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State v. Barros

Supreme Court of Rhode Island

October 31, 2016

Terrel Barros.

         Providence County Superior Court (P1/13-591AG) Associate Justice Robert D. Krause

          For State: Virginia M. McGinn Department of Attorney General

          For Defendant: Joseph J. Voccola, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



         The defendant, Terrel Barros, appeals from judgments of conviction after a jury found him guilty of first-degree murder (count 1), using a firearm during a violent crime (count 2), possessing a firearm after having previously been convicted of a violent crime (count 3), carrying a handgun without a license (count 6), felony assault (count 7), and discharging a firearm during a violent crime (count 8). The defendant received consecutive life sentences for first-degree murder and using a firearm during a violent crime; three consecutive ten-year terms for possessing a firearm after having previously been convicted of a violent crime, carrying a handgun without a license, and discharging a firearm during a violent crime; and a twenty-year concurrent term for the felony assault. This case came before the Supreme Court for argument on September 28, 2016. On appeal, the defendant argues that the trial justice improperly excluded the testimony of Stephen Bodden on the grounds that Bodden effectively invoked his Fifth Amendment privilege against self-incrimination. The defendant argues that the exclusion of Bodden's testimony was reversible error and, therefore, the defendant is entitled to a new trial at which Bodden would be compelled to testify in front of the jury. After careful consideration of the defendant's arguments and a thorough review of the record, we affirm the judgment of conviction.


         Facts and Travel

         Over the course of fifteen to twenty years, Jamal Cruz and Rokiem Henley had grown so close that they considered themselves to be like cousins. On the evening of August 25, 2012, Cruz and Henley, along with some friends, went to the Monet Lounge in Providence to celebrate another friend's birthday. The two men and their friends partied in the club's VIP area, drinking and socializing without incident. At 2 a.m., the club's lights came on to indicate that it was closing time. As Cruz and Henley were leaving the club, there was a "little verbal disagreement" between Cruz and two men-Stephen Bodden and defendant, Terrel Barros-but apparently no physical altercation occurred. With the verbal clash apparently behind them, Cruz and Henley went to the parking lot to retrieve Cruz's car. Cruz went ahead, first to the valet shack, and then to his car. After ten to fifteen minutes, Henley walked to Cruz's car, where he saw Bodden approach Cruz and heard him say, "What's up with that shit that happened in the club?" As Henley continued toward Cruz and Bodden, he heard two gunshots, and he was immediately aware that he had been hit in the leg. Cruz was less fortunate; he had been shot in the stomach, an injury that caused his death shortly thereafter.

         Patrolmen Daniel Sirignano and Michael Pattie of the Providence Police Department were working a police detail at the Monet Lounge on the night of the shooting. The officers heard the gunshots and instantly reacted. Officer Sirignano was on the scene within seconds; he saw Bodden and Barros get into a Chevrolet Impala and then noticed that Bodden had a firearm that he was trying to conceal. Officer Sirignano detained Bodden and Barros at gunpoint. Officer Pattie arrived moments later. Working together, the officers arrested and handcuffed Bodden and Barros. Ultimately, the pair was charged with multiple crimes related to the shooting.[1]

         Over the course of an eight-day jury trial, the state presented evidence that Cruz had identified defendant as the shooter before he succumbed to his wounds. The state also presented an eyewitness who testified that he saw defendant with a gun in his hand. The defendant, however, argued that Bodden was the shooter. Indeed, Officer Pattie testified that, when Bodden was arrested, he said, "It's me. It's all me. It's all mine." Additionally, it was argued at trial that Bodden's DNA was found on the gun and defendant's was not.[2]

         At trial, defendant expressed his intention to call Bodden as a witness. The defendant's attorney informed the trial justice that he believed Bodden would testify despite the charges that were pending against him relating to the same incident. However, when the prospect of Bodden's testimony was first addressed at an in-chambers conference, Bodden's attorney, a member of the Public Defender's Office, indicated that his client would invoke his Fifth Amendment privilege against self-incrimination should he be called as a witness. Accordingly, the trial justice ordered that a voir dire examination be conducted to determine if Bodden would, in fact, invoke his Fifth Amendment privilege and decline to testify.

         At the voir dire examination, Bodden's attorney was unavailable. In accordance with the trial justice's request, another attorney from the Public Defender's Office was summoned and represented Bodden "on behalf of [the first attorney]." In light of the earlier indication that Bodden would decline to testify, it was no small surprise that, after he was sworn, he began answering questions. Bodden testified on defendant's direct examination that defendant did not hand him a gun the night of the shooting. On cross-examination, Bodden further stated that he did not have a gun with him when he arrived at the Monet Lounge that evening. The trial justice then briefly interrupted the proceeding in an effort to confirm that the witness did intend to testify. Surprised by Bodden's statements, the prosecutor requested discovery, arguing that the state had not been provided with "any information with respect to what Mr. Bodden would testify to." Likewise, defense counsel requested time to speak to Bodden.[3] At that point, the proceedings recessed.

         When the matter resumed, a senior member of the Public Defender's Office stepped in to assist in Bodden's representation. That attorney informed the court in no uncertain terms that Bodden would indeed invoke his privilege not to testify. When Bodden returned to the stand, he did just that and he did not answer any more questions. The trial justice then excused Bodden, ruling that his testimony "will not be had in front of the jury."




         Issue on Appeal

         Before this Court, defendant raises but a single argument. He maintains that the trial justice erred when he ruled that Bodden properly had invoked his Fifth Amendment right against self-incrimination. The defendant insists that Bodden, because he had answered some questions, had waived his Fifth Amendment privilege and that he should have been compelled to testify in front of the jury. It is important to note that, although defendant has framed the issue as one of constitutional dimension, the constitutional right in question resides in Bodden, and defendant does not have standing to contest Bodden's Fifth Amendment rights. See United States Department of Labor v. Triplett, 494 U.S. 715, 720 (1990) ("Ordinarily, of course, a litigant 'must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.' * * * This is generally so even when the very same allegedly illegal act that affects the litigant also affects a third party."); State v. Ducharme, 601 A.2d 937, 940 (R.I. 1991) (noting that the defendant did not have standing to object to a violation of a co-defendant's Fifth Amendment rights, even though that violation may have been instrumental in producing evidence that ultimately was prejudicial to the defendant); see also United States v. Seifert, 648 F.2d 557, 560 (9th Cir. 1980) (a nonparty witness's Fifth Amendment "privilege arises only when he asserts it as to a question put to him, and it is for the court to say whether he is entitled to the privilege"). Thus, in our opinion, the issue before the Court is not constitutional in nature, but evidentiary. Simply put, we must determine if the trial justice should have compelled Bodden's testimony, thereby allowing it into evidence.


         Standard of Review

         "It is well established that decisions concerning the admissibility of evidence are 'within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of that discretion is apparent.'" State v. Gaspar, 982 A.2d 140, 147 (R.I. 2009) (quoting State v. Mohapatra, 880 A.2d 802, 805 (R.I. 2005)). "[This] abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524, 527 (R.I. 2002) (quoting Votolato v. Merandi, 747 A.2d 455, 460 (R.I. 2000)). "The trial justice will not have abused his or her discretion as long as some ...

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