*1 (R.I.1980). D’Amario, 416 A.2d exists, however, STATE
An “of exception cases public importance, extreme which are ca v. pable repetition which evade re SENGLY HUY. Lebel, view.” v. Arnold (R.I.2007) Moms, A.2d at (quoting No. 2005-307-C.A. 139). of Rhode Island. Supreme Court injunction expired this case accordance with its own terms when the Dec. 2008. arbitration award was issued. The mem- during
bers of Local 1033 were not laid off interregnum monetary suffered Thus, injunction in place
loss. there is no relief, grant
from which this Court could persuaded
nor are we case in- public impor-
volves an issue of extreme potentially
tance that could evade review.3 Co., England
See In re New Gas (R.I.2004) (because
545, 553-54 the under-
lying dispute petition labor settled while
for relief pending this Court the moot); Chafee,
case was Sullivan (R.I.1997) (the question of budget
which and tax operable rate were year
for the 1997 fiscal was deemed moot ended); year
after the in question had
Town Scituate v. Scituate Teachers’ As-
sociation, 679, 683-84, 110 R.I. (because
466, 468-69 the collective- subject
bargaining agreement that was the dispute expired,
of a contract the case moot).
was deemed reasons, ap-
For the aforementioned dismissed,
peal is denied and the rec- shall Superior
ord be remanded to the
Court. During arguments, city injunction. disgorge wages oral contended We decline to performed compensable who their that it suffered loss when it these individuals duties, pay, pay forced to for rendered earned their and received that for the services crossing guards during period they bargained. *2 defendant, (Huy or defen- Sengly Huy
dant), judgment of Superior a Court from a officer’s stemming conviction trunk of the a firearm in the discovery of After the defendant’s defendant’s vehicle. incriminating pistol motion to justice, the defen- by the trial was denied trial and waived his dant agreed stipulation parties filed an facts, the on these facts. Based guilty be- justice found the defendant doubt of both counts yond a reasonable wit, information, carrying a the criminal license, a in violation G.L. pistol without ll-47-8(a) (count 1), altering § firearm, in on a the marks of identification 2). (count § 11-47-241 On violation of Huy to count sentenced years imprison- term of six suspended a fine, ment, monetary probation received a and on count the defendant year. term of one suspended concurrent reasons Huy timely appealed. For the ap- opinion, the defendant’s stated judg- and dismissed and the peal is denied affirmed. ment of conviction is Zurier, Providence, Lauren S. for Plain- Facts and Travel tiff. Connors, Providence,
Thomas F. for De- following was elicited fendant. hearing. during pretrial suppression Angelo police patrolman Providence WILLIAMS, C.J., Present: (A’Vant) February testified that A’Vant GOLDBERG, FLAHERTY, SUTTELL, information from 2004 he received ROBINSON, JJ. known, informant that confidential reliable with an large pistol caliber carried OPINION a black Acu- site and drove attached laser GOLDBERG, for the Court. Justice registration. Massachusetts bearing ra A’Vant, informant also According to Supreme came before the This case physical description 23, 2008, by supplied him with September Court on removed, prima facie shall be provides: or obliterated 1. General Laws 1956 11-47-24 changed, remove, possessor has alter, that the change, person shall "No removed, altered, maker, model, it. Viola- or obliterated obliterate the name of number, may be provisions mark of this section manufacturer's or other tion of the any firearm. Possession by imprisonment identification on for not more punished any these firearm years.” than five altered, changed, shall have been marks male”) (viz., regis- “an Asian laser site had obliterated serial tration number of defendant’s vehicle. weapon number. The two rounds The informant further indicated that magazine. The defendant was driven *3 gang was a member of the known as the station, police he waived his where Boys. South Side The informant also and, rights police, in a statement to the averred that carried the firearm for possession admitted of the firearm. protection frequented 168 Wood Huy subsequently charged was with car- Street and the Hartford Avenue area of rying pistol a without a license violation not, Providence. The informant did how- ll-47-8(a), §of altering and with ever, explain how he knew that defendant pursu- marks of identification on a firearm kept gun a in the trunk of car. defendant’s ant to 11-47-24. The defendant filed past claimed tips A’Vant from this pretrial seeking sup- several motions had gun informant materialized into two press both the firearm and his statements arrests, seizures and was unsure (1) police. to the He alleged whether those arrests had resulted con- firearm was seized violation of the victions. Fourth Amendment to the United States 9, 2004, February On officers Fabio Zue- Constitution and article section of the Huy’s na2 and A’Vant located vehicle3 on Rhode Island Constitution that his Hartford Avenue. A’Vant testified that he subsequent police to the was driving target observed an Asian male involuntary and was obtained as the result vehicle, but he did not know whether the anof unlawful arrest. These motions were Huy. immediately driver was A’Vant radi- by justice, denied who found that vehicle, backup oed for followed tip justified the informant’s both the arrest speeding, which was not for a short dis- subsequent search of defendant’s tance until it stopped on the same street. vehicle. momentarily officers watched as a young Asian male left a house and entered subsequent At a proceeding several Then, the automobile. with the assistance later, weeks defendant waived his officers, police stopped additional a trial and to the facts Huy’s Acura it sandwiching between Specifically, this conviction rests. police guns two vehicles. their With following: both sides drawn, vehicle, approached officers [mjonth During February, “1. removed the occupants, placed three [p’Jolice Providence [officers Fabio Huy in the back seat of a marked Angelo Zuena and A’Vant received infor- cruiser. Although parties stipulated [cjonfi- known, mation from a reliable handcuffs, was not restrained in [defendant, dential that the [informant found that defendant was Sengly Huy, a carrying .45 caliber under arrest. A’Vant searched the trunk and, gun with a laser site large speak- vehicle under a attached er, vehicle, trunk pistol equipped discovered with a of his Acura black bear- Throughout transcript suppres- actually of the 3. The vehicle was owned Lone Thammavongsa, Huy’s girl- the mother of sion officer Zuena is called "Sorena.” friend, Thammavongsa. According Bounma Because the rest of the record him identifies Huy's pretrial testimony, he drove Lone’s Zuena, however, as we refer to him as such in regular on a basis. Bounma was automobile opinion. our sitting passenger in the seat of the vehicle boxed it in. officers un- placed “5. The defendant then registration: ‘53P- ing Massachusetts der arrest. R09’. point, [pjolice At Providence “6. [ijnformant provided “2. Confidential notified. Patricia Cornell was Detective [ojfficers Zuena and A’Vant with [pjolice responded to the Detective Cornell defendant, description name of the custody .45 caliber scene took of the defendant, description with laser site. operat- the defendant would be vehicle “7. caliber with laser site The .45 number, registration
ing with where serial an obliterated number. located, and the *4 the defendant could be gun location of within vehicle. to the “8. was taken The defendant [cjonfidential [ijnformant addition, in- [sjtation given and [pjolice rights and his formed the defendant is a knowing, intelligent, made and volun- a (SSB) Boys of the member South Side a tary rights gave of his waiver protection. weapon and carries the for admitting gun was his. February 9, 2004, Providence “3. On objections to “9. Defendant waives all [ojfficers Zuena and An-
[pjolice Fabio genuineness, orig- on admissibility based a gelo A’Vant received information from inality, authenticity, of cus- chain and/or [ijnformant [cjonfidential known, reliable tody fire docu- gun of said test gun that the defendant had the in his ments.” hangs vehicle and in the West End Avenue
Hartford areas. that de- Additionally, parties stipulated carry a fendant did not have license to [ojfficers “4. Providence [pjolice pro- weapon. The record discloses that ceeded to the Avenue Hartford area only stipulation of facts constituted the they where observed defendant’s vehicle weap- proof presented at trial —neither Pron) receiving (Vanny a passenger intro- nor was defendant’s confession and, time, [pjolice at that Providence duced; alleged yet it is the unconstitution- approached blocked and the defendant’s this al manner in which obtained time, At that [pjo- vehicle. Providence appeal. basis evidence that is the [ojfficers Angelo lice Fabio Zuena and jury-waived occupants transcript A’Vant removed all three The vehicle, defendant, single proffered reveals who was in that defendant seat, objection girlfriend, portion the driver’s Bounma confidential Thammavongsa, in the front facts described state’s who was seat, counsel Vanny Pron informant as reliable. Defense passenger’s who stipula- rear seat. stated that “to the extent that passenger’s [the was it a reliable placed [pjolice tion] indicate[s] defendant was offi- [cjonfidential [ijnformant, [ojf- clearly that was Police cers’ vehicle unhandcuffed. [sjtate, by the that’s what a search of the testified to ficer A’Vant conducted with, say and we is some- disagree trunk a .45 cali- vehicle’s and discovered have the thing like to contest and with laser hidden beneath a we’d ber site Supreme review.”4 Court large speaker. However, rights. de- object voluntary of his Additionally, purported waiver police, the fact that statement to raised the Fifth Amendment fendant has not his, admitted the firearm was which he intelligent, knowing, the result of justice
The trial pass upon de- we decline to address the merits of this objection, fendant’s case. Because neither the firearm nor the incorporated facts was into confession was admitted into the record. As evidence dur- noted, case-in-chief, party presented any question neither testi- state’s mony exclusionary apply nor whether the rule should tangible introduced evi- Instead, explaining subsequent dence. after to the arrest and search of consequences simply dant the defendant’s vehicle is not before waiving us. We decline to decide whether a firearm or read the facts into the record and imme- confession that was not introduced into diately guilty beyond suppressed declared defendant evidence should have been be- cause, regardless reasonable doubt of both counts in of the answer to those criminal questions, information. the ultimate result in this case would be the same: defendant stands con-
Analysis agreed stipulation victed based on an Court, Huy Before this contends that facts.5
the officers did not
probable
have
cause to
Waiver
search the trunk of his vehicle and did so
Very rarely does this Court delve into
in
violation of his constitutional
preserved
issues that were not
for our
against unreasonable searches and sei-
See,
Bido,
e.g.,
review.
v.
State
941 A.2d
appears
zures.
argument,
He
to base this
(R.I.2008)
822,
(discussing excep-
828-29
informant,
reliability
not on the
of the
tion to our well-settled “raise-or-waive”
on the failure of the officers to undertake a
rule).
For us to address
conten-
investigation
verify
sufficient
the infor-
tion that
the contraband and confession
tip. Although
mant’s
defendant concedes
illegally,
were obtained
the evidence must
may
the officers
have
the requi-
have been introduced at
trial.
suspicion
stop
site reasonable
the vehi-
(2008) (“A
§
Am.Jur.2d Evidence
3 at 37
cle,
argues
they
possess
matter which was not
pre-
introduced or
probable
him gunpoint
cause to arrest
sented as evidence at trial does not come
or to search the trunk of his vehicle.
commonly
within
accepted
definition
contends, contrary
also
”).
of ‘evidence.’
The defendant must
facts,
immediately
that he
placed
in
required
prosecution
have
“to utilize
handcuffs and arrested before the officers
the evidence which he
unsuccessfully
has
in
found the firearm the trunk. Addition-
State,
challenged,” Linkey v.
Md.App.
ally, Huy asserts that his later confession
312,
286,
(Ct.Spec.App.1980);
was the fruit
illegal
of the
search and
may
prosecu-
a defendant
not absolve the
States,
Wong
arrest. See
Sun v. United
proof “by
tor of his or her burden of
con-
471,
371 U.S.
83 S.Ct.
In this
its bur-
relieved the state from
merely to the introduction of evidence
trial,
introducing
nothing
den
evidence he asks us
there is
the exclusion-
suppress,
ary
accomplish.
case,
we
can
decline
address whether
rule
such a
have
sup-
should
been
deterrent function served
the exclu-
pressed.
sionary
place.
rule
See Linkey,
has no
(“If
A.2d
such
at 288-89
evidence is never
recently
This Court
has stressed
* * *
admitted
it is difficult to see
prophylactic purposes
“the
that underlie
be error
where there could
based on the
the [exclusionary] rule—‘to deter law en
exclusionary rule;
indeed,
[c]onstitutional
violating
forcement officers from
a defen
case,
entirely
such a
trial would be
”
rights.’
Barkmeyer,
dant’s
consistent and in accord with the exclu-
(R.I.2008)
(quoting
United
it.”).
rule,
sionary
opposition
not in
Be-
Almeida,
(1st
States v.
434 F.3d
opinion
cause we are of the
based
Cir.2006)).
“Because
of rele
poisonous
record before us the
tree is
incriminating
vant and
evidence ‘will often
fruit,
devoid of
we decline to consider the
have the
allowing
go
effect of
criminals to
constitutional
raised in
appeal.
issues
unpunished, it
justified only
as a means
deterring
violating
con
Conclusion
”
statutory
stitutional and
rights.’
Id.
Accordingly,
are
satisfied that
Silvestri,
(quoting United States v.
preserve
defendant failed to
his Fourth
(1st Cir.1986)).
F.2d
The exclu
Amendment contentions on
For
sionary rule is not intended to assuage the
herein,
reasons stated
harm caused to persons who suffer as a
judgment
denied and
dismissed
seizure,
result of an
search
illegal
papers
conviction is affirmed. The
in this
Pennsylvania
Probation
Board
and Pa
may
case
Superior
be remanded to the
Scott,
357, 362,
role v.
524 U.S.
118 S.Ct.
Court.
2014, 141
(citing
L.Ed.2d
Unit
Leon,
897, 906,
ed States v.
468 U.S.
FLAHERTY, dissenting.
Justice
*7
(1984));
5.Ct.
Consequently, alleged improperly suppress if motion to evidence of the firearm question obtained has not in police. been admitted and his statement ll-47-8(a) person provides 6. General Laws 1956 about his or her whether visible pertinent part: concealed, in except dwelling in his or her shall, person per- “No without a license or place pos- business house or or on land 11-47-11, §§ provided mit in issued as 11- by provided her sessed him or or as in 11-47-18, carry pistol 47-12 and a or re- §§ 11-47-9 and 11-47-10.” conveyance volver in vehicle or or on testified, murder and Huy charged defendant was with suppression hearing, At the witness, incriminating certain passenger suppress his and moved to presented as police. had Id. cross-examined the state’s three wit- statements he made motion, nesses. After the motion to was at 288. After the court denied his denied, plea bargain, his trial. parties waived the entered into a his stipulated to the date of arrest the under terms the and to the fact that he did not have a submitted an pled guilty not the state carry weapon. He also assent- license facts” which the “agreed statement of stipulation based on the facts elicit- ed “ultimate facts”: defendant assented to the hearing, at the which the ed the victim that the defendant stabbed justice into record. trial read the justification. death malice and without “qualifications” to stipulation made the so Maryland held that the Id. The Court that he could contest voluntariness properly pre- not appeal defendant’s was reliability confession and the he ar- served because evidence that then explained informant. Counsel gued improperly enforcement that law subject those issues be of an would incriminating obtained —the statements— Court, appeal this intention which referred to or not submitted justice acknowledged the trial on the rec- determining nor it considered in After into reading ord. Rather, guilt. prosecu- Id. at 288-89. record, justice the trial recited stan- agreed merely tor rested dard for motion to dismiss acknowl- my opinion, facts. the rule of ultimate edged duty “weigh and evaluate the Linkey apply set not to this forth does evidence, credibility pass upon because, as further be- discussed the trial witnesses and in the engage infer- low, admit defendant did not all essen- this process.” ential each state charged. tial of the crimes elements rested, that, court then found here, in Lin- Equally important contrast to upon stipulation, upon based “[biased key, this defendant’s statement and Court held consid- firearm found his vehicle were February matter on 21 st and 22nd of 2005 ered as result Suppress, in the Motion and based officers testi- testimony of who facts, recognizing quali- suppression hearing, even fied in the counsel, fications” made defense though physically did become they guilt evidence was “sufficient to find be- part of the trial record. *8 yond a reasonable doubt.” The court then major- disagree I with the Huy guilty of the charges again found lacked ity’s poisonous view that tree acknowledged Huy’s intent to Linkey, fruit. In the court reasoned exclusionary The rule exclusionary keeps tainted rule out evidence, evidence, that if tainted majority the fact that so troubled fruit, part becomes of the eviden- Huy’s incriminating nor its never gun neither not tiary the conviction is entered into evidence dur- bundle statement was jury-waived any error that would warrant Citing Linkey trial. v. based on But, exclusionary rule. application of Maryland, Md.App. 46 286 requirement that evidence it concludes that there is (Ct.Spec.App.1980), doc- seeks to exclude must be exclusionary not unless a defendant implicated rule is To the tangible in nature. challenged umentary introduced at evidence is Amendment, Fourth Linkey, contrary, In under the trial. See id. at 288-89. 558 logic
there is “no basis in or in neither appeal merely the cases waived because distinguishing for between the introduction incriminating nor the firearm state- physical objects illegally into evidence of tangi- ment was entered into evidence as a of testimony taken the introduction object. ble concerning objects illegally observed.” States, v.
McGinnis United F.2d Huy’s stipulated-bench (1st Cir.1955) suppression (holding of plea guilty is not a illegal evidence search extends to testi- effect, In the majority’s decision essen- mony of during observations made tially Huy’s stipulated-bench trial equates search); Crews, see also v. United States guilty plea by concluding 463, 470, 445 U.S. 100 S.Ct. appeal Court waived to this (1980). L.Ed.2d 537 because he to the facts re- Here, although prosecutor never of- prosecutor lieved the of her burden of the actual fered firearm or the documents Keohane, proof. State v. A.2d containing Huy’s incriminating statement (R.I.2003) (guilty plea appeal waives trial, in my judgment this irrelevant motion to suppress). signifi- issue of It is preservation Huy’s appeal. cant this Court that a has never held Huy’s pre trial sought “suppress motion waives appeal suppres- of a of, any tangible and all reference to or use when pleads guilty sion motion he not evidence seized” and “all use or refer- in participates stipulated-bench trial.8 ence derived Dustin, contrary, To the State v. unlawfully seized material.” There can be (R.I.2005), we held that defen- no doubt that the trial considered dant appeal did waive his he fruit of alleged illegal search. He stipulated to the criminal information testimony considered the officer’s packet because “the adversarial nature of weapon that he found a trunk of Also, proceedings car. he below were sufficient to considered the offi- preserve justice’s cer’s denial of gave owning pretrial suppress.”9 admitted to the fire- defendant’s motion to Therefore, I arm.7 cannot agree Id. at 247. Roberts, exclusionary may apply package);
7. The
rule
to a defen-
v.
State
(R.I.1980)
incriminating
(reaching
dant’s
obtained
statements
merits of constitutional
exploitation
illegally
seized evidence. See
issue on
after the
(R.I.
Jennings,
guilty
dant
found
after
bench
1983).
trial).
fact,
Dustin,
9.Although
I take
cases in
note of several
State v.
N.E.2d weighed engaged inferen- stipulated- court held that defendant’s and sufficient evi- fact-finding, tial found trial to guilty not tantamount beneh Huy guilty. dence to conclude plea when the state forth facts that set trial, During Huy “quali- also asserted brought would be out in essentially that were defenses fications” evidence, presented defendant no because challenging admissibility of the state’s challenge he maintained a as to admissibil- Sullivan, 29 Ill.Dec. evidence. See Id. “In a ity of evidence. at 243-44. trial does (stipulated-beneh N.E.2d trial, judge jury facts still defendant as- appeal not waive an when guilt determines the defendant’s or inno- relating admissibility serts a defense to the cence; prove beyond State must evidence). Furthermore, very it is guilt; reasonable doubt defendant’s reading Huy, clear from record is precluded not from counsel, justice, the prose- his offering or cross-examining wit- cutor, by all in a participating believed essence, by stipulation, nesses but in trial, Huy would not be stipulated-beneh agrees presents what State Court; his to this giving up right appeal say. what witness would Further- indeed, preserved he it. specifically more, in a stipulated facts trial the defen- Therefore, not I do believe * * appeal dant maintains merely by submitting to appeal waived his Johnson, Wash.2d 705 a trial. stipulated-beneh (1985). result, P.2d 775-76 As a Huy’s appeal is not moot pretrial suppress defendant’s motion denied, a defendant not does waive majority’s opin- It seems to me appeal respect admissibility to the upon principles ion is based mootness. the evidence submitting case words, suggests ruling by that a In other it trial on stipulated bench based evidence. this Court would not affect the conviction Gossett, State v. Ariz. P.2d therefore, and would not redress (holding 1366 (Ct.App.1978) the de- Larson, 302 injury. States v. United Cf. appeal fendant did not waive denial of Cir.2002) (9th (holding 1018-20 F.3d trial motion bench after he motion mooted hearing transcript crime). The all elements of stipulation to records). Huy stipu- majority asserts that because hand, which his conviction proceedings
In the case at lated facts rests, if the contested evidence were distinctly adversarial. even below were the conviction would still plea bargain, plead suppressed, he did not did sen- indictment and reduced pool, was ever seated in his case an amended Beechum, stipulated-facts Id. at because of his trial. Id. at 690-91. Unlike tence. stipulated- Court held that the agree- 689-90. This any plea bargaining into never entered to a conditional facts was tantamount ment, presented testi- defenses wit- plea because defendant did not examine four witnesses at fied and examined other nesses, incorporated merely record hearing. suppression motion *10 in his another trial into record Huy’s trial. was decided after Beechum also plea agreement for bargaining entered into a 560 addressing issue,
stand.
An
this
several
ed serial
essential
number.”
element
courts
when a
ll-47-8(a)
have held that
§
to convict
requires
under
stipulates to the “ultimate facts” or “each
carrying,”
“conscious
and there must be
crime,”
element of
conviction is
proof that “the defendant’s
was
knowledge
by illegal
essence untainted
evidence and
there,
that
knowingly carrying
he was
subject
thus not
on
to
the basis of
Benevides,
pistol in that vehicle.” State v.
motion to
that
was denied. See
(R.I.1981).
77,
425 A.2d
The
79-80
(defendant stipulated
id. at 1018
that he
dant never
he
admitted
that
was
“knowingly
a felon
had in his
knowingly possessed the firearm
that
possession”
pistol
that crossed state
he was
of the presence
conscious
lines);
(defendant
Linkey,
A.2d at
firearm in
trunk of the
he
automobile
stipulated that
stabbed
he
the victim to
driving.
stipulation
was
The
simply does
malice,
death “with
premedita-
without
not
necessary
address
element
tion, deliberation,
justification,
without
Huy’s mental state.10 The element of
circumstances”).
excuse or mitigating
knowledge
cir-
typically
is
established
Those
courts reason
because the con-
logical
cumstantial evidence and
infer-
viction
solely
stipulation,
rests
on the
there
See,
Hernandez,
e.g.,
error
ences.
address
See
Larson,
1019;
Linkey,
(R.I.1994);
Mercado,
F.3d
State v.
A.2d at
Under
288-89.
these circum-
(R.I.1993).
Making
263-64
stances,
was
“[a]ll the court
asked to do inferences
a function of
the fact-finder.
whether,
was to determine
as a matter of
Brothers, Inc.,
Labbe v. Hill
97 R.I.
law, those
facts sufficed
constitute [the 273,
(1964).
Thus,
charged
Linkey, 416
crime].”
A.2d at 288
judgment
render a
of conviction in this
State,
(citing Barnes v.
31 Md.App.
354 case,
justice
was required to make
A.2d 499 (Ct.Spec.App.1976)); see also
an inference that
knew there
awas
Larson,
(“the
at 1019
F.3d
firearm in
girlfriend’s
the trunk
him”).
itself was
convict
sufficient to
driving
mother’s car at the time he was
it.
However,
Larson,
Linkey or
unlike
It is clear
that the
to me
court was asked
contrary
assertion,
majority’s
I re-
whether,
just
do more than
“determine
spectfully submit that
did not concede
law,
as a
those
matter of
facts sufficed
sought
to “the
proved.”
ultimate facts
be
charged].” Linkey,
constitute
crime
[the
not stipulate
defendant did
that he
Furthermore,
ed a .45 caliber with laser site hidden dant’s was not solely conviction based large beneath a speaker,” that “[t]he .45 it stipulation, argument caliber with laser site had an obliterat- Although stipula- gun to an knew that record contains the admission that Huy gave admitting tion a statement carry was in the that he knew he car or him, gun belonged he asserted the ll-47-8(a); gun. State v. Bene voluntary. defense that the statement vides, (R.I.1981). does not amount *11 is my opinion, this not so In illegal re- was based.” tainted evidence should The written docu- from the record. main viable. clear simply the into record ment entered stipulations The distinction between presented When “Stipulation.” entitled agreed facts justice, re- stipulation, the majority may that agree I with the there marked, that “I add for the record might in the of stipulating a difference effect be held a motion to the Court has facts will show and to the that evidence facts to case. The seem this submitting agreed of facts. statement that out in that came track Barnes, A.2d at 505. Further, When on that motion.” facts,” agrees to the “ultimate party that said “these were the facts counsel that longer dispute they are are facts hearing, suppression at the were elicited true. established as Id. stipulate to agree why and that’s agreed a party when enters into an state- portion of the that.”12 The introduction binding those are ment facts facts says that the stipulation parties document parties appeal. Rhode Island Pub- following facts “agree stipulate Authority v. Rus- lic Telecommunications [suppression [h]earing.” elicited sell, (R.I.2007).11 Alter- I with the ma- Respectfully, cannot concur natively, a party stipulates when to the Huy agreed jority’s conclusion evidence, agreement facts there is no as “ultimate facts.”13 facts;” rather, the stipula- to the “ultimate Conclusion pertains only testimony
tion to what the particular witness be if would he were sum, majority’s dispatch- decision Barnes, testifying. 354 A.2d at “The 505. pled if had Huy’s appeal guilty, as he es be, agreement to what the evidence will clearly he did intend waive facts not what the are.” Id. To decision a fact-finder. rights majority majority’s appeal,
I see little foundation for the would preserve his go repetition of a assumption “agreed through to the facts have him call which the decision of the trial in which the state would proceeding 11.Huy seeking stipula- Huy essentially argu- ly, is not waived the arrest to withdraw his ap- ment, tion or solely arguments contradict facts on basing his case on his Rather, peal. is based on facts illegality about search. by stipulation submitted to the Court suppression flowed from the in the argu- surprise at oral It should be no 12. hearing relating illegal to an With all search. ment, Huy’s stipula- counsel asserted respect, majority due I believe that the need- was to evidence. tion lessly Huy attempt- latches on to fact that by arguing stipulation ed to contradict Huy's did not have a stipulation that he argu- At was arrested before search. oral weapon separate carry was made license ment, however, Huy's acknowledged counsel stipulation read into the record argument illegal that his that there was an fairly agreed considered an can be arrest would not affect the outcome of than a of evidence of fact rather appeal. is so because if the This elicited at because this fact never probable cause to search the vehicle at hearing. Huy made The fact that stop, time of the whether he was arrested separate stipu- from the factual assertion weapon was before or after the discovered supports a conclusion further lation issue bearing have no on the outcome of the would agree- Likewise, as an the latter was meant to serve proba- if the lacked search, testimony. only illegality the content of cause of the arrest ment ble change Consequent- would not outcome.
the exact same witnesses to offer my the same opinion, Huy did not appeal, waive his testimony that already had been offered at thus, I respectfully dissent from the the suppression hearing, and before the holding this case. justice,
same trial sitting as fact-finder in a
jury-waived trial. This not only burdens placing an unnecessary
roadblock to the exercise of
appeal, but it also burdens the efficient
administration of judi- and strains
cial resources. For reasons, all these