State v. Rivera

• Decision Date: 19 November 2003
• Docket Number: No. 2001-13-C.A.,2001-13-C.A.
• Citation: 839 A.2d 497
• Parties: STATE v. Firlando RIVERA.
• Court: Rhode Island Supreme Court

839 A.2d 497

STATE v. Firlando RIVERA.

No. 2001-13-C.A..

Supreme Court of Rhode Island.

November 19, 2003.

Catherine A. Gibran, Esq., Providence, for Plaintiff.

Marcy Coleman, Esq., for Defendant.

Before WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY and SUTTELL, JJ.

OPINION

FLAHERTY, Justice.

This case comes before us on the appeal of the defendant, Firlando Rivera (Rivera or defendant), from a judgment of conviction entered in the Superior Court pursuant to a jury verdict finding him guilty of first-degree murder and three firearm charges.¹ After the jury rendered its verdict, the defendant made a motion for a new trial, which was denied after hearing. The trial justice sentenced the defendant to a mandatory sentence of life imprisonment for murder, and a ten year suspended probationary term and two ten-year jail terms, to run concurrently with the life sentence, for the firearm charges. The defendant was also sentenced to an additional twenty years of non-parolable jail time after the trial justice declared him to be a habitual offender. The defendant raises on appeal the sole argument that the trial justice erred in denying his motion for a new trial. For the reasons set forth herein, we affirm the judgment of the Superior Court. The facts of the case pertinent to this appeal are as follows.

Facts and Travel

The tragic facts of this case resulted in the extinguishment of one young life and caused another to be irretrievably altered. In the early morning hours of November 23, 1997, the victim, Edward "Chipper" Wilson IV, and his friend Robert K. Rhoads arrived at the Weiner Palace in Woonsocket for a late night bite after an evening out. As they were conversing with two female employees and the owner of the establishment, defendant, nicknamed "Hippy," and three male friends entered the Weiner Palace. Although some derogatory comments were exchanged between members of each group of men, Wilson and his friend made an uneventful exit from the restaurant and headed back to their parked vehicle. Before he got to the vehicle, however, Wilson noticed defendant staring at him from the front window inside the Weiner Palace. Wilson, who was a martial arts instructor, challenged defendant to come outside. The defendant complied, and the two exchanged profanities and blows, resulting in defendant's being knocked to the pavement. At some point, defendant's friends also became involved in the scuffle. At trial, Rhoads testified that defendant pulled out a metal object and hit Wilson over the head with it. At this point Wilson fled down the hill in a direction away from the Weiner Palace. By several eyewitness accounts, Wilson was pursued by defendant. Shots were fired and Wilson was struck twice, once in the abdomen and once in the head, the wound that proved to be fatal.²

Although no eyewitness could testify seeing defendant fire the bullet that killed Wilson, the state presented several witnesses throughout the course of the six-day trial who testified to having seen defendant with a weapon and heading in the direction of where Wilson fled just before Wilson was shot. The two waitresses on shift at the Weiner Palace, Heather Cournoyer and Michelle Oliveira, gave consistent testimony about the events that unfolded that evening. Each testified that, from their vantage point inside the Weiner Palace, they had seen defendant pull out a gun, cock it, and walk in the direction of the victim. Each then heard what sounded like a thud and then a gunshot ring out in rapid succession. John Muniz, one of defendant's friends involved in the fight, told police that he saw defendant in possession of a gun and that he saw him pull it back and cock it as the victim fled. However, Muniz later recanted this version of events while testifying for the state. At trial he said that defendant had never had a gun and that it was only upon threats by police that he placed a gun in defendant's hands. Rhoads, Wilson's friend, testified that he saw defendant pointing a gun at Wilson, heard a gunshot and saw his friend fall. Rhoads heard a second gunshot while running away. Michael Cote, a customer at the Weiner Palace, testified that although he never saw a weapon in defendant's hands, defendant was involved in a confrontation with Wilson, and that he heard a scuffle outside the restaurant, followed by two gunshots about fifteen seconds apart.

Evidence was presented at trial that positive identifications of defendant were made using a series of photo packs shown to witnesses not more than a day after the shooting. Cournoyer, Oliveira, and Rhoads all selected defendant's photo from one of several photo packs. At trial almost two years after the incident, only Oliveira, among these three witnesses, was able to make a positive in-court identification of defendant. However, other witnesses, including three of his friends, were able to identify defendant at trial as the same man referred to as "Hippy." Rhoads and Cournoyer did not recognize defendant as the same man they had seen that night. All three witnesses, however, did testify that they were confident in their selection of defendant's photo at the time following the incident and that the man in the photo was the assailant. Furthermore, Cournoyer and three police sergeants involved in the case testified that defendant looked significantly different at trial than he did at the time of the crime. These physical changes included a gain in weight, a haircut, shave of facial hair, and the addition of glasses.

In additional to the abovementioned witnesses, the state presented additional evidence of suspicious behavior by defendant in the hours following the murder. Wanda Vasquez, a friend of defendant, testified that defendant asked her on the morning after the murder to care for a dog in his care because he had to go out. Hector Rodriguez, another friend, testified that he gave defendant a ride to Providence later that day so that defendant could "get out of Woonsocket." Finally, evidence was presented to establish that Maribel Albino, the sister of defendant's then-girlfriend, told police that on the evening after the murder, defendant told her he had been in a fight with a white man and that he spoke of going to a hotel. However, she recanted this story on the stand.

In his appeal, defendant contends that the trial justice was clearly wrong to deny his motion for a new trial because the verdicts were against the weight of the evidence and failed to do substantial justice. He urges that there was insufficient evidence to establish beyond a reasonable doubt that he was the person who murdered Wilson. The defendant offers three arguments in support of this assertion. First, he faults the identification procedures the police used to implicate him as the shooter. Concerning the out-of-court identifications, defendant argues that witnesses selected him as the perpetrator from a series of photo packs of questionable neutrality³ and that, much to his detriment, a live lineup was never conducted. Regarding in-court identifications, defendant argues that there was insufficient identification evidence on which to rely for a murder conviction. Of the eyewitnesses that originally picked him out of a photo pack, defendant argues, only Oliveira affirmatively identified him at trial.⁴ Furthermore, defendant argues that the physical descriptions eyewitnesses gave the police just after the incident did not accurately or consistently describe his actual height and weight or the clothing that he wore that night.

The defendant's second argument is that the credible evidence did not establish the crime of first-degree murder. He alleges that the state failed to prove beyond a reasonable doubt that he intended to kill the victim and that he acted with malice aforethought, premeditation, and deliberation. He further contends that the testimony was inconclusive as to the number of shots fired, and that the two shots that were fired went off in rapid succession, with no time for reflection or intent to kill.

Lastly, defendant argues for the first time to this Court that the position of Wilson's body and the entry wounds from the bullets, as the medical examiner testified to at trial, were not consistent with testimony about the relative positions of Wilson and defendant just before the shooting. This, he asserts, should exonerate him as the murderer. The defendant suggests that it was highly improbable that the shooter could have inflicted wounds to the victim's front while pursuing him from behind.

We limit our discussion to defendant's first two contentions regarding the paucity of evidence to identify defendant as the killer or to prove that the crime rose to the level of murder in the first degree. We decline to address defendant's argument about the position of the victim or the location of the entry wounds as grounds for exoneration. The state correctly contends that defendant failed to raise this issue as a basis for new trial in the Superior Court. Therefore, in accordance with our well-established rule, it cannot be raised for the first time on appeal. State v. Kilburn, 809 A.2d 476, 479 (R.I.2002) (per curiam) (citing State v. Breen, 767 A.2d 50, 57 (R.I.2001)). Moreover, because defendant did not identify any of the narrow exceptions to the raise-or-waive rule,⁵ he is now precluded from relying on this argument on appeal. At the hearing on the motion for a new trial, defense counsel never argued the relative position of the victim or the angle of the bullet wounds to support the proposition that the guilty verdict for first-degree murder was against the weight of the evidence and that defendant was physically incapable of inflicting the fatal wound from his position behind the victim. Before this Court at oral argument, defense counsel defended this failure by pointing out that this argument had been raised at trial and that the argument at the hearing on the motion was merely an...