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State v. Rivera

Supreme Court of Rhode Island

December 11, 2019

State
v.
Alberto Rivera.

          Providence County Superior Court P1/17-1382AG Robert D. Krause Associate Justice.

          For State: Owen Murphy Department of Attorney General

          For Defendant: Kara J. Maguire Office of the Public Defender

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

          OPINION

          Gilbert V. Indeglia Associate Justice.

         After a trial in Providence County Superior Court, a jury found the defendant, Alberto Rivera, guilty of one count of assault with a dangerous weapon in a dwelling house, in violation of G.L. 1956 § 11-5-4 (count one); one count of burglary, in violation of G.L. 1956 § 11-8-1 (count two); one count of assault with a dangerous weapon, in violation of § 11-5-2 (count four); one count of discharging a firearm while committing a crime of violence, in violation of G.L. 1956 § 11-47-3.2(b) (count five); one count of use of a firearm while in the commission of a crime of violence, in violation of § 11-47-3.2(a) (count six); one count of possession of a firearm by a person convicted of a crime of violence, in violation of § 11-47-5 (count seven); and one count of carrying a firearm without a license or permit, in violation of § 11-47-8(a) (count eight).[1] A second count of assault with a dangerous weapon (count 3) was dismissed pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure.

         On appeal, defendant contends that the trial justice improperly admitted a recording and transcript of a phone call between defendant and a confidential informant into evidence and also that the trial justice erred by failing to grant a mistrial or a new trial when it became clear that defense counsel had not received the complete discovery package in the case. For the reasons set forth herein, we affirm the judgment of conviction.

         I

         Facts and Travel

         This case involves discord between defendant and his ex-wife, Brenda Villanueva, that stemmed from defendant's continued demand to see his two young children. That discord culminated in a shooting that occurred in the City of Providence, which left the victim, Juan Croussette, severely injured and hospitalized for sixteen days. Three eyewitnesses linked defendant to the shooting: Croussette himself; Villanueva; and defendant's daughter, Mary.[2]

         A

         The Evidence

         Preliminarily, before trial commenced, the trial justice noted that a transcript of a telephone call between defendant and a confidential informant (the ATF call) was prepared, but he commented that part of the transcript was in Spanish. The trial justice stated that he would not permit the use of the transcript at trial unless the Spanish portions were translated into English. The prosecutor noted approximately ten instances in the transcript where the speaker went "in and out of Spanish," and he notified the court that the Spanish portions were already in the process of being translated into English. Defense counsel requested that a court approved or certified translator perform the interpretation; however, the trial justice found that unnecessary because a bilingual officer of the attorney general was translating the transcript. The trial justice explained that defense counsel could ask the Office of Court Interpreters to review the final transcript for accuracy if he so chose, to which defense counsel replied: "Thank you, Your Honor."

         On October 24, 2017, trial commenced and Villanueva was the first witness to testify for the state. Villanueva testified that, on December 4, 2016, she and her two young daughters spent the night at Croussette's apartment. Villanueva testified that she woke up during the night when she felt Croussette get out of bed and saw him walk out of the bedroom. She then heard a loud bang on the glass sliding door, saw the glass from the door shatter on the floor, and then saw defendant coming through the glass sliding door. She testified that she could not see a gun, but she saw defendant point his hand directly at Croussette's upper body, toward his face. Villanueva testified that she then heard a gunshot and watched Croussette fall to the floor. Next, Villanueva testified that she saw Mary standing next to defendant pulling at his coat saying, "Daddy," while defendant then pointed the gun at Villanueva's head. Villanueva testified that she did not see defendant leave; but, once she realized that he had left, she called an ambulance. Villanueva testified that no one else was in the apartment besides her, Croussette, her two daughters, and defendant, and that no one had a weapon except defendant. She testified that, shortly after she called 911, defendant called her from a private number and told her that "if [she] said his name, he was going to blow [her] brains out."

         Additionally, Villanueva testified that she listened to a recording of a phone call between two individuals-the ATF call-and recognized one of the voices as defendant's because she had spoken to him on the phone "[c]ountless times." Next, Villanueva testified, she was provided with a transcript of the ATF call and that some of the transcript was in Spanish. She further testified that Spanish was her primary language and that the translated transcript accurately reflected the conversation between defendant and the other person.

         On cross-examination, defense counsel pointed to various inconsistencies between Villanueva's in-court testimony and her prior statements to Providence police and at the grand jury proceedings in connection with this case. Villanueva conceded that, in her interview with Providence police after the shooting and at the grand jury hearing, she never mentioned that defendant had pointed the gun at her head. Villanueva further conceded that, in her statement to police, she did not tell them that she saw her daughter, Mary, tugging at defendant's jacket moments after the shooting. On redirect examination, the prosecutor directed Villanueva to her testimony from defendant's violation hearing in connection with this case. Villanueva confirmed that she was a witness at that hearing and that she had testified then that defendant pointed the gun at her after Croussette had been shot.

         Next, Croussette testified for the state. Croussette testified that, on the date in question, Villanueva and her two children had slept at his apartment. Croussette testified that he awoke in the early morning hours when he heard footsteps on the patio outside the apartment. He testified that he went into the living room, turned on the lights to the patio, peered through the shades, and saw defendant standing in his yard. Croussette testified that he retreated into the bedroom to tell Villanueva to call the police and then heard a gunshot, followed by the sound of glass breaking from the sliding glass door. He testified that he told Villanueva to stay in the bedroom, and he went to get the girls from the living room to protect them. He then felt the impact of a gunshot penetrate his neck. Croussette testified that he fell to the floor and could hear defendant telling Villanueva, "I told you so." Croussette testified that, after defendant left, he was able to get up from the floor and go outside to wait for an ambulance, which eventually arrived and transported him to Rhode Island Hospital.

         On cross-examination, Croussette conceded that his in-court testimony may have implied that defendant was the shooter, while in his grand jury testimony he stated that he did not see who shot him, notice anyone in his living room, or remember seeing defendant in his apartment. On redirect examination, however, Croussette clarified that his statements at the grand jury regarding what he saw in the living room both before the glass shattered and after were the same as his trial testimony.

         The state called Mary as its next witness. Mary testified that, on the night in question, she and her younger sister, Jane, were asleep on the couch in the living room at Croussette's apartment.[3] Mary testified that she woke up during the night because she heard glass breaking from the sliding glass door. She testified that she then saw defendant coming through the door holding a gun. Mary testified that, shortly after entering the apartment, she heard defendant shoot Croussette and then saw him point the gun to her mother's face and say, "What the F did I say." Mary testified that she told defendant not to do it and that he then left. Mary testified that, after defendant left, Villanueva called the ambulance and police. On cross-examination, Mary conceded that she had testified before the grand jury that she had told her mother what happened to help her mother remember. On redirect, however, Mary clarified that she only reminded her mother about the part where defendant pointed the gun at her mother's face, and that her mother then remembered exactly what happened, from her own point of view.

         The final witness called by the state was Christian Jardin, a special agent with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Before Agent Jardin took the stand, however, defense counsel raised an objection. At sidebar, defense counsel voiced his objection to the state's offering the ATF call into evidence, stating that "no warrant has been shown for the interception of the phone call. If there was an interception * * * there's no ATF warrant for it. If it's under the guise of a [confidential informant], he's available and known. So the [confidential informant] should be here, because we know who he is." Defense counsel also remarked about the transcript of the ATF call, stating: "There's Spanish in it. We don't know who the person who translated the Spanish is, and I think it should be a certified, independent translator, not an unknown staff member at the Attorney General's Office." The prosecutor contended that the recording is what controls and that he had provided defense counsel with a copy of the recording of the ATF call more than a week before the trial. The prosecutor further explained that he provided defense counsel with a copy of the translated transcript when the issue was first raised at the start of trial, and defense counsel had ample time to review it. He also noted that Villanueva testified to the accuracy of the translation. On the issue of whether the ATF call itself was admissible into evidence, the prosecutor stated that this was not a wiretap, but was an issue of one-party consent.[4] Defense counsel argued that "[o]ne-party consent is between two private citizens, not a government agent and a private citizen[, ]" and that defendant was in such a position that the "recording would've required a warrant[.]"

         The trial justice ruled that the ATF call was "not a wiretap at all[, ]" and was "a consensual recording." Regarding the transcript, the trial justice stated that it was his "demand" that the "bits and pieces" of Spanish be translated into English. The trial justice reminded defense counsel that a copy of the translated transcript was provided to him within two hours of translation and that he had invited defense counsel to have it reviewed. Finally, he noted that defense counsel never pointed to any inaccuracy in the transcript. With that, the trial justice overruled defense counsel's objection.

         After the sidebar concluded, Agent Jardin took the stand and testified that he became involved in the investigation with respect to the shooting when a confidential informant who worked for him placed a call to defendant. The following exchange occurred during the state's direct examination of Agent Jardin:

"[PROSECUTOR:] [D]id that confidential informant consent to the recording of that telephone call?
"[AGENT JARDIN:] Yes.
"[DEFENSE COUNSEL]: Objection, Your Honor.
"THE COURT: Overruled.
"* * *
"[PROSECUTOR:] And does this -- what's on this CD accurately have -- is it the ...

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