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State v. D'Amico

Supreme Court of Rhode Island

February 5, 2019

State
v.
Michael D'Amico.

          Providence County Superior Court (P2/06-1662A) (P1/06-2054A) Robert D. Krause Associate Justice

          For State: Christopher R. Bush Department of the Attorney General

          For Defendant: Lara Montecalvo Office of the Public Defender

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

          OPINION

          Francis X. Flaherty Associate Justice

         This case is before the Court pursuant to writs of certiorari. On June 19, 2007, the defendant, Michael D'Amico, pled nolo contendere to charges brought in P1-2006-2054A and P2-2006-1662A, which included two counts of first degree robbery, one count of conspiracy, and three counts of felony assault. He was sentenced to ten years to serve for the conspiracy charge and twenty years for each robbery and assault charge, with ten years to serve and the balance suspended, with probation. All sentences were to run concurrently.[1] D'Amico now seeks review of two Superior Court judgments, entered in 2012, adjudging him to be a violator of his probation. This case came before the Supreme Court for oral argument on November 27, 2018, pursuant to an order directing the parties to appear and show cause why the issues raised should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed on behalf of the parties, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgments of the Superior Court.

         I

         Facts and Travel

         Around 11:30 on the morning of November 23, 2011, Khurshid Siddiq and Edwin Cowgen were enjoying a smoke break outside a 7-Eleven convenience store on Charles Street in Providence. Siddiq, the franchisee and manager of the store, and Cowgen, a 7-Eleven "field consultant," noticed a man wearing sweatpants and a hooded sweatshirt enter the 7-Eleven and grab a drink from the cooler. The man's hood was pulled tightly about his face, leaving only the area between his eyebrows and upper lip visible. Siddiq later testified that, despite the man's garb, he could see that the man had a "light moustache" and "sunken eyes." Siddiq testified that, from inside the store, the man pointed at them and gestured for them to come inside. They did so, believing that the man was a customer. To their chagrin, however, the hooded man was not in the store to make a purchase, and he soon proclaimed his intentions with the blunt, straightforward announcement: "This is a robbery."

         Cowgen immediately stepped aside and told the robber that he was not an employee of the establishment. The man displayed what Siddiq and Cowgen both believed to be a handgun and demanded all the cash in the register, roughly $400, as well as some cigars and cigarettes. During the encounter, a customer approached the counter to make a purchase, but was rebuffed by the hooded character, who, according to Cowgen, told the customer, "turn the f around or I'll rob you old man." All told, the robbery lasted between two and four minutes, and it was recorded in its entirety from several angles by the store's surveillance cameras.

          Eventually, the cowled figure concluded the heist, and Siddiq watched him on a video camera as he walked away from the store. As soon as the robber left the premises, Cowgen "hit the panic button" to call the police. When the police arrived, Cowgen and Siddiq provided statements to the responding officers, and Cowgen gave police a basic description of the culprit.

         The Providence police officers circulated an email throughout the department containing a photograph of the unknown robber, that had been harvested from surveillance video at the 7-Eleven. After two officers suggested that the hooded figure in the photograph might be D'Amico, police responded to his residence, which was, coincidentally, but a short distance from the crime scene.

         In January 2012, the state filed a Rule 32(f) violation report in the Superior Court, alleging that D'Amico had violated the terms and conditions of his probation in the two underlying criminal cases by robbing the 7-Eleven convenience store two months earlier.[2] A two-day violation hearing was held in May 2012, at which both Siddiq and Cowgen testified for the state. Also, D'Amico presented testimony by a Providence police detective who investigated the robbery.

         Siddiq testified that, sometime after the robbery occurred, Providence police showed him a photographic array consisting of pictures of six different individuals. A photograph of D'Amico was included in the array. Siddiq said that, after he examined the photographs one by one, he circled the photograph of D'Amico, signed his name, and wrote "This is the guy who has robbed us." He also testified that he had seen the hooded man in the store on one or two prior occasions. Siddiq also identified D'Amico, from the witness stand, as the man who had held up the store. When pressed to explain the level of confidence he had in his identification, he testified that, although he was not one hundred percent ...


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