State v. Gardiner
| Decision Date | 31 January 1994 |
| Docket Number | No. 91-626-C,91-626-C |
| Citation | 636 A.2d 710 |
| Parties | STATE v. Anthony J. GARDINER. A. |
| Court | Rhode Island Supreme Court |
This case came before this court on the appeal of the defendant, Anthony J. Gardiner (Gardiner), from a Superior Court judgment of conviction on five counts of assault with a dangerous weapon and one count of witness intimidation. In 1990 the trial justice denied the defendant's motion for a new trial and sentenced him to a total of fifteen years in the Adult Correctional Institutions. On appeal the defendant seeks to have this court vacate his conviction and remand to the Superior Court for a new trial. We affirm.
The record of this case is voluminous--nine volumes containing a total of 1,739 numbered pages. Hence, we relate only that precis of relevant facts pertinent to the issues raised on appeal.
It is undisputed that on the night of September 6, 1989, Irene Bassett (Bassett) suffered a brutal attack that multiple perpetrators committed. In her testimony, Bassett referred to four male assailants, one black and three white.
Clad in a pink sweatsuit, Bassett was doing her laundry on the bottom floor of her residence at 35 Lake Street in Warwick when she heard what she thought was her cat crying outside. She checked outside the apartment building twice to see what was happening and to let the cat in, but the crying stopped both times she went out the door. A few minutes later, Bassett heard the crying a third time and stepped outside to investigate.
Suddenly someone on her right side struck her in the head with an object. Two attackers grabbed her, one from each side, and someone slapped tape over her mouth. They shoved her and kneed her in the back, directing her through the grassy yard behind the apartment building and into the woods. Bassett struggled, dragging her feet and trying to halt the movement toward the woods. As they moved across the yard, she noticed that a white arm was holding her on her right side and a dark arm was holding her left side. She heard the attacker to her left, a black man whom she later identified as Gardiner, say such things as "knock her out" and something about shutting her up.
As they crossed the yard, her attackers hit her on the head and the back with the same object with which they had initially struck her, which object she described as a pipe. As they approached the woods, she saw Richard Fines (Fines) facing her, a man whom she knew well; she thought he was a friend there to help her. Before they reached the edge of the woods, the white-armed man used a long knife to slice her abdomen. Fines turned around and walked into the woods and her two attackers pushed her into the woods behind him.
There, they tried to tape her hands together, but she freed her left arm from Gardiner's grip and grabbed the tape from the white-armed man to throw it. Bassett and the attackers who flanked her struggled for the tape. She did not know where Fines was at that point. Bassett managed to sit on the tape, but the man on her right grabbed and held her while Gardiner taped her wrists together behind her back. During the struggle over the tape, Bassett was able to see the faces of both men. Bassett testified that, when she was lying on her side on the ground as Gardiner taped her arms behind her back, she saw his face for "a few seconds * * * the most thirty seconds." Part of that time, she was located at most a foot away from him.
After her arms were taped, her attackers brought her to her feet and pushed, dragged, and hit her as they had before, directing her deeper into the woods. Bassett further testified that they told her that this would shut her up. At some point much farther into the woods they stopped, and a third assailant taped her feet together. She recognized the man who taped her feet as Frederick Heon (Heon), although he was not a friend as Fines was.
Bassett testified that Gardiner held her down while her feet were being taped and then looked directly at her and said, "I'm going to shut you up, you fucking bitch." She attempted to roll away, but Fines kicked her back, and Gardiner said that he wanted her tongue out. One of the other assailants responded that he was "not going to jail because of this cunt." Then the assailant on her right removed the tape from her mouth and tried to pull out her tongue, whereupon she pulled away and bit him. Someone smacked her in the cheek with the pipe, and one assailant held her tongue while another sliced it, using the same knife with which he had cut her abdomen. When Bassett tried to pull her head away, he sliced her face also. Meanwhile, Gardiner was still holding her down.
They retaped her mouth and continued hitting her; Gardiner kept urging them to "knock her out." Blood ran down her throat, choking her and making her feel ill and have difficulty breathing. The man to her right then sliced open her shirt and bra, cut her chest, and incised an X across her nipple while Gardiner held her down. Another assailant then bit her nipple and shook his head while doing so. Gardiner held down her legs while the assailant with the knife cut her pants and, she believed, her underwear. Gardiner said something to the effect of "If this doesn't shut you up I'm going to get those little bastard kids." Gardiner was near her feet when another assailant inserted a finger inside her vagina. Bassett testified that she was screaming to whatever extent she could with the tape covering her mouth. When she heard a woman's voice from a distance, her attackers started to flee. She heard the men say "Where's Frankie?" and "Over there." Then someone asked, "What did you do with it?" and someone said, "I threw it." She testified that during the course of the attack, she heard the names Ray or Jay and Rick, and she vaguely recalled hearing Tony.
Some residents of and visitors to Lake Street that night responded to what some thought were the sounds of a crying animal or cats fighting. They went into the woods and found Bassett lying on her side, moaning, with her mouth taped shut and her feet and arms bound by tape. Someone called the police, and Bassett was taken to Kent County Memorial Hospital in an ambulance and treated and released.
A grand jury investigated and ultimately charged defendant and three other men, Heon, Fines, and Edward Kollett (Kollett), in connection with this incident. All four were charged with five counts of assault with a dangerous weapon, one count of witness intimidation, one count of assault resulting in serious bodily injury, one count of assault with intent to murder, one count of kidnapping, and one count of assault and battery. Additionally Heon was charged with first-degree sexual assault for engaging in sexual penetration of Bassett. Gardiner, Kollett, and Fines were charged with aiding and abetting Heon in the commission of that offense. Prior to trial, the state dismissed the charges of assault and battery and assault with intent to murder pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. The trial justice granted defendant's motion to sever his trial from that of his codefendants.
The defendant's trial then took place over several days. The trial justice granted defendant's motion for judgment of acquittal on the kidnapping charge. Subsequently, the jury convicted defendant of the five counts of assault with a dangerous weapon and witness intimidation; the jury acquitted him of assault resulting in serious bodily injury and aiding and abetting first-degree sexual assault.
On appeal, defendant alleges three areas of error in the trial record. He claims that (1) the trial justice abused his discretion by refusing to permit an expert witness to testify on behalf of defendant regarding eyewitness identification; (2) the trial justice erred by denying defendant's motion to suppress Bassett's in-court and out-of-court identifications; and (3) the trial justice erred by denying defendant's numerous motions to pass the case.
The defendant argues that the trial justice abused his discretion when he refused to allow an expert witness, Professor Robert Buckhout (Buckhout), to testify on behalf of the defense regarding eyewitness identification. The defendant sought to have Buckhout testify regarding numerous issues and research findings: the effect of stress on perception and recall; the absence of a correlation between confidence in and accuracy of identification; problems that may occur in cross-racial identifications; "weapon focus," the notion that when a victim spends time watching a weapon it detracts from the time during which he or she can view the assailant or assailants; the decrease in the ability of a witness to identify a given individual when there have been multiple assailants; the finding that humans do not have a highly developed time-estimation skill; and the effect of showing a witness a set of photographs on two separate occasions when one of the photographs is repeated. During a long voir dire hearing on Buckhout's qualifications, research, and potential testimony as well as on counsel's arguments in favor of and against his testifying, the trial justice qualified Buckhout as an expert in the field of memory psychology. Counsel conducted extensive direct and cross-examination. The jury was not present in the courtroom during the voir dire proceeding, which consumed more then eighty pages of transcript. The trial justice excluded the expert's testimony, stating:
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