State v. Disla

• Decision Date: 26 May 2005
• Docket Number: No. 2003-74-C.A.,2003-74-C.A.
• Parties: STATE v. Danilo DISLA.
• Court: Rhode Island Supreme Court

874 A.2d 190

STATE v. Danilo DISLA.

No. 2003-74-C.A.

Supreme Court of Rhode Island.

May 26, 2005.

Aaron L. Weisman, Providence, for Plaintiff.

Paula Rosin, Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

SUTTELL, Justice.

This matter came before the Supreme Court on the appeal of the defendant, Danilo Disla,¹ from a judgment of conviction entered in the Superior Court. A jury found the defendant guilty of one count of delivering a controlled substance, to wit, heroin, as well as one count of conspiring to violate the Rhode Island Controlled Substances Act, G.L. 1956 chapter 28 of title 21, by agreeing to deliver a controlled substance. A trial justice of the Superior Court sentenced the defendant to fifteen years on each count, with three years to serve and twelve years suspended, with twelve years of probation, both sentences to run concurrently. A judgment of conviction was entered on January 29, 2002, from which the defendant appealed.²

The defendant contends on appeal that the evidence presented by the prosecution at trial was legally insufficient to support the conspiracy conviction, and thus the trial justice erred by denying his motion for judgment of acquittal. On this point, the state agrees and concedes that it presented insufficient evidence at trial to support the charge of conspiracy beyond a reasonable doubt. In addition, defendant asserts that the trial justice erred in refusing to pass the case on two occasions during the trial; once after Det. Fred E. Rocha, a witness for the state, testified that the alleged coconspirator was a known narcotics user; and again, after the same witness testified that two days before the alleged drug transaction, he had taken a photograph of Disla crossing the intersection that Det. Rocha had under surveillance and where the alleged transaction took place. For the reasons stated below, we reverse the judgment of the Superior Court on the conspiracy count and affirm the judgment on the delivery count.

Facts and Procedural History

The incident that gave rise to defendant's conviction occurred on March 22, 1996. On that day, defendant was arrested and charged with conspiring to violate the Rhode Island Controlled Substances Act in violation of § 21-28-4.08. The defendant later was charged by criminal information, on June 6, 1996, with delivering a controlled substance in violation of § 21-28-4.01(A)(2)(a)³ and with conspiring to violate the Rhode Island Controlled Substances Act in violation of § 21-28-4.08. The defendant's trial commenced on July 11, 2000. The state's primary witness was Det. Rocha, a Providence Police detective, with five or six years experience as a narcotics investigator. He testified that in March 1996, he was conducting surveillance of suspected drug activity in the area of Broad and Warrington Streets in Providence. On the morning of March 22, 1996, he was positioned inside a building on Broad Street, overlooking the intersection of Broad and Warrington Streets at a distance of approximately forty feet. The detective testified that at approximately 10:15 a.m., he observed defendant standing at the corner and talking with several people. After a short conversation, defendant went into a convenience store at the corner, left shortly thereafter, and then turned down Warrington Street, where he disappeared from Det. Rocha's view. The detective testified that at about the same time he observed and recognized Bryan Kenner, the alleged coconspirator, whom he described in court as "a narcotic user." The defendant's counsel immediately objected and requested to be heard.

At sidebar, defendant's counsel moved to pass the case, saying defendant would be prejudiced because the jury would use this statement to find him guilty by association. The trial justice then excused the jury and conducted a voir dire of Det. Rocha to establish the foundation and probative value of his knowledge of Kenner as a drug user. When the trial resumed the next morning, the trial justice sustained counsel's objection and struck the answer. She declined, however, to grant a mistrial, saying that Det. Rocha's comment could be cured by a cautionary instruction because it was said "about the third party Kenner who is going to be connected to drugs." Arguing that it was too late to "unring this bell," defendant's counsel took exception to "whatever cautionary instruction" the court might give.

After the trial justice gave a cautionary instruction to the jury, Det. Rocha continued his testimony and said that with the help of binoculars he saw defendant and Kenner "engage in an exchange of hands which is consistent with narcotic activity." He elaborated that he observed Kenner walk up to defendant and engage in a short conversation followed by "an exchange of two hands." This exchange involved Kenner handing defendant an undetermined amount of currency with one hand and receiving items from defendant with the other hand. Detective Rocha described it as "a very quick exchange," lasting only ten to fifteen seconds.

Detective Rocha testified that he next observed Kenner get into a green Volvo that had just pulled up to the side of the street where the suspected drug transaction had taken place. As soon as Kenner got in the car, the detective saw him hand the items he had just received from defendant to the driver of the vehicle. He made it clear that what Kenner handed to the driver of the Volvo was "the package he received from the defendant," in exchange for money. The Volvo then drove off with Kenner, and Det. Rocha lost sight of it. He then radioed Patrolman William McCusker, who was stationed nearby in a marked police cruiser.

On redirect examination, the prosecution referred Det. Rocha to a photograph marked State's exhibit 1 for identification. When asked how he recognized that picture, Det. Rocha responded "[i]t's a picture that I took when I was doing surveillance, a picture of the defendant when I was doing surveillance." After this comment, defendant's counsel sought to be heard at sidebar. Subsequently, the trial justice ordered another voir dire examination of Det. Rocha outside the presence of the jury to establish a foundation. The defendant's counsel then, again, moved for a mistrial, saying the witness's reference to the picture prejudiced his client. The trial justice, however, denied the motion and gave another cautionary instruction to the jury. When Officer McCusker took the stand during the state's case, he testified that he was asked over the radio by Det. Rocha on the morning of March 22, 1996, to stop a Volvo traveling on Elma Street, just off Broad Street. He stopped the vehicle on Elma Street near Prairie Avenue and ordered the driver and passenger out of the car. Officer McCusker then searched the driver and recovered several small packets of heroin from his pocket, which he then turned over to a detective.⁴ During his testimony Officer McCusker identified packets of drugs shown to him as those seized from the driver of the Volvo. The officer identified the passenger as Bryan Kenner. Detective Rocha, who also had been shown the packets of heroin during his testimony, noted that they had the same appearance as the items he observed during the transaction involving defendant and Kenner, but was unable to say whether they were indeed the same items.

At the close of the state's case, defendant's counsel made a motion for judgment of acquittal on both counts. On count 1, delivery of a controlled substance, he argued that even in the light most favorable to the state there was insufficient evidence to prove delivery because the drugs seized from the driver of the Volvo could not be established to be the same as those defendant allegedly gave to Kenner. Concerning count 2, conspiracy, defendant's counsel argued that in the light most favorable to the state there was no evidence presented that an agreement existed between defendant and Kenner, and that defendant had no knowledge of "what Mr. Kenner was going to do with [the drugs]." The trial justice denied the motion for judgment of acquittal on both counts, but expressed her concern that at no point during the trial was there an in-court identification of defendant as the person involved in the reported drug transaction. With regard to the conspiracy count, the trial justice said that

"conspiracies are very difficult to prove but for circumstantial evidence and although there is no direct evidence that the defendant knew that Kenner was not going to use the drugs for personal use but was going to turn around and sell them to someone else and did not enter into an agreement with Kenner for that subsequent transaction, I think that the jury could, in fact, draw a reasonable inference that there was a conspiracy considering that the crime of conspiracy often is proven by circumstantial evidence."

The defendant then testified on his own behalf through an interpreter and gave a very different account of the events on March 22, 1996. He testified that around 10 in the morning on that day he was in the Popular Market convenience store at the corner of Broad and Warrington Streets, reading a Dominican newspaper. At some point he went next door to Petro's Restaurant to buy some food, which he took back to the store. He went on to say that while he was sitting near the cash register eating and reading the newspaper, a dark-skinned man ran into the store and into the back, followed by a uniformed police officer. He said that the police officer had his gun drawn and arrested the man. The defendant then testified that the police officer asked him whether he had seen that man throw anything on the floor. Ten or fifteen minutes later, defendant said, a dark-skinned police officer came into the store and searched him by pulling down his pants and searching him in the area of his groin and anus while other customers were watching. A detective then...