County Superior Court P2/13-2441AG Robert D. Krause Associate
State: Lauren S. Zurier Department of Attorney General
Defendant: George J. West, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
William P. Robinson III Associate Justice
defendant, Tavell D. Yon, appeals from a May 2, 2014 judgment
of conviction in Providence County Superior Court for
constructive possession of a firearm after a conviction for a
crime of violence,  in violation of G.L. 1956 §
11-47-5. On appeal, he contends that the trial
justice erred in: (1) failing to suppress the defendant's
statement with respect to the gun at issue in the case; (2)
failing to "submit to the [j]ury the issue of the
voluntariness of [the] defendant's alleged
statement" with respect to the gun at issue; and (3)
denying the defendant's motion for judgment of acquittal
and motion for a new trial. This case came before the Supreme
Court, sitting at Woonsocket High School, for oral argument
on April 26, 2017.
reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
case, a tip from a confidential informant led to the search
of an apartment where defendant was located and the discovery
of a firearm. The defendant was subsequently arrested. At the
police station, he was asked if the gun found in the
apartment was stolen, and he responded: "'[W]hat gun
bought off the street isn't stolen?'" It was
that statement which defendant sought to have suppressed
before trial. We relate below the relevant portions of the
The Testimonies of Detective John Bento and Detective Martin
Police Detective John Bento was the first witness to testify
at the suppression hearing. It was his testimony that, on
October 26, 2012, following an investigation that involved
surveillance and the issuance of a search warrant, he and
other members of the "Narcotics and Organized Crime
Unit" executed the search warrant at 14-16 Monticello
Street. He added that he and the other officers were
searching for a firearm. Detective Bento testified that they
"used force" to enter the apartment, at around
11:00 a.m., after there was no answer to a knock on the door.
He stated that, upon entering the apartment, the officers
detained Mr. Yon and his girlfriend, one Desiree Rodrigues.
Detective Bento added that neither individual was placed in
handcuffs and that they were seated at the kitchen table. It
was the testimony of Det. Bento that a search of the
apartment was then conducted and a firearm was eventually
discovered. He stated in his testimony that, at that point,
Mr. Yon and Ms. Rodrigues were placed "into custody and
in cuffs." It was further Det. Bento's testimony
that he immediately read both individuals "their rights,
their Constitutional rights" from a pre-printed card
that he kept in his wallet. He added that, at the conclusion
of reading from the card, he inquired whether or not Mr. Yon
understood his rights and that Mr. Yon "acknowledged by
saying yes, he understands." It was Det. Bento's
testimony that, "[s]hortly after" he had read Mr.
Yon and Ms. Rodrigues their rights, they were transported to
the police station-"within ten, fifteen minutes."
testimony of Providence Police Detective Martin Hames
corroborated Det. Bentos's testimony. Detective Hames
added that, during the investigation of defendant, he
discovered that defendant had been arrested "numerous
times" and had had his rights read to him in the past.
It was also his testimony that he "observed Detective
Bento reading the rights to both [defendant and Ms.
Rodrigues];" he added that he also heard the rights
being read. Detective Hames testified that, at the police
station, about a half hour after he had heard Mr. Yon being
read his rights, he proceeded to the interview room where Mr.
Yon was handcuffed and asked Mr. Yon a single
question-viz., whether "the gun was
stolen." It was his testimony that Mr. Yon responded as
follows to that question: "'[W]hat gun off the
street wasn't stolen?'"
The Testimonies of Tavell Yon and Desiree Rodrigues
suppression hearing, Tavell Yon testified that, on October
26, 2012, as soon as the police entered the apartment, they
"thr[e]w [him] on the ground" and "cuff[ed]
[him]." He stated that he and Ms. Rodrigues were then
seated in the kitchen. It was further his testimony that,
after the gun was located, an officer said to him:
"'[Y]ou're federally f***ed now, you're
going down for this, you won't see the streets for a
while.'" He added that Ms. Rodrigues told the police
that the gun belonged to her and that they proceeded to put
her in handcuffs. It was then his testimony at the
suppression hearing that "[t]hat morning nobody read
[him his] rights."
respect to what occurred after he was taken to the police
station, defendant testified that after being placed, alone,
in an interrogation room at the police station, he was
"processed." He further testified: "The guy
who works down in the cellblock asked me was the gun stolen.
I was like, I don't know what guns on the streets
ain't stolen though." It is important to note that,
when asked at the suppression hearing, defendant did not deny
making that statement. He testified that he had known the man
who asked him the question "for so many years;" he
added that "he's an all right guy." He further
testified that he did not think he was being
"interrogated" or "question[ed]" at that
cross-examination, defendant acknowledged that he had seen
Miranda rights being read on television. He was
also confronted on cross-examination with a Miranda
rights form that he had signed on a previous occasion. The
defendant further answered questions on cross-examination
with respect to his numerous previous encounters with law
enforcement; and he testified that, on several other
occasions, he also had not remembered being read his
Miranda rights. He added: "I really don't
pay attention when I'm getting arrested. I'm so mad,
I don't pay attention to what officers are saying."
When asked by the court, during cross-examination, whether he
knew his rights, he stated that he could "repeat [them],
" but he added that he did not "really understand
all of them." In his testimony on cross-examination, he
went on to state that he knew he had a right to an attorney
and the right to remain silent.
Rodrigues also testified at the suppression hearing. It was
her testimony that, when the officers entered the apartment
on October 26, they "put [Mr. Yon] on the ground, cuffed
him, put him at the table." It was further her testimony
that, after the officers located the gun, she told them the
gun belonged to her. She stated that an officer then said to
her: "[O]h, you want to play games, you can come down to
the station too;" she added that she was then arrested.
Ms. Rodrigues stated in her testimony that she and defendant
were not read their Miranda rights.
the close of testimony at the suppression hearing, the trial
justice issued a bench ruling denying defendant's motion
to suppress the statement which he made at the police station
with respect to the gun at issue-"'what gun off the
street [is not] stolen?'" A trial then commenced
which spanned four days in February of 2014. We relate below
the salient aspects of what transpired at that trial.
Testimony at Trial
the trial justice's bench ruling on the motion to
suppress, but before any testimony was taken at trial, the
following colloquy took place out of the presence of the
"THE COURT: If the case is going to take a turn into the
Miranda corner, I wouldn't be surprised, [defense
counsel], if [the prosecutor] is going to want to get into
some of the stuff [which] was disclosed during the course of
* * * the hearings * * * relative to your client's
knowledge of Miranda. The cases are, as I've already
mentioned, pretty clear in that direction. I don't know
that the state should be disadvantaged from not being able to
use some of that relevant information in the course of a
trial where the claim is the statement was made and it was
"[DEFENSE COUNSEL]: Judge, in light of the Court's
ruling, I'm not going to touch on that at all. I'm
simply going to ask Ms. Rodrigues if she was advised of her
rights before she gave her statement [at the police station]
and we can leave it at that.
"THE COURT: Well, is there going to be any suggestion or
argument or evidence that you want to proffer to this jury
relative to your client making a statement that he was not
Mirandized and that the human[e] practice rule ought to be
invoked during the course of the --
"[DEFENSE COUNSEL]: The what?
"THE COURT: Human[e] practice rule. In other words,
giving the jury that instruction on Miranda.
"[DEFENSE COUNSEL]: Judge, I don't intend to argue
that, under the Court's ruling, whether it was suggested