Providence County Superior Court P1/12-2479AG Associate Justice Robert D. Krause
For State: Lauren S. Zurier Department of Attorney General.
For Defendant: Catherine Gibran Office of the Public Defender.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
FRANCIS X. FLAHERTY, ASSOCIATE JUSTICE.
The defendant, Miguel Davis, appeals from a judgment of conviction entered after a jury found him guilty of three offenses: the murder of Dominique Gay, in violation of G.L. 1956 §§ 11-23-1 and 11-23-2; using a firearm while committing a crime of violence resulting in the death of Dominique Gay, in violation of G.L. 1956 § 11-47-3.2; and carrying a pistol without a license, in violation of § 11-47-8(a). The trial justice sentenced the defendant to two consecutive life sentences on counts 1 and 2 and one ten-year sentence on count 5 to be served concurrently with the sentence on the first count. The defendant filed a timely notice of appeal. This case came before the Supreme Court for argument on September 30, 2015. The defendant advances a host of arguments on appeal, including two claims that the trial justice committed error when he instructed the jury, two claims that the trial justice abused his discretion when he admitted prejudicial evidence, and one claim that the trial justice erred when he denied his motion for a new trial. After a careful consideration of the defendant's arguments and a thorough review of the record, we affirm the judgments of conviction.
1 Facts and Travel
On March 20, 2009, Dominique Gay was shot and killed in broad daylight while he was walking with two friends, Dean Robinson and Wilson Andujar. Over three years later, defendant, Miguel Davis, was charged with that murder.
The history of the case is replete with conflict between Gay and Davis over the attention and affection of Crystal Dutra, a young woman who is the mother of Gay's child. When Dutra and Gay broke up, they agreed that each could see other people "as long as it wasn't anybody that [either Dutra or Gay] knew." Soon, Dutra began a relationship with defendant. Dutra testified that, in keeping with her agreement with Gay, she asked Davis whether he knew Gay, going so far as to point out several pictures of Gay in her home; however, each time Davis responded that he did not know Gay.
But at some point after Dutra began dating defendant, Gay told Dutra that he did know Davis. Dutra said that Gay told her that defendant was "one of the younger crowd that they hanged [sic] with." Indeed, Gay was able to describe defendant to her, describing his "long hair, braids and 'Loyalty' [tattooed] on his neck." Dutra rebuffed Gay and told him that he did not know Davis and that he was just jealous that she was dating someone else.
Unfortunately, that did not end the matter. Gay began to confront defendant repeatedly between the summer of 2007 and January 2009, tensions escalating drastically with each encounter. Those incidents included several occasions when Gay challenged defendant to engage in fisticuffs or when defendant was otherwise threatened by Gay. On one occasion, Dutra allowed Gay to spend the night at her house, because he had nowhere else to go. When defendant also needed a place to stay that night, Dutra allowed Gay to stay, while defendant slept in his car outside her apartment. The bad blood continued even after defendant and Dutra ended their relationship and Dutra restarted an intermittent liaison with Gay.
Dutra moved to Boston for almost a year, but when she returned to Providence and resumed her relationship with Gay, she heard about several more incidents between Gay and defendant. Dutra said that Gay's challenges continued into the fall of 2008. She recalled that one day that Gay woke her up after he received a call from Robinson. Gay demanded that she drive him "really fast" to the Domino's Pizza on Broad Street. When they got there, Robinson was holding onto someone and Gay told Dutra to remain in the parking lot while he went inside. Dutra observed as Gay walked to the front of the Domino's and said that "he grabbed [a] kid and * * * lifted the kid in the air by his shirt." She then heard Gay say that he was not there for him, that "his beef was with Miguel." Gay then gave the young man a piece of paper with his phone number and told him to give it to defendant and have him call Gay.
Dutra admitted that she never saw defendant pursuing or looking for Gay and that, during each confrontation, defendant was either running from or avoiding Gay. She said that she understood that Gay was confronting defendant because "it was a respect thing * * * [Gay] said he wanted to fight him."
Another serious incident occurred in early January 2009, when defendant was with his then girlfriend, Lisa. On that night, Lisa, defendant, and defendant's friend, Juan Arciliares, drove to Arciliares's house. After Lisa parked her car, defendant took her keys and her cell phone, and he and Arciliares went into the building, leaving her behind. Suddenly, Lisa heard the windows of her car shatter from a gunshot, although she was unable to determine the direction from which the shots came. Lisa's rear windshield was smashed, there was a hole through the front windshield on the passenger side, and a bullet was lodged in the grille of the car. After the shots were fired, Lisa began screaming to defendant to bring her keys back so that she could leave. The defendant did not come down immediately, but responded through the window of the apartment, "It wasn't for you, it was for me."
Kevin Santiago, a somewhat younger friend who hung out with defendant and his associates, testified that he was in Arciliares's apartment playing video games when the shooting happened. Santiago testified that defendant told them that "Mike Stokes and Dean – and Dominique were shooting at him."
The only eyewitness to Gay's murder who testified at trial was Wilson Andujar.Andujar testified that, after moving away, he moved back to Providence toward the end of 2008. At that time, Andujar reconnected with old friends, but met Gay for the first time about a month after returning to Rhode Island. Andujar and Gay became friends; he said that the pair would see each other about two or three times each week.
Andujar testified that on the day of the murder, March 20, 2009, Gay showed up at his house that morning around 9 or 10 a.m., looking for a way to smoke some marijuana. They decided to go to a store to buy a cigar for that purpose and, on their way, Andujar and Gay decided to call on Robinson to see if he wished to join them. After picking up Robinson, the three friends walked to a gas station, bought a cigar, and then went to a restaurant. After they left the restaurant, the group decided to walk back to Robinson's house.
Andujar explained that they walked side-by-side with Andujar in the middle, Gay to his left, and Robinson to his right. Andujar testified that there was an alley behind a laundromat where a dumpster was located. As they approached the alley, he heard "a gravel noise" and then looked to his left and saw defendant standing beside the dumpster pointing a handgun at them. Almost immediately, Andujar said, "Right there where I looked, I heard the first shot. Right when I went to run, I slipped. That's right there, when I slipped [I] heard a second shot. I kept-I started to run." Andujar also testified, on cross-examination, that he saw a black handgun, but that he did not know whether the weapon was a revolver or what caliber it might have been.
Andujar further testified that the assailant was wearing a "hoodie" that covered part of his head but that the hood was not pulled all the way forward. The gunman also had a bandanna that covered part of his face, from the tip of his nose past his chin, so that the only portion of his face that Andujar could see was his hairline, his forehead, his eyes, and part of his nose. When asked if he was able to recognize the person holding the weapon, Andujar responded that it was Miguel Davis. He said that he recognized Davis because he knew him from 2006-three years prior to the shooting and seven years prior to trial-when they were in school together for "a couple weeks." Andujar identified defendant in the courtroom as the man he had seen with the gun on March 20, 2009; however, when asked at what point he realized that it was Miguel Davis with the gun, Andujar testified that it was not immediate; it was not until later, when "it just * * * clicked in my head who I just saw."
After fleeing from the gunman, Andujar said, he looked over his left shoulder and saw Robinson being chased by another man, whom he eventually identified as Christopher "Ucci" Martinez. Andujar testified that Ucci was not the same person he saw with a gun, that Ucci did not have anything covering his face when he saw him pursuing Robinson, and that he was also wearing "a black hoodie." When he did not hear any more gunshots, Andujar lay down on the ground and called 9-1-1.
Andujar soon came upon Robinson, who was crying, yelling, and saying, "They got him." From where they were standing, Andujar said, he could see Gay's body, lying on the sidewalk near the dumpster, and he began to cry himself.
Andujar and Robinson were brought to the police station to be questioned. Andujar said he was not cooperative and merely told the police "the simple fact that we got shot at, I didn't see nothing." When asked at trial if that was true, Andujar said no, that "I was just going by the so-called street code and I was * * * fearing for my life of what just happened" and that he feared that he "could be retaliated." He testified that he did not discuss the shooting with Robinson at the police station, but that they did discuss it at Gay's funeral. At that time, he said, he told Robinson that he had seen defendant shoot Gay.
Andujar left the state shortly after the shooting, determined, he said, to turn his life around. The next time Andujar saw or heard anything about his friend's murder was more than three years later, in September 2012, when a friend sent a Facebook message to him that said he should look at an accompanying link to a video clip. The video clip was a news report of a "break in the case, " showing defendant in a courtroom being arraigned for the murder of Dominique Gay. Soon after he viewed that video, Andujar was contacted by Robinson. Andujar and Robinson specifically discussed that defendant had been arrested for the murder of Gay.
Andujar then returned to Rhode Island at the request and expense of the Providence police, and he met with police and prosecutors. During that meeting, Andujar disclosed to the police, for the first time, that he had seen Davis shoot Gay. The police showed two photo arrays to Andujar. In the first six-photo array, Andujar identified a photo of Ucci and, in the second, he identified a picture of defendant.
During the trial, the state called Dr. Alexander Chirkov, who performed the autopsy on Dominique Gay. He testified that he found two bullet wounds in Gay's body and that both wounds were fatal. The state also called Providence Bureau of Criminal Information Det. Douglas Allin to testify about forensic evidence that had been found at the scene, including two cartridge casings and two full cartridges that had been found near the dumpster.
Robert A. Hathaway, an expert in firearm and toolmark examination at the Rhode Island State Crime Laboratory, testified about the forensic examination conducted on the spent casings. Hathaway observed that both were 9 mm Luger Winchester cartridge cases. Hathaway testified that it was his expert opinion that both rounds had been fired from the same weapon.
However, after analyzing the two lead projectiles extracted from Gay's body, Hathaway was unable to positively identify them as having been fired from the same weapon. Hathaway was, however, able to conclude, based on the weight and diameter of both projectiles, that the bullets would have been in the ".38 caliber class" of bullets. He further testified that that class would include such weapons as the .38 special, .38 S&W, 9 mm Luger, and .357 Magnum.
Access to Guns
At trial, the state was unable to produce the murder weapon or to directly link the forensic evidence to defendant, but it did introduce extensive evidence of defendant's access to guns. The state's primary witness on that front was Santiago. Santiago was interviewed by Providence police one week after Gay was murdered and at a time when Santiago had a pending robbery charge. During that interview, Santiago gave the police information about defendant's access to firearms. At trial, Santiago testified that defendant told him and some friends that he was romantically involved with Lisa and that, while Lisa's grandfather was in Florida, the pair had used the grandfather's Johnston home for a liaison.
Santiago said that, according to defendant, while Lisa was in the bathroom, he rummaged through the grandfather's bedroom and discovered a 9 mm handgun, two shotguns, a 20-gauge and a 12-gauge, as well as a .22-caliber rifle under the bed. Santiago said defendant had brought those guns to Arciliares's garage. He described the handgun as being chrome with a black handle, and he said defendant kept it on his person at all times. He also said that defendant stashed the other weapons at Arciliares's house and that they often fired them into a punching bag in Arciliares's garage. Santiago also claimed that defendant admitted to him on several occasions that it was he who had killed Dominique Gay. The defendant, he said, claimed that he was "hiding behind the dumpster until he seen Dominique Gay come out [sic] the house, that's when he started shooting at Dominique Gay."
Lisa also testified about defendant's access to her grandfather's guns. She said that her grandfather was a retired correctional officer, that he was a hunter, and that she was aware that he kept firearms in his house. She said that her grandparents had given her a key to their house and asked her to check on it while they were in Florida. She testified that she met defendant in October of 2008 and, for a few months, she saw him almost every day. During that time, Lisa said, she and defendant frequently drove around or hung out with his friends, during which time she recalled hearing conversations about guns, including descriptions such as a "nina" and numbers such as "38 something."
Lisa testified that she brought defendant to her grandparents' house on two occasions in November. On both of those occasions, Lisa stated that she and defendant were in the house for about an hour, that they had engaged in sexual intercourse, and that Lisa briefly went to the bathroom before they left. She said that, on a few occasions, defendant had borrowed her car for several hours and that the key to her grandparents' house was on her key ring. Yet, despite seeing defendant every day from October to January, she testified that she never saw him holding any firearm. Lisa testified that she asked defendant if he took her grandfather's gun and he responded, jokingly, saying, "Yeah, I took your grandfather's gun. Why would I take it?"
The state also offered the testimony of another witness, Louise,  Lisa's aunt. Louise testified that she received a call from her father, Lisa's grandfather, asking that she check on the condition of his home. She said that her father "was afraid something might have happened. There may have been a robbery or something could've been disturbed in some way." When she and her husband visited the house, she called her father to tell him they had arrived. He asked her if anything looked disturbed, and she said everything looked normal. Her father then asked them to look for a handgun that he kept in the bedroom between the mattress and the box spring. When they lifted the mattress, there was no handgun; the only thing they noticed was a darkened, soiled spot on the sheet. After that, Louise and her husband removed multiple weapons from the house. She had no idea how many guns were removed, or even whether the weapons removed were handguns, because all the weapons were in cases.
After the close of all evidence, the jury returned a verdict of guilty on the counts submitted to it.
2 Issues on Appeal
Before this Court, defendant argues that his convictions should be vacated for several reasons. First, defendant argues that the trial justice erred in not instructing the jury about: (1) prejudicial opening statements that detailed the expected testimony of Dean Robinson; and (2) a specific limiting instruction on the unreliability of eyewitness testimony.
Second, defendant argues that the trial justice abused his discretion when he allowed three witnesses to testify about firearms that allegedly had been stolen by defendant from the home of his girlfriend's grandparents.
Third, defendant contends that the trial justice erred in permitting the prosecution to display an "in-life" family portrait of the victim, his daughter, and his daughter's mother because the state's sole purpose for admitting it was to invoke the jurors' sympathy for the victim.
Fourth, defendant claims that the trial justice erred when he did not grant defendant's motion for a new trial.
A Jury Instructions
i The Opening Statement
During the state's forty-minute opening statement, the prosecutor informed the jury about the testimony that the state expected to present during the course of the trial, explaining that both Andujar, and particularly Robinson, would testify to the events of the day. The prosecutor told the jury that:
"The case will be proved directly. It's going to be proved by two men, Wilson Andujar and Dean Robinson, who will tell you directly what they saw. They saw him. They'll both tell you that they knew him, that they recognized him * * *. And both will tell you that according to Dean Robinson, it's as soon as he saw him he knew it was him."
The state repeatedly indicated that both Andujar and Robinson would say that they were acquainted with defendant and that they knew he was the shooter, but that neither had identified defendant to the police right after the crime was committed. The prosecutor explained to the jury that Andujar immediately left the state out of fear. He then said that Robinson would testify that he did not tell the police right away who the shooter was, but that he did tell Crystal Dutra "that he had seen and knew that Miguel Davis was the shooter of Dominique Gay." Furthermore, the state claimed that Robinson would say that he did not want to tell the police whom he saw "because he wanted to take care of it himself. He wanted to do to Miguel Davis what Miguel Davis had done to Dominique Gay."
The prosecutor also said that Robinson, for his own reasons, had declined to cooperate with them, but "now finally * * * [would] tell the police and did tell the police what he had seen happen to his dearest friend, this man shooting and killing him." The state ended its lengthy soliloquy by telling the jury the following:
"Finally, you know from what you were told before you were chosen that for lack of bail this Defendant is at the ACI. You'll hear that. So is Dean Robinson. The deal he cut about his robbery landed him two years in jail, that he's now serving. He's expected to tell you, when he comes before you, that his path in November of 2012 passed with his old friend Miguel Davis about his – who he's going to give you testimony, and Miguel Davis said to him, 'Stop talking to the police.'"
However, on the very day he was expected to testify, counsel for Robinson informed the court that he had advised his client to invoke his Fifth Amendment right against self-incrimination and had further advised him not to testify at defendant's trial. The trial justice had Robinson confirm, on the record and outside the presence of the jury, that he had been advised against testifying and would invoke his privilege against self-incrimination. The defendant did not move for a mistrial.
The defendant argues that the trial justice committed reversible error when he failed to accede to his request to impart a limiting instruction to the jury to remedy the prosecutor's lengthy opening statements about expected testimony from Dean Robinson, testimony the jury never heard because the witness invoked his Fifth Amendment right against self-incrimination. The defendant concedes that the prosecutor did not act in bad faith when he described the expected testimony. However, he urges that he nonetheless was prejudiced by the detailed and lengthy nature of the prosecutor's comments, including an alleged threat made by defendant to Robinson while both of them were incarcerated. The state responds that defendant waived any right to review of this issue because he failed to renew his objection at the conclusion of the trial justice's charge to the jury. The state further argues that the trial court was not required to give any curative instruction because the prosecutor's opening statements did not cause incurable prejudice to defendant. Indeed, the state argues that any prejudice resulting from the statement and the unfulfilled promises that it contained actually harmed the state.
1 Standard of Review
"[T]he standard of review for jury instructions is well settled. A charge 'need only adequately cover the law.'" State v. Long, 61 A.3d 439, 445 (R.I. 2013) (quoting State v. Cardona, 969 A.2d 667, 674 (R.I. 2009)). "This Court examines 'the instructions in their entirety to ascertain the manner in which a jury of ordinary intelligent lay people would have understood them, * * * and * * * review[s the] challenged portions * * * in the context in which they were rendered.'" Id. (quoting Cardona, 969 A.2d at 674). "A 'trial justice is bound to ensure that the jury charge sufficiently addresses the requested instructions and correctly states the applicable law.'" Id. (quoting State v. Sivo, 925 A.2d 901, 913 (R.I. 2007)). "[A]n erroneous charge warrants reversal only if it can be shown that the jury 'could have been misled' to the resultant prejudice of the complaining party." Id. (quoting Sivo, 925 A.2d at 913).
As a threshold issue, this Court must consider whether defendant adequately preserved the issues on jury instructions for appeal. The state maintains that this issue was not preserved because defense counsel failed to renew his objection ...