State v. Figueroa, 91-124-C

• Decision Date: 15 April 1996
• Docket Number: No. 91-124-C,91-124-C
• Citation: 673 A.2d 1084
• Parties: STATE v. Bernardo FIGUEROA. A.
• Court: Rhode Island Supreme Court

Page 1084

673 A.2d 1084

STATE v. Bernardo FIGUEROA.

No. 91-124-C.A.

Supreme Court of Rhode Island.

April 15, 1996.

Annie Goldberg, Asst. Attorney General, Aaron Weisman, Asst. Attorney General, for Plaintiff.

John A. Macfadyen, III, Providence, for Defendant.

OPINION

BOURCIER, Justice.

Bernardo "Benny" Figueroa (defendant) appeals from his October 12, 1990 judgment of conviction for the second-degree murder of his wife, Susan Joubert Figueroa. The defendant was found to have killed her during the early morning hours following Christmas 1986 after twice firing upon her with a shotgun. For the reasons that follow and after dissertation of the pertinent facts, we affirm the defendant's judgment of conviction.

Facts and Case Travel

The defendant, an admitted drug dealer, and his wife, Susan, spent Christmas Day 1986 at the home of Susan's grandmother in Cranston. The couple returned to their apartment at 482 West Fountain Street in Providence sometime after eight o'clock that evening. Neighbors testified at the defendant's trial that they heard noises that sounded like a "bang or backfire" from a car at about 1 a.m. Some thirty minutes later, other loud "bangs" were heard. The state contended that at least two of the loud noises were caused by the defendant's firing of a shotgun at his wife. She was found dead in their apartment that morning with shotgun wounds to the upper chest and left leg.

At trial, the state relied heavily upon the testimony of two of the defendant's acquaintances, Michael Badessa (Badessa) and Larry Fraielli (Fraielli). Both testified that they had been called on the night of the shooting by the defendant and were asked to come over to his apartment because he needed transportation. When they arrived at defendant's apartment at about twelve o'clock Christmas night, they testified that they had to knock on the apartment door and identify themselves several times before the defendant would open it. When the defendant finally did open the door, he said, "Get in here." Badessa and Fraielli further testified that defendant then pointed a shotgun at them, and as he did, they noticed his wife, bleeding severely, lying on the floor beside a mattress.

Badessa testified that earlier that evening he had seen the defendant and his wife in nearby Decatur Square. At that time he saw the defendant pull a shotgun from underneath his coat, pointing the weapon's barrel upward, walking, "like a soldier." Badessa testified that defendant was acting "kind of strange, like if he was drunk or high." Later, when Badessa arrived at the Figueroa apartment near midnight, he noticed that the shotgun in defendant's hands was the same one he had seen defendant carrying in Decatur Square earlier that evening. Badessa also testified that during the confrontation at the defendant's apartment defendant pointed the shotgun at him as well as Fraielli and ordered them to stand against a wall. Badessa further testified that about one minute later, Fraielli jumped at the defendant and began struggling with him in an effort to wrest the shotgun from defendant's grasp. Badessa, at that time, fearful of being shot, fled the apartment.

Under cross-examination Badessa admitted that he was a convicted felon, having been convicted of breaking and entering. He also acknowledged that after he dashed out of defendant's apartment, he did not go to the authorities to report Susan Figueroa's plight or the defendant's actions and possession of the shotgun, but instead went to a friend's house. Badessa claimed that he was frightened and did not know what to do.

Fraielli testified to substantially the same factual events as did Badessa. He said that he was visiting at his sister's house earlier that Christmas evening, and while looking out of a window saw defendant, his wife, and Badessa standing in Decatur Square. Later that evening, Badessa came to Fraielli's sister's house and told him that defendant had requested they come to his apartment to give him a ride. Fraielli contacted defendant by pager (beeper), and when defendant responded to the page by telephone, Fraielli asked him if he indeed needed a ride. The defendant replied that he did, and Fraielli and Badessa then drove to the Figueroa apartment. Fraielli testified that he and Badessa arrived at defendant's West Fountain Street apartment shortly before midnight.

Fraielli's testimony concerning what occurred when he and Badessa arrived at the apartment was materially in accord with Badessa's recollection and testimony. He testified that they had to knock several times and identify themselves before defendant opened the door. Fraielli testified that when the defendant finally opened the door, he was carrying his baby as well as a shotgun that he pointed to Fraielli's face. The defendant told Fraielli, "Get in here." Fraielli then testified that at that moment Badessa began screaming, "Don't shoot me." Fraielli then heard the sound of someone gasping for breath and saw Susan Figueroa on the floor next to a mattress. Fraielli testified that Susan was "rolled up like a doll" and that "there was a ton of blood there."

Fraielli further testified that in an effort to calm Figueroa down, he said to him, "Let's get rid of the body." He then moved closer to the defendant and grabbed the baby from him. He heard Badessa screaming, "I don't want to die, I don't want to die." Fraielli said he responded, "Shut up. Nobody is going to die." Fraielli then dropped the baby, jumped at the defendant, and grabbed the shotgun. While the two struggled, Badessa fled the apartment. Fraielli, in the meantime, was able to pull the shotgun from defendant's hands and, after doing so, he too then ran out of the apartment with the shotgun. Fraielli testified that he ran by the place where his car was parked because he feared that the defendant might have another gun and would fire at him from the apartment window if he took the time to attempt to enter his vehicle. After running a short distance, Fraielli said he threw the shotgun into a yard on Carpenter Street. He then decided to go to his father's house, and enroute, some Providence police officers stopped and arrested him. After being held overnight, Fraielli told police detectives what had happened at the Figueroa apartment. The shotgun he told the detectives he had discarded on Carpenter Street was thereafter recovered by the police later that morning.

In addition to Badessa and Fraielli, some of defendant's neighbors were called to testify. One of those neighbors, Lillian DeSimone (DeSimone), related that she heard a noise like the backfire from a car at about one o'clock the morning after Christmas. At about 1:30 a.m., she heard three more of the same sounds. DeSimone, who lived in a second-floor apartment beneath defendant's apartment, also said that she heard scuffling on the floor above that sounded like people tumbling around. She further testified that seconds before the scuffling began, she heard a male voice say, "I didn't mean to do it, Larry." ¹

The defendant's next-door neighbor, Deborah Patterson (Patterson), testified for the state. She testified that she heard "this big boom" sounding like a car backfiring coming from the direction of the Figueroa apartment at about 1 a.m. About thirty minutes later she heard two other loud bangs that seemed to emanate from the same area. Patterson testified that she and her husband then went out onto their front porch to see what, if anything, had happened and heard the Figueroas' baby crying as if frightened. She said she then heard a male voice say, "Benny, we're friends, aren't we? Put the baby down."

On cross-examination, Patterson was questioned about her ability to pinpoint the source of the bangs and the male-spoken words. She was asked if when she heard the noise and the male voice she was out on the front steps of her house. Patterson replied that she was, and then added, "We heard that, and I said, 'David, I heard--he hurt the baby before. I'm afraid.' "

At this point defense counsel, without offering objection to the witness's statement, asked to approach the judge's bench. After an off-the-record side-bar conference discussion, the Superior Court trial justice then inquired of Patterson at the side-bar concerning the statement. The trial justice was of the impression that the witness had used the word "heard," and not "hurt." However, the witness related that she had used the word "hurt," which was also what the stenographer had perceived and had recorded as being Patterson's answer to defense counsel's question.

Defense counsel then moved for a mistrial on the basis of the witness Patterson's remark. Counsel contended that the witness's statement suggested to the trial jury that defendant had on a prior occasion inflicted injury upon his own child, and as such, was "so highly inflammatory" as to be overly prejudicial to the defendant in the eyes of the jury. Counsel argued that the witness's answer would give the jurors the impression that since the defendant was capable of inflicting injury upon his baby, he would more than likely be capable and inclined to inflict injury upon his wife.

The trial justice denied the mistrial motion. She did so only after first diligently questioning the jurors, individually, in an effort to discern what each had heard the witness Patterson say about the defendant and his baby. That questioning procedure revealed that three of the fourteen jurors reported that they recalled hearing some variation of the Patterson remark but all to the effect that the defendant had hurt the baby. Those three jurors were then specifically and individually instructed by the trial justice to disregard the testimony each heard concerning the baby. They were also told by the trial justice that she had stricken Patterson's answer from the trial record, and, as such, it was not evidence and was not to be utilized during jury deliberations. The entire jury was then...