Providence County Superior Court (P1/06-3227AG) Associate Justice Robert D. Krause
For State: Jane M. McSoley Department of Attorney General
For Defendant: George J. West, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
The defendant, Barry Offley, appeals to this Court, seeking to vacate his convictions for the execution-style murder of Jessica Imran and the serious wounding of Julie Lang. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
By July 26, 2006, Alonzo Shelton had been involved in an intermittent seven-year relationship with Brenda Alvarez. Although he listed his sister's apartment in Providence as his official residence, Shelton also lived at Brenda's apartment in Central Falls with her and her three children, Natasha, Carlos, and Tatiana. Shelton developed a paternal relationship with the children and in turn, Brenda became acquainted with several of Shelton's relatives, including his nephew, Barry Offley. According to Brenda, Offley and Shelton had a "pretty tight relationship" and Offley would often spend time with his uncle at her apartment. Indeed, Offley had, for several months, lived in the Alvarez apartment and the Alvarezes considered Offley to be part of the family as well.
During the afternoon of July 26, 2006, Brenda had a telephone conversation with Shelton while she was at work. During that conversation, Shelton complained that "he was bored" and he asked Brenda to bring Offley to the apartment so that they could play video games. Later, at about 8 p.m., while she was running job-related errands, Brenda picked Offley up and dropped him off at her apartment; she then returned to her place of employment in Lincoln. Shelton and Offley spent the evening drinking beer, watching movies, and playing video games. At about 2 a.m., Brenda's sixteen-year-old son, Carlos, joined them. At some point, the pair told Carlos that they were leaving but that they would be returning in twenty minutes. According to Offley, he and Shelton went to a "bootlegger's" to buy more beer. Offley later testified that he ingested two Ecstasy pills before they left to purchase the beer.
Meanwhile, intending to enjoy a night of leisure, Julie Lang dropped her three children off at their father's home. Lang planned to spend the evening with her close friend, Jessica Imran. After meeting at Imran's apartment in Pawtucket, the women dined at a Providence restaurant and eventually returned to the apartment at about 3 a.m. As they relaxed in Imran's apartment, someone knocked on the door. Imran, believing it to be her boyfriend, asked Lang to answer the door.
However, the person on the other side of the door was not Imran's boyfriend, but Shelton, accompanied by Offley. Although Lang and Shelton had been involved previously in a romantic relationship, a serious disagreement had caused that relationship to come to an end. The principal cause of the falling-out was an incident that had occurred several months earlier. Shelton had been a passenger in Lang's car when the Woonsocket Police pulled her over for a broken taillight. At the time of the traffic stop, Shelton was on probation and had cocaine in his possession. According to Lang, Shelton feared that, if he was arrested for possession of a controlled substance, a violation of his probation would result, and that would result in his incarceration. To prevent that from happening, he secretly slid the crack cocaine he was carrying into Lang's purse during the course of the stop. The officer, after discovering both occupants of the vehicle had outstanding warrants, placed Lang and Shelton under arrest. The police subsequently charged Lang with possession of the cocaine and with operating a vehicle while her license was suspended. Lang was incensed by what Shelton had done, and she told him in no uncertain terms that she would not admit to the drug charge to save him. She remained unmoved despite Shelton's pleas that a finding that it was he who had possessed the drugs would result in a violation of his probation and a long period of incarceration for him. That did not end the matter; Shelton continued to press her to "take the charge, " but Lang remained steadfast that at her scheduled court date in early August she would maintain that the cocaine was his and that, unbeknownst to her, he had slipped the drugs into her bag during the course of the traffic stop.
And so, in the early morning hours of July 27, 2006, with Shelton still anxious about his probation being violated, he and Offley meant business when they forced their way into Jessica Imran's Pawtucket apartment. The women demanded that the men leave the apartment. During an ensuing argument, a gunshot rang out. Lang later testified that she heard a shot and turned toward her friend. When she did, she saw Offley point a handgun at Imran. Offley fired a second time; this time, a round struck Imran in the head, killing her instantly. Offley then set his sights on Lang and fired again, but missed. When he attempted to fire another round, the gun jammed, causing live ammunition to spill onto the floor. Shelton then seized the gun from Offley and poured five shots into Lang-two of which struck her in the chest, two in the lower neck, and one behind the left ear. The assailants then fled the apartment. However, unbeknownst to Offley and Shelton, Lang survived. Bleeding heavily, but somehow managing to retain consciousness, Lang was able to dial 9-1-1.
Despite the severity of her injuries, Lang was able to identify herself by name and to provide her date of birth to a responding officer. Through labored breath, she also informed the officer that it was Shelton who had shot her, that her friend, Jessica Imran, also had been shot and that Jessica was lying upstairs. Another responding officer accompanied Lang into an arriving ambulance. When asked by that officer who else was in the apartment when the shooting occurred, she responded with the names of Jessica Imran, Alonzo Shelton, and Barry Offley.
Lang arrived at Rhode Island Hospital sometime around 5 a.m., suffering from a fractured vertebra in her neck, a damaged vertebral artery, and a collapsed left lung. The treating medical staff administered Dilaudid to her. Pawtucket Police Detective Raymond Johnson arrived at the hospital shortly after 6 a.m., at which time hospital staff were still tending to Lang. After learning about Lang's critical condition, and fearing that she might not live, the detective asked her to provide another statement to him. Working around the medical staff, Det. Johnson began a tape-recorded interview. The Interview was interrupted several times, however, by emergency room staff tending to the intermittently conscious patient. Eventually, when asked why Shelton would want to kill her, Lang explained that it would be so that "I can't blame him for drugs. They're not mine * * * [h]e put it in my bag and I'm not taking that charge. I snitched on him in court." As the interview continued, Lang became more confused about what had happened that night; she said that it had been Offley who shot both her and Imran. When asked if she was certain if that was what transpired, she responded that she was not, and that it was Shelton who had shot both of them after he grabbed the gun from Offley. As Lang's condition continued to weaken, Det. Johnson was forced to terminate the interview.
About noon the following day, Pawtucket Police Detectives William Magill and Tina Goncalves arrived at the hospital to find Lang heavily sedated, but in stable condition. After providing the detectives with information about the acrimonious end of her past relationship with Shelton, Lang again recounted the previous night's events. This time, however, Lang said that she clearly remembered that it was Offley who had the gun and that it was he who had killed Imran. Just before she was discharged from the hospital on August 2, 2006, the detectives paid Lang one last visit to show two photo arrays to her. When shown the first array, she immediately identified Offley as Imran's killer.
In the meantime, police continued to search for Offley and Shelton. The United States Marshals eventually tracked the pair down in Florida and arrested them on September 7, 2006. On October 4, 2006, a grand jury returned a ten-count indictment against Shelton and Offley.The state charged them with: (1) first-degree murder of Jessica Imran in violation of G.L. 1956 §§ 11-23-1 and 11-23-2; (2) conspiracy to commit the crime of murder of Jessica Imran, in violation of G.L. 1956 § 11-1-6 and § 11-23-1; (3) assault on Julie Lang with a dangerous weapon in a dwelling with the intent to murder her in violation of G.L. 1956 § 11-5-4; (4) conspiracy to murder Julie Lang in violation of §§ 11-1-6 and 11-23-1; (5) burglary of the dwelling of Jessica Imran in violation of G.L. 1956 § 11-8-1; (6) conspiracy to commit burglary in violation of §§ 11-1-6 and 11-8-1; (7) carrying a pistol without a license in violation of G.L. 1956 § 11-47-8(a); (8) possession of a firearm following a previous conviction for a crime of violence in violation of § 11-47-5; (9) discharge of a firearm during a crime of violence, resulting in the death of Jessica Imran, in violation of § 11-47-3.2(b)(3); and (10) discharge of a firearm while in the commission of a crime, resulting in the injury of Julie Lang, in violation of § 11-47-3.2(b)(2). Before trial, the state, pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure, dismissed the two burglary counts. Offley went to trial before a jury on the remaining counts in Superior Court in the fall of 2007.
In his opening statement, counsel argued that Offley had been nothing more than an innocent bystander to the shooting. He stressed the fact that Offley did not share any motive his uncle may have had to kill either woman. The defense sought to further mitigate any liability by telling the jury that Offley would testify to the effects that alcohol and Ecstasy may have had on his decision-making on the night of the shooting. Specifically, counsel suggested that Offley had been so intoxicated that night that he "wasn't completely with it" and could not have been an active participant to his uncle's crime.
After trial, the jury convicted Offley of the first-degree murder of Imran, conspiracy with his uncle to murder Imran, assault of Lang in a dwelling with intent to murder her, conspiracy to murder Lang, carrying a pistol without a license, discharging a firearm while committing a crime of violence that resulted in Imran's death, and discharging a firearm while committing a crime of violence resulting in Lang's injuries.
On appeal to this Court, defendant raises two arguments. First, he maintains that the trial justice erred when he admitted prior testimony of a witness at Shelton's trial about defendant's level of intoxication on the night of the shooting. Second, he contends that the trial justice erred when he denied his motion for a new trial because the verdict was against the weight of the evidence.
In anticipation of any potential diminished capacity evidence that might be proffered by the defense, the state called Brenda's son, Carlos, to testify about the extent of defendant's drinking on the night of the murder and any effect that his ingestion of alcohol might have had on his ability to function. On direct examination, Carlos testified as follows:
"Q Mr. Alvarez, while you were in the living room area with the defendant, Mr. Offley, and Alonzo Shelton, do you recall if you observed them drinking?
"Q And at what point in time was this?
"A Just during while we were playing video games.
"Q And do you recall what this defendant, Barry Offley, was drinking?
"A I believe it was Natural Ice beer.
"Q Did you observe how many drinks Barry Offley had?
"A I don't really know.
"Q You've seen - Well, let me ask you this. Have you seen people who have been intoxicated before?
"Q And did Mr. Offley exhibit any signs of intoxication to you?
"The Court: Overruled.
"A I wasn't really focusing on that. I guess so. He didn't seem to [sic] much, but I don't know.
"* * *
"Q You indicated Barry Offley was inside of the house and you were playing video games with him. Did you ...