State v. Day

• Decision Date: 02 July 2007
• Docket Number: No. 2005-81-C.A.,2005-81-C.A.
• Citation: 925 A.2d 962
• Parties: STATE v. Kenneth DAY.
• Court: Rhode Island Supreme Court

925 A.2d 962

STATE v. Kenneth DAY.

No. 2005-81-C.A.

Supreme Court of Rhode Island.

July 2, 2007.

Lauren S. Zurier, Providence, for Plaintiff.

Paula Lynch, for Defendant.

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

OPINION

Justice ROBINSON for the Court.

On June 10, 2004, a jury found the defendant, Kenneth Day, guilty of the following felonies: conspiracy to commit robbery, conspiracy to commit carjacking,¹ conspiracy to commit murder, two counts of first-degree robbery, two counts of carjacking resulting in death, and two counts of murder. Thereafter, on August 16, 2004, he received three ten-year sentences on the three conspiracy counts to be served concurrently, two ten-year sentences on the robbery charges to be served consecutively to each other and to the sentences on the conspiracy counts, and four sentences of life imprisonment without parole on the carjacking and murder counts to be served consecutively to each other and to the other sentences. The court further ordered that the defendant serve all of these sentences consecutively to those that had previously been imposed as a result of other criminal convictions.

The defendant has appealed to this Court, contending (1) that the trial justice exceeded his authority in imposing four consecutive sentences of life imprisonment without parole; (2) that the trial justice erred in denying defendant's motion for a judgment of acquittal; (3) that defendant's conviction on both murder and the underlying carjacking felony violated the double jeopardy clause; (4) that the trial justice violated defendant's Sixth Amendment right to confrontation when he admitted the recorded testimony of a witness who had testified in an earlier criminal trial in federal court; (5) that the trial justice erred in allowing the introduction of evidence of a conversation between that same witness and defendant while they were in custody; (6) that the trial justice erred in denying defendant's motion for a new trial; and (7) that defendant's sentence was excessive.²

For the reasons set forth herein, we affirm the judgment of the Superior Court in part and reverse it in part.

Facts³ and Travel

On the evening of June 8, 2000, twenty-year-old Jason Burgeson left his parents' home in his white, four-door 1991 Ford Explorer to pick up Amy Shute, his twenty-one-year-old girlfriend. The two young people then drove into Providence, where they met two of Jason's friends, Joshua Wilson and Ray Reed, at Tommy's Bar and Grill in downtown Providence at around 10:30 p.m. All four of them left Tommy's after about an hour and headed in Jason's car to Bootleggers, a dance club in Providence.

Jason, Amy, Joshua, and Ray arrived at Bootleggers at around midnight, where they met three other friends. Upon leaving Bootleggers, the group of seven friends spent five or ten minutes discussing possible plans as to how they might pass the remainder of the night. At approximately 1:20 a.m., Jason, Amy, Joshua, and Ray headed from Bootleggers to where Jason's car was parked. The four friends piled into Jason's car and listened to music from a portable Discman as Jason drove back to the parking lot at Tommy's Bar and Grill. There, the four of them sat in another car for approximately twenty or twenty-five minutes before Jason and Amy exited that car and headed back to Jason's car.

On the afternoon of June 9, 2000, at approximately 12:30 or 1 p.m., a grounds-keeper at Button Hole Golf Course, which is located partly in Providence and partly in Johnston, discovered the bodies of a young man and a young woman slumped against some hay bales on a part of the golf course in Johnston that was under construction. The bodies were later identified as being those of Jason and Amy.

During a survey of the crime scene, Detective Raymond Pingitore of the Johnston Police Department found spent handgun casings and a live round of handgun ammunition, but he did not locate a handgun at the scene. Based upon that information and his observation of the two bodies, he determined that the two deaths were possibly homicides. He also observed tire tracks leading to the two bodies, but he did not find a motor vehicle at the scene.

Detective David Detora of the Johnston Police Department's Bureau of Criminal Investigation also responded to the scene that day. His trial testimony that a live round of ammunition and spent handgun casings were found at the scene corroborated Detective Pingitore's testimony. Detective Detora testified that he had found a latex glove approximately sixty-one feet from the victims, as well as a ripped empty condom wrapper about thirty feet from the victims. Amy's wallet and a Sony Discman were also recovered at the scene.

In the course of contacting the families of the victims, the police learned that, on the evening of June 8, Jason had been driving a white, four-door 1991 Ford Explorer bearing a Massachusetts license plate reading "7461EE." Detective Pingitore issued a BOLO⁴ alert for Jason's car at approximately 7 p.m. on June 9.

At approximately 8:30 p.m. on June 9, Stephen Gencarella, a patrol officer in the Providence Police Department who had heard the BOLO, pulled over a vehicle that corresponded to the broadcast description. He later turned the driver of the vehicle, Gregory Floyd, over to the Johnston Police Department.

Pursuant to a search warrant executed at approximately 4 a.m. on June 10, police seized the following items from the residence in which Floyd and defendant lived: a .40-caliber semiautomatic handgun,⁵ a clip adjacent to the gun with two live rounds in it, a gun holster, and another live round of ammunition. At that point, the Johnston Police Department took defendant into custody.

At the Johnston Police Station, defendant gave a statement to the police after waiving his Miranda rights. The defendant admitted that he, Gregory Floyd, Harry Burdick,⁶ Raymond Anderson, and Samuel Sanchez had been riding around in Sanchez's car on June 8 and talking about "getting somebody," which defendant explained meant robbing someone. The defendant denied that he himself had intended to participate in the robbery about which he was being questioned, noting that he had just received his paycheck; but he also stated that he had no choice but to participate because he was a passenger in Sanchez's car. The defendant told the police that, at some point in the course of the night, Sanchez parked the car. Floyd and Burdick then exited the car and returned a few minutes later in a white Jeep⁷ with two people in the back seat.

According to defendant, Sanchez then drove his car behind the Jeep to a location which defendant described as being "like a desert." The defendant explained that Floyd wanted to kill the two occupants of the car and that they were pleading for their lives. The defendant denied that he had heard any conversation about raping either of the victims. The defendant stated that he turned and ran as soon as Floyd shot the male victim and that he only heard, rather than saw, the shooting of the female victim. In his statement to the police, defendant admitted that when he arrived home that night he took Floyd's jacket upstairs, but he denied that it had a gun in it. The defendant stated that he did not know how the gun seized by the police had ended up in his room.

Anderson and Sanchez were also taken into custody on June 10, 2000, and Sanchez's Chevrolet Nova was impounded in connection with the crimes that had been committed. Police recovered the following objects from the Nova: two Grand Casino coins, a Freedom flyer, numerous foreign coins, an arcade coin, and approximately fourteen photographs.⁸ The defendant's left and right thumbprints were found on some of the photographs. A condom that was still wrapped and an unwrapped condom were also seized from the Nova. The lot number on the ripped empty condom wrapper discovered at the crime scene was identical to the lot number on the wrapped condom found in the Nova. Additionally, it was determined that hairs from Burdick's head were present in the impounded car.

The testimony of Gregory Floyd⁹ presents the most detailed account of what transpired late on June 8 and early on June 9, 2000;¹⁰ in the following paragraphs, we summarize his version of those chilling events.

According to Floyd, he and defendant left their Taylor Street apartment in the late afternoon or early evening of June 8 to play pool in downtown Providence. At defendant's suggestion, Floyd brought along a gun that he had previously purchased for protection but had never used before. Upon arriving downtown by bus, Floyd and defendant socialized at Mama Metro's Café on Weybosset Street. The defendant left for about ten minutes to converse with a man who had approached him in the café wanting to buy drugs. When defendant returned, he asked Floyd to help him rob that man, whom he had told to wait outside in an alley. Unable to locate the man in the alley, Floyd and defendant set out to find him. During their ultimately unsuccessful attempt to find that man, defendant and Floyd went to Kennedy Plaza, where they met Harry Burdick and his girlfriend.

After chatting briefly about the plan to rob the man who had sought to buy drugs from defendant, Burdick expressed interest in joining defendant and Floyd in that endeavor. After another unsuccessful fifteen minute search for the man, defendant, Floyd, and Burdick headed to another downtown establishment called Saki's Pizza. The defendant telephoned Raymond Anderson, who agreed to travel downtown with Samuel Sanchez in order to meet defendant, Floyd, and Burdick and help them locate the targeted man.¹¹ Anderson and Sanchez arrived in the latter's brown or tan Chevrolet Nova. A subsequent search for the man in Sanchez's car yielded no results, so the four men started discussing other potential targets.

Floyd, Burdick, Anderson, Sanchez, and defendant eventually parked the car behind...