State v. DePina

• Decision Date: 03 December 2002
• Docket Number: No. 2000-461-C.A.,2000-461-C.A.
• Citation: 810 A.2d 768
• Parties: STATE v. Jorge DePINA et al.
• Court: Rhode Island Supreme Court

810 A.2d 768

STATE v. Jorge DePINA et al.

No. 2000-461-C.A.

Supreme Court of Rhode Island.

December 3, 2002.

Present: WILLIAMS, C.J., LEDERBERG, FLANDERS, and GOLDBERG, JJ.

Lauren Sandler Zurier, Providence, for Plaintiff.

Lauren E. Jones, David A. Cooper, John A. MacFadyen, III, Providence, for Defendant.

OPINION

LEDERBERG, Justice.

The defendants, Jorge DePina (DePina), Joao Monteiro (Monteiro), and Gildo Teixeira (Teixeira),¹ have appealed the entry of judgments of conviction of first-degree murder and conspiracy to commit first-degree murder. They have raised several claims of error, including the trial justice's cross-examination rulings at the suppression hearing and at trial, defects in the jury instructions, and the denial of their motions to sever and for a new trial. We briefly summarize the facts and the procedural history of the case before addressing these issues.² We conclude by denying and dismissing the appeals of DePina and Monteiro, and affirming their judgments of murder and conspiracy; with respect to Teixeira, we affirm the judgment of conspiracy and vacate the judgment of conviction of murder. The Court is evenly divided on whether the state can retry Teixeira on the vicarious liability for murder count.

Facts and Procedural History

In the early morning hours of December 28, 1997, Joao Resendes (Resendes) was stabbed during a fight outside a Providence club, referred to in the record as Club International or International Club, and died shortly thereafter at a hospital. In April 1998, the defendants were indicted on murder and conspiracy to murder charges, in violation of G.L.1956 §§ 11-1-6 and 11-23-1.

The evidence at trial consisted primarily of eyewitness testimony provided by Elma Braz (Braz), Nilton Pires (Pires), and Gelci Reverdes (Reverdes), who described the events they observed while an estimated 100 patrons left the club at its 2 a.m. closing time. The three witnesses testified that they had seen the fight in which Resendes was killed, and they described each defendant's participation in the encounter.

The key issues at trial were the reliability and accuracy of these eyewitness accounts and their in-court and out-of-court identifications, concerning which DePina and Monteiro filed pretrial motions to suppress. The trial justice denied the motions, finding that the witnesses' identifications of defendants were within constitutional limits. The defendants argued that the trial justice erred when he limited the scope of their cross-examinations on police procedures that might have influenced witnesses' responses and on the accuracy of the identifications in light of the context of the events.

DePina and Monteiro also filed pretrial motions to sever their trial from Teixeira's, citing potentially antagonistic defenses. Monteiro withdrew his motion, but DePina maintained his. The trial justice denied the motion, and the three defendants were tried jointly.

At the close of the state's presentation, all defendants filed motions for judgments of acquittal on both counts. The trial justice denied the motions of Monteiro and DePina, but granted Teixeira's motion with respect to the murder count, finding that the state had presented no evidence that Teixeira had aided or abetted the murder. The trial justice, however, said to counsel at sidebar that he would allow the jury to consider Teixeira's culpability for murder as a coconspirator on a vicarious liability theory. At the close of the trial, all defendants filed motions for new trials. The trial justice denied the motions and imposed on each defendant the mandatory life sentence on the first-degree murder count. Teixeira received a five-year concurrent term on the conspiracy count, on which count DePina and Monteiro received a ten-year concurrent term. Additional facts will be presented in discussing defendants' claims of reversible error on appeal.

Opening Statements

DePina, Monteiro and Texieira argued that the trial justice committed reversible error by barring them from commenting in their respective opening statements on evidence that they expected to elicit from the state's witnesses on cross-examination.³ We disagree. Rule 26.2 of the Superior Court Rules of Criminal Procedure permits a defendant to make an opening statement prior to the introduction of evidence by the state or justbefore presenting his or her case. This Court has thus far narrowly applied this rule, holding that "[t]he proper function of an opening statement is to apprise the jury with reasonable succinctness what the issues are in the case that is about to be heard and what evidence the prosecution and the defense expect to produce at trial in support of their respective positions." State v. Byrnes, 433 A.2d 658, 664 (R.I.1981). In Byrnes, we affirmed a trial justice's denial of the defendant's request to make an opening statement, asking the jury to consider, among other things, aspects of the witnesses' testimony that would be developed on cross-examination. Id.; see also State v. Bleau, 649 A.2d 215, 217 (R.I.1994)

(affirming the trial justice's limiting defense counsel's opening statement to what would be presented in the defense case in chief).

In State v. Turner, 746 A.2d 700, 704 (R.I.2000) (per curiam), we affirmed this precedent, but commented on the qualitative difference between a case in which the defense counsel refused to specify the evidence he would elicit on cross-examination and a case in which a defendant could specify both the information he would elicit on cross-examination and the evidence he would present. Turner then cited two Massachusetts cases which suggested that defendants should be permitted to include in their opening statements evidence they reasonably expected to elicit on cross-examination. Id. (citing Commonwealth v. Dupree, 16 Mass.App.Ct. 600, 453 N.E.2d 1071, 1073-74 (1983); Commonwealth v. Medeiros, 15 Mass.App.Ct. 913, 443 N.E.2d 900, 901 (1983)). In their appeal, defendants have asked this Court to apply this dicta from Turner to hold that the trial justice erred in limiting their opening arguments. We decline to do so.

Opening statements do not afford defendants either an opportunity for argument or an opportunity to impeach the state's witnesses. Rather, opening statements are limitedto discussing evidence that counsel hopes to introduce through witnesses. Such evidence may include affirmative evidence that the defendant reasonably expects to solicit on cross-examination of a witness, provided that counsel brings that evidence to the trial court's attention. Turner, 746 A.2d at 704 (holding that the trial justice's refusal to permit the defendant to make an opening statement was not error when the "defendant neither stated definitively that he would be presenting evidence, nor did he specify the information that he hoped to elicit on cross-examination"). The requirement that the evidence be affirmative evidence bars the introduction of impeaching admissions that defendant expects to elicit on cross-examination. Consequently, it is incumbent upon a trial justice to exercise discretion in determining whether evidence indicating that a witness lacks knowledge is an impeaching admission or, instead, represents affirmative evidence suitable for inclusion in an opening statement.

The fact that witnesses were unable to give responsive answers to counsels' questions did not constitute such affirmative evidence. Rather, their responses were admissions of unobserved details that defendants did, in fact, elicit on cross-examination during the suppression hearing. Consequently, the trial justice did not abuse his discretion by limiting defendants' opening statements.

Scope of Cross-examination

DePina and Monteiro alleged that the trial justice's restrictions on their cross-examinations at the suppression hearing and at trial resulted in reversible error. We disagree.

DePina and Monteiro have argued that the trial justice's rulings at the suppression hearing precluded them from "eliciting pivotal testimony on the suggestibility andreliability concerns [regarding eyewitness identifications]." They contended that without this testimony, the trial justice could not have made an "omniscient suppression decision" on their motion to suppress the witnesses' identifications. They further argued that the identifications were not reliable, and that the trial justice's rulings prevented them from probing the unreliability of the identifications.

Despite these allegations, defendants have not challenged the admission of the witness identifications on appeal. Objections to eyewitness identification may be challenged before trial in one of two ways: first, by evidence pursuant to Rule 602 of the Rhode Island Rules of Evidence that the witness is not competent to testify, State v. Spratt, 742 A.2d 1194, 1199-1200 (R.I.1999); and, second, on due process grounds. See State v. Andrade, 657 A.2d 538, 541 (R.I.1995)

(holding that the latter inquiry requires this Court on review to "determine whether the totality of the circumstances discloses procedures that were `so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law'").

On appeal, defendants have specifically disclaimed both of these approaches to challenging the identifications of eyewitnesses. They argued, rather, that the trial justice's rulings prevented them from conducting an "appropriate identification-suppression inquest." This Court, however, does not review objections to a trial justice's rulings on cross-examination to determine whether the inquest was appropriate. We review such claims of erroneous rulings for an abuse of discretion, and we shall overturn a trial justice's rulings only when such abuse constitutes prejudicial error. State v. Roderigues, 656 A.2d 192, 194 (R.I.1995).

Contrary to defendants' claim that there was a prejudicial restriction on cross-examination,...