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State v. Nichols

Supreme Court of Rhode Island

March 24, 2017

Nigel Nichols.

         Superior Court Providence County, P1/13-2586AG Robert D. Krause Associate Justice

          For State: Aaron L. Weisman Department of Attorney General

          For Defendant: Michael S. Pezzulo, Esq.

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


          Paul A. Suttell, Chief Justice

         On December 6, 2009, David Thomas, on leave from the Army, and Domingo Ortiz, both of whom were twenty-two years old, were mercilessly gunned down and killed in front of the Garrahy Judicial Complex in Providence (Garrahy Complex) in a senseless act of depravity. A third victim, then eighteen-year-old Dwayne Thomas, was shot seven times but survived with permanent injuries.[1] The defendant, Nigel Nichols, was ultimately arrested, charged, and convicted of these inexplicable crimes. He now appeals from the Superior Court judgment of conviction of two counts of first-degree murder, one count of felony assault, and three counts of discharging a firearm during a crime of violence. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


         Facts and Procedural History

         On December 5, 2009, David, Dwayne, and Ortiz planned for a night of "having a good time[, ] * * * [d]ancing" and "having fun" at Club Ultra in downtown Providence. On this particular weekend, David was visiting home from his military base at Fort Drum, New York; it was Dwayne's first time attending a nightclub.

         In the early morning hours of December 6, 2009, after an incident-free evening of "dancing, meeting new friends and just having a good time, " the club closed, and the trio proceeded directly to a parking lot to procure David's car and return home to Boston. In the car, David drove, Dwayne sat beside him in the passenger seat, and Ortiz sat behind Dwayne in the rear passenger seat. After exiting the parking lot, David's sedan continued onto Dorrance Street, in the direction of Interstate 95 North's entrance ramp, towards Boston. At the corner of Clifford and Dorrance Streets-in front of the Garrahy Complex-the vehicle came to a stop at a red light.

         Dwayne testified that, while "waiting for the light to turn green, " he observed David "texting one of his friends" and "the next thing [he] kn[e]w, all [he] hear[d] [was], 'What the F[uck] you looking at?''' Attempting to "see what was going on, " Dwayne arose to a fusillade of gunfire. He heard his brother "moaning * * * because he [was] in so much pain" and then Dwayne "blacked out." Dwayne further testified that when he regained consciousness he had to muster "all [his] strength" to open the passenger door, exit the vehicle, and yell to bystanders that his brother "got shot * * * [and] needs help, " before collapsing on the ground. Twenty-two .40-caliber shell casings were subsequently recovered from the crime scene, all of which were fired from a semiautomatic weapon.

         Devon Boswell, who considered defendant to be his "best friend" and "brother, " testified that on December 5, 2009, he, defendant, Kevin Innocent, and Kerron Phillip left Boston and traveled to Providence to attend a nightclub. According to Boswell's testimony, both he and defendant left their homes with a firearm that night: Boswell carried a .45-caliber Taurus 911 and defendant a .40-caliber Glock 23 with a fifteen-round magazine as well as an extended magazine, capable of holding thirty rounds of ammunition, which they stowed behind the radio in Boswell's vehicle.

         Boswell said they arrived at Level 2 nightclub in Providence before midnight. Boswell and defendant left their firearms in the vehicle before entering the club. According to Boswell, they socialized in the club, hung out, consumed "a few drinks, " and met some friends with whom he and defendant had attended high school. Boswell testified that at some point during the evening he said to defendant, "Snag is crazier than you, " referring to a March 2009 incident in Boston in which a Keron "Snag" Pierre shot and killed "[t]wo girls [and] one boy, " all of whom were under the age of twenty-one. This comment caused defendant to become very upset; he responded "Snag is a bitch. He kills women and children." According to Boswell, defendant was furious and "looking to fight somebody right away." Boswell stayed close to him to make sure "he didn't do anything or fight anybody."

         Approximately forty or forty-five minutes later, the club closed. As defendant and his friends were descending the stairs to leave, they became involved in an altercation with another club patron. Boswell testified that defendant "started swinging at the guy, " and then the entire group "started to beat up on" him for about fifteen to twenty seconds until security pushed them down the stairs. Eventually, the group returned to Boswell's vehicle and proceeded to drive home to Boston.

         Shortly thereafter, while driving in Providence traffic, Boswell's car was sideswiped by an SUV. According to Boswell's testimony, the SUV attempted to leave the scene, so Boswell drove up and pulled in front of the SUV to secure it. Boswell said that he started fighting with the driver of the SUV, and defendant jumped on top of the SUV and kicked in the windshield. After some time, Boswell, defendant, and the rest of the party returned to Boswell's vehicle and continued to drive to Boston.

         Boswell testified that, before they reached Interstate 95 North, defendant received a call and directed Boswell to stop, prompting Boswell to pull over in front of the Garrahy Complex. There, two other vehicles arrived occupied by the acquaintances who had met Boswell and defendant earlier at Level 2. Shortly thereafter, another vehicle pulled up, driven by Kevin Innocent's girlfriend, Rachel Regis. Boswell testified that defendant was visibly upset when speaking to one of his friends on the sidewalk. Boswell further testified that defendant went into Boswell's car to retrieve his firearm. Boswell testified that he "[saw] [defendant] * * * [p]ull the radio out, le[ave] the radio hanging, [and] * * * grab[ ] his gun, " and "[take] the 15-round clip out and * * * grab[ ] the extended magazine and put * * * the magazine in the gun."

         A vehicle then pulled in front of the Garrahy Complex and stopped at a red light. Boswell testified that the vehicle was a four-door sedan with three male occupants, all of whom appeared to be between the ages of eighteen and twenty-five. According to Boswell, defendant then said, "[w]hat the fuck are you looking at?" as he stared at the vehicle and opened fire.

         Boswell testified that, after firing several shots, defendant "got into [his] car" and everyone that had congregated in front of the Garrahy Complex entered their vehicles and left. On their way back to Boston, according to Boswell, defendant "screamed out, 'Body number 8, left three of them slumped.'"

          Providence Police Sgt. Robert Yekelchik, who at the time was a detective assigned to the BCI division, was patrolling the area of Providence in the early morning hours of December 6, 2009. At approximately 2:30 a.m., Sgt. Yekelchik responded to a call indicating that there had been a shooting outside of the Garrahy Complex. Upon arrival, Sgt. Yekelchik saw a sedan with two male victims inside. He testified that the victims had apparently been shot and appeared to be deceased. Thereafter, the sergeant secured the scene and collected the spent shell casings. Sergeant Yekelchik testified that all of the shell casings "start[ed] from the passenger side of the vehicle and they appeared to be ejecting towards the front of the vehicle"-indicating that the shooter was on the passenger side of the vehicle because most semiautomatic weapons eject to the right when fired. In total, Sgt. Yekelchik collected twenty-two casings, all of which were .40 caliber. The sergeant subsequently submitted the shell casings to the Rhode Island State Crime Lab (crime lab) for analysis. At trial, Sgt. Yekelchik testified that the shell casings were indicative of being from a semiautomatic firearm and that they also had a unique rectangular mark on them.

         Neil Clapperton, a criminalist employed by the crime lab, testified that the crime lab received twenty-two shell casings and thirteen projectiles from the Providence police in December 2009. In addition, Clapperton testified that he also received a .40-caliber extended, high-capacity magazine from the Providence police department for analysis. According to Clapperton, the extended magazine is capable of holding thirty cartridges and was specifically designed for .40-caliber ammunition, but was also capable of holding 9-millimeter ammunition. The criminalist's goal was to determine whether the extended magazine fit a Glock pistol and to analyze the markings the magazine left on the ammunition to determine whether the extended magazine created the rectangular marks on the cartridges. Clapperton determined that the extended magazine fit a Glock firearm "well, " but he stated that he could not conclusively determine that the shell casings found at the crime scene had once been housed in that particular magazine.

         Providence Police Det. Angelo A'Vant was assigned to investigate this case in October 2011. He testified as to the difficulties he had in locating several key witnesses in this case. Nonetheless, Det. A'Vant testified that he traveled to Boston to elicit testimony from Kevin Innocent and his girlfriend, Rachel Regis. According to Det. A'Vant, Regis stated that she saw defendant with a gun in his hand on the night of the shooting.[2] Detective A'Vant testified that Regis then "pointed to [his] firearm and she said, [i]t was a lot bigger than the one [Det. A'Vant] ha[d] on [his] side, " and she continued pointing to the hand grip of the firearm and specifically indicated, using her fingers, that that portion "was a lot larger."

         On February 18, 2015, a jury convicted defendant of two counts of first-degree murder, one count of assault with a dangerous weapon, and three counts of discharging a firearm during a crime of violence resulting in injury or death. The defendant filed a motion for a new trial, which was denied. The trial justice then sentenced defendant to the maximum allowable prison term-four consecutive life sentences, followed by two consecutive twenty-year sentences.[3] The defendant timely appealed.


         Standard ...

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