State v. Brown

• Decision Date: 11 April 2014
• Docket Number: No. 2011–257–C.A.,2011–257–C.A.
• Parties: STATE v. Kayborn BROWN.
• Court: Rhode Island Supreme Court

88 A.3d 1101

STATE

v.Kayborn BROWN.

No. 2011–257–C.A.

Supreme Court of Rhode Island.

April 11, 2014.

Jane M. McSoley, Department of Attorney General, for State.

Catherine Gibran, Office of the Public Defender, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice FLAHERTY, for the Court.

The defendant, Kayborn Brown, appeals from a judgment of conviction for incidents occurring on August 4 and August 6, 2008. As a result of those events, the defendant was charged with ten offenses in a single indictment: the murder of Jorge Restrepo in violation of G.L.1956 § 11–23–1 (count 1), conspiracy to commit murder in violation of G.L.1956 § 11–1–6 (count 2), first-degree robbery in violation of G.L.1956 § 11–39–1 (count 3), conspiracy to commit robbery in violation of § 11–1–6 (count 4), carrying a pistol without a license in violation of G.L.1956 § 11–47–8(a) (count 5), carrying a dangerous weapon while committing a crime of violence in violation of § 11–47–3 (count 6), using a firearm when committing a crime of violence in violation of § 11–47–3.2 (count 7), carrying a pistol without a license in violation of § 11–47–8(a) (count 8), reckless driving in violation of G.L.1956 § 31–27–4 (count 9), and driving on a suspended license in violation of G.L.1956 § 31–11–18 (count 10).¹

On November 23, 2010, after five of the counts were dismissed under either Rule 48(a) of the Superior Court Rules of Criminal Procedure or by grant of defendant's motion to acquit under Rule 29 of the Superior Court Rules of Criminal Procedure, the jury returned guilty verdicts on the five remaining counts for first-degree murder (count 1), first-degree robbery (count 3), conspiracy to commit robbery (count 4), carrying a pistol without a license(count 5) and reckless driving (count 9). On April 14, 2011, the trial justice sentenced defendant to life for count 1, ten years for count 4, ten years for count 5, and one year for count 9, all sentences to be served consecutively.²

Brown advances a number of issues on appeal. However, after a careful review of defendant's arguments and a thorough review of the record, we affirm the judgments of conviction.

IFacts and Travel

In the early evening of August 4, 2008, a brutal robbery and murder occurred in Central Falls. After completing his work shift at Vac–Forming in Central Falls, Jorge Restrepo began the short walk to his home on Watson Street. Tragically, before he reached his home, Restrepo was accosted, robbed, and viciously beaten to death by two assailants. In the densely populated neighborhood, several people witnessed the incident.

Diego Rodriguez testified that he was visiting a family member on Watson Street at about 5 p.m. on August 4. After parking his car, and as Rodriguez walked to his cousin's home, he observed two young black males, also on Watson Street. After entering his cousin's house and exchanging pleasantries, Rodriguez said that he stepped back outside through the front door because he did not like the aroma of a meal that was being prepared. Rodriguez testified that, after stepping outside, he heard a man screaming for help. Rodriguez then observed a man on the ground; he saw one of the two youths, whom he had seen earlier, strike the man in the face and attempt to remove what was in his pockets. Rodriguez described one of the assailants as taller than the other and testified that the taller man had kicked Restrepo in the head “like if he was a football.” After Rodriguez yelled at the two men to stop, one of them turned to look at him. Rodriguez then moved towards the fracas to help the victim and got a second look at the same assailant. Rodriguez said he observed the taller of the two more closely and said that that person had braids in his hair and was wearing a white T-shirt with black shorts. Rodriguez also testified that just before the pair fled the scene, he saw the taller one remove a red firearm from his waistband.

Manuel Coelho said that he arrived on Watson Street in his red pickup truck at about 5:30 p.m. He also observed two men kicking and hitting Restrepo. He then saw the two rip Restrepo's pants and steal his wallet. Coelho said that the events unfolded very quickly, but he was able to describe the two men as skinny, having dark skin, and between eighteen and twenty years of age. He also testified that both men were about 5'6? or 5'7? and could describe the clothing of only one of the two, saying that that assailant was wearing jeans and a red top. On cross-examination, Coelho testified that he did not recognize defendant as one of the men who attacked Restrepo.

At around the same time, James Major, Restrepo's supervisor at Vac–Forming Unlimited drove his normal after-work route along Watson Street. Major testified that he pulled up behind a red pickup truck that was stopped in the lane of travel. Major indicated that he observed two black men emerge from the front of the pickup truck and that one of them was carrying a red gun in his right hand. Majortestified that his attention was focused on the red gun, and, as a result, he could not positively identify either of the men. He was, however, able to describe both men as black, between nineteen and twenty years old, and also that the one carrying the firearm was wearing a red do-rag. ³

Central Falls police officer Patrick Rogan was dispatched to Watson Street for a report of a man down. At approximately 5:37 p.m., Officer Rogan arrived on Watson Street where a group from the neighborhood was already starting to crowd the street. When he got out of his cruiser, Rogan saw Restrepo lying on his back on the street, apparently unconscious. He noticed that Restrepo's eyes were slightly open, that he was breathing slowly, and that he had urinated on himself. Within a minute of Rogan's arrival, emergency rescue personnel arrived, began to stabilize Restrepo, and placed him in the rescue vehicle. Rogan accompanied Restrepo to Memorial Hospital.⁴ After initial treatment at that hospital, Restrepo was transferred to Rhode Island Hospital because of the serious nature of the trauma he had experienced. Unfortunately, however, and despite all efforts to save him, Restrepo was pronounced dead at Rhode Island Hospital at 11:05 p.m.

Lieutenant Steven Bradley, along with other responding police officers from Central Falls, transported Rodriguez, Coelho, and Major, along with a number of other potential witnesses to the police station in an effort to obtain more detailed information and formal statements from them. Based on the description of the assailants provided by Rodriguez and others, the police prepared a photo array consisting of about 500 photographs. However, none of the witnesses, including Rodriguez, was able to identify either assailant from the photographs shown to them. On August 5, Rodriguez returned to the police station to review another photo array that had been prepared by the Pawtucket police department. Again, Rodriguez was not able to identify either assailant. A photograph of defendant was not included in either of the photo arrays that Rodriguez reviewed on August 4 or August 5, 2008.

On August 6, 2008, two days after the savage attack on Restrepo, two Providence police officers observed a white Acura containing two occupants traveling on North Main Street in Providence at approximately forty to forty-five miles per hour in a twenty-five-mile-per-hour zone. The officers activated the police cruiser's sirens and lights and followed the Acura. Approximately ten blocks later, the driver finally pulled over. But, after the officers exited their vehicle and began to approach the Acura, the driver suddenly drove away at a high rate of speed. A chase ensued through Providence at speeds approaching 100 miles per hour until the vehicle became disabled on the Branch Avenue overpass above Interstate 95. The two occupants then fled the car on foot. One of the officers observed the passenger of the vehicle holding a handgun in his right hand as he fled. Both suspects, one of whom was defendant and the other his brother, Keishon, soon were apprehended. Shortly thereafter, police located a red Cobra handgun in the bushes along the embankment. Police later identified defendant as the driver of the Acura.

Central Falls police became aware of the car chase in Providence, and that department secured a photo array, which included defendant, from Providence police to show to Rodriguez. Rodriguez returned to the Central Falls police station on August 8, 2008, and viewed an array of six photographs. This time, Rodriguez identified defendant, and he marked his initials next to defendant's picture.

The defendant was charged with ten offenses on February 27, 2009. Prior to trial, counts 2 (conspiracy to commit murder), 6 (carrying a dangerous weapon while committing a crime of violence), and 10 (driving on a suspended license) were dismissed pursuant to Rule 48(a). The defendant's jury trial commenced on November 18, 2010, in the Superior Court.

Significantly, three police officers testified during the trial about the unusual nature of the red firearm. Detective James Clift of the Providence Police Department's Bureau of Criminal Identification (BCI) testified that his duties at the BCI included processing firearms of which the police come into possession. He stated that in his sixteen-year career at the BCI, and, after examining hundreds of firearms, he had never seen a pistol similar in color to the one seized after the August 6 incident. Sergeant Christopher Reed of the Central Falls police department testified that, in his eleven-year career as an armorer, weapons instructor, and handler of hundreds of weapons, he also had never seen a handgun of this color. Finally, Lt. Steven Bradley, who had served in a variety of positions in his fifteen years with the Central Falls police department, testified that he never had encountered a firearm that had the same...