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 ...