STATE v. Antonio O. WHITFIELD.
No. 2012-244-C.A.
Supreme Court of Rhode Island.
June 30, 2014.
1011
I look to the 2003 Advisory Committee‘s Notes to
Moreover, the majority‘s holding muddies the waters with respect to who is bound by a Superior Court‘s grant of summary judgment in a defendant‘s favor prior to a ruling on class certification. See 6A Federal Procedure, § 12:276 at 377 (stating the typical rule that, if a motion for summary judgment is “granted before a class is certified, the ruling binds only the individual partiеs“); see also id. § 12:404 at 561 (“A summary judgment entered in favor of the party opposing a class will not bind absent class members * * * prior to a class action determination. However, if a summary judgment is granted to the party opposing the class after the class has been certified * * * the judgment will have classwide res judicata effect on all those class members who do not opt out of the class upon being provided with notice.“).
For the foregoing reasons, it is my opinion that, in accordance with the law on class actions and irrespective of the majority‘s having, for the purposes of summary judgment, treated the class as having been certified, the named plaintiff represеnting the class must individually meet the requirements for stating a claim under the DTPA, including (as one factor) whether he or she sustained a “substantial injury.”
In order to make clear my exact line of reasoning, I reiterate that I explicitly decline to opine on the propriety of the majority‘s decision to treat the plaintiff class as if it had been certified. For that reason, I need not contend with Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666 (R.I. 2004), which is cited by the majority. The opinion in Chavers is used by the majority only to support its decision to treat the plaintiff class as having been certified; Chavers does not support, and indeed could not support, the portion of the majority opinion with which I take issue; my point, succinctly stated, is that the majority errs in aggregating the damages of the рotential plaintiff class, regardless of whether or not the majority treats the plaintiff class as having been certified.
Christopher R. Bush, Department of Attorney General, for State.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
OPINION
Justice GOLDBERG, for the Court.
This case stems from the brutal, late-night beating of a young man that occurred on the East Side of Providence. The complainant suffered a head wound that required eight stitches, a severe concussion, a broken nose, and multiple lacerations and contusions over his entire body. After a four-day jury trial, the defendant, Antonio O. Whitfield (Whitfield or defendant), was convicted of two counts of assault with a dangerous weapon and one count of simple assault for his role in the fracas. On appeal, the defendant argues that (1) the trial justice abused his discretion by allowing the state to impeach his credibility with fourteen prior criminal convictions and (2) the trial justice erred by denying defense counsel‘s motion to pass the case after the prosecutor allegedly vouched for the credibility of two witnesses during her closing argument. The parties appeared before this Court on February 25, 2014, pursuant to an order directing them to show cause why the issues raised in this appeal should not summarily be decided. We are satisfied that cause has not been shown and that the appeal may be decidеd at this time. For the reasons that follow, we affirm the convictions.
Facts and Travel
Michael Newell (Newell or complainant) lived in a third-floor apartment on Angell
Within minutes, Newell watched аs another female employee left work and began walking down Angell Street toward her car. She did not walk far. A black Dodge Charger stopped on Angell Street and the occupants began shouting catcalls at the woman, who immediately turned around and began walking back toward the group gathered in the vicinity of Kelsey‘s car, which included the complainant, Kelsey, three Liquid Lounge bouncers, and two patrons. Undeterred, the Charger reversed direction and pulled into the driveway where the group was standing. At that point, Newell and the bouncers told those in the Charger to leave. According to Newell, rather than depart, the occupants of the Charger resрonded by hurling unopened beer bottles at them from the rear driver‘s side window.
Newell testified that as he approached the rear driver‘s side door of the Charger, he was pulled through the window of the vehicle, and the Charger backed out of the driveway and sped forward about 150 feet. When the vehicle came to a stop, the door opened, and Newell fell to the ground. As he attempted to stand, he was struck in the temple with an unopened beer bottle and again fell to the ground. Newell was repeatedly kicked and stomped on his head and upper body by three individuals for an extended period of time. Newell testified that he knew that there were three assailants during the attack because there were distinct sets of legs and feet simultaneously assaulting him; however, he could not see the faces of his attackers.1 According to Newell, the bouncers finally reached the Charger and attempted to intervene. Eventually, the police arrived on the scene; Newell was transported to Rhode Island Hospital, where he received eight stitches around his temple. Newell also suffered “a severe concussion, a broken nose, and multiple lacerations and contusions from head to toe.”
A Providence police officer and a Brown University security officer responded to the melee: Providence police officer Joshua Greeno (Officer Greeno) and Brown University security officer Nicholas Gonsalves (Gonsalves). Gonsalves was on foot patrol—checking the University‘s Environmental Lab—when he heard a loud commotion coming from Angell Street. Gonsalves testified that as he walked toward the noise, he saw a Dodge Charger stopped in the middle of the road and that individuals in the car and on the sidewalk were shouting at each other. Gonsalves testified that a beer bottle was thrown from the rear of the vehicle towards Newell, who was standing on the sidewalk.
Gonsalves then saw Newell approach the vehicle “towards the rear window” and “actually go into the vehicle,” at which time the car started to move and then abruptly stopped.2 Gonsalves testified
According to Gonsalves, he did not approach the fracas because his job was limited to that of a security officer with no arrest power; however, he broadcast a call to Brown University police. Within minutes, a police cruiser approached with audible sirens. At that point, Gonsalves saw two assailants return to the vehicle, while defendant fled on foot. The vehicle was stоpped by police, and a Brown University police unit located defendant and brought him back to the scene for a show-up. Gonsalves identified him as one of the assailants.
While these events were unfolding, Officer Greeno arrived on the scene to find Newell on the ground. He then learned that the black Dodge Charger had been stopped by the police a short distance away, with two suspects in the vehicle and that the third suspect also had been apprehended.
After the close of the state‘s case, defendant‘s motion for judgment of acquittal was denied by the trial justice. Before the start of the defense‘s case, defense counsel inquired about whether the state intended to introduce defendant‘s prior convictions, in the event he testified on his own behalf. The state sought to admit fourteen prior convictions, and defendant argued that the convictions were inadmissible under
The defendant testified in his own defense and gave an account of the events that markedly differed from the state‘s case. According to defendant, in the early morning hours of November 27, 2008, he had just left a club in Providence with two friends: Mario and Kenny. As Kenny proceeded down Angell Street, Mario was trying to talk to a girl, but she “was running away from something.” According to defendant, Kenny then reversed direction and pulled into a parking lot where there was a group of men. The defendant testified that the group of men started hitting the car and yelling obscenities. The defendant contends that, while he sat in the rear driver‘s side seat, someone hit him in the face and then tried to pull him through the window. He did not, however, identify that man as Newell. At the same time, a similar altercation began through the front passenger window, but that passenger—
On cross-examination, defendant‘s credibility was impeached through the introduction of his fourteen prior criminal convictions. The trial justice immediately gave a limiting instruction, informing the jury that evidence of defendant‘s prior convictions could only be considered in relation to his credibility and not for propensity purposes. Additionally, on cross-examination, defendant stated that he did not give the police the name “Keeron Hardmon,” but that he had his cousin‘s ID in his pocket, and the police took that ID as his. The defendant admitted that he did not correct the police officers’ misimpression regarding his identity because he was aware of the outstanding warrant for his arrest.
On two occasions during the рrosecutor‘s closing arguments, defense counsel objected and moved to pass the case. The defendant argued that the prosecutor‘s remarks amounted to a comment on his right to remain silent and also alleged that the prosecutor had vouched for the credibility of Officer Greeno.5 The trial justice refused to pass the case, but stated that he would give a limiting instruction on both points. Although defense counsel wanted a limiting instruction in the event the trial justice refused to pass the case, he argued nonetheless that he did not think that “there‘s any instruction that can cure the prejudice that‘s inured to Mr. Whitfield.” In addition to an instruction regarding defendant‘s right to remain silent, the trial justice instructed the jury that the drawing of inferences and the assessment of credibility is a function exclusively reserved for the jury.
The defendant was found guilty on all counts: assault with a dangerous weapon (beer bottle), assault with a dangerous weapon (shod foot), and simple assault. After trial, defendant moved for a new trial, and the trial justice denied the motion. He was sentenced to four years at the Adult Correctional Institutions with six months to serve and three-and-a-half years suspended with probation on count 1; four years with six months to serve and three-and-a-half years suspended with probation on count 2, to run concurrently with count 1; and one year suspended with probation on cоunt 3. Additionally, defendant was ordered to complete an anger management program and to pay $5,178.58 in restitution for the victim‘s medical bills.
Standard of Review
This Court reviews evidentiary rulings under an abuse of discretion standard. See State v. Tetreault, 31 A.3d 777, 782 (R.I. 2011). A trial justice “has broad discretion in deciding whether or not to admit evidence of prior convictions under
Similarly, “a decision to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice.” State v. McRae, 31 A.3d 785, 789 (R.I. 2011) (quoting State v. Suero, 721 A.2d 426, 429 (R.I. 1998)). This Court defers to the trial justice on such a motion because he or she “has a ‘front row seat,’ allowing him or her to ‘best determine the effect of the improvident remarks upon the jury.‘” Id. (quoting State v. Tempest, 651 A.2d 1198, 1207 (R.I. 1995)). “As such, the trial justice‘s determination concerning the prejudicial effect of evidence and the jury‘s ability to render a fair and impartial verdict are reviewed by this Court under an abuse of discretion standard.” Id.
Analysis
Prior Criminal Convictions
The defendant argues that the trial justice abused his discretion by allowing the state to impeach his credibility with fourteen prior criminal convictions. The defendant accumulated those fourteen convictions in less than five years after his eighteenth birthday. The conviсtions include possession of marijuana, operating under the influence of alcohol, resisting arrest, and numerous assaults and batteries, among other offenses. In his ruling, the trial justice considered defendant‘s “series of crimes“—detailing the different types of offenses involved—and, although he was concerned about the jury‘s potential consideration of the convictions as propensity evidence, he concluded that the potential danger to defendant could be cured by a limiting instruction at the appropriate time.
”
In 2011, this Court decided two cases on nearly the same issue as presented in this case. In Tetreault, 31 A.3d at 781-82, 783, the trial justice allowed the state to impeach the defendant with fifteen prior convictions which spanned sixteen years. On appeal, the defendant argued that eleven of the fifteen convictions were too remote and unduly prejudicial. Id. at 783. We agreed with the trial justice that “given defendant‘s long and continuous record of criminal behavior throughout most of his adult life, the jury was entitled to consider the proffered convictions.” Id. at 784. Accordingly, we upheld the admission of the convictions “[i]n light of the defen-
In McRae, 31 A.3d at 791, the trial justice allowed the state to impeach the defendant with seven prior convictions. On appeal, the defendant argued that three different categories of prior convictions were inadmissible: convictions involving “assaultive behavior,” misdemeanor convictions, and a conviction for obtaining food or accommodations with the intent to defraud. Id. at 792-93. We held that the trial justice did not abuse his discretion as to any of the groups of crimes for impeachment purposes. Id. Specifically, although the defendant was charged with domestic assault, we held that the defendant‘s prior “assaultive” convictions were no more prejudicial than those admitted in other cases decided by this Court. Id. at 792.
Here, because at the time of trial all of defendant‘s prior convictions were less than five years old, none of the convictions were remote. While some of defendant‘s prior convictions were for assault and battery—the same type of offense with which defendant was charged—we repeatedly have declared, most recently in McRae, 31 A.3d at 792, that the similarity of the prior offenses does not render them per se inadmissible for the purpose of impeaching a testifying defendant‘s character for truthfulness. Finally, although his record was not as lengthy as the defendant‘s record in Tetreault, defendant nonetheless displayed his disdain for the law by accumulating fourteen adult criminal convictions before his twenty-third birthday. A crime spree spanning fewer than five years that resulted in fourteen criminal convictions is relevant on the issue of whether a testifying defendant will honor his oath to testify truthfully, given his demonstrated disrespect for the law. Thus, considering the factors set out in Tetreault, the prejudicial effect of evidence of defendant‘s prior convictions did not substantially outweigh their probative value. In addition, we note that the trial justice gave a limiting instruction to the jury before the prosecutor asked a series of questions about his prior convictions. Accordingly, in these circumstances, the trial justice did not abuse his discretion by allowing the state to impeach defendant‘s credibility with his prior criminal convictions.
Motion to Pass
The defendant also argues that the trial justice erred by denying defense counsel‘s motion to pass the case after the prosecutor allegedly vouched for the credibility of two witnesses during her closing argument. First, we must address whether and to what extent this issue was preserved. To preserve an objection to a prosecutor‘s closing argument, defense counsel “must not only make an objection at the time, but must make a request for cautionary instructions * * * or move for a mistrial.” State v. Horton, 871 A.2d 959, 964 (R.I. 2005) (quoting State v. Portes, 840 A.2d 1131, 1141 (R.I. 2004)).
Although defendant contends that the prosecutor vouched for thе credibility of Gonsalves, it is clear that defense counsel made no objection during the prosecutor‘s remarks concerning Gonsalves. Defense counsel‘s two objections, posited during closing argument, solely related to the prosecutor‘s comments about defendant‘s flight from the scene (which defendant does not contest on appeal) and the prosecutor‘s comments about Officer Greeno (which are discussed below). Therefore, the issue of the prosecutor vouching for Gonsalves is waived. See Horton, 871 A.2d at 964 (noting that the defendant must object at the time of the comment and either request a cautionary instruction
Regarding the prosecutor‘s remark about Officer Greeno, it is the state‘s position that the issue was not preserved because defense counsel failed to move for a mistrial or object to the trial justice‘s cautionary instruction. Although the state contends that the transcript of the hearing at sidebar is clear on this point, we are not convinced. The defendant raised two objections in a single, mid-argument sidebar, and each objection separately was argued by counsel. The trial justice declared that he would give a cautionary instruction as to each objection. Defense cоunsel immediately responded, “Just note, Judge, my exception. I don‘t think there‘s any instruction that can cure the prejudice that‘s inured to Mr. Whitfield.” Because the trial justice‘s ruling encompassed both of defendant‘s objections, it is unclear whether defendant‘s exception related to one objection or to both. We are cognizant of the setting: the parties and the trial justice were at sidebar, in the midst of a closing argument, during a criminal trial that spanned several days. A fair reading of defense counsel‘s remark is that he was objecting to the trial justice‘s refusal to pass the case and to give a cautionary instruction as to both of his objections. Therefore, we сonclude that the issue was preserved for our review.
Satisfied that the issue properly is before us, we next address whether the prosecutor‘s comments about Officer Greeno actually constitute vouching for the credibility of a witness. During closing argument, the prosecutor stated, “Do you think Officer Greeno, who appears, I would suggest to you, to be a very by-the-book officer, he stood there at military attention the whole time that he testified to you, do you think he‘s going to risk his career?” This sentence contains two remarks of questionable appropriateness: the reference to Officer Greeno being a “by-the-book officer” and the reference tо the risk to the officer‘s career, presumably in the event that he gave false testimony. We address the latter instance first.
The proper divide between appropriate remarks about an officer‘s credibility and improper comments regarding the impact of perjured testimony on an officer‘s career can be difficult to discern. This tension was highlighted in a decision by the Court of Appeals of Maryland when confronted with the following closing argument by a state‘s attorney:
“You have to weigh the credibility of each individual. Who has a motive to tell you the truth. The Officer in this case would have to engage in a lot of lying, in a lot of deception and a conspiracy of his own to come in here and tell you that what happened was not true. He would have to risk everything he has worked for. He would have to perjure himself on the stand.
“* * *
“[Y]ou have to understand that Officer Williams has no motive to lie, because he has everything to risk in this case. Because he doesn‘t have to go out and make up drug arrests. Because he has plenty of legitimate drug arrests. There‘s absolutely no incentive for him to come in here and tell a story about Mr. Spain.” Spain v. State, 386 Md. 145, 872 A.2d 25, 28, 29 (2005).
The court‘s reaction to this argument was twofold. The court first declared that the prosecutor‘s remarks regarding the officer‘s motivation to lie did not constitute improper vouching because there was no expression of the prosecutor‘s personal belief about the credibility of the officer and the comment did not “explicitly invoke the prestige or office of the State or the particular police department or unit involved.”
“Although the State is free to highlight the incentive, or lack of incentive, of a witness to testify truthfully, courts consistently have held that it is improper to argue that a police officer may be deemed more credible simрly because he or she is a police officer. * * * By invoking unspecified, but assumed, punitive consequences or sanctions that might result if a police officer testifies falsely, a prosecutor‘s arguments imply that a police officer has a greater reason to testify truthfully than any other witness with a different type of job. Although the factfinder generally is made aware that a witness who is a police officer is testifying as to events witnessed while on duty as a police officer, a prosecutor must be careful not to insinuate that the credibility of statements made in this capacity may be assessed at a level of scrutiny other than that given to all witnesses.” Id. at 32.
We also find the First Circuit‘s decision in United States v. Torres-Galindo, 206 F.3d 136 (1st Cir. 2000) persuasive and evincive of the sensitivity regarding comments about a government agent‘s career. In Torres-Galindo, 206 F.3d at 142, the court addressed a comment during closing argument of an Assistant United States Attorney that, if the jury believed a statement by a codefendant, the jury “would also have to believe that [a FBI agent who testified] would actually jeopardize [his] ten years [as an FBI agent].” The First Circuit began its analysis by analyzing whether this remark actually constituted vouching—it contained no statement of personal belief and the FBI agent‘s service time was in evidence, yet the use of the term “jeopardize” in relation to the agent‘s career, while falling short of vouching, did suggest “some knowledge outside the record of punishment that [the FBI agent] could receive for lying in court.” Id. The court declared:
“[W]e hold that this kind of general appeal to believe the police or FBI because of their history, integrity, or public service is inappropriate, although not the worst offense that a prosecutor can commit. While not vouching in the most familiar sense, it does invite the jury to rely on the prestige of the government and its agents rather than the jury‘s own evaluation of the evidence; to this extent, the argument presents the same danger as outright vouching.” Id. (citing United States v. Young, 470 U.S. 1, 18-19 (1985)).
Thus, although courts tend to allow a general reference to a specific officer‘s credibility or lack of motive to lie, a prosecutor‘s reference to the “risk” to an officer‘s career should he or she commit perjury is not appropriate. See Torres-Galindo, 206 F.3d at 142; Spain, 872 A.2d at 32; see also United States v. McMath, 559 F.3d 657, 667 (7th Cir. 2009) (holding that prosecutor‘s comment that police witnesses would lose their jobs if they lied was improper); People v. Adams, 356 Ill. Dec. 725, 962 N.E.2d 410, 414 (2012) (holding that prosecutor‘s comment that officer was “risking his credibility, his job, and his freedom” was improper).6 While a witness‘s status as a
police officer certainly mandates that he or she testify truthfully, we are mindful that, in the context of the criminal justice system, all witnesses are expected to give truthful testimony. We agree with the First Circuit‘s evaluation that a comment during closing argument about the risk to an officer‘s career may invite the jury “to rely on the prestige of the government and its agents rather than the jury‘s own evaluation of the evidence.” Torres-Galindo, 206 F.3d at 142. Therefore, in the circumstances of this case, the prosecutor‘s rhetorical question about whether Officer Greeno would risk his career, while not vouching in the true sense, nonetheless was inappropriate.
Regarding the remaining portion of the challenged remark—“Officer Greeno, who appears, I would suggest to you, to be a very by-the-book officer, he stood there at military attention the whole time that he testified to you“—we perceive no impropriety given the full context of the prosecutor‘s comment. It is important to note that the prosecutor preceded hеr comment with “I would suggest,” and followed it with a reference to his demeanor on the witness stand: “he stood there at military attention the whole time that he testified to you.” It is common to instruct the jury, as occurred here, that they may consider the appearance and demeanor of a witness when assessing the witness‘s credibility.7 Therefore, considering the whole of the prosecutor‘s remark and the jury instructions, the argument that Officer Greeno appeared to be a “by-the-book officer” was merely a comment meant to draw the jury‘s attention to his demeanor while testifying. Accordingly, that comment was not improper vouching.
Although we conclude that a portion оf the prosecutor‘s closing argument was akin to vouching, we are satisfied that the trial justice did not err by refusing to pass the case. A trial justice is vested with considerable discretion when ruling on a motion to pass a case. See McRae, 31 A.3d at 789; State v. Nelson, 982 A.2d 602, 607 (R.I. 2009). The trial justice‘s front-row seat at the trial places him or her in the best position to determine the effect of the remarks on the jury and the proper remedy for any prejudice. See McRae, 31 A.3d at 789. “As such, the trial justice‘s determination concerning the prejudicial effect of evidence and the jury‘s ability to render a fair and impartial verdict are reviewed by this Court under an abuse of discretion standard.” Id.
Here, the trial justice was faced with an objection to a comment that was on the borderline of improper vouching. In his cautionary instruction, the trial justice told the jury that findings of fact and assessment of credibility were exclusively within their province. Specifically, he stated,
“I can assure you that no one, from the State to the defense counsel, to the witnesses, have any inside information. There is no magical formula with regard to credibility. The witnesses were sworn to tell the truth; and the assessment of their credibility is exclusively within your prerogative once the final 12 are chosen to deliberate.”
Conclusion
For the foregoing reasons, we affirm the defendant‘s convictions. The papers may be returned to the Superior Court.
Justice GOLDBERG
Supreme Court of Rhode Island