State v. Hazard

• Decision Date: 04 February 2000
• Docket Number: No. 97-380-C.A.,97-380-C.A.
• Citation: 745 A.2d 748
• Parties: STATE v. Adrian HAZARD.
• Court: Rhode Island Supreme Court

745 A.2d 748

STATE v. Adrian HAZARD.

No. 97-380-C.A.

Supreme Court of Rhode Island.

February 4, 2000.

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

Sheldon Whitehouse, Aaron L. Weisman, Providence, for plaintiff.

Paula Rosin, Providence, for defendant.

OPINION

GOLDBERG, Justice.

This case comes before us on the appeal of the defendant, Adrian Hazard (defendant), from judgments of conviction following a jury trial in Providence County Superior Court pursuant to a criminal information charging three felony counts: assault with intent to murder in violation of G.L. 1956 § 11-5-1; discharging a firearm from a motor vehicle in a manner that created a substantial risk of death or serious personal injury (drive-by shooting) in violation of G.L. 1956 § 11-47-51.1; and carrying a pistol without a license, in violation of § 11-47-8. The defendant was sentenced to two consecutive fifteen-year terms for the assault and drive-by shooting offenses and ten years to serve consecutively for carrying a pistol without a license. The defendant contends that the trial justice erred in numerous respects and that his convictions, specifically his conviction on the charge of discharging a firearm from a motor vehicle (drive-by shooting), should be reversed. For the reasons stated below we affirm the judgments of conviction.

FACTS

On the afternoon of March 7, 1995, Terry Lee Jones (Jones) was shot while standing alongside a car occupied by Alpha Williams (Williams). Jones was speaking to Williams as a car traveled down Providence Street and slowed as it passed. A man inside the moving car fired three shots in the direction of the stopped car, striking Jones in the leg. Jones then ran across the street, dialed 911, and fled the scene. However, he was soon apprehended by Detective Stephen Springer (Springer) of the Providence Police Department, who, having been alerted to the shooting by a police radio broadcast, encountered Jones, but was unsure whether he was the suspect or the victim. Upon learning that Jones was wounded, Springer arranged for a rescue unit to transport him to Rhode Island Hospital.

When Springer initially spoke to Jones at the scene, Jones admitted that he had recognized the man who shot him but refused to identify him. Shortly thereafter, Jones changed his mind and provided a written statement identifying Charles Fontes (Fontes) as his assailant. Jones stated that he had known Fontes since the first grade and that Fontes had been sitting in the back seat of the moving car. The next day, Springer found out that the car involved in the shooting was owned by Jonathan Greenwood (Greenwood). Greenwood subsequently gave a statement to the police naming defendant, not Fontes, as the shooter. The Providence police then arrested defendant.

At trial, both Greenwood and Fontes gave testimony implicating defendant in the shooting. Fontes testified that on the day of the shooting he and Greenwood had been driving around in Greenwood's car smoking marijuana. He stated that they went to defendant's house, where he saw defendant brandish a handgun. Fontes testified that defendant had previously had an argument with Williams, the man with whom Jones was speaking to on Providence Street, and that defendant declared that "he was going to woop [Williams's] ass." Fontes stated that although the car belonged to Greenwood, he was the driver and that defendant and Greenwood were sitting in the back of the car. When they approached the area where Williams and Jones were talking, defendant asked him to stop the car, according to Fontes. Fontes testified that three shots were fired from the back seat before he sped off. Greenwood also testified that he was seated in the back and, consistent with Fontes's testimony, Greenwood named defendant as the shooter. The victim, Jones, did not testify at trial despite defense counsel's attempts to secure his attendance. The record discloses that Jones evaded service of a witness subpoena and that the trial justice ultimately declared him to be unavailable.

In support of his appeal, defendant raises four issues that will be considered in the order in which they appear in his brief. Additional facts will be supplied as they are necessary.

DISCUSSION

I Jury Instruction

The defendant argues first on appeal that the trial justice committed reversible error when he instructed the jury that "as a matter of law, the weapon referred to is a firearm under the laws of Rhode Island." The defendant contends that this instruction established as proved an essential element of the charged offense, thereby violating defendant's state and federal constitutional right to a jury determination on each and every element of the offense at trial.

Count two of the information, discharging a firearm from a motor vehicle in a manner that created a substantial risk of death or serious personal injury, in violation of § 11-47-51.1 (drive-by shooting), requires the essential element that the instrument used by the defendant was in fact a firearm. It is this element with which we are concerned.

The trial justice instructed the jury as follows:

"The second count charges this defendant with unlawfully discharging a firearm from a motor vehicle in a manner which creates a substantial risk of death or serious personal injury to Mr. Jones. Thus, in order for you to find the defendant guilty of that particular count, the State is required to prove to you beyond a reasonable doubt that it was this defendant, Adrian Hazard, who did discharge a firearm, and I'm instructing you as a matter of law, the weapon referred to is a firearm under the laws of Rhode Island. So if you find that it was this defendant who did discharge a firearm from inside a motor vehicle in a manner which caused a substantial risk of serious bodily injury to Mr. Jones, then your verdict should be one of guilty. Again, if the state has failed to prove to you beyond a reasonable doubt that it was this defendant Adrian Hazard who did the shooting, or the State has failed to prove beyond a reasonable doubt that it was from a motor vehicle, or if the State has failed to prove beyond a reasonable doubt that the shooting was done in a manner which created a substantial risk of serious personal injury to Mr. Jones, then your verdict should be one of not guilty." (Emphasis added.)

The Due Process Clause of the Fourteenth Amendment to the United States Constitution and article 1, section 2, of the Rhode Island Constitution deny the state the power to deprive the accused of liberty unless the state proves every element necessary to constitute the crime charged beyond a reasonable doubt. Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218, 221 (1989); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). A jury instruction relieving the state of this burden violates a defendant's due process rights. Therefore, we are satisfied that the trial justice erred in taking away this fact-finding task that is assigned solely to jurors in a criminal trial. On appeal, the state acknowledges this error on the part of the trial justice but argues that the instruction constitutes harmless error inasmuch as the jury, by its verdict of guilty on the remaining counts, made the factual determination that the weapon defendant used was a firearm. As with any harmless-error analysis, our task is to first decide whether this error is appropriate for a harmless-error analysis and, if so, whether the error, in light of that analysis, can be deemed harmless.

In determining whether the trial justice's instruction is subject to harmless-error analysis, it is important to recognize that the United States Supreme Court has held that "most constitutional errors can be harmless." Neder v. United States, 527 U.S. 1, ___, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35, 46 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302, 329 (1991)). In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court rejected the notion that constitutional errors necessarily require reversal of criminal convictions provided that an appellate court can be satisfied beyond a reasonable doubt that the error complained of did not contribute to the verdict. Id. at 21-22, 87 S.Ct. at 827, 17 L.Ed.2d at 709. Since Chapman, the Supreme Court has consistently held that "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986).

However, there remain certain constitutional errors which, when committed during a criminal trial, require reversal without regard to the evidence or facts of a particular case. Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460, 470 (1986). These constitutional errors, although limited in number, are never subject to a harmless-error analysis. Examples of such errors are a defective reasonable doubt instruction (Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)); denial of a public trial (Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)); the complete denial of the right to counsel (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)); introduction of a coerced confession (Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958)); and adjudication by a biased judge (Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)).

In Neder, the United States Supreme Court reaffirmed its holding that the error in each of these cases will subject a trial to automatic reversal because errors of this dimension amount to a defect in the "framework within which the trial proceeds, rather than simply an error in the trial...