State v. Mendez

• Citation: 116 A.3d 228
• Decision Date: 15 June 2015
• Docket Number: No. 2013–13–C.A.,2013–13–C.A.
• Parties: STATE v. Elizabeth MENDEZ.
• Court: United States State Supreme Court of Rhode Island

116 A.3d 228

STATE

v.Elizabeth MENDEZ.

No. 2013–13–C.A.

Supreme Court of Rhode Island.

June 15, 2015.

Aaron L. Weisman, Department of Attorney General, Providence, for State.

Joseph J. Voccola, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON for the Court.

On April 5, 2012, a Providence County Superior Court jury found the defendant, Elizabeth Mendez, guilty of possession of more than five kilograms of marijuana in violation of G.L.1956 § 21–28–4.01.2(a)(5).¹ On May 24, 2012, the trial justice sentenced the defendant to twenty years imprisonment, with five years to serve and the remaining time suspended with probation.

On appeal, defendant contends: (1) that the trial justice erred in his supplemental jury instruction given in response to a question posed by the jury; (2) that the trial justice erred in denying defendant's motion for a new trial; and (3) that defendant's twenty-year sentence is violative of Article 1, Section 8 of the Rhode Island Constitution. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

On January 20, 2011, defendant was charged by indictment with one count of possession of more than five kilograms of marijuana in violation of § 21–28–4.01.2(a)(5), (b) (Count 1); one count of conspiracy to possess more than five kilograms of marijuana in violation of § 21–28–4.08 (Count 2); and one count of possession of methylenedioxymethamphetamine (MDMA)² in violation of § 21–28–4.01(c)(2)(i) (Count 4).³ In that same indictment, two co-defendants were similarly charged with possession of more than five kilograms of marijuana and conspiracy to possess more than five kilograms of marijuana.⁴ Those co-defendants, Osvaldo German and Jonathan Espinal, were not tried with defendant.⁵

The defendant's criminal trial began in March of 2012, and the evidence presented therein included testimony from Trooper Marc Alboum of the Rhode Island State Police, Officer Diego Mello of the East Providence Police Department, Officer Raymond Reall of the North Providence Police Department, co-defendant Osvaldo German, and Jennysa Ayala, a friend of defendant who was present at the apartment of defendant on the night when defendant was later arrested.⁶ We summarize below the testimony of those witnesses as it relates to the instant appeal.

AThe State's Case

1. The Testimony of Trooper Marc Alboum

The state began its case with the testimony of Trooper Alboum of the Rhode Island State Police. Trooper Alboum testified that, while he was on patrol in his cruiser on the night of July 26, 2010, he heard a broadcast on his police radio about a carjacking at gunpoint in the city of Providence, specifically at the intersection of Admiral Street and Hawkins Street. Trooper Alboum stated that the broadcast described the carjacking suspects as “two dark-skinned males * * * wearing white T-shirts,” and he added that the broadcast described the car as a “light blue Kia minivan.” He further testified that he heard in a later broadcast that the carjacked vehicle had been recovered in a Walgreens parking lot. Trooper Alboum testified that he proceeded to that location; he said that, at the Walgreens, there were law enforcement officers from several police departments all “standing around.” In his testimony, Trooper Alboum estimated that there were around fifteen to twenty officers in uniform at the scene.

Next, Trooper Alboum testified that, while he was standing in the Walgreens parking lot, he observed a black Nissan Maxima drive past. Trooper Alboum testified that he could see that the driver of the Nissan Maxima was a woman and that in the car there were two male passengers, both dark-skinned and wearing white T-shirts. Trooper Alboum also testified that the driver of the Nissan Maxima was “staring straight ahead” as she passed the Walgreens parking lot and that her two passengers were “slouching down,” while also “looking straight ahead.” Trooper Alboum further testified that the behavior of the occupants of that car stood out in contrast to what was transpiring in the other cars passing by, in that the occupants of the latter cars were turning their heads in the direction of what Trooper Alboum testified was a “large police presence” in the parking lot.

Trooper Alboum then testified that, after observing the occupants of the Nissan Maxima, he proceeded to “run an inquiry” on the vehicle's license plate and discovered that the license plate affixed to the Nissan Maxima “came back [registered to] a 2000 silver Toyota.” Trooper Alboum stated that “the registration [did not] match the vehicle.” It was Trooper Alboum's testimony that, after that discovery, he started his cruiser and began to follow the Nissan Maxima. He further testified that he “clock[ed]” it as traveling at 45 miles per hour in a 25 mile per hour zone. Trooper Alboum stated that the Nissan Maxima proceeded to enter Route 146 and that, as it did so, it entered “right behind [another] vehicle, nearly striking it.” Trooper Alboum testified that, as he followed the Nissan Maxima onto Route 146, he activated his lights and siren; he added that the Nissan Maxima nonetheless continued without stopping. Trooper Alboum stated that it was only after another police cruiser passed the Nissan Maxima in the high speed lane, positioned itself in front of the vehicle, and slowed down, that the Nissan Maxima slowed and eventually stopped.

Trooper Alboum then testified that, after exiting his cruiser, he approached the Nissan Maxima and that, as he did so, he could smell “the odor of fresh marijuana” emanating from the back of that vehicle. He further testified that he approached the driver's side of the car and asked all of the occupants to “put their hands up;” Trooper Alboum stated that he made this request in order to “see everyone's hands to make sure they didn't have any weapons in their hands * * *.” He testified that, although all of the occupants initially complied, he observed that Mr. Espinal, the passenger seated behind the driver's seat, was “starting to put his hands down.”⁷ It was Trooper Alboum's testimony that he asked Mr. Espinal to step out of the car, searched him for weapons, and handcuffed him, before finally placing him in the back of the police cruiser.

Trooper Alboum testified that he then returned to the Nissan Maxima and approached the driver's side. It was Trooper Alboum's testimony that, at that point in time, he could detect the odor of burnt marijuana coming from inside the vehicle. He testified that he asked defendant, the driver of the car, for her license and that, when she began to reach toward the floor of the car, he asked her to step out of the car.⁸ He said that he made that request because “it's not normal that people reach for their licenses on the floor of the vehicle.”

Trooper Alboum further testified that, after defendant stepped out of the car, he “sent her * * * towards the other troopers;” he added that he did not handcuff her himself, because his “set of handcuffs was on Mr. Espinal.”⁹ Trooper Alboum next testified that he checked under the floor mat on the driver's side (where defendant had been sitting) and found a “clear plastic baggy with a half a blue pill” inside.¹⁰ He added that Officer Raymond Reall of the North Providence Police Department searched the other passenger, Mr. German, and in the course of that search found a “plastic bag” containing what appeared to be marijuana.¹¹ It was Trooper Alboum's testimony that, following that discovery, he embarked on a more thorough search of the car with the assistance of another law enforcement officer—namely, Officer Reall, who had accompanied him in a separate cruiser in the pursuit of the Nissan Maxima onto Route 146.

Trooper Alboum stated that, in the course of the more thorough search, he opened the trunk of the Nissan Maxima and immediately observed “two rectangular objects that had a clearish green plastic baggy on it [sic ].” In addition, Trooper Alboum noted that the odor of fresh marijuana “increased * * * significant[ly]” once he had opened the trunk. According to Trooper Alboum's testimony, a complete search of the trunk yielded six such “rectangular objects” (which he described as “bales”) covered in “greenish clear cellophane wrap.” Later testimony at trial by one of the state's forensic scientists was to the effect that the bales contained marijuana and that the total weight of the marijuana was approximately thirty kilograms.¹²

Trooper Alboum further testified that, on July 27, 2010 (the morning after the arrests of defendant, Mr. German, and Mr. Espinal), Mr. German agreed to make a statement, and he was advised of his constitutional rights at that time. The trooper testified that his subsequent discussion with Mr. German lasted approximately twenty to thirty minutes; he added that the discussion was thereafter memorialized in a six-page “formal typed statement” (hereinafter “the unsigned statement”). Trooper Alboum stated that Mr. German initialed each of the first five pages of the unsigned statement, but did not sign it or check a box indicating that the “above statement was true to the best of [his] knowledge.” Trooper Alboum further testified that he (Trooper Alboum) thereafter changed the last line of the unsigned statement and that the resulting version of the statement was read and signed by Mr. German (hereinafter “the signed statement”). According to Trooper Alboum's testimony, the two statements were substantively identical, with the exception of the last line.

Trooper Alboum first testified concerning the contents of Mr. German's unsigned statement. He stated that, in the course of his conversation with Mr. German about the events leading to defendant's arrest, Mr. German told him that defendant had come and picked up Mr. Espinal and Mr. German around 6 or 7 p.m. on what would be the night of the arrest. Trooper Alboum then testified that Mr....