The defendant, Michael Stokes, appeals from a Superior Court judgment of conviction on three counts of assault with a dangerous weapon, in violation of G.L. 1956 § 11-5-2, for which he was sentenced to three concurrent fifteen-year sentences; three counts of discharging a firearm while committing a crime of violence, in violation of G.L. 1956 § 11-47-3.2(b)(2), for which he was sentenced to three concurrent twenty-year sentences, which are to run consecutive to the sentences for the assault with a dangerous weapon convictions; and one count of carrying a pistol without a license, in violation of § 11-47-8(a), for which he was sentenced to a term of five years' imprisonment, to run concurrently with the sentences for the discharging-a-firearm convictions. The defendant was also sentenced as a habitual offender to twenty-five years, with fifteen years to serve and the remainder suspended, with probation,
I
Facts
In the early hours of October 17, 2015, three people were shot inside El Tiburon, a small Providence sports bar with a few pool tables and a jukebox, located at the intersection of Harold and Valley Streets.
Renee Tager was one of the three victims. She testified at trial that she and a friend had arrived sometime between midnight and 12:30 a.m. She was standing by the pool tables near the back door when, "out of nowhere [she] heard a gunshot[,]" then she "heard a series of gunshots." Tager ran outside and, moments later, realized she had been shot in the leg.
The second victim, Dwayne "Fat Cat" Monteiro, testified that he arrived with a friend at El Tiburon around 1:30 a.m. for a nightcap after having had a few drinks at a friend's house and smoking marijuana. Monteiro testified that, as he was "enjoying [his] drink, some dude walked by [him] and nudged [him] with his shoulder." Monteiro, who is about six feet tall, testified that the person who bumped into him was a black male about as tall as Monteiro's shoulders. Shortly thereafter, Monteiro was shot five times. His next memories were of hearing people running and screaming, the presence of an ambulance, and being tended to by a lady.
Alize Huntley was the third person shot that night. When she was shot, she was standing by the bar waiting for her friend. In a statement Huntley gave to the police while at the hospital, she said that she felt a burning sensation in her leg, and retreated to the men's bathroom during the chaos caused by the shooting. At that point, she saw that she was bleeding and spotted a bullet on the bathroom floor.
Tameisha Haynes was also at El Tiburon that night. At the time of trial, she was thirty-two years old. Haynes, a nursing student, was meeting two friends at El Tiburon to talk through a disagreement her friends were having. When she arrived at around 12:30 a.m., Haynes and her friends first spoke outside El Tiburon, then entered the bar. Inside, people were drinking and chatting-Haynes described it as "a regular bar situation." Because people were playing loud music at the jukebox, Haynes, her friends, and her ex-boyfriend who was also present, had difficulty hearing each other. Haynes bought a drink from the bar and sat near one of the pool tables with her friends and ex-boyfriend.
Haynes first noticed defendant, whom she later identified in court, when defendant bumped into Haynes's friend, spilling her friend's drink. Haynes testified that the person was a black male, about her height or a little taller, wearing black Levi jeans and a black top. 1
According to Haynes, defendant then "unleashed the firearm and started shooting." Haynes saw defendant fire two rounds before she ran to the corner with an ATM and ducked down. After firing about five rounds, defendant exited through the Harold Street exit. As Haynes was leaving, she saw a victim bleeding on the floor. Haynes testified that, as a nursing student, she felt compelled to stop and help him.
All three victims gave statements to the police after the shooting, although, in their statements, only one could identify the shooter. Tager spoke to the police about two months after the shooting. Monteiro refused to discuss the incident with the police until just prior to trial, despite their efforts to quickly obtain a statement. Neither Monteiro nor Tager could identify the shooter. Huntley, however, was able to identify defendant as the shooter because she had known him for a few years. Huntley gave a statement to Detective Brian Dyer on October 21, 2015, while she was still in the hospital for treatment of her gunshot wound. In her statement to police, not only did she identify defendant as the shooter, but she also recounted the night's events. Huntley signed a photograph of defendant at that time and captioned it: "Mike Stokes - saw him let off shots at El Tiburon."
After the shooting, the police could not immediately locate defendant. Eleven days later, defendant was discovered in North Carolina and apprehended.
II
Travel
The defendant was charged with a seven-count criminal information on November 18, 2015, and a four-day jury trial began on February 6, 2017. In addition to Haynes, Tager, Monteiro, and Huntley, the jury heard testimony by a member of the Bureau of Criminal Identification Unit of the Attorney General's Office, a forensic scientist at the Rhode Island Department of Health, and three members of the Providence police department. The jury rendered a verdict on February 15, 2017, finding defendant guilty of all seven counts. The trial justice denied defendant's motion for a new trial after a hearing on February 24, 2017. The defendant was sentenced on April 20, 2017, and he timely filed a notice of appeal.
III
Discussion
The defendant raises three issues on appeal. He contends that (1) he was prejudiced by a midtrial disclosure of the identity of witnesses who were placed in witness protection, in violation of Rule 16 of the Superior Court Rules of Criminal Procedure ; (2) the trial justice erred when he allowed Huntley's statements to the police into evidence as prior inconsistent statements; and (3) the trial justice erred in denying defendant's motion for a new trial. We discuss each in turn.
A
Rule 16
The defendant contends that the state withheld information related to witnesses Haynes's and Huntley's involvement in
At a pretrial motion hearing on April 15, 2016, defendant raised the state's response to his motions with the court. The state told the court there had been no promises, rewards, or inducements; and that, although there were "witness protection issues[,]" the state did not consider witness protection to be a promise, reward, or inducement. Later during the hearing, the trial justice gave the following direction: "If [the state] want[s] to give [defense counsel] * * * some indication * * * that would include whether the witness has been provided with relocation expenses, housing, apartment expenses, per diem * * * [g]ive him sort of a general response. And if [defense counsel] needs more meat on the bones, he will say so." The record is silent as to whether those details were subsequently disclosed by the state.
On October 20, 2016, defendant's counsel withdrew and, the next day, new counsel filed an entry of appearance. The defendant then filed some general discovery motions, to which the state replied with the answers and documents it had previously provided. On January 30, 2017-a week before trial was scheduled to begin-defendant filed a Motion for Disclosure of Promises, Rewards, and Inducements. The defendant's counsel, being relatively new to the case, admitted at a pretrial hearing on February 2, 2017 that, although the same motion had likely been filed by prior counsel, it was easier for her to file a new motion than to sort through prior counsel's files. The state filed its answer on February 10, 2017, in the middle of trial, and indicated that Huntley and Haynes both had been placed in the witness protection program. 3 The defendant did not file an objection, request a continuance, or otherwise argue that this response was untimely or prejudicial, and he made no mention of the late filing that day during trial. 4
Upon review of the trial record, we agree with the state: Defendant's Rule 16 argument is waived. Under this Court's well established "raise or waive" rule, a specific objection is required to preserve an issue for appellate review.
State v. Perry
,
Here, defendant raised no objection, either in writing or on the record, to the state's February 10, 2017 response, nor did he request a continuance or move to pass the case. The defendant did not argue to the trial justice that this response was untimely or that any new information was prejudicial to his defense. Because this purported violation was not called to the trial justice's attention during trial, he was unable to consider whether the violation was intentional or prejudicial pursuant to the well established factors relative to alleged Rule 16 violations.
See
State v. Marte
,
B
Prior Inconsistent Statement
The defendant next argues that the trial justice violated Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence by allowing Huntley's October 21, 2015 statement to the police into evidence.
6
We review the trial justice's admission of evidence for "clear abuse of discretion."
State v. Matthews
,
(quoting
State v. McManus
,
"It is well established that decisions concerning the admissibility of evidence are within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of that discretion is apparent."
State v. Alves
,
At trial, Huntley refused to identify defendant and claimed she did not remember giving a statement to the police. Huntley insisted that, when she gave the statement to the police, she was under the influence of recreational drugs and on prescription medication. Outside the jury's presence, the trial justice deemed Huntley a hostile witness. The trial justice allowed the state to impeach Huntley by using the transcript of her police statement to show her prior inconsistent statements. Before the jury, the prosecutor read the detective's October 21, 2015 questions to Huntley, and her answers, and then asked Huntley if she indeed had made those statements. During her testimony, Huntley denied making the statements at times, and, at other times, replied "I may have[.]" Huntley insisted that, when she made those statements, she was so under the influence that she "couldn't even tell you who [she] was[,]" further evidenced by her self-described "stuttering" on the police recording. The trial justice then allowed the state to impeach Huntley by playing portions of the police statement recording to the jury. Later, the trial justice instructed the jury that a witness's prior statements may be considered not only to assess a witness's credibility, but also as substantive evidence.
Rule 801(d)(1)(A) provides that a witness's prior inconsistent statement is not hearsay and thus is admissible if the declarant testifies and "is subject to cross-examination concerning the statement[.]"
See
State v. Ros
,
Indeed, this Court has held many times that a witness's prior inconsistent statement is admissible if the witness is available for cross-examination regarding the statement. In
State v. Jaiman
,
Similarly, in
McManus
, a key witness "professed a total failure of memory about everything concerning the incident, including his discussions with the state police."
McManus
,
Again, in
Matthews
, a key witness "professed a lack of memory regarding almost all of the facts salient to the [crime], including his own signature and the sound of his voice."
Matthews
,
The defendant attempts to distinguish the instant case by arguing that Huntley's lack of memory due to having taken drugs is different from the witnesses in the above cases, who claimed pure failure of memory. The defendant's distinction, however, is of no import. The "touchstone" of Rule 801(d)(1)(A) is satisfied here: Huntley testified and was subject to vigorous cross-examination concerning the circumstances of her October 21, 2015 statement to police.
See
Jaiman
,
C
Motion for a New Trial
On February 24, 2017, the trial justice denied defendant's timely motion for a new trial. Observing that Haynes "unwaveringly and adamantly identified defendant Stokes as the shooter at the El Tiburon club the night of October 17th, 2015[,]" the trial justice found Haynes "very credible, without guile or pretense." In fact, he found that her testimony, "by itself[,]" was "sufficient evidence which amply supports the juror's [
sic
] verdict in this case." The trial justice rejected as a "red herring" the video depiction of defendant's jacket (red), finding that, although the jacket appeared to be a different color from what Haynes testified to (black), the video had distorted the clothing colors depicted. The trial justice also explained that he "listened carefully" to Huntley's police statement and found that she was "calm" and "sounded perfectly normal" despite Huntley's insistence at trial that her statement was, in the trial justice's words, "rife with stuttering and clouded by a diminished mental condition[.]" "There is no question," the trial justice observed, "that her prior statements to [the police] were the truthful ones." The trial justice strengthened his
On appeal, defendant first contends that the trial justice erred in finding Haynes's testimony credible when weighed against the other witnesses' inability to identify defendant as the shooter. Second, defendant asserts that the trial justice erred in crediting Huntley's prior inconsistent statement. The state argues that the trial justice appropriately denied defendant's motion for a new trial and that he provided ample reasons for the denial.
Under the "oft-repeated" and "well settled" test this Court applies when reviewing a motion for a new trial, we examine whether the trial justice acted as a "thirteenth juror" and exercised his or her "independent judgment on the credibility of witnesses and on the weight of the evidence."
State v. Cerda
,
A trial justice is "present during all phases of the trial" and, consequently, is "in an especially good position to evaluate the facts and to judge the credibility of the witnesses."
State v. Diaz
,
First, defendant asserts that Haynes's testimony-the only testimony to directly identify defendant as the person who committed the crimes for which he
Second, defendant asserts that Huntley's testimony was so problematic that the court should have disregarded everything she said, including her prior inconsistent statement made to the police. According deference to the trial justice's findings, we hold, however, that the trial justice did not err in crediting Huntley's prior inconsistent statements to the police despite Huntley's conflicting testimony at trial. The trial justice noted that Huntley was "sarcastic and extraordinarily rude, to the point of being uncommonly obnoxious," in an attempt to distance herself from the statement that she had given to the police. Yet, after he heard the recording, the trial justice found Huntley's recorded statement to be "rather matter-of-fact" and "without hesitation or embellishment[.]" Despite her insistence at trial that she was high when she gave her statement, the trial justice found that "it was obvious, as it would have been to any casual listener, much less the very attentive jurors in this case, that Ms. Huntley was not at all under the influence of intoxicants of any kind."
Perhaps most significant, the trial justice found that "Haynes'[s] very credible testimony by itself was easily enough evidence upon which to support the verdict." In light of the "overwhelming" evidence of the defendant's guilt, the trial justice concluded that "[n]o fair-minded juror could have possibly reached a different result." Therefore, we are satisfied that the trial justice properly denied the defendant's motion for a new trial.
IV
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court. The record shall be returned to the Superior Court.
The security video taken from El Tiburon that night depicts different clothing colors for defendant and others than described at trial. Despite Haynes's testimony that defendant's jacket was black, the video footage taken from the bar that night showed defendant's clothing as "red, maroon, or some color in that area." The video also depicted Haynes's black sweatshirt as light gray, and a detective's black jacket appeared "light or powder blue."
Giglio v. United States
,
The state's answer does not indicate the nature or extent to which the state program has provided witness protective services to Huntley and Haynes.
Although defendant did not challenge the timeliness of the state's disclosure concerning Huntley's witness protection participation, defendant did cross-examine Huntley about whether she had received any rewards or inducements from the state to testify against defendant at trial. Huntley claimed she was given money to stay in a hotel, but had pocketed the cash. After defendant opened the door to questioning about the witness protection service, the state questioned Det. Dyer about whether he had ever discussed witness protection with Huntley.
Even if defendant's Rule 16 argument was preserved for our review, defendant utterly fails to articulate any prejudice defendant suffered by the late disclosure. The defendant argues that he was denied the opportunity to present his best defense, yet declines to explain how counsel might otherwise have argued his case or changed defense strategy. No discussion is provided to the Court as to whether defendant could have avoided conviction by creating reasonable doubt in the minds of one or more jurors had Huntley's witness protection status been disclosed earlier.
The defendant also argues that the audiotape of Huntley's recorded statements was inadmissible under Rule 803(5) of the Rhode Island Rules of Evidence, the recorded recollection exception to the hearsay rule. Because we find Huntley's prior statements, including the audio recording, admissible as prior inconsistent statements, we need not address this argument.