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State v. Moore

Supreme Court of Rhode Island

February 27, 2017

State
v.
Anthony Moore.

         Providence County Superior Court (P1/14-891BG) Associate Justice Robert D. Krause

          For State: Jane M. McSoley Department of Attorney General

          For Defendant: Robert B. Mann, Esq.

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

          OPINION

          Gilbert V. Indeglia Associate Justice

         The defendant, Anthony Moore (Moore or defendant), appeals from a judgment of conviction on three counts: first-degree murder; conspiracy to commit murder; and using a firearm when committing a crime of violence. On appeal, Moore argues that the trial justice erred in: (1) denying his motion for a new trial; (2) refusing to give an "empty chair" jury instruction; and (3) making certain evidentiary rulings. For the reasons outlined below, we affirm the judgment of the Superior Court.

         I

         Facts and Travel

         Before we summarize the relevant testimony adduced at trial, we briefly outline the events that led to the abovementioned charges.

         This story started and ended because of a gun. On or about January 31, 2014, [1] Seydina Limamou Ndoye wanted a gun for self-protection, so he sought the help of his friend, Alain Bedame. Bedame suggested contacting Johnathan and James Gomez. Ultimately, Bedame and Ndoye were swindled by the Gomez brothers, who stole Bedame's cell phone and $240. On February 4 Ashner Alexis (nicknamed "Pookie"), [2] a friend of Ndoye, stepped in to help get a gun-although now for the purpose of avenging the Gomez brothers' scam. Pookie took Ndoye and Bedame to defendant's home in Woonsocket. Also there was seventeen-year-old Robert Winston. After consulting with Moore, and at his direction, Bedame and Winston set out to pick up a shotgun. With a gun in tow, Bedame, Ndoye, Winston, and Pookie then left to inflict vengeance on the Gomez brothers. They headed to the Gomez household, where Winston knocked on the kitchen window. When someone approached, Pookie fired a shot through the same window. Someone was hit, but it was not their intended targets. Instead, a fatal shot struck an innocent nonparticipant, George Holland, who was visiting his girlfriend, Ebony Gomez, the sister of Johnathan and James.

         As a result of these events, defendant was charged with first-degree murder (G.L. 1956 § 11-23-1), conspiracy to commit murder (G.L. 1956 § 11-1-6), and using a firearm when committing a crime of violence (G.L. 1956 § 11-47-3.2). A jury trial was held on these counts from October 6 to October 16. At the close of trial, on October 16, the jury returned a verdict finding defendant guilty on each count. On November 19, defendant moved for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure. The trial justice denied the motion on December 4. On February 12, 2015, defendant received two consecutive life sentences (for murder and discharging a firearm) and ten years for conspiracy, also to be served consecutively. The defendant timely appealed.

         Miguel Gomez, father of Johnathan, James, and Ebony, testified first.[3] He stated that on February 4, he lived at 145 Colfax Street in Providence with his girlfriend and his three children. On the evening of February 4, Miguel saw "a real bright flash and [heard] a bang." He found Holland lying on "the ground" between the dining room and the living room.

         Johnathan Gomez testified next. At the time of trial, Johnathan was nineteen years old. Johnathan indicated that he was familiar with Bedame, whom he knew by his nickname, "West Alan." He noted that Bedame messaged him on Facebook looking for James because, a few days prior to February 4, he stole "some money and a phone" from Bedame. Johnathan stated that the phone and money were stolen during a meeting between Johnathan, James, Bedame, and Ndoye. Johnathan stated that James never intended to provide a gun; rather, he sought to merely steal the phone and cash.

         After the fatal event on February 4, Johnathan indicated that he spoke with the police later in the evening and conveyed his belief that Bedame was involved in Holland's shooting. When asked how he knew Bedame was responsible, he replied, "Some kid hit me up [on Facebook], said this n***a is looking for your brother. * * * When we catch you, I guess, kill him." He explained that "they" planned to shoot his brother, James.

         Ebony Gomez testified next. She indicated that she knew Bedame from when he visited her home a few days before February 4 looking for James and Johnathan. She also indicated that others joined Bedame; however, she could see only one of these people, whom she described as "kind of skinnier and he had glasses." She described Bedame and the skinny kid's demeanor as "[k]ind of angry, aggressive."

         Ndoye testified next. He stated that near the end of January, he became interested in buying a gun. He shared this interest with Bedame, his "associate" and former high-school classmate, who, in turn, contacted the Gomez brothers. He recalled that, around January 27 or 28, he and Bedame met up with the Gomez brothers to purchase a gun.[4] During the meeting, he gave James $240 and Bedame's cell phone, but "[James] exited the vehicle with Johnathan and they never came back."

         Ndoye noted that on the day that James and Johnathan stole their possessions, he, Bedame, and two of Bedame's friends visited the Gomez household, but Johnathan and James were not home. Ndoye recalled that, when he and Bedame located Johnathan at some later point, Johnathan claimed that the money had been stolen. He indicated that "hostility and tension" permeated their conversation. He also explained that, notwithstanding Johnathan's refusal to turn over the money or phone, they gave him a ride a couple of blocks down the road.

         Ndoye then detailed the events of February 4. He explained that he and Bedame wanted to visit the Gomez home that night to "have an altercation with them, a fight, or a shoot-out." Ndoye testified that he and Bedame sought to obtain a gun from Pookie, an associate of Ndoye's through school, who likewise resented Johnathan and James because they had allegedly stolen scrap metal from him a few months earlier.

         Bedame and Ndoye then met up with Pookie, who directed them to go to Woonsocket to get a shotgun from one of Pookie's "boys, " so all three traveled to a house on Rathbun Street in Woonsocket. Upon their arrival, a young man, whom Ndoye later identified as Winston, brought them upstairs. At the time, there was a party in progress at the house with twenty to twenty-five guests.

         Shortly after arriving, Ndoye spoke with defendant for about five to ten minutes. He recalled that Pookie told Moore that they wanted a gun. Ndoye recounted that in response to Pookie's request, Moore replied, "You come to the right place." Winston and Bedame then set out to get the gun and returned about five to ten minutes later with a shotgun wrapped in a Cape Verdean flag. He believed that it was a shotgun "[b]ecause they were hoisting it in a cautious manner and it was really long, " and he could see the shotgun's brown "wooden butt." Ndoye stated that "[a]fter the gun was put on the table [he] did see red bullets, and it had a clear tip with [approximately eight small] pellets inside of it." He stated that Moore handed the shotgun and shells to Pookie, who placed it "inside his waistband, where his hip was."

         Ndoye recounted that he, Pookie, Winston, and Bedame then left defendant's house. Moore, however, stayed back. The group traveled to Pookie's girlfriend's house, where Pookie and Winston changed clothes. From there, they drove to the Gomez home, where they planned "[t]o commit a shooting." They parked, and Pookie and Winston left the car while Ndoye and Bedame stayed back and waited. Ndoye saw Pookie "retrieve a long * * * object from the vehicle." He stated that Pookie and Winston "disappeared into the darkness" for about ten minutes. Ndoye recalled hearing a loud blast; and, shortly after, Pookie and Winston ran down the street and jumped into the car. Ndoye noted that Pookie was "ecstatic, " exclaiming, "I got someone." Pookie told Ndoye that Winston knocked on the window and Pookie fired a shot when someone approached. After the shooting, all four then returned to Moore's party where, upon updating guests on what had transpired, Pookie received praise and congratulations. Ndoye also recalled that Moore shook hands with Pookie and Winston.

         Ndoye confirmed that he pleaded guilty on July 10 to second-degree murder, conspiracy to commit murder, and discharge of a firearm. He stated that he received a ten-year sentence to be served at the Adult Correctional Institutions (ACI) for conspiracy to commit murder; however, he had not yet been sentenced for second-degree murder. On the count of discharge of a firearm, Ndoye received a twenty-year suspended sentence, with probation, consecutive to his sentences on the other counts. Ndoye also indicated that he signed a cooperation agreement with the Rhode Island Office of the Attorney General, in which he agreed to testify honestly and exhaustively with respect to the events of February 4.[5]

         On cross-examination, Ndoye described Moore as the leader of "SMG, "[6] which he described as "a group of young men that get together and commit legal acts." He justified his conclusion, stating, "[the younger males] would salute [Moore] and they followed his instructions. And the aura that certain individuals give off can lead you to suspect certain things." He recalled that about four people saluted Moore on the evening of February 4.

         Bedame testified next. He stated that he knew Ndoye from parties and that the two primarily chatted on Facebook. He recalled that on January 31, he and Ndoye met James and Johnathan "[b]ecause they wanted to show [Ndoye] a gun." When they met, Bedame understood that they needed to drive somewhere to pick up the gun, because James and Johnathan did not bring it to their meeting. When they arrived at the new location, Johnathan asked to use Bedame's phone because he purportedly needed to call "his uncle" to get the gun. He recalled that he gave Johnathan his phone and its passcode, and Ndoye gave James $240. Although Bedame believed that Johnathan and James were to get the gun from their "uncle" and return to the car, they never returned. In the days following January 31, Bedame informed Johnathan through Facebook that he knew that they had the money and phone, which he verified with a Facebook picture of James holding the phone.

         Bedame testified that a meeting with Pookie occurred on February 4 to obtain a gun. Bedame and Ndoye met Pookie, and the group traveled to Woonsocket to get a shotgun. They arrived at Moore's apartment in Woonsocket, where he was hosting a party, at which Bedame suggested that more than ten people were present.

         In Woonsocket, Moore asked Bedame if he could give "his brother" a ride and Bedame then drove the "young kid" (later identified as Winston) to a "house complex to the alleyway."[7]Winston entered one of the apartments in the complex and returned to the car with a black bag, which he put in the trunk. Bedame stated that, when he returned to Moore's apartment, Winston removed the item from the trunk. Bedame saw two shotguns and recalled that Ndoye played with one while Winston handled the other. He also observed "one [red] shotgun bullet" on the kitchen table.

         Bedame testified that Winston addressed Moore "as a leader of his group." He stated that Winston was standing "like a general talking to a soldier." He also confirmed that Winston had his hands in front of him, with his back straight, and while in that position, Moore directed, "This is what I prepared you for." Bedame recalled that Winston replied, "Yes" or "Yes sir." He recalled Moore telling Pookie, "If [Winston] didn't do what I told him to do, to blow his f'ing head off."

         Pookie told Bedame and Ndoye to get in the car. Joined by Pookie and Winston, they drove to Providence. Bedame confirmed that he observed a gun in Pookie's pants that resembled the short shotgun he saw in Moore's house. From Woonsocket, they stopped for Pookie and Winston to change clothes. Everyone in the car then agreed to drive to the Gomez household, although Bedame was hesitant in carrying out their plans. When they arrived, Pookie and Winston exited the car and proceeded down the street while Bedame and Ndoye stayed back. Bedame ...


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