State v. Barros, 2008–292–C.A.

• Decision Date: 08 July 2011
• Docket Number: No. 2008–292–C.A.,2008–292–C.A.
• Citation: 24 A.3d 1158
• Parties: STATEv.Tracey BARROS.
• Court: Rhode Island Supreme Court

24 A.3d 1158

STATE

v.Tracey BARROS.

No. 2008–292–C.A.

Supreme Court of Rhode Island.

July 8, 2011.

Lauren S. Zurier, Department of Attorney General, for State.Michael DiLauro, Office of the Public Defender, for Defendant.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON for the Court.

The defendant, Tracey Barros, appeals from his conviction, after a jury trial in the Superior Court for Providence County, of the following offenses: conspiracy to commit murder; first-degree murder; discharging a firearm while committing a crime of violence; and unlawfully carrying a firearm without a license.

On appeal, defendant contends that the trial justice committed reversible error (1) when he denied defendant's motion to suppress his confession ¹ and (2) when he precluded cross-examination of a prosecution witness with respect to purported third-party-perpetrator evidence.

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel²

AThe Murder of Deivy Felipe

On April 27, 2005, at approximately 1:30 a.m., the dead body of one Deivy Felipe was discovered in the driver's seat of a sport utility vehicle (SUV) parked on Althea Street in Providence; it appeared that the decedent had suffered multiple gunshot wounds. When the SUV was processed, detectives from the Bureau of Criminal Identification (BCI) found only smudges, rather than complete fingerprints, on the exterior of the vehicle.³ Inside the SUV, detectives were able to locate a single fingerprint on a drinking glass; but they were unable to determine whose fingerprint it was. An autopsy revealed that Mr. Felipe had died as a result of bleeding from multiple wounds caused by five gunshots. The lead detective assigned to the Felipe homicide investigation was Providence Police Detective Daniel O'Connell. He testified at trial ⁴ that the police were not able to locate any eyewitnesses to the murder and that his team was unable to develop a list of persons whom they might consider to be suspects.

BThe Arrest of Tracey Barros; His Motion to Suppress; His Trial

At approximately 11:30 p.m. on December 29, 2005 ( i.e., several months after the Deivy Felipe murder had been committed), defendant Tracey Barros was arrested by the Providence police for possession of a pistol without a license. ⁵ At the time of his arrest, Mr. Barros readily admitted that he possessed a firearm.

The next day, December 30, 2005, Mr. Barros was subjected to two separate interrogations at Providence police headquarters.⁶ Those interrogations ultimately culminated in a confession by Mr. Barros to the effect that he had murdered Deivy Felipe at the behest of one Tonea “Nutt” Sims. (We shall hereinafter explain in detail just how Mr. Barros, who was initially arrested on a charge of possession of a firearm, eventually confessed to the murder of Deivy Felipe.)

Although the interrogations of Mr. Barros consumed many hours of his time and that of law enforcement personnel, only the final twelve minutes of what transpired during the interrogations were captured in an audio recording. In that recording, Mr. Barros may be heard confessing to (1) having shot Mr. Felipe with a gun provided by Mr. Sims and (2) having done so at Mr. Sims's direction. Mr. Barros submits that no evidence other than this recorded confession (almost immediately repudiated by him) and the testimony of his interrogators about his earlier non-recorded inculpatory statements was presented by the prosecution at trial to connect him to the murder of Mr. Felipe; it is his contention on appeal that both his recorded and non-recorded statements should have been suppressed.

The defendant was arraigned on the firearms charge on December 31, 2005. Subsequently, on January 3, 2006, he was arraigned with respect to the murder of Mr. Felipe. On June 20, 2006, Mr. Barros was indicted by a Providence County grand jury; the indictment charged him with the following offenses: (1) the murder of Deivy Felipe, in violation of G.L.1956 § 11–23–1; (2) conspiracy to commit murder, in violation of G.L.1956 § 11–1–6; (3) carrying a pistol without a license, in violation of G.L.1956 § 11–47–8(a); and (4) discharging a firearm during a crime of violence, causing the death of Deivy Felipe, in violation of G.L.1956 § 11–47–3.2(b)(3).

On May 30 and 31, 2007, a hearing was held in the Superior Court on defendant's motion to suppress the inculpatory statements that he had made while in custody at the Providence police station on December 30, 2005. The motion to suppress was denied on June 1, 2007. A jury trial began on June 4, 2007. On June 12, the jury reported itself unable to reach a verdict, and a motion for mistrial was granted on that same day.

On January 4, 2008, prior to the commencement of the second jury trial, defendant renewed his motion to suppress. The motion was again denied, and the second jury trial commenced. On January 18, after three days of deliberations, the jury found Mr. Barros guilty on all counts. On March 10, 2008, a hearing was held on defendant's motion for a new trial; at the conclusion of the hearing, the motion was denied.

On June 2, 2008, Mr. Barros was sentenced to (1) the statutorily mandated consecutive life terms for murder and for causing death by means of a firearm; (2) a concurrent ten-year term to serve for conspiracy to commit murder; and (3) a consecutive ten-year term to serve for unlawful possession of a firearm. A timely notice of appeal was filed on June 4, 2008.

As previously indicated, defendant contends on appeal that the trial justice erred (1) in not suppressing his confession that he murdered Deivy Felipe and (2) in barring cross-examination of a prosecution witness concerning purported third-party-perpetrator evidence.

IIAnalysis

AThe Motion to Suppress

With respect to the trial justice's denial of his motion to suppress, Mr. Barros makes a number of different arguments on appeal. He contends that (1) the trial justice erred in denying the motion to suppress because, by not fully recording the post-arrest interrogations, the police denied him his state and federal constitutional rights; (2) this Court, pursuant to its supervisory authority with respect to the administration of justice, should rule that the inculpatory statements were erroneously admitted into evidence; (3) it was error to allow the inculpatory statements to be admitted unaccompanied by a cautionary instruction to the jury; (4) it was error to deny the motion to suppress because the inculpatory statements were involuntary; and (5) it was also error to deny the motion to suppress because defendant's inculpatory statements were the product of a failure to promptly present him before a judicial officer.

1. The Due Process Contention

The defendant's first contention on appeal is that custodial interrogations conducted in a place of detention ⁷ should be electronically recorded from start to finish and that his confession should have been suppressed due to the fact that the interrogations that he underwent were not recorded in toto. The defendant submits that the recording requirement should be derived from the due process provisions of the United States and Rhode Island constitutions or from the exercise of this Court's supervisory authority. In the alternative, defendant argues that the admission of his inculpatory statements that were contained in the twelve-minute partial recording should have been accompanied by a cautionary instruction that would address the fact that the police did not record the interrogations in their entirety.

While we acknowledge the thoughtful nature of the arguments presented by defendant and amici concerning the merits of fully recording custodial interrogations, it is our considered view that neither the federal due process clause nor the Rhode Island criminal due process clause provides a criminal suspect with a right to have his or her custodial interrogation electronically recorded in toto.

With respect to defendant's argument that a recording requirement should be derived from the federal constitution, we note that we very recently stated that, “neither the United States Supreme Court nor this Court has ever held that due process requires that a custodial interrogation must be contemporaneously recorded.” State v. Robinson, 989 A.2d 965, 978 n. 23 (R.I.2010) (citing United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir.2004)); see Montgomery, 390 F.3d at 1017 (“[W]e see no hint that the Supreme Court is ready to take such a major step.”). To date, no federal appellate court has held that the federal due process clause provides a criminal suspect with a right to mandatory electronic recording. See State v. Lockhart, 298 Conn. 537, 4 A.3d 1176, 1184 (2010) (“[T]here is no federal precedent in support of the proposition that the federal constitution imposes a recording requirement. The federal Courts of Appeal that have considered a similar claim have uniformly rejected it.”). After studying the issue afresh in a de novo manner, we remain convinced that the federal due process clause does not require electronic recording of custodial interrogations.

In the alternative, Mr. Barros urges this Court to reach the same conclusion as was reached by the Supreme Court of Alaska in Stephan v. State, 711 P.2d 1156 (Alaska 1985)— viz., that the due process clause in the state constitution provides a criminal suspect with a right to have his or her interrogation electronically recorded. In Stephan, the Supreme Court of Alaska predicated its holding on the belief that “recording * * * is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id. at 1159–60. The Alaska court in Stephan went on to state that a recording requirement “protects the defendant's constitutional...