State v. Andrade

• Decision Date: 05 July 1988
• Docket Number: No. 87-363-C,87-363-C
• Citation: 544 A.2d 1140
• Court: Rhode Island Supreme Court
• Parties: STATE v. Norberto ANDRADE. A.

Page 1140

544 A.2d 1140

STATE v. Norberto ANDRADE.

No. 87-363-C.A.

Supreme Court of Rhode Island.

July 5, 1988.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Asst. Atty. Gen., for plaintiff.

Barbara Hurst, Paula Rosin, Asst. Public Defenders, for defendant.

OPINION

MURRAY, Justice.

The defendant appeals from a Superior Court conviction after a jury trial of burglary, sexual assault, larceny, and assault with a dangerous weapon in a dwelling house. The defendant raises a number of issues on appeal: (1) the admission of Sergeant John Seebeck's testimony that the victim's description made him think specifically of the defendant, (2) the trial justice's failure to instruct the jury properly about identification testimony, (3) the trial justice's denial of the defendant's motion to suppress out-of-court identification, and (4) the denial of the defendant's pretrial motion to suppress the in-court identification by the complaining witness. We affirm the conviction.

This case arises from the August 3, 1985 sexual assault and burglary at the apartment of Maria Alves (Alves) in Pawtucket, Rhode Island. At approximately 4:30 a.m. Alves awoke and heard noises but fell back to sleep. When she was again awakened by noises at 5 a.m., she arose and turned on her bedroom light. Alves saw standing in her bedroom doorway a man whom she later identified as defendant, Norberto Andrade.

Alves noticed that defendant had her wallet in one hand and a brown-handled knife with silver edges in the other. The defendant asked her for money, and she replied that she had none. He pushed her against the wall and held the knife to her throat. From his pocket defendant removed her Christmas Club book from which he took $40. The defendant then pushed Alves onto the bed and forced her to engage in sexual intercourse. Although the bedroom light was off, Alves testified that she could see defendant's face by light that filtered into her bedroom from a street lamp. During the sexual assault defendant repeatedly ordered Alves to keep her eyes closed. She testified that because she continued to look at him, he eventually threw a blanket over her head. She stated that when she began to cry, defendant removed the blanket. Thereafter defendant got up, put his pants on, and then picked Alves up and threw her back onto the bed, which broke upon impact. When defendant left, Alves went downstairs to her landlady's apartment and called the police.

Sergeant John Seebeck of the Pawtucket police responded, and Alves described her assailant as a Hispanic or Portuguese male in his twenties, approximately five feet four inches tall with brown hair, wavy in the back. She described him as wearing a white shirt, blue jeans, and sneakers. She also stated that he had a moustache and two or three days growth of beard. She stated to Sergeant Seebeck that defendant spoke with a Portuguese accent. He examined the apartment and found a partially open window leading to the fire escape and also observed a collapsed bed.

Sergeant Seebeck made the association between the particular physical attributes Alves described and those of Norberto Andrade, whom Sergeant Seebeck had known for ten years. Approximately three weeks after the incident Sergeant Seebeck photographed defendant. Alves was shown a photo array from which she selected a photograph of defendant and identified him as her assailant.

I

The defendant alleges that the trial justice committed reversible error by permitting Sergeant Seebeck to testify that upon hearing Alves's description of her assailant, he thought specifically of defendant. The defendant relies on State v. Nicoletti, 471 A.2d 613 (R.I. 1984), where we held that a police officer's testimony concerning his opinion of the description given by the complaining witness was not admissible because his opinion was based on facts that the jurors could have independently analyzed. We concluded that the inclusion of his testimony constituted prejudicial error. We believe that defendant's reliance on Nicoletti is misplaced.

In the case before us the trial justice, after hearing voir dire testimony, concluded that Sergeant Seebeck's testimony was relevant to demonstrate to the jury how defendant's photograph came to be in the photo array viewed by Alves. Thus he permitted Sergeant Seebeck to testify that Alves's description brought to his mind Norberto Andrade and that consequently he photographed defendant and forwarded the photograph to the investigating officer, who included it in the photo array. The trial justice stated,

"You have a situation where, insofar as this police officer is concerned, something clicked in his mind. And I think that those are facts we just can't ignore, even though it might be somewhat prejudicial to the defendant. But I do believe * * * it is evidence that the state has a right to present before the jury."

In Nicoletti the police officer offered his opinion of the accuracy of the witness's description of the defendant. In the instant case Sergeant Seebeck merely described the impact that the witness's description had on his thoughts, particularly the degree to which he was able to associate the physical attributes described by Alves with those of defendant, whom he had known for ten years. Sergeant Seebeck's testimony served to explain the events that precipitated the inclusion of defendant's photograph in the array. We are of the opinion that the trial justice properly concluded that Sergeant Seebeck's testimony was relevant.

We have established that relevant evidence is any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Estrada, 537 A.2d 983, 988 (R.I. 1988); State v. Wheeler, 496 A.2d 1382, 1388 (R.I. 1985). The well-settled rule in this jurisdiction with regard to the admissibility of evidence, when opposed by an objection of relevancy, is that the issue is a discretionary matter to be resolved by the trial justice. State v. Estrada, 537 A.2d at 988. We shall not disturb the trial justice's ruling unless it constitutes a prejudicial abuse of discretion. Id. In the instant case, the trial justice carefully reviewed defendant's objection to allowing Sergeant Seebeck's testimony and acknowledged that although somewhat prejudicial, it was outweighed by the probative value of informing the jury how defendant's photograph came to be among those viewed by Alves. We cannot rule that this was an abuse of discretion that unduly prejudiced defendant. Therefore, we shall not disturb the trial justice's ruling.

II

The defendant contends that the trial justice erred in failing to instruct the jury properly in regard to identification testimony. We believe that the jury instructions were sufficient and therefore proper.

The trial justice refused to give various jury instructions proffered by defendant, specifically regarding identification testimony. The requests were as follows:

"Request No. 19

There are five (5) factors to be considered by you, the triers of fact, in determining reliability of eyewitness identifications of defendants: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation or confrontations, (5) the length of time between a crime and the confrontation between the eyewitness and the defendant. All these factors, not any alone, may be considered by you in determining the reliability of the eyewitness testimony in this case. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. [Parker], 472 A.2d 1206 (R.I. 1984)."

"Request No. 20

You need only view the identification testimony with caution if the witness's opportunity for positive identification was not good, if her testimony was qualified, if her positive statements were weakened by cross examination or by a failure to identify the defendant on one or more prior occasions, or if the accuracy of her testimony was otherwise doubtful. State v. Lewis, 115 R.I. 217, 341 A.2d 744 (1975)."

"Request No. 21

Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later. In appraising the identification testimony of a witness, you should consider the following: (1) are you convinced that the witness had the capacity and an adequate opportunity to observe the offender? (2) are you satisfied that the identification made by the witness subsequent to the offense was the product of his or her own recollection? You may take into account both the strength of the identification made here and the circumstances under which the identification was made; (3) you may take into account any occasions in which the witness failed to make an identification of the defendant or made an identification which was inconsistent with the identification at trial; (4) you must consider the credibility of the identification witness in the same way as any other witness, that is consider whether he or she is truthful, and consider whether he or she had the capacity and opportunity to make a reliable observation on the matter covered in his or her testimony. United States v. Telfaire, 469 F.2d 552 (D.C.Cir. 1972)."

However, the trial justice did instruct the jury on the issue that the state had to prove beyond a reasonable doubt that defendant was in fact the perpetrator of the crimes alleged. We have held that "a trial justice is not required to give specific instructions requested by a party so long as the charge of the trial justice adequately covers the subject matter relating to the request." State v. Fenner, 503 A.2d 518, 525 (R.I. 1986). This...