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State v. Washington

Supreme Court of Rhode Island

June 29, 2018

State
v.
Willie Washington.

          Providence County Superior Court (P2/15-1538AG) Robert D. Krause Associate Justice

          For Defendant: Lauren S. Zurier Department of Attorney General

          Kara J. Maguire Office of the Public Defender

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

          OPINION

          Paul A. Suttell, Chief Justice.

         The defendant, Willie Washington, was found guilty by a jury of four offenses in connection with a shooting that occurred in Providence on November 15, 2014.[1] Following the denial of his motion for a new trial, the defendant was sentenced to a total of sixty years to serve, with twenty years of that sentence designated as nonparolable. On March 8, 2016, the defendant timely appealed from the judgment of conviction.

         This appeal has traveled somewhat of an unusual course since it was docketed. Approximately one year after the appeal was filed, on April 28, 2017, defendant filed in this Court a motion to hold the appeal in abeyance and remand the matter to the Superior Court to allow him to seek a new trial based on alleged violations of Brady v. Maryland, 373 U.S. 83 (1963); the state objected. This Court denied defendant's motion to hold the appeal in abeyance, but granted the remand motion. This Court remanded the portion of the record necessary for the Superior Court to hear and decide defendant's Brady-related motion for a new trial. On June 19, 2017, a hearing on the alleged Brady violation was held before the same justice of the Superior Court who presided over defendant's trial. Four days after the hearing concluded, defendant filed a motion to recuse the trial justice. The trial justice held a hearing on defendant's recusal motion on June 26, 2017; and, on July 19, 2017, the trial justice issued a decision denying both the Brady-related motion for a new trial and the recusal motion.

         This matter is again before this Court. The defendant now challenges his conviction on five grounds, contending that the trial justice erred by: (1) denying defendant's motion to suppress two witnesses' show-up identifications; (2) admitting the recording of an anonymous 911 call at trial; (3) "failing to implement the letter and spirit of this Court's remand order" in the trial justice's consideration of defendant's Brady claim; (4) failing to find that the state withheld information in violation of Brady after dialing the anonymous 911 caller's phone number and speaking with an individual prior to trial; and (5) denying defendant's motion to recuse. After careful consideration of defendant's arguments and a thorough review of the record, we affirm the judgment of conviction.

         I

         Facts and Procedural History

         A

         The Shooting

         It is undisputed that on November 15, 2014, at approximately 1 a.m., Rudy Basquez, Jr., a food-delivery driver, was shot in the arm in a road-rage incident. Basquez was driving on Huxley Avenue in Providence after making a food delivery on the Providence College campus when he saw his brother, Michael Pickering, a food-delivery driver for another establishment, parked on Huxley Avenue. Basquez stopped his vehicle next to Pickering's, and the two conversed; in doing so, they blocked traffic in both directions. During their conversation, a dark-colored SUV pulled up behind Basquez's car, and its driver yelled profanities and repeatedly honked the SUV's horn because Basquez's vehicle was blocking his passage. Basquez and the driver of the SUV both exited their vehicles and a verbal argument took place. As Basquez and the SUV driver returned to their respective vehicles, Basquez observed the passenger door of the SUV open and heard "multiple pops"; Basquez suffered a gunshot wound to his arm. The SUV subsequently drove off.

         B

         Pretrial Motions

         1

         Show-Up Identifications

         Prior to trial, defendant sought to suppress identifications made by two percipient witnesses. At a hearing on defendant's motion, the following evidence emerged.

         Testimony of Laura Ferretti and Brianna Sheetz

         On the evening of November 15, 2014, Laura Ferretti and Brianna Sheetz were visiting friends at Providence College together, and they attended a party. They each claimed to have consumed one beer approximately two hours before the incident. At 1 a.m., Ferretti and Sheetz were sitting in Sheetz's car waiting for friends before they began their drive back home to Connecticut. Ferretti was sitting in the driver's seat and Sheetz was sitting in the passenger's seat, when a smaller vehicle pulled up alongside Sheetz's car. The driver of the smaller vehicle stopped to talk with someone, whom the women could not see, on the other side of the street. A larger vehicle then pulled up behind the smaller vehicle. Ferretti described the larger vehicle as a "greenish-blue" Jeep, "like an SUV." Sheetz similarly described the larger vehicle as an SUV. When asked the color of the SUV, Sheetz first stated that she did not recall, then subsequently stated, "It was light-colored, I believe."

         Then, a heated argument between the occupants of the two vehicles erupted. Ferretti testified that the SUV honked at the smaller car, and the man in the smaller car exited his vehicle and "mouth[ed] off" at the SUV driver. Ferretti then saw someone exit the SUV, but she did not recall from which door he exited. Sheetz testified that both drivers were outside of their vehicles during the argument. Both Ferretti and Sheetz then witnessed an occupant of the SUV fire several gunshots in the direction of the smaller vehicle. Ferretti testified that, once the gunshots began, she and Sheetz put their seats back and made no further observations. Sheetz, however, recalled that when Ferretti told her "to get down," she did not duck immediately, but instead continued to watch as the shooter entered the passenger-side door of the SUV and the vehicle drove off.

         Ferretti testified that the shooter was a tall, average-build, African-American male with a black beard who was wearing a dark-colored sweatshirt and a dark-colored beanie. Sheetz described the shooter as "very tall," with a muscular build, a "light African-American" skin tone, and wearing a "dark jacket, navy blue probably, or black" with no hood, and a beanie hat. Sheetz described the shooter's face as round with facial hair and noted that her opportunity to observe the shooter's face was "okay." When Ferretti was asked if she "g[o]t a good look at [the shooter's] face," she testified "Yes" and described the viewing conditions as well-lit under the street lamps. Ferretti further testified that she observed the shooter for the "entire time that he * * * walked out of his car and shot at the [victim, ]" which lasted approximately one minute or less. Sheetz, however, was uncertain regarding the length of the incident, but indicated that she observed the shooter for a few minutes.

         Ferretti and Sheetz both spoke to officers at the scene following the shooting and then were transported to the Providence police station. Approximately one hour after the shooting, Ferretti and Sheetz were driven separately to another location to participate in two discrete show-up identifications. Ferretti recalled that, prior to the show-up, Detective Ronald Riley, Jr. informed her that "[the suspect] was going to come out of the police car that they had put him in, and we were just going to look at him and see if we recognized him." When they arrived to the show-up location, Ferretti sat in a police vehicle wearing her contact lenses and viewed the suspect, without any problem, from approximately thirty-one feet away. The suspect was removed from a marked police cruiser without handcuffs and under spotlights. Ferretti testified that there were approximately five officers present at the show-up who were either standing near the suspect or sitting inside the six marked police cruisers parked close by. Ferretti identified the suspect as the shooter, had "no doubt" in her identification, and, in particular, recognized the suspect's dark-colored sweatshirt and his beard, and noted that he had the "same face" as the shooter. During the pretrial hearing, Ferretti identified defendant in the courtroom as the shooter.

         Prior to the show-up with Sheetz, Detective Robert Melaragno informed her that she would be viewing "a possible suspect" and instructed her "that * * * if [she] knew who he was, to identify him." While sitting in a police cruiser, Sheetz observed a suspect, well-lit by the cruiser spotlights, from approximately thirty feet away. Sheetz observed two or three officers near the suspect, but she could not recall if there were others in the vicinity. She testified that she "knew it was him when [she] saw him" and that "[h]e was the exact same person as the man from the shooting. He was the same height, same build, same outfit, same face." During the pretrial hearing, Sheetz stated that she had no doubt that it was the same person; however, during the show-up, she had told Det. Melaragno that she was only 90 percent certain. She testified that she had slightly minimized her expression of certainty during the show-up because she "didn't want to be wrong," but testified that she "think[s] that [she] was always sure." On cross-examination, when asked why her disposition changed from uncertain to certain, Sheetz explained that she "had time to think about it." During the pretrial hearing, however, Sheetz was unable to identify defendant in the courtroom as the shooter.

         Testimony of Patrolman Matthew McGloin

         Patrolman Matthew McGloin had been a member of the Providence police department for six years. On the night of the shooting, Officer McGloin heard a radio broadcast regarding a shooting on Huxley Avenue that referenced a license plate that he subsequently determined to be actively registered to defendant. In an effort to locate defendant, he researched defendant's visitor list from an earlier incarceration, which included defendant's girlfriend's Providence address. Officer McGloin and Patrolman Sean Lafferty then proceeded to that address to investigate. Upon arrival, Officer McGloin observed a pickup truck with the engine running parked on the street adjacent to the residence. The officers drove by the pickup truck, shined a spotlight inside, and recognized the driver to be Sterling Washington.[2]

         After surveilling the residence, the officers followed as Sterling Washington and an unidentified passenger drove away in the pickup truck. The officers attempted to stop the pickup truck; the pickup truck slowed down but failed to stop, and the unidentified occupant jumped out and ran. Officer McGloin recognized that person to be defendant. After radioing for backup assistance, Officer McGloin and Officer Lafferty chased defendant on foot. Later testimony at trial revealed that the officers had directed defendant to stop, eventually tackled him, placed him in handcuffs, and took him into custody.

         Testimony of Detective Ronald Riley, Jr.

         Detective Ronald Riley, Jr., a member of the Providence police department, had been a detective for seven-and-a-half years. Detective Riley had responded within five minutes of the police radio broadcast reporting the shooting on Huxley Avenue. At the scene, Det. Riley spoke to witnesses Ferretti and Sheetz. After Ferretti and Sheetz had been transported to the police station, [3] Det. Riley learned that a suspect had been apprehended. Approximately ninety minutes after the shooting, Det. Riley drove Ferretti to the show-up location. Prior to conducting the show-up, Det. Riley instructed Ferretti that "she was going to be viewing an individual and if she recognized that individual, to tell [him] so." Detective Riley further testified that, under street lights and alley lights, the suspect was removed from the back of a police cruiser, was standing approximately twenty-five to thirty feet away from Ferretti, was not handcuffed, and was illuminated by cruiser spotlights. Detective Riley noted that Ferretti positively identified the suspect as the shooter.

         Testimony of Detective Robert Melaragno

         Detective Robert Melaragno testified that he had been a member of the Providence police department for twenty-one years and a detective for sixteen years. On the evening of the shooting, Det. Melaragno was tasked with transporting Sheetz to the show-up at approximately 2:30 a.m. Prior to the show-up, he instructed Sheetz that "we were going to view an individual, and she was to view [the suspect] and tell [him] if she recognized [the suspect]." When Det. Melaragno arrived with Sheetz to the show-up location, his vehicle's high beams were trained on the area where the suspect would be presented for identification, approximately twenty to twenty-five feet away. The defendant was removed from the back seat of a police cruiser, without handcuffs, and was surrounded by one or two officers, with other officers in the area. He testified that Sheetz identified the suspect as the shooter and noted that she was 90 percent certain in her identification. After transporting Sheetz back to the police station, Det. Melaragno obtained a recorded statement from her.

         Trial Justice's Decision

         After hearing the testimony of the aforementioned witnesses, the trial justice rendered a decision on defendant's motion to suppress the identifications made by Ferretti and Sheetz. The trial justice found that the show-up procedures were marred by "some suggestivity[.]" He concluded, however, that the witnesses' identifications were nonetheless admissible because the suggestiveness of the identifications was "overcome by the reliability and the independent memories of the two witnesses."

         2

         Admissibility of the Recording of the 911 Call

         During the same pretrial hearing, defendant also contested the admissibility of a recording of a 911 call purporting to provide the license plate number of the shooter's vehicle.[4]The defendant argued that the 911 call was inadmissible because it did not fall under any of the exceptions to the hearsay rule. Specifically, defendant contended that the recording provided no foundation to find that the anonymous caller personally observed the license plate. Ultimately, the trial justice found that the caller "was a percipient witness" to the license plate because he identified the buildings on campus located in the vicinity of the shooting, indicated that he heard gunshots, demonstrated a sense of urgency due to the frightening circumstances. In addition, the trial justice also pointed out that the caller stated "I need you to get here" and the call was received at the time of the shooting. The trial justice determined that no evidence supported defendant's argument that the caller did not personally observe the license plate. The trial justice found that the caller's statements about the license plate indicated that he did, in fact, see the license plate. Accordingly, the trial justice found that the 911 call satisfied the requirement for the excited-utterance exception to the hearsay rule and deemed it admissible.

         C

         Trial

         The trial began on December 2, 2015. On December 8, 2015, a jury convicted defendant of four counts: count 1, carrying a firearm without a license in violation of G.L. 1956 § 11-47-8(a); count 2, assault with a dangerous weapon by discharging a firearm and causing injury to Rudy Basquez in violation of § 11-47-3.2(b)(2); count 3, possession of a firearm with a previous federal court conviction in violation of § 11-47-5; and count 4, assault with a dangerous weapon in violation of G.L. 1956 § 11-5-2. Thereafter, defendant was sentenced to a total of sixty years to serve, with twenty years nonparolable. Approximately one week later, defendant filed a motion for a new trial, which was denied. Then, on March 8, 2016, defendant filed a notice of appeal to this Court and argued that the trial justice erred in denying his motion to suppress the show-up identifications and in admitting the anonymous 911 call into evidence.

         D

         Remand Hearing

         Over a year later, on April 18, 2017, according to an affidavit from an assistant public defender, the Public Defender's office spoke with a Providence College student who identified himself as Chase Rasch. During the phone call, Rasch informed the Public Defender's office that he had called 911 on the night of the shooting, had not seen the license plate himself, and had spoken with a state prosecutor prior to trial, during the summer of 2015.[5] This phone call with Rasch prompted defendant to file in this Court a motion to hold the appeal in abeyance and remand the matter to the Superior Court on April 28, 2017, alleging that the state had committed a Brady violation by not disclosing this pretrial phone call with Rasch.

         The defendant's first memorandum in support of his motion to remand alleged that the state failed to disclose material and exculpatory evidence related to the 911 call, in violation of defendant's right to due process under both the Rhode Island and United States Constitutions. The defendant contended that the state withheld the following information: (1) the state's phone call with the 911 caller prior to trial; (2) the identity of the 911 caller; (3) Rasch's interactions with police at the scene, namely that he provided police with his name and contact information; and (4) the fact that the state decided not to call Rasch as a witness at trial, list him in discovery, or disclose his identity.

         Then, in a second memorandum submitted to this Court, defendant indicated that, on May 1, 2017, according to an affidavit from a second assistant public defender, the Public Defender's office spoke again with Rasch. According to that affidavit, Rasch called to make a correction to his previous statement: he had actually spoken with the prosecutor during the week of Thanksgiving 2015-immediately preceding defendant's trial-and not during the summer of 2015, as he had previously reported.

         On May 15, 2017, this Court denied defendant's motion to hold the appeal in abeyance, but granted his motion to remand and ordered that a hearing on defendant's Brady-related motion for a new trial take place in the Superior Court within ninety days.

         1

         Brady Violation

         On remand, a hearing on defendant's Brady-related motion for a new trial took place on June 19, 2017, before the same trial justice who presided over defendant's trial. See Brady v. Maryland, 373 U.S. 83 (1963). At the ...


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