State v. Gomez

• Decision Date: 17 May 2004
• Docket Number: No. 2002-274-C.A.,2002-274-C.A.
• Citation: 848 A.2d 221
• Parties: STATE v. Marcelino Collazo GOMEZ.
• Court: Rhode Island Supreme Court

848 A.2d 221

STATE v. Marcelino Collazo GOMEZ.

No. 2002-274-C.A.

Supreme Court of Rhode Island.

May 17, 2004.

Virginia M. McGinn, Providence, for Plaintiff.

Christopher S. Gontarz, Middletown, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY, and SUTTELL, JJ.

OPINION

SUTTELL, Justice.

"Before you embark on a journey of revenge, dig two graves."¹

This maxim of venerable wisdom is no less true today than it was during the Chou Dynasty of ancient China. It is a lesson that the defendant Marcelino Collazo Gomez (Gomez or defendant), a young gang member who lived by the code "a bullet for a bullet," will have a lifetime to reflect upon at the Adult Correctional Institutions (ACI). Sadly, the first grave belongs to Jason Gonzalez (Gonzalez), a member of a rival gang.

On the evening of January 9, 1998, Gonzalez was gunned down as he attempted to run away from his assailants in Dunn Park in Woonsocket, Rhode Island. Three shots were fired, two of which struck Gonzalez, the fatal bullet entering the middle of his back and perforating his heart and right lung. He died of massive internal hemorrhage caused by the gunshot wound.

Gomez was tried before a jury on two separate occasions on charges stemming from the incident. At the first trial, in October 1999, he was convicted of conspiracy to commit murder and was sentenced to ten years, six years to serve, at the ACI. The jury, however, was deadlocked on the murder charge, and a mistrial was declared on that count. The second trial, held in June 2001, resulted in his conviction for first-degree murder, for which he received the mandatory life sentence. Gomez appeals from both convictions, raising three issues of alleged error relating to the first trial and one issue with respect to the second trial. We affirm both convictions.

I Facts and Travel

A. First Trial

Testimony from the first trial included eleven witnesses and established the events as follows. On that fateful evening, Gonzalez and José Charriez (Charriez), whom Gonzalez had met at a wedding party earlier that day, were walking through Dunn Park on the way to a housing project where Gonzalez intended to get a haircut. Two men approached the pair and asked them, "Quién eres tú?" ("Who are you?"). Neither Gonzalez nor Charriez responded to the question. At trial, Charriez described the men who approached him and Gonzalez in some detail. According to Charriez, both men spoke Spanish, and the taller man was wearing a white shirt with a black stripe and white handwriting. The taller of the two men, defendant Gomez, is six-foot-one-inch tall and weighs 225 pounds. The other man, Christobal Rivera (Rivera), is considerably shorter and wore a dark-colored, hooded sweatshirt, a "hoodie." The jury was able to compare the difference in height between defendant and Rivera when they stood face to face at trial.

Charriez veered off the path while the two men approached, and Gonzalez was cleaning his glasses. After he heard the taller man ask, "Quién eres tú?", Charriez heard a different voice say, "Saca la pistola." "Saca la pistola" means "take out the gun" in English. In response to this prompt, the taller man, who was in front of the other man, pulled a gun out from around his back. Charriez saw the tall man in the white coat extend his right arm, and observed a flash from the gun he held. The tall man fired three shots at Gonzalez.

Although Gonzalez attempted to run away, he was hit twice. One bullet resulted in superficial wounds to his leg. However, the deputy chief medical examiner testified that the other bullet "passed into his chest cavity and lacerated a portion of his right lung * * * perforated through his heart leading to extensive internal hemorrhage * * *." He concluded that the cause of Gonzalez's death was "[m]assive internal hemorrhage due to the gunshot wound of back with perforation of right lung and heart" and that the manner of death was "homicide."

As further testimony educed at the first trial made clear, this was not a random shooting. Rather, it was a deliberate attempt to settle a score between rival gangs. An October 1997 incident provided the impetus. On that occasion, Gonzalez, a member of the gang "27" (gang 27), squared off against Julian Rodriguez, a member of the gang "NETA" (NETA), in a prearranged fight, also in Dunn Park, to settle an argument. During the altercation, Luis Lopez (Lopez), a "counselor" to the president of NETA, intervened in an effort to stop the fight. "Congo," a member of gang 27 and Gonzalez's cousin, shouted "don't get in it," and shot Lopez in the leg. Christobal Rivera took Lopez to the hospital to treat the wound. Both Rivera and Lopez were questioned about the shooting, but neither told the police that it involved a fight between members of gang 27 and NETA. When questioned by Det. Shawn Kerrigan of the Woonsocket Police Department, Lopez said that he was shot while trying to break up a fight between two men that he did not know.

After the October shooting, NETA had several meetings in which the gang discussed revenge for the injuries to Lopez. During those meetings, the gang members decided that they would return a "bullet for a bullet" and that Congo would be killed or taken care of. Gomez attended these meetings, one of which took place at his house. Rivera and Gomez lived in the same housing complex. Rivera testified that he never saw defendant with a gun before the murder, but that he saw a box of bullets for a .380-caliber automatic weapon on top of the refrigerator in Gomez's kitchen. The murder weapon used in the shooting on January 9, 1998, never was found, but a detective from the Woonsocket Police Bureau of Criminal Identification testified that he found a bullet and three shell casings at the scene of the crime and that the ammunition was .380-caliber. Furthermore, an expert from the University of Rhode Island Crime Laboratory testified that the three shell casings were all fired from the same .380-caliber automatic weapon.

Rivera also testified that on the evening of January 9, 1998, he was returning to a girlfriend's house when he received a page from Gomez. Rivera returned the call, and Gomez said he thought he had seen Congo. Gomez asked him to go with him "to the circle," a cul-de-sac in Dunn Park, to look for Congo. Gomez joined Rivera, and the two proceeded to the circle at Dunn Park. When the two men reached the park, Rivera stayed ten feet behind Gomez and asked Gomez what he was going to do, to which Gomez told Rivera to be quiet. Rivera testified that he was still ten feet behind Gomez when a person came toward them. Gomez asked the person who he was, and when the person did not respond, Gomez said, "I have a gun. I'm going to draw it." Rivera then heard a shot, started to run, and heard two more.

Rivera's older sister, Emily Rivera, testified that she was at defendant's girlfriend's house the night of the murder. Late that night, "Junior," as Gomez was known, arrived and "said that he had shot twice somebody." He also was "acting a little desperate" and threatened that "whoever said something he would kill." She said that defendant's conduct and comments made her feel "afraid. More than afraid." Christobal Rivera also testified that defendant threatened to kill him and his family if he said anything to the police about the murder. Emily Rivera then got a call from her brother telling her to come to his girlfriend's house. When she got there, Christobal Rivera was sitting on the sofa crying, and told her that "he had not done it and that Junior had killed him [Gonzalez]."

Emily Rivera also testified that defendant was wearing a white Chicago Bulls jacket that night. "It had a bull in the back, red one, and one in the front, a small one, and it said something like that. It said something like Chicago, if I'm not mistaken." She identified the jacket in court and also testified that Gomez gave the jacket away after the murder. This testimony was corroborated by Kaylene Maleve, who testified that Gomez, who was dating her sister, gave her the white Chicago Bulls jacket. For his part, Gomez later testified that he gave the coat away because he did not want to remember the events of that day.

Emily Rivera further testified that she was friendly with defendant's mother, Vilma, and had lived with Vilma's family, including defendant, for a time in December 1997, a few weeks before the murder. When she was living with defendant's family, she saw defendant with a gun in the kitchen of the home. After Vilma Gomez commanded defendant to get the gun out of her house, defendant tucked the gun into his pants and left.

In the first trial, Gomez testified in his own defense. He explained that he became a member of NETA through his acquaintance with Christobal Rivera. He admitted that he was NETA's treasurer and secretary. He testified that at NETA meetings the members discussed getting revenge for the October shooting of Luis Lopez, but that Lopez did not want to do it, but "Christobal was always talking he wanted to shoot back." Gomez further asserted that he never volunteered to shoot Congo or Jason Gonzalez. He also denied owning or possessing a gun, but alleged that Rivera had one.

He said that on January 9, 1998, he was at Johan Rodriguez's house when Rivera knocked on the door. Rivera told him that "Congo and Jason were coming down," and that he should go with Rivera because he "was going to fight them. I [Rivera] want you to watch to make sure that the other one doesn't jump in." Gomez told Rivera "that was fine," and went with him to the park in his Chicago Bulls coat.

Gomez testified that Rivera took off running to the park, despite Rivera's asthma, and when they got to the park he saw two people coming at them. He said that he could not tell who those people were, so he asked, "Quién eres tú?" No one answered. Gomez later testified that he had seen both Jason Gonzalez and Congo before, and that t...