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State v. Andrade

Supreme Court of Rhode Island

June 12, 2019

Justice Andrade.

          Superior Court Providence County (P1/14-3123AG) Robert D. Krause Associate Justice

          For State: Virginia M. McGinn Department of Attorney General

          For Defendant:R ichard K. Corley, Esq.

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


          Paul A. Suttell, Chief Justice

         In the early hours of July 19, 2014, a gathering of young adults hanging out at 69 River Avenue in Providence came to an abrupt end when gunshots killed one of the guests, Ty-Shon Perry. After a three-week jury trial, the defendant, Justice Andrade, was convicted of first-degree murder by use of a firearm he was not licensed to carry. The defendant was ultimately sentenced to serve two consecutive terms of life in prison, as well as a consecutive ten-year sentence.

         In this direct appeal, defendant asks us to consider four issues. First, defendant challenges the admission of the statements he gave to the police when he voluntarily turned himself in to their custody a few days after Perry was killed. Second, defendant asserts that his constitutional right to counsel was violated because his trial counsel maintained an actual conflict of interest throughout her representation of him. Third, defendant challenges the admission of testimonial and photographic evidence suggesting his affiliation with known Providence gangs. Fourth, defendant challenges specific portions of the instructions given to the jurors prior to their deliberation as well as the trial justice's decision not to include two specific instructions defendant had requested.

         For the reasons set forth herein, we affirm the judgment of conviction.


         Facts and Procedural History


         The Shooting

         Throughout the afternoon and evening of July 18, 2014, about a dozen young adults were hanging out at and around 69 River Avenue in Providence. In the moments before the gunshots started, Perry was standing next to an open front passenger door of a car parked on Allston Street- one house down from 69 River-talking to one of his cousins, LaShae Cornwell, and her friends, who were all sitting in the car.[1] Cornwell testified at trial that, while Perry was talking to her through the open car door, she noticed someone in a white T-shirt peeking out from behind a "good-sized" tree across the street and about two houses down. Despite the late hour and darkness, she stated that she had no trouble seeing that individual because of the light emanating from the street lights. Cornwell testified that she then saw this person step out from behind the tree towards the car she was sitting in and start shooting. Cornwell saw the person's face, the gun in his hand, and that he was wearing black basketball shorts. Cornwell saw Perry run from the car before she ducked down until she "stopped hearing the shots." When the shooting was over, she went inside the house at 69 River and saw Perry on the kitchen floor, bleeding. Cornwell identified defendant as the shooter to the police who responded to the scene; she knew defendant because she previously had resided a couple of houses away from him. Although she had not seen him in a couple of years, she was sure defendant was the person who had fired the gun from the area near the tree.

         Several other young adults who either lived at 69 River Avenue or had been hanging out there that evening and late into the night also testified at trial. Some of these witnesses testified about their affiliation with groups or gangs. None of these witnesses identified the shooter, but some of them heard "Yo, Sheid" from the direction of the shooting immediately before the gunshots started. Rasheid Lebron, one of the young adults outside 69 River at the time of the shooting, testified that his nickname is "Sheid" but he had not heard his name called out in the moments before the shooting started. He did, however, testify that he returned fire at the direction of the shooter. Another witness also saw the initial shooting come from the direction of a tree and saw the shooter run down Allston Street, away from River Avenue, and get into a white car which then sped away.

         Scott Bun, who lived one block away from 69 River Avenue on the corner of Robin and Allston Streets and had no affiliation to the young adults gathered at 69 River, testified that he had spent July 18 fishing and arrived home between 11:30 p.m. and midnight. Sometime later, he left his house to walk his dog and noticed a white car parked on the corner of Robin and Allston close to the stop sign at the corner. As he was walking down Allston, away from River, he heard gunshots, turned, saw a flash, then watched a black male in a white T-shirt and black basketball shorts run towards the white car, jump into the driver's side, and drive away fast. Bun stated that the car made a rattling noise, "like there was a big hole in the muffler."

         Detectives from the Providence Police Department quickly narrowed in on defendant as the suspected shooter because Cornwell identified him as the shooter and their investigation revealed that he had driven his girlfriend's white car that evening while she worked a shift at Burger King and that her car had a loud, rattling muffler. On July 19, an arrest warrant was drawn for defendant. The defendant turned himself in to the Providence police station on July 21, 2014, after he saw his picture on a news broadcast stating that he was wanted as a suspect in a murder investigation. An attorney he had hired the evening before met him at the station. After speaking privately with the attorney-whom he met for the first time upon arriving at the police station- for five minutes, defendant waived his Miranda rights and agreed to speak with Detective Stephen Sullivan. During his interrogation, defendant provided an alibi that he later admitted was not truthful.

         On October 17, 2014, a grand jury returned a three-count indictment alleging defendant murdered Perry using a firearm that he was not licensed to carry, in violation of G.L. 1956 §§ 11-23-1, 11-47-3.2(b)(4), and 11-47-8(a).


         Pretrial Motions

         The defendant filed a motion to suppress the statements he made to the police during the recorded interrogation on the day he turned himself in to the custody of the Providence Police Department. The defendant argued-through new counsel-that these statements were made after an involuntary and unintelligent waiver of his Fifth and Sixth Amendment rights because the attorney he had retained to represent him at the police station provided ineffective assistance during the interrogation. At the hearing on defendant's motion, the trial justice heard testimony from defendant, the attorney who had represented him on July 21, 2014 at the police station, and from a criminal defense attorney who testified as an expert about representing criminal defendants. The trial justice denied defendant's motion to suppress in a bench decision rendered the same day as the hearing.

         The defendant also filed a motion in limine requesting that the trial justice exclude testimony about gang affiliation and photographs of defendant in which defendant and the other young men depicted were allegedly making gang hand signals. The trial justice considered this motion-along with other motions in limine-at a hearing he held over two days immediately preceding the trial. At the end of the hearing, the trial justice denied defendant's request to categorically exclude all evidence of gang affiliation ...

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