March 31, 2021
Supreme Court
No. 2019-59-C.A. (K1/16-69B)
State :
v. :
Richard Baribault. :
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 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
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINION
Justice Flaherty, for the Court. The defendant, Richard Baribault, appeals
from his conviction following a jury trial in Kent County Superior Court for second-
degree murder, receiving stolen goods, conspiracy, operating a vehicle on a
suspended license, and carrying a knife greater than three inches in length. For those
offenses, the defendant was sentenced to life imprisonment at the Adult Correctional
Institutions for the murder, a consecutive ten-year sentence for the conspiracy, and
suspended one-year sentences for each of the three remaining convictions, with
probation.
On appeal, defendant argues that (1) the trial justice erred by failing to
suppress the fruits of a police interrogation, urging that the interrogation violated
Rule 5(a) of the Superior Court Rules of Criminal Procedure and the Fourth
Amendment to the United States Constitution; (2) the trial justice abused his
-1- discretion by declining to redact certain statements that defendant had made outside
the presence of his interrogators that were overly prejudicial and that were shown to
the jury; (3) defendant was denied medication during his extensive detention and
interrogation in violation of his Fifth Amendment rights; and (4) the trial justice
abused his discretion by failing to suppress a witness’s out-of-court identification.
For the reasons set forth herein, we affirm the judgment of the Superior Court.
I
Facts and Travel
This case involves the brutal beating and murder of Fernando Silva, a seventy-
year-old man who was found dead aboard his sailboat. Following an investigation
by the Warwick police, defendant was arrested and, on January 27, 2016, a Kent
County grand jury indicted defendant for the murder, in violation of G.L. 1956 § 11-
23-1; defendant was also indicted for conspiracy to commit robbery, receiving stolen
goods, driving with a suspended license, and possession of a knife greater than three
inches in length, in violation of G.L. 1956 § 11-1-6; G.L. 1956 §§ 11-41-2 and 11-
41-5; G.L. 1956 § 31-11-18; and G.L. 1956 § 11-47-42, respectively.
A
The Investigation and Arrest
On August 4, 2015, while he was on routine patrol, the City of Warwick’s
Chief Harbormaster, Jeffrey Baris, came upon a twenty-six-foot sailboat that was
-2- “dragging the anchor” at the northern end of Warwick Cove. The older, yellow-
hulled sailboat was named “Star Capella.” Mr. Baris boarded the Star Capella.
After taking notice of its disheveled state, and, believing that nobody was aboard,
Mr. Baris towed the Star Capella and then secured it to a vacant mooring in the south
end of the cove.
Eleven days later, on August 15, Mr. Baris attempted to make a visual check
of the Star Capella to ensure that it remained properly moored. Mr. Baris became
aware of a foul odor as he approached the vessel. By the time he boarded the boat,
he found the odor to be overpowering. While aboard, Mr. Baris observed significant
insect activity. Investigating, he used a bore, which he described as a pole with a
hook at one end, to lift objects inside the cabin. After using the bore to displace a
piece of plywood, a foam mattress, and a blanket, Mr. Baris discovered what he
believed to be human feet, covered by flies and maggots and in an advanced stage
of decomposition. Mr. Baris immediately contacted law enforcement.
The Warwick Police Department quickly determined that the body that had
been found aboard the Star Capella was that of Fernando Silva, who was known in
the community as “Captain Freddy.” Captain Freddy owned and lived on the Star
Capella. The police received a tip that the vessel previously had been docked at the
Warwick Cove Marina but, after speaking with the owner of that marina,
-3- investigators learned that the sailboat actually had been docked at a private dock that
had been rented by Stephen Emerson, a local quahogger.
The police spoke with Mr. Emerson on August 18, 2015. Mr. Emerson, who
lived at property abutting the dock, told police that he had observed two white men
attempting to start the Star Capella’s engine. He also led the officers to Donald
“Ducky” Waterman in an effort to assist in identifying the two men. The next day,
while trying to locate Ducky, police instead encountered his brother, Charles
“Chucky” Waterman. Chucky told police that, a couple of weeks prior, Troy
Gunderway had tried to assist Captain Freddy in acquiring a new engine for his boat.
Chucky led police to Ducky and, in turn, to Mr. Gunderway, who was living
sometimes in a tent in Ducky’s backyard and sometimes at the home of Ducky’s
father. Mr. Gunderway admitted to police that he had done work on the Star Capella
and said that he had been assisted by defendant, who drove a red pickup truck.
The police determined where defendant lived after speaking with Mr.
Gunderway. The same day, the police traveled to that location in search of a pickup
truck that matched the description given by Mr. Gunderway. The police discovered
a maroon pickup truck outside defendant’s residence and “ran” the license plate
affixed to the vehicle. After doing so, the officers learned that the license plate had
been reported stolen. The police also conducted a “driving abstract” on defendant
and learned that his driver’s license had been suspended. After staking out that
-4- location for several hours, the police observed defendant leaving the residence. At
that time, they identified him through photographic records of the Department of
Motor Vehicles.
The police arrested defendant after they observed him entering and operating
the truck. The defendant was charged with three misdemeanors at that time:
Possession of stolen license plates, driving on a suspended license, and possessing a
knife greater than three inches in length, which was discovered on his person during
the course of a search incident to his arrest.1 After his arrest, and before he was
arraigned the following afternoon, defendant was held in custody and was
interrogated by the police on three separate occasions. While he was in police
custody, defendant made a number of contradictory and incriminating statements,
which ultimately led to his being charged with the murder of Captain Freddy.
B
The Trial
The defendant stood trial by jury in Kent County Superior Court, which
commenced on June 14, 2017. The trial continued over a two-week period and
resulted in voluminous testimony and evidence. The following is a summation of
1 The knife was stained with a “reddish brown substance” that was later determined to be blood that came from the body of Captain Freddy.
-5- the testimony and evidence produced during defendant’s trial that is relevant to this
appeal.
Testimony of Stephen Emerson
Mr. Emerson testified that, on July 31, 2015, he discovered that the Star
Capella was docked at the private dock at the end of his property, a dock of which
Mr. Emerson claimed to be “in charge[.]” Mr. Emerson confronted Captain Freddy,
who explained that he was docked in that spot with the permission of Mr. Emerson’s
landlord, through his friend, Donald Waterman. Mr. Emerson did not work the
following morning. He testified, however, that, accustomed to his typical
quahogging schedule, he was awake early in the morning, “about sun up[,]” when
he noticed two individuals crossing through his yard carrying a cooler and gasoline
container. Mr. Emerson identified one of those men as defendant.
Mr. Emerson further testified that he confronted the two individuals that
morning about cutting through his yard. Both appeared nervous, he recounted, and
one responded, “We are moving Freddy’s boat up to Conimicut. He’s getting high
with a woman and he asked us to move the boat.” Mr. Emerson said that he saw the
individuals go to the boat, begin moving things around, and attempt to start the
engine. After about an hour, he testified, Mr. Emerson went down to the boat and
-6- offered his assistance to the individuals. Shortly thereafter, the two individuals left
so that they could return with another engine.
Mr. Emerson recalled that one of the individuals, the one who was not
defendant, was “in and out” of Mr. Emerson’s backyard that day many times,
returning to the boat in an effort to start the engine. Mr. Emerson testified that, at
one point in the early afternoon, he observed defendant sitting in a red burgundy
truck, parked on the side of his house, at the same time the other individual worked
on the boat. Eventually, Mr. Emerson recounted, the individual who was not
defendant began moving the boat but, after experiencing engine trouble, the boat
“turned around and it was bouncing off other boats[.]”
Mr. Emerson testified that, at some point, he went to Boston with his
girlfriend. When he returned on August 4, 2015, he noticed that the vessel was no
longer at the dock.
Testimony of Donald “Ducky” Waterman2
Ducky Waterman, a commercial shell-fisherman, testified that he first met
Captain Freddy in the summer of 2015. At that time, Captain Freddy had asked
Ducky for a ride because his bicycle had been stolen. The witness said that he and
2 This opinion will refer to Donald Waterman as “Ducky,” as he was referred to during trial and to avoid confusion with his brother, Charles “Chucky” Waterman.
-7- Captain Freddy became acquainted and that, from that point on, Captain Freddy
would call on Ducky from time to time when he was in need of transportation.
Ducky testified that he also helped Captain Freddy in securing dock space for his
sailboat by contacting Mr. Emerson’s landlord on Captain Freddy’s behalf.
Ducky further testified that Captain Freddy was “hooked on Keno,” a lottery
game. According to Ducky, Captain Freddy was “lucky[,]” “kept hitting[,]” and
“was always winning.” Ducky also recounted that Captain Freddy did not keep his
good fortune to himself. He testified that Captain Freddy would hand out money to
people who were standing outside the convenience stores whenever Captain Freddy
would “hit.” Ducky recounted that, in late July 2015, Captain Freddy informed him
that, in Portsmouth, “he won $800 on one [ticket] and a couple of hundred on
another. He hit like three times in one day.” Ducky recalled that, around that time,
Captain Freddy “hit” at another convenience store in Warwick, and Ducky estimated
that Captain Freddy won a couple of thousand dollars on that occasion. Around that
time, according to Ducky, Captain Freddy “was hitting three or four times a day.”
Ducky proceeded to describe Mr. Gunderway’s relationship with Captain
Freddy. Ducky recounted how he, from time to time, drove Mr. Gunderway around
when Mr. Gunderway needed a ride. On a couple of occasions, Ducky and Mr.
Gunderway drove to the convenience store when Captain Freddy was playing Keno.
Ducky testified that Mr. Gunderway knew that Captain Freddy had been successful
-8- at playing Keno, and he told Ducky at some point that Captain Freddy “was a lucky
guy.” Ducky also said that, on another occasion, he tried to assist Captain Freddy
find a more powerful engine for his boat through an acquaintance of Mr. Gunderway,
and the three men had driven together to look at an engine.
Testimony of Troy Gunderway
Mr. Gunderway’s testimony was especially damning to defendant. He
testified that he had known defendant for several years, that he had worked with him,
and that, at various times, he had lived with him. From the witness stand, he relayed
the events surrounding the night of July 31, 2015, and the days that followed.
Mr. Gunderway testified that, on the evening of July 31, 2015, defendant
transported him to a meeting with Mr. Gunderway’s ex-girlfriend so that he could
make a child-support payment. The two men then went to the “Zebra strip joint[.]”
The witness said that the pair hung around the strip club for a while, purchased some
crack cocaine, and then traveled to the home of defendant’s friend. He said that they
consumed the crack cocaine en route. Mr. Gunderway testified that he and defendant
drank alcohol at the home of defendant’s friend until they exhausted their supply of
liquor. They then decided to head to Mr. Gunderway’s residence to see if there was
more alcohol there. Mr. Gunderway recounted that he and defendant encountered
Ducky after they arrived at Mr. Gunderway’s residence. Mr. Gunderway testified
-9- that Ducky was “bragging” about Captain Freddy’s winnings when Ducky jokingly
said, “Let’s roll him[,]” which Mr. Gunderway understood to mean “rob him.” Mr.
Gunderway said that he and defendant left shortly thereafter in defendant’s truck,
“looking for money to go hang out some more[.]” He said that defendant then
suggested that they attempt to “borrow” money from Captain Freddy, and with that
they drove to Captain Freddy’s sailboat.
Mr. Gunderway testified that he boarded the boat, walked down the stairs into
the cabin, and called out Captain Freddy’s name, but realized that he was sleeping.
Mr. Gunderway said that he was sitting at a table in the boat, deciding what to do
next, when defendant arrived. According to Mr. Gunderway, he informed defendant
that Captain Freddy was sleeping, to which defendant responded, “Well, I have no
money. I need money and f**k it. Let’s rob this dude.”
Mr. Gunderway testified that defendant then proceeded down the stairs and
awakened Captain Freddy. He said that Captain Freddy started screaming when
defendant, according to Mr. Gunderway, “just went and blasted him like five times
in the face * * * [f]ull punches to the face. Blood splurted on the walls, the curtains.”
Mr. Gunderway admitted to holding Captain Freddy down while defendant
threatened Captain Freddy with a knife, stomped on his legs, and demanded money.
Eventually, Mr. Gunderway recounted, the two left the boat, leaving Captain Freddy
still on the floor and “breathing real heavy[.]”
- 10 - Mr. Gunderway testified that he and defendant returned to the boat the next
morning because Mr. Gunderway had lost his cell phone and thought that he might
have left it in the boat. He recalled that, upon arriving at the boat, he called out to
Captain Freddy, but there was no response. The witness then said that he went down
into the cabin and kicked Captain Freddy’s foot. But again, there was no response.
Mr. Gunderway testified that he returned to defendant’s truck and informed
defendant that Captain Freddy was dead. It was at that point, he recounted, that the
two agreed that they would cover up the crime scene.
Mr. Gunderway testified that, consistent with Mr. Emerson’s testimony, he
had returned to the boat on several occasions that day, all in a futile attempt to start
the engine. According to Mr. Gunderway, the plan hatched by him and defendant
was to dispose of the body before it began to decompose and give off the odor of
decaying flesh. Mr. Gunderway recalled that the pair planned to clean the boat, take
Captain Freddy’s body “out towards the sea[,]” and “throw the body over board and
sink it.” Mr. Gunderway testified that, to that end, he and defendant purchased
cleaning supplies and returned to the boat with a cooler that contained bleach, gloves,
a cinderblock, and rope. Mr. Gunderway then recounted his encounter with Mr.
Emerson and, consistent with Mr. Emerson’s testimony, explained his attempts
throughout the day to start the engine.
- 11 - He testified that eventually, on August 4, 2015, he managed to start the Star
Capella’s engine. Mr. Gunderway said that he operated the boat out into the bay,
when he became aware of the presence of the harbormaster, and so he decided to
turn the other way. Mr. Gunderway testified that, after changing course, he motored
the boat to “[t]he end of the cove[,]” threw out the anchor, and rowed on the Star
Capella’s dinghy to shore, where defendant picked him up.3
Other Evidence Introduced at Trial
Other evidence admitted during the trial painted a vivid picture not only of
defendant’s involvement in the killing of Captain Freddy but also of his state of mind
between the time of the killing and his eventual arrest.
Video surveillance of the Warwick Cove Marina, along with Google location
history, revealed that defendant’s truck and cell phone were at the marina from
approximately 3:27 a.m. to 4:15 a.m. on August 1, 2015. 4 Other evidence included
3 Mr. Gunderway pled guilty to charges of second-degree murder and conspiracy to commit robbery. He was sentenced to ten years to serve at the ACI for the conspiracy charge and had not yet been sentenced for the murder charge at the time of defendant’s trial. 4 Detective Jean Toussaint, who was assigned to the Warwick Police Department’s computer forensics unit, testified that Google location history can provide an individual’s location through an electronic device by way of cell tower proximity, WiFi point proximity, and GPS. In this case, the police used Google location history to pinpoint defendant’s location through the Google account associated with his cell phone.
- 12 - Google voice searches made from defendant’s cell phone, in defendant’s own voice,
which were played to the jury and identified by Mr. Gunderway. Those searches
involved inquiries that included: “Does bleach kill everything including skin cells?”;
“Boat motor mechanic in Warwick, Rhode Island”; “What towns in Rhode Island
have garbage days—garbage pickup on Friday morning?”; and “Where would
Warwick harbormaster take a towed boat?”
C
The Verdict and Sentencing
The defendant was found guilty by a jury on all five counts with which he was
charged. He was sentenced to life imprisonment at the ACI for the murder of
Captain Freddy; a consecutive ten-year sentence for the conspiracy; and suspended
one-year sentences for each of the three misdemeanors, with probation, two being
concurrent to the other sentence and one consecutive.
Additional facts are set forth infra as necessary to discuss the issues before
the Court on appeal.
II
Issues on Appeal
Before this Court, defendant offers an array of arguments which, he contends,
should cause his convictions to be vacated. First, he asserts that the trial justice erred
by failing to suppress the fruits of his third interrogation by the Warwick Police
- 13 - Department, because the delay between his arrest and presentment to a judicial
officer exceeded that which is permissible under Rule 5(a) of the Superior Court
Rules of Criminal Procedure and the Fourth Amendment to the United States
Constitution. Next, he argues that the trial justice abused his discretion by failing to
redact certain recorded prejudicial statements made by defendant while he was in
the interrogation room, but outside the presence of his interrogators. Those video
recordings were later shown to the jury. Third, he contends that his detention by the
Warwick Police Department was extensive, and that he was denied prescription
medication during his detention, in violation of his Fifth Amendment rights. Lastly,
defendant maintains that the trial justice abused his discretion by failing to suppress
a witness’s out-of-court identification. We will address each of these arguments in
turn.
- 14 - III
Discussion
The Interrogations5
Facts
The defendant argues that the trial justice erred by failing to suppress the fruits
of his third interrogation by the police because the delay between his arrest and
presentment to a judicial officer violated Rule 5(a) of the Superior Court Rules of
Criminal Procedure and the Fourth Amendment to the United States Constitution.
The defendant was arrested on misdemeanor charges on August 19, 2015, at
about 3 p.m. and he was “booked” at the police station at about 4:26 p.m. His first
interrogation began around 5:58 p.m., and the questioning continued for about four
hours. Although defendant had been arrested on three misdemeanor offenses, and
even though he was examined about the stolen plates in the interrogation room, there
is no question that defendant had captured the police’s interest with respect to the
killing of Captain Freddy and that, according to police, he “became more on [their]
5 The facts set forth in this section have been adduced from the testimony of Detective Mark Canning and Detective Scott Robillard of the Warwick Police Department along with the transcript of defendant’s interrogations. The jury and this Court have also viewed the recorded interrogations.
- 15 - radar” and “a suspect slash witness” when they discovered what appeared to be blood
on the knife that had been seized from defendant’s person at the time he was arrested.
Accordingly, the conversation between the police and defendant soon turned to the
circumstances surrounding Captain Freddy’s death.
At some point during defendant’s first interrogation, Mr. Gunderway had
voluntarily reported to the police station and spoke with the police. From time to
time, one of defendant’s interrogators would leave defendant in the interrogation
room and speak with Mr. Gunderway. After speaking to the police for about sixty
minutes, Mr. Gunderway completely implicated himself in Captain Freddy’s death,
relating a story similar to his later testimony, set out supra, thereby also implicating
defendant. This afforded the police the opportunity to contemporaneously confront
defendant with any discrepancies between his and Mr. Gunderway’s versions of
what had transpired on the Star Capella on July 31, 2015, and August 1, 2015. The
defendant, after initially denying any involvement with Mr. Gunderway whatsoever,
began to shift his story and eventually provided the police with conflicting accounts
about what had happened on that night as well as during the days leading up to his
arrest. Although defendant never confessed or admitted culpability for Captain
Freddy’s murder, he did tell police that he was in his parked truck while Mr.
Gunderway performed work on the Star Capella’s engine on August 1, 2015, and
that he later drove Mr. Gunderway to the boat so that he could move it.
- 16 - The defendant’s first interrogation concluded around 10 p.m., and his second
interrogation began a few hours later, around 1:20 a.m. on August 20, 2015, the next
day. Shortly after his second interrogation began, the police informed defendant that
they had spoken with Mr. Gunderway and that, “basically, in a nutshell, you guys
were looking for money and you both killed the guy.”6 The defendant, confronted
with both the fact of Mr. Gunderway’s cooperation and the officers’ suggestion that
surveillance cameras would reveal if defendant did, in fact, leave his vehicle that
night, began to amend his version of events. The defendant conceded, “All right. I
went down—listen. I didn’t go on the boat. I went down on the dock.” He contended
that he went on the dock as a lookout for Mr. Gunderway. However, aside from this
revelation, defendant continued to deny the officers’ factual suggestions for the
duration of the interrogation, which lasted for about an hour. The police terminated
the interrogation after defendant said that he was tired.
Later that morning, despite the fact that arrangements had been made to bring
defendant to the courthouse at 9 a.m. to be arraigned on the three misdemeanor
charges, defendant continued to be held at the police station. There, police elected
to interrogate defendant for a third time, beginning at 12:25 p.m.
6 Mr. Gunderway had given his statement to the police by approximately 11:30 p.m. on August 19, 2015.
- 17 - The police asked defendant at the start of the third interrogation, “Anything
come to your head last night?” The defendant responded, “Yeah, a lot. * * * About
the boat. * * * I remember a lot now, because I did a lot, a lot of f**king thinking.”
The video recording reveals that defendant then began to relate his version of events,
with little interruption by the police. This third time, however, defendant admitted
to going onto the boat, but he claimed that it was Mr. Gunderway who sought to,
and did, rob Captain Freddy, and that defendant “grabbed” Mr. Gunderway in an
effort to stop him, but Mr. Gunderway “kicked [him] in the n**s or almost in the
n**s.” The defendant continued to “remember” certain factual details that he had
not recollected the night before, such as the detail that Mr. Gunderway carried a
cooler to the Star Capella when they returned to the boat a few hours after their fatal
encounter with Captain Freddy. An investigating officer then informed defendant
that “[t]he only discrepancy between [his and Mr. Gunderway’s] stories at this point,
pretty much is who the aggressor was.” The defendant then terminated the
interrogation, and he was arraigned in the District Court on the three misdemeanor
charges later that afternoon.
It is clear from the recorded interrogation that, in each of the three
interrogations, defendant spoke to the police of his own volition about the death of
Captain Freddy. He waived his Miranda rights in writing before each interrogation;
and during the first interrogation he provided the police with written consent to
- 18 - search his cell phone, his truck, and his apartment.7 The defendant was given a
bathroom break during the first interrogation, a cigarette break after the start of the
second interrogation, and prescription medication during the third interrogation; and
he was provided with food and water on all three occasions. The defendant also
slept after the second interrogation. The police described defendant’s demeanor as
“very cooperative” during the interrogations and said that “[h]e appeared pretty
calm, friendly, [and] willing to talk.” Moreover, defendant repeatedly told the police
during the interrogations that he wanted to talk with them and that he was “trying to
help [them] out.”
Before trial, defendant moved in the Superior Court to suppress each of his
three interrogations and, consequently, the fruits of those interrogations. In his
motion, he asserted that the Warwick police failed to present him to a judicial officer
without unnecessary delay, in violation of Rule 5(a) of the Superior Court Rules of
Criminal Procedure. A hearing on that motion was held on June 12, 2017. After
hearing the testimony of Detective Mark Canning, one of defendant’s interrogators,
and, importantly, from defendant himself, who testified that he voluntarily spoke to
the police during the third interrogation because he desired to tell his side of the story
and clear his name, the trial justice denied defendant’s motion.
7 Miranda v. Arizona, 384 U.S. 436 (1966).
- 19 - In reaching his decision, the trial justice found that there was no “causative
effect” resulting from any delay between defendant’s arrest and any statement or
consent given by defendant. On appeal, defendant contests only the trial justice’s
conclusions with respect to the third interrogation.
Standard of Review
“This Court’s review of a trial justice’s ruling with respect to a motion to
suppress a statement which a defendant has alleged was made involuntarily requires
‘a two-step analysis.’” State v. Barros, 24 A.3d 1158, 1179 (R.I. 2011) (quoting State
v. Taoussi, 973 A.2d 1142, 1146 (R.I. 2009)). “In the first step, we review the trial
justice’s findings of historical fact relative to the issue of the voluntariness of the
confession.” Id. “We accord deference to the trial justice’s findings of historical fact
unless those findings are clearly erroneous.” Id. “If we conclude that the trial
justice’s findings of historical fact were not clearly erroneous, we proceed to the
second step of our analysis. At the second step, we ‘apply those historical facts and
review de novo the trial justice’s determination of the voluntariness of the
statement.’” Id. (quoting State v. Bido, 941 A.2d 822, 836 (R.I. 2008)).
- 20 - 3
Analysis
Rule 5(a) of the Superior Court Rules of Criminal Procedure commands, in
pertinent part, that “[a]ny person making an arrest without a warrant shall take the
arrested person without unnecessary delay before a judicial officer of the District
Court[.]”
“In interpreting Rule 5(a), this Court has held that delay in presentment,
without more, does not warrant automatic suppression of a statement made during
the period of delay. Rather, we have squarely held that ‘delay, if it is to render a
confession inadmissible, must have been operative in inducing the confession.’”
State v. King, 996 A.2d 613, 622 (R.I. 2010) (emphasis in original) (quoting State v.
Lionberg, 533 A.2d 1172, 1178 (R.I. 1987)). “We have likewise stated that a
‘hearing justice must consider whether the time preceding a suspect’s statement had
any causative effect upon his or her * * * decision to confess.’” Id. (emphasis in
original) (brackets omitted) (quoting Lionberg, 533 A.2d at 1178). “Therefore, ‘the
elapsed time between the defendant’s arrest and his confession is the critical period
we must examine and scrutinize in order to determine if it had been operative in
- 21 - inducing the defendant’s admissions.’” Id. (emphasis in original) (quoting State v.
Nardolillo, 698 A.2d 195, 199 (R.I. 1997)).8
Accordingly, “our well-settled case law with respect to Rule 5(a)
unambiguously indicates that a defendant who seeks to have an inculpatory
statement suppressed because of an unnecessary delay in presentment ‘must
demonstrate both: (1) that the delay in presentment was unnecessary and (2) that
such delay was causative with respect to’ the making of the inculpatory statement.”
Barros, 24 A.3d at 1182 (emphasis in original) (quoting King, 996 A.2d at 622).
In this case, where the delay in presenting defendant to a judicial officer is
troubling, we will assume without deciding that there was not strict compliance with
the requirements of Rule 5(a). We do so because it is our firm opinion that the
evidence does not support a conclusion that any delay here was operative in inducing
defendant’s inculpatory statements.
There can be no question that the third interrogation was fruitful for the police
because defendant made more inculpatory statements in that interrogation than he
had in the two preceding interrogations. However, we cannot say that any statements
made by defendant were caused by the delay. The causation element of our Rule
5(a) analysis “militate[s] against the employment of [a] police tactic of delay
8 In this case, although defendant never confessed, he did make statements against his own interest in his changing account of events. We have, therefore, applied the same principles that have been employed in confession cases.
- 22 - designed to produce an involuntary or unwitting confession[.]” King, 996 A.2d at
623 (quoting Nardolillo, 698 A.2d at 200). However, those types of tactics are not
present in this case. Rather, our review of the record leads us to the unwavering
conclusion that the statements that defendant made to the investigating officers in
the third interrogation were motivated by defendant’s own explicit willingness to
cooperate with the officers’ investigation and by his desire to distance himself from
any responsibility for Captain Freddy’s death.
In King, this Court held that the inculpatory statements made by the defendant
were not caused by any delay in presentment because the defendant was eager to
speak with the police and willingly relayed his story “to persuade the police as to the
veracity of his version of the events, while simultaneously attempting to shift blame
away from himself.” King, 996 A.2d at 621, 623; see id. at 622 (the defendant was
on “a mission to tell * * * his side of the story”). In our opinion, that is essentially
what happened in this case. Having had the benefit of reviewing the video recording,
we come to the inescapable conclusion that defendant’s active participation in the
third interrogation was an effort to build his own credibility with the police while
shifting any criminal liability to Mr. Gunderway.
The third interrogation began with defendant recounting, on his own initiative,
a more complete story after indicating that he had done a lot of thinking since the
prior interrogation and that he “remember[ed] a lot now[.]” Viewing the three
- 23 - interrogations together, it is noteworthy that the evolution of defendant’s story
coincided with his increasing awareness of the knowledge of the officers with
respect to the killing of Captain Freddy and defendant’s role in that killing. In the
recordings, as the state argues, defendant appears “calm, friendly, [and] willing to
talk.” Indeed, by defendant’s own admission in the course of his testimony at the
hearing on his motion to suppress, he had spoken with the police during the third
interrogation in an effort to tell his side of the story and, thus, clear his name.
Therefore, it is our firm opinion that there was no causative effect between any delay
in defendant’s presentment and the statements that he made during the third
interrogation.
The defendant places great emphasis on the federal counterpart to Rule 5(a)
and points us to analogous caselaw interpreting Rule 5(a) of the Federal Rules of
Criminal Procedure.9 Nonetheless, as we have said in prior opinions, Rule 5(a) is
“‘not a constitutional command to be found within the text of our Federal or State
Constitutions, and its breach does not necessarily create any constitutional
violation.’ [Rather], this Court has viewed ‘the rule as a prophylactic measure
designed to prevent other constitutional infirmities.’” King, 996 A.2d at 621 (quoting
9 Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure provides, in relevant part, that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer[.]”
- 24 - Nardolillo, 698 A.2d at 199). “While cases interpreting and applying federal rules
may at times be enlightening as we interpret and apply our rules of criminal
procedure, those federal cases are by no means binding on us as we deal with a
Rhode Island rule such as Rule 5(a).” Id. at 621 n.17. Accordingly, and in view of
the fact that we have available our own well-defined jurisprudence, “we consider
defendant’s reliance on such federal cases as Corley v. United States, [556] U.S.
[303], 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009), to be largely misplaced.” Id.
Accordingly, we hold that the trial justice did not err in denying defendant’s
motion to suppress the fruits of his third interrogation.
Inculpatory Statements Captured by Interrogation Room Recording
The defendant next argues that the trial justice erred by declining to redact
certain prejudicial statements he made while he was alone in the interrogation room.
Although defendant implicated himself in the death of Captain Freddy only
minimally during the first interrogation, he did make some statements that raised
eyebrows. The defendant maintained throughout the first interrogation that he
believed that the Star Capella was owned by Ducky, and he said that Mr. Gunderway
had to move the boat for Ducky because the dock rental was expiring. At one point,
- 25 - the detectives asked defendant if Mr. Gunderway had contacted him between the
time the boat had been moved and the time of defendant’s arrest. Specifically, the
police asked defendant if Mr. Gunderway mentioned anything about a T-shirt that
was found wrapped around Captain Freddy’s feet and ankles when the decedent’s
body was discovered.10 The defendant responded, “I think he said like Ducky’s boat
stinks or something. Ducky needs to clean his boat, it f**king stinks. And I think I
said, well why not just f**king burn it then. You know? If it stinks that bad, which
I was joking with him.” The interrogation ended shortly thereafter and the police
left the room. Speaking to himself in an empty room, defendant exclaimed, in a
Hamlet-like soliloquy, “I’m f**ked. Oh, no. I’m f**ked man. * * * F**ked up—
going to jail for the rest of my life, bro. * * * They’re gonna f**king put me and I’m
never leaving f**king jail again.”
At trial, defendant was heard on his motion to redact that statement before the
video recordings of his interrogations were played to the jury.11 The defendant
argued that the statement should be excluded under Rule 403 of the Rhode Island
Rules of Evidence because the statement would cause speculation among the jury
10 Earlier in the first interrogation and after being pressed about his involvement in the death of Captain Freddy, defendant told the police that “Troy did something to him.” When pressed further, defendant said, “He said he choked him * * * there was a f**king shirt or a white [T]-shirt or something. * * * It’s Troy’s.” 11 The defendant also moved to redact two other statements made under similar circumstances. However, on appeal, defendant contests only the trial justice’s ruling with respect to the above-recited statement.
- 26 - about whether it was an admission of guilt. The trial justice denied the motion,
finding that the statements were “relevant and probative and not so prejudicial” as
to outweigh their probative value.
“In reviewing the admission or exclusion of evidence, it is well settled that
the admissibility of evidence is within the sound discretion of the trial justice, and
this Court will not interfere with the trial justice’s decision unless a clear abuse of
discretion is apparent.” State v. Cavanaugh, 158 A.3d 268, 273 (R.I. 2017) (brackets
omitted) (quoting State v. Peltier, 116 A.3d 150, 153 (R.I. 2015)). “[O]nly rarely—
and in extraordinarily compelling circumstances—will we, from the vista of a cold
appellate record, reverse a trial court’s on-the-spot judgment concerning the * * *
weighing of probative value and unfair effect.” State v. Patel, 949 A.2d 401, 413
(R.I. 2008) (brackets omitted) (quoting United States v. Rodriguez-Estrada, 877
F.2d 153, 155-56 (1st Cir. 1989)).
Rule 403 of the Rhode Island Rules of Evidence provides, “[a]lthough
relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
- 27 - by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Our precedent makes plain, however, that “[i]t is only
evidence that is marginally relevant and enormously prejudicial that must be
excluded.” Patel, 949 A.2d at 412-13. It is apparent, then, that a defendant seeking
to overturn a trial justice’s admission of evidence under a Rule 403 analysis has a
high hurdle to clear.
After reviewing the record, we discern no error on the part of the trial justice.
There can be no question that defendant’s statement, “I’m f**ked. * * * [G]oing to
jail for the rest of my life,” is probative of defendant’s awareness of the compromised
position in which he found himself. When the first interrogation is considered as a
whole, the contested statement was made after he had agreed to allow the police to
search his phone, truck, and apartment, after he knew that Mr. Gunderway had been
speaking with the police, and after defendant had shared somewhat incredible details
of his involvement, such as when he suggested burning the boat to Mr. Gunderway
after Mr. Gunderway told defendant that there was a foul odor emanating from the
boat. Under these circumstances, we reach the same conclusion as did the trial
justice and hold that the probative value of these statements is not outweighed by
their prejudicial effect. See Patel, 949 A.2d at 414 (“Under our law, we do not
distinguish between the probative value of circumstantial and direct evidence; the
- 28 - jury must weigh the evidence and determine whether it establishes the guilt of the
accused beyond a reasonable doubt.”).12
Other Issues
The defendant raises two additional arguments before this Court on appeal:
(1) his detention by the Warwick Police Department was extensive and he was
denied medication during the detention in violation of his Fifth Amendment rights
and (2) the trial justice abused his discretion by failing to suppress a witness’s out-
of-court identification. It is apparent from the record, however, that neither of those
issues was raised prior to or during the defendant’s trial. Pursuant to our well-settled
raise-or-waive rule, “no party may assign as error any portion of the charge or
omission therefrom unless the party objects thereto before the jury retires to consider
its verdict[.]” State v. Hunt, 137 A.3d 689, 693 (R.I. 2016) (brackets omitted)
(quoting Super. R. Crim. P. 30). As such, we need not, and shall not, address these
issues on appeal.
12 We note that, even if this evidence had been admitted in error, the evidence would be subject to a harmless-error analysis. Given the overwhelming evidence introduced against defendant at trial that was probative of his guilt, we would affirm defendant’s conviction even if the trial justice had erred in admitting the statement. See State v. Doyle, 235 A.3d 482, 497 (R.I. 2020) (“[B]ased on the extensive record in this case and the overwhelming evidence presented at trial, we are of the opinion that, even if there were evidentiary error, it was harmless beyond a reasonable doubt.”).
- 29 - IV
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Superior
Court. The record shall be returned to the Superior Court.13
Justice Flaherty participated in the decision and authored this opinion prior to
his retirement.
Justice Lynch Prata and Justice Long did not participate.
13 We pause to note that the recording of all custodial interrogations in this case enabled the finder of fact and this Court to see and hear the defendant’s statements first hand, rather than in the form of a second-hand rendition from the witness stand. This advances the interests of justice, and we urge all law-enforcement agencies to do the same.
- 30 - 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. Richard Baribault.
No. 2019-59-C.A. Case Number (K1/16-69B)
Date Opinion Filed March 31, 2021
Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Written By Associate Justice Francis X. Flaherty
Source of Appeal Kent County Superior Court
Judicial Officer from Lower Court Associate Justice Brian P. Stern
For State:
Virginia M. McGinn Attorney(s) on Appeal Department of Attorney General For Defendant:
J. Richard Ratcliffe, Esq.
SU-CMS-02A (revised June 2020)