Providence County Superior Court. (P1/11-179C). Associate Justice William E. Carnes, Jr.
For State: Aaron L. Weisman, Department of Attorney General.
For Defendant: Joseph J. Voccola, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
William P. Robinson III, Justice
On April 5, 2012, a Providence County Superior Court jury found the defendant, Elizabeth Mendez, guilty of possession of more than five kilograms of marijuana in violation of G.L. 1956 § 21-28-4.01.2(a)(5). On May 24, 2012, the trial justice sentenced the defendant to twenty years imprisonment, with five years to serve and the remaining time suspended with probation.
On appeal, defendant contends: (1) that the trial justice erred in his supplemental jury instruction given in response to a question posed by the jury; (2) that the trial justice erred in denying defendant's motion for a new trial; and (3) that defendant's twenty-year sentence is violative of Article 1, Section 8 of the Rhode Island Constitution. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I Facts and Travel
On January 20, 2011, defendant was charged by indictment with one count of possession of more than five kilograms of marijuana in violation of § 21-28-4.01.2(a)(5), (b) (Count 1); one count of conspiracy to possess more than five kilograms of marijuana in violation of § 21-28-4.08 (Count 2); and one count of possession of methylenedioxymethamphetamine (MDMA) in violation of § 21-28-4.01(c)(2)(i) (Count 4). In that same indictment, two co-defendants were similarly charged with possession of more than five kilograms of marijuana and conspiracy to possess more than five kilograms of marijuana. Those co-defendants, Osvaldo German and Jonathan Espinal, were not tried with defendant.
The defendant's criminal trial began in March of 2012, and the evidence presented therein included testimony from Trooper Marc Alboum of the Rhode Island State Police, Officer Diego Mello of the East Providence Police Department, Officer Raymond Reall of the North Providence Police Department, co-defendant Osvaldo German, and Jennysa Ayala, a friend of defendant who was present at the apartment of defendant on the night when defendant was later arrested. We summarize below the testimony of those witnesses as it relates to the instant appeal.
The State's Case
1. The Testimony of Trooper Marc Alboum
The state began its case with the testimony of Trooper Alboum of the Rhode Island State Police. Trooper Alboum testified that, while he was on patrol in his cruiser on the night of July 26, 2010, he
heard a broadcast on his police radio about a carjacking at gunpoint in the city of Providence, specifically at the intersection of Admiral Street and Hawkins Street. Trooper Alboum stated that the broadcast described the carjacking suspects as " two dark-skinned males * * * wearing white T-shirts," and he added that the broadcast described the car as a " light blue Kia minivan." He further testified that he heard in a later broadcast that the carjacked vehicle had been recovered in a Walgreens parking lot. Trooper Alboum testified that he proceeded to that location; he said that, at the Walgreens, there were law enforcement officers from several police departments all " standing around." In his testimony, Trooper Alboum estimated that there were around fifteen to twenty officers in uniform at the scene.
Next, Trooper Alboum testified that, while he was standing in the Walgreens parking lot, he observed a black Nissan Maxima drive past. Trooper Alboum testified that he could see that the driver of the Nissan Maxima was a woman and that in the car there were two male passengers, both dark-skinned and wearing white T-shirts. Trooper Alboum also testified that the driver of the Nissan Maxima was " staring straight ahead" as she passed the Walgreens parking lot and that her two passengers were " slouching down," while also " looking straight ahead." Trooper Alboum further testified that the behavior of the occupants of that car stood out in contrast to what was transpiring in the other cars passing by, in that the occupants of the latter cars were turning their heads in the direction of what Trooper Alboum testified was a " large police presence" in the parking lot.
Trooper Alboum then testified that, after observing the occupants of the Nissan Maxima, he proceeded to " run an inquiry" on the vehicle's license plate and discovered that the license plate affixed to the Nissan Maxima " came back [registered to] a 2000 silver Toyota." Trooper Alboum stated that " the registration [did not] match the vehicle." It was Trooper Alboum's testimony that, after that discovery, he started his cruiser and began to follow the Nissan Maxima. He further testified that he " clock[ed]" it as traveling at 45 miles per hour in a 25 mile per hour zone. Trooper Alboum stated that the Nissan Maxima proceeded to enter Route 146 and that, as it did so, it entered " right behind [another] vehicle, nearly striking it." Trooper Alboum testified that, as he followed the Nissan Maxima onto Route 146, he activated his lights and siren; he added that the Nissan Maxima nonetheless continued without stopping. Trooper Alboum stated that it was only after another police cruiser passed the Nissan Maxima in the high speed lane, positioned itself in front of the vehicle, and slowed down, that the Nissan Maxima slowed and eventually stopped.
Trooper Alboum then testified that, after exiting his cruiser, he approached the Nissan Maxima and that, as he did so, he could smell " the odor of fresh marijuana" emanating from the back of that vehicle. He further testified that he approached the driver's side of the car and asked all of the occupants to " put their hands up; " Trooper Alboum stated that he made this request in order to " see everyone's hands to make sure they didn't have any weapons in their hands * * * ." He testified that, although all of the occupants initially complied, he observed that Mr. Espinal, the passenger seated behind the driver's seat, was " starting to put his hands down."  It
was Trooper Alboum's testimony that he asked Mr. Espinal to step out of the car, searched him for weapons, and handcuffed him, before finally placing him in the back of the police cruiser.
Trooper Alboum testified that he then returned to the Nissan Maxima and approached the driver's side. It was Trooper Alboum's testimony that, at that point in time, he could detect the odor of burnt marijuana coming from inside the vehicle. He testified that he asked defendant, the driver of the car, for her license and that, when she began to reach toward the floor of the car, he asked her to step out of the car. He said that he made that request because " it's not normal that people reach for their licenses on the floor of the vehicle."
Trooper Alboum further testified that, after defendant stepped out of the car, he " sent her * * * towards the other troopers; " he added that he did not handcuff her himself, because his " set of handcuffs was on Mr. Espinal."  Trooper Alboum next testified that he checked under the floor mat on the driver's side (where defendant had been sitting) and found a " clear plastic baggy with a half a blue pill" inside. He added that Officer Raymond Reall of the North Providence Police Department searched the other passenger, Mr. German, and in the course of that search found a " plastic bag" containing what appeared to be marijuana. It was Trooper Alboum's testimony that, following that discovery, he embarked on a more thorough search of the car with the assistance of another law enforcement officer--namely, Officer Reall, who had accompanied him in a separate cruiser in the pursuit of the Nissan Maxima onto Route 146.
Trooper Alboum stated that, in the course of the more thorough search, he opened the trunk of the Nissan Maxima and immediately observed " two rectangular objects that had a clearish green plastic baggy on it [sic]." In addition, Trooper Alboum noted that the odor of fresh marijuana " increased * * * significant[ly]" once he had opened the trunk. According to Trooper Alboum's testimony, a complete search of the trunk yielded six such " rectangular objects" (which he described as " bales" ) covered in " greenish clear cellophane wrap." Later testimony at trial by one of the state's forensic scientists was to the effect that the bales contained marijuana and that the total weight of the marijuana was approximately thirty kilograms.
Trooper Alboum further testified that, on July 27, 2010 (the morning after the
arrests of defendant, Mr. German, and Mr. Espinal), Mr. German agreed to make a statement, and he was advised of his constitutional rights at that time. The trooper testified that his subsequent discussion with Mr. German lasted approximately twenty to thirty minutes; he added that the discussion was thereafter memorialized in a six-page " formal typed statement" (hereinafter " the unsigned statement" ). Trooper Alboum stated that Mr. German initialed each of the first five pages of the unsigned statement, but did not sign it or check a box indicating that the " above statement was true to the best of [his] knowledge." Trooper Alboum further testified that he (Trooper Alboum) thereafter changed the last line of the unsigned statement and that the resulting version of the statement was read and signed by Mr. German (hereinafter " the signed statement" ). According to Trooper Alboum's testimony, the two statements were substantively identical, with the exception of the last line.
Trooper Alboum first testified concerning the contents of Mr. German's unsigned statement. He stated that, in the course of his conversation with Mr. German about the events leading to defendant's arrest, Mr. German told him that defendant had come and picked up Mr. Espinal and Mr. German around 6 or 7 p.m. on what would be the night of the arrest. Trooper Alboum then testified that Mr. German said that a friend named Felix had called and told Mr. German that he had marijuana and wanted to know if Mr. German could " get rid of it." Trooper Alboum further testified that Mr. German also told him that Felix then said that he had " something for Ellie"  and that Mr. German should " come get it." Trooper Alboum stated that Mr. German then said that defendant, who was in the car with Mr. German and Mr. Espinal, could hear the phone conversation between Mr. German and Felix and that Mr. German subsequently directed defendant to drive to the location where they would meet Felix.
It was Trooper Alboum's further testimony that he asked Mr. German why defendant would be the one to " get rid" of the marijuana and that Mr. German replied: " Because she [(Ms. Mendez)] is the one that sells it." Trooper Alboum stated that Mr. German said that defendant was " fully aware" that there was a large amount of marijuana in her car on the night of her arrest. Finally, Trooper Alboum testified that, when he asked Mr. German whether he had anything to add to his first statement, Mr. German stated: " It was not my weed. It was Elizabeth's weed." Trooper Alboum testified that Mr. German refused to sign anything at that point in time.
Finally, Trooper Alboum testified that, after Mr. German opted not to sign the first statement (the unsigned statement), Trooper Alboum prepared another statement (the signed statement) in which he asked Mr. German the same series of questions, and Mr. German replied with exactly the same answers, with one exception. Trooper Alboum explained that, as he finished preparing the signed statement, he again asked Mr. German whether he had anything to add, and Mr. German replied: " The marijuana was all mine, and I am taking the hit for it all." Trooper Alboum stated that, after the just-quoted assertion by Mr. German as to the marijuana being " all his" was added, Mr. German signed the second statement.
2. The Testimony of Officer Diego Mello
Officer Diego Mello of the East Providence Police Department also testified for the state. He testified that, on the day of defendant's arrest, he was working as the Vice Unit sergeant in the North Main Street area of Providence and that he responded to a BOLO concerning a " blue Kia minivan" that had been reported as having been carjacked by " two Hispanic males with guns." Officer Mello testified that he heard on the police radio that the carjacking occurred in the Hawkins Street area of Providence and that the minivan was last seen heading towards Branch Avenue. He stated that he responded to that area and " [t]ried to figure out the fastest route out of Providence," which, in his opinion, " would be the route that they [the carjackers] would have taken." Officer Mello testified that he determined that the fastest route would be Charles Street, heading outbound towards North Providence; he stated that he proceeded to drive along that route, eventually discovering the blue Kia minivan parked in the Walgreens parking lot. It was his testimony that, after he located the minivan, he " contacted dispatch" with the vehicle's description, and it was confirmed that the vehicle which he had discovered was the carjacked Kia minivan.
Officer Mello further testified that he stayed at the scene and continued to pay attention to the ambient activity; in particular, he said that he could observe the cars that were passing by and that he " looked in every one." He indicated that it was a " sunny summer day" and that he could see the people inside the passing cars. He also testified that he was " able to see which way the drivers of those [passing] cars were looking[.]" Officer Mello added that there was a " heavy police presence" at the Walgreens parking lot; he specified that there were " about 12 police officers, [and] maybe a half dozen police cars [with] their lights on * * *."
Officer Mello next testified that he observed a Nissan Maxima pass by the parking lot and that he could see its occupants. He noted that the passengers were Hispanic males, matching the description in the BOLO that he had heard earlier. It was Officer Mello's testimony that the occupants of the Nissan Maxima acted in a way that " raised a major red flag" for him; he said that, as the Nissan Maxima approached the Walgreens parking lot, in which there was the above-described " heavy police presence," the occupants " were just fixated straight ahead." Officer Mello elaborated on this observation as follows:
" Everyone else was looking in our direction wanting to see what was going on, just like [when] you pass a car accident, everyone looks to see what's going on. In this case every single person in the [Nissan Maxima] was just fixated straight ahead. They acted as though we weren't even there."
Officer Mello proceeded to testify that he observed Trooper Alboum and Officer Reall depart to follow the Nissan Maxima, while he stayed at the scene and participated in a search of the Kia minivan.
3. The Testimony of Officer Raymond Reall
Officer Raymond Reall of the North Providence Police Department also testified for the state. He stated that, on the night of defendant's arrest, he heard a
BOLO concerning a stolen vehicle taken at gunpoint; he added that this information brought him to the Charles Street area in North Providence, where he was joined by Trooper Alboum. Officer Reall further testified that the stolen vehicle was recovered in a Walgreens parking lot and that he was " dispatched" to that location. It was Officer Reall's testimony that, once there, he and Trooper Alboum made " sure there was nobody inside of [the vehicle]." He testified that, as he waited with Trooper Alboum for the arrival of Providence law enforcement, he observed " [q]uite a few" more police officers come to the scene. He stated that " every single car that * * * stop[ped] at the red light [on Charles Street] looked over to see what was going on due to the fact [that] there [were] several police cars and people running around over there." He further testified, however, that he noticed one car whose occupants did the opposite; specifically, he testified as follows:
" There was a vehicle that was stopped at the red light on Charles Street; and I noticed that there was a person sitting in the passenger seat front [of the vehicle] with a white T-shirt, and there was also a Hispanic male in the back with a white T-shirt; and that was the description given from the BOLO from Providence. * * * [T]hey would not look over at the parking lot where the police were."
Officer Reall next testified that, after making that observation, he entered his police cruiser and attempted to catch up to the just-referenced vehicle so that he could stop and question its occupants. His testimony mirrored that of Trooper Alboum as he recounted the details of his pursuit of the Nissan Maxima and his ...