Supreme Court No. 2019-67-C.A. (K1/12-0341A)
State :
v. :
Tony Gonzalez. :
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
No. 2019-67-C.A. (K1/12-341A)
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. The defendant, Tony Gonzalez (defendant or
Mr. Gonzalez), appeals pro se from a Superior Court judgment of conviction for
first-degree murder, assault with intent to commit a felony, and two counts of
discharging a firearm while committing a crime of violence. This case had been
previously tried, but this Court vacated the defendant’s conviction based on our
holding that the trial justice erred in failing to exclude evidence seized following the
warrantless arrest of Mr. Gonzalez in his mother’s home. State v. Gonzalez, 136
A.3d 1131, 1154, 1159 (R.I. 2016).
Mr. Gonzalez alleges that three errors were committed by the trial justice: (1)
the denial of his motion to suppress evidence obtained from his cell phone, which
police seized following his warrantless arrest; (2) the denial of his motion to
-1- discharge the jury in violation of the Sixth Amendment to the United States
Constitution; and (3) the denial of his motions for a mistrial. Mr. Gonzalez also
contends that the state violated its obligations under Brady v. Maryland, 373 U.S. 83
(1963). For the reasons stated herein, we affirm the judgment of the Superior Court.
A summary of the facts relevant to this appeal follows, and additional facts are
included in the discussion of the issues.
Facts and Procedural History
Saturday, January 21, 2012, was a snowy winter day that began with the
breakup of defendant and his “on and off” girlfriend, Patricia Delomba. Sadly, the
day ended in senseless violence and tragedy for Ms. Delomba, her new boyfriend
Matthew Chivers, and their mutual friend, Carl Cunningham. 1
In the evening, hours after Ms. Delomba ended her longtime hectic
relationship with defendant, defendant traded multiple phone calls with Mr. Chivers
about meeting up for a fight. Mr. Gonzalez also communicated with Ms. Delomba;
she told him via text message not to come to her house, but he responded that he was
coming over. He also indicated that “the ACI was going to be his new home.”
At 11:43 p.m., Ms. Delomba received a text message from defendant stating
that he was on his way to her house. Shortly thereafter, Mr. Gonzalez arrived at the
1 Ms. Delomba went on to marry Mr. Chivers and has taken his last name. This opinion refers to her by her maiden name, the name she used during the events giving rise to defendant’s trial, so as to avoid confusion. -2- house and began banging on the door. When Ms. Delomba opened the door, Mr.
Gonzalez said that he wanted to fight Mr. Chivers. Ms. Delomba told defendant to
leave, and she slammed the door closed. However, defendant entered the house and
pushed his way into the bedroom, where he found Ms. Delomba, Mr. Chivers, and
Mr. Cunningham. The defendant, with a gun in hand, stated, “I got something for
you.” Mr. Chivers and Mr. Cunningham both attempted to take cover in the bedroom
closet, but defendant fired bullets toward the closet until he exhausted his supply of
ammunition, fatally wounding Mr. Cunningham. The defendant then fled the scene.
Within minutes, Mr. Chivers and Ms. Delomba contacted 911 to report the shooting.
Shortly after Mr. Cunningham was fatally shot at around midnight, the police
interviewed Ms. Delomba at the police station. She described what had transpired
at her home, identified Mr. Gonzalez as the shooter, and authorized a search of her
cell phone. She also gave the police Mr. Gonzalez’s cell-phone number. Using the
number, the police determined that defendant’s cell phone was serviced through
Sprint Metro PCS (Metro PCS). The police made an initial request to Metro PCS
for any information about the cell phone in order to determine whether the phone
and, in turn, Mr. Gonzalez could be located. Metro PCS did not have this capability.
However, the police were able to locate Mr. Gonzalez at approximately 5:30 a.m.
when his brother, who cooperated with the investigation, placed a controlled phone
call to defendant.
-3- Shortly after 7 a.m., police from the Warwick Police Department and the
Providence Police Department arrested defendant in his mother’s house without a
warrant. Once at police headquarters, the police discovered a cell phone on
defendant’s person. They then applied for and executed two warrants: an
administrative warrant served on Metro PCS to obtain any phone records associated
with defendant and a search warrant for defendant’s cell phone.
The search of defendant’s cell phone revealed the phone’s call log, along with
photographs and text messages. The administrative warrant served on Metro PCS
produced a log of all incoming and outgoing calls from defendant’s cell phone in the
hours surrounding the death of Mr. Cunningham. Although the Metro PCS call log
did not reveal any names or other explicitly identifying information, the police
managed to identify phone subscribers associated with numbers from the call log by
using various internet search engines. The police tracked down several of those
individuals and interviewed them in an effort to assist with their investigation.
Mr. Gonzalez was indicted in May 2012 on four counts: murder in the first
degree, resulting in the death of Carl Cunningham; assault with intent to commit a
felony; and two counts of discharging a firearm while committing a crime of
violence. The defendant was tried by jury in 2013 and was found guilty on all
counts. After our opinion in Gonzalez, in which we vacated defendant’s conviction
after concluding that the trial justice erred in failing to exclude evidence seized
-4- during defendant’s warrantless arrest, Mr. Gonzalez was retried in 2017; he was
again convicted by a jury on all four counts. For those offenses, the trial justice
sentenced Mr. Gonzalez to life imprisonment at the Adult Correctional Institutions
for the murder conviction; a consecutive twenty-year sentence for the assault
conviction; and a life sentence plus a consecutive ten years for the convictions for
two counts of discharging a firearm when committing a crime of violence. Mr.
Gonzalez timely appealed.
The Motion to Suppress
In a pretrial motion, defendant had moved to suppress the cell phone along
with any information retrieved from the cell phone, including the identity, testimony,
statements, or evidence of certain individuals discovered through the phone records.
The defendant asserted that, in accordance with this Court’s opinion in Gonzalez,
the cell phone was seized pursuant to an illegal arrest, and, therefore, the fruits of
that seizure must be suppressed pursuant to the Fourth Amendment to the United
States Constitution. See Gonzalez, 136 A.3d at 1156, 1159.
After hearing testimony by two officers involved in defendant’s arrest and the
subsequent search of his cell phone, the trial justice found that police obtained the
cell phone as a result of defendant’s unlawful arrest. The trial justice therefore
suppressed the cell phone along with any information discovered on the cell phone.
However, he denied the motion to suppress with respect to testimony of the
-5- individuals discovered through the cell-phone records, finding that information to be
admissible under the independent source doctrine. The trial justice cited testimony
by one of the officers, who explained that he “learned of [the] identities by * * *
taking the phone number that was given to him by Ms. Delomba very early in the
investigation and bringing that to Metro PCS[,]” which, in turn, generated a call log;
police were able to search the internet to identify subscribers for those numbers.
“When this Court reviews a motion to suppress, we ‘will not overturn a trial
justice’s factual findings unless they are clearly erroneous.’” State v. Tejeda, 171
A.3d 983, 994-95 (R.I. 2017) (quoting State v. Harrison, 66 A.3d 432, 441 (R.I.
2013)). “With respect to any purported violations of a defendant’s constitutional
rights, ‘this Court must make an independent examination of the record to determine
if the defendant’s rights have been violated.’” Id. (brackets omitted) (quoting
Harrison, 66 A.3d at 441). “In conducting the independent examination, ‘we view
the evidence in the record in the light most favorable to the state.’” Id. (quoting State
v. Santos, 64 A.3d 314, 319 (R.I. 2013)).
“The exclusionary rule, which includes within its scope certain evidence
derived from illegal police activity, does not apply when the government learns of
evidence from a source independent of the original violation.” State v. Ducharme,
601 A.2d 937, 942 (R.I. 1991) (citing Wong Sun v. United States, 371 U.S. 471
(1963)).
-6- Here, there is no question that defendant’s arrest was illegal, as this Court
decided in Gonzalez. See Gonzalez, 136 A.3d at 1154. Accordingly, our analysis is
limited to considering whether the identity and testimony of the individuals that Mr.
Gonzalez sought to suppress would have been discovered independent of the illegal
arrest and, in turn, the discovery of defendant’s cell phone on his person. After our
independent review of the record, we cannot say that the trial justice’s findings were
clearly erroneous. The testimony by the officers involved in the search supports the
finding that, although the police learned the identity of certain individuals after
searching defendant’s cell phone itself, they had lawfully obtained a call log
pursuant to an administrative warrant served on Metro PCS using the phone number
given to them by Ms. Delomba early in the investigation. Using various internet
search engines, the police managed to assign identities to the phone numbers that
appeared in the call log. As such, it is clear to this Court that the identity, and
subsequent testimony, of the individuals that Mr. Gonzalez sought to suppress were
obtained independently from the illegal seizure of his cell phone and, therefore, the
trial justice did not err in denying defendant’s motion to suppress.
The Motion to Discharge the Jury
In a second pretrial motion, defense counsel moved for a change in venue on
two grounds: the substantial media coverage surrounding defendant’s trial and
census data indicating “that a mere 3 to 4.6 percent of the population of Kent County
-7- * * * is Hispanic or Latino and only 1.9 percent of said population is of two or more
races.” In arguing the motion, counsel conceded that there was no recent pretrial
publicity, but he expressed his concern over substantial media coverage of the
murder in 2012. Defense counsel, citing scant caselaw, also raised a concern about
a constitutionally under-representative jury. He noted that defendant is Hispanic, a
member of a distinctive community, and he cited the census data for Kent County.
However, counsel acknowledged that he had no evidence, at that time, prior to voir
dire, to suggest that Hispanic individuals were systematically excluded from the jury
selection process in this case. The trial justice denied defendant’s motion.
On October 12, 2017, immediately after the jury was impaneled, defense
counsel challenged the makeup of the jury at sidebar. He moved to discharge the
jury pursuant to the Sixth Amendment to the United States Constitution, referencing
his pretrial argument, and he stated that “[t]here were no Hispanics in the jury pool
that I was able to determine.” Counsel also renewed his motion to change the venue
of defendant’s trial to Providence County, asserting that Providence County has a
Hispanic population that is significantly greater than the Hispanic population of Kent
County. The trial justice accepted counsel’s assertions regarding the makeup of the
Hispanic population in Providence County as true, but stated that
“without establishing some actual prejudice that would flow to this defendant by not having Hispanics on the jury, I think the Court is hard pressed to address that in any way. I’m not aware of any case law in Rhode Island that -8- explores this issue at all. I think in the other cases I found from around the country it is generally an unsuccessful argument for change of venue.”
The trial justice did not explicitly rule on defense counsel’s motion to discharge the
jury.
The following day, Mr. Gonzalez addressed the court directly and asked about
the challenge to the array. Mr. Gonzalez sought an explanation because he did not
participate in the sidebar motion and because he felt that the jury was not selected
from a fair cross-section of the community. The trial justice and Mr. Gonzalez then
had the following exchange:
“THE COURT: Here is the thing, though, on any given day we don’t know who a defendant is going to be in a case. I think what you are suggesting is that we selectively go out and make sure that we pack a jury with some people who will surely represent the ethnicity and race of the defendant. My understanding is the law doesn’t go that far.
“THE DEFENDANT: I understand.
“THE COURT: What we can’t do is make sure that we pick in a fashion to exclude them, to systematically or intentionally exclude. Obviously that would be completely inappropriate and unlawful but I’m not aware of anything that says you have to make sure you go out and find some and make sure they are in that group.
“I understand your point. Maybe the law will evolve to that point some day, but I’m duty bound to follow the law as it exists. I am comfortable that this is a trial that is proceeding the way the law requires it to, and I just have no basis to grant the change of venue.”
-9- The defendant claims that the trial justice erred when he inappropriately
addressed the challenge to the array of jurors. 2
A motion to discharge an under-representative jury requires an analysis
pursuant to the Sixth Amendment to the Constitution of the United States. “We
engage in a de novo review of any questions of law and of mixed questions of law
and fact involving constitutional issues.” State v. Querido, 229 A.3d 410, 415 (R.I.
2020) (quoting State v. Morris, 92 A.3d 920, 924 (R.I. 2014)). As this Court has
recognized on numerous occasions, defendants have a right under the Sixth
Amendment to select a petit jury from a fair cross-section of the community. See
State v. Lawless, 996 A.2d 166, 168 (R.I. 2010) (mem.); State v. Sosa, 839 A.2d 519,
528 (R.I. 2003); State v. Raymond, 446 A.2d 743, 745 (R.I. 1982); see also Taylor
v. Louisiana, 419 U.S. 522 (1975). To demonstrate a prima facie violation of the
fair cross-section requirement, a defendant must establish:
“(1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is
2 The defendant also complains about certain statements that the trial justice offered while attempting to assure defendant that he would be tried fairly. The trial justice told defendant that the trial justice’s reputation is well-regarded in the state and the ACI and that, “no one has a greater appreciation of the atmosphere in the courtroom” than he. He added, “I think I have been on the bench long enough that I’m pretty good at it[,]” and he cited trials over which he presided where minority defendants were found not guilty. We pause to note that such unfortunate statements do not assuage the concerns of defendants who worry about the fairness of their trial. - 10 - due to systematic exclusion of the group in the jury- selection process.” Sosa, 839 A.2d at 528 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)).
This Court takes seriously any alleged violation of the fair cross-section
requirement. When presented with a challenge to the array of a jury, it is critically
important that the trial justice undertakes the appropriate analysis under Duren and
addresses the motion to discharge the jury accordingly. Our careful review of the
record in this case reveals that the trial justice repeatedly and explicitly denied the
motion to change venue, but that he did not specifically address the motion to
discharge the jury, despite defendant’s expressed concerns about the jury makeup.
However, it is also clear from the record that defendant failed to establish a
prima facie violation of the fair cross-section requirement. Although there is no
dispute that defendant is Hispanic and thus a member of a distinctive community, it
was defendant’s burden to provide evidence that indicates that the representation of
Hispanic individuals in the “venire[] from which [his jury was] selected is not fair
and reasonable in relation to the number of such persons in the community[.]” Sosa,
839 A.2d at 528 (quoting Duren, 439 U.S. at 364). Even accepting the census data
for Kent County as accurate, counsel’s observation that there did not appear to be
any Hispanic jurors in the pool was not sufficient. Rather, to meet the second prong
under Duren, defendant was required to introduce competent
evidence—data—regarding the makeup of the venire from which his jury was
- 11 - selected. See United States v. Royal, 174 F.3d 1, 6-7 (1st Cir. 1999) (explaining that
the absolute disparity test “measures the difference between the percentage of
members of the distinctive group in the relevant population and the percentage of
group members on the jury wheel”). Without such data, or an appropriate statistical
analysis of that data to indicate disparity, the trial justice could not properly assess
defendant’s challenge to the array.
Moreover, it was also defendant’s burden to introduce evidence establishing
that any under-representation of Hispanic jurors in Kent County was caused by a
systematic exclusion of Hispanic individuals in the jury selection process. See
Berghuis v. Smith, 559 U.S. 314, 332 (2010) (holding that systematic exclusion
cannot be established “merely by pointing to a host of factors that, individually or in
combination, might contribute to a group’s underrepresentation”).
We therefore conclude that there is no evidence in the record to support
defendant’s claim that the trial justice erred when he did not discharge the jury
impaneled on October 12, 2017.
The Motion to Pass
Mr. Chivers testified at defendant’s trial. After testifying on direct
examination that he saw the gunman reach through the door wielding a black gun
and wearing a “black vest or jacket * * * one of the bubble ones, old school bubble
ones[,]” Mr. Chivers admitted on cross-examination that he never saw the gun or
- 12 - observed the clothing of the gunman. On redirect examination, the state and the
witness engaged in the following dialogue:
“Q: Matt, why did you lie?
“A: That is what I was told.
“Q: Who told you that?
“A: That is what I had heard.
“Q: When did you hear that?
“A: Throughout the years after the trial the first time.”
Counsel for Mr. Gonzalez promptly objected to Mr. Chivers’s reference to the
previous trial and at sidebar moved to pass the case. After a lengthy discussion with
the state and defense counsel, and after considering various factors such as the
witness’s “murmur and low tone of voice[,]” how clearly he was able to hear the
reference to the first trial, and the attentiveness of the jury, the trial justice denied
defendant’s motion and gave a carefully-crafted curative instruction to the jury that
made no mention of a previous trial, so as to avoid bringing more attention to the
issue. The state then concluded its redirect examination of Mr. Chivers.
Counsel for Mr. Gonzalez began re-cross examination of the witness. Defense
counsel asked Mr. Chivers if he had knowledge of the gunman’s clothing through
the media. After Mr. Chivers indicated that he did acquire this information through
the media, counsel asked Mr. Chivers, “When this shooting occurred in 2012, did
- 13 - you get that information from the Providence Journal?”; Mr. Chivers replied, “Yes,
then I was talking with my wife after the last trial.” Defense counsel immediately
asked for a sidebar, the trial justice excused the jury for lunch, and counsel, again,
moved to pass the case based on Mr. Chivers’s reference to the previous trial. The
trial justice invited the parties to conduct research and offer arguments later that
afternoon. After listening to the arguments, the trial justice denied defendant’s
motion after finding that the second reference to the prior trial by Mr. Chivers did
not “rise[] to the level of prejudice that is incurable.” Accordingly, the trial justice
gave the jury another curative instruction.
“The decision to pass a case and declare a mistrial belongs to the trial justice,
and this Court gives great weight to his or her sound discretion.” State v. LaPlante,
962 A.2d 63, 70 (R.I. 2009). “When ruling on a motion to pass a case, this Court
will reverse a trial justice’s ruling on appeal only if it was clearly wrong.” Id.
Our caselaw does not require a trial justice to pass a case at each instance a
witness offers a prejudicial statement against a criminal defendant. See, e.g., State
v. Bolduc, 822 A.2d 184, 186 (R.I. 2003) (“Not all potentially prejudicial statements
or other disturbing events that occur during a trial require the trial justice to pass the
case.”). “The trial justice enjoys a ringside seat at the trial and therefore is in the
best posture to determine whether a witness’s inappropriate remark or action has so
inflamed the jurors that they no longer would be able to decide the case based on a
- 14 - calm and dispassionate evaluation of the evidence.” State v. Lynch, 854 A.2d 1022,
1033 (R.I. 2004) (brackets omitted) (quoting State v. Werner, 830 A.2d 1107, 1113
(R.I. 2003)).
We cannot say that the trial justice abused his discretion or was clearly wrong
by declining to declare a mistrial based on Mr. Chivers’s two references to the first
trial. After Mr. Chivers referenced “the trial the first time” and defense counsel
objected and moved to pass the case at sidebar, the trial justice carefully deliberated
and ultimately determined that any potential prejudice that may have resulted could
be cured with an appropriate instruction to the jury. He did so only after a lengthy
discussion with counsel for Mr. Gonzalez and the state about the effect, if any, that
the witness’s statement could have had on the jury based on the trial justice’s own
perception and observations.
After Mr. Chivers referenced the first trial for a second time, the trial justice
dismissed the jury for lunch, entertained arguments from the parties, and, again,
determined that any prejudice that might have resulted from the reference was not
incurable. Of course, it is the trial justice who, because of his “ringside seat[,]” is in
the best position to make such a determination. See Lynch, 854 A.2d at 1033. It is
clear from our review of the record that the trial justice was sensitive to any effect
that Mr. Chivers’s references may have had on the jury, but that he ultimately found
that any effect was negligible. See, e.g., Magraw v. Roden, 743 F.3d 1, 9, 11 (1st
- 15 - Cir. 2014) (mistrial not required after prosecutor made three references to prior trial);
Moore v. Quarterman, 534 F.3d 454, 466-67 (5th Cir. 2008) (mistrial not required
after witness made three references to prior trial).
The Alleged Brady Violation
The defendant raises an additional argument before this Court on appeal: that
the state violated its obligations under Brady, cited supra, by failing to provide him
with a recording of the controlled phone call between him and his brother on the
morning of his arrest. It is apparent from the record, however, that this issue was
not raised prior to or during 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 this issue on
appeal.
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.
- 16 - 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. Tony Gonzalez.
No. 2019-67-C.A. Case Number (K1/12-341A)
Date Opinion Filed July 2, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Kent County Superior Court
Judicial Officer from Lower Court Associate Justice Daniel Procaccini
For State:
Christopher R. Bush Attorney(s) on Appeal Department of Attorney General For Defendant:
Tony Gonzalez, Pro Se
SU-CMS-02A (revised June 2020)