May 26, 2021 Supreme Court
No. 2019-35-C.A. (P1/17-3082AG)
State :
v. :
Ezekial Johnson. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Ezekial Johnson, was
convicted by a jury of one count of first-degree murder (count one); one count of
discharging a firearm during the commission of a crime of violence, to wit, murder
(count two); and one count of carrying a firearm without a license (count three). He
was sentenced to consecutive life sentences on count one and count two and ten
years to serve on count three.
On appeal, defendant contends that the trial justice erred by (1) admitting
in-court identification evidence; (2) limiting cross-examination; and (3) denying
defendant’s motion for a new trial. The defendant maintains that each of these errors
entitles him to have his conviction vacated and be granted a new trial. After careful
consideration of defendant’s arguments and a thorough review of the record, we
affirm the judgment of conviction.
-1- I
Facts and Travel
On July 16, 2007, Jose Rodriguez was shot and killed while driving his
taxicab. Over ten years later, on October 27, 2017, a Providence County grand jury
returned an indictment charging defendant with one count of murder; one count of
discharging a firearm during the commission of a crime of violence, to wit, murder;
and one count of carrying a firearm without a license. A jury trial was held over two
weeks in July 2018. At trial, the testimony revealed the following.
Rodriguez was employed as a taxicab driver for Gonzalez Cab; and, on July
16, 2007, he was dispatched around noon to transport a fare from Providence to
Central Falls. While making the trip, Rodriguez spoke on the telephone to his wife,
Anna,1 and told her that the three men in his taxicab were behaving suspiciously.2
Soon after Rodriguez shared his concern about the passengers, the call suddenly
disconnected. Anna repeatedly attempted to call him back. Although she was unable
to reach her husband, one of her calls did connect to his phone, and she heard
someone laughing.
1 There were inconsistencies in the record as to Anna’s last name; accordingly, we use only her first name in this opinion. No disrespect is intended. 2 Because Anna passed away in 2011, the details about her conversation with Rodriguez were elicited through the testimony of her daughter.
-2- At around the same time, Lymari Gonzalez (Gonzalez) was standing outside
her home on Garfield Street in Central Falls when she noticed a taxicab that “was
going way too slow.” Gonzalez turned to look at the taxicab and observed three men
seated in the back seat. She watched the taxicab as it continued to drive slowly on
Garfield Street and then turn right onto Fuller Avenue. After the taxicab turned the
corner, Gonzalez heard a gunshot followed by the sound of a crash. Seconds later,
she observed the three male passengers from the taxicab running towards her, while
they were looking back in the direction of the taxicab; and she watched as two of the
men flung the hats they were wearing into the bushes in front of the home at 99
Garfield Street.
Once the three men were out of sight, Gonzalez and her husband ran to the
corner of Garfield Street and Fuller Avenue, where they observed that the taxicab
had crashed. When Gonzalez approached the taxicab, she saw that the driver was
still inside holding a cell phone and had blood coming down his neck. As other
people arrived on the scene, Gonzalez returned to her home.
Later that day, Anna, who was still attempting to locate her husband, went to
the hospital, where she learned that he had been shot and was on life support.
Rodriguez was disconnected from life support and died the following day.
On the evening of the shooting, Gonzalez went to the Central Falls Police
Department to report what she had witnessed, including the fact that she had watched
-3- two of the men toss the hats that they were wearing into the bushes. Police officers
showed Gonzalez a photographic array, but she did not recognize any of the
individuals in the photographs as being the men whom she had seen in the taxicab.
Two days later, upon her return to the Central Falls police station, Gonzalez was
shown a different photographic array and identified two men she believed she had
seen in the taxicab. Those men, however, were subsequently eliminated as suspects.
After her second meeting with police, Gonzalez had no further contact with law
enforcement until ten years later, in October 2017.
As part of the investigation, the Central Falls police obtained video taken from
a surveillance camera at 114 Garfield Street, which showed Rodriguez’s taxicab
driving down Garfield Street towards Fuller Avenue around noon on the day of the
murder.3 Approximately a minute and a half later, the video showed “three black
males” “running down Garfield towards Dexter.” Police attempted to enhance the
video for purposes of identifying the three men but were unsuccessful in doing so.
The police also seized the two hats that were thrown into the bushes in front
of the home at 99 Garfield Street—one red and one black baseball cap. In 2009, the
Central Falls police submitted the hats to the Rhode Island Department of Health
3 Officer Nathan McGarry of the Central Falls Police Department testified that the time stamp on the video was off by “approximately 50 minutes” and that he had compared the time stamp to his watch in real time in order to determine that the actual time of the video recording was approximately noon, despite the time stamp on the video displaying “1:18[.]”
-4- (RIDOH) for DNA testing. Although there was DNA found on each hat, the DNA
was not compared to any reference sample at that time. Both hats were returned to
the Central Falls Police Department along with their corresponding DNA analysis
reports.
Nearly seven years after the murder, the police received information
concerning Rodriguez’s murder from Jon Thomas (Thomas), who subsequently
entered into cooperation agreements to provide information in two other criminal
cases. Thomas grew up on the south side of Providence and joined the YNIC “gang”
around age thirteen.4 According to Thomas, a few days after Rodriguez’s murder,
he met up with fellow YNIC members Jayquan Garlington (Garlington) and
defendant. While the three were together, Garlington told Thomas that Garlington,
defendant, and another YNIC member, Dwayne Morris (Morris), had taken a taxicab
to Central Falls with the plan of getting out of the taxicab without paying the fare.
According to Thomas, Garlington was upset when he was relaying the story because
things had not gone as planned; Garlington told him that, instead of simply exiting
the cab without paying, defendant pulled out a gun and shot the taxicab driver in the
back of the head while the driver was talking on his cell phone. Thomas also recalled
that Garlington had stated that, after the driver was shot, the men were laughing
4 Due to the epithetical nature of the gang’s full name, we will refer to the gang using only its acronym throughout this opinion.
-5- because they tripped as they jumped out of the moving taxicab. As Garlington
relayed the story to Thomas, defendant was laughing and “[n]odding his head up and
down.”
In 2017, the Central Falls Police Department sent the hats that were seized
from the crime scene back to RIDOH for further DNA analysis. Senior Forensic
Scientist, Tamara Wong (Wong), developed DNA reference profiles from buccal
swabs taken from defendant, Garlington, and Morris. When Wong compared the
DNA profile from the black hat to the DNA of defendant, she determined that the
major component of that DNA was consistent with defendant’s DNA, with the
likelihood that it came from anyone other than defendant being “one in a hundred
and twenty-eight quintillion.”
A
Pretrial Motion to Suppress
At defendant’s bail hearing on November 15, 2017, Gonzalez was called to
testify and, for the first time, identified defendant as one of the men she saw in the
taxicab.5 On June 26, 2018, defendant filed a motion to suppress Gonzalez’s in-court
identification, on the basis that the identification procedure was impermissibly
5 This Court was not provided a transcript of the November 15, 2017 bail hearing; however, it is undisputed that defendant did not object to Gonzalez’s identification during the hearing, nor did he request an evidentiary hearing before the identification was introduced.
-6- suggestive and resulted in identification evidence that was unreliable. Further,
defendant argued that Gonzalez did not have personal knowledge with respect to
defendant, and therefore she was not competent to identify him pursuant to Rule 602
of the Rhode Island Rules of Evidence.
On July 6, 2018, a hearing was held on defendant’s motion to suppress.
During the hearing, Gonzalez testified that, at around noon on July 16, 2007, “a
traumatic thing * * * happened * * * that [she] just can’t forget.” She recounted that
she had been standing on the sidewalk in front of her home on Garfield Street when
a slow-moving taxicab caught her attention. She testified that she had observed three
“youngish” men with “dark skin” arguing in the back seat of the taxicab and that she
had stared at them as the taxicab passed within approximately six feet of her.
Gonzalez further testified that, after she heard a gunshot, she watched the three men
from the taxicab run down the sidewalk towards her. When asked if any of the men
had looked at her while they ran down the sidewalk, Gonzalez responded in the
affirmative and identified defendant in the courtroom as one of the men who looked
at her that day. Further, she testified that she had stared at defendant as he crossed
the street because she “knew something was going to happen[,]” and, thus, she
focused her attention on defendant and could not forget his face.
On cross-examination, Gonzalez admitted that she could not recall where
defendant was sitting in the taxicab, nor could she recall what defendant was wearing
-7- as he ran down the street—including whether he was one of the individuals wearing
a hat. She also confirmed that she had merely provided police with a general
description of the suspects, reporting that all three were dark-skinned men who were
approximately six feet tall and weighed about 150 pounds. Further, she
acknowledged that, on July 18, 2007, she identified two individuals in a
photographic array because she was certain that they were two of the men that she
had seen in the taxicab and running down Garfield Street on July 16, 2007. She also
testified, however, that she was never shown a photograph of defendant and had not
seen defendant at any point between the murder in 2007 and bail hearing in 2017.
Moreover, Gonzalez testified at the suppression hearing that she recognized
defendant as soon as she saw him at the bail hearing, stating,
“When I saw him that day, when I came in, I got real nervous. My body was shaking. I tried not to look at him. And I was sweating. As soon as I look at his eye, I knew it was him. I tried not to look at him the rest of the case[.]”
On redirect examination, Gonzalez explained that, although she did not know
defendant’s name prior to the bail hearing, she knew defendant and his family from
growing up in Central Falls. She also provided inconsistent testimony as to whether
or not defendant was wearing handcuffs during the bail hearing.
In ruling on defendant’s motion to suppress, the trial justice rejected
defendant’s argument that Gonzalez’s identification was impermissibly suggestive
due to the fact that defendant was the “only African American male at the [defense]
-8- table, and was shackled in handcuffs.” The trial justice explained that most federal
circuit courts have rejected similar arguments and discussed United States v.
Thomas, 849 F.3d 906 (10th Cir. 2017),6 as one such example. The trial justice went
on to discuss how, in Thomas, “[t]he eyewitness had never been asked to identify
the robber before, and her in-court identification occurred more than 19 months after
the robbery.” He further noted that the defendant in Thomas “contended that the
in-court identification * * * was unduly suggestive because he was the only
African-American man at counsel table.” The trial justice noted that the Tenth
Circuit, however, held that the circumstances were not the product of improper
conduct by law enforcement and that, therefore, the identification procedure was not
impermissibly suggestive.
The trial justice concluded that the circumstances in Thomas were analogous
to this case. He also found that there was no improper state action in this case,
finding: “The [s]tate did nothing. [The defendant] demanded the bail hearing. [The
defendant] didn’t object to the identification when it was made in court. In fact,
[defendant] capitalized her [sic] in cross-examination on her misidentification of two
other individuals, knowing that she had previously misidentified other individuals.”
6 Although the trial justice referred to the case as “United States v. Thompson,” it is clear from his recitation of the facts, issue, and holding that he was referring to United States v. Thomas, 849 F.3d 906 (10th Cir. 2017).
-9- Next, the trial justice examined the reliability of Gonzalez’s testimony
utilizing the factors set out in Neil v. Biggers, 409 U.S. 188 (1972). See Biggers, 409
U.S. at 199-200. Under the first prong—the opportunity to view the defendant at
the time of the crime—he found that Gonzalez had “full opportunity” to view
defendant, as she was six feet away from the taxicab as it drove by “well below the
speed limit” and “[e]ye contact [wa]s made.”
Turning to the second prong—the witness’s degree of attention—the trial
justice found that Gonzalez was “very focused” on the car and its occupants. He
noted that “she never took her eyes off the cab[,] [s]he stared at the occupants[,]
[t]hey stared back[,]” and she even observed that the driver was on the telephone.
Ultimately, the trial justice concluded that the witness’s degree of attention was
“extraordinary.”
Examining the third prong—the accuracy of the witness’s prior description of
the defendant—the trial justice found that Gonzalez’s memory of defendant from
the neighborhood was “weighty.” The trial justice deemed the third prong satisfied
and dismissed defendant’s assertion that Gonzalez had previously only given a
general description of the three suspects and did not provide police with any
distinguishing features. He further explained that “[t]hese are issues that go to the
weight of her testimony that you can argue to a jury. It doesn’t go to her
incompetence to testify[.]”
- 10 - Next, the trial justice concluded that the fourth prong—the witness’s level of
certainty in her identification at the time of the identification—had been satisfied,
finding that “she walked into the courtroom at the bail hearing and virtually froze,
in a cold sweat, as soon as she saw him.”7 As to the fifth and final prong—the length
of time between the crime and the identification—the trial justice stated:
“Yes, it’s a decade. It’s a long time. I know that. I can’t explain why the police officer decided not to the [sic] show this lady a photo array, and it’s going to be great food for you to argue to the jury as to why they didn’t, and that her identification ten years later must be flawed because the police dropped the ball. That’s argument [sic] that I will fully expect you to make.”
Ultimately, the trial justice concluded that he was “well satisfied from the
totality of the circumstances, and applying the Biggers factors, that this witness has
demonstrated before [him], as a front-row observer, that her identification [was]
based upon an independent reliable memory and not affected by any suggestiveness
of the in-court proceedings[.]” He found that Gonzalez should be permitted to make
another in-court identification, if requested by the state at trial, because there was
“ample, sufficient, independent reliability inherent in her identification.”
7 The trial justice correctly noted that the level of certainty at the time of the identification is, as he described it, an “element that the courts have softened a lot.” See State v. Washington, 189 A.3d 43, 58-59 n.12 (R.I. 2018) (recognizing that studies have shown “that a witness’s confidence in his or her identification does not necessarily correlate with its accuracy” and acknowledging “that a witness’s degree of certainty in an identification should be weighed with great caution”).
- 11 - In addition, the trial justice rejected defendant’s argument that Gonzalez was
not a competent witness under Rule 602 of the Rhode Island Rules of Evidence. He
noted that this Court has rejected such competency claims, even in close cases. The
trial justice then denied defendant’s motion to suppress.
B
Trial
The defendant’s trial commenced on July 9, 2018. At trial, the state presented
testimony from sixteen individuals, including Lymari Gonzalez, Jon Thomas, and
Marcus Gibbs (Gibbs). Gibbs, defendant’s cousin, testified that in 2009 Thadious
Parker (Parker), Morris, and defendant visited him at his home; and that, while the
four men were together, defendant and Morris got into an argument after which
defendant suggested “that things would have went differently if [Morris] didn’t have
information that could put him away for life.” The defendant called Parker as his
sole witness; Parker testified that he had never been present in a house with Gibbs
and defendant. After hearing eight days of testimony, a jury found defendant guilty
of all charges.
C
Motion for a New Trial
On July 20, 2018, defendant filed a motion for a new trial. During the July
30, 2018 hearing on defendant’s motion, defendant argued that “there were quite a
- 12 - few inconsistencies with” the testimony of the primary witnesses in this case—
Gonzalez, Thomas, and Gibbs. With respect to Gonzalez, defendant emphasized
that, days after the shooting, she had misidentified two individuals; he argued that
inconsistencies in her testimony—including for how long she had observed the
taxicab, varying descriptions of the height of the men in the taxicab, and her
confusion over who threw the hats—all rendered her testimony “not worthy of
acceptance[.]” As for Thomas, defendant claimed that Thomas’s account of the
meeting that took place with defendant and Garlington was “perplexing” because,
according to Thomas, Garlington was agitated and defendant was not and was
instead joking; further, defendant pointed to Thomas’s claim that he had no interest
in the case. Finally, regarding Gibbs, defendant averred that “either Thadious Parker
was telling the truth or Marcus Gibbs was telling the truth” and claimed that the
jury’s decision to accept Gibbs’s testimony was “mind-boggling[,]” given that Gibbs
had testified that he was not in a gang but had an Ocean State Gang tattoo.
In rendering his decision on defendant’s motion for a new trial, the trial justice
acknowledged that “[s]ave for the DNA evidence, which is hardly to be ignored, this
case was, for a major part, a credibility test of the [s]tate’s witnesses: Jon Thomas,
Marcus Gibbs, and Lymari Gonzalez, and the defendant’s witness, Thadious
Parker.” Further, he explained that “inconsistencies between witnesses would not
- 13 - preclude a determination that the witnesses were credible.” He then reviewed the
testimony and the evidence presented during trial.
With respect to Gonzalez, the trial justice found that she “was adamant that
she saw the defendant in the back seat with two others in Jose Rodriguez’s taxicab,
and that he and the other two occupants also ran past her after she heard what turned
out to be the fatal gunshot.” Additionally, Gonzalez testified that she had seen the
men running down Garfield Street, where two of the men discarded hats—one of
which was later determined to have defendant’s DNA on it. While recognizing that
Gonzalez had previously incorrectly identified two other men, the trial justice noted
that Gonzalez was never shown a photograph of Morris, Garlington, or defendant.
Moreover, the trial justice found that Gonzalez’s identification of defendant was
“significantly strengthened because she had previously known [him] from the
neighborhood.” Further, the trial justice noted that Gonzalez “also described in
chilling fashion how she felt when she walked into the courtroom at the bail hearing
and saw [defendant].” Ultimately, the trial justice concluded that Gonzalez’s
testimony was credible and that the DNA evidence in combination with Gonzalez’s
testimony placed defendant at the scene of the crime.
The trial justice then turned to the testimony of Thomas, who “recounted the
meeting he had with [defendant] and Garlington, where Garlington described the
events leading up to the shooting, and described how [defendant] shot Mr. Rodriguez
- 14 - in the head as he was talking on his cell phone.” Further, he noted that Thomas
testified, both during trial and at the suppression hearing, “that [defendant] was
holding his head affirmatively and giggling” as Garlington recounted the event.
Additionally, the trial justice noted that the cell-phone records and Rodriguez’s
daughter’s testimony both corroborated Thomas’s testimony that Rodriguez was on
his cell phone at the time of the shooting.
Next, the trial justice discussed the testimony by Gibbs, finding that, “if
accepted,” the testimony was “inculpatory” because Gibbs “flatly uprighted [sic] and
accused [defendant], his first cousin * * * of having killed an innocent cab driver.”
Further, the trial justice recalled that Gibbs testified that, in response to the
accusation, defendant “simply responded by saying, ‘I did what I had to do.’”
Moreover, the trial justice found that “Gibbs satisfactorily explained” that the Ocean
State Gang was a rap group and not a “group of violent people.”
Finally, the trial justice briefly discussed the testimony of defense witness
Parker. The trial justice noted that Parker “denied ever being in Gibbs’s or
[defendant’s] presence, except for basketball games and having also seen
[defendant] at a truck driving school.” Additionally, the trial justice noted that
Parker had “accumulated several convictions[.]”
- 15 - Ultimately, the trial justice concluded that the “jury was offered a variety of
testimony, and they opted to accept the testimony of Thomas and Gibbs, not
Thadious Parker.” Moreover, he stated:
“From my perspective as a front-row observer, I frankly do not fault the jury in any way crediting the testimony of Thomas and Gibbs. Notwithstanding their criminal history and/or cooperation agreements, they offered unembellished and forthright testimony, which I did not find lacking in candor or credibility. To the contrary, their unvarnished testimony, despite severe cross-examination, had a distinct air and ring of credibility and the jury was well-warranted in accepting it.
“So, too, the testimony of Lymari Gonzalez, who was an entirely disinterested eyewitness, offered credible testimony.
“And Tamara Wong’s expert analysis was not, in the end, helpful, in my view, in exculpating [defendant].”
Accordingly, the trial justice denied defendant’s motion for a new trial. The
defendant filed a timely notice of appeal on October 4, 2018.
II
Discussion
The defendant asserts several arguments on appeal. He maintains that the trial
justice erred by (1) denying his motion to suppress Gonzalez’s in-court
identification; (2) limiting defendant’s cross-examination of Thomas and Detective
Jeff Araujo in violation of his rights under the Confrontation Clause; and (3) denying
- 16 - defendant’s motion for a new trial. We discuss each of defendant’s arguments in
more detail seriatim.
In-Court Identification
With regard to Gonzalez’s in-court identification, defendant advances two
lines of argument. First, he argues that, pursuant to Rule 602 of the Rhode Island
Rules of Evidence, Gonzalez was not competent to testify because she lacked
personal knowledge. Second, he avers that the trial justice erred in denying his
motion to suppress Gonzalez’s in-court identification because the identification was
impermissibly suggestive and in violation of his due process rights.
Rule 602
“A trial justice’s ruling on whether ‘the witness could not have actually
perceived or observed the perpetrator’ will be reversed only for an abuse of
discretion.” State v. Hall, 940 A.2d 645, 654 (R.I. 2008) (quoting State v. Gatone,
698 A.2d 230, 238 (R.I. 1997)). Rule 602 of the Rhode Island Rules of Evidence
states, in pertinent part: “A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need not, consist of
the testimony of the witness himself or herself.” “In deciding whether a witness is
- 17 - competent for purposes of Rule 602, the trial justice must determine whether a
witness had a sufficient opportunity to perceive the subject matter about which he
[or she] is testifying.” State v. Ranieri, 586 A.2d 1094, 1098 (R.I. 1991). The trial
justice need not make a credibility determination nor judge “whether the witness is
accurately and truthfully relating that which he [or she] perceived.” Id. “Evidence
should be excluded under this rule only if the court finds that the witness could not
actually have perceived the subject matter of his or her testimony.” State v. Nhek,
687 A.2d 81, 83 (R.I. 1997) (emphasis in original).
The defendant argues that Gonzalez was not a competent witness because “she
readily admitted that she was observing a moving vehicle, the timeframe of
observation was short,” and “[t]here were three men to observe.” Further, according
to defendant, Gonzalez’s previous misidentification of individuals in a photographic
array is “strong evidence of [her] inability to recall the identity of the men in
question[.]” We disagree.
This Court has long held “[i]n a situation in which the question of a witness’s
Rule 602 competency is close (that is, the jury could find that the witness perceived
the matter testified to), the judge should admit the testimony since the matter then
becomes one of credibility and is properly for the jury.” Ranieri, 586 A.2d at 1098.
We cannot say that the trial justice abused his discretion in the present case when he
found that Gonzalez testified from her personal knowledge. The mere fact that
- 18 - Gonzalez was observing a moving vehicle with multiple passengers for a short
period of time relates to her credibility as a witness and not her opportunity to view
the perpetrators. See Hall, 940 A.2d at 655 (holding that lighting conditions and the
witness not wearing her glasses were issues relating to witness credibility rather than
competence). We are well satisfied that Gonzalez had ample opportunity to view
the perpetrators—both when they were in the taxicab and when they were running
down the street—and that the trial justice did not abuse his discretion in determining
that she was a competent witness.
Identification Procedure
“When reviewing a motion to suppress, we ‘will not overturn a trial justice’s
factual findings unless they are clearly erroneous.’” State v. Washington, 189 A.3d
43, 56 (R.I. 2018) (quoting State v. Harrison, 66 A.3d 432, 441 (R.I. 2013)). “In our
review of any alleged constitutional violation, we ‘must make an independent
examination of the record to determine if the defendant’s rights have been violated.’”
Id. (brackets omitted) (quoting Harrison, 66 A.3d at 441). “This independent
examination requires this Court to ‘view the evidence in the record in the light most
favorable to the state.’” Id. (quoting State v. Santos, 64 A.3d 314, 319 (R.I. 2013)).
“In reviewing the denial of a motion to suppress an identification that was
allegedly tainted by an unduly suggestive procedure, we carry out a two-step
- 19 - analysis.” State v. Alves, 183 A.3d 539, 543 (R.I. 2018) (quoting State v. Franco,
750 A.2d 415, 420 (R.I. 2000)). “First, we must determine whether the totality of
circumstances discloses procedures that were so unnecessarily suggestive and
conducive to irreparable mistaken identification that it constituted a denial of due
process of law.” Id. (quoting Franco, 750 A.2d at 420). “Only if we determine that
the procedures were unduly suggestive do we proceed to the second step of our
analysis and assess the reliability of the identification.” Id. (quoting Franco, 750
A.2d at 420). This is because “even if a court were to find that the procedures were
unduly suggestive, admission of tainted identification testimony does not violate a
defendant’s due process rights, so long as the identification possesses sufficient
aspects of reliability.” Franco, 750 A.2d at 420 (brackets omitted) (quoting State v.
Vanover, 721 A.2d 430, 436 (R.I. 1998)).
The crux of defendant’s argument in support of his motion to suppress was
that Gonzalez’s identification of defendant at the bail hearing was impermissibly
suggestive because, at the time of the identification, defendant was the only African
American seated at counsel table and was handcuffed. The defendant argues before
this Court that allowing Gonzalez’s in-court identification “did irreparable harm to
the defendant’s due process rights and the prospect of a fair trial.”
“Most eyewitness identifications involve some element of suggestion.
Indeed, all in-court identifications do.” Perry v. New Hampshire, 565 U.S. 228, 244
- 20 - (2012). While we agree with the trial justice’s conclusion that Gonzalez’s in-court
identification of defendant was not the result of unnecessarily suggestive
circumstances arranged by law enforcement, we stop short of endorsing the trial
justice’s conclusion that “[t]he [s]tate did nothing.” After all, the prosecutor, who is
unquestionably a state actor, called Gonzalez to the witness stand, in part to secure
the in-court identification. Cf. Spratt v. State, 41 A.3d 984, 989 (R.I. 2012) (holding
that an in-court identification made by a witness who recognized the defendant only
after seeing him in the presence of two marshals in the courthouse was not
impermissibly suggestive because there was “no evidence that police or
prosecutors” orchestrated the encounter) (emphasis added).
The First Circuit Court of Appeals recently considered a case “involving a
prosecutor’s securing an in-court identification under supposedly suggestive
circumstances” in United States v. Correa-Osorio, 784 F.3d 11 (1st Cir. 2015).
Correa-Osorio, 784 F.3d at 19. In its analysis, the First Circuit recognized that
“[a]n in-court identification may be unduly suggestive if, for example, the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present).” Id. at 21 (emphasis added) (footnote omitted).
Finding that the in-court identification in that case did not implicate these
“constitutional danger zones,” the First Circuit held that the defendant was unable
- 21 - to establish that the in-court identification was impermissibly suggestive; thus, the
Biggers test was not triggered. Id. at 21-22.
Arguably, one of these “constitutional danger zones” is implicated in the case
at bar, because defendant had argued that, at the time of Gonzalez’s identification at
the bail hearing, defendant was the “only African American male at the [defense]
table, and was shackled in handcuffs.”8 Even if we were to assume, without
deciding, that the in-court identification here was impermissibly suggestive, that
does not necessarily render the identification inadmissible, because “admission of
tainted identification testimony does not violate a defendant’s due process rights, so
long as the identification possesses sufficient aspects of reliability.” Franco, 750
A.2d at 420 (quoting Vanover, 721 A.2d at 436).
Having thoroughly reviewed Gonzalez’s testimony, we hold that the trial
justice did not err in finding that the identification had “sufficient aspects of
reliability.” Franco, 750 A.2d at 420 (quoting Vanover, 721 A.2d at 436). The trial
justice properly “look[ed] to the Biggers factors to determine whether the
identification was independently reliable.” Washington, 189 A.3d at 58. After
thoroughly examining each of the five factors, the trial justice found that Gonzalez
demonstrated “that her identification [wa]s based upon an independent reliable
8 We pause to note that defense counsel made no requests to avoid this factual scenario, such as moving to absent the accused during Gonzalez’s testimony describing the assailants or other similar measures.
- 22 - memory and not affected by any suggestiveness of the in-court proceedings[.]” We
conclude that the trial justice, after considering the totality of the circumstances, was
not clearly erroneous in his finding that the Biggers factors weighed in the state’s
favor, thereby rendering Gonzalez’s in-court identification independently reliable
and admissible at trial.
Limitations on Cross-Examination
The defendant also argues that the trial justice’s limitation on witness
cross-examination violated his Sixth Amendment right to confront a witness against
him. More specifically, he identifies two instances of error with regard to
cross-examination. First, he argues that his right of confrontation was violated when
the trial justice declined to allow him to elicit statements that Morris had made to
police through the testimony of Detective Jeff Araujo, because “Morris had asserted
the Fifth Amendment” and was “thus rendered an unavailable witness.” Second,
defendant contends that the trial justice erred in limiting his inquiry into the subject
of Thomas’s ex-girlfriend’s relationship with Garlington. It is defendant’s position
that cross-examination should not have been restrained on these issues because the
testimony related to Morris would have “undermin[ed] the notion” that Garlington,
Morris, and defendant were together on the date of Rodriguez’s murder, and the
- 23 - proposed Thomas line of inquiry “went straight to the heart of the motivation of the
cooperator[.]”
“The ability of a defendant to meaningfully cross-examine the state’s
witnesses is an essential element of the due process guarantees of the United States
and Rhode Island constitutions.” State v. Storey, 102 A.3d 641, 648-49 (R.I. 2014)
(quoting State v. Lomba, 37 A.3d 615, 621 (R.I. 2012)). “To satisfy the
constitutional right of cross-examination, ‘the trial justice is required to afford the
accused reasonable latitude to establish or reveal bias, prejudice, or ulterior motives
as they may relate to the case being tried.’” State v. Clark, 974 A.2d 558, 575 (R.I.
2009) (quoting State v. Bustamante, 756 A.2d 758, 765 (R.I. 2000)). “However,
once sufficient cross-examination has been permitted to satisfy the constitutional
safeguards, the trial justice is vested with discretion to limit the scope of additional
cross-examination and that decision will not be disturbed by this Court absent an
abuse of discretion.” Id. It is within the trial justice’s discretion “to sustain
objections to lines of inquiry that are ‘potentially misleading or irrelevant, that offer
little or no probative value, or that exceed the scope of direct examination[.]’”
Storey, 102 A.3d at 649 (quoting State v. Wright, 817 A.2d 600, 610 (R.I. 2003)).
- 24 - 1
Morris
We need not reach the merits of defendant’s Confrontation Clause argument
with respect to Morris, because this argument has been waived.9 At trial, defendant
did not raise a Confrontation Clause argument but, instead, merely argued that
Morris’s statements to police were probative and therefore admissible under the
Rules of Evidence. “It is well settled that the raise-or-waive rule precludes us from
considering at the appellate level issues not properly presented before the trial
court.” State v. Andrade, 209 A.3d 1185, 1194 (R.I. 2019) (quoting State v. Cahill,
196 A.3d 744, 753 (R.I. 2018)).
Thomas
During the defense’s cross-examination of Thomas, defendant introduced a
photograph of Renee Rogers, the mother of Thomas’s child. Upon introduction of
the photograph, the state immediately requested a sidebar conference, during which
the following exchange occurred:
“THE COURT: Okay. And where are we going with this?
9 This Court has previously held that “[w]hen a witness refuses to testify and invokes a legitimate Fifth Amendment privilege, the Sixth Amendment Confrontation Clause no longer applies because the witness is unavailable.” State v. Ramirez, 936 A.2d 1254, 1265 (R.I. 2007) (citing California v. Green, 399 U.S. 149, 167-68 (1970)). As such, even if defendant’s argument with respect to Morris were not waived, the argument would still swiftly fail.
- 25 - “[DEFENSE COUNSEL]: He found out that she was cheating on him with Jayquan Garlington, and he has absolute detest for Jayquan Garlington due to the fact that she carried on an affair with him that he didn’t know about, and he has stated to many others and has made public that he would do anything he had to do to get back at Mr. Garlington for having this affair with his girlfriend. And I think the jury should be entitled to know that.
“[PROSECUTOR]: Judge, this is the first we’re hearing this information again, but I think it confuses the issues completely. This is not Jayquan Garlington’s trial, this is Ezekial Johnson’s trial. It’s totally going to mislead the jury and totally confuse the issues about who is having an affair with who, and, I mean—he’s providing information as Ezekial Johnson [sic] in this case.
“[DEFENSE COUNSEL]: And they’re using a statement, supposedly that he says that Jayquan Garlington made—
“* * *
“[DEFENSE COUNSEL]: —to bury my client and to have him try [sic] to have him convicted.
“THE COURT: The point is not necessarily what Jayquan Garlington said. It’s your client’s reaction to the story that is attributed to Jayquan Garlington. Even if he made up a story about what Jayquan Garlington said, and I don’t know that I can make that decision, it’s the action of Ezekial Johnson that is paramount. I’m going to sustain any objection to going into that business about Jayquan Garlington having an affair with his girlfriend.”
We see no error in the trial justice’s decision to exclude this line of
questioning, because the issue of Thomas harboring a grudge against defendant’s
alleged co-conspirator “is so tenuously related, if at all, to the issue of [his] possible
- 26 - bias against defendant[.]” State v. Veluzat, 578 A.2d 93, 95 (R.I. 1990) (holding that
the trial justice did not abuse his discretion in excluding questioning about witness’s
grudge against the defendant). Moreover, defendant was afforded “reasonable
latitude” to establish biases that Thomas might have—including Thomas’s
involvement in and benefit from cooperation agreements, his relationship with law
enforcement, and the benefits he received through his participation in the witness
protection program. See Clark, 974 A.2d at 575 (quoting Bustamante, 756 A.2d at
765). After a careful review of Thomas’s testimony, we are satisfied that sufficient
cross-examination was permitted to satisfy the constitutional safeguards, and that
the trial justice did not abuse his discretion in excluding questions about Thomas’s
possible grudge against Garlington.
Finally, defendant argues that the trial justice erred in denying his motion for
a new trial because, according to defendant, “the evidence failed to establish any
culpability of the defendant beyond a reasonable doubt.” In support of this
argument, defendant claims that there were “manifold inconsistencies” in testimony,
specifically pointing to the testimony of Gonzalez, Thomas, and Gibbs. Further,
defendant avers that “the jury should not have been exposed to [Gonzalez’s] in-court
- 27 - identification[,]” and that the DNA evidence did not establish that defendant was at
the scene of the crime.
When presented with a motion for a new trial based on the weight of the
evidence, the trial justice “acts as a thirteenth juror and exercises independent
judgment on the credibility of witnesses and on the weight of the evidence.” State v.
Gumkowski, 223 A.3d 321, 328 (R.I. 2020) (quoting State v. Johnson, 199 A.3d
1046, 1050-51 (R.I. 2019)). “The trial justice must consider the evidence in light of
the jury charge, then independently assess the credibility of the witnesses and the
weight of the evidence, and also ultimately determine whether he or she would have
reached a result different from that reached by the jury.” Id. (quoting Johnson, 199
A.3d at 1051). “If, after conducting this independent review, the trial justice agrees
with the jury’s verdict or if the evidence is such that reasonable minds could differ
as to the outcome, the motion for a new trial should be denied.” Id. (quoting Johnson,
199 A.3d at 1051). “Only when the trial justice does not agree with the jury’s
verdict, must he or she embark on a fourth analytical step.” Id. (quoting Johnson,
199 A.3d at 1051).
“This Court’s review of a denial of a motion for a new trial is deferential
because the trial justice is in an especially good position to evaluate the facts and to
judge the credibility of the witnesses.” Gumkowski, 223 A.3d at 328 (quoting
Johnson, 199 A.3d at 1051). “If the trial justice has articulated adequate grounds for
- 28 - denying the motion, his or her decision is entitled to great weight and will not be
overturned by this Court unless he or she has overlooked or misconceived material
evidence or was otherwise clearly wrong.” Id. (quoting Johnson, 199 A.3d at 1051).
In denying defendant’s motion, the trial justice began by acknowledging that
“[s]ave for the DNA evidence, which is hardly to be ignored, this case was, for a
major part, a credibility test of the [s]tate’s witnesses: Jon Thomas, Marcus Gibbs,
and Lymari Gonzalez, and the defendant’s witness, Thadious Parker.” Further, he
correctly explained that “inconsistencies between witnesses would not preclude a
determination that the witnesses were credible.” See State v. Lopez, 129 A.3d 77, 85
(R.I. 2016) (holding that testimonial inconsistencies do not necessarily discredit all
of the witness’s testimony). He then considered each witness’s testimony and
explained the reasoning for his credibility assessments.
Regarding Gonzalez, the trial justice recognized that Gonzalez had incorrectly
identified two other men; however, he emphasized that she was never shown a
photograph of defendant, Garlington, or Morris. Further, the trial justice explained
that Gonzalez’s “identification of the defendant was significantly strengthened
because she had previously known [defendant] from the neighborhood[,]” and she
described “in chilling fashion how she felt when she walked into the courtroom at
the bail hearing and saw [defendant].” Ultimately, the trial justice concluded that
Gonzalez testified “with the utmost conviction,” which he found to be credible.
- 29 - Next, the trial justice turned to the testimony by Thomas and Gibbs. First, he
found that cell-phone records corroborated Thomas’s testimony that Rodriguez was
on his cell phone at the time of the shooting. Second, the trial justice acknowledged
that Gibbs had outright “accused [defendant] * * * of having killed an innocent cab
driver.” He explained that Gibbs had “satisfactorily explained his tattoo of the
Ocean State Gang as a rap group” and had also explained the “dissimilarities” in his
testimony. The trial justice declined to fault the jury for crediting the testimony by
Thomas and Gibbs, stating, “[n]otwithstanding their criminal history and/or
cooperation agreements, they offered unembellished and forthright testimony, which
I did not find lacking in candor or credibility.”
With regard to the evidence presented, the trial justice found that the DNA
evidence in conjunction with Gonzalez’s testimony placed defendant at the scene of
the crime. Further, he explained that “[t]he jury was free to conclude that someone
other than [defendant] had worn the hat last and tossed it, but obviously the
fact-finders determined that it was [defendant], not some unknown person who had
that hat on that day and had discarded it while running down Garfield Street.”
Additionally, he noted that “Tamara Wong’s expert analysis” was not helpful in
exculpating defendant and that cell-phone records corroborated the testimony by
Rodriguez’s daughter concerning her mother’s last phone calls to her father.
- 30 - Having thoroughly reviewed the entire record, as well as the trial justice’s
decision denying the motion for a new trial, we are satisfied that the trial justice has
articulated adequate grounds for denying the motion and that he did not overlook or
misconceive material evidence. Accordingly, we hold that the trial justice properly
denied the defendant’s motion for a new trial.
III
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of conviction.
The record in this case may be returned to the Superior Court.
- 31 - .STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Ezekial Johnson.
No. 2019-35-C.A. Case Number (P1/17-3082AG)
Date Opinion Filed May 26, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Robert D. Krause
For State:
Mariana E. Ormonde Attorney(s) on Appeal Department of Attorney General For Defendant:
George J. West, Esq.
SU-CMS-02A (revised June 2020)