State v. Mendoza

709 A.2d 1030, 1998 R.I. LEXIS 148, 1998 WL 155730

• Court: Supreme Court of Rhode Island
• Decided: April 3, 1998
• Docket: 95-38-C.A.
• Status: Published

Opinions

OPINION

BOURCIER, Justice.

Following his conviction by a Superior Court trial jury for the second-degree murder of a fifteen-year-old boy, the defendant comes before us on appeal and asserts that we should set aside his conviction and order a new trial. We reject his appeal and affirm his conviction.

Case Facts and Travel

Erickson Diaz, (Diaz) a fifteen-year-old boy, died on a sidewalk on America Street in Providence at about 2:30 a.m. on December 15,1991. He had been in the wrong place at the wrong time, and happenstance had been unforgiving. His cause of death was a gunshot wound caused by a .357 Magnum bullet that had been fired from the front porch of a nearby tenement house at 97-99 America Street. That tenement house also served as an after-hours drinking dub, or “sip joint.” Michael Mendoza (defendant) operated that illegal after-hours club along with his wife, who served at times as the club’s doorkeeper. The defendant was identified as the person who fired the .357 caliber bullet from the front porch of the tenement building that housed his after-hours drinking club.

The events leading to young Diaz’s unfortunate and untimely death began on Saturday night, December 14, 1991, when Diaz went to the Conquistador Bar on Broad Street in Providence to be with friends. While there he met one of his friends, Rufino Ramos (Ramos), age nineteen, and another person, Luiz Nunez (Nunez), aged twenty-six, that he knew casually. The three remained at the Conquistador Bar until its legal closing time. They then decided to go to the after-hours drinking house or club operated by the defendant.

Nunez, because he had the use of a friend’s car, drove Ramos and Diaz to the club located at 97-99 America Street in Providence, and when they arrived at the club, Nunez let Diaz and Ramos off at the club’s front entrance and then drove a short distance down America Street to park the car. While he was parking the car, Ramos and Diaz entered the club, having been admitted by the defendant’s wife. Unfortunately, as they entered, a fight involving two club patrons had just been abated, and the apparent loser of the late night unscheduled and untelevised fight turned out to be a friend of Ramos’s named Alexis Abreu (Abreu). Abreu had sustained an eye injury and was visibly upset. He was leaving the club by a front door that opened onto a small porch with steps leading down to the sidewalk on America Street. Ramos, for some unexplained reason, perhaps to render assistance to his Mend, decided to follow Abreu out of the club, and young Diaz then followed both out. Once onto the porch Abreu suddenly stopped, turned back toward the club, took out a gun, and fired at least four shots into the club. Two bullets went through the front door, and two others shattered the club’s front window. Within seconds, a man later identified as the defendant emerged from the club’s front-entrance door with a gun in hand. Abreu, observing the defendant, fled down America Street followed by Ramos and young Diaz, both apparently sensing that gunshots would soon follow as they were running across America Street and away from the club. The defendant, standing on the porch, then began firing in the direction of the fleeing Abreu and necessarily also in the same direction that Ramos and young Diaz were running. Just as the defendant opened fire, Nunez, who by now had parked the automobile and was returning to the club, was standing at the foot of the steps leading up to the front porch of the club. Quite understandably, Nunez finding himself in a literal no-man’s land, observing to one side of him Abreu, Ramos and Diaz running away and on the other side the defendant firing shots in their direction fell in panic to his knees and hastily crawled up the steps and scrambled into the club, seeking safe shelter. Once inside the club Nunez quickly obsérved the club patrons scattering, ducking for cover, and running out of the club, and he decided to call it a night. He exited through a rear door at a rate of speed that certainly eclipsed that with which he had entered through the front door. When the wild shooting stopped, it was then discovered that young Diaz had been hit and his lifeless body lay on the sidewalk a short distance from the club. He died there, the result of the .357 Magnum bullet wound in his back. Abreu and Ramos had somehow fortunately managed to avoid the fusillade fired by the defendant and had left the scene. When the police were later investigating the scene of the incident, Ramos returned and spoke with one of the investigating officers. He was then taken to police headquarters where he later gave and signed a statement recounting his recollection of what had taken place. Nunez, after learning of the death of his Mend, young Diaz, went to the police headquarters building in Providence and there identified himself as an eyewitness to the shooting. He was shown a series of photographs of possible suspects, and he immediately identified the defendant as the person who had fired the shot from the front porch of the after-hours drinking club.

Sometime later, after an autopsy was performed on Diaz, the Providence police were able to obtain the bullet that had killed him. It was found to be a .357 caliber bullet. Another .357 caliber bullet was discovered and taken from a classroom wall in a school building just across the street from the after-hours drinking club. The police in addition seized eight live .357 caliber cartridges from a pantry drawer in the after-hours drinking club run by the defendant and his wife. The police also found two spent .32 caliber bullets inside the club, those bullets apparently having been fired from the gun used by Abreu when he was shooting into the club, which action had served to provoke the retaliatory barrage fired by the defendant.

The defendant and Abreu were both later charged jointly in a one count grand jury indictment for the murder of young Diaz. Defense counsel for Abreu moved to sever Abreu’s trial from that of the defendant, and the Mai justice, without objection from the defendant, granted Abreu’s trial-severance motion. The defendant was Med first and convicted of second-degree murder. His appeal is before us. We address now his appellate alleged assertions of Mai error.

I

Motion to Pass

The defendant’s first claim of error is that the trial justice erred in denying his motion to pass the case because the prosecutor had mentioned in his opening statement that Diaz, Nunez, and their Mend Ramos had gone to an “after hours bar” operated by the defendant on December 15, 1991, the night Diaz was shot.¹ The prosecutor had only once mentioned that the defendant’s after-hours club was an illegal bar and that reference was only in the nature of a passing reference. The prosecutor never specifically referred to the defendant’s operation of an after-hours club as a criminal act. We conclude, therefore, that the trial justice acted well within the bounds of his discretion in denying the defendant’s motion.

Prior to selecting the trial jury, the defendant had filed a motion in limine, seeking to preclude any references to the defendant’s operation of a “sip joint.” The defendant had also sought to prevent any trial witnesses from using the phrase “sip joint.” The defendant suggested that the prosecutor and the witnesses be limited to the use of the phrase “after hours” when referring to the defendant’s after-hours drinking club. The trial justice refused the defendant’s request, concluding that there was not “anything that’s so prejudicial in that type of testimony.” The trial justice did not believe that a reference to an after-hours club “automatically denotes in someone’s mind that it’s illegal.” The trial justice offered, however, to give a cautionary instruction regarding the relevance of the defendant’s operation of an after-hours bar, but defense counsel repeatedly declined such instructions at that time because “there’s a possibility the jury will then automatically think, well, because he’s giving us a cautionary instruction, it must be an illegal activity.”

The prosecutor later, in his opening statement, did refer to the defendant’s operation of an after-hours bar, and he also offhandedly referred in one instance to its being an “illegal bar.” Defense counsel then moved to pass the case, which motion the trial justice also denied.

Later at trial, Rufino Ramos (Ramos), the fiiend who accompanied Diaz and Nunez to the defendant’s establishment that fateful evening, testified that the defendant operated the after-hours club where the shooting took place. Defense counsel at that point requested that the trial justice give a cautionary instruction to the jury, notwithstanding defense counsel’s earlier insistence, both at the hearing on his motion in limine and at the hearing on his motion to pass, that such an instruction not be given. The trial justice then, in accordance with defense counsel’s request, did instruct the jury as follows:

“You’ve heard some testimony that on the night in question the defendant was in some sort of after hours club or establishment. You must bear in mind that neither the nature of such a place nor the drinking activity that may have occurred in such a place has any bearing on the guilt or innocence of the defendant as to the charge of murder which is before you.”

The defendant contends that that instruction was not sufficient to cure the undue prejudice caused by the prosecutor’s references to the defendant’s operation of an after-hours club. The defendant asserts that such references were inadmissible under Rule 404(b) of the Rhode Island Rules of Evidence, which sets forth the general rule that evidence of other crimes or bad acts by a defendant are inadmissible to show that the defendant acted in conformity therewith.

However, contrary to the defendant’s assertions, Rule 404(b) is inapplicable here. The prosecutor’s single passing reference to the after-hours club as constituting an illegal venture and his references to the defendant’s operation of an after-hours club were necessary in order to explain to the jury how Diaz, Nunez, and Ramos, after leaving the Conquistador Bar when it closed, then went to 97-99 America Street where they were able to continue their Saturday night drinking activities. Those facts were necessary not only to show why Diaz went to 97-99 America Street but also to show why the defendant would be there and would have a purpose in protecting his club’s patrons from someone shooting into the club. It would also show that the defendant would have knowledge of and access to the .357 caliber bullets kept in a pantry drawer in the club. Although it is true that in presenting the complete background facts that existed at the time that Diaz was shot and killed, some of those background facts presented by the prosecutor may have indicated uncharged criminal conduct on the part of the defendant in operating his after-hours drinking club, evidence of that prior or contemporaneous uncharged conduct was not improper under Rule 404(b). United States v. Currier, 821 F.2d 52 (1st Cir.1987); see also Edward J. Imwinkelried, Uncharged Misconduct Evidence § 6:28 (1984). Accordingly, since some reference to the after-hours club was necessary and because the trial justice gave an appropriate cautionary instruction, we conclude that he did not err in refusing to grant the defendant’s motion to pass the case, and the defendant was not prejudiced as a result of the trial justice’s ruling.

II

Nunez’s Identification Testimony

The defendant’s next claim of error is that the trial justice should not have permitted Nunez to testify that he had observed the defendant shooting in the direction of Diaz. The defendant asserts that Nunez did not have sufficient opportunity to view the gunman and that consequently his identification of the defendant as the gunman was incompetent. The defendant also posits in support of that contention that there was not enough light in the doorway of the 97-99 America Street building to illuminate the porch sufficiently from where the defendant allegedly shot Diaz. The defendant also asserts that because there was a high level of stress and excitement stemming from the exchange of gunfire when Nunez allegedly observed the gunman, his ability to identify the gunman was reduced. The defendant attempts to support that assertion by highlighting the fact that Nunez was only able to give a minimal description of the gunman to the police and that he had only seen the defendant briefly in passing prior to the incident in question.²

In State v. Gardiner, 636 A.2d 710 (R.I.1994), where the victim was brutally attacked by four men at night in the woods, we rejected the argument that the eyewitness testimony of the victim in that case was incompetent because the victim did not have sufficient opportunity to view her assailants because there was diminished lighting and a high level of stress stemming from the presence of weapons. Here there was nothing in the record indicating that the light on the porch was so poor that Nunez could not see the others around him. Certainly, there was more light on the porch than in the woods in Gardiner,³ In fact, the evidence suggests that Nunez could see the porch clearly because he was able to approach the porch and see the stairs without any difficulty. Furthermore, as in Gardiner, although the level of situation stress was certainly higher, we do not feel that it detracted from Nunez’s ability to identify a person he had previously seen on at least one occasion. See State v. Charette, 688 A.2d 1286, 1288 (R.I.1997)(upholding admissibility of eyewitness’ nighttime identification of the defendant fleeing from the victim’s front doorway based upon a brief observation where witness had known the defendant previously); see also State v. Mastracchio, 546 A.2d 165 (R.I.1988)(instruction to jury permitting consideration of whether identification witness had ever seen the defendant before the confrontation was proper). The situation in this case is unlike the one in State v. Ranieri, 586 A.2d 1094, 1097 (R.I.1991), wherein we held that the victim there did not have sufficient opportunity to view her assailant and as a result could not testify in regard to his identity because she had no previous personal knowledge of him, as required by Rule 602 of the Rhode Island Rules of Evidence. The victim in that case was attacked from behind while in her dark apartment moments after having been awakened by the sounds of an intruder, and she was immediately beaten with a metal rod, which circumstances would obviously have affected her ability to recall the identity of her attacker. Additionally, in Ranieri we found that the victim had in the past made several unwarranted and unfair accusations against Ranieri, whom she later identified as her attacker. It was for all those reasons that we concluded in Ranieri that the victim’s identification testimony was not competent. The facts and evidence in that case are completely distinguishable from the facts in the case now before us.

In this case setting Nunez was facing the gunman from a distance of some five feet or so as he approached 97-99 America Street and came even closer to him as he scrambled into the apartment through the doorway behind the gunman. The gunman was standing on the porch, brightened by the light emanating from the front door of the apartment. Nunez, in addition, had seen the defendant on at least one prior occasion, and testified that he recognized the gunman on the porch as that person that he had seen previously. Although it is possible that a jury might have found that Nunez was unable to view the defendant adequately, it was in the final analysis a fact finding to be made by the jury and the trial justice certainly did not err in refusing to take that credibility determination away from the jury. As we said in Ranieri, “In 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.” 586 A.2d at 1098.⁴ Accordingly, the trial justice did not err in admitting the identification testimony of Nunez.

Ill

Cross-Examination of Officer Salerno

The defendant next claims that the trial justice erred in limiting his cross-examination of Officer Louis Salerno (Salerno) regarding a yellow vehicle bearing a Massachusetts license plate that was at the scene of an earlier incident to which the police had been called on Alverson Avenue in Providence, some several miles from the after-hours club. That same car was reportedly seen later in the area where Diaz was shot. Defense counsel sought to cross-examine Salerno on the police department’s investigation of that vehicle. Defense counsel argued that despite his admission that such testimony would otherwise be impermissible hearsay, he was not seeking the introduction of such information in order to prove the truth of the matters asserted therein but only to show that “it was stated to the officer in his investigation.” The trial justice found that it was an unrelated incident and not relevant to any of the issues in the trial and as a result he precluded that line of questioning. The admission or non-admission of testimony objected to as being immaterial or irrelevant is within the sound discretion of the trial judge. State v. Verdone, 114 R.I. 613, 617, 337 A.2d 804, 808 (1975). We conclude that the trial justice did not abuse his discretion and did not err.

The defendant it appears was apparently trying to prove, through Salerno’s testimony, that another person could have possibly committed the murder of Diaz. However, nothing in defense counsel’s offer of proof disclosed any possible connection between the shooting of Erickson Diaz and the presence of the yellow car. Although that car was allegedly seen near the scene of the shooting and coincidentally also at the scene of an earlier disturbance some several miles distant in the same city, there was nothing presented to the trial justice indicating that there was anything to connect the yellow car to the shooting of Diaz. Furthermore, since that testimony was conceded to be hearsay and was only sought to be admitted to show the intensity of the police investigation concerning Diaz’s death, the testimony could not be used to show that anyone in the yellow car was actually responsible for Diaz’s death. If the intensity of the police investigation was what defense counsel was really seeking to demonstrate to the jury, there were certainly other means available to him to accomplish that goal. In fact, defense counsel was permitted to question Salerno regarding his follow-up investigation of the yellow car’s license plate, but not permitted to question the officer about what the officer had been told by unknown persons concerning the yellow car’s relationship with the earlier incident. Defense counsel then made an offer of proof in which there was no relevant indication of any evidence that connected the earlier incident on Alverson Avenue, several miles distant, to the shooting death of Diaz. Accordingly, we conclude that there was no error in the trial justice’s ruling.

IV

New Trial Motion

The defendant’s last claim of error is that the trial justice erred in denying his motion for new trial because the prosecution had failed to prove beyond a reasonable doubt that the defendant had killed Erickson Diaz. The defendant emphasizes in support of his motion Nunez’s weak identification testimony, as discussed above, the prosecution’s failure to prove a motive for the murder, and the testimony of two defense witnesses, Crystal Lovegrove (Lovegrove) and Marion Marrow (Marrow) who both testified that the defendant was inside the apartment when the shooting took place. The defendant further asserts that the bullets found in a drawer in the pantry area of the apartment, the same type as the one that killed Diaz, were mass produced and distributed throughout the country and thus were in no way identifiable as belonging to the defendant.

On a motion for new trial,

“the trial justice must consider all material evidence in light of the charge to the jury. Using independent judgment, the trial justice must pass upon the weight and credibility of the evidence and accept or reject conflicting testimony. At that point all proper and appropriate inferences may be drawn from the evidence adduced at trial. The trial justice must then determine whether the evidence presented a controversy upon which reasonable minds could differ or whether the evidence failed to prove guilt beyond a reasonable doubt. A new trial may be subsequently granted if the trial justice has reached a different conclusion from that of the jury and if it is specifically found that the verdict is against the fair preponderance of the evidence and fails to do substantial justice. The new-trial motion must be denied, however, if the trial justice finds that the evidence is balanced or reasonable minds could differ.” (Citations omitted.) State v. Marrápese, 588 A.2d 587, 544 (R.I.1990) (quoting State v. Dame, 560 A.2d 330, 333 (R.I.1989)).

We conclude that the trial justice properly applied the above standard when denying the defendant’s motion. As he explained, “When the Court considers a motion for a new trial, as you know, I sit in the capacity effectively as the 13th juror, so to speak, at which time I am expected to assess credibility and weigh the evidence.” He did both adequately and accordingly, we affirm his decision.

The evidence before the trial justice certainly supported the jury’s guilty verdict. As discussed earlier, Nunez had sufficient opportunity to view the defendant and was thus able to testify about the events occurring on the night in question.- Although defense counsel was able to attack Nunez’s testimony at several points, those perceived “weaknesses,” as characterized by the defendant, went merely to the witness’s credibility and were facts for the jury to consider when assessing credibility in reaching its verdict. As the trial justice noted in his decision on the motion for new trial: “[W]hether or not * * * [Nunez’s] testimony on identifying the shooter was impeached or not impeached is really an issue of credibility. Issues of credibility are essentially issues for the jury.” The trial justice clearly recognized that reasonable minds on the jury could differ in regard to whether Nunez was testifying accurately, and, accordingly, the new trial motion was properly denied. We conclude no error on the part of the trial justice.

The defendant next asserts that he is entitled to a new trial because the prosecution failed to introduce evidence of any motive on the part of the defendant to murder Diaz. This contention is simply without merit. The prosecution was not required to prove motive in order to support a guilty verdict on the charge made against the defendant. State v. Caruolo, 524 A.2d 575, 584 (R.I.1987)(“[e]onviction of crime never requires proof of motive, and the absence of motive, by itself, does not raise a reasonable doubt of guilt”). Furthermore, the jury could properly infer that the proprietor of an establishment like the one run by the defendant would certainly want to protect his establishment and his club patrons from incoming bullets. That foreseeable need to protect one’s business establishment from harm could also be inferred from the presence of the .357 Magnum bullets that were found in the pantry drawer of the after-hours club.

Additionally, we, like the trial justice, find no merit in defendant’s contention that the bullets found in the drawer in the pantry of the after-hours club were mass produced and not specifically identifiable as belonging to the defendant. A strong inference could certainly be drawn that the bullets found in the drawer of the pantry of the defendant’s apartment belonged to the defendant and were used in a gun owned or possessed by the defendant. As the trial justice explained in his decision on the motion for new trial:

“The live cartridges, those 57’s, were found in a drawer in the pantry area where the defendant’s own witnesses placed him when the shooting from the outside into the house began. * * * It is reasonable for a fact finder to infer that where there are 57 magnum cartridges, there is also a 57 handgun. Indeed, that is precisely the type of weapon killed [sic ] on young Erickson Diaz. And who else was in the position to know where the shells were, and the firearm, for that matter? The defendant. And what better place to keep ammunition and a firearm but in the very area in the club where liquor was served, where people bought drinks, or money was kept.”

That determination by the trial justice was without error.

As for the two witnesses offered by the defense, Lovegrove and Marrow, we are unpersuaded that their testimony warrants a reversal of the jury’s verdict. The trial justice made reference to the testimony of Marrow in his opinion on the new trial motion. He pointed out that she testified that when the shots were being fired, she “went down” and tried to protect herself from the flying bullets and that she “didn’t look” at what the defendant was doing at that time because she was too busy protecting herself. She specifically admitted in her testimony that she “didn’t see what he [the defendant] did” when the shots were fired. Thus, the trial justice properly disregarded her testimony.

With respect to the testimony of Loveg-rove, a frequent customer at the defendant’s after-hours club, who on the day of her testimony was driven to the courthouse by the defendant’s wife, there was nothing contained in her testimony that would warrant the granting of the new trial motion. Her testimony was actually inconsistent in regard to whether she was continually watching the defendant dining the melee. While at one point Lovegrove testified that she had her “eye on Michael [the defendant] for that entire time,” she also testified at an earlier point in her testimony that she was not “watching Michael [the defendant] the whole time.”⁵ We note also that although the defendant characterizes Lovegrove as a disinterested witness, the testimony reveals that quite the opposite is trae. She testified that she had been friends with the defendant and his wife for three years, that she had volunteered to testify for him, and that she had been driven to the courthouse by the defendant’s wife.⁶ It is fundamental that the credibility of the trial witness is a proper subject for the trial justice’s independent evaluation on a motion for a new trial, and we are unable to conclude any error in the trial justice’s credibility findings. Although the trial justice made no specific finding concerning Lovegrove’s particular testimony, his ultimate ruling on the defendant’s motion more than satisfies us that he found Lovegrove’s testimony to be incredible. Accordingly, the defendant’s new trial motion was properly denied.

Y

Conclusion

For all the foregoing reasons, the defendant’s appeal is denied and dismissed. The judgment of conviction appealed from is affirmed and the papers in this ease are remanded to the Superior Court.

WEISBERGER, C.J., and LEDERBERG, J., dissent.

1 . Defense counsel asserted in moving to pass the case:

"MR. WALKER: Your Honor, I’m aware of the Court’s ruling in regards to my motion in limine in regards to any information in regards to my client running an after hours club commonly known as a sip joint At this particular point, the defense would make a motion to pass in regards to the prosecution, his opening statement brought out information that my client was running an after hours club, which is a crime, which he has not been charged with; and, therefore, it’s prejudicial in regards to my client.”

2 . The description of the perpetrator that Nunez gave to the police indicated that the perpetrator had very dark skin "like a black guy,” but the defendant does not, in fact, have such dark skin.

3 . Even though the victim in State v. Gardiner, 636 A.2d 710, 717 (R.I.1994), said that the field leading to the woods was lit by the lights behind the apartment building bordering the field, she indicated that in the woods the lighting was at best "poor, but if in close range, visible.”

4 . In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the United States Supreme Court quoted with approval Judge Lev-enthal’s concurring opinion in Clemons v. United States, 408 F.2d 1230 (D.C.Cir.1968), that pointedly noted that identification testimony, even though significant evidence, is still only evidence for the trial jury to weigh and evaluate and "[cjounsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubt as to the accuracy of the identification—including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.” 432 U.S. at 114 n. 14, 97 S.Ct. at 2253 n. 14, 53 L.Ed.2d at 153 n. 14 (quoting Clemons v. United States, 408 F.2d 1230, 1251 (D.C.Cir.1968) (concurring opinion)). Later, in Watkins v. Sowders, 449 U.S. 341, 347, 101 S.Ct. 654, 658, 66 L.Ed.2d 549, 555 (1981), the Supreme Court reiterated that the reliability of identification evidence under the instructions of the trial judge is a "task our judicial system must assume juries can perform.”

5 . As a matter of record, when the police arrived just minutes after Diaz’s body was found, the after-hours club had been completely abandoned by its patrons, including Lovegrove and Marrow, who had scattered and disappeared into the night.

6 . Although defense counsel made clear that the reason the defendant’s wife drove Lovegrove to the courthouse was that he was unexpectedly unable to do so himself, that partisan driving arrangement certainly indicated that Lovegrove was aligned with the defense.