State v. Luciano

• Decision Date: 26 October 1999
• Docket Number: No. 96-497-C.A.,96-497-C.A.
• Citation: 739 A.2d 222
• Parties: State v. Orlando Luciano.
• Court: Rhode Island Supreme Court

739 A.2d 222

State v. Orlando Luciano.

No. 96-497-C.A.

Supreme Court of Rhode Island.

October 26, 1999.

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

Aaron L. Weisman, Providence, for plaintiff.

Janice M. Weisfeld, Paula Rosin, Providence, for defendant.

OPINION

WEISBERGER, Chief Justice.

This case comes before us on appeal by the defendant, Orlando Luciano (defendant), from a judgment of conviction entered after a jury trial in the Superior Court on charges of one count of murder, one count of carrying a firearm after having previously been convicted of a crime of violence, and one count of carrying a pistol without a license. The defendant was sentenced to life imprisonment for the murder count and received a ten-year sentence for each gun count to run concurrently with each other but consecutively with the life sentence. From the judgment of conviction the defendant filed a timely appeal. We affirm. The facts of the case insofar as pertinent to this appeal are as follows.

At approximately 6 p.m. on September 5, 1995, Angel Bermudez (Bermudez), Luis Sanchez (Sanchez), Angel Henriquez (Henriquez), Gary Fernandez (Fernandez), and Kris Urena (Urena), were standing at the corner of Broad Street and Sumter Street in Providence, Rhode Island, when a man later identified as defendant approached Bermudez and shot him in the back, killing him. On August 30, 1995, defendant and Bermudez had gotten into an argument. The defendant had accused Bermudez of stealing heroin from him, an act that Bermudez denied. The defendant then threatened to kill Bermudez. On each of the next two days defendant went to Bermudez's apartment and called for Bermudez to come outside, an invitation that Bermudez refused. The defendant did not encounter Bermudez again until the afternoon of September 5, before Bermudez was shot. Bermudez and defendant had a conversation while defendant sat in his car at the corner of Broad and Sumter Streets. The defendant drove away and allegedly returned fifteen minutes later, wearing a hat and a bandanna across his face, and fatally shot Bermudez.

At trial Sanchez testified that he had known defendant for two months prior to September 5, 1995. He stated that he was standing a couple of feet from Bermudez when he was shot. The shooter was wearing a hat and a bandanna that covered a portion of his face. Despite this attempt at disguise, Sanchez immediately recognized the shooter as defendant.

Sanchez was then taken to the Providence police station on September 5. He told the police that he could not identify the shooter. He testified that he was scared and did not want to get involved. He was brought back to the station on September 8, 1995. At that point he told the police that it was defendant who had shot Bermudez. He looked at a photo array of six photographs; he picked out defendant's picture from the photo array as the person who had shot Bermudez. Before he identified defendant, he was not told by the police that they suspected defendant of the shooting.

Henriquez testified that he had known defendant for five years prior to September 5, 1995. He said that he saw defendant four to five times per week during that period. He stated that he was five feet from Bermudez when defendant shot him in the back. He was able to look at the shooter for three seconds and immediately recognized defendant as the shooter. He was so close to the shooting that after the gunfire stopped, he checked himself to see if he himself had been shot.

At the suppression hearing Henriquez testified that he went to the Providence police station on September 8, 1995. There, after he gave a statement identifying defendant as the person who had shot Bermudez, the police showed Henriquez a single picture of defendant. The police asked Henriquez if he knew the person in the picture. Henriquez stated that it was defendant.

At trial Fernandez testified that he had known defendant for three to four years prior to September 5, 1995. During that period he would see defendant once or twice a week. On September 5, Fernandez arrived at the corner of Sumter and Broad Streets between 5:30 and 6 p.m. He spoke with Bermudez, who told him that defendant had threatened that if he did not give defendant two packs of heroin within two hours, defendant was going to shoot him. A half-hour after this conversation Fernandez saw defendant shoot Bermudez. Fernandez was five feet from Bermudez when he was shot. He was able to look at the shooter for five seconds. He testified that despite the fact that the shooter wore a hat and a bandanna, he immediately recognized that the shooter was defendant. He went to the Providence police station on September 6 and identified defendant as the shooter. The police showed Fernandez a single photograph of defendant and asked whether he recognized the person pictured. He replied that it was defendant.

At trial Urena testified that he had known defendant for two months prior to September 5, 1995, and in that period had seen defendant some thirty-five times. He stated that on September 5, 1995, as he walked toward the corner of Broad and Sumter Streets, he saw defendant in a parking lot behind a restaurant on Broad Street. Urena said that he was four feet from defendant and witnessed defendant tie a bandanna around his face. Urena then walked to the corner of Broad and Sumter Streets. He next saw defendant shoot Bermudez. Urena was standing six feet from Bermudez when the shooting occurred. Urena stated that defendant wore the same bandanna that he was seen putting on moments earlier.

At the suppression hearing Urena testified that on September 6, he went to the Providence police station and identified defendant as the shooter. The police then brought Urena to a room with a one-way mirror. The defendant sat alone in the adjoining room. The police asked Urena if he recognized the person in the adjoining room. Urena told the police that he recognized the person as the one who shot Bermudez. He then gave a written statement to that effect. The police then showed a single photograph of defendant to Urena, which he again identified as defendant.

Anthony Reynolds (Reynolds) also testified for the state. He stated that he was incarcerated at the Adult Correctional Institutions (ACI) at the same time that defendant was awaiting his trial in this matter. He testified that defendant told him that he had shot a person named Angel because he thought that Angel had taken "a couple of browns" from him. According to Reynolds, a "brown" is fifty bags of heroin. The defendant told Reynolds that he gave this person a couple of hours to return his heroin. When he did not, defendant told Reynolds, he went home to get his gun, a baseball hat, and a scarf. The defendant said that he then returned to Sumter Street, walked up to Bermudez, and shot him. Reynolds offered this testimony in the hope of reducing his current prison sentence.

Vilma Ruiz (Ruiz) testified for defendant. She stated that on September 5, 1995, defendant came to her home at about 5 p.m. and left between 8:30 and 9 p.m. She testified that defendant did not leave her apartment during that time. Betz Mary Carmona (Carmona), Ruiz's daughter, also testified for defendant. She lives with her mother and corroborated her mother's testimony that defendant had arrived at her home sometime between 5 and 6 p.m. She testified that defendant left at 9 p.m. According to Carmona, defendant never left the apartment between the time he arrived and the time he left.

After considering the testimony of these witnesses, the jury found defendant guilty of murder, carrying a firearm after having previously been convicted of a crime of violence, and carrying a pistol without a license. The defendant filed a timely notice of appeal to this Court. In support of his appeal defendant raises two issues. These issues will be dealt with in the order in which they were presented in defendant's brief.

I MOTION TO SUPPRESS IDENTIFICATION TESTIMONY

The defendant claims that the trial justice erred by denying his motion to suppress Urena's, Fernandez's, Henriquez's, and Sanchez's in- and out-of-court identifications. He argues that their identifications were achieved by means of unnecessarily suggestive police procedures and lacked independent reliability. When reviewing a trial justice's decision on a motion to suppress eyewitness testimony, the reviewing court applies the "clearly erroneous" rule and views the evidence in the light most favorable to the state. State v. Gatone, 698 A.2d 230, 235 (R.I.1997). Viewing the evidence in the light most favorable to the state, we conclude that the trial justice did not err in denying defendant's motion to suppress the in- and out-of-court identifications.

To determine the admissibility of an out-of-court identification, we employ a two-step procedure. First, we must consider whether the police procedures used in the identification process were unnecessarily suggestive. Second, if the out-of-court identification was unnecessarily suggestive, we then consider whether in the totality of the circumstances the identification was nonetheless reliable. See Gatone, 698 A.2d. at 235-36

; State v. Camirand, 572 A.2d 290, 293 (R.I.1990).

Under the first prong we look to the photographic-identification procedure to determine whether the circumstances give rise to a substantial likelihood of misidentification. Gatone, 698 A.2d at 235. We examine the photographic array used by the witnesses and compare the physical characteristics of each individual pictured to the general description of the defendant. A photographic array is not unnecessarily suggestive if the individuals pictured have the same general characteristics as the defendant. State v. Barnes, 559 A.2d 136, 140 (R.I.1989). Here Sanchez testified that he was shown a photographic array comprising six photographs. As the trial justice noted, this photographic array...