889 A.2d 153 (R.I. 2005), 2000-409, State v. Mendoza

Docket Nº:2000-409-C.A.
Citation:889 A.2d 153
Opinion Judge:OPINION Chief Justice WILLIAMS, for the Court.
Party Name:STATE v. Antonio MENDOZA.
Attorney:Aaron L. Weisman, Providence, for Plaintiff., Janice M. Weisfeld, Providence, for Defendant., Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ. Aaron L. Weisman, Providence, for Plaintiff., Janice M. Weisfeld, Providence, for Defendant.
Case Date:November 30, 2005
Court:Supreme Court of Rhode Island

Page 153

889 A.2d 153 (R.I. 2005)



Antonio MENDOZA.

No. 2000-409-C.A.

Supreme Court of Rhode Island

November 30, 2005

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[Copyrighted Material Omitted]

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Aaron L. Weisman, Providence, for Plaintiff.

Janice M. Weisfeld, Providence, for Defendant.



WILLIAMS, Chief Justice

The defendant, Antonio Mendoza (defendant), appeals from a Superior Court judgment of conviction on four separate counts: (1) delivery of a controlled substance; (2) conspiracy to violate the Rhode Island Controlled Substances Act; (3) possession of marijuana; and (4) resisting arrest. The defendant was sentenced to ten years imprisonment for each of the delivery and conspiracy counts, with two years to serve and eight years suspended. The defendant received one year to serve for both the possession and resisting arrest counts. All sentences are to run concurrently.

This case came before the Supreme Court for oral argument on September 26, 2005, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments and examining the record and the memoranda that the parties filed, we are of the opinion that cause has not been shown, and shall proceed to decide the case at this time. For the reasons set forth in this opinion, we affirm the judgment.


Facts and Travel

At about 9:30 p.m. on March 18, 1998, undercover Detectives Angelo A'Vant (Det. A'vant) and Fabio Zuena (Det. Zuena) of the Providence Police Department were patrolling the area of Public and Broad Streets in Providence in response to numerous complaints of drug activity. While creeping along in an unmarked vehicle, the detectives were approached by Robert Clement (Clement), who asked if the officers were looking for "rock," or crack cocaine. The detectives responded in the

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affirmative, and Clement told the pair to follow him to Daboll Street, approximately one block from their present location.

When the detectives arrived at Daboll Street a short time later, Clement again approached the vehicle and beckoned Det. A'Vant to follow him. Detective A'Vant complied, and Det. Zuena remained in the vehicle. Clement led Det. A'Vant a few houses over to 55 Daboll Street, and into an unattached garage toward the rear of the property. Here, Det. A'Vant handed Clement a marked $20 bill, presumably as prepayment for the crack cocaine. Clement then rang a doorbell inside the garage, and a few moments later defendant and a second man emerged from the rear of the Daboll Street dwelling.

The defendant immediately began berating Clement for bringing a stranger to the property. Clement attempted to assuage the defendant's ire by handing him the $20 bill, which defendant snatched from Clement's hand. The defendant and Clement then entered the dwelling through the rear door.

Detective A'Vant testified that no more than a minute later defendant and Clement reemerged from the same door. The defendant apparently still was expressing his dissatisfaction with Clement's decision to bring a stranger by the house when Det. A'Vant saw defendant hand Clement a clear bag. The substance in the bag later tested positive for crack cocaine. Clement and Det. A'Vant then walked together back to the unmarked vehicle a few houses away. After the two got into the car, Clement handed the clear bag to Det. A'Vant and the two detectives identified themselves as police officers, placing Clement under arrest.

A short time later, Detectives A'Vant and Zuena returned to 55 Daboll Street with at least two other officers from their unit to arrest defendant. They entered the backyard and identified themselves as police officers. Detectives A'Vant and Zuena then approached the rear entrance of the dwelling, again identifying themselves as police officers, and they observed defendant in the kitchen. Once defendant saw the pair, he turned and fled toward the front of the house. Detective Zuena tackled defendant to the floor and, with Det. A'Vant's assistance, the detectives placed defendant under arrest after a brief struggle. A subsequent search of defendant did not produce the money.

At the police station, the detectives searched defendant and uncovered three bags of marijuana on his person.

The defendant was charged by criminal information with delivery of a controlled substance in violation of G.L.1956 § 21-28-4.01(A)(2)(a), conspiracy to violate the Rhode Island Controlled Substances Act in violation of § 21-28-4.08, possession of marijuana in violation of § 21-28-4.01(C)(1)(b), 1 and resisting arrest in violation of G.L.1956 § 12-7-10. After a jury trial on February 18, 2000, defendant was found guilty on all four counts. 2 The defendant filed a timely notice of appeal. 3

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The defendant makes four arguments on appeal: first, that the trial justice erred in denying his motion to pass the case; second, that the trial justice erred in denying his motion for judgment of acquittal; third, that the trial justice erred by giving a flight instruction to the jury; and fourth, that the trial justice erred by allowing the state to impeach Clement with his guilty plea. The specifics of each contention and relevant facts follow.


Denial of Motion to Pass the Case

The defendant argues that the trial justice erred in denying his motion to pass the case for two reasons. First, he contends that the state, in purported contravention of the Superior Court Rules of Criminal Procedure, failed to notify or furnish the defense, pursuant to a discovery request, with a copy of a statement defendant made to Det. A'Vant at the time of his arrest. Second, defendant claims that the state's question attempting to elicit this same statement at trial was, by itself, so prejudicial and inflammatory to the jury that its effects were beyond cure.

The facts relevant to both defendant's nondisclosure and incurable prejudice arguments are as follows. Detective A'Vant testified on direct examination that at some point after finally succeeding to secure defendant on the night of his arrest, he asked defendant where the marked $20 bill was. The defendant made no response to the detective. On September 8, 1999, defendant had filed a discovery motion that tracked, verbatim, Rule 16(a)(1) of the Superior Court Rules of Criminal Procedure: "[A]ll relevant written or recorded statements or confessions, signed or unsigned, or written summaries of oral statements or confessions made by the defendant, or copies thereof[.]" The defendant's response to Det. A'Vant was not included in the materials remitted by the state pursuant to that discovery request because, as noted by the trial justice, the contents of defendant's statement "[were] never transcribed by pencil, pen, or electronic means."

During direct examination of Det. A'Vant, the state elicited that he had asked defendant the whereabouts of the marked $20 bill. The state followed with the obvious query--"And did he respond to you?"--and defendant objected. The trial justice excused the jury and allowed a limited voir dire of the witness to ascertain his anticipated testimony. The defendant immediately moved to have the trial justice pass the case, citing both a nondisclosure violation and incurable prejudice from the state's unanswered query. At voir dire, Det. A'Vant testified about defendant's alleged response to his post-arrest question, and also stated that he first told the prosecution of the undisclosed reply during his direct examination. After sustaining defendant's objection and striking the state's question, the trial justice cautioned the jurors and confirmed their ability to comply with his admonition. 4

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At the outset we note that "[a] motion to pass a case is viewed for all intents and purposes as identical to a motion for a mistrial." State v. Disla, 874 A.2d 190, 198 (R.I.2005) (quoting State v. LaRoche, 683 A.2d 989, 999 (R.I.1996)). "[I]t is well-settled law that motions to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice." State v. Oliveira, 774 A.2d 893, 912 (R.I.2001) (quoting State v. Figueroa, 673 A.2d 1084, 1091 (R.I.1996)). "The reason we vouchsafe such broad power in the trial justice in this regard is 'that he or she possesses a "front-row seat" at the trial and can best determine the effect of the improvident remarks upon the jury.' " Id. Thus, "[a] trial justice's ruling on a motion for a mistrial is entitled to great weight and will not be disturbed on appeal unless...

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