STATE v. Alfred BISHOP.
No. 2009-173-C.A.
Supreme Court of Rhode Island.
June 18, 2013.
68 A.3d 409
Unlike the plaintiff in Terry, who found herself faced with a risk significantly greater than expected, Sullo should have anticipated having to traverse wet ground to enter Greenberg‘s office on the day of the storm. See Terry, 732 A.2d at 717-18. Greenberg did not exacerbate this risk. He took no action to change the distance or surface texture that Sullo encountered—unlike the defendant in Terry, who moved the plaintiff‘s car to a more treacherous location. See id. at 715. Sullo was not faced with the same Hobson‘s Choice that the plaintiff in Terry faced,2 but could instead have changed her mind and rescheduled her appointment with Greenberg or waited for help from her mother-in-law before ascending the ramp.
Greenberg‘s status as the plaintiff‘s physician does not heighten the duty of care that he owes to her. Although a business invitor has a duty to provide reasonably safe public areas, the invitor need not become “a guarantor for the safety of his [invitees].” Benaski, 899 A.2d at 503 (quoting Fuller, 108 R.I. at 774, 279 A.2d at 441). That duty is not heightened simply because the invitor is a physician. Greenberg owed the plaintiff the duty of care of a physician in regard to his medical treatment of her leg and foot, and he owed her the standard duty of care of a business invitor in regard to his entranceway. See Willis, 954 A.2d at 129 (declining to “creat[e] a new frontier” by recognizing further social-host liability in the face of established precedent).
Conclusion
Having concluded that there is a genuine issue of material fact in this case, we hold that the plaintiff is entitled to her dаy in court. For the foregoing reasons, we vacate the judgment and remand this case to the Superior Court.
George J. West, Esq., Providence, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
OPINION
Justice FLAHERTY, for the Court.
Before this Court is an appeal from a judgment of conviction adjudicating the defendant Alfred Bishop guilty of (1) first-degree murder, pursuant to
I
Facts and Travel
A
Background
1
Underlying Home Invasion
The dramatic and ultimately fatal series of events giving rise to the charges against Bishop began to unfold on June 27, 2007. Ceasar and Claire Medeiros, husband and wife, lived in Warwick with Ceasar‘s brother, Gabriel, and a pet dog.1 On the night of June 27, 2007, at around midnight, Ceasar and Claire were awakened by the sound of their dog barking. Ceasar said he got out of bed to investigate, while Claire remained in bed. He went out to the darkened hallway and saw a masked figure holding a shiny object in his hand. Ceasar pleaded with the intruder to not hurt his family and told the intruder that there was money and jewelry in the bedroom. Ceasar returned to the bedroom, and, when he noticed that the intruder had not followed him, he grabbed a golf club and went back to the hallway, where he proceeded to clobber the intruder with a blow to the head—a blow so strong that the head of the golf club separated from the shaft. Ceasar continued to strike the intruder with the shaft of the golf club, and he also began to kick him. During the ensuring fierce struggle, a firearm discharged.
Claire testified that she came out of the bedroom and turned on the hallway light for a few seconds so that she could see what was going on. By this time, and as a result of the confrontation with Ceasar, the intruder‘s ski mask had become partially dislodged. Both Claire and Ceasar later
According to Ceasar, the intruder then retreated into the kitchen, which, by this time, had been illuminated by Gabriel, who had arrived from his basement bedroom to investigate the disturbance. Ceasar followed the intruder and observed Gabriel and the intruder engage in a deadly struggle. There was a shot, after which Gabriel and the intruder bоth fell to the kitchen floor, and then there was another shot. Ceasar began to use the end of the golf club shaft to stab the intruder but fell down during the scuffle. The intruder was able to break away, escaping through a sliding glass door in the dining area and disappearing into the night. Before the intruder fled, Ceasar was able to look at the intruder‘s face once again, because, by this time, the ski mask had been completely removed. Ceasar next remembered his wife coming into the kitchen and emergency personnel arriving on the scene.
Ceasar, Claire, and Gabriel were rushed to the emergency room at Rhode Island Hospital. Claire had incurred a minor gunshot wound in her upper leg, and Ceasar had suffered one gunshot wound to his arm and another to his leg. Gabriel, however, was pronounced dead as a result of a gunshot wound to the torso shortly after he was brought to Rhode Island Hospital.
When Claire and Ceasar arrived at the emergency room, they were met by рolice officers who attempted to obtain descriptions of the intruder from them. Claire described the intruder as a white male with slicked-back, gray hair, who looked over the age of forty. She also described him as four inches taller than her husband, who was about five-feet and seven-inches tall. She believed that the man was wearing a black hooded sweatshirt. Ceasar‘s description was similar—he said that the intruder was a man with “wrinkles,” “beady eyes,” a receding hairline, and “slicked back hair” that was either red in color or possibly gray in color with blood matted into it. A laboratory report from the hospital, which was later admitted into evidence, indicated that Ceasar‘s blood alcohol content was 0.134 shortly after he was first seen at the emergency room.
Shortly thereafter, a retired Warwick Police Captain Linda I. Eastman, who was a sketch artist, created a composite sketch based on Claire‘s description of the intruder. The sketch was then shown to Ceasar, who suggested that the intruder had more of a receding hairline than was depicted in the first sketch; Claire agreed. The composite sketch was then distributed within the Rhode Island law-enforcement community, resulting in a tentative identification of Bishop as the intruder.
Warwick Police Det. Sgt. Robert Bentsen, who was the lead investigator in the case, was advised that the sketch resembled Bishop. On July 1, 2007, Det. Sgt. Bentsen attempted to visit Bishop at his last known address, and when nobody answered the door, Det. Sgt. Bentsen visited another location where he believed Bishop might be visiting—the home of Bishop‘s sister and her husband—to no avail. However, Bishop‘s brother-in-law called another location where he believed Bishop was living and left a message for Bishop to call Det. Sgt. Bentsen. Later that afternoon, Bishop returned Det. Sgt. Bentsen‘s telephone call. In that conversation, Bishop indicated that he wanted to talk about the June 27, 2007 incident, but said that he could not because hе had sustained some minor injuries over his left eye—explaining that he had hurt himself at his place of employment. The telephone call ended
In addition, Warwick Police Det. Barbara Frazier, who worked in the Bureau of Criminal Identification, obtained a warrant authorizing the search of the home of Reine Bishop, Bishop‘s ex-wife. Parole logs, in which Bishop was required to memоrialize everywhere he went and the persons with whom he was with, were seized from a dresser located in Reine‘s bedroom. One of those logs, dated June 27, 2007, reflected the notation: “stayed overnight at Reine‘s mothers.” However, another parole log for the same day indicated that Bishop had left Reine‘s home shortly before midnight. No satisfactory explanation for that discrepancy ever was offered.
Eventually, by tracing a telephone call, Det. Sgt. Bentsen was able to locate Bishop. On July 3, 2007, Bishop was taken into custody without incident. At police headquarters, Bishop‘s photograph was taken, and hair samples and DNA samples were obtained.
That same afternoon, Ceasar and Claire were asked to report to police headquarters for additional questioning; they were not told specifically what the questions would involve. In fact, Det. Frazier had compiled a photo array. The photo array was shown to Claire and Ceasar, independently of each other, and both identified Bishop as the intruder.2
2
Forensic Evidence Development
After the crime scene was secured, detectives began to develop forensic evidence. Physical evidence—including the ski mask, several bullet casings, a seat cover of a chair from the deck, and the shaft and head of the golf club—was retrieved from the scene, and numerous photographs were taken. Blood samples were also collected from some of the physical evidence, as well as from a number of areas within and around the home, including the hallway, kitchen, dining area, and the sliding glass door. The samples were submitted to the Rhode Island Department of Health for DNA analysis, where it was determined that certain samples that were tested —the ski mask, the kitchen and dining room, the seat cover, a portion of one of the Venetian blinds, and the golf club head—matched Bishop‘s DNA. Further, a forensic examination was conducted on hair that wаs found inside the ski mask. This also matched a hair sample retrieved from Bishop when he was taken into custody.
In addition, although there was no evidence of a forced entry at the Medeiroses’ home, the photographs from the kitchen portrayed a violent struggle, as emphasized by large quantities of blood on the floor, the walls, and the Venetian blinds. There was also a trail of blood leading from the sliding glass door that was near the dining area, which allowed the detectives to track the route of the intruder‘s escape. Indeed, the blood trail indicated that the intruder exited the house onto the deck, cut through the backyard, passed some foliage and a fence on the side of the
B
Pretrial Motions
On February 6, 2008, an indictment was returned against Bishop. Before the trial commenced, the state had filed various motions in limine, three of which undеrlie the issues now before us on appeal. One of the motions filed by the state was “to prohibit evidence of the presence of alcohol or controlled substances in the blood of [Ceasar, Claire, and Gabriel],” and another was “to prohibit evidence of the fact that marijuana and Inositol3 were found in the bedroom of Gabriel.” The trial justice did not formally rule on these motions after they were argued. However, evidence of Ceasar‘s alcohol consumption was later admitted at trial, but evidence of Ceasar, Claire, or Gabriel‘s alleged use or possession of controlled substances was excluded. Indeed, during the trial, when defense counsel attempted to cross-examine Ceasar and Claire about their alleged drug use on the evening in question, the trial justice sustained the state‘s objection, ruling that defense counsel had failed to proffer any evidence that the use of drugs had affected the memory or cоnduct of the witnesses. Similarly, when defense counsel sought to cross-examine Warwick Police Det. Daniel Gillis of the Bureau of Criminal Identification about the marijuana and cutting agent found in Gabriel‘s bedroom, the trial justice sustained the state‘s objection to the admission of such evidence because defense counsel had not established its probative value.
The other relevant motion was the state‘s motion to allow the introduction of the following evidence:
“1. That [defendant] was incarcerated at the [Adult Correctional Institutions (ACI) ] before August, 2006;
“2. That [defendant] had been on parole since August, 2006 and remained on parole until July 3, 2007;
“3. That [defendant] had a parole officer from August, 2006 through July 3, 2007 * * * whom he reported to;
“4. That [defendant] failed to appear for a required meeting with his parole officer on July 2, 2007;
“5. That [defendant], as a condition of parole, maintained a log of his daily travels;
“6. That a[w]arrant for a [v]iolation of his parole was issued on July 2, 2007 and еxecuted on July 3, 2007.”
Conversely, defense counsel filed a motion in limine to prohibit direct or indirect references by the state and its witnesses to various evidence, including, as relevant to this appeal, “[a]ny testimony of the prior record of the defendant,” “[a]ny testimony or reference to defendant‘s parole status,” and “[a]ny testimony or reference to defendant‘s parole ‘log,’ or introduction of said log.” When he ruled on these motions, the trial justice excluded any reference to Bishop‘s incarceration, but he did allow limited evidence concerning Bishop‘s parole status at the time of the incident in question. The trial justice based his decision on a finding that “under the circumstances * * * the parole status of [Bishop] d[id] not substantially outweigh its probative value due to the fact that it is something that‘s intertwined through the testimony of a number of witnesses and
After the hearing on the motions in limine, a trial before a jury commenced, beginning on February 23, 2009 and ending on March 4, 2009. During the trial, testimony was presented from twenty-one witnesses for the state, including Ceasаr and Claire, who testified about the home invasion that occurred on June 27, 2007, and many of the police detectives involved in the investigation and development of the evidence against Bishop. In addition, Kenneth Turchetta, an acquaintance of Bishop‘s, testified that he received telephone calls from Reine early on the morning of June 28, 2007. He said that he recognized Bishop‘s voice in the background, and he remembered Reine saying that they needed a doctor. Similarly, Daniel Antonelli, who had employed Bishop as a woodworker for about six months starting in August 2006, recalled that Bishop stopped by on June 28, 2007 and asked Antonelli to provide him with a false alibi—that Bishop had been injured while working at Antonelli‘s shop and that the injury was caused by some pipe staging. Antonelli initially agreed to go along with the alibi suggestion, but within a day or two, he changed his mind and informed Bishop that he would not lie on Bishop‘s behalf.
Finally, Bishop took the stand and offered a version of the fаcts that was strikingly different from the description that had been provided by Ceasar and Claire. Bishop did not deny that he was inside the home of Ceasar and Claire on the night in question. However, he explained that he had been at Reine‘s house, and, at some point during the night, he saw a shadow pass by the bedroom window. He said he went outside to investigate, but he did not discover any intruder. He claimed that he sat on the front stairs, at which point he heard someone call out his name. He realized that the person who was calling his name was in front of Ceasar and Claire‘s driveway. Bishop walked towards the person, who said, “my brother wants to talk to you,” and led Bishop inside the home. Bishop testified that he entered the house, and the door was immediately shut behind him. According to his testimony, he immediately found himself surrounded by three men. One of the men put a gun to Bishop‘s ear, while another placed a ski mask over his head and remarked, “he‘s looking like a burglar now.” The third man retrieved a golf сlub and began to strike Bishop with it. Bishop said a gun went off before the first blow from the golf club, but that he was not wounded. The men moved Bishop to the kitchen, where more shots were fired, and Bishop found himself on the floor, struggling with the man who possessed the gun.
Bishop explained that he attempted to escape through a sliding glass door, but on an adjacent deck, he saw the man with the gun. The man attempted to shoot him, but the gun merely clicked and the man ran off across the yard. Bishop tried to follow him, but he heard police sirens and retreated, first across the street next to Reine‘s house and then to a friend‘s house. He claimed that he bandaged his head and called Reine to pick him up.
The jury found Bishop guilty as to all counts submitted to it.4 Bishop filed a motion for a new trial, which was denied on April 28, 2009. He was subsequently sentenced to life imprisonment without the
II
Standard of Review
We have long held, and in this jurisdiction it is beyond peradventure, that “decisions concerning the admissibility of evidence are ‘within the sound discretion of the trial justice, and this Court will not interfere with the trial justice‘s decision unless a clear abuse of that discretion is apparent.’ ” State v. Gaspar, 982 A.2d 140, 147 (R.I.2009) (quoting State v. Mohapatra, 880 A.2d 802, 805 (R.I.2005)). Likewise, this Court reviews a trial justice‘s decision to limit the scope of cross-examination for an abuse of discretion. State v. Clark, 974 A.2d 558, 583 (R.I.2009).
Similarly, “[t]he admission or exclusion of evidence ‘under
III
Analysis
A
Consumption of Intoxicants
Bishop argues that the trial justice abused his discretion when he disallowed evidence that Ceasar, Claire, and Gabriel had either taken or possessed drugs on the evening of the incident and, thus, violated his constitutional right to cross-examination. Bishop maintains that there was evidence of “heavy alcohol and drug use by those living in the home” and that that supports a finding of intoxication.
It is well recognized that proof that a witness consumed intoxicating substances at or around the time of the event that he or she is testifying about is relevant to impeach a witness‘s ability to perceive an event, to remember the facts, and to accurately relate those facts at trial. See Avarista v. Aloisio, 672 A.2d 887, 891 (R.I.1996) (explaining that evidence of intoxication is permissible “to test the witnesses’ accuracy, memory, veracity, or credibility” citing State v. Crowhurst, 470 A.2d 1138, 1143 (R.I.1984)); O‘Brien v. Waterman, 91 R.I. 374, 381, 163 A.2d 31, 35 (1960). This alone, however, is not enough. Contrary to Bishop‘s argument—that evidence of the influence of drugs is nеver excludable on relevance grounds because credibility is always relevant —the admissibility of evidence regarding consumption of intoxicating substances is not completely unfettered: “neither party may question a witness merely to show that he or she may have consumed some potentially intoxicating substance before an event at issue in the case has occurred” in an attempt to affect credibility. State v. Rice, 755 A.2d 137, 148-49 (R.I.2000) (citing State v. Amaral, 109 R.I. 379, 386, 285 A.2d 783, 787 (1972)).
Bishop improperly conflates the holding that evidence of intoxication is “never excludable on relevance grounds” with the proposition that such evidence is always admissible. State v. Squillante, 622 A.2d 474, 481 (R.I.1993). This is an incorrect reading of the rules of evidence and does not comport with our longstanding interpretation thereof. Indeed, under
Specifically, under the Handy procedure, before evidence of the consumption of intoxicants may be introduced into evidence, “the trial justice shall conduct a preliminary evidentiary hearing on th[e] issue in the absence of the jury” to resolve whether evidence of consumption rises to such a level that it should be admitted at trial. Handy, 105 R.I. at 431, 252 A.2d at 441-42; see Clark, 974 A.2d at 583. Only if the trial justice finds “that the evidence is such that different minds can naturally and fairly come to different conclusions on the question of intoxication, * * * then and only then, may evidence of [consumption of intoxicants] be admitted under proper instruction” given to the jury. Handy, 105 R.I. at 431, 252 A.2d at 442. Accordingly, as a predicate to the admission of evidence of intoxication, the trial justice must be satisfied that the evidence is sufficient to allow a reasonable juror to conclude that the witness was, in fact, intoxicated.
In Amaral, 109 R.I. at 387, 285 A.2d at 787-88, we extended the application of the Handy procedure to criminal cases. See also State v. McRae, 31 A.3d 785, 790 (R.I.2011); State v. Mattatall, 114 R.I. 568, 572, 337 A.2d 229, 232 (1975). We have also applied this test equally to admitting evidence of drug use and other intoxicants. See State v. Ahmadjian, 438 A.2d 1070, 1088 (R.I.1981) (applying Handy to marijuana); Mattatall, 114 R.I. at 572, 337 A.2d at 232 (applying Handy to narcotics, as well as alcohol).6
Indeed, before limiting the evidence of Ceasar‘s drug use, the trial justice carefully reviewed the challenged evidence. See Clark, 974 A.2d at 564 (emphasizing that a trial justice should “cautiously exercise his or her discretion, ever mindful of the potential for prejudicial error,” when the state seeks to limit or exclude evidence in a criminal case). When he considered the evidence of Ceasar‘s drug use, the trial justice determined that defense counsel had not come forward with any evidence about whether the trace amount of cocaine or any other illicit substance that was found in Ceasar‘s blood would have affected his memory, conduct, or ability to perceive the events that were occurring on the night in question. Id. at 582-83 (Handy standard not met when an individual had been drinking but no proof was presented as to a lack of physical and mental faculties). Although defense counsel emphasizes the laboratory report, which indicated trace amounts of cocaine, opiates, and cannabinoids in Ceasar‘s system,7 the trial justice concluded that there was nothing of evidentiary value that would quantify the amount of cocaine that may have been in Ceasar‘s system at the time of the incident, nothing to show how long the drug may have been in his system, and nothing of evidentiary value to demonstrate that any cocaine in Ceasar‘s system was sufficient to affect his ability to perceive the events. Indeed, the trial justice noted that defense counsel “advised the [c]ourt * * * that he d[id] not have an expert to testify whether or not the amount of cocaine [wa]s significant, whether it would affect Ceasar Medeiros‘s memory or his conduct on the evening in question, nor [wa]s there a proffer as to what the expert would testify to concerning the issue of how long cocaine and its various forms might stay in the human body * * *.” Based on this lack of proof, the trial justice held that the evidence contained in the
firmed in State v. Clark, 974 A.2d 558, 583 n. 24 (R.I.2009), that Handy and its progeny establish the procedure for determining the admissibility of this evidence.
Even less evidence was presented by Bishop with regard to Claire and Gabriel‘s alleged intoxication. The evidence Bishop‘s trial counsel was prepared to offer about Claire was a statement made by Ceasar to Det. DiGregorio that “everyone drank and smoked marijuana” on the night of the incident. Defense counsel argued to the trial justice that smoking marijuana was relevant to “set[] the tone of what was going on in the house before the defendant supposedly entered, and * * * [to explain] what state of mind [Ceasar, Claire, and Gabriel] were in before the defendant came in.” However, the trial justice quite correctly found that this offer of proof was insufficient under Handy, Amaral, and Rice, because defense counsel had not come forward with any evidence “that either the ingestion of illicit drugs, marijuana, or alcohol arose to the level of intoxication.”
In a similar vein, defense counsel argued that the existence of marijuana and a cutting agent found in Gabriel‘s bedroom should be presented as “pаrt of the climate of what was going on in th[e] house.” The trial justice sustained the state‘s objection to this line of inquiry because defense counsel failed to establish the probative value of this evidence. We agree with the trial justice and, accordingly, hold that the trial justice did not abuse his discretion in limiting the cross-examination of Ceasar, Claire, and Gabriel‘s alleged drug use and possession.
We pause to note that, in our opinion, the trial justice was more than fair when he allowed testimony about Ceasar‘s alcohol intake. The jury was well aware of Ceasar‘s potential credibility issues with regard to his capacity to recount the events at issue, which had been significantly called into question by his own testimony that he had consumed “a couple of cocktails” when he went out to lunch with his sister-in-law on June 27, 2007. Further, when pressed on cross-examination, he stated that he actually imbibed somewhere around four cocktails at lunch and drank still more when friends stoрped by the house earlier that evening. In addition, before it retired to deliberate, the jury was provided with a copy of the hospital laboratory report. Although the references to any illegal substances had been redacted, the report nonetheless indicated that Ceasar‘s blood alcohol content was 0.134. Accordingly, because the trial justice did not abuse his discretion when he found that the evidence of drug use and possession was inadmissible under Handy and its progeny, and given the fact that defense counsel was provided with a reasonable opportunity to impeach Ceasar about his alcohol usage, we hold that the trial justice did not violate Bishop‘s confrontation rights by limiting defense counsel‘s cross-examination with respect to the use of or possession of any drugs.8
A close look at the record reveals that the trial justice did not limit the cross-examination because he believed that, as a matter of law, Bishop needed an expert to testify to the intoxicating effects of ingesting cocaine and other illicit substances. Even though he noted that there was an absence of expert testimony, the trial justice was simply considering the evidence before him in deciding whether Bishop had produced the quantum of evidence sufficient to allow evidence of intoxication to come before the jury —a fact-intensive analysis. Indeed, the veteran trial justice concluded that the inference suggested by Bishop—that, based on the presence of cocaine in Ceasar‘s bloodstream, the jury could infer that Ceasar was intoxicated—was far too conjectural and speculative to meet the Handy standard. See Ahmadjian, 438 A.2d at 1088 (cross-examination properly limited when the defendant failed to offer an evidentiary basis for his allegation that a witness was intoxicated). The trial justice explained that he had “reviewed the drug treatment of at least hundreds, if not thousands of defendants over the years” and was “aware that some illicit drugs * * * may remain in the human body and its bloodstream for days, even weeks after consumption.” Without an evidentiary link between the presence of illicit substances in Ceasar‘s blood and the effect of such substances on his cognitive abilities, the laboratory report had little value and fell far short of meeting the standard of intoxication set forth in Handy. See Mattatall, 114 R.I. at 573, 337 A.2d at 233 (attempting to infer that an individual was intoxicated based on the presenсe of alcohol and narcotics in his system was “far too tenuous” to meet the Handy standard and, therefore, was properly excluded).
Finally, Bishop contends that the trial justice erred as a matter of law because he did not follow the procedure outlined in Handy. We find this argument to be somewhat disingenuous; Bishop—the party who was attempting to introduce evidence of intoxication—never requested a Handy hearing in the first place. Nevertheless, we note that, even if the trial justice did not precisely follow the voir dire procedures outlined in Handy, the conferences that the trial justice did conduct on the record indicate that he “act[ed] within the spirit” of Handy and its progeny. State v. Carvalho, 892 A.2d 140, 147-48 (R.I.2006) (A hearing on defendant‘s motion in limine regarding possible intoxication “indicate[d] that the trial justice * * * act[ed] within the spirit of our decisions in the Handy line of cases.“). Specifically, the trial justice conducted a hearing on the state‘s motions in limine and held sidebar conferences when the
accordance with our discussion above, the trial justice properly excluded evidence of Ceasar‘s usе of drugs because defense counsel failed to offer evidence of intoxication.
B
Admission of Parole Status
Bishop also argues that the trial justice abused his discretion by allowing testimony about Bishop‘s parole status. Bishop maintains that this evidence should have been excluded pursuant to
Before admitting otherwise probative evidence, a trial justice must carefully consider the relevance of the evidence relative to its potential prejudicial effect, pursuant to
After a carefully measured and thoughtful analysis, we are of the firm opinion that the trial justice did not abuse his discretion in permitting the references to Bishop‘s parole status. In considering the motions in limine, the trial justice explained that evidence of Bishop‘s parole status was “highly relevant” and “needed by the state to prove its case.” Specifically, he explained that the evidence regarding Bishop‘s parole status was relevant to explain Bishop‘s “opportunity,” including “his whereabouts at the time of the crimes,” as well as “his knowledge, identity, and intent” regarding June 27, 2007. Indeed, the evidence regarding Bishop‘s рarole status was relevant to explain how the police detectives identified him as a
Further, the trial justice was careful to mitigate any prejudicial impact that evidence оf Bishop‘s status as a parolee might have had. The trial justice ordered that Bishop‘s “parole status w[ould] only be admitted for limited purposes, such as proving opportunity, knowledge, identity, and intent regarding the June 27-28, 2007 incident,” and he instructed the jury as to that. Additionally, in assessing potential prejudice, the trial justice determined that Bishop‘s parole status was factually connected to the crimes charged, and was so intertwined with the facts that it became part and parcel of the entire case, such that the probative value substantially outweighed the danger of prejudicial harm. See State v. Woodson, 551 A.2d 1187, 1191 (R.I.1988) (probative value substantially outweighed undue prejudice when the use of drugs at issue was factually connected to the crimes charged and “so intertwined with the facts that it became part and parcel of the entire case“). Specifically, the trial justice considered the state‘s proffer—based on “the discovery materials including the grand jury presentаtion“—that (1) Bishop “was arrested on a parole warrant“; (2) Bishop “gave a statement to the police on” the day he was arrested, in which he made “several references to his parole status and the parole logs“; (3) Bishop‘s parole logs, which were seized at Reine‘s house pursuant to a warrant, reflected that Bishop left Reine‘s house less than two hours before the incident in question; (4) Bishop did not report to his parole officer on the Monday after the incident, and there was “substantial evidence that the reason [he] failed to report [wa]s because he suffered a serious injury to his head“; (5) Turchetta was to testify that Reine called him on the morning after the murder to ask him for a doctor, explaining that Bishop “c[ould not] go to [just any doctor] because of his probation [sic]“; and (6) Antonelli, who hired Bishop as a condition of his parole, was to testify that “shortly after the murder, [Bishop] asked him to falsely confirm that Bishop had been injurеd while at work.”11 See DeJesus, 947 A.2d at 883 (explaining that evidence is not to be excluded under
The trial justice further safeguarded against the risk of unfair prejudice by issuing an appropriate cautionary instruction to the jury about the very limited purpose for which the evidence concerning Bishop‘s parole was offered. Specifically, the trial justice instructed that the evidence could not be used to support a conclusion that Bishop was of bad character and, thus, may have committed the offenses for which he was on trial; the evidence could be used only for limited purposes, such as proving opportunity —for example, his whereabouts at the time of the crimes at issue to which the parole logs speak—or to explain his opportunity, plan, or identity regarding the incident in question.12 See State v. Ciresi, 45 A.3d 1201, 1214 (R.I.2012) (“In cases * * * in which the evidence in question can be used for multiple purposes, some of which are permissible and others of which are not, the trial justice should issue specific instructions to the jury explaining ‘the limited purpose [or purposes] for which the jury may consider it.’ ” quoting State v. Garcia, 743 A.2d 1038, 1052 (R.I.2000)).
Notes
“I again instruct you that if there is evidence that the defendant was on parole at the time of the incident in question, you may not use such evidence to conclude that he may be responsible for any of the offenses for which he is now on trial. The fact that the defеndant may have been previously incarcerated or has been on parole must not prejudice you into thinking that he may have committed the crimes for which he is now on trial before you.
“If the State offers such evidence, it will be for a very limited purpose, and that is to provide a possible explanation for the defendant‘s actions subsequent to the date of the alleged offenses.”
The trial justice made the same point during the final jury instructions:
“During the trial of this case, there was evidence offered that the defendant was on parole as of late June, 2007. I again instruct you that you may not use such evidence to prejudice you into thinking that he may have committed the crimes for which he is now on trial. I allowed such evidence for the limited purpose of providing context for the defendant‘s actions subsequent to the date of the alleged offense and for whatever value, if any, it has in showing defendant‘s opportunity, plan, or identity.”
In addition, with regard tо the reference to Det. Frazier obtaining a DNA sample from Bishop at the ACI, the trial justice instructed:
“The last question and answer * * * concerning the location at which detective Frazier took the second buccal swab from the defendant are stricken, and it is not part of the evidence. If the defendant was detained as of July 6, 2007, that is of no concern to you and it has no evidentiary value. It is not evidence and not even a suggestion that Mr. Bishop may have been responsible for the commission of the offenses for which he is now on trial. You must make your decision based upon the evidence which I allow you to hear and not speculation.”
Finally, given the quantity and quality of the evidence inculpating Bishop, even if there were error—and it is our firm opinion that there was none—it would have been harmless beyond a reasonable doubt. See Ciresi, 45 A.3d at 1215 (admission of uncharged bad conduct was harmless in light of the overwhelming evidence presented against the defendant at trial). Here, Claire and Ceasar both identified Bishop‘s picture from a photo array. Further, the DNA samples collected from the physical evidence at the crime scene matched the samples obtained from Bishop. In addition, the hairs hаrvested from the ski mask matched exemplars from Bishop‘s head. Moreover, Bishop testified on direct examination that he failed to seek medical aid because he did not wish to call attention to himself for fear that he would have to explain the incident to his parole officer, and defense counsel referred to Bishop‘s parole in his opening statement —that Bishop was “afraid about violating his parole“—and in his closing argument when he attempted to explain away Bishop‘s reluctance to report the incident or to seek medical assistance. Furthermore, Bishop‘s version of the incident was riddled with inconsistencies and was ultimately undercut by the testimony of Turchetta, who testified about Reine‘s telephone call seeking medical assistance for Bishop, and that of Antonelli, who testified that Bishop asked him to lie on his behalf about the cause of his injuries. It is clear from the record that the weight of the evidence against Bishop was enormous.
Conclusion
For the reasons set forth in the opinion, the judgment of the Superior Court is affirmed. The papers of the case are returned to the Superior Court.