State v. Gomes
| Decision Date | 13 March 1992 |
| Docket Number | No. 90-413-C,90-413-C |
| Citation | 604 A.2d 1249 |
| Parties | STATE v. Richard GOMES. A. |
| Court | Rhode Island Supreme Court |
This matter comes before the Supreme Court on the defendant's appeal from a judgment of conviction in Superior Court on a charge of assault with intent to murder and possession of a firearm by one previously convicted of a crime. We affirm.
On the evening of March 16, 1985, Arthur MacRae, Frank MacRae, Al Ortiz, and Danny Quinn met at Frank MacRae's house in the Silver Lake section of Providence. Around two in the morning of the seventeenth the foursome decided to go to the New York System in the Olneyville section of Providence to get some hot weiners and cigarettes. They all got into Arthur MacRae's Dodge Colt and made the five- to ten-minute drive to the New York System. Arthur MacRae drove and Al Ortiz sat in the front passenger seat. Frank MacRae sat in the back seat on the passenger side, and Danny Quinn sat in the back seat on the driver's side.
Arthur MacRae parked his car in front of the New York System. The area was well illuminated by the lights from the restaurant and from flood lights at the gas station across the street. Arthur remained in the car with his cousin Frank while Danny Quinn and Al Ortiz went into the restaurant to order hot weiners. About five minutes later, Al Ortiz came out of the restaurant and got back into the front passenger seat of the car and began eating his hot weiners.
At about the same time Louis Tiberio (Tiberio) arrived at the New York System accompanied by his friend Dale Schaeffer (Schaeffer). Tiberio parked close to the restaurant, and he and Schaeffer went into the restaurant to get some food. Tiberio left the restaurant first and stayed outside and stood at the corner of the restaurant building. He stood near an older, heavy-set man with a receding hairline who was wearing a brown waist-length jacket. When Schaeffer exited the restaurant, the two men got into Tiberio's car to eat their food. Moments later the following occurred.
The older, heavy-set man approached Arthur MacRae's car. This man went to the back window on the passenger side, where Frank MacRae was still seated, and drew a gun. The man pointed the gun at Frank MacRae's face and asked if he had a problem and what he was looking at. Frank MacRae responded that he had no problem and that he was just looking out the window. The gunman then pointed the gun at the back of Al Ortiz's head and asked him the same question. Al Ortiz gave the same answer as Frank MacRae. Next the gunman put the gun into his pants and went back to the takeout window at the New York System.
A few moments later Danny Quinn came out of the restaurant. Frank MacRae yelled to him to "watch out because the man at the take-out window has a gun." Danny Quinn ran to the side of the car. At that moment the gunman approached the car and began firing shots at the men in the car. Al Ortiz attempted to get out of the line of fire by climbing into the back seat. He got stuck, however, between the bucket seats and was hit by four shots in the right leg, left leg, back, and stomach. Two of the shots hit Arthur MacRae in the left leg. The gunman then put the gun back into his pants and ran down the street and around the corner. Tiberio, who heard the gun shots, saw the man run away. Danny Quinn chased the gunman, but as he rounded the corner another man grabbed him and told him to stop the chase. He was, however, able to see the gunman get into a car and drive away.
Al Ortiz was transported by ambulance to St. Joseph Hospital, where he remained for over six weeks to receive treatment for his wounds. After being shot Arthur MacRae opened the driver's door and fell out of the car. He went across the street to the gas station to seek assistance. No one was there, but he was able to flag down a van that took him to Roger Williams Hospital. Arthur remained in the hospital for eleven days under treatment.
About five weeks later Providence police arrested a man named James Chiellini (Chiellini) for breaking into and entering a food store on Atwells Avenue. Chiellini, who was on probation at the time of this arrest, faced up to thirteen years in prison if convicted of this charge. Providence police detective Steven Cross told Chiellini that he would not be charged with the breaking and entering if he could provide the police with useful information. Chiellini then told Cross that he had witnessed a shooting at the New York System in Olneyville. At that time Chiellini told Cross that the gunman was Richard Gomes. Moreover at trial Chiellini admitted that he was the one who had prevented Danny Quinn from pursuing the gunman immediately after the shooting.
Relying on this information, Providence police summoned Arthur MacRae, Frank MacRae, Al Ortiz, and Danny Quinn to the police station a few weeks after the shooting. Frank MacRae, Al Ortiz, and Danny Quinn were able to identify pictures of Richard Gomes as the man who shot at them in Olneyville on March 17, 1985. Furthermore, at another time Tiberio was able to identify pictures of Richard Gomes as the gunman. Based on this evidence the jury found defendant guilty of assault with the intent to commit murder and possession of a firearm by one previously convicted of a crime.
On this appeal defendant raises nine allegations of error by the trial justice. After considering the issues raised, we find no error and therefore affirm the judgment of conviction.
The first issue that defendant raises is that the trial justice erred by denying his motion to suppress the identifications given by the witnesses Tiberio, Frank MacRae, Danny Quinn, and Albert Ortiz. The defendant argues that denial of his motion to suppress was error because the identifications were inadmissible on three grounds. First, he argues that the identifications were the result of suggestive identification procedures and lacked independent reliability. Second, he submits that a variety of factors, including the witnesses' exposure to newspaper accounts and photos of defendant group discussions held among the witnesses concerning the identifications, and the inaccurate, contradictory, and changing description of the gunman by the witnesses all make the identifications inadmissible. Finally, defendant argues that the witnesses lacked personal knowledge of the matter, as required by Rule 602 of the Rhode Island Rules of Evidence.
We note that when reviewing the decision of the trial justice on a motion to suppress "the duty of the reviewing court is to view the evidence in the light most favorable to the government and apply the 'clearly erroneous' rule." State v. Beaumier, 480 A.2d 1367, 1375 (R.I.1984).
It is well settled that a two-part test is employed in determining whether an identification procedure has violated a defendant's due process rights. First, a court must consider whether the procedures used in the identification were unnecessarily suggestive. Second, if the procedures were suggestive, then a court must determine if the identification lacks independent reliability despite the suggestive nature of the identification procedure. State v. Camirand, 572 A.2d 290, 293 (R.I.1990); State v. Barnes, 559 A.2d 136, 140 (R.I.1989); State v. Nicoletti, 471 A.2d 613, 615 (R.I.1984). To determine if the identification procedures are unnecessarily suggestive, we must "compare the physical characteristics of each individual featured in the display to the general description of the suspect given to the police by the victim." Barnes, 559 A.2d at 140. "The factors to be considered when determining if an identification is independently reliable include the opportunity of the witness to view the criminal, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Camirand, 572 A.2d at 294 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977)).
Furthermore, in State v. Pailon, 590 A.2d 858 (R.I.1991), this court considered the effect suggestions made by private persons to the witness had on the reliability of the witness's identification. In Pailon a jewelry store was robbed by the defendant and an accomplice. The owner of the jewelry store had an opportunity to observe the robber but could not pick his picture out of a photo lineup. About four weeks later a man named Anderson went to the jewelry store and told the victim the name of the robbers. This man also showed the victim a picture of the defendant. After seeing this picture, the victim was instantly able to identify the defendant. Four months later the victim was asked to view a lineup by Newport police. The victim was able to identify the defendant as her assailant. At trial, the defendant objected to this identification, arguing that it was tainted as a result of the suggestions made by Anderson.
The Pailon court approved of the trial justice's finding that the victim's in-court identification of the defendant was reliable and independent of both the photograph presented by Anderson and the lineup by Newport police. Id. at 860. The court then further considered the effect of private action upon due-process requirements for identifications. The court noted that United States Supreme Court cases "prohibited the introduction of eyewitness-identification testimony that has been tainted by official pretrial procedures * * *." 1 Id. at 862. The purpose of this rule is to deter unconstitutional official procedures that will deny a defendant his or her due-process rights. On the other hand, when the offending conduct is made by a private person, the reason for having the exclusionary rule disappears....
To continue reading
Request your trial
-
State v. Oliveira
...place, did not involve state action, thus, the due process exclusionary rules do not apply to that identification. See State v. Gomes, 604 A.2d 1249, 1254 (R.I. 1992) (noting that a motion to suppress an identification "should not be granted on the basis of private actions such as a witness......
-
State v. Ros
...by the court in limiting the re-reading only to the direct examination would amount, at worst, to harmless error"); State v. Gomes, 604 A.2d 1249, 1259-60 (R.I.1992) (omitted testimony had negligible prejudicial effect because it was presented through other witnesses and the jurors could ha......
-
Com. v. Johnson
...v. Classen, 285 Or. 221, 232-233, 590 P.2d 1198 (1979); Commonwealth v. Baker, 531 Pa. 541, 552, 614 A.2d 663 (1992); State v. Gomes, 604 A.2d 1249, 1253 (R.I.1992); State v. Stewart, 275 S.C. 447, 450, 272 S.E.2d 628 (1980); State v. Phinney, 348 N.W.2d 466, 468-469 (S.D.1984); State v. Sh......
-
Tempest v. State
... ... 169, 175, 342 A.2d 250, 253 (1975) ... As such, the law is well-settled that "a prosecutor ... cannot knowingly present perjured testimony [and] ... bears ... responsibility for correcting what he or she knows to be ... false and eliciting the truth." State v. Gomes , ... 604 A.2d 1249, 1254 (R.I. 1992) (internal citations omitted) ... Mr. Tempest asserts that in the case against him, the State ... did just that-presenting the testimony of Ms. Carrier and Mr ... Guarino while knowing that aspects of their statements were ... ...