State v. HUY

960 A.2d 550, 2008 R.I. LEXIS 124, 2008 WL 5121980

• Court: Supreme Court of Rhode Island
• Decided: December 8, 2008
• Docket: 2005-307-C.A.
• Status: Published

Opinions

OPINION

Justice GOLDBERG,

for the Court.

This case came before the Supreme Court on September 23, 2008, on appeal by the defendant, Sengly Huy (Huy or defendant), from a Superior Court judgment of conviction stemming from a police officer’s discovery of a firearm in the trunk of the defendant’s vehicle. After the defendant’s motion to suppress the incriminating pistol was denied by the trial justice, the defendant waived his right to a jury trial and the parties filed an agreed stipulation of facts. Based on these stipulated facts, the trial justice found the defendant guilty beyond a reasonable doubt of both counts in the criminal information, to wit, carrying a pistol without a license, in violation of G.L. 1956 § ll-47-8(a) (count 1), and altering the marks of identification on a firearm, in violation of § 11-47-24¹ (count 2). On count 1, the trial justice sentenced Huy to a suspended term of six years imprisonment, with probation and a monetary fine, and on count 2, the defendant received a concurrent suspended term of one year. Huy timely appealed. For the reasons stated in this opinion, the defendant’s appeal is denied and dismissed and the judgment of conviction is affirmed.

Facts and Travel

The following testimony was elicited during the pretrial suppression hearing. Providence police patrolman Angelo A’Vant (A’Vant) testified that in February 2004 he received information from a known, reliable confidential informant that Huy carried a large caliber pistol with an attached laser site and drove a black Acu-ra bearing Massachusetts registration. According to A’Vant, the informant also supplied him with a physical description of Huy (viz., “an Asian male”) and the registration number of defendant’s vehicle. The informant further indicated that Huy was a member of the gang known as the South Side Boys. The informant also averred that Huy carried the firearm for protection and frequented 168 Wood Street and the Hartford Avenue area of Providence. The informant did not, however, explain how he knew that defendant kept a gun in the trunk of defendant’s car. A’Vant claimed that past tips from this informant had materialized into two gun seizures and arrests, but he was unsure whether those arrests had resulted in convictions.

On February 9, 2004, officers Fabio Zue-na² and A’Vant located Huy’s vehicle³ on Hartford Avenue. A’Vant testified that he observed an Asian male driving the target vehicle, but he did not know whether the driver was Huy. A’Vant immediately radioed for backup and followed the vehicle, which was not speeding, for a short distance until it stopped on the same street. The officers momentarily watched as a young Asian male left a house and entered the automobile. Then, with the assistance of additional officers, the police stopped Huy’s Acura by sandwiching it between two police vehicles. With their guns drawn, the officers approached the vehicle, removed the three occupants, and placed Huy in the back seat of a marked police cruiser. Although the parties stipulated that Huy was not restrained in handcuffs, the trial justice found that defendant was under arrest. A’Vant searched the trunk of Huy’s vehicle and, under a large speaker, discovered a pistol equipped with a laser site that had an obliterated serial number. The weapon had two rounds in the magazine. The defendant was driven to the police station, where he waived his rights and, in a statement to the police, admitted possession of the firearm.

Huy subsequently was charged with carrying a pistol without a license in violation of § ll-47-8(a), and with altering the marks of identification on a firearm pursuant to § 11-47-24. The defendant filed several pretrial motions seeking to suppress both the firearm and his statements to the police. He alleged (1) that the firearm was seized in violation of the Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution and (2) that his subsequent statement to the police was involuntary and was obtained as the result of an unlawful arrest. These motions were denied by the trial justice, who found that the informant’s tip justified both the arrest and the subsequent search of defendant’s vehicle.

At a subsequent proceeding several weeks later, defendant waived his right to a jury trial and stipulated to the facts upon which this conviction rests. Specifically, both sides stipulated to the following:

“1. During the [mjonth of February, 2004, Providence [p’Jolice [officers Fabio Zuena and Angelo A’Vant received information from a known, reliable [cjonfi-dential [informant that the [defendant, Sengly Huy, was carrying a .45 caliber gun with a laser site attached in the trunk of his vehicle, a black Acura bearing Massachusetts registration: ‘53P-R09’.

“2. Confidential [ijnformant provided [pjolice [ojfficers Zuena and A’Vant with the name of the defendant, a description of the defendant, a description of the vehicle the defendant would be operating with the registration number, where the defendant could be located, and the location of the gun within the vehicle. In addition, [cjonfidential [ijnformant informed police that the defendant is a member of the South Side Boys (SSB) and carries the weapon for protection.

“3. On February 9, 2004, Providence [pjolice [ojfficers Fabio Zuena and Angelo A’Vant received information from a known, reliable [cjonfidential [ijnformant that the defendant had the gun in his vehicle and hangs in the West End and Hartford Avenue areas.

“4. Providence [pjolice [ojfficers proceeded to the Hartford Avenue area where they observed defendant’s vehicle receiving a passenger (Vanny Pron) and, at that time, Providence [pjolice blocked and approached the defendant’s vehicle. At that time, Providence [pjo-lice [ojfficers Fabio Zuena and Angelo A’Vant removed all three occupants of the vehicle, the defendant, who was in the driver’s seat, his girlfriend, Bounma Thammavongsa, who was in the front passenger’s seat, and Vanny Pron who was in the rear passenger’s seat. The defendant was placed in the [pjolice officers’ vehicle unhandcuffed. Police [ojf-ficer A’Vant conducted a search of the vehicle’s trunk and discovered a .45 caliber with laser site hidden beneath a large speaker.

“5. The defendant was then placed under arrest.

“6. At that point, Providence [pjolice Detective Patricia Cornell was notified. Detective Cornell responded to the scene and took custody of the .45 caliber with laser site.

“7. The .45 caliber with laser site had an obliterated serial number.

“8. The defendant was taken to the [pjolice [sjtation and given his rights and made a knowing, intelligent, and voluntary waiver of his rights and gave a statement admitting that the gun was his.

“9. Defendant waives all objections to admissibility based on genuineness, originality, authenticity, and/or chain of custody of said gun and test fire documents.”

Additionally, the parties stipulated that defendant did not have a license to carry the weapon. The record discloses that the stipulation of facts constituted the only proof presented at trial — neither the weapon nor defendant’s confession was introduced; yet it is the alleged unconstitutional manner in which the police obtained this evidence that is the basis of this appeal.

The transcript of the jury-waived trial reveals that defendant proffered a single objection to the portion of the stipulated facts that described the state’s confidential informant as reliable. Defense counsel stated that “to the extent that [the stipulation] indicate[s] that it was a reliable [cjonfidential [ijnformant, clearly that was testified to by the [sjtate, that’s what we disagree with, and we say that is something we’d like to contest and have the Supreme Court review.”⁴

The trial justice did not pass upon defendant’s objection, and the stipulation of facts was incorporated into the record. As noted, neither party presented any testimony nor introduced any tangible evidence. Instead, after explaining to defendant the consequences of waiving his right to a jury trial, the trial justice read the stipulated facts into the record and immediately declared defendant guilty beyond a reasonable doubt of both counts in the criminal information.

Analysis

Before this Court, Huy contends that the officers did not have probable cause to search the trunk of his vehicle and did so in violation of his constitutional right against unreasonable searches and seizures. He appears to base this argument, not on the reliability of the informant, but on the failure of the officers to undertake a sufficient investigation to verify the informant’s tip. Although defendant concedes that the officers may have had the requisite reasonable suspicion to stop the vehicle, he argues that they did not possess probable cause to arrest him at gunpoint or to search the trunk of his vehicle. Huy also contends, contrary to the stipulated facts, that he immediately was placed in handcuffs and arrested before the officers found the firearm in the trunk. Additionally, Huy asserts that his later confession was the fruit of the illegal search and arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Although we are mindful of the non-frivolous issues of constitutional dimension that could be argued with respect to defendant’s arrest and the search of his vehicle, we decline to address the merits of this case. Because neither the firearm nor the confession was admitted into evidence during the state’s case-in-chief, the question of whether the exclusionary rule should apply to the arrest and subsequent search of defendant’s vehicle simply is not before us. We decline to decide whether a firearm or a confession that was not introduced into evidence should have been suppressed because, regardless of the answer to those questions, the ultimate result in this case would be the same: defendant stands convicted based on an agreed stipulation of facts.⁵

Waiver

Very rarely does this Court delve into issues that were not preserved for our review. See, e.g., State v. Bido, 941 A.2d 822, 828-29 (R.I.2008) (discussing exception to our well-settled “raise-or-waive” rule). For us to address Huy’s contention that the contraband and confession were obtained illegally, the evidence must have been introduced at trial. See 29 Am.Jur.2d Evidence § 3 at 37 (2008) (“A matter which was not introduced or presented as evidence at trial does not come within the commonly accepted definition of ‘evidence.’ ”). The defendant must have required the prosecution “to utilize the evidence which he has unsuccessfully challenged,” Linkey v. State, 46 Md.App. 312, 416 A.2d 286, 289 (Ct.Spec.App.1980); a defendant may not absolve the prosecutor of his or her burden of proof “by conceding the ultimate facts sought to be proved by the allegedly improper evidence.” Id.

In count 1 of the criminal information, defendant was charged with a violation of § ll-47-8(a), which states in pertinent part:

“No person shall, without a license or permit issued as provided in §§ 11-47-11, 11-47-12 and 11-47-18, carry a pistol or revolver in any vehicle or conveyance or on or about his or her person whether visible or concealed, except in his or her dwelling house or place of business or on land possessed by him or her or as provided in §§ 11-47-9 and 11-47-10.”

In prosecuting defendant for an alleged violation of that section, the state had “the burden of proving ‘every element necessary to constitute the crime charged beyond a reasonable doubt.’ ” State v. Davis, 877 A.2d 642, 648 (R.I.2005) (quoting State v. Hazard, 745 A.2d 748, 751 (R.I.2000)). The state thus was required to establish that defendant possessed a pistol or revolver and that he did not have a license or permit as required by law. Furthermore, the state was required to prove that the firearm had an obliterated serial number. However, Huy chose to stipulate to these facts and thereby relieved the state of its burden of proof.

Huy not only seeks a ruling that his arrest and the fruits thereof were obtained in violation of the constitutional prohibitions against unreasonable searches and seizures, but he also seeks to be relieved from the factual stipulations to which he agreed. “A stipulation entered into with the assent of counsel and their clients, relative to an evidentiary fact or an element of a claim, is conclusive upon the parties and removes the issue from the controversy.” Rhode Island Public Telecommunications Authority v. Russell, 914 A.2d 984, 990 (R.I.2007) (quoting In re McBurney Law Services, Inc., 798 A.2d 877, 881-82 (R.I.2002)).

In this case, the parties did not stipulate merely to the introduction of evidence that would be submitted to the trier of fact for its decision; rather, they agreed to the facts upon which the decision of the trial justice was based. See Barnes v. State, 31 Md.App. 25, 354 A.2d 499, 505-06 (Ct. Spec.App.1976) (discussing the distinction between stipulated facts and evidence offered by stipulation). “Evidence is matter that makes clear the truth of fact, persuades a court of the existence of fact, or produces a just conviction of truth. * * * The word ‘evidence’ thus includes all the means by which any fact in dispute at a judicial trial is established or disproved.” 29 Am. Jur.2d Evidence § 1 at 36.

This Court previously has recognized the widely accepted force of stipulations on subsequent appeals:

“When an adverse party is willing to stipulate to the truth of a certain allegation, the party having the burden of proving that allegation is relieved from proving it, that is, a stipulation renders proof unnecessary and both prevents an independent examination by a judicial officer or body with respect to the matters stipulated and binds the parties on appeal.” Russell, 914 A.2d at 990 (quoting 73 Am.Jur.2d Stipulations § 17 at 500-01 (2001)).

Here, the state and defendant stipulated that Huy unlawfully possessed a firearm with an obliterated serial number, thus rendering the elements of both crimes uncontested. The state did not produce evidence — testimonial or tangible — to prove the truth of its allegations against defendant, nor was the trial justice required to pass upon the weight of the evidence. Huy’s objection to the stipulation concerning the informant’s reliability is immaterial because questions about the reliability of the informant or the credibility of the evidence were of no moment to the trial justice’s findings. Consequently, because defendant relieved the state from its burden of introducing the evidence he asks us to suppress, we decline to address whether that evidence should have been suppressed.

This Court recently has stressed “the prophylactic purposes that underlie the [exclusionary] rule — ‘to deter law enforcement officers from violating a defendant’s rights.’ ” State v. Barkmeyer, 949 A.2d 984, 998 (R.I.2008) (quoting United States v. Almeida, 434 F.3d 25, 28 (1st Cir.2006)). “Because suppression of relevant and incriminating evidence ‘will often have the effect of allowing criminals to go unpunished, it is justified only as a means of deterring the police from violating constitutional and statutory rights.’ ” Id. (quoting United States v. Silvestri, 787 F.2d 736, 740 (1st Cir.1986)). The exclusionary rule is not intended to assuage the harm caused to persons who suffer as a result of an illegal search and seizure, Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 362, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (citing United States v. Leon, 468 U.S. 897, 906, 104 5.Ct. 3405, 82 L.Ed.2d 677 (1984)); it instead serves to deter unlawful police conduct by prohibiting the use of illegally obtained evidence during the prosecution’s case-in-chief. Its availability is limited to situations “where its deterrence benefits outweigh ‘its substantial social costs.’ ” Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (quoting Scott, 524 U.S. at 363, 118 S.Ct. 2014, and Leon, 468 U.S. at 907, 104 S.Ct. 3405).

Consequently, if the alleged improperly obtained evidence has not been admitted at trial, there is nothing that the exclusionary rule can accomplish. In such a case, the deterrent function served by the exclusionary rule has no place. See Linkey, 416 A.2d at 288-89 (“If such evidence is never admitted * * * at trial, it is difficult to see where there could be error based on the [c]onstitutional exclusionary rule; indeed, in such a case, the trial would be entirely consistent and in accord with the exclusionary rule, not in opposition to it.”). Because we are of the opinion that based on the record before us the poisonous tree is devoid of fruit, we decline to consider the constitutional issues raised in this appeal.

Conclusion

Accordingly, we are satisfied that the defendant failed to preserve his Fourth Amendment contentions on appeal. For the reasons stated herein, the appeal is denied and dismissed and the judgment of conviction is affirmed. The papers in this case may be remanded to the Superior Court.

1 . General Laws 1956 § 11-47-24 provides:

"No person shall change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any firearm. Possession of any firearm upon which any of these marks shall have been changed, altered, removed, or obliterated shall be prima facie evidence that the possessor has changed, altered, removed, or obliterated it. Violation of the provisions of this section may be punished by imprisonment for not more than five (5) years.”

2 . Throughout the transcript of the suppression hearing officer Zuena is called "Sorena.” Because the rest of the record identifies him as Zuena, however, we refer to him as such in our opinion.

3 . The vehicle actually was owned by Lone Thammavongsa, the mother of Huy’s girlfriend, Bounma Thammavongsa. According to Huy's pretrial testimony, he drove Lone’s automobile on a regular basis. Bounma was sitting in the passenger seat of the vehicle when the police officers boxed it in.

4 . Additionally, defendant purported to object to the fact that his statement to the police, in which he admitted that the firearm was his, was the result of a knowing, intelligent, and voluntary waiver of his rights. However, defendant has not raised the Fifth Amendment on appeal.

5 . The dissent disagrees with this holding and criticizes the majority for declining to reach the merits of the motion to suppress. But in this case, the dissent neither addresses the merits nor tackles the thorny question of the continued viability of the stipulation of facts should the motion to suppress be granted.