State v. Gomes

Decision Date08 January 2001
Docket NumberNo. 00-42-C.A.,00-42-C.A.
Citation764 A.2d 125
PartiesSTATE v. Marc GOMES.
CourtRhode Island Supreme Court

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Virginia M. McGinn, Aaron L. Weisman, Providence, For plaintiff.

Richard K. Corley, Providence, For defendant.

OPINION

BOURCIER, Justice.

Following his convictions, after a Superior Court jury trial, on one count of first-degree murder and one count of carrying a pistol without a license, and after sentence and final judgment entered thereon, the defendant, Marc Gomes (Gomes), appeals to this Court, seeking reversal of his convictions and a new trial.

I Facts and Procedural History1

At approximately 1 a.m., on November 25, 1997, the decedent, Robert Wray (Wray), was cold-bloodedly shot dead on the doorstep of his mother's apartment at 8 Whelan Road, in the Hartford Avenue Housing Complex in Providence. Minutes later, the police arrived, and they spoke to Wray's friend, Tavell Yon (Yon), who told them that he had been visiting at the apartment when the shooting occurred.

Yon told the police that shortly before 1 a.m., he and Wray had been sitting in the living room watching television when he heard a knock at the rear door of the apartment. He said he answered the door knock and encountered a young black male whom he never had seen before. The young man asked to speak to Wray, so Yon called Wray to the door and then returned to the living room. From the living room, Yon overheard the young man ask for "Frankie" and then tell Wray that: "you know who I am, I'm Frankie's cousin." Wray informed him that Frankie was not in the apartment, and the visitor then left.

Several minutes later, there was a second knock at the rear door. Once again, Yon went to the door and encountered the same young man, who again said he was looking for Wray. Yon again called Wray to the door and then went back inside the apartment. Within seconds, Yon heard a loud bang sounding like a gunshot and immediately looked over to where Wray had been standing in the doorway. He saw Wray now lying on the ground with one foot extending inside the door opening. Wray's younger brother, who also was in the apartment, immediately dialed 911 for police assistance. The police arrived within minutes. Yon then related to one of the officers the events that had taken place before the shooting and described the young stranger at the door as:

"a short black male with Jerry curls with a moustache. He had craters and pimples in his face and he was wearing a black leather jacket."

The description of the murder suspect was immediately transmitted via the police broadcast system to all police personnel in the area, along with a warning that the suspect could be armed and dangerous.

After hearing the broadcast, one officer who immediately responded to the shooting scene was Patrolman Jose Deschamps (Officer Deschamps). Officer Deschamps briefly assisted in securing the crime scene and then proceeded a short distance down Hartford Avenue to the Olneyville Square section to search for the suspect. While in Olneyville Square, the officer decided to go to a nearby "Store 24," better known as "Sam's," where he was friendly with the employees. He wanted to alert them that a murder had just been committed a short distance away and the suspected murderer was at large and believed to be armed. The officer was concerned for the employees' safety because recently they had been the victims of an armed robbery and because the store was one of the few places that remained open in the Olneyville Square area at that early-morning hour. The officer arrived at the store ten to fifteen minutes after the shooting. As he entered, he observed a person who appeared to be making a phone call from a pay telephone located on the outside wall of the store. The officer was unable to see the person's face. After entering the store, Officer Deschamps described the shooting suspect to the store employees and warned them that the subject might be armed and dangerous. He then left the store.

As he exited, Officer Deschamps again looked in the direction of the person he had observed earlier, and noticed that he was still using the outside public telephone. This time, however, he looked more closely at the individual and was able to see his face. He observed the individual to be a black male of approximately "five foot four to five foot six" inches in height, with a "crater face, or pimples," and "slicked, very greasy" hair with "Jerry curls." He also observed that the man, despite the cold night weather, was not wearing any jacket, but "was sweating." Recalling the police radio description of the00485B shooting suspect and relating it to that of the male individual using the telephone, who also appeared to be very nervous and sweating, Officer Deschamps's suspicions were aroused. He started to approach the young man. While doing so, he began asking him several rapid questions concerning the person's identity and what was he doing out so late. As he did, the young man appeared to become more nervous and began "stuttering, mumbling his words" while attempting to answer the officer's questions. He appeared to be "very much in a nervous state."

When Officer Deschamps reached where the young man was standing, he attempted to place his right hand on the young man's left shoulder to initiate a protective pat-down search for possible weapons. Just then, the young man suddenly jerked back, and as he did, Officer Deschamps's arm accidentally slid down the person's side and he felt what he believed to be the bulk of a gun under the young man's shirt. He quickly lifted the shirt and observed a loaded 9-millimeter pistol in the person's waistband. He immediately pulled it out and observed it to be cocked and ready to fire. The officer then placed the pistol on the ground and secured it with his foot. While detaining the young man, Officer Deschamps immediately radioed for police back up assistance to aid in placing the young man under arrest.

Meanwhile, another officer, Patrolman Charles Matracia (Officer Matracia), who had just left the murder scene, was driving through Olneyville Square when he heard Officer Deschamps's radio call for assistance. At the time, he was driving the witness Yon to the Providence police headquarters to be interviewed. Officer Matracia quickly made a "U-turn" in the road and within seconds he was about five feet from where Officer Deschamps was detaining the young suspect. Upon seeing Gomes, Yon, seated in the police vehicle, suddenly exclaimed "that's him right there" and, he "was the guy that came to the door." Officer Matracia then jumped from his police vehicle and proceeded to assist Officer Deschamps in placing the suspect under arrest and securing the pistol found on him. The young man was placed in a police vehicle and taken to police headquarters. Shortly thereafter, Yon was interviewed at the Providence police headquarters. He gave a detailed statement in which he reiterated his earlier identification of the young man, now identified as the defendant, Marc Gomes. He said that Gomes "was the guy that came to the door" and that he "saw him clearly." He added that "the only thing different [from when he originally described Gomes] was that the guy wasn't wearing a leather jacket anymore, but it definitely was the same guy that came to the door."

Gomes was later indicted, tried before a Superior Court trial jury, and convicted both for the first-degree murder of Robert Wray and for carrying a pistol without a license. This appeal followed. In his appeal, Gomes contends that the trial justice committed various errors during trial, and for those alleged errors, he seeks reversal of his convictions and a new trial.

Additional facts will be noted as required in the course of this opinion.

II The Police Broadcast

Gomes asserts here on appeal that the description given of the suspected murderer by Tavell Yon to Officer Thomas Calabro and then broadcast by Calabro via police radio to other officers in the immediate area of the murder scene constituted "rank hearsay" and should not have been admitted into evidence at his trial, and that its admission constituted prejudicial error.

"It is axiomatic that an out-of-court statement is not hearsay unless it is offered for the truth of the matter asserted." State v. Johnson, 667 A.2d 523, 530 (R.I.1995) (citing State v. Brash, 512 A.2d 1375, 1379 (R.I.1986)). "Statements not offered to prove the truth of what they assert are not hearsay and as such do not require the assistance of an exception to the hearsay rule in order to be00485B admissible." In re Jean Marie W., 559 A.2d 625, 629 (R.I.1989) (citing Gordon v. St. Joseph's Hospital, 496 A.2d 132, 136 (R.I.1985)).

In the present case, "[t]he entire purpose of [Officer Deschamps's] testimony was to show why he apprehended [the defendant]. It was not objectionable hearsay because the radio message was not offered to prove [the defendant's] guilt." State v. Palmigiano, 112 R.I. 348, 359, 309 A.2d 855, 862 (1973). See also State v. Mastracchio, 112 R.I. 487, 498, 312 A.2d 190, 197 (1973). It is well settled that reliable hearsay may be used in order to establish probable cause for the purpose either of an arrest or issuance of a warrant. See, e.g., Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed.2d 684 (1965); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L. Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Rule 801 of the Rhode Island Rules of Evidence defines hearsay as being "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Gomes apparently neglects to note that...

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28 cases
  • State v. Oliveira
    • United States
    • Rhode Island Supreme Court
    • July 6, 2001
    ...are not hearsay and as such do not require the assistance of an exception to the hearsay rule in order to be admissible." State v. Gomes, 764 A.2d 125, 131 (R.I.2001) (quoting In re Jean Marie W., 559 A.2d 625, 629 (R.I.1989)). "Absent a showing of abuse of discretion this [C]ourt will not ......
  • State v. Lynch
    • United States
    • Rhode Island Supreme Court
    • August 12, 2004
    ...I therefore cannot agree that the admission of Tillotson's testimony was harmless error beyond a reasonable doubt. See State v. Gomes, 764 A.2d 125, 135 (R.I.2001). Consequently, I believe that the admission of her testimony was reversible Similarly, I would also hold that allowing Sergeant......
  • State v. Flores
    • United States
    • Rhode Island Supreme Court
    • June 21, 2010
    ...was involved in the sale of crack cocaine to an undercover police officer in the Olneyville section of Providence); State v. Gomes, 764 A.2d 125, 129-30 (R.I.2001) (police correctly surmised that murder suspect would be found at a nearby store in Olneyville that recently had been robbed at ......
  • Henshaw v. Doherty
    • United States
    • Rhode Island Supreme Court
    • September 2, 2005
    ...supporting a warrant is partially based on or accompanied by hearsay, that fact alone does not invalidate the warrant. See State v. Gomes, 764 A.2d 125, 131 (R.I.2001) ("It is well settled that reliable hearsay may be used in order to establish probable cause for the purpose either of an ar......
  • Request a trial to view additional results
12 books & journal articles
  • Leading questions
    • United States
    • James Publishing Practical Law Books Is It Admissible? Part I. Testimonial Evidence
    • May 1, 2022
    ...calling for a “yes” or “no” answer are not “leading questions” unless they are unduly suggestive under the circumstances. State v. Gomes , 764 A.2d 125. (R.I. 2001); State v. Wiggins , 526 S.E.2d 207 (N.C.App., 2000); Powell v. State , 995 P.2d 510 (Okla. Crim. App., 2000); State v. Allison......
  • Leading Questions
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part I - Testimonial Evidence
    • July 31, 2015
    ...as in the case where a party is “cross-examined” by his own attorney after that party was called by an opponent. 4 State v. Gomes , 764 A.2d 125. (R.I. 2001); State v. Wiggins , 526 S.E.2d 207 (N.C.App., 2000); Powell v. State , 995 P.2d 510 (Okla. Crim. App., 2000); State v. Allison , 845 ......
  • Leading Questions
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Testimonial evidence
    • July 31, 2017
    ...calling for a “yes” or “no” answer are not “leading questions” unless they are unduly suggestive under the circumstances. State v. Gomes, 764 A.2d 125. (R.I. 2001); State v. Wiggins, 526 S.E.2d 207 (N.C.App., 2000); Powell v. State, 995 P.2d 510 (Okla. Crim. App., 2000); State v. Allison, 8......
  • Leading Questions
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part I - Testimonial Evidence
    • July 31, 2014
    ...as in the case where a party is “cross-examined” by his own attorney after that party was called by an opponent. 4 State v. Gomes , 764 A.2d 125. (R.I. 2001); State v. Wiggins , 526 S.E.2d 207 (N.C.App., 2000); Powell v. State , 995 P.2d 510 (Okla. Crim. App., 2000); State v. Allison , 845 ......
  • Request a trial to view additional results

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