State v. Andrade
| Decision Date | 24 April 1995 |
| Docket Number | No. 94-128-CA,94-128-CA |
| Citation | 657 A.2d 538 |
| Parties | STATE v. Arthur ANDRADE. |
| Court | Rhode Island Supreme Court |
This case came before the Supreme Court on the appeal of Arthur Andrade (defendant) from judgments of conviction on counts of assault with intent to commit robbery (count 1), assault with a dangerous weapon (count 2), entering a building with intent to commit robbery (count 3), and robbery (count 4). Although the grand jury indicted the defendant on thirteen counts, nine counts were severed from counts 1 through 4. After a jury trial in Superior Court, the defendant was sentenced to concurrent terms of twenty years each on counts 1 and 2, ten years on count 3, and fifty years, thirty to serve, twenty suspended and twenty years' probation, on count 4. The defendant was also sentenced to an additional consecutive term of five years as a habitual offender pursuant to G.L.1956 (1994 Reenactment) § 12-19-21.
On appeal defendant argued that the trial justice should have suppressed the out-of-court and in-court identifications made by two witnesses because the identification procedures were unduly suggestive. The defendant further contended that the justice should have granted his motion for judgment of acquittal on counts 2 and 4 because there was no evidence that the gun defendant had used was a dangerous weapon. He also argued that the justice should have instructed the jury not to infer from the fact that the police had photographs of defendant that he had committed these or any other crimes. Last, defendant contended that the justice should have severed counts 1 and 2 from counts 3 and 4. We affirm the judgments. The facts insofar as pertinent to this appeal follow.
On December 10, 1991, at about 9:45 a.m., Sharro Perron (Perron) prepared to leave her Pawtucket apartment to go to work. As she came down the stairs, she was accosted by an armed intruder, who told her not to scream but to go down the basement stairs next to him; he pointed a silver gun at her chest five to six inches away. The intruder asked Perron if there were any drugs in the house, if she had any money, and whether a Spanish person lived on the second floor. When she answered his questions in the negative, he walked backward out of the basement, pointing the gun at her, and told her not to call the police.
Perron testified that the episode lasted about fifteen minutes in the well-lit basement, during which time she looked at the intruder, who was about one foot away from her. She described him as six feet tall, weighing about 175 to 180 pounds, having brownish-red hair, a slight beard and hazel/green eyes and wearing a black sweat shirt and black pants. Perron told the jury she was frightened because her life was threatened and because her eight-month-old baby was upstairs.
Perron testified that after the intruder left, she went to her landlord's apartment to call the police to report the incident. On December 19, 1991, two detectives came by her workplace to show her a set of photographs. After a brief glance at the photographs she picked out the intruder, whom she identified in court as defendant.
Less than a week after the assault and attempted robbery on Perron, Craig Duffin (Duffin) was asleep the morning of December 16, 1991, when he was awakened by a knock on the door of his Pawtucket apartment. A man he had never seen asked, "Is Michael here?" When Duffin answered "No," the man asked if he was on Japonica Street, and Duffin told him that Japonica was the next street over. The man, who was standing about four feet away, turned to leave, but quickly turned back and pointed at Duffin's face a steel-gray firearm, which Duffin thought was probably a 9-millimeter pistol because it did not have a revolver barrel. The intruder told Duffin to lie down on the bed and asked him where his "stash" was located. When Duffin replied that he did not have any drugs, the intruder began to rifle through the bedroom closet, the dining room closet, and Duffin's bureau, from which he took about $100 in cash and a coffee can filled with change. While he was in the dining room, taking apart Duffin's stereo, the intruder said, The intruder took money out of Duffin's girlfriend's purse, then read the name on Duffin's license and said,
The intruder then ordered Duffin off the bed, looked under the mattress for a gun, and told Duffin, "I'm going to shoot a hole in your mattress" but refrained when Duffin pleaded with him not to do so. The intruder then pointed the gun in his possession at Duffin, told him not to move, and added, "Give me five minutes."
Duffin testified that the lighting in the apartment was good, that he looked at the intruder for the ten minutes he was in Duffin's bedroom, and that although he lost sight of the intruder in the nearby dining room, Duffin could still hear him. Duffin described him as about five feet, ten inches tall with brown hair thinning on top, light olive skin, a two-day growth of beard, and a gold hoop earring in his left ear. Duffin stated that the intruder wore a black or dark-blue vest with red trim, a black sweat shirt, and black pants and spoke with an Hispanic accent.
After the intruder left, Duffin called the police. When the police arrived, Duffin gave them a statement and went down to the Pawtucket station where he unsuccessfully tried to build a composite drawing and then spent thirty to forty-five minutes pouring over hundreds of photographs. Duffin identified the intruder from a photograph and told the detective that the man "looked like the person who robbed him" but appeared to be younger than the intruder because in the photograph his hair was thicker and he weighed less. Detective Donald R. Beech (Beech) of the Pawtucket police department told him that the photo was taken in 1985 and that the man's name was Arthur Drury. Beech told Duffin that he would attempt to obtain another photograph.
Three days later, on December 19, 1991, Duffin returned to the police station to look at a photo array comprising six photos. After reviewing the photos for about three seconds, Duffin picked out a photo of the intruder. In court he identified defendant as the person who had entered his house and robbed him and testified that he was frightened when defendant was carrying out the robbery in his apartment.
Several other witnesses testified at trial. Cecilia Santos (Santos), who had had a child with defendant, testified that about two weeks before Christmas in 1991, defendant came to visit her. She noticed he had a silver gun in his trousers. When asked about it, defendant answered that "he had business to take care of." Santos testified that about two months before the November 1993 trial, defendant contacted her to learn what she had told the detectives and to convince her to say she saw defendant with a beeper, not a gun. She told defendant that she would not lie.
Kimberly Page (Page), defendant's girlfriend, testified as an alibi witness. According to Page, on December 16, 1991, defendant, who lived part of the time with her and part of the time with his sister, could not go to his construction job because he was ill with "the flu." Page testified that when his boss came by to drive defendant to work, she took him upstairs to see defendant. Page testified further that she had never seen defendant with a gun, that he did not speak with an Hispanic accent, and that he wore a gold post earring. Page also explained that although she knew defendant as Arthur Drury, defendant also used the surname Andrade, the surname of the man who had married his mother.
John Phillip Somyk (Somyk), defendant's employer, who had known him for about eight years, testified that on December 16, 1991, when he attempted to pick up defendant to drive him to work, defendant was sick. He verified this date with defendant several weeks later, after defendant had been arrested. Somyk stated that he did not have records of the date he went to pick defendant up or of defendant's work dates because he had discarded his old calendar and he paid defendant "under the table." Somyk also testified that defendant did not speak with an Hispanic accent and Somyk did not recall whether defendant wore an earring.
At the conclusion of the state's evidence, the trial justice denied defendant's motion for judgment of acquittal. Before trial, counts 5 through 12 were severed from counts 1 through 4, and during trial, count 13 was severed by agreement of the parties. The jury reached a verdict of guilty on the first four counts. The trial justice denied defendant's motion for a new trial and sentenced defendant, who filed a timely notice of appeal and waived his right to file a prebriefing memorandum.
On appeal defendant claimed that the trial justice erred in denying his motion to suppress the out-of-court and in-court identifications made by Perron and Duffin because the identification procedures were unduly suggestive and resulted in mistaken identifications. The defendant specifically contended that the following procedures were impermissibly suggestive: Beech's statements to Duffin about defendant, the use of defendant's photograph in two photo arrays, and the placement and quality of defendant's photograph in the array. On December 16, 1991, Beech informed Duffin that the photo Duffin identified at the station was a photo from 1985, that the man used an alias, and that there...
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State v. Robertson, 96-186-M.P.
...670 A.2d 239, 243 (R.I.1996). Upon review of the trial justice's ruling by this Court, the same standard is applied. State v. Andrade, 657 A.2d 538, 542 (R.I.1995). The motion for judgment of acquittal may be granted only if the evidence viewed in such a light is insufficient to warrant a j......
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...of evidence of any other dangerous weapon, defendant's conviction on the first-degree robbery count should stand. See State v. Andrade, 657 A.2d 538, 543 (R.I. 1995) (affirming a conviction of assault with a dangerous weapon and first-degree robbery, despite the state's failure to produce a......
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...(1977) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968)); see also State v. Andrade, 657 A.2d 538, 541 (R.I. 1995) (applying Manson). However, even if the identification is the product of suggestive procedures, the admission of testimony ......
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