State v. Barros

Thus, in then parent guilty second-degree minimis. because is injury was de child abuse. Thorpe, parent privi- with is accordance corporal nonexcessive impose leged Accordingly, for the reasons forth set concept has been de- punishment as herein, respectfully I dissent from de- scribed, only application exces- it is majority. cision of the force, physical injury with a coupled sive in the child-abuse stat- that is addressed for the crime of second- Accordingly,

ute. abuse, Thorpe, inapposite. is degree child Thorpe § 11-9-5.3 and My reading of that simple leads me to conclude assault is felony offense to the as- lesser-included STATE charges sault set forth the child-abuse first-degree statute and defined as child (serious bodily injury) and second- abuse Tracey BARROS. (serious physical inju- degree child abuse No. 2008-292-C.A. ry). of either lynehpin The offense is an injury that imposition arises from the Supreme Court of Rhode Island. corporal punishment, an element excessive July required 2011. simply is not for the misde- simple meanor offense of assault. In ac- holding Thorpe,

cordance with our parent may only inflict corpo- nonexcessive ral punishment on a child. The use of corporal punishment

excessive removes parental protections Thorpe, found in 429 A.2d at 788. degree acceptable force that is thus, nonexcessive, “in varies relation sensitivity and character of the child sex, age, physical

[and] child’s condi- tion, as well as in relation to the particular punishment

offense for which is to be met- Thorpe, ed out.” 429 A.2d at 788. If the punishment unreasonable, is excessive or

the parent subject to criminal liability. Id. “a parent When ceases to act in good

faith parental and with affection and acts

immoderately, cruelly, mercilessly

a malicious desire to inflict pain,” then the parental right impose corporal punish-

ment vanishes and the parent has commit-

ted a criminal Finally, offense. Id. if an injury arises from corporal pun- excessive serious,

ishment and the injury is deemed

H61 Zurier, Department Lauren S. of Attor- General, ney for State. DiLauro,

Michael Office of the Public Defender, for Defendant. SUTTELL, C.J.,

Present: GOLDBERG, FLAHERTY, ROBINSON, INDEGLIA, JJ. OPINION

Justice ROBINSON for the Court. defendant, Barros, Tracey appeals conviction, jury

from his after a trial in the Superior County, for Providence Court following cоnspiracy offenses: to com- murder; murder; first-degree mit dis- a firearm while a charging committing violence; unlawfully carrying crime of a firearm without license. appeal, On defendant contends that the (1) trial committed reversible error sup- when he denied defendant’s motion to (2) press when he pre- his confession1 and arguing police interrogations. In 1. that defendant's confession We shall address that issue in due course. suppressed, have should been defendant and great grateful following organiza- the amici curiae devote a deal of atten- We are to the subject recording thoughtful attorneys the electronic tion tions and for the He testified at trial4 that the prosecution O’Connell. eluded cross-examination purported third- any eyewit- were not able to locate witness evidence. party-perpetrator nesses to the murder and that his team persons develop was unable to list opinion, in this reasons set forth For the they might suspects. whom consider to be Superior judgment we affirm the Court. B

I Tracey Barros; The Arrest of and Travel2 Facts Suppress; His Motion to A His Trial Deivy Felipe The Murder of approximately p.m. At 11:30 on Decem- 27, 2005, April approximately On 1:30 (i.e., ber several months after the a.m., Deivy body Felipe of one dead committed), Deivy Felipe murder had been was discovered in the driver’s seat of a Tracey by Barros was arrested (SUV) utility Al- sport parked vehicle on the police possession Providence for of a Providence; appeared thea Street it pistol a without license.5 At the time of multiple the decedent had suffered arrest, Mr. readily Barros admitted gunshot pro- wounds. When SUV was possessed that he a firearm. cessed, from detectives the Bureau of (BCI) only 30, 2005, day, Criminal Identification found The next December Mr. smudges, complete finger- subjected rather than separate Barros was to two in- prints, terrogations on the exterior of the vehicle.3 In- at Providence head- SUV, quarters.6 side detectives were able to lo- interrogations ultimately Those single fingerprint drinking cate а on a by culminated in a confession Mr. Barros glass; they but were unable to determine to the Deivy effect that he had murdered whose it An fingerprint autopsy Felipe was. re- at the behest one Tonea “Nutt” (We Felipe vealed that Mr. had died as a result explain Sims. shall hereinafter in de- bleeding Barros, from multiple just wounds caused tail how Mr. initially who was by five gunshots. The lead detective as- charge possession arrested on a of a firearm, signed Felipe homicide investigation eventually confessed to the mur- was Providence Police Detective of Deivy Felipe.) Daniel der noted, thought-provoking they briefs filed as 4. Unless otherwise all references to the Network; opinion amici curiae: the Innocence "trial” in relate to defendant's trial, England Project; having New Innocence second Thomas P. his first trial resulted in a Sullivan, Vail, Esq., Esq., mistrial. Andrew W. Mann, Esq.; Robert B. and Professor David Roger University M. Zlotnick of the Williams 5. The defendant contends that the arrest actu- ally School of Law. occurred on December rather than on December 29. supplied 2. Several additional will facts be "Analysis” portion opinion of this in order 6. The first of Mr. Barros took provide further context for our discussion place very early morning in the of December legal of defendant's various contentions. arrest; shortly after defendant's it was of second, lengthy, short duration. The more explained complete interrogation began 3. The state approximately absence of at 8 a.m. fingerprints being heavy morning, as the result of rain on that same after defendant had at the sleep crime scene. been allowed to for several hours.

H63 granted motion for mistrial was on interrogations of Mr. Bar- and a Although day. that same many of his time and hours ros consumed only personnel, enforcement that of law 4, 2008, January to the com- prior On transpired what minutes of the final twelve trial, jury mencement of the second defen- interrogations captured were during the suppress. dant renewed his motion to Mr. recording, In that recording. an audio denied, again motion was and the second (1) confessing heard may Barros be jury January trial commenced. On gun provid- with a Felipe shot Mr. having deliberations, days jury after three (2) having done so ed Mr. Sims guilty found Mr. Barros on all counts. On Mr. Barros submits Mr. Sims’s direction. 10, 2008, on hearing March was held this recorded no evidence other than trial; for a new at the defendant’s motion (almost immediately repudiated confession the motion was hearing, conclusion of him) interroga- of his denied. non-recorded incul- tors about his earlier 2, 2008, On June Mr. Barros was sen- by the presented statements was patory (1) statutorily mandated con- tenced him the at trial to connect prosecution life terms for murder and for secutive his contention Felipe; of Mr. murder (2) firearm; causing by means of a death his recorded and non- appeal that both ten-year term to serve for a concurrent sup- should have been recorded statements (3) murder; conspiracy to commit pressed. ten-year term to for un- consecutive serve timely A possession lawful firearm. arraigned on the The defendant was 4, 2008. appeal notice of was filed on June 31, charge firearms on December 2005. 3, 2006, Subsequently, January indicated, on he was con- previously As arraigned respect with to the murder of appeal on that the trial erred tends 20, 2006, (1) Mr. Felipe. Mr. On June Barros suppressing in not his confession that (2) County a Providence Deivy Felipe was indicted in bar- he murdered jury; charged prosecution him a grand ring indictment cross-examination of (1) concerning third-party- the murder following purported with the offenses: witness Deivy perpetrator in violation of G.L.1956 evidence. Felipe, of (2) 11-23-1; conspiracy § to commit mur- (3) II

der, 11-1-6; § in violation of G.L.1956 license, in carrying pistol a without a viola- Analysis (4) 11^17-8(a); § dis- tion of G.L.1956 A a crime vio- charging during a firearm lence, Deivy Felipe, causing death Suppress The Motion to 4T—3.2(b)(3). § violation of G.L.1956 11— respect justice’s With to the trial denial 31, 2007, May hearing 30 a was

On suppress, Mr. Barros of his motion in the on defendant’s Superior held Court arguments makes a number of different (1) inculpatory motion to state- suppress jus- appeal. He contends that the trial in custody ments that he had made while denying sup- the motion to tice erred because, on Decem- police fully recording at the Providence station press 30, de- suppress ‍​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌‌​‌‌‌‌‌‌​​‍interrogations, ber 2005. The motion to post-arrest 1, jury began A trial him his state and federal constitution- denied on June 2007. nied (2) 12, Court, 4, pursuant to its jury rights; On June al on June 2007. verdict, authority respect to the supervisory reach a with reported itself unable to 1164 right a justice, suspect rule that vides a criminal should

administration were statements errone- have his or her custodial inculpatory (3) evidence; it was ously electronically into recorded in toto. admitted inculpatory statements to allow the error cau- unaccompanied by argu a With to defendant’s be admitted (4) jury; it was

tionary recording requirement instruction that a should ment suppress constitution, the motion to be- deny error to from the be derived federal were in- inculpatory statements cause very recently we note that we stated (5) it was error to voluntary; and also Supreme “neither the United States Court because de- deny suppress the motion to nor this Court has ever held due inculpatory fendant’s statements were requires interroga that a process custodial promptly present a failure to product contemporaneously tion must be record judicial him before a officer. Robinson, 965, v. ed.” State 989 A.2d (R.I.2010) (citing n. 23 United States v. 1. The Due Process Contention (7th Montgomery, 390 F.3d Cir. The defendant’s first contention on 2004)); Montgomery, see 390 F.3d at 1017 appeal interrogations that custodial con is (“[W]e Supreme see no hint that the Court place ducted of detention7 should be ready major step.”). to take To such electronically recorded from start to finish date, appellate no federal court has held that his have been confession should the federal process pro due clause the fact inter suppressed due to that the vides a criminal with a suspect right rogations that he underwent were not re mandatory recording. electronic See State corded in toto. The dеfendant submits Lockhart, 298 Conn. recording requirement should be (2010) (“[Tjhere prece is no federal process provisions derived from the due in support proposition dent that the the United States and Rhode Island con imposes recording federal constitution stitutions or from the exercise of this requirement. Ap The federal Courts of supervisory authority. Court’s In the al peal that have considered a similar claim ternative, argues defendant the ad it.”). uniformly have rejected study After inculpatory mission of his statements that manner, ing the issue afresh in a de novo par were contained in the twelve-minute we remain convinced that the federal due tial recording accompa should have been process require clause does not electronic by cautionary nied instruction that would recording interrogations. of custodial police address the fact that the did interrogations entirety. record the in their alternative, In urges the Mr. Barros this Court to reach the same While we conclusion as was acknowledge thoughtful the Supreme reached the arguments nature of the Court of Alaska presented by de- State, (Alaska Stephan fendant in v. concerning and amici the P.2d 1156 merits 1985) viz., fully recording process that the due clause in interrogations, custodial — it is our the provides considered view that neither the state constitution a criminal process federal suspect due clause nor the Rhode with a right to have his or her Island criminal process pro- electronically due clause interrogation recorded. In suggested 7. requirement apply The defendant and amici use various terms would to describe circumstances or locations of places stations and in which detention law interrogation trigger custodial that would enforcement with could relative ease have suggested recording requirement. Regardless recording equipment. access to terminology, we understand

H65 suggestion of Alaska that a failure to record a custo- Supreme Court Stephan, interrogation part dial on the of law en- holding on thе belief predicated its * * * is a reflection on the negative now a reasonable and forcement “recording is integrity inculpatory to the ade- statements necessary safeguard, essential right presented question to at trial constitutes a of the accused’s quate protection counsel, Moreover, credibility incrimination for the trier of fact. right against his self and, trial.” we note that our state’s Humane Practice ultimately, right to a fair Rule, requires judge court in Ste- which that both Id. at 1159-60. The Alaska jury make recording completely independent went on to state that a deter- phan con- minations as to the voluntariness of a de- requirement “protects the defendant’s statements, objective rights, by providing provides significant an fendant’s stitutional layer protection means for him to corroborate his testimo- additional constitutional to criminal defendants in Rhode ny concerning the circumstances of Island. Dennis, Id. at 1161. See State 893 A.2d 261-62 confession.” (R.I.2006). of our crimi- After careful consideration clause,8 date, perceive interesting we can no It is to note process

nal due holding mandatory only jurisdiction therein for Alaska is American basis interrogations provides of custodial is hold that its state constitution recording constitutionally required. process right As we in defendant with a due have discuss below, greater detail a criminal defendant his or her custodial recorded. 1158-60; provided ample Stephan, is with See 711 P.2d at Rhode Island see also Lockhart, procedural safeguards (noting to ensure a funda- 4 A.3d at 1191 that “only trial, mentally Supreme fair in the even absence of Court of Alaska has conclud- requirement. ed that electronic recording such additional is mandated process the due clause of its state con- In challenge the context of a stitution”) (emphasis in It original). inculpatory voluntariness of a defendant’s noteworthy also that more than half of the statements, such as we are confronted jurisdictions country have consid- case, he or she is the instant question presented by ered the provided оpportunity present with the in the instant case and have found that testimony regarding the circumstances of respective process provi- their state due and, interrogation; to the extent that require recording sions do not of custo- his or her about those circum- Lockhart, interrogations. dial See presented by stances differs from that wit- cases). (collecting at 1188 n. 10 a prosecution, nesses for the defendant is very to In the recent case of State v. Lock ample opportunity also accorded cross- hart, 537, (2010), Ultimately, any 298 4 examine those witnesses. Conn. A.3d 1176 1, trial, process public by impartial jury; 8. The criminal due clause of article an to be 10, section of the Rhode Island Constitution informed of the nature and cause of the pro procedural process sets forth several due accusation, to be confronted with the wit- tections afforded to criminal defendants in them, against compulsory to have nesses parallel in this state that or are addition to favor, process obtaining for them in their to protections provided the United those have the de- assistance of counsel their Desrosiers, 559 States Constitution. State v. fense, liberty speak shall be for 641, 1, (R.I. 1989). A.2d 643 Article section themselves; they deprived nor shall be 10, provides the Rhode Island Constitution life, liberty, property, judg- or unless the as follows: peers, ment their the law of the or land.” prosecutions, per- “In all criminal accused enjoy right speedy a sons shall the 1166 require input many Feng, from sources.” neighboring of our Supreme Court joined mandatory the above-men- 421 A.2d at 1273. The rule

state of Connecticut jurisdictions holding majority promulgate tioned that defendant asks us to is process clause does not due nature, that its state By very a rule. just such its right with a provide a defendant would, in proposed instruction the words of or her recording of his custodial electronic 1273, Feng, 421 A.2d at “af- Court Id. at 1190. We note that interrogation. viz., large nearly fect a number of cases”— court, much like the courts the Connecticut every criminal in- involving case custodial jurisdictions, predi- other in a number of terrogation investiga- holding reasoning similar to cated its Consequently, tion of felonious conduct. viz., procedure “there a al- is ours— that, again quoting Feng, we believe from if a ready place to determine confession many eminently “input from sources” is therefore admissible.” voluntary is advisable in this matter.9 1189; also, e.g., State v. See id. at see Kekona, 740, P.2d 77 Hawaii Jury 3. The Instruction Contention (1994) (“While trial judge determines confession, admissibility of a the defen- require We also decline to that a right put retains the before dant [still] cautionary given instruction be whenever fact, evidence, jury, as the trier of all prosecution upon relies an unrecorded including the facts circumstances sur- partially or interroga recorded custodial confession, making of his rel- rounding the tion—since in such mandate would be Therefore, weight credibility. evant to principles consistent with well-settled police whether the failure of the to create have been articulated in our cases. On un- record defendant’s confession (as appeal, argues defendant he did in the accuracy dermines its and detracts from court) that, trial if his unrecorded custodial credibility of later is an is- sup statements should not have been uniquely sue left to the sound discretion of pressed, they accompa should have been fact.”) (brackets in original) trier of by cautionary nied jury instruction to the (internal quotation marks and citation concerning “the inferences which could be omitted). fully drawn from the failure to rec (At the interrogation.” point ord no does Supervisory Authority 2. This Court’s clearly spell defendant precisely out which supervi- We also decline to exercise our drawn.) inferences he believes should be sory authority promulgate so as to a man- datory recording requirement. trial, At requested the second jury two instructions —one derived from an

It well is established that “[t]he adopted by Supreme instruction Judi- supervisory jurisdiction exercise of our cial Court of Massachusetts in Common- extraordinary Feng, measure.” State v. DiGiambattista, wealth 442 Mass. (R.I.1980); seе also (2004), Saback, (R.I. 813 1155, N.E.2d 516 and one derived State v. 534 A.2d 1157 1987). Moreover, from an instruction in New employed where of a Jer- “[c]reation * * * sey pursuant new rule will affect a to Rule 3:17 of the large number New cases,” “may Jersey such creation of a new rule Governing Rules Criminal Practice. Lockhart, 537, recording 9. In State v. 4 requirement 298 Conn. A.3d mandate an electronic (2010), Supreme pursuant 1176 supervisory the Court of Connecti- to an exercise of its recently powers. cut declined a similar invitation to

H67 Furthermore, ju- we that are satisfied Supreme the Judicial opinion her for In DiGiambattista, routinely Martha in this state receive ade- Justice ries in Court with to the respect as follows: instructions pertinent part quate in wrote Sosman voluntariness vel non of custodial interro- introduces evi- prosecution the “[W]hen notably because our gations confession or of a defendant’s dence —most Rule, pro- a which Humane Practice rule product the of a custo- that is statement * * * procedural safeguard an important vides and there is not interrogation dial rights the with constitutional recording of the audiotape at least an Dennis, of criminal defendants. See 893 the defendant is interrogation, complete * * * at 261-62. Our Humane Practice A.2d jury to a instruction ad- entitled “requires judge jury and make Rule highest court has vising that the State’s determinations separate independent and that such inter- expressed preference * * (em- Id. at 262 of voluntariness practi- whenever rogations be recorded added). words, In other the Hu- phasis cable, cautioning jury be- provides any Rule mane Practice any recording of cause of the absence of “may of a criminal defendant statement in the case before not serve as a basis for conviction unless them, they weigh evidence of the should jury determine that judge both alleged great statement defendant’s voluntarily (emphasis made.” Id. voluntariness caution and care. Where original). practice humane is a live issue and the jury should also given, instruction is reasons that have led us to For same of a be advised that the absence record- that we shall not do as the Su- conclude (but compel) does not them ing permits did preme Judicial Court of Massachusetts that the has to conclude Commonwealth DiGiambattista, we decline to ac- also prove beyond voluntariness failed suggestion re- cede defendant’s we DiGiambattista, 813 reasonable doubt.” an quire giving instruction similar at N.E.2d 533-34.10 Jersey in the New that set forth Criminal jury instruction to which the DiGiam- Jury Charges, pursuant to Rule 3:17 of battista court said a defendant “entitled” Jersey’s Governing New Rules Criminal strong signal jury any sends re- Practice. Such an instruction would product that are the of an un- statements quire justices trial in effect to act as advo- interrogation may well not have

recorded extensively upon and to comment cates voluntary. been presented practice evidence trial —a carefully have considered defen- We clearly law that our well-settled ease argument jury dant’s in favor of such a consistently has held to be undesirable. However, for the reasons set instruction. (in A 1” “II A past

forth above sections “II As we have stated clarity, is not the function opinion, supra), great 2” of this we remain un- with “[i]t justice to act advocate for require giv- that we of a trial as persuaded should or the defense.” prosecution similar to that articu- either ing of instruction (R.I. Fenner, 518, v. 503 A.2d Supreme lated Judicial Court State 1986). providing In the context of instruc- DiGiambattista. v. practice "the humane in- the venerable case of Commonwealth 10. The reference to Preece, (1885). N.E. in the extract from the DiGiambat- 140 Mass. struction” Dennis, 261 n. 17 opinion quoted in the text hearkens back See State tista (R.I.2006). opinion Supreme the Judicial Court’s in case, in have the In the instant which both the jury, interpreted we tions to the ample and the defense had meaning prosecution as principle just-quoted testimony commenting opportunity present from trial inhibited “judges are cross-examination) they (subject recounting so in a unless do upon the evidence Rather, respective manner.” Id. their versions of what tran- impartial сompletely of Mr. system, spired during it is the Island’s adversarial Rhode Barros, jury during the task for the its de- employ the who are to direct advocates cross-examination, just liberations was to make such credi- examination, closing ar- bility Accordingly, assessment. we see no means in gument, permissible and other depart existing prac- reason to from our jurors the as to persuade order to seek to tice; (vel (in- always non) defense counsel is free to credibility the of witnesses specific points raise related to witness credibility the wit- cluding prosecution credibility during and to cross-examination testify transpired nesses who about what argue credibility about on the basis of such interrogation). a custodial We during points during closing argument. We are carefully arguments have considered the Mr. amici; satisfied counsel for Barros took parties and of at the end of the however, ample advantage opportunity to do day, perceive we no reason for just that at trial. what we wrote in departing from Fenner: rather than the court are the “Counsel Alleged 4. The Involuntariness appropriate agents argue jury of the Confession concerning specific credibility or lack On appeal, defendant asserts that a particular thereof of witness.” Id. We justice trial denying also erred mo- that, requiring continue to see merit in if a because, tion to suppress defendant’s necessary trial it deems to com- view, the prosecution prove by failed to upon ment during evidence the course convincing clear and evidence that Mr. instructions, of jury he or she should “do Barros’s inculpatory statements were vol- completely impartial so in a manner.” Id. untary knowing and were made after a persuaded We are that cross-examina- waiver intelligent of his constitutional especially potent tion11 remains an tool (It rights. will two-day be recalled that a whereby jury provided is with mean- on hearing suppress the motion to ingful upon credibility basis which assess- 31, 2007, May shortly conducted on 30 and made; ments can be our is belief beginning bеfore the of the first trial. It when that is tool combined with effective will also be recalled that defendant re- prepared direct examination and a well suppress newed his motion to before the closing argument, jury provided is beginning of the second trial. On both entirely passing sufficient basis for denied.) occasions, the motion was the crucially important issue credibili- ty key issue that suppression to determinations At the hearing, witnesses —an prosecution voluntariness. for the and for the defense Tiernan, (R.I. exercise, syllogistic 11. In State v. 941 A.2d 129 cated but is rather a 2008), length we extolled at unveiling some the virtues attempt multifaceted what quoted high of cross-examination and from a might lie behind the direct * * * ly respected perti treatise. We vein, observed witness. In the same cross- part nent as follows: examination has been described [Profes- Wigmore] 'beyond any searching sor John H. as doubt “Cross-examination connotes * * * engine scrutiny. greatest legal often intense Cross-exami- ever invented for " nation, conducted, discovery when well a desic- is not of truth.’ id. at 133-34. neighborhood danger- accounts to told him starkly [that his] different as presented that, testified as ous.” defendant further when Mr. Barros was arrested and just Black, by Officer the after he was arrested between the moment of transpired to what police “quick officer conducted a frisk” of in time several point arrest and the his person phone his but did not take his cell elec- when the twelve-minute hours later from him. The defendant further testified recording of his confession was tronic placed that he was then handcuffed and in we shall next summa- Accordingly, made. the back of Officer Black’s cruiser. He succinctly possible as the evidence rize as that, from the then testified back of the parties both in con- presented that was cruiser, police Explor- he observed a white suppress. nection with the motion to er truck arrive at the scene. It was the Testimony a. of the Witnesses testimony of Mr. Barros that Officer Black Defense for the gave gun the that had been in defendant’s possession Explоrer, to an officer in the during The defendant testified his direct laptop who then used a to the serial suppression hearing “[run] examination at in numbers on it.” The defendant further shortly that he was arrested before mid- lips testified he was able to read the on December 2005—and not on night Explorer of the officer in the as 29, 2005, saying con- prosecution December as (Mr. gun Officer Black that “the was clean.” Barros testified that he tended. place just took before knew his arrest proceeded testify Mr. Barros that it midnight possession because he was still in phone was this moment that his cell in phone placed of his cell when he was pocket. vibrated his The defendant tes- police back of a car and was able to ascer- that, though tified even his hands had been by consulting tain the time that cell back, placed steel handcuffs behind his during phone.) On cross-examination “mostly he was handcuffed to the left side” suppression hearing, defendant continued accordingly able was to answer the just to maintain that he was arrested be- phone by “[flipping] open” using cell that he midnight fore on December phone’s speaker According function. rights early in the morn- signed form12 Barros, Potts, April Mr. the caller was However, the ing hours of December 29. he girlfriend; his he testified that told Ms. then confronted prosecution defendant carry- Potts that he had been arrested for form, with his which was signed rights ing a firearm. He stated that he asked Upon 80. con- being dated December so lawyer, Benjamin Ms. Potts to call his one fronted, replied: “[Tjhey could Mesiti, represented who he had said him was, like just have told me what the date past; Mr. Barros added that he asked they get say tried to it over and I didn’t girlfriend request lawyer his 28th, get arrested on the but I did.” police station. come that, just Mr. to Mr. then to what prior Barros testified Barros testified as (one arrest, Officer John Black occurred after he was taken to Provi- scene) why at the him he station. He that he officers asked dence stated possession gun; placed “holding was in of a and he testi- in a cell” for approxi- quеstion, mately to the officer’s a half reply fied an hour or an hour and carrying gun “just being transported interroga- he admitted before to an Supreme opinion 12. The several references in this to a suant to the United States Court’s Arizona, “rights printed form” relate to the form that decision in Miranda v. 384 U.S. (1966). rights pur- of his or her 86 S.Ct. 16 L.Ed.2d 694 advises individual room, inconsistency to a We now move on from the where he was handcuffed tion Agent with to when West and De- then of- the wall. The defendant bar on joined tective Fallon defendant in the in- testimony internally inconsistent fered room, and we turn to his testi- terrogation long he waited in the respect to how with mony they to what occurred once were as before someone arrived interrogation room that it was there. The defendant testified him. question Detective Fallon who advised him of his testimony at the day his first On by him with a rights providing Miranda waiting hearing, he recalled suppression rights Although form. defendant acknowl- for at least interrogation alone in the room form, edged signing the he testified that Special Agent hour before Michael one he could not “read that well” and under- Alcohol, West of the federal Bureau of only stood the nature of the form “a little (ATF) Tobacco, Firearms, Explosives signed bit.” Mr. Barros that he testified early morning in the entered the room because Detective Fallon informed him shortly by hours of December followed that, form, he signing simply was Detective Michael Fallon. acknowledging that he appre- had been hended with firearm. When cross-exam- day testimony, On his second howev- however, ined, er, defendant testified that he waiting that he defendant said recalled actually rights did understand his interrogation in the room for “almost a signing after indicating form and day” joined by anyone whole before he was that he rights, understood his he chose to Department from the Providence Police speak with Detective Fallon. ATF. testimony from It was his on that waited, day second that he all the being It testimony was defendant’s that Detec- while handcuffed to the wall of the interro- tive then sought Fallon to have him con- room, gation Agent until West аnd Detec- firm the statement that he had made to tive approximately Fallon arrived at a.m. Officer Black at the time of his arrest Regarding discrep- on December 30. regarding possession a gun. He ancy, defendant testified as follows: “I acknowledged testified that he having thought you talking misunderstood. I was statement, made such but he added they brought upstairs about when me from he had declined to memorialize that ac- the detaining room.” He further testified knowledgment in a written statement be- regarding as follows how he knew that he cause he was too tired and because he interrogation had been in the room for a lawyer wished to wait until his pres- was long period of time: ent. up early was dark when I went “[I]t proceeded Mr. Barros to testify that form, morning, signed rights began inquire Detective Fallon about left, they then daybreak. and then it was concerning other matters which he had no You could see because door was knowledge. The defendant stated that he windows, open, they got and the sun informed detective that he too was Then, in the comes window. the time tired and speak did wish to with him they again, all came back there it was further; he added that he informed Detec- time.” dark tive lawyer way Fallon that his was on his and that he did not speak wish to by way The defendant further testified lawyer present. them further until his clarification that the windows that he was referring to were not The defendant then internally offered room itself hallway. but rather were inconsistent as to what precisely

H71 that he did not want to talk day first the officers During his transpired next. further, Agent that ATF that he continued to testimony, he testified with them left the they Fallon then lawyer, and Detective and that never West ask for his room, re- where defendant interrogation lawyer present was informed him that his half an approximately for mained alone testified at the station. The defendant accompa- West returned Agent hour until then Agent that West and Detective Fallon Agent Edward Troi- Special ATF nied the room. left that the ATF The defendant testified ano. that, approximately Mr. Barros testified rights him of his but agents did not advise lаter, Agent West and one or two hours he immediately began to ask where rather returned, along Fallon with Detective The stat- gun. his defendant had obtained According to defendant’s Agent Troiano. the ATF provide that he refused to ed day of the testimony sup- on the second information, but he main- agents with that encoun- pression hearing, this was his first that he during tained cross-examination with Troiano. The defendant Agent ter from Tonea gun obtained the had not Agent that Troiano asked whether testified further testified that The defendant Sims. help investiga- Mr. Barros could with his law- agents the ATF that his he informed Mr. It tion into the activities of Sims. was station, and he yer coming to the was testimony point that at that he defendant’s agents laughed the ATF stated tired, of a hungry, was need rest- The defendant next testified response. that all of these conditions were room but inquire to about began Troiano Agent ignored. whether he asking Mr. defendant ‍​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌‌​‌‌‌‌‌‌​​‍Sims— During day his second knew Mr. Sims. Mr. Barros testified that Detective Dan- testimony, recollection was defendant’s interroga- iel then entered the O’Connell Fallon re- Agent West and Detective defendant, to Detec- According tion room. Agent that it mained in the room and was merely observed the tive O’Connell first he Mr. West who asked him whether knew participate. and did not Sims. Agent Troiano defendant testified inconsistency in his Regardless of the that, proceeded suggest if defendant to which ATF investigation him with his help would question, defendant testi- agent asked Sims, ATF could “make a agent Mr. consistently responded fied that he that he for The defen- [defendant].” better deal knew Mr. Sims. The defendant testified Agent explained dant said that Troiano during suppression hearing that his looking that he was for information re- with Mr. an occasional friendship Sims was garding who murdered Mr. Sims or where that he Mr. friendship; he testified saw drug Mr. Sims maintained a “stash” or Sims “once a month” and that their friend- kept guns. According where he “making revolved music and ship around defendant, by Agent he was baffled Troi- According to doing together. DVD’s” de- deal,” he in- ano’s offer of “better testimony, then in- Agent fendant’s West any that he not have agent formed the did him had bеen formed that Mr. Sims shot regarding any of provide information to that he and killed. The defendant testified agent about which the ATF the matters

was shocked and that this was the first concerned. was that he had heard of Mr. Sims’s death— Barros, defendant, Mr. the detectives since, According to according to Mr. Sims agents the ATF then left the room for time own arrest. was alive at the of his one hour. He testified again approximately The defendant testified that he told wall thereafter, every agents being ATF numb from cuffed to the for time the return to the interro- day, signed rights the detectives would over a he another form room, “they’d bring informa- gation [him] twelve-minute and then his statement tion, bring stuff to Accord- they’d [him].” cross-examination at During recorded. testimony, point, at one ing to defendant’s hearing, ac- suppression him began question Detective O’Connell knowledged request that he did not shooting in the West End of Provi- about a speak lawyer with his at the time that his them he dence.13 Mr. Barros told did recorded, and he also ac- statement was anything shooting know about such a and knowledged signed that he the second in the west end.” hung that he “never out rights form because he understood his rights. that, despite testified The defendant anything fact that he did not know about that, Mr. Barros testified after his state- End that Detec- shooting the West recorded, ment was he was allowed to to, he eventu- tive O’Connell had referred phone make a call on Detective O’Connell’s a ally agreed to make statement phone girlfriend, April cell to call his Potts. electronically

would be recorded. He ex- that, spoke The defendant when he stated plained his decision to do so as follows: by phone, with Ms. Potts she informed him by, just “As time went I realized that lawyer that she and his had been at the they put me in a catch-22. There was police looking station for him but were way going get no I was to out of there. informed he was not there. The de- my Officer Troiano came back with “got fendant testified that he then tense rap criminal sheet. I come to find out * * * they got and felt like that over on was, placed what it and he it in frоnt of He [him].” testified that he then informed just basically just got me. He told me I Detective that he to O’Connell wanted re- through doing years gun, five for a and voke his statement he because had been now gun I’m convicted on another tricked. Mr. Barros testified that Detec- charge. looking He told me I was at late, tive O’Connelltold him that it was too ten, years easy. fifteen federal time He to which statement Mr. responded Barros said he’s ATF officer and he has by asking speak with the detective’s * * * people high places. He me told supervisor. Major He testified that Ste- they think I know more about To- phen Campbell entered the them, nea Sims than what I’m telling room and also informed him that it was too my and he said it inwas best interest to late to retract his statement. cooperate just with him. And I basical- ly, just position I said I was in a where Attorney Benjamin Mesiti testified at they going go anyway.” wasn’t to let me that, suppression hearing at the time arrest, of defendant’s he employed by was The defendant then testified that Detec- particular tive Rhode Island law firm. He Agent O’Connell and West him told that, by stated the time they say suppression what wanted him to the state- hearing, practicing ment he was law on his that would be him own telling recorded — that “it be no good, longer had to it had to sound like had access to his records (when it was some real stuff.” Mr. from Barros testi- December of 2005 that, arrested). approximately fied at p.m., Accordingly, 12:45 was he indicated while exhausted being specific- his arm that he not recall with great could shooting 13. opin- The relevance of the in the West when one reads die next section of this apparent End Providence will become ion.

H73 “typographical he had made a error” on and events about which ity the dates testify. state that he He again asked to He did those two documents. insisted police sta- going actually place recalled to the Providence that the arrest had taken De- with a client on either speak tion to nighttime. December 29 BO,2005. He said cember 29 or December Providence Police Detective Michael recall which date it actu- that he could not at suppression hearing Fallon testified ally police was when he went to the sta- approximately a.m. on December tion, he also stated that he “believe[d] but he conducted an interview of have been the 30th.” He testified might defendant. Detective Fallon testified that station on gone that he had rights he showed defendant Miranda response the December dates in one of form, it, him read asked ascertained phone call that had been received at rights. that defendant understood his employed; law where he was then he office explained detective stated that he also person that he believed that added defendant, him rights to asked whether he his law office was defendant’s who called any questions, had and watched as defen- April Potts. He also recalled girlfriend, “checked that he did dant understand * * * “meeting waiting a female in the rights.” He further testified that defen- waiting station” and for police area of the signed rights dant his name on the form time,” “significant amount of but he add- provided his and address. Detective Fal- that he was not able to recall whether ed purpose lon testified that his in interview- actually or not he was able to see defen- Mr. Barros was to confirm that he ing had regarding When the time pressed dant. certain statements to the arresting made law go that he left his office to in regarding having pos- officers his been station, attorney Mesiti testified that police of a firearm when He session arrested. probably he left office between 7:30 calm having described defendant as been p.m. 8:30 the interview. He cooperative during Attorney that he Mesiti further testified also testified that defendant did not indi- represent not retained to Mr. had been any point that he cate at either did any in connection with Barros lawyer cooperate want to further or that a case; charges at issue in the instant more- way represent on to him. his over, he was not able to recall whether he Fallon, According during to Detective any rеpresented prior had Mr. Barros interview, early morning that defendant Attorney testify, occasion. Mesiti did readily carrying admitted that he had been however, that he Mr. Barros. recognized arrest, he weapon at the time of his Testimony b. of the Witnesses confirmed the statements that he had

for the Prosecution arresting made to the officers as to his being possession of a firearm. reason for Black, Providence Police Officer John However, the detective added that defen- defendant, one of the officers who arrested pa- declined to make a statement on dant suppression hearing testified at the that recording; in an he testified per or audio actually the arrest of defendant occurred just that he wanted to defendant said night on the of December 2005. When sleep. Detective Fallon testi- go back to with witness confronted his statement that, point at before Mr. Barros fied some police report, incident on both of which his cell, sought to he also to ar- was returned he had indicated that defendant was try glean Black from defendant information rested on December Officer tes- other crimes and occurrences in the indicating tified that he was mistaken so about prac- agent fendant referred to as “Nutt.”14 The he indicated was standard city—as police detectives added defendant also mentioned to among tice Providence just the one with which he him that “Nutt” had been shot and situations such as that, Agent Detec- West further testified According to killed.15 was then confronted. that, Fallon, he knew that ATF Special indicated al- because fellow tive defendant Troiano had been Agent “a lot” of information Edward conduct- though he had “just ing investigation at that time he was into activities of provide, he could that, Sims, Agent Fallon testified af- Mr. he notified Troiano tired.” Detective telephone respect and in accor- with to what defendant concluding ter the interview Depart- saying during the Providence Police had been his interview with dance with arrests, gun Agent (Agent with West. West stated that he poliсy ment’s notify ATF about defen- proceeded thought speaking he might Agent investiga- arrest. assist Troiano’s dant’s tion.) Michael Special Agent ATF West testi- hearing Special that he ATF suppression Agent

fied at the Troiano testified at police headquarters suppression hearing arrived at Providence after receiv- West, approximately ing phone Agent 8 a.m. on December 30 call from he Agent order to interview Mr. Barros. West arrived at the Providence station at that, prior beginning point stated the inter- some between 9 and 10 a.m. on De- view, he a Miranda rights Agent had seen form cember 2005. Troiano testified by signed that had been defendant. Ac- that he knew Mr. that Barros had execut- testimony, he cording Agent rights to West’s be- ed a form because it inwas gan asking the interview defendant packet provided arrest that him by was him, rights whether had been read to police. his Providence The ATF agent that, rights, whether he understood those and also prior testified to interviewing defendant, willing speak whether he was with he confirmed with him that he ATF Agent agent West. The testified that had been rights. advised of his It was questions all three in Agent testimony answered Troiano’s that defendant Agent affirmative. West also stated was emotional distraught over the Sims, that point during at no the interview did Mr. death of but he added that defendant indicate that he did not under- bring defendant did not seek to the inter- rights, stand his that he speak process any wanted to view to a halt at time nor did attorney, with an that speak he wished to end he ask to with attorney. the interview. Detective Daniel O’Connell16testified at

Agent suppression West testified that defendant told the hearing that he arrived at him that he had obtained the firearm that the Providence police station at 9 a.m. on possession was in when he his was arrest- December 2005. He stated that he had Sims, ed from his friend Tonea whom de- working through previous been night, sobriquet by Agents 14. "Nutt” was the which defen- 16.ATF West and Troiano also offered shall, dant referred to Tonea We how- Sims. testimony suppression hearing at the that is ever, usually person simply refer to this as with consistent much of Detective O'Connell's Tonea Sims or Mr. Sims. testimony interrogation about defendant's brevity, eventual confession. For the sake of According Agent testimony, 15. Mr. West’s however, only we shall summarize Detective shooting Barros's words about of Mr. transpired O’Connell's about what got my boy. They Sims were: "I it from shot after he entered the room. night.” last him

H75 shootings that de- Sims. currence of both of the the murder of Tonea investigating described. It was the detective’s that, arrival fendant shortly after his He testified verify in fact able to station, testimony that he was informed that he was at the just-mentioned of the two the occurrence interview rooms in one of the suspect shootings. Mr. Sims. That regarding had information Mr. Barros. Detective O’Con- was suspect that, testified after Detective O’Connell in in view of his interest stated

nell room, he returning to the interview asked murder, joined Agents ATF he the Sims any- he ever “hit defendant whether had in the interview room and Troiano West (The that explained one.” detective him provide could hope that defendant question inquiring he was as to might assist him information whether defendant had shot someone of that murder. Accord- investigation “actually person.”) hit that The detective detective, defendant was hand- ing to the by simply replied testified that defendant interview a bar on a wall cuffed to stating: Spanish “Yeah. A kid over on room; was a he further testified such Superior Street.” Detective O’Connelltes- of the Provi- operating procedure standard pro- that he then asked defendant to tified police. dence specific regarding vide him with details shooting “Spanish of the kid.” The detec- that he testified Detective O’Connell that defendant said that he tive stated any infor- whether he had asked defendant particular shooting that this had thought the murder of Mr. Sims. regarding mation point April occurred at some between The detective testified that defendant stat- May of 2005. The detective testified any knowl- ed that he did not have “direct proceeded provide that defendant addi- murder, but he said that edge” about shooting tional details about the information about certain of Mr. he had namely, the victim “Spanish kid”— It Sims’s “enemies.” was detective’s near a sitting parked SUV Chi- clearly that defendant was up when ran to nese restaurant defendant prior of Mr. Sims to the aware of the death him. his car and shot interrogation and that the detective him with that agents provide ATF did not that he Detective O’Connell testified information. to consult the then left the interview room information police possible database for he Detective testified that O’Connell felony corresponded that about a assault probing more began then to ask defendant and time frame of the with the location relationship with questions regarding his as shooting that defendant had described estimation, In Mr. Sims. the detective’s The having Superior occurred on Street. relationship proud defendant was of that detective that he could find no such stated pleased speak freely and was to about it shooting that he of a match but did recall agents. ATF with the detective and the person namely, April in a SUV— that defendant Detective O’Connell stated Althea Deivy Felipe 2005 murder of on regarding volunteered information two gathered He testified that he then Street. that involved Mr. Sims. Accord- shootings relative to photographs information and O’Connell, ing to Detective defendant said returned to the Felipe murder and shootings that he had witnessed one of the interview room. participated and had in the other. Detec- then asked defen- tive indicated that he then left Detective O’Connell O’Connell that he had shot verify to dant whether he was sure the interview room order Superior Street. The detec- through department records the oc- someone had met person pictured that he he knew the that defendant admitted tive said name of the actually know the couple did not him a of times. Detective O’Con- carried out the shoot- where he had street nell testified that he then showed defen- SUV, kid” in a but he ing “Spanish of a of the vehicle in which Mr. picture dant “off of recalled that it was Cranston to Felipe sitting; according had been mag and that a wheel store Street” detective, recognized also defendant there. Detective O’Connell testi- located said, you vehicle and “I told pictured clear to him that defen- fied that it became that was a blue SUV.” The detective stated referring Felipe dant was homicide. with a presented “pic- he then defendant that he knew that a The detective stated slumped ture of the kid in the front seat wheel at Althea and “mag place is located According over the wheel.” to Detective that there is a Cranston Street” and Chi- testimony, it at this mo- O’Connell’s was “adjacent mag that nese restaurant to per- ment that defendant realized that the place.” wheel actually perished; son that he had shot had Detective that he O’Connell testified the detective said that defendant then be- asked defendant whether he was certain gan cry. to he just about what had said. The detec- According to Detective testi- O’Connell’s “Yeah, replied, tive stated defendant mony, deny sought having defendant positive mag I’m that was at the wheel Felipe committed the murder as soon as O’Connell, place.” According to Detective just he realized that he had confessed proceeded defendant then describe “It -saying repeatedly: wasn’t me. It just-referenced shooting greater detail. it— It point wasn’t me.” was at pro- detective testified defendant Detective in- O’Connell said he was following description vided the of how the homicide was carried out: superiors defendant and formed that he would Cherokee; Mr. driving Jeep Sims were in a need to record defendant’s statement. De- they saw the eventual victim in a SUV tective testified that O’Connell restaurant; parked near a Chinese Mr. then revealed to him that he was worried gun Sims handed defendant a and instruct- serving about time in Rhode Island be- victim; himed to shoot the defendant ran cause he had a number of enemies and vehicle; toward the as defendant was run- safety. feared for his Detective O’Connell SUV, ning person toward the “jumped attorney stated that a call made seаt, passenger over the leaving the door general’s office one of superiors his and and, open;” finally, up defendant ran attorney general’s that the office agreed to SUV and shot the victim. any allow defendant to serve out of state might imposed. sentence that be Accord-

Detective O’Connell testified that he O’Connell, ing to Detective defendant proceeded then to show defendant a series eventually agreed provide to a statement. photographs for purposes. identification However, He testified that Detective he first showed him a O’Connell testified that, statement, copy Felipe’s prior giving of Mr. to the Florida driver’s li- defen- cense; he stated that defendant said that photograph dant asked to see a of Mr. testimony 17. Detective response O’Connell's actual at about defendant’s would be a non suppression hearing the was that he showed sequitur Detective O’Connell testified —since defendant a "Florida license of the vehicle.” recognized that defendant said that he the say We infer that the detective meant to person pictured in what the detective had Felipe’s he showed defendant Mr. Florida him. shown Otherwise, testimony driver’s license. his

H77 prosecu- The various witnesses for the proof that he wanted body, saying Sims’s that, although Detective O’Con- defendant was that Mr. Sims was dead. tion testified that, interview, saw a during after defendant emotional the nell testified sometimes Sims, body of Mr. of the dead photograph point request lawyer, try at no did he to very emotional. interview, he became the invoke right end his si- lence, or mention that he had called his testified defen- Detective O’Connell girlfriend when he was arrested. Detec- prior with a sandwich provided dant was tive O’Connell testified that the interview detec- giving his recorded statement. The from approximately defendant lasted that, estimation, stated in his tive further point a.m. to 12:45 at which the p.m., 9:30 any appetite did not have due to defendant decision was made to make an audio re- nervous and the fact that he remainеd statement. The cording of defendant’s de- emotional. point tective also testified that at no did that, at the Detective O’Connelltestified any agents or of the ATF detective statement, beginning tape-recorded of the regarding “feed” defendant information rights again his once he read defendant the crime to which defendant confessed. form, rights him with a new presented Detective also O’Connell testified de- that defendant on which it was indicated pressured providing fendant was not into According charged with homicide. was statement, nor was he threatened with detective, defendant indicated on the having charges against more severe levied rights form that he understood his cooperate. him if he refused to It was address, signature, his his provided that, during detective’s the date. interview, of the defendant course wanted that, after Detective O’Connell testified speak with him and with the ATF completed tape-recorded agents accommodating and was both statement, call phone using he made forthcoming. Detective testified O’Connell cell The detective testi- phone. detective’s that the door to the interview room was thing that the first that defendant told fied open during the entire interview and that he called that he in the person was was defendant never asked to the bath- use just Providence station and had con- room. The detective also testified that fessed to a murder. The detective testi- with soda and wa- provided defendant was not hear Mr. Barros men- fied he did during ter on a number of occasions “lawyer” “attorney.” tion the word interrogation. of the course estimation, in his detective stated phone the other person on end testi- Detective O’Connell also offered probably girlfriend because, defendant’s mony hearing for the suppression — when he asked to use the detective’s rebutting specific certain con- purpose that he phone, defendant had indicated tentions of defendant. Detective O’Con- to call her. wished nell where he and the described room defendant, agеnts stating ATF interviewed that, Detective O’Connell testified after that there are no windows in that room tape-recorded defendant made his state- that face outdoors. He also testified re- ment, holding he taken back to a cell. was estimation, garding technology that was available in The detective stated arrest; he stat- at the time of defendant’s too late to take to District was police department ed that his was not then day that because the detective need- Court pertaining equipped necessary technology with the paperwork ed to finish his gun “run number” found on a investigation. a serial him police providing crime while the forced into a recorded con- at a scene obtained scripted by fession that was them. at the crime scene. officers were still in Citing opinion this Court’s State v. Findings The of Fact and c. Sabetta, (R.I.1996), 680 A.2d 927 the trial Ruling of the Trial Justice ruled, law, justice as a matter of that hearing At on de- the conclusion simply saying defendant’s that he was too suppress, jus- motion to the trial fendant’s tired continue not amount to an did expressly tice ruled that defendant had Al- right invocation of his to silence. justice offered which the trial though justice the trial did not make a credible at all.” He further found “not specific finding or not as to whether exhor- stated: “I’m satisfied from what I’ve heard occurred, tations threats had he cited a that the defendant lied to me certain support number of of the proposi- cases those lies respects, and and mendacious police tion that exhortations to tell the very light statements cast a dim on his police regarding truth or threats “hard credibility.” making damning After that permissible time” are and are not inher- credibility, statement about defendant’s ently coercive.18 justice proceeded the trial to make a num- justice trial then addressed the fact findings ber of of fact. specific that defendant was handcuffed while in the justice interrogation analysis The trial stated that he did not room. began His play believe that defendant was “able to with proposition the basiс that the mere get phone Houdini and cell out of his fact that a “in custody [his] defendant is in a pocket.” handcuffed, expressed police * * * He also disbelief station and does not testimony regarding about defendant’s automatically lead to the conclusion presence a white Explorer at the arrest that his involuntary.” statements were He scene; considered, he stated that he was “satisfied noted that “it is a factor to be simply up.” the defendant made that way dispositive [that] but is no [it] [the] justice issue;” The trial Innis, found that defendant was and he cited Rhode Island v. apprised rights his Miranda and that he 446 U.S. 100 S.Ct. 64 L.Ed.2d (1980), understood them. He also stated that he in support of that proposition. Fuentes, did not believe that defendant had insisted He also cited State v. (R.I.1981), speaking attorney prior an general princi for the speaking police with the Providence detec- ple custody nor questioning “[n]either ATF agents. tives and the He also automatically said serves to invalidate a confes addition, he did not believe testimo- defendant’s sion.” In citing Apalak State v. ny is, that he languish (R.I.2002), was left to for justice hours 797 A.2d 440 the trial while unattended handcuffed to a bar in ruled that handcuffing person during rejected interview room. He also as necessarily does not render not credible person’s defendant’s assertion that he involuntary statement food, water, deprived justified by legitimate and access to in fact concerns for restroom justice safety. facilities. The trial also officer With completely rejected ease, allegation defendant’s justice instant trial stated that he the law enforcement officers had did not believe defendant’s assertion Braxton, (1958); sup- 18. The cited cases the trial United States 112 F.3d 777 (4th Cir.1997); port ruling Apalakis, of his about exhortations State v. 797 A.2d Marini, (R.I.2002); California, and threats are: Crooker v. 357 440 State v. 638 A.2d 507 433, 1287, (R.I.1994). U.S. 78 S.Ct. 2 L.Ed.2d 1448

H79 voluntarily waived his consti [or her] caused him such discomfort handcuffs in Miranda v. rights expressed on the voluntariness tutional bearing had Bido, 822, v. 941 A.2d 835 rights. of Arizona.” State his waiver (internal (R.I.2008) (brackets in original) trial presentment, the question On omitted); Robin quotation marks sеe also finding of specific not make a justice did son, 974; Taoussi, 989 A.2d at State v. 973 precise date of defendant’s fact as to the Dennis, (R.I.2009); 1142, A.2d 1146 893 however, find, that attor- He arrest. did 261; ‍​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌‌​‌‌‌‌‌‌​​‍Humphrey, at State v. 715 A.2d A.2d helpful was not ney Mesiti’s (R.I.1998). 1265, 1274 finding he made no Although defendant. arrest, justice the trial the date of as to This review of a trial Court’s he was satisfied that defen- indicated that ruling to a motion to justice’s that he did not want dant never said which a defendant suppress statement officers; accordingly, he with the speak involuntarily re alleged has was made any delay presentment ruled that Taoussi, analysis.” quires two-step “a 973 inducing the confession. operative 1146; Bido, 941 A.2d at 835. In A.2d at County Riverside v. He also cited justice’s review the trial step, the first we 44, 1661, 111 S.Ct. McLaughlin, 500 U.S. fact relative findings of historical (1991), proposition 49 for the 114 L.Ed.2d of the confession. issue of voluntariness mean does not prompt presentment Taoussi, 1146; Bido, 973 A.2d at 941 A.2d present- presentment immediate at 835. accord deference to the trial We after arrest forty-eight ment within hours justice’s findings of historical fact unless generally adequate. findings clearly are erroneous. those sum, justice In the trial found that de Taoussi, 1146; Humphrey, 973 A.2d at 715 knowledge was overcome fendant finding clearly A.2d at 1273. A of fact is consequent Mr. Sims’s death and that his “when, although' there is evi erroneous state is what fueled defendant’s emotional it, support reviewing dence to court on himself. He observed desire to unburden the basis of the entire evidence is left with prompted that a confession remorse firm conviction that a the definite and mis product other emotional states is no less a v. take has been committed.” State LaRo choice; voluntary support of free and sa, 571, 576, 112 A.2d 377 R.I. 313 justice the trial citied principle, Cu (1974); v. also States United see United Connecticut, lombe v. 367 U.S. 81 Co., 364, 395, 68 Gypsum States U.S. (1961); 6 L.Ed.2d 1037 State v. S.Ct. (1948); Taoussi, 525, 92 L.Ed. 746 S.Ct. (R.I.2000); 756 A.2d 731 State v. Briggs, Perez, 1146; 973 A.2d at State v. A.2d Marini, (R.I.1994); and 638 A.2d 507 State (R.I.2005). 574, 588 (R.I.1983). Verlaque, 465 A.2d 207 jus If we conclude that the trial d. This Court’s Review findings tice’s of historical fact were not Foregoing erroneous, clearly proceed we sec Review i. The Standard of step analysis. of our At the second ond ruling sup step, “apply on a motion to we those historical facts and When confession, justice’s trial review de novo the trial determi press should of the state against a confession or a statement nation of the voluntariness “admit Bido, 836; only if the can first ment.” see also a defendant state Taoussi, 1146-47; Humphrey, 973 A.2d at prove by convincing clear and evidence (We at 1274. conduct a de novo knowingly, intelligently, that the defendant A.2d 1180 actually observed the human drama that is justice’s a trial determination

review of every to the fact trial part parcel due and who has voluntariness giv- whether a confession was “question of an opportunity appraise had witness Dennis, in nature.” voluntarily legal en demeanor and to take into account other 261.) at 893 A.2d grasped realities that cannot be from a reading of a cold record.” State v. DiCar “when it voluntary A statement is (R.I.2010) (internal lo, 987 A.2d 872 free and product defendant’s] is the of [the omitted). quotation jus marks The trial at Humphrey, rational choice.” 715 A.2d position tice was “in the best to assess the (internal omitted); 1274 marks quotation credibility relative of witnesses.” See Taoussi, By A.2d at 1147. see also 973 (R.I. DeOliveira, State v. 662 contrast, a defendant’s statement is invol 2009). from the defen untary if it was “extracted inducement, by improper dant coercion or case, justice In the instant the trial threats, violence, any undue including found the of defendant to be not will influence that overcomes the free thorough at all credible. After a review of 715 at Humphrey, defendant.” A.2d testimony given suppression at 1274; Taoussi, see also 973 A.2d at 1147. hearing, say findings we cannot that the justice clearly fact the trial were erro- making In our de novo determina Accordingly, neous. we next proceed to with respect tion to the voluntariness of a review question de novo the of the volun- confession, this Court examines the “totali tariness of based defendant’s confession ty surrounding of the circumstances totality of the circumstances surround- challenged Humphrey, statement.” 715 ing challenged statements. 1274; C., A.2d see also Fare v. Michael 707, 724-25, U.S. S.Ct. Accepting findings the factual and сredi- Taoussi, (1979); L.Ed.2d 197 973 A.2d at bility determinations of the trial justice, as carrying 1147. In out this final task with case, we have done the instant there is issue, respect to the voluntariness we exer nothing support argument left to “independent judgment cise our in deter inculpatory defendant’s statements were mining whether historical facts estab [the] involuntary. Accordingly, having scruti- a deprivation rights.” lish of constitutional manner, nized the record a de novo we Humphrey, 715 1274. A.2d at have reached the same conclusion as did justice -viz., the trial that Mr. Barros’s — ii. The Case at Bar voluntary confession was and was made respect With step first after a knowing intelligent waiver of analytical process in the pre described rights. his constitutional subsection, ceding perceive we no basis for ruling justice’s the trial findings of The knowingly and intelli- clearly historical fact were erroneous. gently rights waived his when he first met Fallon, trial just made number of credi with Detective hours after his bility assessments, princi is basic arrest. The next morning, the ATF ple judicial system of our agents that such assess and Detective all O’Connell con- ments are due deference when reviewed firmed with defendant that he understood said, by this Court. As we have rights willing speak “[we his and was a great deal of to the factu during afford] them. At no time the course of al credibility determinations assess defendant’s did he indicate judicial ments made longer officer who has that he no speak wished to with the

H81 waiver knowing intelligent he made a of agents or that and the ATF detectives rights, it was not error for his Miranda to cease so that wished deny his motion to the trial attorney. an he could consult suppress. of the rec our own review upon Based hearing, we are suppression of the ord Prompt 5. Presentment voluntary nature of as to the

fully satisfied argues The defendant also that it incriminating As statements. defendant’s deny suppress was error to his motion matter, of we address the effect an initial product statements were the because his the wall. handcuffing defendant’s hand to present him before promptly of a failure to in State v. Hum expressly we held As judicial a officer. (R.I.1998), and re 715 A.2d 1265 phrey, 5(a) Superior Rule of the Court Robinson, in v. 989 cently reiterated State per Procedure reads in Rules of Criminal (R.I.2010), practice such a does A.2d 965 part tinent as follows: the voluntariness of confes negate not an arrest without a “Any person making any perceive are unable to sion. We person take the arrested warrant shall departing for from meaningful basis unnecessary delay without before a we consider Humphrey, rationale judge of the District Court for the divi- be holding dispositive in that case to in which the arrest made or in sion issue in this to the handcuff * * * which crime was committed. the contention that case. We also dismiss made, an arrest shall be Whenever any alleged prom threats or any alleged shall be afforded a person arrested leniency agents made ises of prompt hearing purpose for the of ad- defendant’s confession detectives rendered judge mission to bail before a 797 A.2d at involuntary. Apalakis, See or an officer authorized to District Court (“It law en 448 is well established * * persons bail automatically not ex agents forcement do permissible police con King, ceed the bounds in v. opinion In our recent State (R.I.2010), or her by telling suspect we stated that Rule duct A.2d 613 5(a) ‘helpful’ would be or that a cooperation “not a constitutional command to be is ”). ‘make it better.’ confession would the text of our Federal or found within Constitutions, and its breach does State argument What remains of defendant’s necessarily any create constitutional that defendant’s appeal assertion King, (quoting violation.” 996 A.2d at 621 testimony have been deemed credi should (R.I. Nardolillo, 195, 199 698 A.2d State of witnesses for ble whereas 1997)). Instead, this views Rule Court have been prosecution should not 5(a) designed prophylactic as “a measure nothing As our re deemed credible. infirmities.” prevent other constitutional the trial suggests view of the record King, 996 A.2d at 621. findings of historical fact were justice’s 5(a), erroneous, interpreting In Rule clearly our de novo review “delay presentment, totality of the has held that the recоrd based on the Court more, automatic the firm conclu without does not warrant circumstances leads us to during made suppression and con statement sion that defendant’s statements at delay.” King, 996 A.2d product period of his free and fession were Rather, “delay, if we have held that therefore were volun 622. rational choice and inadmissible, 836; Bido, a confession at Hum it is to render tary. See inducing the operative have been at 1274. Since Mr. Barros must phrey, 715 A.2d (quoting operative inducing State v. not defendant’s con- Id. confession.” (R.I.1987)) 1172, fession; rather, 1178 Lionberg, 533 A.2d he found that defendant Nardolillo, original); very in see also “was much the (emphasis overcome knowl- similarly death, have edge at 199. We stated of his good 698 A.2d friend and Sim[s]’s the determination as to making in upset clearly state of led to his de- [this] delay operative was in whether or not the sire to unburden himself.” Our careful confession, hearing justice inducing review of the in record this case has led us preced the time consider whether “must to the same conclusion: there was no any statement had caus suspect’s ing any alleged delay causal nexus between in * * * his decision upon (whether [or her] ative presentment necessary or unnec- effect (brack King, 996 A.2d at 622 to confess.” essary) speak and defendant’s decision to ets, omission, emphasis in original) with the Providence detectives and the (internal omitted); marks see quotation agents, ATF volunteer to information to Nardolillo, 199; A.2d at State v. also 698 them, ultimately provide them with (R.I.1986) Ferola, 1339, 518 A.2d words, a confession. In other there is (stating that the court must “consider nothing in the record before suggest us to in delay bringing whether the so-called any delay in presentment any had judicial any defendant before a officer in respect causative effect with defendant’s way prompted, give defendant] [the statements and confession. statement”) inculpatory (empha his We are further unable to view the cir- added) (internal quotation sis marks omit cumstances of the interview on the morn- ted); Cobb, 1182, State 494 A.2d 1185 ing of December 30 demonstrating as (R.I.1985). Accordingly, elapsed “the time “police delay designed tactic of to pro- between defendant’s arrest and his involuntary duce an or unwitting confes- period confession is the critical we [that] 5(a) sion”—Rule having been in enacted must examine and scrutinize in order to against order to militate the use of such determine if it operative had been in in Nardolillo, 200; tactics. See 698 A.2d at ducing defendant’s admissions.” Robinson, 518, see also State v. 658 A.2d King, (emphasis 996 A.2d at 622 in origi (R.I.1995). Agent ATF West initi- nal) Nardolillo, 199); (quoting 698 A.2d at ated his interview of Mr. Barros so as to Brown, see also State v. 898 A.2d 78 obtain information regarding where de- Johnson, (R.I.2006); State v. 119 R.I. fendant procured gun had inwas (1978). 1012, 1017 possession his when he was arrested. absolutely In There is no summary, our well-settled evidence in the case 5(a) record indicating law with unambigu investigators to Rule ously induced defendant to make inculpato- indicates that a defendant who seeks ry to have an statements that he inculpatory statement made relative to sup relationship Mr. pressed unnecessary because of an Sims and the delay criminal in acts in which the two presentment engaged; “must demonstrate both: (1) actually, it is clear delay presentment that the in from the record that was un (2) necessary those statements were delay unanticipated by that such was the investigators. ‘causative’ with respect making to” the inculpatory statement. King, 996 A.2d Since it is clear to us that the timing of at 622. presentment any defendant’s was in case, In justice the instant the trial way operative inducing any delay presentment ruled speak freely with Detective O’Connell and upon “wanted” because he had stabbed the four pass we need not agents, the ATF arrest, guests just-referenced party; of defendant’s at the ac- precise date Roca, delay present- any cording there was to Ms. the tenant added that whether ment, delay was any whether such the individuals who had been stabbed had unnecessary. King, police. See 996 A.2d at 622. not the incident to the reported agreement are in with the Accordingly, we Ms. Roca further indicated in her state- delay, any, pres- that the if trial Felipe ment that Mr. had been so con- “operative of defendant was not entment cerned about individuals who had been inducing” him to make his statements or party in the at that he fight involved Nardolillo, at his confession. See 698 A.2d left lived in New York Providence and 199. January from December 2004 to 2005 in hope “things that cool off.” [would] B However, to according Ms. Roca’s state- O’Connell, ment to Mr. Felipe Detective Third-Party-Perpetrator Evidence The continued to be in fear of the same individ- The also contends on defendant Providence; uals once he had returned to justice that the trial erred when he appeal she said that he had indicated to her that per ruled that the defense would not be a gun kept he wanted to obtain because he Detective mitted to cross-examine O’Con encountering them. Ms. Roca also stated made to respect nell with to statement that, prior to the detective a few weeks to that one or suggested the detective which death, Mr. Felipe had started to sell may have had a motive parties more third drugs; many she told the detective that Deivy Felipe. perpetrate murder people Felipe money owed Mr. in connec- briefly first summarize the relevant We with drug tion sales. facts. trial, By the time of defendant’s second day Deivy Felipe after was found unable the defense continued be to lo- death, inter- shot to Detective O’Connell testify regarding cate Ana Roca to at trial viewed and took a written statement from police. the contents of her statement to the Mr. one Ana Roca—the woman with whom filed a part, prosecution For its motion Felipe living prior had been to his mur- prior whereby in limine to the second trial statement, In that Ms. Roca told der.19 sought preclude it defense counsel from that, point at between some asking ques- Detective O’Connell detailed January the tenants August 2004 and tions about Ms. Roca’s statement. The building floor of the who lived on the first that, although trial ruled a criminal Felipe Mr. had which she and lived present is entitled to a defense defendant Roca in her party. hosted a Ms. indicated Mr. implicates person, that another Barros that, during party, Mr. Fel- statement reasonably specific failed to make the had guests, ipe fought with several of proof requires. that our case law offer them, four of and smashed a bot- stabbed justice’s In trial person’s reviewing tle over one head. She stated in limine party, a week after the “the counsel would not be ruling about that defense to cross-examine Detective permitted windows of car were smashed.” Ms. [her] statements made Roca also stated that one of the first-floor O’Connell about certain part to him Ms. Roca as of a third- Felipe tenants told her that Mr. was they living undisputed were whether Ana but it is 19. The record is not clear as to wife, girlfriend together of his death. Felipe’s Mr. or his time Roca was 1184 (2) defense, duty proximate to the crime or to establish a is our

party-perpetrator whether the evidence at issue was consider connection between these individuals and and, so, if whether erroneously Deivy Felipe. appeal, the murder of On excluded— sufficiently prejudicial that exclusion that “in the simply suggests error. See State v. to constitute reversible case,” in unique circumstances of this (R.I.2005). Gomes, view) (in which the existence defendant’s parties opportu of third with a motive and proposition It is a self-evident nity identity is not in doubt but the charge appropriate “an defense to unknown, those individuals is we should person criminal is that another misconduct strictly apply long-standing our crite the crime.” perpetrator was the true third-party-perpetrator ria with (R.I. A.2d Wright, State v. us, however, evidence. It is clear to Gomes, 2003); 881 A.2d at 111 see also disregarded those criteria should not ‍​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌‌​‌‌‌‌‌‌​​‍be (“There question no that a defendant is case; to do so would constitute “an impli present entitled to defense impermissible jury invitation to person.”). another At the same cates speculate on a collateral matter.” See time, however, repeatedly this Court has Gazerro, 825; 420 A.2d at see also Scan indicated thаt when criminal defendant lon, Gomes, 1275; 982 A.2d at 881 A.2d at a third-party-perpe wishes to mount such repeatedly 112. We have insisted that of defense, trator the defendant must make proof of reasonably fers this area be proof reasonably specif an offer of that is specific in order to that there ensure Gomes, 111; ic. 881 A.2d at see also State speculation by jury, be such and we Scanlon, (R.I.2009); 982 A.2d are unconvinced that Gazerro, depart we should State v. 420 A.2d 824-25 (R.I.1980). salutary from rule. “reasonably specific”

Such a offer The trial err in granting did not proof person to the effect that another prosecution’s pre- motion in limine to had a motive to commit the crime with clude the admission third-party- of the which a is charged must not perpetrator evidence.

only allude to motive but must also point to tending “evidence to show the Ill person’s opportunity third to commit the proximate crime and a connection between Conclusion person and the actual commission of For the opinion, reasons set forth in this Gazerro, 825; the crime.” 420 A.2d at see we affirm the judgment Superior Gomes, 111; also 881 A.2d at Wright 817 may Court. record be returned to 610; Brennan, A.2d at State v. that tribunal. (R.I.1987). 483, 488 A review of the record reveals SUTTELL, Chief Justice concurring. making his offer proof, defense counsel I write entirely separately signify my focused almost on the motive of earnest Flaherty’s endorsement of Justice unnamed individuals referred to in com- Ms. concerning myriad Roca’s statement to Detective ments O’Connell. benefits to It apparent absolutely justice system is that he the criminal from resulting offered no (1) evidence the electronic recording establish the individu- interro- als to whom gations. Ms. Roca referred in her It a practice greatly is to be statement an opportunity had to commit encouraged. calm, necessary cally say nor that the accused was com- it is neither

I believe that however, fortable, to exer- subjected inappropriate for this Court to no prudent, authority at this time supervisory physical pressure, cise its or emotionаl or the de- any justice give that a trial fendant, to mandate complains who often emotional regard. in this As instruction particular physical deprivation. browbeating the fact that law majority suggests, from the respectfully majori- I dissent an interro- to record enforcement declined ty’s require decision to decline to that a doing capability when it had the gation cautionary given instruction be whenever developed may a circumstance that be so is prosecution attempts to meet its evi- effectively argued by at trial counsel dentiary by relying burden on an unre- Moreover, in this jury. the defendant to a recorded, corded, partially custodial in- jury instruc- requested specific two case terrogation. Specifically, I would hold tions, my judgment neither of which in suspect interrogated that when a appropriate. for a crime setting punishable detention my dissenting I Accordingly, support life, imprisonment for and law enforcement for electronic re- colleague’s predilection capability has the to video record the in- majority cording fully but concur with the so, terrogation jury but declines to do opinion. be should informed instruction that this so, requested if such an instruction is FLAHERTY, part in dissenting Justice by the defendant.20 in the concurring and result. powerful There can be no more evidence Surrounding A Tradition of Concern in trial than a ad- a criminal defendant’s Custodial, Detention-Centered he the crime with guilty mission that is of Interrogation charged. packs A which he is confession Ascertaining the truth essential of the wallop, and an intellectual and emotional custodial, surrounding a circumstances de- fact-finder, once it is submitted to a interrogation long tention-centered has predictably guilt focus shifts from the or system presented the criminal of whether the innocence the accused to 1936, unique challenges. As far back as voluntary. precisely statement was It is Supreme the United States Court articu- of such potency because admissions decision, deep lated concern in its seminal that law enforcement officers work so hard v. in which the Mississippi, Brown Court them, should, they employing, to obtain as acknowledged: techniques sophisticated designed draw suspects. Invariably, ju- “Coercing supposed concessions from state’s criminals into such determining using rors are tasked with whose confessions and confes- story police, categori- against to believe: the who sions coerced from them them so proffered Supreme 20. The defendant in this case two Judicial Court in Commonwealth DiGiambattista, One, 423, suggested jury v. 442 instructions. modeled on Mass. 813 N.E.2d 516, (2004). required by proffered Rule That instruction 3:17 of 533-34 instruc- said, Jersey Governing part, New Rules Criminal Prac- tion that of an ”[t]he absence tice, recording the re- concludes the absence of electronic of an its (but quired recording "permits entirety permits compel) but does not com- does not [the jury] pel jury] to conclude that the State has to conclude that State has failed to [a beyond prove prove that oral were in a reasonable failed to admissions voluntariness so, doubt, accurately heavy reported fact made and if was which in this context is a bur- not, dissent, by specifically State's witnesses.” The other was based den.” I do this approaches. out endorse either of these on Massachusetts instruction laid 1186 recording interroga- of all coun- of detention-centered has been the curse trials Court, Supreme tions was the Alaska iniquity, It was the chief

tries. which, 1985, Chamber, recording found electronic infamy of the Star crowning (either by tape) or a due- audio video be Inquisition, and other similar and the right under that state’s process constitu- recog- The Constitution institutions. State, 1156, Stephan tion. 711 P.2d lay behind these nized the evils (Alaska 1985). Other 1158 states them in this prohibited practices * ** analyzed have have the issue declined to duty country. maintaining The of conclude, agree, right and I that such a rights person constitutional of a on trial due-process principles.21 founded on How- mere of for his life rises above rules ever, several have states reached same wherever the court is procedure, and rеsult, analyses their basing principles clearly satisfied that such violations ex- justice.22 of fairness or ist, it will refuse to sanction such viola- apply tions will the corrective.” Moreover, several state courts have held 278, 287, Mississippi, Brown v. 297 U.S. recording promotes confessions (1936) 461, (quot- See, 56 S.Ct. 80 L.Ed. 682 accuracy. e.g., even ensures State v. State, 116, (Fla.Dist.Ct. ing Fisher v. 145 Miss. 110 Sawyer, 561 So.2d 280 (1926)). So. App.1990) (commending police department practice “in maintaining its a record of challenge balancing rights interrogations through the tape use of re defendants, the evidence-collecting respon- cording” “recommending] prac sibilities of law enforcement and prosecu- tice to all agencies other law enforcement tors, truth-seeking and the goals judges challenges so that to future confessions juries moving has been a target. truth”); exposed light can be (and Since Brown without doubt before State, Lara v. (Wyo.2001) P.3d Brown), struggled courts have to maintain (noting “tape-recorded interviews [ ] an appropriate balance between these in- leave far fewer loose ends to be tied up myriad terests in contexts. The increased most, many, and in if not instances would availability and ease of use of advanced follow”). be a protocol well-advised technology has altered that balance still significant It is that most courts that more. have considered the merits of electronic Custodial, State-Based Evolution: recording have adopting concluded that Interrogation Detention-Centered practice significantly the improves the Technology and justice system, criminal specifically, eloquently by As outlined the majority, ability judges juries get See, require first state court to electronic e.g., the truth.23 United States v. ble, rejection due-process approach by 21. The of a question- and must be recorded when the jurisdictions compre- ing place numerous was reviewed occurs at a of detention. Id. at 592. hensively Supreme subsequently Connecticut Court Several adopted states have Lockhart, See, DiGiambattista, reаsoning. its decision in State v. e.g., 298 Conn. 813 537, 1176, 533-34; 10(2010). Barnett, 4 A.3d 1188-89 n. N.E.2d State v. 147 N.H. 334, 629, (2001); A.2d 789 632-33 State v. Cook, 533, 530, rely 22. Minnesota was the first state to on this 179 N.J. 545-47 Scales, (2004). approach in its decision in State v. 518 (Minn. There, 1994). N.W.2d 587 the court justice” held that the "fair administration of 23.Stakeholders that have used electronic re- requires interrogations cordings that all custodial have cited numerous benefits. See Sullivan, electronically Recording should be recorded when feasi- Thomas P. Federal Custo-

1187 (1st 136,144 require trend to Torres-Galindo, n. been a concomitant F.3d 3 206 Cir.2000) (“[Tjhere suspects be recorded. interrogations that ac is little doubt Indeed, curate, recording adoption of cus of the contemporaneous since Alaska’s facilitate the quarter century ago, would a of a four- practice todial statements system, truth-seeking aims teen states and the District Columbia ap facilitate review and it would also personnel law-enforcement require now 337, State, Nev. 775 v. 105 peal”); Jimenez all interviews. record some or custodial (1989) (finding that record P.2d legislatures and the courts of our sis- of cred problems “would alleviate ings that path ter states that have traveled who claim a defen ibility police officers preference a that confes- expressed have statements”); incriminating made dant develop- through be recorded sions (Tenn. 759, Godsey, v. 60 S.W.3d State encourage sundry procedures ment of 2001) (“There can be little doubt that elec recordings. pref- such Those or mandate interroga recording custodial tronically (1) from a ranged erences have statement of time would reduce the amount tions preference the court of its for electronic disputes over what spent resolving in court detention-based custodial in- recording of during interrogation.”); State occurred (2) requiring a statute a terrogations,24 Kilmer, 617, 439 S.E.2d 190 W.Va. jury may presume that a jury instruction (1993) recording (opining that would a re- involuntariness from the absence of enforcement, suspect, law benefit (3) otherwise,25 cording, complete pre- or court). inadmissibility when the custo- sumption in its interrogation dial is rеcorded that as courts question There can be no (4) entirety,26 of admissibili- presumption continuing in the legislatures engage re- ty when the custodial providing just work of for a determination (5) full,27 jury instruction con- proceeding, criminal there has corded every Interviews, compliance evidence of L.Rev. consider credible dial 45 Am.Crim. (2008). Recording pretrial noncompliance reduces whether de- 1306-10 to determine guilty; pro- pleas of motions and increases voluntary and reli- fendant's statement improp- tects from false accusations of able.”). they allegations that are mis- er conduct or during interrogations; stating what occurred Illinois, Comp. 725 III. Stat. 26. See 5/103-2.1 conduct, helps expose improper deter it and (2005) (Requiring electronic recordation of wrongful prosecution potential and con- and interrogations of both minors and custodial judges suspects; it allows victions of innocent detention, places of and adults conducted truly juries and what oc- and to see hear creating inadmissibility presumption a of as relying the recollec- curred rather than on against accused in enumerated evidence the time; passage the of tions of witnesses after Code). proceedings of the Illinois Criminal public’s law en- enhances the confidence in justice system. forcement and the criminal Ohio, Ohio Rev.Code Ann. 27. See Id. 2933.81(B) (2010) ("All § statements made (Iowa Hajtic, 24. State v. 724 N.W.2d person suspect of a violation of a who is * * * 2006) (“We recording, par- believe electronic felony possible or violation of * * * interroga- ticularly videotaping, of custodial during degree, a custodi- first or second encouraged, we take this tions should be place are interrogation in a of detention al so.”). opportunity to do voluntary if the statements presumed to be electronically person are record- made Carolina, Gen.Stat. Ann. 25. See North N.C. ed.”). 15A-211(f)(3) 2008) (“When (West § evidence compliance noncompliance with re- or of presented quirements of this section has been trial, may jury that it at shall be instructed evеry when cam- evaluate with our movement and jury should veying that banks, stores, eras are in our in our alleged an statement caution particular roads, our in our homes. Most place at a of detention made confession interroga- up jury of the citizens who make from an unrecorded and derived many pool law enforce- either have or will soon have Significantly, tion.28 country digital record video or cameras of their own. across agencies ment context, policy becoming In this it is increas- as a matter of sound such interviews ingly jurors accept difficult for practice.29 and best they police assertions of officers that Responsibility Oversight for the Fair tape not because it interrogations did Obligates of Justice Administration not their In the policy to do so. Superviso- to Exercise its this Court every post-DNA age, wrongful when ry Authority news, front-page po- conviction is prosecu- axiomatic that the It is almost prosecutors being lice officers are generally prevail tion will when the defen- explain wrong asked to what went directly pitted against police dant is cases, of police each these officers , “swearing contest” with to what may recording interroga- have to start during interrogation resulting occurred self-preservation. tions as a matter of Stephan, in a confession. See P.2d will, Their failure to do so as the hand, growing 1158 n. 6. On the other suggested, reformers breed distrust proliferation recording part devices as their methods and cause a strain in ” daily palpable of our presents lives risks public.’ their relations with the State point, law enforcement. On this the Iowa Hajtic, 724 N.W.2d 455-56 Supreme recently opined: Court (Iowa 2006) Reich, (quoting Drizin & 638-39).

“Commentators, 52 Drake L.Rev. at and the American Bar Association, videotaped have advocated And therein lies the rub. There is no interrogations. of custodial recording question may that there abe multitude of See A. Steven Drizin & Marissa J. why valid reasons law enforcement does Reich, Heeding History: the Lessons suspect’s not record a confession. These Mаndatory The Need Recording may range experienced from an interroga- for Interrogations Accurately Police As- judgment tor’s will suspect Reliability sess the and Voluntariness recorded, being talk if he is to the flat Confessions, 52 Drake L.Rev. a person being interrogated refusal of (2004). 619-46 As these authors have give However, a recorded statement. de- stated, reasons, spite potential such valid it is the ‘failing police interrogations to record fact-finder who carries the burden ad- may longer luxury statement, no be a judging the voluntariness of the can officers afford. We live in a video and fact-finder is entitled to the best age, age evidence, an when satellites can track highest quality and of or an ex- DiGiambattista, 533; admissible, 28. See 813 N.E.2d at see evidence that the statements are shall, §§ also Ann. defendant, Mont.Code 46-4-408 to 410 judge upon motion of the (2009) (requiring electronic recordation of provide jury cautionary with a instruc- interrogations, setting excep- custodial forth tion”). requirement, pro- tions to the recordation and viding objects that the defendant "[i]f Sullivan, 29. 45 Am.Crim. L.Rev. at 1337-41 introduction of evidence under 46-4-408 and A). (Appendix preponderance the court finds a of the

H89 today’s society, my opinion to it. it is that the why presented it was not planation under responsibility, Humane Practice Rule not be re- And it is Court’s should authority, to aid the fact- supervisory its as the for a lied on sole standard deter- for the truth. finder its search of voluntariness.30 mination Humane Practice Rule Should Not The position The that our Humane Practice Upon an Exclusive

Be Relied as any accounting Rule—without for Safeguard of Voluntariness contemporary technologies realities of —is truth-seeking sufficient to advance the majority correctly, has forth set clarity, this state’s and with admirable function of as it relates to a deter- adherence to the Humane Practice long needlessly mination of voluntariness is Rule, “requires judge that which Indeed, by judicial static. whether inter- jury independent make de- separate action, pretation legislative other terminаtions of voluntariness.” State employ states that the Humane Practice (R.I.2006). Dennis, 250, A.2d 262 893 (or equivalent Rule its relative a under However, with the respectfully disagree I name)31 have different advanced their majority’s holding that this is sufficient truth-seeking practices by employing new I with its safeguard, disagree also technology in concert with the Humane juries it that averment that is “satisfied Rule, Practice and not as a substitute for routinely adequate in this state receive jurisdictions it. These Maryland include instructions with to the voluntari- (Md.Code 2-402(1) Ann., § Crim. Proc. interrogations— ness vel non of custodial (2008) that (requiring “a law enforcement - notably most because of our Humane regularly unit that one utilizes or more Although certainly Practice Rule.” interrogation capable creating rooms true that the Humane Practice Rule does recordings audiovisual of custodial inter- a valuable I cannot provide safeguard, rogations shall make reasonable efforts to accept especially that in cases fairness — recording create an audiovisual of a cus- investigation of a crime involving punish- todial of a criminal suspect conclusively life imprisonment able —is in connection with a involving” case against gen- when balanced resolved possible”)); named “whenever felonies “[ljisten- erally accepted observation (DiGiambattista, Massachusetts 813 inculpated by be ing to (holding N.E.2d at 533 the defen- persuasive power or her own voice has a dant, requested, when is entitled to a by contradictory unrivaled testimonial ev- jury explaining instruction “the Barnett, 334, idence.” State v. 147 N.H. highest expressed State’s court has 629, (2001); accord Com- preference interrogations such be re- DiGiambattista, 442 monwealth v. Mass. practicable”)); corded whenever Missouri (charac- (2004) 813 N.E.2d (Mo. (West 2009) Stat., Ann. ch. 590.700 terizing being confessional evidence as in- (requiring recording of custodial potent quality”). Fur- “exceptionally thermore, specified felonies suspects terviews especially light recording technology recording equipment in if is available and ease access DiGiambattista, Denno, N.E.2d at 539 31. See Jackson v. 378 U.S. 378- 30. See X, ("[0]ur dissenting) 9, 1774, (1964) (Spina, prac- ‘humane 79 n. 84 S.Ct. 12 L.Ed.2d 908 greater safeguards de- tice’ rule ensures for (discussing difficulty applying tidy the provided by many than those other fendants procedural safeguard), term of art to the jurisdictions.”). 1190 (Neb. feasible)); nothing quality Nebraska does to ensure that the

recording is § § to 29-4508 Ann. 2SM501 by judge jury Rev.Stat. the evidence reviewed and 2008) (§ (LexisNexis says, 29-4504 “a By the available. re- encouraging best jury they the shall instruct court custodial, cordings of detention-centered an adverse inference for the may draw inteiTogations, this Court would not under- officer’s failure to com- law enforcement Rule, the mine Humane Practice but would 29-4503].”)); with New Mexico ply [§ in by providing judges fact enhance it and (re- (N.M. (2005) § Stat. Ann. 29-1-16 juries representa- with the most accurate electronic re- quiring detention-centered proffered tion of a defendant’s confession. entirety reasonably in if cordation its shown for good available unless cause is Dissent Summation of (Or.Rev.Stat. recording)), Oregon not Therefore, the for aforementioned rea- 133.400(3) (2010) (“upon request § the sons, I respectfully dissent from the ma- defendant, the court the the shall instruct jority’s determination that this case does requirement jury regarding legal de- require jury not this Court address the (1) scribed subsection of this section appeal. instruction issue raised In superior reliability of electronic cases which a confession to a crime recordings compared when with punishable by imprisonment gar- for life is done”)).32 what was about said and in a setting, justice nered detention is best Thus, it cannot be maintained justice, served if the trial upon request, contemporary ever-widening use of jury may instructs the it consider that technology mitigate available the seri- the opportunity had to video dangers involuntary ous confessions oc- record the confession but did not do so. curring interrogations detention-based Although a recording requirement may be is limited to those states that lack the step by eventual taken more courts and safeguards provided by the Humane Prac- legislatures, herein step advocated— equivalent. tice Rule or its relative Rath- jury be informed the court er, the actions of the six states enumerated when ability law enforcement had the above demonstrate that the Humane Prac- contemporaneously record a detention-cen- tice Rule’s dual-tier review of voluntari- tered and chose not to do ness is not in and of itself a sufficient so—does overreach or risk uncertain prophylactic to the extent that we can footing. my opinion, In it provide would confidently ignore the additional protec- jury helpful general with a guideline provided by widespread tions availabil- designed to do no more than assist the ity highly and ease of use of reliable re- trier-of-fact who is burdened with the re- cording technologies. sponsibility truth-seeking. for Although I agree that the dual-tiered provided review by the Humane Practice Applicability to this Case Rule increases likelihood that the vol- untariness of a Despite my disagreement defendant’s confession will with the fact-finders, fully be considered reasoning regard Court’s to the re- (Mo. 1966); Scott, 265, pertaining adoption 32. For cases 114 v. State 200 Neb. equiva- 659, Humane Practice Rule or lent, relative (1978); Cox, its 263 N.W.2d 663 Pece v. 74 State, 134, Dempsey see 455, 277 Md. 355 591, 422, (1964); N.M. 396 P.2d 423 (1976); A.2d Commonwealth v. Mar- Brewton, 590, 874, State v. 238 Or. 395 P.2d shall, 338 Mass. 155 N.E.2d (1964). (1959); Washington, State v. 399 S.W.2d

H91 confession, he was informed of murder I nonetheless cording (“Nutt”). friend, of conviction in Tonea Sims judgment would affirm Here, was not the defendant this case. case, the circumstances Under station for at the being interrogated officers should have had no surprised imprisonment, life ‍​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​‌​‌​​​‌‌​‌‌‌‌‌‌​​‍punishable a crime stop proceedings to ob- obligation Indeed, weapons for a offense. but rather recording continuing tain a video before po- Providence reveals that the the record the interview of the defendant. agents from Federal brought lice Tobacco, Alcohol, Firearms Bureau of fair only

Explosives for reason. can be drawn from conclusion that interrogating officers record is that when the defendant blurt- surprised were in homicide when his involvement ed out

Case Details

Case Name: State v. Barros

Court Name: Supreme Court of Rhode Island

Date Published: Jul 8, 2011

Citation: 24 A.3d 1158

Docket Number: 2008-292-C.A.

Court Abbreviation: R.I.