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State v. Tully

Supreme Court of Rhode Island

March 9, 2015

State
v.
Michael Tully, a.k.a. Michael Vanover

Page 1182

[Copyrighted Material Omitted]

Page 1183

Providence County Superior Court. (P1/12-3387AG). Associate Justice Robert D. Krause.

For State: Virginia M. McGinn, Department of Attorney General.

For Defendant: Lara E. Montecalvo, Office of the Public Defender.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Page 1184

Suttell, Chief Justice

On May 30, 2012, at approximately 11:05 p.m., twenty-six-year-old Ralph Joseph was struck by a single bullet as he fled from a building located at 51 Salmon Street in the City of Providence. The bullet pierced his skull and caused his death two days later. The scene that unfolded before Joseph exited the building, as well as the events that led to this fateful occasion, are unclear. The evidence suggested a drug-deal-turned-murder, involving Joseph, Michael Tully (defendant),[1] Leshayna Owens, Ryan Rue, and at least one other unidentified individual. After a jury trial in Superior Court, the defendant was convicted of first-degree felony murder and conspiracy to commit robbery. He appeals from this verdict as well as from the denial of his motion for a new trial. For the reasons set forth below, we affirm the judgment of the Superior Court.

I

Facts and Procedural History

In December 2012, a grand jury returned an indictment containing six felony charges against defendant: the murder of Ralph Joseph, in violation of G.L. 1956 § § 11-23-1 and 11-23-2 (count 1); discharging a firearm in the commission of a crime of violence (murder), resulting in the death of Ralph Joseph, in violation of G.L. 1956 § 11-47-3.2(b)(3)[2] (count 2); the assault of Ralph Joseph with intent to commit robbery, in violation of G.L. 1956 § 11-5-1 (count 3); the first-degree robbery of Leshayna Owens, in violation of G.L. 1956 § 11-39-1(a) (count 4); conspiracy to commit robbery, in violation of G.L. 1956 § 11-1-6 (count 5); and carrying a firearm without a license, in violation of § 11-47-8(a) (count 6).

At trial, the state presented twelve witnesses in its case against defendant, including lengthy testimony by Leshayna Owens. Owens, who was present during the shooting and was a mutual acquaintance

Page 1185

of both defendant and Joseph, provided key portions of the narrative regarding defendant's involvement in Joseph's death.

Owens testified that she had met defendant approximately six or seven months before the date of the shooting. During this period of time, Owens would " [h]ang out" and " [s]moke marijuana" with defendant a few times per week, and she sometimes would see him around the neighborhood. This neighborhood was the " Manton" area of the City of Providence, which is near the Manton Housing Development, referred to as the " Manton projects." Owens recalled that she had purchased marijuana from defendant " [t]wo or three times." She identified defendant at trial and described him as " [d]ark skin, shorter than [her,[3]] [c]ross-eyed," with a " [m]uscular, but skinny" build.

Owens testified that she had met Joseph at a party in late May 2012, approximately one week before the shooting. She " [h]ung out with him a few times" during this final week of his life; she sold him small amounts of marijuana, and they spent time smoking together. Joseph also introduced Owens to his friend Ryan Rue.

According to Owens, Joseph called her in the early afternoon of May 30, 2012 and asked her to purchase one pound of marijuana for him. Owens agreed to take Joseph to a location to make the purchase; and, in exchange, she would receive some of the marijuana and some money. Owens then made phone calls to various contacts who could potentially provide them with the marijuana. One of those contacts was defendant. Owens told defendant that she was looking for one pound of marijuana for an unidentified friend, and the two agreed to a price of $1,100. Later in the day, Owens informed Joseph of the arrangement, and then Joseph and Rue came to Owens's house, where the three smoked marijuana before leaving to make the purchase from defendant. Records extracted from Owens's cell phone indicated that, between 9:31 p.m. and 10:57 p.m., Owens made seven outgoing calls to defendant's cell phone, and he called her three times. Owens testified that defendant arranged for the sale to take place in a building located on Salmon Street in the Manton projects, not far from where Owens lived.

The evidence in this case included surveillance video footage of a walkway behind 60 Fairfield Street, which was located a short distance from the building on Salmon Street where the sale was to take place. This video showed a man standing and walking on the walkway while speaking on a cell phone, at approximately 10:47 p.m. on May 30, 2012. The man was wearing a black hooded sweatshirt with the hood down, a black hat, and jeans. At trial, a patrolman of the Providence Police Department identified this man as defendant. After a few minutes, a second man entered the scene, wearing a black T-shirt and jeans. The two men then exited the right-hand side of the screen, in the direction of the building located at 60 Fairfield Street. A few minutes later, the two men re-entered the screen, this time both wearing dark sweatshirts; the video showed them walking side by side through the camera's vantage point and exiting to the top of the screen, in a direction leading to Salmon Street.

Shortly before 10:45 p.m., Owens, Joseph, and Rue drove in Rue's silver BMW convertible to the area where defendant had instructed them to meet. They circled this area for a few minutes while looking for the correct building, which Owens

Page 1186

thought was number 52 Salmon Street but turned out to be number 51.[4] After parking in front of 51 Salmon Street, the three waited for a few minutes in the car. Owens testified that she saw " about one or two guys" go inside the front door of the building, neither of whom she recognized. She then observed defendant standing in the doorway and holding up one finger, signaling that she and Joseph should wait before going inside. According to Owens, defendant was wearing jeans and a black hooded sweatshirt, with the hood pulled down, and his face was uncovered.[5] After signaling to Owens to wait, defendant went inside the building.

One or two minutes later, Owens saw a man put his head out of a window on the second floor of the building, and he waved at her with his hands and verbally instructed her to come upstairs. When asked at trial, Owens stated that she was unsure whether this person was defendant.[6] According to Rue, Owens was waiting for a phone call, and she and Joseph left the vehicle after receiving this call. Owens and Joseph then departed from Rue's car and walked inside the building located at 51 Salmon Street. Surveillance video footage confirmed that two individuals entered through the front door of 51 Salmon Street at 11:05 p.m.; approximately thirty seconds later, one of these individuals exited the building and fell, face first, to the sidewalk from a short flight of stairs outside the front door. An unidentifiable figure appeared briefly in the doorway as the injured person fell.

Owens was the only witness who testified at trial regarding the events that occurred inside 51 Salmon Street at 11:05 p.m. Thus, her testimony and her credibility were crucial pieces of the state's case. Owens testified that, after she and Joseph entered the building, she heard a voice instructing them to come upstairs.[7] They walked up the stairs, Owens following Joseph; when Owens reached the landing at the top of the stairs, she was accosted by a man who pointed a gun at her. Owens described this man as " Spanish and chunky." [8] Owens recalled that he was wearing a hooded sweatshirt with the hood pulled up, that he wore his hair in a ponytail, and that he wore a black mask that covered his face from nose to chin. Owens testified that, as she was being confronted, she saw Joseph turn around and run past her in the direction of the stairs, pursued by another man. Owens described the man chasing Joseph as " [b]lack," with " dark skin," " [s]kinny," and shorter than herself. He was wearing jeans, a black hooded sweatshirt with the hood pulled up, and a mask. Owens testified that she was " screaming frantically," with her back against the wall at the top of the stairs, and the man holding her at gunpoint was standing in front of her, yelling " [s]hut the fuck up."

Page 1187

Owens testified that, as this chaotic scene unfolded, she saw Joseph run past her, fall down the stairs, get up, and run out of the door from which they had entered the building. She saw the second man pursue Joseph down the stairs; and, when he reached the doorway, Owens heard him call out to Joseph, " [d]on't run, don't run." Owens testified that she recognized this voice as belonging to defendant. She further testified that she saw the man's face from the eyes up[9] and became aware " that [she] knew him." She also claimed that she recognized him from " [h]is body type" and " [t]he way he walked." Seconds after hearing this man instruct Joseph not to run, Owens saw the man raise his arm, and she heard a gunshot. Owens recalled witnessing this event from the landing at the top of the stairs where she was being detained; she was looking to her right, down the stairs, at the shooter's back.

Owens testified that, after the gunshot, the man holding her at gunpoint grabbed her purse from her hands and ran down the stairs, and the two men exited the building through a back door. Owens remained in place for " a minute or two" out of fear, and she then ran out of the building through the front door. Upon exiting the building, she saw Joseph on the ground outside of the doorway, " bleeding and coughing." Owens testified that she gestured to Rue--who was still in the car--for help, " pointing to [Joseph] and pointing to [Rue]." [10] According to Owens, Rue did not respond; instead he drove slowly away. Owens then fled from the scene on foot, running through the projects to a nearby gas station. She called her brother as she escaped, and he picked her up at the gas station and took her home.[11] When asked at trial, Owens testified that she had not known, before arriving at 51 Salmon Street, that defendant and another man were going to rob Joseph and her, nor had she known that defendant would have a gun.

Rue, who waited in the car while Joseph and Owens went inside the building, testified that he saw Joseph exit the building, heard a gunshot, and saw Joseph fall to the ground. Rue testified that, after he saw Joseph fall, he " took off" and did not see Owens exit the building.[12] After a resident of 51 Salmon Street called 911, Joseph was taken by ambulance to Rhode Island Hospital. One of the first responders found $1,300 on Joseph's person; the money was turned over to personnel at the hospital.

Owens testified that she spoke with defendant on the phone approximately twenty to thirty minutes after the shooting, and she " asked him why he did what he did." In response, defendant told Owens that " he was only trying to scare him," meaning Joseph. According to Owens, defendant did not know, until she informed him, that Joseph had been hit with the bullet. Records extracted from Owens's cell phone confirmed that she made two outgoing calls to defendant after the shooting, at 11:17 p.m. and 11:21 p.m.

Page 1188

Then, approximately one hour after the shooting, Owens received a text message from defendant, which read: " You heard bout em HP kids busten in manton" ; Owens explained that " HP kids" referred to the Hartford projects, which are near the Manton projects. Owens interpreted this text message " as a way of * * * telling [her] to be quiet and basically blame [the shooting] on them, the Hartford project kids." She testified that, although she knew it was a lie, she responded by ...


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