State v. Pona

• Decision Date: 23 May 2013
• Docket Number: No. 2010–345–C.A.,2010–345–C.A.
• Citation: 66 A.3d 454
• Parties: STATE v. Charles PONA.
• Court: Rhode Island Supreme Court

66 A.3d 454

STATE

v.Charles PONA.

No. 2010–345–C.A.

Supreme Court of Rhode Island.

May 23, 2013.

Jane M. McSoley, Department of Attorney General, for State.

George J. West, Esq., Providence, for Defendant.

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

OPINION

Justice GOLDBERG, for the Court.

She was jumping rope in front of her house. It was an early evening in May when an armed gunman in a hooded sweatshirt approached her in front of 95 Congress Avenue in Providence. He shot her several times at close range. She was rushed to Rhode Island Hospital, where she died the next day from multiple gunshot wounds to her head and neck. She was an eyewitness to the murder of Hector Feliciano (Feliciano), and she was under subpoena to testify in a murder trial that was scheduled to commence the next day. Her name was Jennifer Rivera (Jennifer). She was fifteen years of age. Jennifer was killed in order to prevent her from testifying against Charles Pona (Pona or defendant), ¹ the defendant in this case, who was charged with and awaiting trial on the Feliciano murder.² In the course of the ensuing police investigation, three individuals—the defendant, Dennard Walker (Walker), the defendant's half-brother,³ and Miguel Perez (Perez)—were discovered to have planned and participated in Jennifer's murder.⁴

The defendant appeals from a judgment of conviction for first-degree murder, conspiracy, obstruction of justice, and numerous firearms counts. On appeal, defendant assigns a plethora of error: (1) the trial justice abused his discretion in admitting various items of evidence, including evidence that defendant committed the Feliciano murder; (2) the trial justice's jury instructions on evaluating witness credibility were insufficient because they failed to highlight the danger of the testimony of accomplice witnesses who cooperate with the state; (3) the trial justice erred in rejecting defendant's Batson ⁵ challenge to the state's use of a peremptory challenge; (4) the trial justice impermissibly permitted the state to vouch for the truthfulness of two of its witnesses; and, finally, (5) the trial justice erred in denying defendant's motion for a new trial. We affirm the judgment.

Facts and Travel

The events that precipitated this tragic crime began on August 28, 1999, when defendant shot and killed seventeen-year-old Feliciano in the vicinity of Congress Avenue in Providence. Providence police detective-sergeant James Marsland (Det.Marsland) was the lead detective on the Feliciano-murder investigation. Detective Marsland identified Jennifer as an important witness to this homicide, and he obtained a formal statement from her. She identified defendant from a photo array; she was the sole eyewitness. Based on his investigation, Det. Marsland drafted a warrant for defendant's arrest, and Jennifer testified at defendant's bail hearing.

During her testimony at the bail hearing, with defendant and Perez present, Jennifer disclosed her home address—95 Congress Avenue—and testified that she was home on the night of the Feliciano murder and that she heard gunshots, looked out the window, and saw a lone gunman, whom she later identified as defendant, flee the scene. Although defendant initially was ordered held without bail, he subsequently would be released. He was indicted for Feliciano's murder, and the trial was slated to begin on May 22, 2000. Jennifer was listed as a prosecution witness and was under subpoena to appear and testify.

While incarcerated at the Adult Correctional Institutions (ACI) awaiting trial on the Feliciano murder, defendant shared a cell with inmate Dennis Fullen (Fullen), who later testified against him. The record reveals that defendant and Fullen occasionally would discuss the Feliciano murder. Although defendant mentioned possibly paying Jennifer to refrain from testifying against him, he also told Fullen “that he had to dump her” and “that he wanted to get rid of her.” The defendant explained that he wanted Walker and Perez to kill Jennifer, and he expressed anger that Walker had been unable and Perez seemed unwilling to comply. Additionally, defendant expressed his hope for release on bail, so that he could “make sure it got done right.”

During this pretrial confinement, Perez visited defendant; during these visits, they would discuss defendant's upcoming murder trial, and Jennifer in particular. The defendant explained to Perez that Jennifer “has got to go” and that Walker “need[ed] to handle that.” These admonitions were not ignored; on one occasion, upon observing Jennifer walking down a street, Perez exited his vehicle and fired his gun in the air in an effort to intimidate her. When Perez related this encounter to defendant, however, he told defendant that he had been attempting to kill Jennifer, but that the gun had jammed. An angry defendant characterized this effort as “dumb” because it potentially alerted Jennifer that she was in danger. The defendant eventually was released on bail on April 22, 2000, one month before Jennifer was killed.

In the early afternoon of May 21, 2000, defendant, Walker, and another friend drove to Lockwood Plaza, where they met Perez. The defendant told Perez that Jennifer was outside of her house. Walker displayed a weapon, and defendant asked Perez if he had a vehicle they could use. Later that day, after Perez secured a vehicle, he drove defendant and Walker to the vicinity of Congress Avenue, where Jennifer lived. As Perez drove by Jennifer's house, defendant and Walker spotted Jennifer. At that point, Perez turned the vehicle onto a series of side streets in order to pass by Congress Avenue once more. When the vehicle made its way back to Congress Avenue, Perez saw Jennifer jumping rope with a group of girls. Perez stopped on a nearby street, and Walker exited the vehicle. The defendant told Walker, “[M]ake sure you do it right.” Walker responded, “I can't let you do life[.]”

Walker then made his way to 95 Congress Avenue; he walked up to Jennifer and shot her multiple times at close range.⁶ Shortly after hearing gunfire, Perez saw Walker return to the vehicle and heard him declare, “I got her.” Jennifer was rushed to Rhode Island Hospital, where she died from multiple gunshot wounds the next day—which would have been the first day of defendant's trial for the Feliciano murder. The trial did not go forward as scheduled.

Detective-sergeant Vincent Mansolillo (Det.Mansolillo) oversaw the investigation of this homicide. Apparently, Perez had been arrested on unrelated drug charges, and Det. Mansolillo took the opportunity to discuss Jennifer's murder. At first, Perez was untruthful and unresponsive, but eventually he admitted his participation and implicated Walker and defendant. During the course of the investigation, a search of Perez's prison cell at the ACI, pursuant to a warrant, produced an incriminating letter addressed to Perez and penned by Pona.

Detective Mansolillo also met with inmate Fullen, who was then sharing a prison cell with Walker, who was in jail on an unrelated robbery charge. After giving a recorded statement, Fullen agreed to allow a recording device to be planted in his cell to record his conversations with Walker. During one conversation, Fullen and Walker discussed the circumstances of Jennifer's murder. Walker disclosed that he was with defendant and Perez on the day of the murder and that defendant told Walker to kill her. Walker admitted that he shot Jennifer three times.

The defendant was indicted on August 30, 2002 for numerous offenses arising from the murder of Jennifer Rivera, including murder (count 1), conspiracy to commit murder (count 2), carrying a handgun without a license (count 3), committing a crime of violence while armed with a firearm (count 4), and obstruction of justice (count 5). The defendant was found guilty on all counts, but this Court vacated the conviction and remanded the case for a new trial. State v. Pona, 948 A.2d 941, 943, 954 (R.I.2008)( Pona I ).

Before defendant's retrial in April 2010, several pretrial motions were litigated. First, defendant moved to exclude evidence of the cooperation agreements that Perez and Fullen had entered into with prosecuting authorities. Although the trial justice denied defendant's motion and allowed the agreements as full exhibits, portions of them were redacted in a manner that was agreeable to the parties. Second, defendant requested a jury instruction relative to the credibility of accomplices and cooperating witnesses who testify for the state. The trial justice denied defendant's request, explaining that the requested instruction was not required under this Court's established caselaw.

Third, although the state agreed to redact portions of defendant's letter to Perez, defendant requested that more of the letter be redacted.⁷ Defense counsel argued that the language was irrelevant and highly prejudicial, in that it implied that defendant was incarcerated somewhere outside Rhode Island and that the detectives assigned to his case disbelieved his declarations denying any involvement in Jennifer's murder. The state argued that the challenged portion of the letter was probative of defendant's guilty state of mind and reflected the overall tenor of the entire letter: cautioning Perez not to divulge any information about Jennifer's murder. The trial justice denied defendant's request for further redactions, noting that, in his opinion, that portion of the letter was “very vanilla,” did not imply that defendant was imprisoned elsewhere, and was probative for the reasons articulated by the state.

The defendant also vigorously sought to exclude any reference to the Feliciano murder. The defendant argued that proof of a motive was not an essential element of the charges against him and that evidence of the Feliciano murder was therefore inadmissible under Rule 404(b) of the Rhode Island Rules of Evidence. The state responded that...