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State v. Moten

Supreme Court of Rhode Island

June 26, 2018

Bruce Moten.

          Providence County (P1/15-3593AG) Superior Court Associate Justice Robert D. Krause

          Lauren S. Zurier Department of Attorney General For Defendant:

          Angela M. Yingling Office of the Public Defender

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


          Goldberg, Justice.

         This case came before the Supreme Court on May 2, 2018, on appeal by the defendant, Bruce Moten (defendant), from a Superior Court judgment of conviction on eight counts and from the denial of the defendant's motion for a new trial. The trial justice imposed two consecutive sentences of life imprisonment for murder and for discharging a firearm while committing a crime of violence, death resulting; two consecutive sentences of twenty years to serve for felony assault and discharging a firearm while committing a crime of violence; three consecutive sentences of ten years to serve for felony assault, discharging a firearm while committing a crime of violence, and conspiracy; and a suspended sentence of ten years, with probation, for carrying a pistol without a license. The sentences imposed for the two counts of discharging a firearm while committing a crime of violence were ordered to be nonparolable.

         Before this Court, defendant argues that the trial justice erred by allowing Providence Police Detective Theodore Michael to offer a lay opinion regarding the location of a particular cell phone at a certain point in time and by denying defendant's motion for a new trial. For the reasons set forth herein, we affirm the judgment of the Superior Court.

         Facts and Travel

         The case on appeal arises out of a long-standing feud between two rival gangs that left one young man deceased and another man injured from gunshot wounds. The two Providence gangs, "Young Niggas in Charge" (YNIC) and its youth affiliate, the "Triple Y," and a gang known as the Chad Brown gang, or the "Triple C," had been embroiled in a grudge match that eventually erupted in 2014. Tensions began to rise during the summer of 2014 when Henry Lopez (Henry) and Tevin Briggs (Tevin), [1] members of YNIC, were at a local car wash and noted the presence of Triple C members Kendrick Johnson (Kendrick), Sean, and Tito in the vicinity. Upon observing the Triple C members, Tevin began to shoot at the rival gang, striking the car wash itself. The following day, at the same car wash, Henry was speaking to his fellow YNIC member, Antonio Fortes (Tone), who had driven up in a rented Buick with tinted windows. Triple C members Kendrick, Delacey Andrade (Delacey), and Terry Robinson (Terry) also were present at the car wash. After Tone departed in the Buick, Henry refused to disclose to Tito, a rival Triple C member, the identity of the persons inside Tone's Buick; the Triple C members took off in an unsuccessful pursuit of Tone.

         Some months later, on the morning of October 22, 2014, the defendant, Bruce Moten, called his fellow YNIC member Henry and asked him for a ride to the Garrahy Judicial Complex so that he could pay some court fines. Henry picked up defendant and Tevin in his black Infiniti, and the three men drove around smoking marijuana for some time before arriving at the courthouse. Prior to entering the courthouse, defendant stashed his 9 mm handgun in Henry's glove compartment, and Tevin hid his .45-caliber handgun in the pouch on the back of Henry's seat. After defendant paid his fines, Henry, defendant, and Tevin went to the courthouse snack bar, where they encountered Brian and Dizzle, two other YNIC members. Brian and Dizzle told Henry, defendant, and Tevin that they "got into a situation" when they were surrounded by members of Triple C on the fourth floor of the courthouse. Henry, defendant, and Tevin then left the courthouse and drove around for approximately one hour before receiving a phone call from Tone that Kendrick was "slipping"[2] at the PC Mart on the corner of Douglas Avenue and Eaton Street in Providence. The defendant suggested that Henry follow Kendrick, who was known to drive a Camry, and Henry headed to the PC Mart. When Henry, defendant, and Tevin arrived at the PC Mart in Henry's black Infiniti, they immediately saw Kendrick's black Camry and noticed that Kendrick, Terry, and Delacey were exiting the store. Henry began to tail the black Camry as it traveled down Douglas Avenue and onto Fillmore Street, at which point Kendrick's Camry pulled into the parking lot of the Chad Brown housing complex. As soon as Henry parked on the side of the road, defendant and Tevin pulled up their hoods, had their guns in the waistbands of their sweatpants, and exited the vehicle, leaving Henry at the wheel. After hearing multiple gunshots, Henry drove to the intersection of Fillmore and Oregon Streets, and defendant and Tevin ran to the Infiniti with their guns in their hands. Henry sped off to the home of one of his girlfriends, Yahaira Montanez (Yadi).[3]

         A bystander, Charlene Rainey, heard the gunshots as she drove away from a nearby Dunkin' Donuts; she reported the shooting to the Providence police at approximately 11:30 a.m. Rainey also saw two young men run by her car, both wearing black hoodies. The police and emergency medical personnel arrived at the crime scene to find Terry gunned down and deceased[4] and Delacey injured from a gunshot wound to the buttocks.[5] Providence BCI detectives recovered 9 mm and .45-caliber cartridge casings and a .45-caliber intact bullet. Approximately sixty to ninety minutes after the shooting, the police broadcast a description of the car involved in the shooting-a black Infiniti with tinted windows.

         Meanwhile, at Yadi's house, located at 49 Tappan Street in Providence, Henry and Tevin asked Yadi to drive the black Infiniti to Courtney Rivers's (Courtney) home located at 67 Alaska Street in Providence.[6] As instructed, Yadi and her friend Jennifer Martinez (Jennifer) drove Henry's Infiniti to Courtney's house, and Courtney and Henry's brother, Juan, drove Yadi and Jennifer back to Tappan Street. When Yadi returned to her home, she found Henry, defendant, and Tevin sitting at her kitchen table with their guns on the table, discussing what had just transpired. The defendant went into Yadi's bathroom to wash his hands and asked Yadi for a garbage bag. Yadi testified that she saw a gun near the sink and that defendant told her, "It was either us or them[, ]" and he displayed scars on his stomach. Before leaving Yadi's house, Henry hid the guns belonging to defendant and Tevin in Yadi's bedroom.

         Later that evening, at the apartment building in which both Henry and Tone lived, on Cherry Street in Pawtucket, Henry disclosed to Yadi and Jennifer the events surrounding the shooting earlier in the day. Henry then joined Tone, Tevin, defendant, Courtney, and Juan inside Tone's apartment. While inside Tone's apartment, Courtney received a phone call from his landlord that the police had arrived at Courtney's house and were towing the black Infiniti. Henry immediately asked Juan to call their cousin Danny Gomez (Danny), the putative owner of the Infiniti, and direct him to retrieve the vehicle from the Providence police station.[7] Although he initially maintained that he was the owner of the black Infiniti, Danny eventually revealed to the Providence police that the car actually belonged to Henry.

         Approximately three weeks after the October 22, 2014 shooting, Henry fled to Puerto Rico. He returned to Providence for a short period of time before Christmas 2014; but, when he was informed that Yadi's friend Jennifer had appeared before the grand jury, he again departed. Henry was eventually apprehended in the Dominican Republic and extradited to Providence.

         On April 10, 2015, defendant was indicted in Providence County Superior Court and charged with nine felony counts: Count 1-murder, in violation of G.L. 1956 §§ 11-23-1 and 11-23-2; Count 2-discharging a firearm while committing a crime of violence, death resulting, in violation of § 11-47-3.2(b)(3); Count 3-assault with a dangerous weapon, in violation of § 11-5-2 and G.L. 1956 § 12-19-39; Count 4-discharging a firearm while committing a crime of violence, injury resulting, in violation of § 11-47-3.2(b)(2); Count 5-assault with a dangerous weapon, in violation of §§ 11-5-2 and 12-19-39; Count 6-discharging a firearm while committing a crime of violence, in violation of § 11-47-3.2(b)(1); Count 7-conspiracy, in violation of § 11-1-6; Count 8-carrying a pistol without a license, in violation of § 11-47-8(a); and Count 9-carrying a pistol without a license, in violation of § 11-47-8(a). On the same day, Tevin, Henry, and Tone also were indicted on the same nine counts. While Henry was being held at the Adult Correctional Institutions, defendant urged him to take the case to trial. Instead, Henry entered into a cooperation agreement with the state, in which he agreed to plead guilty to second-degree murder, discharging a firearm while committing a crime of violence, and other related charges, in exchange for a fifty-year sentencing cap. Tevin also entered a guilty plea on several charges in exchange for the dismissal of the remaining counts. On November 5, 2015, superseding indictments were filed against defendant and Tone, charging them with the same nine original counts. The defendant and Tone were tried together before a jury in Superior Court beginning on October 4, 2016, and the trial spanned ten trial days.

         Yadi testified at trial with respect to the events that occurred on October 22, 2014, the day of the shooting. She testified that she did not realize what had happened that morning when Henry, Tevin, and defendant were at her home until she watched the news that afternoon and saw Henry's black Infiniti on television described as being connected to a homicide in the Chad Brown housing complex. She testified that she told Henry she did not want the guns in her home and that he told her "[n]ot to worry about it." She also testified that, later in the evening, while she and Henry were at Henry's uncle's house, Henry told her that Tevin and defendant "both had guns. They went out the car with guns[, ]" and that "they shot somebody." Despite feeling "used" by Henry, Yadi continued to see him over the next year. In fact, she reunited with Henry during his second flight attempt in Puerto Rico. Yadi also testified that around the same time, during the winter of 2015, she and defendant began to exchange messages on Facebook; and, in January 2015, defendant took Yadi out to dinner. Yadi testified that, on one occasion, defendant bought her an outfit from Victoria's Secret and that, when he gave her the outfit, he said, "Snitches get stitches."

         Henry also testified at trial with respect to the fatal shooting. He testified that defendant and Tevin both exited his black Infiniti with their guns in their waistbands. He also stated that defendant and Tevin both ran back to the Infiniti with their guns in their hands after gunshots had been fired. Once defendant and Tevin were back in the Infiniti, according to Henry, defendant stated that Tevin was "crazy" "[b]ecause he ran up to the car. He ran up to the car shooting." He further testified that Tevin recounted the details of the shooting once the three men were inside Yadi's house:

"Tevin was telling me that he chased down-he chased down Terry Robinson and-but first he said he was shooting at the car, and his gun jammed, and said that-that Terry Robinson peeked his head out between these cars while his gun jammed. And then I guess when Terry Robinson seen him with the gun jammed, he took off running and then Tevin unjammed the gun and started chasing him, shooting at him."

         Henry also admitted that he fled to Puerto Rico because he "thought [the police were] going to come looking for [him]."

         Henry's testimony was corroborated by a wealth of technical evidence at trial, introduced by the state. Surveillance footage depicted Henry, Tevin, and defendant parking and entering the Garrahy Complex. Another surveillance video showed Kendrick's black Camry at PC Mart. A video compilation from the Chad Brown area depicted the black Infiniti driving around the vicinity of the crime scene, two men walking towards Fillmore Street and then running back towards the Infiniti, and the Infiniti speeding down Fillmore Street.

         Henry's credibility was also enhanced by corroborating cell-site data and cell phone records. The state introduced Agent Jennifer Banks, of the Federal Bureau of Investigation (FBI) Cellular Analysis Survey Team (CAST), as an expert witness in historical cell-site analysis. Agent Banks testified that she was provided with three sets of cell phone records from three different phone companies, and that she then obtained the cell tower listing from those providers for the hours between 9 a.m. and noon on October 22, 2014; and, based on this data, she created maps that showed the location of those cell sites used during that particular time frame. The various maps that Agent Banks composed as part of her analysis were introduced into evidence and were presented in conjunction with her testimony at trial. Agent Banks testified that, based on her analysis and collected data, the cell phones belonging to Henry, defendant, and Tevin were all located in the downtown Providence area between 9 and 10 a.m., and then, at approximately 10:58 a.m., all three phones indicated movement slightly north to an area east of Providence College. She also testified that defendant's phone moved towards Douglas Avenue at 11:04 a.m.:

"This phone, as you recall, in the 10:00 to 11:00 hour had moved north up east of Providence College, and then at 11:00 a.m. you see another registration here up east of Providence College, then moves at 11:04 to a tower covering here, near the, you know, near Route 7, which I believe is Douglas Street here and Admiral Street, that general area, and then moves southeast to this 11:08 registration here, which covers this western side of the tower. And then by 11:31, that phone is using the northeast sector of this tower, and then moves back to the 30-degree sector here by 11:38."

         In addition to collecting data, Agent Banks also conducted a field survey to validate her conclusions, in which she drove through all of the streets in the Providence College to downtown Providence area in order "to collect what radio frequencies were in that area and which were the most dominant towers of coverage." Based on her research and analysis, Agent Banks concluded that defendant's phone was in or near the area of the shooting at the time in question:

"[PROSECUTOR:] So based on your analysis, would it be consistent to say that this phone was in or near the area of 100 Fillmore Street at this time?
"[BANKS:] Yes. The Fillmore Street address is right on the boundary of where there's dominant and possible coverage.
"* * *
"[PROSECUTOR:] And based on these two maps you were able to create through this drive-test analysis, what was the general location of Bruce Moten's phone during the time period of 11:38 and 12:00 p.m.?
"[BANKS:] The [defendant's] phone is using this tower, which provides coverage northeast of Providence College to extend to these dominant areas.
"* * *
"[PROSECUTOR:] And would the phone be consistent with being in or near the area of 49 Tappan Street on the map?
"[BANKS:] Yeah. That's one area that this tower provides dominant coverage to.
"[PROSECUTOR:] And, again, that would be the AT&T phone, where the phone I referred to as Bruce ...

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