Providence County Superior Court (P1/07-1859AG) Associate Justice Robert D. Krause
For State: Christopher R. Bush Department of Attorney General For Defendant: George J. West, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
FRANCIS X. FLAHERTY ASSOCIATE JUSTICE.
On November 20, 2006, the defendant, Deaven Tucker, along with two accomplices, Jason Ruiz (Ruiz) and Jennifer Duarte (Jennifer), robbed a bank on the East Side of Providence. However, that crime serves only as a precursor to other criminal activity that arose during the course of this sordid tale. In the days leading up to the robbery, the defendant had become increasingly distressed that an investigation into a crime that he had orchestrated while he was in Florida several months earlier was catching up with him. Detectives from the Miami-Dade Police Department had begun questioning everyone who had traveled to Florida with the defendant in an effort to identify the people associated with certain nicknames. The defendant was highly concerned because he thought it was only a matter of time until Jennifer, who took part in the Florida crime at the defendant's behest, was identified and questioned. The defendant was determined to prevent that from happening because he believed that, if questioned, Jennifer would implicate the defendant's girlfriend, Victoria Berardinelli (Berardinelli), or himself in the Florida incident. To prevent that from happening, the defendant made the callous decision that Jennifer must die.
In the predawn hours of November 21, 2006, less than twelve hours after the bank robbery, Jennifer, defendant, and two others parked their vehicle on the side of Grotto Avenue in Pawtucket. The defendant lured Jennifer from the car and the pair ventured a short distance down the street. As they were heading back towards the car, defendant withdrew a semiautomatic handgun and fired one shot at point-blank range into Jennifer's back. The defendant then straddled Jennifer's fallen body and discharged an additional eight shots into her body, including three shots in her back, one in her upper right arm, and four in her head. Upon completion of this cold-blooded, ruthless execution, defendant left Jennifer's lifeless, bullet-riddled body where it fell and fled the scene.
Based upon the events of November 20 and 21, 2006, defendant was charged with eleven offenses in a single indictment, most notably the murder of Jennifer Duarte in violation of G.L. 1956 §§ 11-23-1 and 11-23-2. On March 16, 2010, following a lengthy jury trial in Providence County Superior Court, guilty verdicts were returned on all counts. On May 10, 2010, the trial justice sentenced defendant to three consecutive life sentences plus an additional thirty-five consecutive nonparoleable years.
On appeal, defendant advances two primary arguments to support vacating his judgments of conviction. First, defendant contends that the trial justice abused his discretion when he admitted character evidence in violation of Rule 404(b) of the Rhode Island Rules of Evidence.Second, defendant claims that he should be granted a new trial because the prosecutor made inappropriate and inflammatory comments during the course of his closing argument. After a careful consideration of defendant's arguments and a thorough review of the record, we affirm the judgments of conviction.
Facts and Travel
To make sense of the cold-blooded and calculated murder of Jennifer, we must turn our attention to events that occurred several months earlier. In September 2006, defendant and Berardinelli planned a trip to Florida to visit defendant's uncle and inquire about employment prospects at the uncle's auto-detailing business. However, some of defendant's friends learned about the trip, expressed an interest in joining, and were invited by defendant to travel with him and Berardinelli. The new additions to the trip included Zachery Brown (Brown), John Soares (Soares), Ronald Spearin (Spearin), and Eugenia Gomes (Gomes). Two rental cars were obtained, and the group departed Rhode Island. Berar\dinelli did not travel to Florida in the rental cars; rather, she flew down several days later and was surprised to discover that Jennifer was in Florida with the group.
On the group's final night in Florida, everyone went out to a club in Miami except Brown, who remained at the hotel and went to bed early because he was ill. At some point after midnight, defendant, Berardinelli, Soares, and Jennifer returned to the hotel room occupied by Brown, whereupon defendant declared that Spearin "had to be taken care of." Brown testified that defendant then revealed a plan that he had conceived to kill Spearin. Specifically, defendant instructed that, while Spearin and Gomes were being transported from the hotel at which defendant was staying to their own hotel, Soares would lure Spearin from the vehicle and shoot him. The defendant explained that, in order to create an alibi, he and Berardinelli would remain at the hotel while Spearin's murder was being carried out.
At trial, Brown testified that defendant's plan was successful and that Soares killed Spearin. Afterwards, Jennifer and Brown returned to defendant's hotel room in a "frantic" state. Within minutes of their return, Jennifer, Brown, Berardinelli, and defendant had hastily packed their belongings, jumped into the rental car, and began the return trip to Rhode Island. The defendant ordered that "[e]verybody keep their mouth shut."
During the return trip, defendant commanded Brown to shower in order to "wash off the evidence" from the Spearin murder. When the group arrived home, they went directly to Jennifer's South Providence apartment. Once again, defendant directed Brown to shower "[t]o wash the gun – the gun residue and the rest of the residue off." Jennifer then showered. While she was doing so, Berardinelli questioned defendant about Jennifer's loyalty to him. Specifically, Berardinelli warned defendant that Jennifer "was going to tell on him." Thereafter, defendant announced that "if anyone from Florida tried to contact [one of you] about the incident, " that person should "refuse to answer any questions, and immediately obtain a lawyer."
In the weeks that followed his return to Rhode Island, defendant maintained a low profile, hiding out in various hotels throughout Rhode Island and Massachusetts. Frequently, Jennifer accompanied defendant, staying at the hotels with him. Nonetheless, the investigation into the events that had transpired in Florida was beginning to catch up with defendant.
On November 15, 2006, Berardinelli was contacted by Det. Jose Gonzalez of the Miami-Dade Police Department. Detective Gonzalez, who was conducting a criminal investigation, sought to identify individuals who were associated with certain nicknames. During the questioning, Berardinelli revealed the nicknames for herself, Brown, Soares, and defendant. However, when asked to identify the person who was associated with Jennifer's nickname, Berardinelli told Det. Gonzalez that "she was an acquaintance, someone that's known to her here in Providence that she has seen several times, " but she lied and claimed that "she did not know her actual name."
At the conclusion of the interview, Berardinelli informed defendant about what had occurred. The defendant became enraged; he "yelled and screamed" at Berardinelli because she "didn't do what he had originally told [her] to do and refuse to answer questions, and tell them [she] had an attorney." Adding to defendant's consternation was his discovery that several other people had been questioned about the Florida incident, including Kevin Faria, "who told [the detectives] everything."
It appeared to be simply a matter of time until the Florida detectives would be able to identify and question the remaining accomplices, including Jennifer. Berardinelli testified that defendant said he was convinced that Jennifer "would never say anything to go against him or to implicate him because she loved him." However, defendant was concerned that Jennifer might implicate Berardinelli. Berardinelli testified that defendant said he believed that, if questioned, "Jenny was going to substitute herself with [Berardinelli] in the driver's seat of the car [the night of Spearin's murder], and that [Berardinelli] would go to jail, and that Jenny was going to ultimately have [defendant] to herself." As a result, fearing for the welfare of himself and Berardinelli, defendant proclaimed that "he really didn't trust [Jennifer], and that she had to go."
Similarly, Ruiz testified that defendant had voiced concern after he was alerted that the Florida investigation had made its way to Rhode Island. Specifically, Ruiz said that defendant told him that he "didn't trust [Jennifer]" because he was convinced that "she would tell on him over something that happened in Florida." As a result, Ruiz said, defendant solicited him to kill Jennifer. Specifically, Ruiz said that defendant instructed him to hide near Jennifer's apartment until he lured her outside, at which point Ruiz was to shoot and kill her. However, defendant was unable to coax Jennifer out of her apartment and simply told Ruiz to "forget it, because [Jennifer's] son was upstairs with her."
Ruiz also testified that, on the evening of the aborted attempt to murder Jennifer, defendant informed him that, on November 20, 2006, "there's going to be a good, good lick." Ruiz explained that a "good lick" meant a "chance or possib[ility to] get a lot of money." On November 19, 2006, defendant clarified that the following day they were going to rob a bank. Ruiz said that defendant explained that he and Ruiz would enter the bank and commit the robbery and that Jennifer would drive a getaway car. Jennifer borrowed her sister's car on the day of the robbery, agreeing to return it by 3:00 p.m. That evening, Jennifer, Ruiz, and defendant spent the night at Jennifer's South Providence apartment.
The following day, they prepared for the impending bank robbery. In an attempt to conceal their identities, defendant and Ruiz outfitted themselves from head to toe in black clothing; however, only defendant, and not Ruiz, secured gloves to wear during the robbery. The pair also purchased bandanas to cover their faces. Next, they began canvassing Providence area banks in search of a bank that had neither security officers nor bulletproof glass. To that end, Jennifer reconnoitered several banks in the city; eventually, they arrived at the Sovereign Bank on Elmgrove Avenue. Jennifer cased the bank and determined that it had neither security officers nor bulletproof glass, making it the ideal target.
Shortly before 3:10 p.m., Ruiz and defendant got out of the car operated by Jennifer and put defendant's plan into action. According to the testimony elicited at trial, Ruiz entered the bank first and ordered the tellers to put the money in his bag. The tellers complied; however, Ruiz became impatient and began reaching into the cash drawers himself. Meanwhile, defendant remained near the entrance to the bank lobby, maintaining order by brandishing his gun and threatening to open fire. Ruiz testified that, after they had been in the bank for about forty seconds, defendant told him that it was time to leave. As a result, Ruiz and defendant scampered from the bank and re-entered the car with Jennifer.
The trio proceeded to a motel, where they were met by Berardinelli, defendant's eight-year-old son, Deaven Jr., and defendant's half-brother, Dana Wilson. The proceeds were counted and amounted to about $50, 000. Ominously, when Jennifer was out of earshot, defendant spoke with Berardinelli, Ruiz, and Wilson and declared that "he had used Jenny as much as he could. He didn't trust her anymore and she had to go." The defendant propositioned Wilson and Ruiz to see if they would murder Jennifer. Wilson testified that defendant first turned to him and said, "[y]ou can have [Jennifer's] share of the money [from the bank robbery] if you kill her." To defendant's dismay, Wilson declined to kill Jennifer for $10, 000, her share of the robbery proceeds, explaining that "[h]e didn't want to kill her. He wanted no part of any of it." Next, Berardinelli and Wilson testified that defendant made the same offer to Ruiz; kill Jennifer in exchange for her share of the robbery proceeds. Berardinelli and Wilson testified that Ruiz responded affirmatively, "F--- it. I'll kill her. I don't care." However, shortly thereafter, Ruiz experienced a change of heart and said that he ...