State v. Ferrer
| Decision Date | 30 May 2014 |
| Docket Number | No. 2012–238–C.A.,2012–238–C.A. |
| Citation | 92 A.3d 138 |
| Parties | STATE v. Rafael FERRER. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Lauren S. Zurier, Department of Attorney General, for State.
Kara J. Maguire, Office of the Public Defender, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
The defendant, Rafael Ferrer, was convicted by a jury on one count of carrying a pistol without a license and one count of possession of a firearm by a person previously convicted of a crime of violence. He has appealed from that conviction. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time. For the reasons set forth in this opinion, we affirm the Superior Court's judgment of conviction.
On January 20, 2011, the State of Rhode Island filed a criminal information charging defendant with one count of carrying a pistol without a license in violation of G.L.1956 § 11–47–8(a) (Count One) and one count of possession of a firearm by a person previously convicted of a crime of violence in violation of § 11–47–5 (Count Two).1
Prior to trial, defendant stipulated that he had been previously convicted of a crime that satisfied the predicate offense element set forth in § 11–47–5. So that the jury would not learn of that criminal history, defendant agreed that, if he was convicted on Count One, he would “automatically be adjudged convicted” on Count Two. Accordingly, a jury trial was held on Count One in October and November of 2011. We summarize below the salient aspects of what occurred at trial.
Massachusetts State Police Trooper Brent Pereira testified at trial. It was Trooper Pereira's testimony that he was working on the evening of September 12 and the early morning hours of September 13, 2010 as part of a construction detail on Interstate 195 in Seekonk, Massachusetts. He testified that he left the construction detail and began following a “dark-colored green Toyota Rav4” in a westerly direction on Interstate 195; he did so after receiving a radio message advising him to be on the lookout for a dark-colored sport-utility vehicle (SUV) that was possibly traveling towards Providence. He further testified that that radio message also informed him that the SUV had multiple occupants (“most likely three”), who were described as being dark-skinned Hispanic males. It was his testimony that, while following the SUV, he drove his police cruiser alongside the right side and then the left side of the SUV and that he illuminated the interior of the SUV with his “cruiser-mounted spotlight” from both sides in order to observe the occupants; he added that he observed a female driver and three male occupants, who appeared to him to be dark-skinned. According to Trooper Pereira's testimony, he decided to continue to follow the SUV as it drove into Rhode Island so that he could conduct a motor vehicle stop when “backup” became available; he learned that there would be “backup” available on the right side of westbound Interstate 195 just before the Iway Bridge.
Trooper Pereira testified that, as he approached the bridge, he saw that there were other state police cruisers occupying the breakdown lane as well as the right travel lane just before the beginning of the bridge; he stated that the cruisers had their overhead red and blue emergency lights activated. Trooper Pereira added that he turned on his emergency lights to signal the SUV to pull over. He testified that the SUV drove past the other police cruisers and came to a stop in front of them; he added that the guardrail on the right side of the bridge was approximately three or four feet from the passenger's side of the vehicle. Trooper Pereira further testified that he stopped his cruiser at a point between ten and fifteen feet behind the SUV. According to his testimony, there were overhead lights on the bridge, and he had his headlights, searchlight, and “takedown” lights (bright white lights located on the light bar on top of the cruiser) fixed on the back of the SUV. He answered in the affirmative when asked on direct examination whether he could “clearly see into the rear of that vehicle,” and he stated that he observed two black males in the backseat of the SUV. Trooper Pereira also stated: “I opened my cruiser door and I stepped half way out and I got onto my PA system.” According to his testimony, he then saw that the passenger in the right rear seat of the SUV had moved slightly to the side and extended most of his arm out of the right rear window. He further testified that he observed a “grayish metallic object released from [that] arm and go over the guardrail.” It was Trooper Pereira's testimony that he turned and mentioned to a Rhode Island trooper that he had seen one of the passengers throw something over the guardrail; he added that troopers then searched the area below the bridge.
Trooper Pereira testified that he then proceeded to instruct the occupants of the SUV to place their hands on the ceiling while remaining inside of the SUV. He further testified that he instructed the right rear passenger to extend his arm outside of the door through the window and to open the door from the outside, walk to the trooper's location, and assume a kneeling position; he added that, after the right rear passenger complied, he asked the man his name and was informed that it was Rafael Ferrer. At trial, he identified defendant as the right rear passengerof the SUV. Trooper Pereira stated that, after all four occupants of the SUV were in custody, another trooper directed his attention to the area below the bridge to the right side of where the SUV was stopped. He stated that he observed a firearm on an abutment approximately twenty to twenty-five feet down.
Rhode Island State Police Trooper Daniel Hernandez testified next. Trooper Hernandez testified that, shortly after 12 a.m. on September 13, 2010, he responded to the Iway Bridge to assist a Massachusetts State Trooper, whom he identified as being Trooper Pereira, in connection with a motor vehicle stop. Trooper Hernandez testified that, when he arrived at the Iway Bridge, Trooper Pereira's cruiser was parked behind a dark-colored SUV in the breakdown lane and that he was outside of his car, giving instructions to the right rear passenger of the SUV to slowly exit the vehicle. At trial, Trooper Hernandez identified defendant as the right rear passenger.
Trooper Hernandez testified that he then spoke to Trooper Pereira, who informed him that he had “observed the occupant throw something out of the vehicle and it went over the side of the bridge.” Trooper Hernandez stated that he went “down around to the intersection of Tockwotton Street and South Water Street” in order to investigate the area that was below the bridge and perpendicular to the passenger's side of the SUV. In response to being asked why he focused on that area, he stated:
Trooper Hernandez testified that, after climbing up to the second tier of the bridge abutment, he found a handgun lying on its side approximately fifteen to twenty-five feet below and ten to fifteen feet perpendicular to the part of the bridge where the SUV was positioned; he added that, from where he was standing when he discovered the handgun, he could see the SUV. He testified that there were four or five live ammunition rounds around the handgun and that there was one “spent cartridge that was half in the cylinder of the revolver.” He testified that, although the abutment was dirty and sandy, the handgun was not. Trooper Hernandez identified the handgun shown to him at trial as being the same one that he had observed on the abutment.
Rhode Island State Police Corporal John Grassel also testified at trial, after first having been qualified by the trial justice as an “expert in crime scene evidence collection.” He testified that, on the morning of September 13, 2010, he was called to assist other troopers at a crime scene located at “South Water and Tockwotton Street * * * in the area of the Iway Bridge.” He stated that at that crime scene he recovered from the bridge abutment a .38 caliber revolver, one cartridge casing which was partially inside one of the chambers of the gun, and five cartridges in the immediate vicinity of the weapon; he identified the handgun entered into evidence at trial as being the same handgun that he observed on September 13, 2010. When he was shown at trial a photograph of the handgun lying on the abutment, Corporal Grassel pointed out that the photograph showed a glass bottle near the handgun, and he testified that he had observed that glass bottle when he recovered the handgun near the abutment. Corporal Grassel stated that, while there was debris including sand, gravel, and cigarette butts on the abutment where he recovered the gun, “the firearm was relatively clean, as far as soot or soil,” whereas the bottle “had a layer of soot or sand on it.”
According to Corporal Grassel's testimony, the firearm was tested for fingerprints approximately six months after it was seized. He further testified that there were no latent fingerprints on “the cartridges, the cartridge, the cartridge casing, or the weapon;” however, he added that the chance of finding fingerprints “would definitely be less after six months.” Corporal Grassel stated that the bottle was neither seized nor processed for fingerprints. H...
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...the prosecution, giving full credibility to its witnesses, and drawing all reasonable inferences consistent with guilt.” State v. Ferrer, 92 A.3d 138, 144 (R.I.2014) (internal quotation marks omitted); see State v. Gomez, 116 A.3d 216, 224–25 (R.I.2015) ; State v. Fleck, 81 A.3d 1129, 1133 ......