 30 -
Having thoroughly reviewed the entire record, as well as the trial justice’s

decision denying the motion for a new trial, we are satisfied that the trial justice has

articulated adequate grounds for denying the motion and that he did not overlook or

misconceive material evidence. Accordingly, we hold that the trial justice properly

denied the defendant’s motion for a new trial.

III

Conclusion

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

The record in this case may be returned to the Superior Court.

- 31 -
.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. Ezekial Johnson.

No. 2019-35-C.A.
Case Number
(P1/17-3082AG)

Date Opinion Filed May 26, 2021

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

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Robert D. Krause

For State:

Mariana E. Ormonde
Attorney(s) on Appeal Department of Attorney General
For Defendant:

George J. West, Esq.

SU-CMS-02A (revised June 2020)