County Superior Court (P1/13-591AG) Associate Justice Robert
State: Virginia M. McGinn Department of Attorney General
Defendant: Joseph J. Voccola, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
FRANCIS X. FLAHERTY ASSOCIATE JUSTICE
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.
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.
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.
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.
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.
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. At that point, the proceedings recessed.
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."
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.
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 ...