State v. Banach

• Decision Date: 27 October 1994
• Docket Number: No. 93-598-C,93-598-C
• Citation: 648 A.2d 1363
• Parties: STATE v. Stanley BANACH. A.
• Court: Rhode Island Supreme Court

Page 1363

648 A.2d 1363

STATE v. Stanley BANACH.

No. 93-598-C.A.

Supreme Court of Rhode Island.

Oct. 27, 1994.

Jeffrey Pine, Atty. Gen., Jane McSoley, Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine Gibran, Paula Rosin, Asst. Public Defenders, for defendant.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the appeal of the defendant, Stanley Banach, from judgments of convictions entered in the Superior Court of second-degree murder and of carrying an unlicensed pistol. The defendant contended on appeal that the trial justice erroneously denied his motion for a new trial. After considering the defendant's arguments, we deny his appeal and affirm the judgment of the Superior Court.

FACTS AND PROCEDURAL HISTORY

Shortly after midnight on April 30, 1992, Anthony Rosa (Rosa), his younger half-brother, Jason Otero (Otero), and Rosa's girlfriend, Jenny Traskauskas (Traskauskas), left the brothers' home on Coggeshall Street in Providence, Rhode Island. Concerned about the woman's safety at that late hour, the brothers, according to Otero, decided to walk her to her home on Felix Street, approximately one mile away. The three walked to Douglas Avenue, then to Ruggles Street. At the corner of Smith and Ruggles Streets, the brothers, notwithstanding their apparent concern for her safety, said good night to Traskauskas, who continued, ostensibly alone, down Ruggles Street towards her home, about one and one-half blocks away. Otero testified that Rosa suspected the woman of infidelity, and therefore, in order to observe whether she in fact returned home or instead went off to another man, the brothers followed her at a distance sufficient to escape notice, down Chalkstone Avenue until she entered her house on Felix Street.

Their surveillance completed, Rosa and Otero took a different, indirect route back home, walking down Chalkstone Avenue, onto Oakland Avenue. At the corner of Oakland and Higgins Avenues, Rosa crossed the street toward a man later identified as defendant. Otero waited at the corner, about fifteen feet away. Soon after Rosa approached defendant, Otero heard a clicking noise and then a shot. After Rosa collapsed to the ground, defendant fled, and Otero ran to nearby houses to enlist help. Rosa was transported to Rhode Island Hospital, where he was pronounced dead fourteen hours later.

Six days after the shooting, defendant was arrested following Otero's identification of defendant in a photo array. From the outset, defendant admitted having shot Anthony Rosa but maintained that he did so in self-defense.

The testimony regarding the events that led up to the shooting varied widely at trial before a jury. The state's primary witness, Otero, testified that Rosa had initially approached defendant on Oakland Avenue because Rosa believed defendant was a friend of his named "Tom-Tom." Rosa directed Otero to wait at the corner, then crossed the street to greet defendant. Because the area was lit by a street lamp, Otero was able to see defendant's face clearly enough to realize that the man was not Tom-Tom. Otero testified on direct examination that he heard defendant say, "Stop," to his brother, but on cross-examination he stated that he was not sure who had spoken. Otero testified that at that point he heard the click and saw his brother put his hands over his head, as if to protect himself. Otero further testified that after defendant had shot his brother, Otero ran toward the fallen body, whereupon defendant pointed the gun at Otero and said he had "another one" for him. But then defendant fled, and Otero ran to get help.

At trial, defendant told a story considerably different from Otero's. The defendant testified that while walking on Smith Street, he had noticed two people following him. Alarmed, he testified that he ran around the corner on Pleasant Valley Parkway to a bush, under which he had hidden a gun earlier that day. The defendant stated that although he had never owned or used a gun before, he had stolen one from gang members for whom he worked because he feared the gun would be used on him in retaliation for defendant's earlier testimony as a state witness against certain of the gang members. On appeal, defendant conceded that he had spun a "tall tale" concerning how he had obtained the gun because he feared that the jury would perceive him as a "pistol packing hoodlum."

The defendant testified that after retrieving the gun, he found the two stalkers near the corner of Garfield Avenue, the street where he lived. He stated that he began to walk down Oakland Avenue, then turned onto Higgins, where he heard one of his followers say, "Come here." Not recognizing the person, defendant testified that he cautiously approached the figure who had spoken. The stranger twice demanded defendant's distinctive and expensive goose-down jacket, and defendant twice refused. According to defendant, as the stranger, Rosa, approached, Rosa stuck his hands into his pants, and as he pulled them out, defendant became "real scared," fearing that the stranger was drawing a weapon. In defendant's words, "I pulled out my gun and just pointed and fired not knowing what I was doing."

In rebuttal, the state called two of defendant's acquaintances who testified that they had seen defendant with the murder weapon months before the shooting. Both witnesses testified that defendant had shown the gun to them and had fired it on at least two previous occasions.

On February 1, 1993, a jury found defendant guilty of second-degree murder in violation of G.L.1956 (1981 Reenactment) § 11-23-1, as amended by P.L.1990, ch. 284, § 4 and of carrying a pistol without a license in violation of G.L.1956 (1981 Reenactment) § 11-47-8, as amended by P.L.1991, ch. 227, § 1. On February 12, 1993, prior to sentencing, defendant moved for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure. The defendant argued that the jury's verdict was contrary to law and contrary to the evidence presented at trial. The trial justice denied the motion and sentenced defendant to life imprisonment for the murder and to a five-year concurrent sentence on the weapons conviction. In response, defendant filed the instant appeal pursuant to G.L.1956 (1985 Reenactment) § 9-24-32.

DEFENDANT'S MOTION FOR A NEW TRIAL

The standard for our review of a trial justice's ruling on a motion for a new trial under Rule 33 of the Superior Court Rules of Criminal Procedure is well settled. In deciding a motion for a new trial, the trial justice acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence. State v. Marini, 638 A.2d 507, 515 (R.I.1994). See also Ruggieri v. The Big G Supermarkets, Inc., 114 R.I. 211, 330 A.2d 810 (1975). Specifically, the trial justice has at least three analyses to perform when ruling on a motion for a new trial. State v. Bertram, 591 A.2d 14, 29 (R.I.1991). In the first analysis, the trial justice must consider the evidence in light of the charge to the jury, a charge that is presumably correct and fair to the defendant. State v. Girouard, 561 A.2d 882, 890-91 (R.I.1989). In the second analysis, the trial justice must determine his or her own opinion of the evidence. The trial justice must then weigh the credibility of the witnesses and other evidence and choose which conflicting testimony and evidence to accept and which to reject. Id. at 891. In the third analysis, the trial justice must determine, by an individual assessment of the evidence and in light of the charge to the jury, whether the justice would have reached a different result from that of the jury. Id. When, after reviewing the evidence, the trial justice agrees with the jury's verdict, the analysis is complete and the verdict should be affirmed. ¹ Marini, 638 A.2d at 515-16.

In cases in which the trial justice has articulated a sufficient rationale for denying a motion for a new trial, the decision will be given great weight. Such a judgment will be disturbed only if the trial justice has overlooked or misconceived material evidence relating to a critical issue or if the justice was otherwise clearly wrong. State v. Robbio, 526 A.2d 509, 513 (R.I.1987). See also State v. Caruolo, 524 A.2d 575, 585 (R.I.1987). The record should reflect a few sentences of the justice's reasoning on each point. Girouard, 561 A.2d at 890. In providing a rationale for a decision, however, the trial justice need not refer to all the evidence supporting the decision but need only cite evidence sufficient to allow this court to discern whether the justice has applied the appropriate standards. State v. Barnes, 122 R.I. 451, 458, 409 A.2d 988, 992 (1979). Moreover, the moving party bears the burden of convincing this court that the trial justice did not conscientiously apply these standards. State v. DaRocha, 121 R.I. 182, 185, 397 A.2d 500, 502 (1979).

After a careful review of the record before us, we conclude that the trial justice in the instant case did engage in a complete and proper analysis while fulfilling his role as the thirteenth juror. The trial justice reviewed the physical evidence presented at trial and independently assessed the credibility of the witnesses. See State v. Vanasse, 593 A.2d 58, 68 (R.I.1991). Furthermore, the record reflected his reasoning on each point. In denying defendant's motion for a new trial, the trial justice stated, "I am totally satisfied here that this jury took the instructions that I had given to them, understood those instructions, and applied them to the facts that they found to have been proven by the state by evidence and proof beyond a reasonable doubt * * *. The jury's verdict was a proper verdict. Any other jury verdict would have been a total mischaracter [sic ] of justice." Thus, we conclude that the trial justice performed all the procedural analyses required of him in rejecting defendant'...