State v. Gatone

• Decision Date: 25 July 1997
• Docket Number: No. 96-124-C,96-124-C
• Parties: STATE v. Thomas GATONE. A.
• Court: Rhode Island Supreme Court

Page 230

698 A.2d 230

STATE v. Thomas GATONE.

No. 96-124-C.A.

Supreme Court of Rhode Island.

July 25, 1997.

Andrea J. Mendes, Aaron L. Weisman, Providence, for Plaintiff.

James T. McCormick, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, and FLANDERS, JJ.

OPINION

WEISBERGER, Chief Justice.

This case comes before us on appeal by the defendant, Thomas Gatone, from a judgment of conviction entered after a jury trial in Superior Court of two counts of robbery in the first degree, two counts of conspiracy to commit robbery, and two counts of illegal possession of a firearm by one previously convicted of a crime of violence. The defendant was sentenced to fifty years' imprisonment for each count of first-degree robbery and ten years' imprisonment for each count of conspiracy to commit robbery and illegal possession of a firearm. The trial justice adjudged the defendant a habitual offender and sentenced him to an additional twenty years' imprisonment, the first eight years to be served without the benefit of parole. All sentences are to run concurrently. In support of his appeal the defendant raises several issues. We sustain the appeal in part and remand the case to the Superior Court for a new trial. The facts of the case insofar as pertinent to this appeal are as follows.

At approximately 9:25 p.m. on December 9, 1994, William Loynds (Loynds) was working as a clerk at a Cumberland Farms store in Pawtucket, Rhode Island, when a man he later identified as defendant, entered the store, held out a gun, and demanded the store's money. Loynds was slow to respond, prompting defendant to exclaim that he "wasn't [expletive] joking." He repeatedly demanded that Loynds "hurry-up" and threatened, "I wouldn't have a problem shooting you." After putting cash from the register in a bag, Loynds asked defendant if he wanted the store's food stamps and loose change. The defendant took the stamps but not the change. He then inspected the register for hidden twenties. Before leaving the store, defendant demanded Loynds's money, but Loynds responded that he only had a quarter. Loynds then watched him leave the store. He heard defendant shout, "Let's go," and saw a silver Cadillac with license plate No. MP-588 approach him. The vehicle's passenger-side door swung open, and defendant entered. Loynds telephoned 911, and the police soon arrived at the store. Loynds described the assailant to police as a Caucasian male with a medium complexion, medium to small build, weighing under 170 pounds, approximately five feet seven inches in height, and in need of a shave. He told police that the gunman was wearing tinted sunglasses, a light brown toque hat with matching knit gloves, and a winter jacket. He described the gun used in the robbery as an automatic weapon, silver in color with a rounded barrel. Approximately one week later Loynds identified defendant from a photo array as the person who had robbed him. At trial Loynds testified that the gunman stood approximately two or three feet from him during the course of the robbery and that the store was brightly lit. Loynds also testified that he was certain it was defendant who had committed the robbery.

Maria Louise Pacheco (Pacheco) also testified at trial. She stated that on December 9, 1994, her Cadillac was stolen from a parking lot in Seekonk, Massachusetts. That Cadillac was spotted by a state witness one-tenth of a mile from the Cumberland Farms store sometime after nine o'clock on the evening of the robbery. The witness testified that she was looking outside her front window when a car with its headlights off pulled up across the street. Two men left the car, entered a van nearby, and drove away. The witness became suspicious when the men left the vehicle's windshield wipers on and the driver-side window down despite the driving rain. After no one came back for the car, the witness's husband telephoned police. At trial the witness identified Pacheco's Cadillac as the car that had been abandoned.

Another state witness, Richela Woolley (Woolley), testified that on December 10, 1994, the day following the Cumberland Farms robbery, she, defendant, and Ronald Walsh were at her apartment, getting high on cocaine. According to Woolley, after the cocaine was gone, the three began "scheming" about how to finance their next cocaine purchase. Following a short discussion Woolley and Walsh went to Chalkstone Avenue to "case" a store called "Baskets by Corrie." Sometime thereafter they returned to Woolley's apartment. Walsh then indicated to defendant that it was time to go, and the two men left the apartment and returned approximately twenty-five minutes later with a pocketbook. The men exclaimed that they "didn't get a [expletive] thing." Woolley then left the apartment to purchase more cocaine but was stopped by police, who asked her questions concerning two men driving a burgundy van. Woolley returned to the apartment to inform defendant and Walsh that the police were looking for them. In response the two men fled.

The owner of the basket shop, Corrine Gibalerio (Gibalerio), also testified at trial. She stated that on December 10, 1994, a woman later identified as Richela Woolley entered her shop with a short, heavy-set man. She became suspicious of the duo when she recognized Woolley as the person who had allegedly stolen $1,500 from her shop on a previous occasion. After a short time, however, Woolley and her companion left. Gibalerio testified that approximately thirty minutes later a man wearing a baseball cap and carrying a gun burst into her shop, shouting, "I'm not [expletive] fooling around." He pushed her to the floor, pointed a gun at her face, grabbed an employee's handbag that was lying on the floor, and fled. Gibalerio described the gunman as a Caucasian male with a slight build, five feet five or five feet six inches tall, and clean cut.

Four days later, police showed Gibalerio a photographic array that included a photograph of defendant, but she testified that she was unable to identify him. On January 11, 1995, Gibalerio viewed several men in a physical lineup at the Providence police station. The defendant was among the several men present in the lineup. Gibalerio failed to identify him positively. At trial Gibalerio testified that she had difficulty concentrating during the lineup because during the procedure one individual in the lineup was "making all kinds of distorted features." An officer present during the lineup corroborated Gibalerio's testimony and stated that he "had to knock on the glass because one of the individuals wouldn't look straight ahead." Gibalerio testified that after viewing the lineup she saw defendant's photograph in the Providence Journal-Bulletin newspaper affixed to an article concerning the robbery of her store. Gibalerio testified that upon seeing the photograph, she immediately recognized defendant as the man who had robbed her. She testified that she never read the article dated January 13, 1995, but clipped it from the paper with that intention. Subsequently Gibalerio testified before a grand jury and positively identified defendant from a photographic array as the man who had robbed her on December 10, 1994.

Another state witness, Sergeant Steve Bathgate of the Providence Police Department, also testified at trial. He stated that on December 13, 1994, he and another police officer followed a red van in an unmarked police car through the streets of Providence. He testified that he recognized defendant as the driver of the van and Ronald Walsh as the passenger. When both the van and the unmarked police car were stopped, Officer Bathgate held out his police badge and began to leave his vehicle. In response defendant put the van in reverse and a car chase ensued. During the chase some small plastic bags and a silver object were thrown from the passenger-side window of the van. These objects were later recovered by Detective Phillip Harnett and were identified as a silver handgun and three small plastic bags of a white substance later determined to be cocaine. After the van came to a stop, the police chased both defendant and Walsh on foot. The police apprehended Walsh during the pursuit, but defendant was not arrested until sometime later. Other items seized from the van included an orange and green baseball cap, a black toque hat, sunglasses, and a plastic bag containing a white powdery substance.

Relying on this information and other evidence, the jury found defendant guilty of robbery in the first degree, conspiracy to commit robbery, and illegal possession of a firearm by one previously convicted of a crime of violence. ¹ Following the verdict defendant filed a motion for a new trial, which the trial justice denied. On January 11, 1996, defendant filed a notice of appeal to this court. In support of his appeal defendant raises several issues. Additional facts will be furnished as required to discuss these issues.

I Motion to Suppress Loynds's In- and Out-of-Court Identifications

The defendant claims that the trial justice erred by denying his motion to suppress Loynds's in- and out-of-court identifications of him. He argues that Loynds's out-of-court identification was achieved by the use of an unnecessarily suggestive photographic array and his in-court identification lacked independent reliability. The defendant also argues that Loynds did not have sufficient opportunity to view the perpetrator of the robbery and therefore lacked personal knowledge of the matter as required by Rule 602 of the Rhode Island Rules of Evidence.

When the decision of a trial justice on a motion to suppress is under review, "the duty of the reviewing court is to view the evidence in the light most favorable to the government and apply the 'clearly erroneous' rule." State v. Gomes, 604 A.2d 1249, 1253 (R.I.1992) (quoting State v. Beaumier, 480 A.2d 1367, 1375 (R.I.1984)). Viewing the evidence in the light most...