State v. Gallagher
| Decision Date | 23 February 1995 |
| Docket Number | No. 93-123-C,93-123-C |
| Citation | 654 A.2d 1206 |
| Parties | STATE v. David GALLAGHER. A. |
| Court | Rhode Island Supreme Court |
This case comes before us on appeal by the defendant, David Gallagher (Gallagher/defendant), from judgments of conviction based upon two unrelated indictments involving three charges. The first indictment charged defendant with one count of simple assault and battery upon Francis Tessina, Jr., in violation of G.L.1956 (1981 Reenactment) § 11-5-3, P.L.1988, ch. 539, § 8. The second, a two-count indictment, charged defendant with the robbery and kidnapping of Bette Costa in violation of G.L.1956 (1981 Reenactment) § 11-39-1 and § 11-26-1, P.L.1988, ch. 539, § 10. A jury found Gallagher guilty on all three counts. He was sentenced to concurrent fourteen-year terms with seven years to serve and seven years suspended for the robbery and kidnapping charges and to a concurrent one-year sentence for the assault and battery charge. We vacate the judgments of conviction. The facts insofar as pertinent to this appeal are as follows.
On February 14, 1989, at approximately eight o'clock in the evening a group of approximately eight teenaged boys, including defendant, was walking down Cowie Street in Newport, having just finished playing a game of basketball. Because the group was talking, laughing, and acting "boisterously," three officers from the Newport police department, who were on foot patrol, approached them. Lieutenant Francis Tessina (Lieutenant Tessina) and the other two officers informed the young men that after receiving many complaints about groups of young people congregating and causing problems, they would no longer tolerate youths congregating and "fooling around." Words were exchanged between the officers and the boys, and Lieutenant Tessina later testified that defendant threatened his family, specifically his son, Francis Tessina, Jr. (Tessina, Jr.).
Approximately forty minutes after the first encounter between the group of young men and the three police officers, the car occupied by the young men was stopped by several Newport police officers, including two that had been present at the earlier encounter. Lieutenant Tessina testified that he remembered arriving at the scene after the officers had taken the boys out of the car. He thought the police were detaining the group because the driver had a suspended license. He stated on cross-examination that defendant was not thrown against the car and was not beaten by any police officers.
Later at trial, Kenneth Jenkins (Kenneth), one of the boys with defendant that night, testified to a very different scenario. He stated that during the initial encounter with Lieutenant Tessina, words were exchanged between the boys and the officers. Still shouting at the officers, the boys were walking to Kenneth's car when four or five police cars pulled up beside them. The police told the boys that they were looking for a gun that they claimed was in the car or in the possession of one of the boys. The officers jumped out of their cars, threw the boys up against Kenneth's car, and searched the car and each of its occupants for the gun. Kenneth testified that the officers threw Gallagher on the ground and put him in the "claw," a device that restricts and twists a person's arms. The police were reluctant to let Gallagher loose, but they eventually released him. Robert Jenkins (Robert), Kenneth's brother, also testified that the police had defendant in the claw and in addition, that Lieutenant Tessina was present while four officers "rough[ed] him up" and hit him.
Approximately a week later, on the evening of February 22, 1989, Tessina, Jr., and Gallagher were involved in an altercation outside a birthday party that was being held at Kenneth's house. This incident gave rise to the charge of assault and battery against defendant. Tessina, Jr., Lieutenant Tessina's son, testified that Gallagher approached him and told him that Lieutenant Tessina had been harassing him. Tessina, Jr., told Gallagher that whatever happened between Gallagher and his father had nothing to do with him (Tessina, Jr.). Gallagher responded by hitting him in the face and then kicking him. Jeffrey Smith, another youth at the party testified, however, that Tessina, Jr., not only instigated the argument with Gallagher but also struck the first blow.
The defendant's convictions for robbery and kidnapping arose out of an incident which took place on February 26, 1989. Bette Costa (Bette), a resident of Newport at the time, testified that she had an agreement with a man in her neighborhood, Tyron Neal (Tyron), to sell fifteen vials of crack cocaine that he had given her on February 25, 1989. Bette testified that she decided not to sell the drugs and gave away five vials and threw away the other ten. The next day, on February 26, 1989, Tyron attempted several times to get money from Bette for the fifteen vials. He and his friends first drove her to Western Union where she was unsuccessful in obtaining any money. Next they took her to 46 Chadwick Street where they threatened to harm her if she did not pay Tyron for the drugs. Bette testified that defendant was present at 46 Chadwick Street and that, with a lighter, he ignited the spray from an aerosol can and used it as a torch, directing the flames at her. Soon after this incident Bette was allowed to leave the house, and Tyron told her that she had until "later" to obtain the money.
Bette testified that later in the evening, Tyron and several others, not including Gallagher, forcibly entered her house as she was returning home from an errand. They forced her into a car and once again drove to 46 Chadwick Street. When they arrived at the house, they put her into a chair that they called "the torture chair" and Tyron used a knife to cut off some of her hair. Bette testified that defendant was in the room during this incident and that he suggested to Tyron that they give Bette a "blanket party," meaning they should throw a blanket over her head and then everyone would hit her. At one point the lights were out, and Bette attempted to run out of the house through the back door. Bette testified that defendant blocked the back door with a chair and punched her in the face. Two women at the house, Michelle Carter (Michelle) and Carissa Pina, then searched Bette's pockets and took $66 from her. After several people in the house beat and kicked her, Tyron physically threw Bette out of the house. Once she was free, Bette related these events to two police officers who were driving down Chadwick Street. Approximately ten minutes later, she returned with the officers to 46 Chadwick Street and identified several people in the house, including defendant, as those who had participated in the foregoing events.
The testimony of four defense witnesses contradicted Bette's version of Gallagher's actions on the night of February 26, 1989. Robert testified that on the night of February 26, 1989, he was with defendant at 46 Chadwick Street but that they were upstairs while Bette was in the house. He testified that after hearing a commotion, they immediately went downstairs and saw Bette running out of the building.
Michelle, who had also been present at 46 Chadwick Street that night, testified concerning Gallagher's whereabouts. She stated that while Bette was at the residence, she (Bette) was detained by Tyron and his friends. She testified that Gallagher was upstairs with someone else while Bette was in the house and that to her knowledge he was not involved in any detention of or physical harm to Bette that evening.
A third witness, Bernard Tribble (Tribble), testified that on February 26, 1989, he drove Tyron to Bette's house to pick her up and then drove them both back to 46 Chadwick Street. The defendant was not in the car during this incident. Tribble testified that after dropping off Tyron and Bette, he went to make a phone call and returned to the house approximately one half hour to an hour later. He stated that Bette was seated and Tyron and a group of Tyron's friends were standing around her, but that Gallagher was not part of this group. He testified that he did not see defendant use an aerosol can as a torch, nor did he see defendant strike Bette. Tyron also testified for the defense. At the time of trial he was serving a sentence at the Boys Training School. Tyron testified that defendant was upstairs during the confinement and robbery of Bette and that defendant had not been involved.
The defendant claims in his appeal that prejudicial evidence was improperly admitted in two instances. He contends that the admission of this evidence was improper because it was both irrelevant and highly prejudicial. We agree.
The first instance involved the testimony of a defense witness, Kenneth, who was a friend of Gallagher. On direct examination Kenneth described an encounter between a group of approximately eight of his friends, including himself and defendant, and the Newport police on the night of February 14, 1989. He testified that as he and his friends were walking back towards his car on Cowie Street following a basketball game, two police officers approached them and words were exchanged. Shouting ensued between the group and the two officers, and before the group reached Kenneth's car, four or five police cars had arrived at the scene. Kenneth testified that the police officers threw him and his friends against his car and said that either there was a gun in the car or that one of the boys was carrying a gun. The officers then proceeded to search the car and each person in the group.
During the state's cross-examination, the prosecutor questioned Kenneth about this incident...
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