State v. Garcia

port, finding 1—52(b), or a of contempt procedure § for failure under agree we 14— pay alimony support, may, child with Poisson that to” “relating the words (20) within seek twenty days modify re- “finding contempt” words of questions supreme view of of law in the irrespective finding of whether of con- court by petition for writ of certiorari or, tempt was actually made as in this

case, opinion was denied. It is also our present that this case does not the “rarest hand, Bergeron, other on the contended of permit circumstances” that would devia- Family because the Court did not from procedure tion the required de- make an finding contempt affirmative 14-l-52(b), §in notwithstanding scribed but adjudi- instead denied her motion to agreement parties proceed of the contempt, cate her in former husband appeal. with an appropriate means of review obtaining is through appeal. a timely Accordingly, light holdings of our past

This Court has a writ issued Armentrout, McKenna, we Bonney, of certiorari to review a Family Court’s hold that review Court by this of matters party’s adjudicate denial of a motion to relating to contempt Family in the Court party contempt another failure to may sought petition only be for cer- pay support child Armentrout v. Ar 14-l-52(b). pursuant § tiorari mentrout, (R.I.1997) (per therefore, In summary, deny we curiam), but that case we not ad appeal the papers dismiss and remand procedure required dress whether that Family in the case to Court. 14-l-52(b). § under We have also dis missed appeal Family of a affir Court’s

mative finding contempt, that the noting clearly

“statute delineates sole [that] securing appellate

method of review” is

petition for Bonney writ certiorari. (R.I.1997).

Bonney, 695 A.2d

Further, Guglietto, McKenna v. (R.I.1996) (mem.), this Court STATE appeal heard an of a Family order Court granting a party’s modify motion to child support, though' we noted Jose GARCIA. proper route of review under the statute No. 96-169-C.A. by petition for writ of No certiorari. case,

tably, in opportu Supreme we took “[the] Court of Rhode Island. nity pronounce that in future we will Jan. prop consider those matters that are 14-l-52(b) erly us, § pursuant before

and, circumstances, only in rarest of

will allow deviation from re

quired procedure.” Id.

McKenna is not determinative issue, however, § 14-1-

present because

52(b) expressly provides that a decree re-

lating may support modification child only by petition reviewed certiorari.

Although explicitly the statute does not contempt

state that a denial of a motion

falls within purview required Tapia’s

Street and collided with car. An quickly altercation ensued between Tapia car, and the driver this other Samuel (Lorenzo). Meanwhile, Lorenzo an occu- automobile, pant Jorge Diep Lorenzo’s (Diep), and briefly left the car entered the Haywood house at 54 Street. Upon re- emerging, Diep jumped into the driver’s vehicle, seat of Lorenzo’s gear shoved the reverse, into slammed foot on gas pedal, and the vehicle Tapia’s bashed into Weisman, Goldberg, Annie Aaron L. By car. now was out of William his driv- Providence, for Plaintiff. Diep er’s seat and yelling stop. But Weisfeld, Rosin, Janice Paula Provi- Diep proceeded yet was not done. He dence, for Defendant. vehicle, run William over with Lorenzo’s trapping him the car underneath and drag- WEISBERGER, C.J., Before ging him several hundred feet down the LEDERBERG, BOURCIER, body road until finally dropped William’s FLANDERS, GOLDBERG, JJ. free of Eventually, the chassis. an ambu- transported lance the battered William to OPINION Rhode Island Hospital where he under- emergency surgery. went hours of Ulti- FLANDERS, Justice. mately, he survived. A night rage vengeful of road and arson family While family culminated in a of six William’s friends innocent vic- tims, children, update awaited an on his condition at including four the burning to hospital, defendant, who had death in a witnessed Providence house fire. the Convict- Street, mayhem on Haywood ed “came grisly leading crimes to this holocaust, defendant, ramp, Garcia, screaming on the told every- [and] Jose chal- one lenges appeal they going get them propriety [were] they for what Will.” He certain introduced him did to also stated against evidence trial, previously] [had his “he burned crack- [a] but also sentences he re- head’s house because he below, ceived. For reasons down owed him adduced exhortation, delivering we affirm After Superior Court’s judgment $600.” defendant, others, proceed- Tapia of conviction. by Haywood

ed car back to Street area. Tapia first drove to Vernon Street I drop off one of their friends. He and Travel Facts and defendant then inside a house went 26, 1993, evening February shortly Tapia On the came out thereafter. re- acquaintances quested keys defendant and several were to the trunk from the car, traveling by opposite automobile di- driver their Latissa Southerland (Southerland), Haywood yellow rections on Street Providence. and retrieved a anti- The defendant passenger was a car freeze container from vehicle’s trunk. by acquaintances, Tapia driven one of then those Jose and defendant climbed into the Tapia (William), (Tapia); requested Cifredo back seat of William the car South- cousin, Tapia’s driving erland to a gas another vehicle. to take them station. Once there, stopped their Tapia drivers had automobiles and defendant filled the anti- in the conversing among gasoline road and were freeze container with and reen- suddenly themselves when another vehicle tered the car. Too anxious to drive further, driveway Haywood requested Tapia backed out of a at 54 Southerland two take over the He did so and at He was sentenced to concurrent terms wheel. midnight they apart- plus all drove to an parole, about of life without a term of ten complex streets serve, ment located two behind years to be followed four Haywood house at 54 Street from Challenging consecutive life sentences. Diep emerged had to wreak havoc that was introduced at Carrying yel- on William and his car. received, trial and the sentences he defen- container, left low defendant the car with appeals dant from these convictions. Tapia while the remained there and others

waited for them. defendant When II later, returned Tapia some ten minutes Analysis longer carrying yel- defendant no low container. As defendant and the oth- Testimony A. Coerced scene, away drove they ers from the could The defendant first claims that the smoke rising see from the direction of police and trial statements one of Haywood Street. When the vehi- against two of him the witnesses were occupants cle’s asked what had suppressed. coerced and have been should happened, responded he that he and Tapia Because this evidence was introduced “poured gas top had from the to the trial, against him at he contends that his bottom.” right process federal constitutional to due it, however, As fate would have neither totality of law was Because the violated.1 Diep, targets Lorenzo nor the intended of of pertaining the circumstances revenge, Haywood lived at 54 gathering presentation and the of this evi Street, present nor were they otherwise contention, support dence does not Tapia there when defendant and returned reject argument. premises. Chang, But Carlos Hilda outset, DeRosario, per At we note that the and-their four children did live sons they present And who are mere witnesses to criminal there. were all their apartment on the enjoy the third floor when defen- acts do not same federal due dant and his accomplice process being doused the stair- protections they when are gasoline wells with set the building questioned by investigating the authorities Despite desperate attempt by ablaze. a being suspected wrongdoers as do who are brother-in-law, Ponce, Chang’s Carlos Ivan interrogated they police are in while custo them, to rescue Chang family the entire dy. example, warnings2 For Miranda perished in gasoline-induced the inferno. suspects need to given only police be custody, potential but not to witnesses who day, The next hearing after that the police subjected investigative ques are police were questioning some of the indi- Diaz, 1195, tioning. See State v. 654 who him previ- viduals had been with the (R.I.1995). 1204-05 See also United evening, ous boarded a defendant van 564, 579, v. 425 Mandujano, States U.S. 96 later, days bound New York. Nine New 1768, 212, 1777-78, 48 S.Ct. L.Ed.2d City police him York arrested at his moth- (1976) (Miranda warnings are aimed apartment, er-in-law’s Bronx at which “the evils seen the court as endemic point unsuccessfully attempted defendant person of a police interrogation custo through flee a Ultimately, window. a arson, dy”). importantly, Most even when a wit convicted conspir- defendant arson, providing ness into the acy felony commit and the mur- has been coerced family’s police impli Chang pretrial der of the six members. with a statement that Arizona, 436, 2. See 384 U.S. 1. The defendant makes claim that Miranda v. no 1602, (1966). rights under state law were violated. Ac- S.Ct 16 L.Ed.2d cordingly, pass we have on the no occasion alleged propriety of the misconduct under law. Rhode Island accused, a from the historical facts mere fact that clusions drawn cates the the the police such a state that defendant’s federal witness has the establishes of a crime during investigation rights ment were denied. See constitutional 1265, prevent necessarily does not the witness Humphrey, State voluntarily (R.I.1998). in a testifying case, from at trial police arrest- pretrial manner consistent with state February on two ed Southerland Damiano, ment. As said State February 26 days after the incidents ,cWe (R.I.1991): know of charges against the criminal gave rise to precedent Supreme no from the Court date, she gave defendant. On a require the United States that would a she later de- police statement which of a live wit ignore truth,” half but she did not scribed as “a having ness on the basis of reasonable police The then incriminate defendant. a prior doubt whether state her, only bring her back to the released containing ment of such tes the substance ques- for additional day station on the next timony produced by had been coercion.” Nevertheless, tioning. give she refused to Nevertheless, exactly this is what defen day. on them statements further when suggesting dant should the law her police again The then released appeal argues he attorney. with an told her to come back have testimony of two witnesses should Thus, may have said police whatever precluded alleged been on the basis of February and done on to Southerland obtaining pretrial police coercion (or the day her it did not cause from statements them. next) in the crimes implicate ultimately convicted. for which he was The defendant insinuates that one of him, Southerland, against witnesses day did return to following she nineteen-year-old previ- callow who had no lawyer, but still she police station with her in dealing police. ous with the experience police no at that gave statement police He claims that the arrested her two Instead, police Souther- time. probable fire cause days after the without pros- attorney merely land’s discussed police then to do held her at the so an- police pect giving of Southerland’s hours, where, says, he station for several forthcoming statement other and more her, they lying, accused her of screamed until March 5 did about the fire. Not her murder charges threatened Southerland, accompanied attorney, her child, of her with loss her and denied the Attorney General’s office proceed to the attorney. call an He claims request to provide lengthy and a more written state- that these circumstances render involun- tri- The fully inculpating ment defendant. tary any subsequent gave statements she that with- justice al found had done so she Ultimately, the he claims the police. to any having governmental authority out justice have not suppressed trial should trial her. The any against leveled threats only but her trial these statements also that Southerland justice also concluded violating pro- to due testimony avoid police forced return to the had been to upon not to convicted right cess based on of the occasions. station each coerced evidence. stated, Rather, “I as herself Southerland law, just “I didn’t want applicable voluntarily,” facts the went albeit and Damiano, Indeed, (see, at that e.g., sup go back down there.” supra), however Southerland, “I wasn't contrary point, according drawn port conclusion meeting her justice. jus Only during cooperating.” trial We reverse a trial will March only personnel law on suppress on a with enforcement findings tice’s motion (1) presence in the counsel did South- if her her findings error, only give her second and statement statements reveal clear erland challenged (2) The defen- independent the con- that incriminated defendant. and our review of presented ry first that suggest dant no evidence to that maintained her statement any police Thus, was nothing there coercion connection she knew about the fire. this fourth meeting with and final between trial correct in concluding and Perry inculpate Southerland the authorities. that did not solely police as a result of coercion and During portion another of Southerland’s threats. testimony, trial she indicated that “while lawyers these police all officers” were sure, giving To be her state- after first waiting Attorney for her at the General’s ment wherein she claimed to have no office on March remained in a room she fire, knowledge Perry about the testified attorney, her “told with who [her] police they that the her that did not told admitted, up Finally, me.” “I she de- her, believe could be trouble for she cooperate cided to them.” It was withholding truthful information from only point that she even discussed them, and that she would not be allowed to possibility giving police a second provided leave until she them with the statement incriminate would defen- they truthful were asking information days dant. Four later March without Perry obtain from But her. also testified any showing by defendant of coercion that police intimidating made no state- in the interim by any law enforcement her, they engage ments to nor did in an personnel, and in presence her at- otherwise coercive course conduct to- torney, provided Southerland her second gave wards her after she them her second statement to the authorities. Based on and truthful statement and before she tes- circumstances, these are unable to fault tified at bail hearing both defendant’s justice’s conclusion that Souther- grand jury. before the The trial (as land’s March police 5 statements to the found that did not police Perry tell aswell her consistent trial testimony) were what say, and we are unable to conclude product police not the coercion. finding clearly this historical erro- Likewise, pre- acknowledge neous. We that some of the trial statements of the other witness evidence indicated that detective had question, Perry (Perry), appear Nesha Perry also insisted to that he knew she was us, they justice, as lying initially after denied she knowl- fire, have been voluntary. regard edge Perry about With her would be in statements, pretrial statement, threatening making trouble for such by police tactics Perry’s occurred before police that she would to remain at the have first false police statement which she station until she told the what she claimed that she nothing light knew about the knew about the But in fire. fire; Perry’s Perry second statement incrimina- fact that later testified that she then ting defendant police voluntarily relayed police was not result of the truth to the statement, threats. provided police per- Before she in her we are not second statement, her first with and false she suaded that were so these acts coercive as police that a Perry provide claimed detective threatened to cause her second and * * * “put police against his foot in behind.” It truthful statement her [her] will, later was also before this first statement much less that her sworn testi- police pictures mony hearing showed her of the at the bail and before the bodies by grand product of Notwithstanding jury charred the fire. were the unlawful tactics, police coercion.3 allegedly police these coercive Per- exists 3. defendant's reliance on LaFrance v. when a factual issue (1st Cir.1974) impeaching Bohlinger, 499 F.2d 29 in this voluntariness of a witness’s state regard misplaced. merely rights. held ment violates the defendant’s Id. at LaFrance Brown, (D.R.I. judge Vargas F.Supp. 512 a trial to hold a voluntari- 34. 271 who fails defendant, 1981), hearing presence also cited stands for the ness out of the hearing mere voir dire at the trial that also conclude that the his earli- We police entered into er statement his bail fact that both these witnesses testimony with for non- agreements hearing implicat- the authorities —both Nevertheless, plea of one false. prosecution bargains ed defendant —were and/or permitted prosecution another not render their testi the trial sort or does mony hearing ob bail testimony coerced. As the First Circuit to read Cifredo’s served in the case of United States during the trial. When a witness Cir.1985): (1st trial, Dailey, F.2d at testify is unavailable “[Recorded testimony as a at witness another rejected notion ago the courts “Long hearing or a proceed- of the same different testimony that the of co-defendants and ing, deposition compliance or in a taken likely witnesses so other interested was law in the course of the with same to be unreliable that should be exclud- * * * if another proceeding, [is admissible] indi- Recognizing ed. that such against testimony whom the is now party frequently viduals were most knowl- offered, opportunity had an to devel- available, the edgeable witnesses courts cross, direct, testimony by or redi- op the testify have chosen to allow them to 804(b)(1). examination.” R.I. R. Evid. rect upon to ferret rely cross-examination Here, hearing testimony Cifredo’s bail testimony might they out false competent been admis- shown have give.” Id. at sible and to have been adduced Thus, hopes the “mere fact that witness judicial at proceeding of a course a reduced sentence or some receive present, repre- which defendant was leniency disqualify other does form not counsel, was able to cross- sented him her] as a witness but affects [or Ouimette, See State v. examine Cifredo. Id. testimony.” of Ms weight her] [or (1972). 747, 753, 298 A.2d 110 R.I. Insana, States v. United (quoting (2d Cir.1970)). Like- 423 F.2d Compelling testify Cifredo wise, wit- the mere that some of the fact required him to have concede would against quid defendant entered into nesses he under oath that had lied his earlier pro quo agreements prosecution with the and in his sworn police statement bail- granting immumty them or other favorable hearing testimony. Such admissions agree- with treatment connection their subjected pros would him to criminal have cooperate destroy ment to does police filing a false statement ecution for voluntariness their truthful statements no perjury he had immuni because nor police their later trial Thus, jus ty charges. from such such that was consistent with statements. precluding tice did not err mat about such questioning from Cifredo B. Admissibility Jose Bail Cifredo’s Finally, Cifredo tes ters the trial. during His Pur- Hearing Testimony and him police tified not threaten that the ported Recantation attorney were and that his father and his February 27, arrest- police On police provided the present when he William’s, (Cifredo), ed broth- Jose Cifredo original Nor was he threat statement. er, on the who was also with defendant way giving his bail ened before February 26 and who later evening of Hence, unable hearing testimony. we are inculpating de- signed a written statement erred to conclude that However, after setting the fire. fendant prior testimony. recorded admitting his in- not to invoking right his constitutional are also himself, to testi- convinced criminate refused We Cifredo justice Moreover, during denying trial did not defen- he claimed a err fy trial. case, on jus- presence, we have need to rule the trial so no proposition. In this same so. required to do hearing jury’s the court was hold a outside the whether tice did such dant’s motion to admit Cifredo’s subse previous false also contradicted his state- quent sworn testimony pretrial Thus, at a hear police. ment to the evidence existed ing during attempted which he to recant at that Cifredo wanted to recant his bail portion least a hearing his earlier bail hearing testimony for reasons other than a testimony.4 During a voir dire hearing to any inaccuracy. mere desire correct trial, the middle of defendant’s Cifredo why tending This is “[a] statement to ex- stated, just “I don’t want testimony pose the declarant to criminal [Cifredo] that I made the bail to hearing] [at count liability exculpate offered the ac- against anything,” thereby leading the trial cused not [defendant] is admissible unless justice to conclude that “[i]t was obvious to corroborating clearly circumstances indi- witness, in observing Court he cate the trustworthiness of the statement.” just did testify, not want and more 804(b)(3). Here, R.I. R. Evid. on the con- particularly, he did testify not want substantial, additional, trary, and corrobo- cousin, against his Tapia, Mr. who was still sup- rative evidence exists in the record to involved in the case at that time.” It is port accuracy hearing Cifredo’s bail precisely for this latter reason that courts and, testimony consequently, falsity particular look with suspicion disfavor and purported his recantation. purported recantations relatives of sum, virtually adduced no See, e.g., defendant. United States v. Pro support evidence to his claim that Cifre- vost, (8th Cir.1992) 969 F.2d do’s bail hearing testimony had been (“[rjecantation is particularly common coerced, persuaded and we are not family when members are involved and the justice preventing erred in defen- feelings guilt [witness] has or family dant from introducing into evidence Cifre- members seek influence the [witness] spurious attempt do’s to recant his earlier change case, story”). [his] In this Cifre- testimony during the trial’s voir dire hear- cousin, Tapia, do’s was a codefendant. ing. Moreover, here, Doctor, as in State v. found that disavowing wit C. Ato Prior Defendant’s Reference credible, ness was not that the witness had Uncharged Act Arson given contradictory prior statements on occasions, Southerland testified that attempted and that his while recanta tion of his she and her testimony earlier sworn other friends were at “for hospital awaiting update reasons other than desiring to on William’s correct condition, inaccuracy in prior his she heard defendant on the hos testimony.” (R.I.1997). Thus, pital ramp 329-80 screaming “they go were Will,” stated that ing get they he did not “believe them for what did to a word [Cifredo] said” previ connection with and that defendant said that he had his recantation. claim Cifredo’s that some ously “burned house [a] crackhead’s down or all of his bail hearing testimony was because he owed him The defen- $600.”5 Cifredo, however, unwilling was unable Goguen, United States 723 F.2d (1st Cir.1983). specify aspects prior testimony of his Thus, supposedly attempted were false. regard- 5. Evidence of defendant's statement recantation not indicate which answers ing appears act of arson also false, gave specify he were nor did he transcript bail-hearing testimony, of Cifredo’s respect they what pur- were false. Such a which was admitted at trial as State’s Exhibit ported disavowal of his earlier sworn testimo- However, object No. 16. defendant did not ny failed to clear the threshold hurdle for testimony the admission of this on R.I. R. admitting genuine such evidence aas recanta- 404(b) grounds, request Evid. nor did he is, showing tion: that the recantation limiting instruction such evi- "specific contains and clear” admissions as to Thus, dence. if defendant had with- "which answers in were drawn his to Southerland’s testimo- respects they false and in what were false.” ny infra, subject, on this same his failure jurisdiction, the crack- “Q In another justice should that the trial

dant contends house. head’s testimony as “evidence have excluded this crimes, or acts” because wrongs, of other nothing It has to do “THE COURT: prove his character it was offered to in this case. allegedly house with the conformity to show that he acted order “Q Is that correct? 404(b) Rule therewith in violation of No, anything have to do “A it didn’t of Evidence.6 Rhode Island Rules with the fire. First, although defendant’s we note that “Q time? At that initially objected to the admission counsel “A Yes. it, testimony and moved to strike of this [referring to you And “THE COURT: withdraw his ob- ultimately he decided to object to that? attorney] defendant’s prose- and the jection after the trial Overruled. Overruled. from Southerland cutor elicited evidence my objec- I withdraw “MR. O’BRIEN: to a house that defendant’s reference tion. anything have to do with burning “didn’t fire” in this case: “Q point [defendant] At when said he had “Q [defendant] When burning this house talked about a crackhead’s house burned. down down, Tapia what had Jose done say Tapia any- did Jose for $600 with Tamara? added.) (Emphasis thing?” hospital in the go “A He told her to objection defendant’s Because bring her so she could get Nesha prior-house-burning of his the admission home. and because this was withdrawn statement I think we better clari- “THE COURT: without a introduced also was evidence by ‘burning mean this house fy you what 404(b) Cifredo’s through objection Rule down.’ justice’s testimony, bail-hearing sorry. I’m “MR. LEVIN: cannot now this evidence admission of “Q —. The house under claim of error for a form the basis Nonetheless, 404(b).7 despite having jurisdiction. Rule “THE In another COURT: Notwithstanding fact that coming through object, to evidence pri- admission of original objection to the request bail-hearing testimony or to Cifredo’s with- house-burning was both statement or limiting regarding same was instruction (in testimo- of Southerland's ap- drawn the case preservation this issue on of fatal (with respect all ny) asserted at and not party the benefit of his peal "a loses because dissent maintains testimony), permits Cifredo's exception thereafter original if he was "in this evidence subject that the admission testimony to be on the same similar of the Rules direct violation of Rule objection.” into evidence without introduced respect to our dis- due With all Gordon, Evidence.” n. 7 party permit a colleague, will not Dettore, senting (R.I.1986) R.I. (citing State v. objection evidentiary withdraws an who 535, 540, (1968)). it as tactical- perceives he or she tried because (and fails to who ly advantageous to do so 404(b) provides as follows: 6. Rule is introduced object at all when such Crimes, witness) Wrongs, Evidence or Acts. later on “Other to claim through another crimes, acts, wrongs, is not was the very appeal of other per- prove of a was im- subject the character admissible the withdrawn Having person acted that the evidence. properly in order to show admitted into son however, trial, may, evidentiary It bed at defendant therewith. made sleep required to purposes, complain such as when he is for other be admissible cannot intent, motive, reasoning prepa- also opportunity, appeal. This same proof in it on ration, object or to failure to knowledge, identity, applies absence to defendant's .plan, bail-hearing accident, testimo- prove that move to strike Cifredo’s or to mistake or long-stqnding rule subject. "Our bodily ny on this harm feared imminent at least contemporaneous objection or that a and that the fear was reasonable.” objection However, withdrawn his prosecutor to the court’s ad- review.8 when the evidence, mission of this defendant later again prior-arson adverted to defendant’s requested justice the trial to give jury statement arguing summation — cautionary a instruction about its use of defendant had acted with his prior-arson this justice evidence. The trial (“what admitted act of arson [defen- so, actually reading the text of Rule doing acting dant] [in this case] 404(b) jurors cautioning them conformity [sic ] about what he had that “it’s not used to show that defendant done”) again object- counsel —defendant’s particular committed crime. He’s and requested cautionary ed a instruction. * * * presumed innocent evidence Ultimately, justice the trial declined re- activity other unlawful is not used to show peat point, instruction on this that someone has capacity to commit a except to tell jury that what the attor- added.) crime.” (Emphasis The defen- neys say arguments their “are never law object instruction, dant did not to this nor or never fact.” did he request that it be modified sup- or Thus, plemented. event, any objection In any to its ade- even if defendant quacy preserved has not been appellate for had not withdrawn his to this a motion to prerequisites strike are proponent prior-bad-acts it too allows the Dettore, appellate range review.” State v. evidence to offer it for a broad of rele- 535, 540, 87, (1968); purposes barring R.I. vant only see while its use also for Martinez, 1189, dissent, (R.I. impermissible purpose. State one however, 1994) CJ.) (“defendant grouses (Weisberger, just "gives that this Court did not lip obligation justice service to the object of the trial to [the witness'] on the explain purpose limited ground 404(b), for which the aof violation of Rule thus * ** evidence, jury may consider appar- such but right has waived the to raise ently appropriate pur- [is] unable to select an appeal”). that issue justice on And the trial pose appellate level.” As we show appeal cannot be failing below, however, justice the trial had no such 404(b) give a Rule regarding instruction Cifre- obligation specific instruction absent a re- bail-hearing do's testimony because “the trial quest asking jus- from the defendant obligation was under give no a only tice to instruct that it could limiting cautionary or instruction the ab specific consider such for certain request sence to be made counsel for purposes, and limited but it could not use defense,” pres id. at because “[t]he propensity such evidence for or bad character ent case does not deal with sexual assault.” purposes. specific request No such was ever Jalette, (citing Id. 119 R.I. 621- Moreover, presented. appropriate pur- (1978)). 533-34 poses allowing such evidence to be intro- Thus, during duced this trial were manifold. dissent, nonetheless, 8. The claims that “[c]er- requirement there was no then now tainly the adequacy issue of the of the instruc- court, prosecution, or this Court "to preserved.” tion has been surprisingly, Not appropriate purpose” (emphasis select an nothing dissent cites to in the record that added) evidence, here, least when the as —at support'this proposition could because the was admissible for each several discrete any objection instruction was without 404(b) purposes. differently, Put Rule does Thus, whatsoever from the defendant. require proponent prior-bad- to offer adequacy dissent's contention that the of this just appropriate pur- acts evidence for one instruction preserved” "has been is untena- pose when in fact such evidence is admissible ble. The dissent also finds fault with the trial appropriate purposes. sig- for several Most justice’s concerning instruction nificantly, objected defendant never statement, prior-arson characterizing it as prosecution's specify particular failure to “scatter-shot” and “a mere collocation of evidence, purpose when it introduced this nor words,” a criticism that it also levels at our request did defendant the to as- explication legitimate purposes of the various purposes certain the for which this evidence justice admitting for the trial prior-arson was offered and then instruct the that it place. Notably, evidence in the first defen- pur- could use this evidence for such dant objections raised no such when so, the in- poses. Having failed to do defendant has Moreover, given. struction was the dissent’s appellate pro- waived review might brickbats on this score as well be priety justice’s handling of the trial of this hurled at the text of Rule itself because evidence when it was ruled admissible. evidence, result, thereby reject As a defen- prior-arson guilt. waived dant’s its right appeal his to later claim that admission that this evi- dant’s contentions on and if constituted reversible error even at dence should not have been admitted all objected defendant had to the introduction justice’s and to sustain failure of on this bail-hearing Cifredo’s objection prosecu- the the defendant’s making all issue instead of no acting conformity closing in with ar- tor’s 404(b), upon hold based Rule we that this the gument jury and to on what reinstruct First, properly it evidence was admitted. prior- use it could make of defendant’s prove introduced to was not defendant’s reversible er- arson statement constituted he bad character to show that acted in ror. Rather, conformity therewith. ad- was First, concerning defen- the evidence missible under several of the various ex- was not of- prior-arson statement dant’s ceptions exclusionary general to the rule of bad character prove fered to defendant’s 404(b) prohibits Rule the use of prior- conformity there- to show he had acted prove bad-acts evidence to conduct in con- Rather, Souther- on this occasion. formity Rule “[U]nder with character. recollections of defen- land’s and Cifredo’s prior of criminal are acts were relevant prior-arson dant’s reference inadmissible if that evidence is [sic ] least three proving admissible in prejudicial and both irrelevant.” State v. (1) separate aspects charged: the crime of (R.I.1994) Martinez, A.2d 1194 revenge for to seek defendant’s motive C.J.). Thus, (Weisberger, the fact mere (he injuries telling was William’s William’s prejudicial that this evidence was defen- “crack- that when some family friends Here, require dant not its exclusion. him he had previously, head” had crossed below, for the reasons set forth defen- wrong by perceived retaliated for that prior-arson clearly dant’s statement was thus, down; burning person’s house relevant was guilty to whether defendant compatri- indicating defendant was act committing charged of the of arson. ots he was motivated retaliate event, “questions relevancy In of of injuries in the same manner William’s evidence, probative including whether the responded when which he claimed to have proffered testimony is outweighed value him pay failed to some “crackhead” had danger prejudice, the of undue are left owed); (2) purpose what his settled justice. to the sound discretion of the trial by committing revenge achieve that trial will court’s determination not be (3) arson; and his malicious charged act of appeal showing disturbed on absent Haywood Street intent to burn down prejudicial abuse of that discretion.” State Thus, very night. it was defendant’s (R.I.1986). Gordon, he utterance whether itself— though justice’s And refusal fact arson or was committed such 404(b) in to reinstruct on Rule just boasting having done so—that about response prosecutor’s improper clos- mo- proving defendant’s relevant “was ing argument acting that defendant tive, purpose, and intent to his settled what had about he [sic] charged act of arson. commit error, it was harmless done” constituted Second, prosecution was entitled (a) justice’s light previ- error elicit and Cifredo’s testimo- Southerland’s proper on the ous instruction prior-arson state- (b) ny about defendant’s evidence, improper uses of such of its undeniable relevance ment because of his objec- earlier withdrawal leading up how proving the events admission of this evidence tion defendant’s commission through testimony and his Southerland’s night question. crimes unfolded on non-objection through to its Ci- admission (c) Note, R. R.I. Advisory See Committee’s bail-hearing testimony, fredo’s other (stating “[e]videnee of defen- Evid. 404 overwhelming other evidence probative, crimes or acts may legally accused also be less of how otherwise past reference to criminal explain containing admitted to other evidence or for conduct”). purposes”) background (citing State v. (R.I.1986)). Gordon, Signif- A.2d 1339 Gordon, upheld as relevant back- icantly, part it was not offered as of a ground into evi- information admission gratuitous freestanding attack on defen- testimony concerning dence of Indeed, dant’s character. when the trial a medical information card found theft of

justice and emphasized Southerland sever- connecting in a car the accused to the al times before that alleged upheld admis- crime of arson. We also prior arson had no connection to the crime sion into evidence of a note written charged, attorney defendant’s withdrew girlfriend shortly accused to his after the his to the admission of this evi- read, “If discovery of the crime which we Moreover, dence. prosecutor when the jail, can it in can do without do without we Tapia, next asked Southerland whether it at on the street.” Id. 1347. Notwith- codefendant, responded had to defendant’s standing “jail”— reference accused’s reference, prior-arson using the state was suggesting he had been incarcerated for prior-arson testimony to show how a prior one or more crimes—we reasoned conspiracy to commit this crime arose be- that the note was admissible because it Thus, tween Tapia. defendant and in the suggested flight prosecution to avoid happened context of what evening, thereby was relevant demonstrate the prior-arson defendant’s boast served as a guilt. his defendant’s consciousness of Id. catalyst to mobilize William’s friends and Thus, upheld we note’s 1347-48. family into taking avenge action to despite admission into evidence its undeni- words, In mistreatment. other defen- suggestion prior able of defendant’s crimi- prior-arson dant’s assertion to his accom- activity resulting nal incarceration. plices important an part of the factual 560, 122 Sepe, See id. And R.I. background concerning why how and (1980), quoted Wigmore’s 410 A.2d 127 we crime came to be committed. treatise on evidence the effect “evi- dence of criminal conduct tending to show Nevertheless, recognize that a defendant had formed a settled statement, prior-arson in addi * * * * * * admissible, purpose is tion to its relevance in proving several criminality prior of such acts does not aspects essential of the crime for which he 566, admissibility.” affect their Id. at 410 accused, was also relevant to show (quoting Wigmore, A.2d at 130 2 Evidence that defendant’s character was than less 304, (3d ed.1940)). Rather, §§ 305 “they sterling and that he had acted in conformi spite criminality.” are received of their ty prior night act of arson on the 205). § 2 (quoting Wigmore, Id. 305 at in question. But the mere fact that Thus, capable using prior-bad-act fact that defen evi the mere purposes dence for such does not prior-arson obviously sug mandate dant’s reference gested guilty past its exclusion under Rule because that he was criminal “require activity that rule does not exclusion of did not mean that such a state legally probative necessarily otherwise In evidence sim ment was inadmissible. stead, ply might sug analysis because such evidence also it called for of whether Gordon, past one gest activity.” criminal See could nonetheless be admitted under 404(b)’s prohi exceptions (holding 508 A.2d at 1348 or more of the to Rule “[t]he against prohibition admitting bition use of evidence of a defen evidence general prior character and prove dant’s criminal conduct to infer bad bad acts to conformity character and action in therewith. See State v. there acts (R.I.1995). 1206, 1209 question Gallagher, with on the occasion in does not 654 A.2d evidence, acts is regard- example, mandate exclusion of all For evidence of bad 1052 prove guilt

admissible crime crime caused it to be Parkhurst, charged, evidence). v. see State 706 A.2d admissible 412, (R.I.1998) Stewart, 424 v. (citing State 912, (R.I.1995)), if 923 such evi previous This has Court noted “independent dence has relevance in re- prior-bad-act ly dividing line evi spect to proof an element material propensity to com dence offered show proof ‘the chain of the crime mit acts a defendant’s bad such and/or ” v. Acquisto, issue.’ State A.2d See 463 character, prior-bad-act evidence of (R.I.1983) (quoting v. State Colan intent, motive, or for some fered to show 170, 174, gelo, 55 R.I. A. is both a fine permissible purpose other (1935)). Furthermore, of prior evidence more one and an even difficult one to draw acts prove “‘guilty bad is admissible to juries to follow. See State judges intent, motive, design, knowledge, plan, (R.I.1997).9 Hopkins, ” ** scheme, *.’ system, the like See bar, in like the which the cases one Lemon, (R.I. State multi question can be used for 1985). case, In this defendant’s claim to ple permissi some of which are purposes, a in have burned down crackhead’s house not, of are the trial ble and others which past the urged as he cohorts to retali his justice specific instructions to should issue injuries for ate revealed his William’s both purpose the “the limited jury explaining

vengeful purpose,” motive and his “settled may con purposes] jury for which the [or 566, 130, Sepe, 122 R.I. at A.2d at to 410 . 654 1210. Gallagher, sider it.” See A.2d at misconduct, commit the as aswell However, it in only is reiterate preferred plan and intention to achieve justice sexual that a trial is assault cases arson, revenge via falls thus cautionary required to issue a instruction squarely exceptions within these to Rule of jury regarding to the the limited use 404(b). it Certainly, part a of defen 404(b) Rule evidence even the absence on night question dant’s conduct of a to specific request by defense counsel that was “inconsistent with the defendant’s Martinez, do so. 651 A.2d at 1195. See claim of innocence” and that “eonstitute[d] present case does not deal “[t]he Because bearing question circumstances on the of * * * therefore, with sexual assault (notwith 129 guilt.” Acquisto, 463 A.2d at obligation give trial to justice was under no standing fact that defendant’s to a threat cautionary a or in the limiting instruction witness well may have constituted a dis crime, a to be coun independent request crete its absence of made relevance to proving defendant’s of sel Id.10 guilt consciousness for defense.” (R.I. reason, Hopkins, In 10. State v. 698 A.2d 183 For this the dissent’s reliance Jalette, 1997), (let "judges we observed that alone Justice Kelleher’s remarks (1978), great limiting jurors) difficulty have the use 119 R.I. 404(b) jury pur to be evidence the noncharacter the method of instruction to 404(b) poses which it been But assault and how Rule for has admitted. sexual cases (some only difficulty is in the when it is rea- inherent fine evidence should be used carry say illusory) sonably necessary prosecution would 404(b) to distinctions drawn Rule for proof misplaced. cases show its burden of such between introduced to crimes, only inde- respect with character evi to conduct in "In non-sexual pendent purposes, dence be shown and the introduced for 'other such as relevance must motive, intent, proof opportunity, prepara reasonable-necessity requirement a is not tion, plan, knowledge,’ Hop precedent and the like.” condition to the introduction kins, Nonetheless, Acquisto, 698 A.2d at 188 n. 5. "as such evidence.” 463 A.2d State J.). (R.I.1983) long justice properly (Weisberger, as Be- the trial instructed the 129 n. jury purpose purposes assault on the limited for cause case, case bar is not sexual considered, jury may justice's which obli- such evidence it is instruction admissible, regarding prior pur gations acts generally for such limited bad offering poses, notwithstanding depended specific limit- its undeniable rele on defendant justice proving ing requests acted the trial vance to that defendant in con instruction for making formity give jury Id. on defendant with his bad acts.”

Nevertheless, oppor given.” we take this after the has been State (R.I.1994). Cardoza, tunity emphasize that whenever evi v. objects dence of bad acts is admitted under And defendant who timing justice’s one or more content or of the trial in- exceptions of the to Rule 404(b), practice jury structions to the about its use of Rule better is for the trial justice’s evidence or to the trial give appropriate limiting an in alleged jury failure instruct ade- jury struction to the before or as soon quately concerning purposes the limited after such evidence is admitted as the cir may for use such evidence—if the permit, waiting cumstances without for one objections preserved appel- are to be parties either to request such late specifically review—must do so object justice’s instruction or to place objections must those on the record failure to do so. Such an instruction in a manner alerts the trial jury should advise the concerning both the instruction, the alleged inadequacy of the permissible impermissible uses of such thereby giving him or her an opportunity bar, evidence. the case at See, e.g., correct the same. State justice gave limiting instruction (coun- Cianci, (R.I.1981) regard its use defendant’s state sel portion must direct the court to that ment, but after the witness had an charge .or omission therefrom that succeeding swered several questions and objectionable counsel finds and to state the only after defendant’s counsel in front of objection grounds alleged for the if errors had withdrawn his charge preserved are to be this evidence. An immediately instruction review). appellate or preceding following the introduction of evidence, any such rather than some notion, moreover, reject the that We point later in proceedings, the will be more relying on jury instructions connection likely prevent jury speculation about prior-bad-acts with the admission of evi- defendant’s bad character and propensity 404(b) virtually dence will erase Rule from to commit such than acts one that is deliv the Rhode Island Rules of Evidence. See point ered at some proceedings later the States, Delli Paoli v. United 352 U.S. jury after already the has given been the 294, 300, 77 S.Ct. L.Ed.2d opportunity to draw (1957) (“[ujnless conclusions about de proceed on the basis fendant’s bad pro character or his or her jury that the will follow the court’s instruc- pensity to commit type this of bad conduct. tions where those instructions are clear Nonetheless, general the rule remains that and the circumstances that are such “although justice the trial a responsi has jury reasonably expected can follow bility limiting them, to issue a instruction cer jury system makes little instances, sense”).11 tain there requirement jury is no if contrary, On instruc- given immediately this instruction be implement tions are not used to the fine specific objections portion charged except "depict to whatever defendant] as [the with, disagreed those instructions he both of drug because it dealer” did not "illuminate Martinez, which were absent here. See particular conduct of which the defendant A.2d at 1195. hand, is accused.” Id. 70. On the other impliedly acknowledged the Seventh Circuit 11. The Seventh Circuit case of United States v. light that evidence which does cast on the (7th Cir.1990), Wright, F.2d relied particular conduct of which the defendant is dissent, upon by distinguishable from accused could be admitted under one of the Wright, the case at bar. In 404(b). exceptions to Rule The erasure of distributing on trial cocaine. The trial imminent, 404(b) Judge Rule would be Posner judge tape recording ruled that a in which the warned, prior if evidence of crimes were to be drug defendant claimed to be a dealer was similarity solely on their admitted based purposes for the admissible ing limited show- charged. Wright, See 901 F.2d at the crime identity. intent and See id. at 69. The Circuit, however, the re- Seventh held that cording had no relevance to the crime appropriate use also not allow defendant to com- governing

distinctions we will 404(b) evidence, on plain adequacy charge Rule then either one of about the of this follow: at the trial. pernicious appeal two results will evidence when he failed do so See, Cardoza, prior altogeth- (holding bad acts will be excluded 649 A.2d at 748 e.g., (a from trials text argued appeal er result alters the that when defendant 404(b) by judicially eliminating of Rule jury justice should have legitimate purposes prior various for which limiting regarding sponte süa instruction (cid:127) 404(b) can and evidence, bad acts be offered admitted alleged defendant’s Rule evidence), juries judges or and will be at trial a waiv- object failure to constituted prior-bad-acts allowed carte to use issue). blanche er of that convict defendants of However, notwithstanding this instruc- charged criminal acts because of their bad tion, jury still told the his prosecutor they pre- character or because acted closing “[w]hat [defendant] argument sumptive conformity prior their bad acting about doing was A justice’s trial acts. instructions with * * * some- [I]f he had done. [sic ] what prior to a regard defendant’s bad acts one is to burn for someone is willing $600 serve strong clearly must as the and willing more to burn for an accident than guardrails prevent jurors marked damaged and someone is gets where a car falling evidentiary abyss from into such * * 404(b) clearly run Rule for- over that keep straight them on the jury open invitation for a bids such an path just and narrow to a true verdict guilt assess a defendant’s character present- based on the law and the evidence upon based misconduct ed. response her acts. bad ar- improper Here, after first testi Southerland have im- should gument, the prior-arson fied about defendant’s state (albeit disregard mediately instructed thereafter), immediately ment contention reiterated did read proper instruction to them about the of Rule and he also them: text told prior-arson improper uses of defendant’s “Now some of a there’s been evidence 404(b). Al- light in statement Rule statement one of the defendants so, justice though failed to do the crime. alleged about [E]vi below, believe, for the reasons limned crimes, wrongs dence of other or acts context of this harmless in the error was prove are not admissible to the [sic] this case. in order person character the to show conformity

that he acted in therewith First, independent overwhelming and * * * [s]o, not used to it’s show in the guilt exists evidence of defendant’s particular defendant committed this without re- support record the verdict to presumed crime. He’s innocent. [E]vi In ad- gard prior-arson statement. activity unlawful dence other testimo- eyewitness damning dition to the not used to that someone has the show Cifredo, and Latawn ny of Southerland capacity to a crime.” commit agree- had no Wigginton, a witness who who defendant Having objection ad ment with the state and withdrawn his to the in- reference, been coerced into his never claimed had prior-arson mission of defen him, that defendant object criminating not to this instruction or testified dant did poured he or her that had request supplementation alteration admitted to result, Specifically, set the gasoline used to fire. wording. to its As a this instruc See, question she answered defense counsel’s e.g., tion became the law of the case. (R.I. Giordano, 93, whether de- 94 the affirmative when asked 1980). her, I poured gas. “I told presume we must fendant had Hence testi- instruction, lit the I don’t care.” Her this but match. followed anyway. verdict See mony guilty also corroborated Southerland’s and returned 499, Hasting, 461 U.S. Cifredo’s same effect. United States 1982, 511-12, 76 L.Ed.2d Accordingly, the record reveals 103 S.Ct. (1983) prosecution (applying introduced harmless error substantial prosecutor’s improper closing overwhelming analysis evidence of defendant’s B, In guilt argument). that was more than sufficient to con- See also re Shannon (R.I.1998) (holding him of the charged vict misconduct with- 725 A.2d relying upon propensity/bad-char- hearsay out admission of constituted harmless implications acter of defendant’s reference error when there was “more than suffi- sup- having to his committed a arson. cient other evidence the record McKone, Moreover, verdict); having port” earlier withdrawn his State (R.I.1996) objection unqualified (finding to the admission of A.2d prior-arson having statement harmless error occurred when the chal- object grounds lenged testimony failed to on Rule “was in fact otherwise supported by the admission of this via evi- Cifre- other direct indirect record”). bail-hearing testimony, do’s defendant was dence already compromised by somewhat sum, prior-arson defendant’s state- tactical decision to allow this evidence to prove ment was admissible to defendant’s any objection part come in without on his misconduct, to commit charged motive allow the court’s earlier instruction knowledge to establish his of how to ac- objec- on this evidence to stand without complish type in question, of crime Thus, tion. when defendant tried to reas- purpose, plan, malicious show his settled objection sert his in response prose- very and criminal intent to do the act that cutor’s later improper attempt namely, he was with: the commis- maximize the inculpatory significance of sion of what arson retaliation for had against this evidence during defendant (“No happened to William. one returns closing argument, jury already had good place with will to the which has done it, this evidence before was aware that mischief.”)12 him if Accordingly, previous had withdrawn his ob- lawyer had not withdrawn his jection admission, to its and had been in- objection, the trial did not err structed on what use it could and could admitting though this evidence. And even not make of it. should have sustained de-

Second, prosecutor’s acting prosecutor’s con- fendant’s act- formity closing with argument ing closing argument was not so prejudicial deprive as to disregard defendant of a fair and instructed the contention, especially in in light jus- of the trial such errors were harmless trial — previous jury justice’s previous tice’s instruction on this of instruc- fight point objection jury concerning proper and defendant’s withdrawn tion to the result, evidence, question. to the improper evidence As a uses of this the earlier are convinced that the court’s error withdrawal of defendant’s failing disregard through to instruct the admission of this evidence South- argument require testimony, non-objection does not a new trial to its erland’s because, improper through testimony, the prosecutor’s absent admission Cifredo’s argument, beyond overwhelming it is clear to us a rea- and the evidence of other guilt.13 sonable doubt that would have defendant’s Phaedrus, 404(b) that either the text of Rule Fable No. 1. vanced—is entirety, including all should be honored in its specified unspecified purposes for suggests earnestly 13. The dissent to us that prior-bad-acts evidence can be admit- which "either Rule should be honored or it evidence, disagree sug- those who repealed.” corresponding should Our ted into be gestion for the respectfully to the dissent—most ad- that text should advocate elsewhere Remaining Arguments degree D. fifth and criminal possession Defendant’s aof controlled substance the seventh also that We conclude defen degree juvenile not adjudica were mere arguments are remaining dant’s meritless. under New York law. any tions Absent flight of defendant’s was ad showing that the trial court abused its regard validity missible without of faith giving discretion full credit the arrest warrant that defendant chal New “adult” classification York’s of these lenges. flight The defendant’s from prior adjudications, we have no basis attempt Rhode and his Island later to flee discretionary reverse this ruling. See from apartment pre his mother-in-law’s (R.I. Morel, State v. 676 A.2d any entry ceded arrest or effect 1996). These convictions occurred less and, therefore, arrest the evidence of de Moreover, year than a before the fire. did from flight fendant’s not flow the exe lawyer defendant’s conceded cution the arrest warrant. In of they per “do have some reflection on a event, arrest we conclude that the warrant son’s trustworthiness.” here The original was valid. warrant un Perez,” equivocally used the name “Jose jus Finally, we hold one of the names to which defendant an imposing tice not err of sentences result, swered. As a the fact that someone parole life for upon without hav later added the name Garcia” “Jose ing participated in the murder of two of warrant—allegedly without authorization among vic youngest children his six do not invalidate the so—did warrant 11-23-1, § tims. Pursuant to G.L.1956 Rather, itself. it was valid before and * * * “[e]very murder in the committed notwithstanding this alter addition and/or * * * * * * perpetration of arson Further, ation. here flight evidence degree.” murder in the Further first was clearly admissible under standards more, allowing this Court has used in such evi “Every person of murder in the guilty dence at trial. to be introduced The evi * * * committed in a man- degree first capable supporting dence was each creating ner risk of great death (1) four That related inferences: defen person more than one means of (2) flight, dant’s constituted behavior weapon or device or substance general indicated a consciousness normally would hazardous to the life be (3) guilt, guilt consciousness of * * * than be person more one shall specific al attributable crime imprisoned and if ordered life (4) leged, guilt consciousness of pursuant chapter 19.2 of title 12 court implied the crime ac eligible parole shall guilt tual charged. crime See State imprisonment.” from Section 11—23— (R.I.1998) Reyes, Cooke, (citing State v. 732-33 2(2). .

(R.I.1984)). Villani, we said that a de “felony murder is murder the first also determine that

We gree simply Legislature has denying correct in because the conviction, preclude motion from said A impeach first-degree-murder the state so. willful, malicious, ing credibility premeditated kill with two misdemeanor be it a murder, calls for man ing felony convictions for offenses committed when or a years he old. sen datory imposition was seventeen of at least a life (R.I.1985). 976, that the two 491 980 concluded tence.” A.2d prior of of not Chapter convictions the state New York 23 title 11 does limit this Here, possession property holding. poured gasoline for criminal of stolen enforced, repeal just of this rule. But until be and the excluso- or modification honored changed, ry portion champion. and the rule is all of it that the dissent seeks unless should

1057 flights three of building down stairs a as to its use. I believe that the admission he might prosecutorial argument relating where was told that children be and there Moreover, living. knowledge to was in direct violation of Rule potential presence of children in the the Rhode Island Rules of Evidence house, very likely adopted by defendant was aware Court. We stated State (R.I. 1206, parents Gallagher, their or other 654 A.2d 1210 care-giving v. 1995): might living adults be there as well. His actions in thereafter pouring igniting rule, “As a general gasoline in the dead of night, when shows or tends to indicate that the ac the children and most of the a residents of participated in a crime for cused has three-story probably house would be trial, if it which he or she is not on asleep, represented conduct “committed in crime, type is the same is irrelevant a manner creating great a risk of death to Cardoza, and inadmissible. State v. 465 11-23-2(2). § person.”

more than one See 200, (R.I.1983); A.2d 202 v. Jal State Moreover, no evidence any mitigating ette, 614, 624, 526, 119 R.I. 382 A.2d 531 factors emerged trial. The defendant (1978); Mastracchio, State v. 112 R.I. William, barely knew the victim of the car- 487, 493, 190, (1973). 312 A.2d 194 ‘The dragging, yet he urged sought revenge policy of overriding excluding such evi injury for the victim’s showing any without practical experience dence is the concern whatsoever for the fact that inno- prevent its disallowance tends people might cent hurt his inflamma- issues, surprise confusion of unfair tory rampage. significantly, Most when Colvin, prejudice.’ undue State v. 425 informed later that his incendiary behavior (R.I.1981) 508, (quoting 511 Mi did indeed cause children to be burned to States, 469, chelson v. 335 United U.S. death, responded the defendant simply 213, 218-19, 168, 69 S.Ct. 93 L.Ed. * * that “he give didn’t a f* .” The Su- (1948)). 174 a When is allowed preme may Court has held that a state independent consider for a crimes which impose its penalty upon harshest a “cold- trial, possibili defendant is not on a real blooded, pitiless slayer” who kills without ty exists that such indication of bad feeling Creech, or sympathy. Arave v. prej character or bad acts would create 463, 470, 1534, 1540, U.S. 113 S.Ct. jurors udice in the minds (1993). L.Ed.2d The defendant’s improperly influence their decision re actions pitiless disposition reveal such a Colvin, gard charged. to the crimes and justify the harsh sentences he re- danger jurors A.2d at 511. The is that ceived. may believe that the crimes or bad propensity acts denote a defendant

Ill to commit the crime with he or charged. she is In these circumstances Conclusion potential prejudice outweighs reasons, deny For these the defen- evidence, probative value of such appeal dant’s and affirm the convictions is therefore inadmissible. and sentences. Brown, (R.I.1993); Chartier, State WEISBERGER, Justice, Chief (R.I.1993).” concurring and dissenting. bar,

I majority opinion concur with the on all stated the case two witnesses Ill, relayed issues save issue No. in which the had to them a that defendant part exploit defendant asserts error on the which he had burned down having admitted evidence house in New York because “crackhead’s” him” prior uncharged of his commission of a act the owner had “stiffed for an indebt- permitted improper argument of York crime had arson edness of The New $600. .and 1058

nothing type. to do with the criminal act with crime of the same For this proposi- Mastracchio, was in which the case defendant tion he cited State v. 112 R.I. 487, for had (1973); at bar. Counsel defendant filed a People A.2d 190 Kelley, 312 v. motion in limine to exclude this 232, 363, evidence. Cal.Rptr. 66 Cal.2d 57 424 P.2d justice The trial this State, denied motion (1967); 664, 947 Ross v. 276 Md. 350 ruling until the Cote, deferred (1976); v. N.H. State 108 would be offered at trial. At that time 290, (1967); and Whitty A.2d 111 v. objection trial overruled the 278, State, 149 N.W.2d 557 34 Wis.2d the testimony. admitted Counsel for de- (1967). objected fendant and indicated that this give the rationale for the He went on 404(b), a spe-

was violation of Rule which proposition. cifically forbids the introduction of evi- merely principle expression “This is prior prove dence of bad char- acts “to of which the state the rule bars from the acter of in person a order to show that the initial of evidence of the introduction person in conformity acted therewith.” accused’s, See bad character. State bar, at the case for the state counsel Guaraneri, 173, 194 59 R.I. A. 589 during closing arguments referred (1937). Thus, may present the state testimony relating having to defendant’s activity by the evidence of other criminal of committed arson the State New York accused unless the evidence ‘substan following “Why he manner: did other tially purpose relevant for some become involved arson at [in .issue]? * * a that he has probability * than to show Because was an excuse do what committed the crime on trial because he at, burning revenge, he best houses is a man of criminal character.’ McCor just like he had done in New York. [He] (2d mick, § Evidence got burned a crackhead’s when [he] house ed.1972). Moreover, another reason for doing stiffed he for What was $600. exclusionary prejudi is the principle acting about he conformity what evidence, of the real potential cial such had object- done.” Counsel for defendant possibility generality ed to The trial this statement. a finding of jury’s may verdict mask overruled the and declined to guilt upon involvement which is based give cautionary a point. instruction rather than on the with unrelated crimes “pass Counsel for moved defendant also defendant shows the case.” This was denied motion guilty charged. Spencer of the crime justice. trial Texas, 554, 560, 87 385 U.S. S.Ct. It flagrant is hard to a more imagine (1967).” 652, 17 L.Ed.2d Jal example prosecutor’s urging group of a a ette, 119 R.I. at 382 A.2d at lay jurors to consider a criminal Kelleher not end with Justice purpose seeking act sole in- general admonition went but persuade them that acted in justices hopefully struct propensity with a evidenced manner in which Court a act. evidence, admissible, such even if should twenty years ago More than Justice court, including managed writing Kelleher this Court to be method instruction Jalette, 614, 624, R.I. the jury. (1978), gave general 531-32 a admonition inadmissibility extremely are conscious that the setting forth the irrele- “We ‘other crimes’ evi- vance evidence which tended indicate indiscriminate use of poses a risk to an ac- the accused has committed another dence substantial adopt right to fair trial. completely independent crime of that for cused’s We the,admoni- trial, though holding Kelley which he is on it be imminent bod defendant feared prove type that this of evidence should tion reason the fear was prosecution ily harm and sparingly by the used An of these ex necessary. Whit- Id. examination only reasonably when able.” State, analysis would supra. The trial court with a minimum of ty ceptions v. clarity if it be- that none of transparent should exclude such evidence show with not “crack- purely burning it is cumulative and of the applied lieves them prosecution’s case. Evi- motivation essential to the York. The sole house” New only prove dence of other crimes is admissible of this evidence was purpose excep- anything, of the it when it tends to show one If the rule means propensity. allud- previously propensity to which we have to bar evidence. designed tions exception when that is rele- in some of ed and the situations involved Unlike cases, in proving charge lodged was not vant this evidence our Curry, the defendant. State an element material to against prove troduced (1975). proof St.2d 380 N.E.2d of the crime at issue. Ohio the chain of goal, See, seeking particular to attain this e.g., Acquisto, (R.I.1983); Cline, prose- 122 R.I. may the trial court insist that State (1979). 1192, 1210 point specific exception to the cutor that ex- which he relies and show how argu- did to final The trial ception pending charge. relates to the for Garcia request at the of counsel ment not charge In its the trial court should following instruction: give all approach take a scatter-shot and list evidence of a there’s been some “Now exceptions exclusionary of the defendants by one statement Rather, designate rule. shall crime. Let me read alleged about an particularity specific exceptions say. ‘Evidence of you the rules what is rele- which the ‘other crimes’ evidence crimes, wrongs or a—evidence of other charge vant and delete from its the re- prove acts are not admissible 627-28, exceptions.” maining Id. person of the order show character therewith. that he acted case, In the instant did however, for other may, It be admissible He not follow this admonition. motive, oppor- proof as purposes such time give cautionary instruction at the intent, plan, knowl- tunity, preparation, the evidence was introduced. He did not accident.’ of mistake or edge, [sic ] acts delineate when the instruction was So, to show the defendant it’s not used specific exception on which the state particular crime. He’s committed excep- relied. Nor did he show how All—both defen- presumed innocent. pending charge. related tion and evi- presumed innocent dants are why It is not difficult to understand activity is unlawful other dence indicate the for the state did not counsel has the that someone not used to show closing ar- specific exception, since a crime.” capacity to commit gument prosecutor suggested be construed as If could any instruction of this purpose that the sole by Justice as described “scatter-shot” (that he acted “in propensity was to show Kelleher, instruction would foregoing done”). I conformity about what he had description. meet such earnestly suggest this evidence majority arguments raises two argument of counsel particularly First, ruling. justice’s support ex- of the did not fit prosecution burning 404(b). that the crackhouse they suggest These ex- ceptions listed Rule motive “vengeful motive, revealed both Garcia’s opportunity, ceptions “proof are to commit purpose’ his ‘settled intent, iden- plan, knowledge, preparation, misconduct, pre- accident, as well as to mistake or tity, absence of I justice. vehemently disagree trial must and intention to achieve his plan ferred * * *.” with that conclusion. revenge via arson justice’s like the trial This statement prosecutor’s argument naught The set The charge is a mere collocation of words. justice anything may that the trial have in New York burning of crackhouse indicated in his scatter-shot instruction nothing to do with the motive for had in the case. The evidence was earlier in The ma- burning the house Providence. in admitted the first instance. wrongfully jority gives lip obligation service to the wrongfully The motion in limine was de- justice explain pur- the limited instance. The withdrawal nied the first pose jury may for which the consider such trial did not objection point at one evidence, apparently are unable se- but vitiate the reassertion of that dilute or at the appropriate purpose lect an objection points in the trial and at later a series of cases appellate They level. cite argument. at the time of final particularly inapplicable are to the case wholly objec- justice’s response The trial those York incident did not at bar. The New and ineffec- wholly inadequate tions design. Nor did plan reveal a or motive or tive. charged. prove it an element of the crime that these majority’s determination The Its sole Acquisto, 463 A.2d at 128. See emphasizes again errors were harmless propensity, purpose purpose was to show in Jal- Kelleher admonition of Justice which is forbidden. used ette that such evidence should be majority upon relies the fact further If reasonably necessary. this error when objec- that counsel for withdrew his Garcia harmless, could not have the evidence the New York tion to evidence prosecu- necessary to the reasonably been that had been incident after tion’s case.14 overruled. should rein It time that this Court is Nevertheless, asked counsel for Garcia tendency to utilize evi prosecutorial cautionary regard for a instruction totally acts even when dence of bad 404(b) response the Rule evidence. charged. crime See State irrelevant to the request, gave (R.I. 183, 189-91 Hopkins, above. quoted scatter-shot instruction 1997) C.J., dissenting). Un (Weisberger, adequacy of this Certainly the issue of the to abandon the field willing less we are preserved. has instruction been 404(b) from the Rule this area erase coun- certainly question There no is Evidence, it in is Rhode Island Rules objected clearly emphat- sel for Garcia particularly upon cumbent us to enforce final of counsel for ically argument present in such an case as egregious for an immedi- prosecution and asked ed before us now. argu- indicating ate instruction suggested United Judge As Posner improper. The trial ment was (7th 901 F.2d Wright, objection, blessing thus the States overruled Cir.1990), of oth- admitting of evidence judicial argument prosecutor character as general er crimes of the same give an instruc- approval, and declined with which the defendant point. issue has been tion at that This appropriate ex- fitting it into by majority without preserved and is admitted 404(b). In that However, erase Rule ception would have error. constituted case, in the case to the situation harm- similar majority considers that error bar, a statement judge admitted by the of the instruction light less was relevant Acquisto, when the evidence suggested offense 14. We in State v. (R.I.1983), ne- charged. that the reasonable prove of the crime an element cessity requirement would not be of Jalette no such relevance here. There is involving mandatory in a a sexual case majority most re- My suggestion the defendant which was record- made Rule is that either spectfully advanced tape the defen- police. ed On or it should be be honored should drug committing other dant admitted this de- crime with which repealed. The drug bragged being about crimes and he was charged and of which fendant was the evi- judge The trial admitted dealer. heinous sort. is of the most convicted pursuant to Rule purportedly dence were persons innocent brutality with which excep- Evidence as of the Federal Rules of descrip- beyond to death is almost burned establishing purpose tions for the identi- pun- appropriately a crime is tion. Such Judge writing intent. Posner ty and that the most severe sentence ished Appeals as- Court of the Seventh Circuit would of Rhode Island law of the State the statement unequivocally serted parole. allow, without imprisonment life rather prove identity or intent but However, just that this it is in such case forbidden element of established prosecution of the Court must demand propensity. to con- justice that evidence used properly admissible vict the defendant be Since, bar, in the case at charged. crime It is probative of the immediately give declined instruction resolve to accord in such cases that our following prosecutor’s admittedly standards of process appropriate due inappropriate statement of wrongful severely tested. proof is most to which the evidence of the burn- use put and ing of the crackhouse should be therefore, I, respectfully would dissent final to address this matter in his failed this issue and majority opinion from jurors jury, lay instructions trial in award the defendant new would their de- permitted upon were to embark unequivocally would be which this evidence liberations with the erroneous words categorically excluded.

prosecutor ringing in their collective ears.

If this is not an invitation to erroneous crime,

application prior uncharged of a

would be difficult to conceive of a situation emp- invitation would be more

wherein the

hatic.

Case Details

Case Name: State v. Garcia

Court Name: Supreme Court of Rhode Island

Date Published: Jan 26, 2000

Citation: 743 A.2d 1038

Docket Number: 96-169-C.A.

Court Abbreviation: R.I.