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State v. Drew

Supreme Court of Rhode Island

November 19, 2013

STATE
v.
Harold T. DREW.

Page 33

Virginia M. McGinn, Department of Attorney General, for State.

Catherine Gibran, Office of the Public Defender, for Defendant.

Page 34

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

SUTTELL, Chief Justice.

The defendant, Harold T. Drew, appeals from a Superior Court order denying his motion for a new trial based on newly discovered evidence. After a jury trial, the defendant was convicted on one count of first-degree murder, one count of discharging a firearm while committing a crime of violence, and three counts of entering a dwelling with the intent to commit a larceny therein. This Court affirmed the defendant's conviction on appeal, State v. Drew, 919 A.2d 397 (R.I.2007), and he then filed the instant motion for a new trial.[1] The defendant now argues that a recently discovered police narrative discloses new, material evidence concerning a cooperation agreement between the Swansea (Massachusetts) Police Department, the Rhode Island State Police, and a prominent state's witness in the defendant's murder trial, Bobbie-Jo Dumont.[2] The defendant also claims that the prosecution violated the defendant's constitutional due-process rights by failing to disclose the full extent of the cooperation agreement. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the order of the Superior Court.

I

Facts and Procedural History

This Court is familiar with the underlying facts of this case from defendant's first appeal, State v. Drew, 919 A.2d 397 (R.I.2007), in which his conviction was affirmed. Three people were primarily involved in the events leading to defendant's arrest: Bobbie-Jo Dumont, Harold Andrews,[3] and defendant. Dumont and Andrews became acquainted in 2000 at a Providence strip club, where Dumont was employed as a stripper and Andrews was a customer. Id. at 400. Their relationship soon changed from a casual acquaintanceship to one in which Dumont relied on Andrews for money to support her drug addiction and to pay her bills, in exchange for which she obliged his sexual demands. Id. at 400-01.

Dumont met defendant in the fall of 2002, after she was admitted to a detoxification facility in North Kingstown. Drew, 919 A.2d at 401. The defendant and Dumont developed a romantic relationship, and both were prematurely expelled from the detoxification program after they were discovered having sexual relations on the premises. Id. The defendant and Dumont then continued to stay together in abandoned buildings and cars, while Andrews provided support for Dumont until Andrews became unemployed in October 2002. Id.

Page 35

Dumont testified at defendant's trial that she, defendant, and Andrews perpetrated a string of breaking-and-entering crimes between November 2002 and June 2003, usually with Andrews providing transportation while Dumont and defendant entered the residences.[4] On or around May 12, 2003, however, Andrews told Dumont that he no longer wished to participate in the break-ins, and the two engaged in a physical altercation. Dumont testified that, on the day after this altercation, she and defendant asked Andrews to drive them to a remote field in the Town of Exeter, where the three had previously stashed a gun locker, and Andrews agreed. Dumont further testified that, while she and Andrews were attempting to wipe fingerprints off the gun locker, she saw defendant shoot and kill Andrews.

The defendant and Dumont were arrested for Andrews's murder on June 6, 2003. Drew, 919 A.2d at 402. On July 31, 2003, Dumont entered into a cooperation agreement with the state, in which she agreed to plead to one charge of possession of heroin and two counts of breaking and entering committed within the state of Rhode Island. The agreement provided for Dumont to receive sentences of three years suspended/three years probation for the heroin possession charge and five years suspended/five years probation for the breaking-and-entering charges. The state also agreed to withdraw a pending bail-violation notice that had been filed pursuant to Rule 46(g) of the Superior Court Rules of Criminal Procedure in an unrelated matter. The agreement was executed in exchange for Dumont's past and future cooperation and testimony in connection with the prosecution of all criminal cases brought as a result of Andrews's murder.

It is undisputed that the state provided defendant with the following documents prior to trial: Dumont's cooperation agreement, Dumont's witness statements, and a narrative written by Det. Arthur J. Kershaw of the Rhode Island State Police that described Dumont's cooperation with the state.

The defendant's trial began in October 2004, and included three days of testimony from Dumont. Detective Kershaw also testified, stating that he investigated a number of " B & E's" in the " South County" area in May 2003, and that he was thereafter assigned to the homicide investigation concerning Andrews's death in June 2003. On cross-examination, Det. Kershaw testified that he was aware that Dumont was involved in numerous breaking and enterings in Rhode Island and Massachusetts, and that she had agreed to cooperate with detectives in both jurisdictions. On November 10, 2004, defendant was convicted on one count of first-degree murder, one count of discharging a firearm while committing a crime of violence, and three counts of entering a dwelling with the intent to commit a larceny therein. Drew, 919 A.2d at 402-03. Judgment of conviction was entered in the Superior Court on February 7, 2005. The defendant filed a timely appeal on the grounds of evidentiary errors, erroneous jury instructions, and a Confrontation Clause violation;

Page 36

his conviction was affirmed by this Court on May 16, 2007.

On January 2, 2008, defendant filed the underlying motion for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure, in which he asserted that, after his conviction in Rhode Island he was taken to Massachusetts to face additional breaking-and-entering charges. The defendant claimed that, during the course of the Massachusetts proceeding, he " discovered details of a cooperation agreement between the State's main witness, Bobbi Jo Dumont, and Massachusetts authorities." Specifically, defendant referred to a Supplemental Narrative of Det. Gregory T. Ryan of the Swansea Police Department, dated May 17, 2004.[5] Detective Ryan's narrative reveals that he, Dumont, and Det. Kershaw traveled to the locations of four reported " house breaks" in Swansea, Massachusetts, with Dumont identifying the homes as being those where she, defendant, and Andrews had committed break-ins. [6] The final paragraph of Det. Ryan's narrative states that " [a]s requested by Det. Arthur Kershaw, as part of her cooperation, Bobbie Jo Dumont will not be charged due to her assistance as a witness." The state asserted that it was not made aware of Det. Ryan's narrative until after the close of defendant's trial, and defendant did not present evidence to challenge this assertion.

The defendant argued that Det. Ryan's narrative evidenced a cooperation agreement that should have been disclosed to defendant prior to trial and that this lack of disclosure prevented defendant from fully presenting his best defense in contravention of his due-process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).[7] The state filed an objection to defendant's motion on June 1, 2011, arguing that Det. Ryan's narrative did not reveal newly discovered evidence.[8] The trial justice conducted an evidentiary hearing on June 1, 2011, with testimony from Dumont, Det. Ryan, and Det. Kershaw. After the hearing, the parties filed additional memoranda, and, on March 23, 2012, the trial court entered an order denying defendant's motion, accompanied by a seventeen-page decision dated March 8, 2012. The trial justice found no due-process violation and no reason for a new trial pursuant to Rule 33, reasoning that Det. Ryan's narrative did not present new evidence and that the evidence was merely cumulative and impeachment evidence.[9] The defendant filed a timely notice of appeal.

Page 37

II


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