State v. Day

• Decision Date: 25 May 2006
• Docket Number: No. 2003-143-C.A.,2003-143-C.A.
• Citation: 898 A.2d 698
• Parties: STATE v. Kenneth DAY.
• Court: Rhode Island Supreme Court

Page 698

898 A.2d 698

STATE v. Kenneth DAY.

No. 2003-143-C.A.

Supreme Court of Rhode Island.

May 25, 2006.

COPYRIGHT MATERIAL OMITTED

Diane Daigle, for Plaintiff.

Catherine Gibran, Providence, for Defendant.

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

OPINION

Chief Justice WILLIAMS, for the Court.

The defendant, Kenneth Day (defendant), appeals from his conviction in the Superior Court of two counts of conspiracy to commit robbery, two counts of first-degree robbery, one count of assault with intent to commit robbery, one count of committing a crime of violence with a firearm, and one count of carrying a pistol without a license. The defendant contends the trial justice erred in consolidating for trial an indictment stemming from an incident involving Timothy Mignone (Mignone) on or about June 7, 2000 (charging one count of conspiracy to commit robbery and one count of first-degree robbery), with an indictment stemming from an incident involving Kerrie Morrison (Morrison) and Matthew Tarpy (Tarpy) on or about April 1, 2000 (charging one count of conspiracy to commit robbery, one count of first-degree robbery, one count of assault with intent to commit robbery, one count of committing a crime of violence with a firearm, and one count of carrying a pistol without a license). The defendant also argues that the trial justice committed error when he denied the defendant's request for the funding of a defense expert on eyewitness identification. For the reasons set forth in this opinion, we affirm the conviction.

I Facts and Travel

The facts of this case arise from two crimes of violence in Providence: a robbery that took place in Waterplace Park on April 1, 2000, and a robbery committed in nearby Kennedy Plaza on June 7, 2000.

At dusk on April 1, 2000, Morrison and Tarpy, two high school students, left Providence Place Mall to walk around Waterplace Park while they waited for a call from friends. Morrison and Tarpy had spent the day participating in an extracurricular program at the State House. As they walked past a black man in a puffy coat, the man pulled out a semiautomatic weapon and pointed it toward Morrison's face. Then two more people, another black man and a white woman, approached Morrison and Tarpy. The second man struck Tarpy in the head and Morrison in the back with a baseball bat. The man with the baseball bat rummaged through the pockets of Tarpy's pants and tried in vain to loosen Morrison's watch from her wrist. Morrison eventually had to throw her watch at the man to stop him from beating her with the bat. Also, one of the three assailants—Morrison later testified that she was unsure who—pried her purse from her shoulder. Then the three assailants left, absconding with Morrison's purse and watch. Although Tarpy was bleeding from the head, the two victims were able to walk to a nearby restaurant to call the police. Both Morrison and Tarpy would later testify at trial that during the robbery they had ample opportunity to observe the face of the man with the gun.

Neither Morrison nor Tarpy identified any of their assailants from photographs that the police provided in the days after the robbery. Tarpy, however, recognized defendant's picture in the Providence Journal two months later. The photograph had been published in conjunction with a newspaper article chronicling a double homicide. Tarpy notified the police, telling them defendant had been the gunman on the night he and Morrison were robbed. Although Tarpy never told Morrison of his identification, Morrison later picked defendant's picture out of a photo array and similarly identified him as the gunman on the night of the robbery.

Turning to the second crime of violence, at approximately 9:30 p.m. on June 7, 2000, nineteen-year-old Mignone arrived by bus at Kennedy Plaza in Providence. He had been playing basketball in Pawtucket earlier that evening. Carrying a backpack that held his basketball, a change of clothes, and his wallet, Mignone walked across Kennedy Plaza to catch a connecting bus that would take him home. While he waited, two young black men approached Mignone and asked what was in his backpack. Then another man, whom Mignone later identified as defendant, punched him in the back of the neck, and then proceeded to punch him repeatedly in the head and body. When Mignone tried to flee, the other two men pursued him and continued to beat him with their fists. Those two men eventually wrestled the backpack from Mignone. Mignone finally was able to draw the attention of the police patrolling the area, but their attempts to find the men who had attacked him were not successful.¹ Mignone, however, did give a statement to police.

Within seven days of the robbery, Mignone saw a picture of defendant in the Providence Journal, and notified the police that defendant was the man who initially hit him on the night of the robbery.² In March 2002, Mignone picked defendant's picture out of a photo array.

After the grand jury returned two separate indictments against defendant, the state moved to consolidate the indictments for trial pursuant to Rule 13 of the Superior Court Rules of Criminal Procedure. The trial justice granted the state's motion to consolidate, and he later denied defendant's motion to sever the indictments under Rule 14 of the Superior Court Rules of Criminal Procedure. The trial justice also denied defendant's motion for funds to retain an expert witness on eyewitness identification.

At trial, Morrison, Tarpy, and Mignone all testified to their recollections of the events discussed above. Additionally, a young woman, Kathryn Tribandis (Tribandis) testified that she was the woman who had been with defendant when they, and a third man, Roman Burton (Burton), robbed Morrison and Tarpy at gunpoint in Waterplace Park. In addition to corroborating much of Morrison's and Tarpy's testimony, Tribandis recounted that, before the robbery, defendant remarked to her and Burton that it would be funny "if we just hurt, or we robbed somebody, or just scared somebody," and that, after the robbery, defendant threatened to kill her and her unborn child if she went to the police. Tribandis also acknowledged that she had agreed to testify truthfully against defendant in exchange for a deferred sentence on the charges resulting from her role in the robbery.

On the counts stemming from the April 1, 2000, robbery of Morrison and Tarpy, a jury convicted defendant of one count of conspiracy to commit robbery, one count of first-degree robbery, one count of assault with intent to commit robbery, one count of committing a crime of violence with a firearm, and one count of carrying a pistol without a license. On the counts stemming from the robbery of Mignone on June 7, 2000, defendant was found guilty of one count of conspiracy to commit robbery and one count of first-degree robbery. The trial justice sentenced defendant to an aggregate prison term of forty-five years. The defendant now appeals.

II Analysis

A Joinder and Severance

The defendant's primary argument on appeal is easily divided into two sub-arguments. First, defendant argues that the trial justice erred as a matter of law in consolidating these two indictments for a single trial under Rule 13. Second, assuming arguendo that joinder under Rule 13 was proper, defendant contends that the trial justice erred when he later declined to grant a severance in accordance with Rule 14. We address each sub-argument seriatim.

Rule 13 Joinder

Before we can reach the merits of this issue, we must address the state's initial contention that defendant has failed to preserve for appeal the issue of whether the indictments were properly joined under Rule 13. Our well-settled "raise or waive" rule requires that, for an issue to be preserved for appeal, a party make an objection that is "`sufficiently focused so as to call the trial justice's attention to the basis for said objection.'" State v. Briggs, 787 A.2d 479, 484 (R.I.2001) (quoting State v. Oliveira, 774 A.2d 893, 907 (R.I.2001)). Our review of the record demonstrates that, in response to the state's Rule 13 motion to join the indictments, defense counsel argued against the consolidation of the cases for trial, but on the grounds that the jury pool would have preconceptions concerning defendant's guilt based on his alleged involvement in another high-profile criminal case.³ Although he briefly attempted to distinguish these indictments from those at issue in cases that the state set forth in its argument, defendant failed to discuss the standards for proper joinder under Rule 13, nor did he point to a single distinction between the Morrison/Tarpy robbery and the Mignone robbery. In fact, defendant conceded that he could not disagree with the geographic and factual similarities that the state outlined. The trial justice, in granting the state's motion, aptly noted that defendant's objection sounded more of the "historical publicity that has surrounded" defendant than of joinder pursuant to Rule 13. We hold that this objection was not sufficiently focused to call the trial justice's attention to the grounds for objection, and, therefore, the issue was not properly preserved for appeal. Cf. State v. Hallenbeck, 878 A.2d 992, 1018 (R.I.2005) (holding that a defendant had waived the issue of whether the admission of a photograph was unduly prejudicial because he had objected to the admission of the photograph at trial only on the grounds of whether it was a fair and accurate representation of the crime scene).

Even if defendant had preserved the issue, we would disagree with his contention that joinder was improper in this instance. Rule 13 instructs that "[t]he Court may order two (2) or more indictments, informations, or complaints to be tried together if the offenses * * * could have been joined in a single indictment, information, or complaint." (Emphases added.) Therefore, the standard of review to be...