State v. Morris

• Decision Date: 31 January 2000
• Docket Number: No. 96-513-C.A.,96-513-C.A.
• Citation: 744 A.2d 850
• Parties: STATE v. Michael MORRIS.
• Court: Rhode Island Supreme Court

744 A.2d 850

STATE v. Michael MORRIS.

No. 96-513-C.A.

Supreme Court of Rhode Island.

January 31, 2000.

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

Annie Goldberg, Aaron L. Weisman, Providence, for Plaintiff.

Marie T. Robuck, for Defendant.

OPINION

BOURCIER, Justice.

In this case, a Superior Court trial jury found the defendant Michael Morris guilty on indictment charges of conspiracy to commit burglary, assault with a dangerous weapon and unlawful concealment of a knife.¹ Following denial of his motion for a new trial, he was sentenced on each of the convictions. He then was adjudged by the trial justice to be an habitual criminal and sentenced on that adjudication. He appeals.

The defendant in his appeal asserts multiple trial errors on the part of the trial justice, as well as prosecutorial error on the part of the state's prosecutor. He alleges that the trial justice erred in denying his request for funds to enable him to procure and retain a defense eyewitness expert; erred by refusing to suppress identifications made of him by witnesses from a photo array and lineup; erred by refusing to grant his request for a mistrial; and finally, erred in instructing the jury with respect to the firearm charge. As regards the state's prosecutor, the defendant alleges that he improperly solicited and presentedtestimony from the victim that served to bolster the victim's own testimony. Lastly, the defendant challenges his post-trial adjudication as an habitual criminal, claiming that the trial justice failed to afford him a separate trial or hearing on that particular issue.

For the reasons hereinafter set out, we affirm the judgments of conviction, as well as the habitual criminal adjudication.

The Case Facts

On November 7, 1994, Martin Harris (Harris), an attorney whose practice includes criminal defense cases, was enjoying a relaxing respite in an upstairs room at his home in Cranston, while his two stepchildren, Derrick (age twelve) and Ericka (age ten), along with two of their friends, David (age twelve) and Ryan (age twelve) were watching television downstairs. The front doorbell sounded. The four children ran to the front door area from which they were able to observe through an untinted double glass front door a male person standing on the front porch. At about the same time, Harris was coming down a stairway leading to the front door, apparently in response to the sounding of the doorbell. Upon observing the children and the person standing on the porch, he cautioned them not to open the door. When Harris reached the door, he opened it and inquired of the person's business. The person mumbled something about his looking for "Glenn, or Mr. Miller, or Bill." Harris told him that no one fitting that description resided there, whereupon, the person turned and began to walk away.

Suspicious, and still unclear about exactly what the person wanted, Harris unfortunately went outside to inquire further. When he did, the person turned and calmly approached Harris. Without any warning, he grabbed Harris and put a knife to Harris's throat. The two struggled until Harris lost his footing and both fell into a garden mulch bed. The assailant, who was still wielding the knife, fell on top of Harris and cut him on the face several times.

Ericka, David and Ryan, startled by what was occurring, remained in the hallway area, from where they witnessed what was happening to Harris. Derrick, however, ran to a nearby telephone and dialed 911 for assistance. Ericka then also ran to another room and began to dial 911 on another telephone. As she was doing so, a second person burst into the room. This person, brandishing a handgun and wearing a black ski mask and gloves, put the gun to Ericka's head and pulled away the telephone. Ericka, terrified, bolted from the room. The gunman then turned his attention toward Derrick, who quietly and quickly hung up the telephone that he was using. Just then, the person who had been struggling outside with Harris reentered the house and shouted to the gunman: "Come on, let's go, he got away." Apparently, he was referring to Harris, who by now had run from the property. The two intruders fled from the house. Derrick, Ericka and Harris then observed a black Nissan Pathfinder drive from the house area at a high rate of speed.

Within five to ten minutes after the 911 report of the home invasion, a description of the vehicle and plate number was given to the police. This information was broadcast over the police broadcast system. Cranston city Patrolman Thomas Martin (Martin), aware of the police radio broadcast of the home intrusion, recognized the suspect vehicle as it passed by him. He turned his police cruiser, and started in pursuit of the Pathfinder. During the chase, Martin radioed for assistance. While doing so, he observed a man in the fleeing vehicle point a gun at him from the rear of the Pathfinder. Martin then broadcast a warning to other police officers who might be responding to his radio call for assistance to proceed with caution.

Meanwhile, at another location, Patrolman Alan Davis (Davis), responding to Martin's call, placed his police cruiser in the roadway in which the Pathfinder was traveling, in an attempt to block the roadway and force the driver of the Pathfinder to stop. The driver of the Pathfinder, however, was able to maneuver around Davis' parked police cruiser. Davis testified that as the Pathfinder drove by him he was able to get "a very, very, very good look" at the driver. Davis then joined in the police chase. Eventually, the driver of the Pathfinder lost control of the vehicle, which then plowed through a cornfield and crashed through a stone wall before finally coming to a stop. Three occupants then jumped from the vehicle and fled the scene by foot. An all-out police manhunt ensued. Hours later, one of the men, the defendant, was captured that night while attempting to conceal himself in some woodlands. At the time of his capture, he was described as being scratched, dirty and covered with leaves. Martin identified him as the man who had pointed the gun at him from the rear of the Pathfinder during the police chase.

The following day, another man, the codefendant, Patrick Kilburn (Kilburn), was arrested. Officer Davis identified him as being the driver of the Pathfinder. A third man, Michael Lopez, whose fingerprints were found in the Pathfinder, was later arrested on the basis of statements that Kilburn had made to the police.

The police then conducted a search of the crime scene area. They found a white cloth garden glove and a light gray blood stained sweatshirt bearing the words "BOSS America." Harris had previously told the police that the man who had accosted him was wearing a light colored sweat top with what he believed were the words "BONN America" written on its front. Blood stains found on the sweatshirt later were tested and found to match Harris' blood type.

A search of the Pathfinder produced a white glove that appeared to match the white glove found at the crime scene, various other gloves, a black ski mask and a black zippered sweatshirt. A knife, later identified by Harris as being the knife used by the person who had attacked and cut him, was also found in the Pathfinder. We take up and address each of the defendant's appellate contentions.

I Funding for Eyewitness Experts

The defendant asserts that the trial justice committed reversible error when he refused to authorize public funding for the retention of an eyewitness testimony expert. He maintains that because eyewitness identification was to be a crucial element in the state's case, he should have been permitted to explore the unreliability of such testimony through the use of an eyewitness expert who he believes would have testified about how eyewitness testimony could be influenced by the effects of stress relative to perception, weapon-focus-attention variables, and witness perception. He additionally asserts that because of the lack of an eyewitness expert, his defense counsel was prevented from effectively preparing for trial and from effectively representing him during trial. Pursuant to Rule 403 of the Rhode Island Rules of Evidence, the trial justice denied the defendant's request. He reasoned that the proposed eyewitness expert's opinion testimony would not be admissible at trial and would, if admitted, only tend to confuse the jury. We agree with that finding.

Although an indigent defendant may be entitled to public funding to retain experts "necessary for an adequate defense," Ake v. Oklahoma, 470 U.S. 76, 80, 105 S.Ct. 1087, 1094, 84 L. Ed.2d 53, 64 (1985), the actual admissibility of any particular proposed expert testimony should, of course, be addressed in the first instance by the trial justice.

"It is well settled that questions regarding the admissibility and relevancy of evidence are left to the sound discretion of the trial justice." State v. Greene, 726 A.2d 471, 473 (R.I.1999) (order). "This Court will not reverse a determination of relevance absent a showing that the trial justice has clearly abused his or her discretion." Id.

In State v. Porraro, 121 R.I. 882, 892, 404 A.2d 465, 471 (1979), this Court long ago determined that "the trustworthiness in general of eyewitness observations, [is] not beyond the ken of the jurors." We stated that:

"[t]hrough cross-examination, defense counsel was able to probe into the witness' capacity and opportunity for observation, her attention, interest and distraction. The jury was perfectly capable of assessing the witness' credibility by weighing the inconsistencies and deficiencies elicited in cross-examination." Id. at 893, 404 A.2d at 471.

In State v. Gomes, 604 A.2d 1249 (R.I.1992), we once again concerned ourselves with the admissibility of eyewitness expert testimony. There, we stated that the "presentation of expert testimony concerning the unreliability of...