State v. Hazard

• Decision Date: 16 May 2002
• Docket Number: No. 99-127-C.A.,99-127-C.A.
• Citation: 797 A.2d 448
• Parties: STATE v. Derick HAZARD.
• Court: Rhode Island Supreme Court

797 A.2d 448

STATE v. Derick HAZARD.

No. 99-127-C.A.

Supreme Court of Rhode Island.

May 16, 2002.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Aaron L. Weisman, Assistant Attorney General, Annie Goldberg, Assistant Attorney, for plaintiff.

J. Richard Ratcliffe, Providence, for defendant.

OPINION

WILLIAMS, Chief Justice.

In this appeal, the defendant, Derick Hazard (Hazard), asks this Court to set aside his 1998 murder, conspiracy, and assault convictions and order a new trial so that he may reassert his alibi defense that he could not have committed the crimes because he was allegedly in Ohio at the time of the murder.

This case presents a unique opportunity for this Court to briefly compare the role of the trial and appellate tribunals to the very different evaluation that may be engaged in by the media. In a somewhat unusual turn of events, after Hazard's first trial, a Providence Journal (Journal) reporter conducted an investigation causing Providence city government to reopen the case to reexplore Hazard's alibi defense. The Journal reported that there was additional evidence that supported Hazard's alibi and quoted Hazard, who claimed that he should be given a new trial because he was not guilty. The articles themselves are not part of the record of the case, and thus, were not considered as evidence by this Court. However, the evidence "revealed" by the"independent" investigation largely was the subject of Hazard's second motion for a new trial, and thus, was properly evaluated by both the trial justice and this Court.

Specifically, the Journal reporter found New Jersey police records showing that the rental car that Hazard said he traveled in to Ohio was stopped by a New Jersey state trooper on the day of the murder. The Journal reporter contacted the state trooper who conducted the stop, but the trooper was unable to place Hazard in the vehicle. The Journal found that a written warning was issued to the driver of the vehicle. The reporter continued her investigation in Ohio. The Journal reported that thirteen people corroborated Hazard's alibi, although only three of them testified at the trial.

Each of these pieces of information was considered by the trial justice who evaluated Hazard's second motion for a new trial. The function of the hearing justice at that time was to make a first-hand determination about the allegedly newly discovered evidence, considering both the police records and live witness testimony. The trial justice concluded that the jury verdict was correct according to the law.

Like the trial court, this Court is bound by the law, albeit by a different standard of review. It is not our task to engage in a wholesale review of the evidence and the witnesses, nor is it our duty to engage in an independent investigation or fact-finding role. Additionally, we cannot render an "objective" opinion of Hazard's guilt or innocence because we are not permitted to do so by law. Instead, we must carefully examine Hazard's instant appeal using only the applicable standard of appellate review. As a result, we sustain the trial justice's decisions because (1) eyewitness credibility is a determination to be made by the jury, (2) there was sufficient evidence to sustain the jury verdict, (3) Hazard failed to demonstrate that the New Jersey traffic stop evid ence was newly discovered, (4) there was no constitutional infirmity in thecross-examination of the eyewitness, and (5) the trial justice's evidentiary error was harmless beyond a reasonable doubt.

I Facts and Travel

Shortly before midnight on Thursday, July 18, 1996, David Andrews (Andrews) was shot and killed as he walked on West Clifford Street in Providence. That night, Andrews was with his cousin, Andre "Bucky" Williams (Williams). As they walked, Williams noticed a vehicle slowly approaching the pair from behind. The vehicle stopped where Andrews and Williams were walking and the pair stopped. Williams, who was standing on the side closest to the vehicle, heard one of the occupants say "[w]hat's up now, motherfucker?" Two of the four people in the vehicle began shooting at Andrews and Williams. In an attempt to avoid injury, Andrews and Williams immediately began "spinning away" toward a thicket of high grass adjacent to the sidewalk. As the vehicle sped away, Andrews began to run, but soon collapsed from a gunshot wound. Williams, who had fallen to the ground, stood up, watched the vehicle leave the scene, and then ran to where his cousin collapsed.

Soon thereafter, Officer Glenn Cassidy (Officer Cassidy) of the Providence Police Department received a dispatch about the shooting. Officer Cassidy responded to the scene and was "flagged down" by Williams. A small crowd assembled around Andrews's body. Williams told Officer Cassidy that the vehicle invo lved in the shooting was maroon. Williams did not give any further details about the incident.

Approximately two hours later, Williams gave a formal statement to Detective Steve Springer (Det. Springer) of the Providence Police Department. In his statement, Williams told Det. Springer that he "tried to look into the car to see who was in it, but all [he] saw was fire * * *." He told Det. Springer that he was not able to see the persons who fired the weapons, but hedid see "the black face." He also stated that he believed there were four people in the car, and he formally described the color of the car as being cranberry with a gray bottom. Williams also mentioned that he thought the car was a Ford Taurus because he was able to see the word "Ford" on the right side of the trunk as it sped away.

The following Monday, Williams returned to the Providence Police station, to change his earlier statement. He told Detective Robert Muir (Det. Muir) that he could identify the occupants of the car, but that he was "afraid to tell [him] the night it happened." At that time he identified the occupants as defendants Hazard, Troy Lassiter (Lassiter), and David Roberts (Roberts)¹ (collectively referred to as defendants). Williams also stated that "some other guy was driving [but that he didn't] know who he was." Williams further elaborated that Hazard had shot at the pair from the front passenger seat, that Lassiter did the same from the rear passenger seat, and that Roberts was seated in the rear driver's side seat. Finally, he mentioned that Lassiter's firearm had the "most fire coming out of it," and was louder than Hazard's firearm.

Detective Muir then showed Williams a vehicle and asked him if he recognized it. Williams identified the vehicle as the same one used in the shooting. Williams also told Det. Muir that he knew Hazard, Lassiter, and Roberts. In fact, he said that he had seen all defendants on the day of the murder at the YMCA "looking all mean and evil." Detective Muir then showed Williams four photographs. Although Williams identified Hazard, Lassiter, and Roberts from the photographs, he could not name the suspect in the fourth photograph, Lassiter's brother, James Lassiter. However, he did say he recognized James Lassiter because he was also at the YMCA on the day of the murder.

On February 4, 1997, the Providence County grand jury returned a four-count indictment against Hazard, Lassiter and Roberts. The defendants were charged with first-degree murder, conspiracy to commit first-degree murder, assault with the intent to commit murder, and conspiracy to assault with the intent to murder.

Just over a year later, in March 1998, Williams appeared at Hazard's attorney's office and executed an affidavit recanting his earlier identification of Hazard. He signed an affidavit stating that he had named Hazard because he was threatened to do so and that Hazard "positively and unequivocally was not present in the vehicle" the night of the murder.

Before trial, Hazard's counsel filed a motion to suppress Williams's identificatio n testimony alleging that it was the product of an impermissibly suggestive showup,² unreliable, and would deprive Hazard of a fair trial. After a two-day hearing, the trial justice denied Hazard's motion. In doing so, the trial justice found that Williams's identification of Hazard was credible and reliable. In late June, the trial began. On the first day, Lassiter's counsel successfully moved to sever Lassiter's trial from that of Hazard. The state proceeded against Hazard and Roberts. The state called Williams as its first witness. During his testimony, Williams stated that he knew Roberts before the murder because Roberts previously had robbed Andrews. Both Hazard and Roberts asked the trial justice to pass the case because of the prejudicial nature of the statement. A mistrial was granted and the trial was rescheduled to begin on July 8, 1998.

At the second trial, besides Williams and Det. Muir, who testified to the facts as stated above, several other witnesses testified for the state. Carolyn Johnson (Johnson) testified that her vehicle was seized the day after the murder. Johnson further testified that her husband, Robert Jackson (Jackson), had been driving the car the previous evening around the time of the murder. The state also called Kevin Malloy (Malloy), the District Supervisor for Narragansett Electric Company, to testify about the lighting in the area of the murder scene. He testified that according to electric company records, there was no evidence that the pole lights near the murder scene failed to work properly on the evening of the murder. Malloy described the lighting conditions as "highlighted" in the area where the murder took place.

The state next called Rene King (King), who testified that just before 11 p.m. on the night of the murder she talked to Andrews, her cousin, near the intersection of Providence Street and Prairie Avenue. She testified that Andrews was alone and that she did not see Williams (a cousin of hers) nearby. After speaking with Andrews, King began walking away. She testified...