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State v. Virola

Supreme Court of Rhode Island

June 4, 2015

State
v.
Ramon Virola

Page 981

[Copyrighted Material Omitted]

Page 982

Providence County Superior Court. (P1/04-3981CG). Associate Justice Robert D. Krause.

For State: Lauren S. Zurier, 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 983

Robinson, Justice.

The defendant, Ramon Virola, appeals to this Court from a " Judgment of Conviction and Commitment" [1] dated July 3, 2013, which was entered after a jury found him guilty of four criminal counts related to a murder committed during the course of an attempted robbery. On appeal, the defendant contends that the trial justice erred in denying his motion for a new trial and in admitting certain witness testimony. Specifically, he posits that the testimony of three of the key witnesses at trial--David Mercado, Martin " Malik" White, and Patricia " Vicky" Gallardo--was not credible. The defendant further argues that the trial justice erred in admitting certain testimony by Ms. Gallardo because the testimony was not relevant and, even if it were relevant, the unfairly prejudicial nature of that testimony greatly outweighed its probative value, in violation of Rule 403 of the Rhode Island Rules of Evidence.

For the reasons set forth in this opinion, we affirm the Superior Court's judgment of conviction and its denial of defendant's motion for a new trial.

I

Facts and Travel

On August 16, 2004, Christopher Nelson, a graduate of Johnson & Wales University, was shot in his second floor apartment on Knight Street in Providence and died as a result. Following an investigation of the murder, the Providence Police Department eventually took four men into custody--David Mercado, Lazaro " Casper" Martinez, Martin " Malik" White, and Wayman " Kevin" Turner. The police also issued an arrest warrant for defendant. Mr. Mercado subsequently entered into a cooperation agreement with the state; and, on December 8, 2004, he pled nolo contendere to one count of conspiracy to commit robbery.

Thereafter, on December 10, 2004, a Providence County grand jury indicted defendant, as well as Mr. Martinez, Mr. White, and Mr. Turner for the murder of Christopher Nelson, in violation of G.L. 1956 § 11-23-1 and § 11-23-2. They were also indicted for assault with intent to commit robbery, in violation of G.L. 1956 § 11-5-1; conspiracy to commit robbery, in violation of G.L. 1956 § 11-1-6 and G.L. 1956 § 11-39-1(a); and discharge of a firearm during a crime of violence, in violation of G.L. 1956 § 11-47-3.2(b)(3).

Mr. Martinez, Mr. White, and Mr. Turner all had the criminal charges against them disposed of in due course.[2] However, defendant was not apprehended for

Page 984

approximately seven years. It was not until November 16, 2011 that defendant was arrested in Glendale, Arizona, where he was known by the name " Benny Delgado." Subsequent to his arrest, on December 5, 2011, defendant was presented with a notice that the state would seek to have him adjudged as a habitual criminal, pursuant to G.L. 1956 § 12-19-21.[3]

In February and March of 2013, a jury trial was held in Providence County Superior Court. We summarize below the salient aspects of what transpired at that trial.

A

The Testimony at Trial

1. The Testimony of Floyd Johnson

Floyd Johnson, who was present at the time of the attempted robbery, testified at trial for the prosecution. Mr. Johnson, who testified that he had been a friend of the decedent, Christopher Nelson, testified that on August 16, 2004, Mr. Johnson, Mr. Nelson, and two mutual friends, Courtenay Penn and Jerel James, were watching the Olympics on television and playing video games in Mr. Nelson's second floor Knight Street apartment in Providence. Mr. Johnson testified that, after hearing a knock on the door, Mr. Nelson answered the door, but then appeared to be " trying to close the door" as he " struggle[d]" with someone. It was the testimony of Mr. Johnson that an intruder wearing a mask then stepped into the room, pointed a gun at Mr. Nelson, and repeatedly asked: " Where is the money?" Mr. Johnson stated that, after Mr. Nelson replied that he did not have any money, " the gun went off[.]" According to Mr. Johnson, the intruder was then " brandishing" the gun in the " general direction" of him, Mr. Penn, and Mr. James, again demanding to know where the money was. Mr. Johnson testified that, after he, Mr. Penn, and Mr. James stated that they did not have any money and did not live at the apartment, the intruder left. It was the testimony of Mr. Johnson that during the encounter he saw Mr. Nelson " leaning on the fridge" and " holding his chest." He further stated that, after the intruder left, he, Mr. Penn, and Mr. James called for help and attempted to assist Mr. Nelson. It is undisputed that, although rescue services were called and arrived soon thereafter, Mr. Nelson was later pronounced dead.

2. The Testimony of Christina Stanley, M.D.

Doctor Christina Stanley, the Chief Medical Examiner for the State of Rhode

Page 985

Island, testified at trial for the state. Doctor Stanley testified that the autopsy of Mr. Nelson had been performed by assistant medical examiner Dr. Dorota Latuszynski, and Dr. Stanley acknowledged that Dr. Latuszynski was no longer employed by the Rhode Island Medical Examiner's Office. Doctor Stanley stated that Dr. Latuszynski had concluded that Mr. Nelson had " died of internal hemorrhage due to injuries of the heart, aorta, and left lung" caused by a " single gunshot wound that perforated his chest." It was her testimony that Mr. Nelson's death was a homicide.

3. The Testimony of David Mercado

David Mercado, one of the accomplices in the attempted robbery and the murder of Mr. Nelson, testified at trial pursuant to a cooperation agreement, in which he agreed to assist in the murder investigation and to testify for the state. Mr. Mercado testified that, in exchange for his testimony, he pled nolo contendere to one count of conspiracy to commit robbery and received a ten year sentence, with four years to serve and the balance suspended with probation.

With respect to the events leading up to the murder of Mr. Nelson, Mr. Mercado testified that, on August 16, 2004, the day of Mr. Nelson's murder, Mr. Mercado's childhood friend Casper Martinez discussed with him a plan to rob Mr. Mercado's former drug dealer, Jeff Keltz. It was Mr. Mercado's testimony that Jeff Keltz was the roommate of Mr. Nelson. He stated that Mr. Nelson was not involved in Mr. Keltz's drug activity; that fact is undisputed by the parties. Mr. Mercado testified that, after Mr. Martinez taunted him about his reluctance to participate in the robbery, he agreed to provide transportation to and from the crime scene.

It was further the testimony of Mr. Mercado that, later that night, before the robbery, he drove Mr. Martinez to Almy Street in Providence. Mr. Mercado stated that, while they were parked on Almy Street, he observed three men, whom Mr. Mercado had never seen before, arrive on Almy Street. According to Mr. Mercado, Mr. Martinez introduced two of the men as " Malik" and " Kev." It is undisputed that the men who were introduced to Mr. Mercado as " Malik" and " Kev" were Mr. White and Mr. Turner, respectively. Mr. Mercado testified that the third man, whom Mr. Mercado later identified at trial as defendant, introduced himself to Mr. Mercado as " R." Mr. Mercado stated that he also heard Mr. Turner refer to defendant as " Ray." It was the further testimony of Mr. Mercado that, after lingering on Almy Street for ten to fifteen minutes, he drove Mr. Martinez to the corner of Penn and Knight Streets while Mr. White, Mr. Turner, and defendant drove separately to Penn Street in Mr. White's vehicle. Mr. Mercado testified that he drove away as the other four men started walking toward the apartment of Mr. Keltz and Mr. Nelson.

It was next Mr. Mercado's testimony that, after approximately ten to fifteen minutes, Mr. Martinez called to ask Mr. Mercado to pick him up near the Knight Street apartment. Mr. Mercado further testified that, once Mr. Martinez was in the car, he told Mr. Mercado that, " Kevin [Turner] shot a guy." Mr. Mercado stated that he eventually drove Mr. Martinez home and then went " home to [his] mom's."

Mr. Mercado went on to testify that, the next day--August 17, 2004--he learned from a news broadcast that Mr. Nelson had died. It was then Mr. Mercado's testimony that, after he learned that Mr. Nelson had been killed, he drove Mr. Martinez

Page 986

to meet with Mr. Turner on Almy Street and that Mr. Turner gave Mr. Martinez the gun, telling Mr. Martinez to dispose of the weapon.

It was Mr. Mercado's testimony that, two days later, on August 19, 2004, in an attempt to potentially dispose of the gun in Pawtucket, he was driving with Mr. Martinez while the gun was in a shoebox on the floor of the front passenger seat. However, Mr. Mercado further testified that, while he and Mr. Martinez were en route to Pawtucket, the police pulled his car over, arrested them, and seized the weapon.

Mr. Mercado admitted during his testimony that, while he had initially denied involvement in the crime, he eventually gave a statement implicating defendant, Mr. Martinez, Mr. White, Mr. Turner, and himself in the murder of Mr. Nelson. Additionally, Mr. Mercado testified that police detectives showed him several photographic arrays from which he identified his accomplices.

On cross-examination, Mr. Mercado admitted that he had smoked marijuana multiple times on August 16, 2004, the day of Mr. Nelson's murder, and that he was " stoned" during the planning and execution of the crime. Mr. Mercado further admitted that he had smoked marijuana on the day of his arrest. He acknowledged that he decided to cooperate with the police while he was being transported to the Providence police station, when the ...


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