Providence County Superior Court, P1/14-1415B, Daniel A.
Procaccini Associate Justice.
State: Owen Murphy Department of Attorney General.
Defendant: Susan B. Iannitelli, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
A. SUTTELL CHIEF JUSTICE.
defendant, Brandon Alves (Alves or defendant), appeals from a
Superior Court judgment of conviction on count 1, robbery in
the first degree, and count 2, conspiracy. Alves was found
guilty of both counts by a jury, and the trial justice
sentenced him to the Adult Correctional Institutions for
fifteen years, with six years to serve and nine years
suspended with probation as to count 1, and ten years
suspended as to count 2. Alves seeks to have his conviction
and sentence vacated, and asks this Court to grant him a new
trial on the grounds that the trial justice erred in
admitting into evidence identification testimony and a
photograph identification. For the reasons set forth herein,
we affirm the judgment of the Superior Court.
and Procedural History
February 7, 2014, Farhan Mustafa was closing his
cell-phone-repair shop for the evening when two men entered
from the back door and held "guns right in [his]
face" and robbed him. Mustafa recognized one of the
assailants as "Big D." Although he did not know the
second assailant, Mustafa testified that the man was
"very familiar, " and that he had observed him for
ten to fifteen seconds from less than two feet away. Mustafa
called the Providence police to report the incident and also
called his friend, Ryan Gallant, who, Mustafa testified, knew
Big D. At the Providence police station, Mustafa met with
Detective Ronald Riley and described the assailants. He
described the second assailant as between five feet eight
inches and five feet ten inches tall, with a medium
complexion. Detective Riley then showed Mustafa a series of
ten to fifteen photographs, from which Mustafa identified the
first assailant, Big D. The following day, Det. Riley
presented Mustafa with another photo array to identify the
second assailant, but Mustafa did not find the second
assailant among the photographs presented.
that day, in a further attempt to identify the second
assailant, Mustafa and Gallant visited a website that
featured pictures of patrons at various Rhode Island
nightclubs. After looking at between twenty and twenty-five
photographs, Mustafa identified a photograph depicting the
second assailant. Mustafa recognized the assailant
"right away." Gallant informed Mustafa of the name
of the man Mustafa had identified in the photograph. Mustafa
printed the website photograph and brought it to Det. Riley.
Detective Riley asked Mustafa to draw a circle around the
individual he identified. Mustafa then wrote "Brandon
New Bedford" in the upper left corner of the image, and
signed and dated the photograph.
April 16, 2014, Mustafa received a text message from Gallant
reporting the then-current location of the second assailant.
Mustafa informed the police, who responded and arrested
Alves. Two days later, Det. Riley showed Mustafa a single
photograph of Alves from a shared-law-enforcement database.
Detective Riley testified that he showed Mustafa a single
photograph because "[Mustafa] [had] already identified
the suspect in the previous photo he gave" to Det.
Riley, and that this single photograph was meant to confirm
"the name and date of birth" of the suspect.
According to Det. Riley, "As soon as [he] put the * * *
photo [of Alves] down in front of [Mustafa], " Mustafa
"immediately identified" the individual depicted as
the second assailant, with one hundred percent confidence.
was charged with first-degree robbery and conspiracy. He
filed a motion to suppress the single photograph shown to
Mustafa by Det. Riley. At a hearing on the motion, Alves
argued that the identification procedure was
"unnecessarily suggestive, " and that there was a
"substantial likelihood of misidentification" such
that he was denied due process of law. The trial justice
denied Alves's motion and determined that the
photographic depiction was not "an unnecessarily
suggestive procedure." A jury trial commenced shortly
thereafter, which resulted in Alves's conviction for
first-degree robbery and conspiracy. He timely appealed to