State v. Ramirez, 2003-27-C.A.

• Decision Date: 17 December 2007
• Docket Number: No. 2003-27-C.A.,2003-27-C.A.
• Citation: 936 A.2d 1254
• Parties: STATE v. Ricardo RAMIREZ.
• Court: Rhode Island Supreme Court

936 A.2d 1254

STATE v. Ricardo RAMIREZ.

No. 2003-27-C.A.

Supreme Court of Rhode Island.

December 17, 2007.

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

Jane M. McSoley, Esq., Providence, for Defendant.

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

OPINION

Justice GOLDBERG, for the Court.

On September 26, 2002, a jury found the defendant, Ricardo Ramirez (defendant or Ramirez), guilty of first-degree murder. The trial justice denied the defendant's motion for a new trial, and on December 6, 2002, the defendant was sentenced to a term of life imprisonment. In addition, the trial justice sentenced the defendant to a consecutive twenty-five-year sentence as a habitual offender in accordance with G.L. 1956 § 12-19-21, the habitual offender statute.

The defendant has appealed to this Court, contending that the trial justice: (1) violated defendant's Sixth Amendment right of confrontation when he allowed prior recorded testimony of an unavailable witness to be read to the jury; (2) erred in admitting hearsay testimony; (3) violated defendant's Sixth Amendment right to present a defense by barring testimony of a defense witness; (4) committed reversible error when he refused to pass the case; and (5) erred in imposing an enhanced sentence based on alleged findings of fact by the court. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

The events leading up to this brutal homicide occurred over twenty-five years ago. On May 5, 1982, two college students decided to walk to a cemetery in North Smithfield and found themselves in a ravine near some railroad tracks. It was there, at the bottom of a thirty-foot hill, that they came upon the partially clad remains of a decayed body. The two brothers alerted the North Smithfield police who, in turn, notified the state medical examiner. At the scene, the medical examiner located a bullet hole in the back of the victim's skull and found a billfold with a driver's license bearing the name William Sargent (Sargent) in the decedent's pants pocket. The medical examiner later used dental records to positively identify Sargent's body. Doctor Elizabeth Laposata, the chief medical examiner for the State of Rhode Island, testified at trial that the manner of Sargent's death was an "execution style" homicide. Although the body was found in 1982, the facts surrounding Sargent's disappearance and murder were slow to emerge.

Despite an intensive police investigation, the murder remained unsolved for many years. It was not until late 2000, that the case was assigned to Det. Stephen Riccitelli (Det.Riccitelli) of the North Smithfield Police Department and Det. John Killian of the Rhode Island State Police, whose efforts resulted in the arrest and indictment of defendant for this crime. Detective Riccitelli located Harold Marzini (Marzini), a retired Woonsocket police detective, who confirmed that Sargent had been a confidential police informant and had supplied Marzini with information on a regular basis. Marzini also recalled Sargent's associates, who were known to the police — Alfred Limburg (Limburg), Glen Bogan (Bogan), and Ramirez — and he described these men as frequent patrons of Mister Donut and the Court Street Pub in Woonsocket. These men also associated with defendant's cousin, Henry Cassidy (Cassidy), when he was not in jail.¹ From this colorful cast of characters, Det. Riccitelli was able to piece together the events leading to this brutal slaying.

The year was 1981; Ramirez, Bogan, and Sargent were engaged in a stolen-automobile operation in which they dismantled stolen vehicles in a "chop shop."² The facility was based in Blackstone, Massachusetts, in a garage rented by Limburg, who was an automobile dismantler and junkyard operator by trade. Limburg testified that he rented this garage to Sargent for approximately two months, around April 1981, until he discovered that Sargent was dealing in stolen automobiles at his garage. Limburg went to Sargent's home in Woonsocket, intending to put an end to the criminal activity; upon his arrival Sargent was concluding a telephone conversation. When Limburg asked Sargent about the phone call, Sargent informed him that he had been speaking with the Rhode Island State Police and that he was an informant. Unimpressed, Limburg told Sargent that he was closing the garage and that he should remove his belongings.

Meanwhile, Ramirez began to suspect that Sargent was a police informant. The defendant introduced Sargent to his cousin, Cassidy, and thereafter the men frequently met at Mister Donut. However, Cassidy, who at the time of trial was imprisoned at the Adult Correctional Institutions, suspected that Sargent was cooperating with law enforcement because he frequently used the pay telephone at the Mister Donut. Cassidy shared his suspicion with defendant and told Ramirez that he believed Sargent to be an informant because "he look[ed] like he [was] an undercover cop" and because he was "always" using a pay telephone.

The defendant began to investigate Sargent's informant activities, starting with Limburg. According to Limburg, "[Ramirez] wanted to know if William Sargent was a police informant and if he was, he would kill him." Although Limburg refused to disclose what he knew, Ramirez persisted. On April 27, 1981, while at a Woonsocket bar, defendant repeatedly asked Limburg if Sargent was an informant. Limburg was not forthcoming; defendant was undeterred.

That evening, after returning home from a night of drinking, Limburg was awakened by Ramirez, who told Limburg that Sargent had named him as the informant and they needed to take action. Although apparently intoxicated, the two men set off to Sargent's house to "straighten this out." However, the pickup truck they were driving, registered to Sargent Artesian Well Company, crashed into a fire hydrant. Undaunted, they returned to Limburg's home to retrieve his van, but this trip also was unsuccessful — the vehicle was stopped by the Blackstone police and the two men were arrested. According to Limburg, they met Sargent later that morning and that was the last time he saw Sargent. Limburg did not cooperate with the police because he was afraid of Ramirez.

Bogan, another confederate in the stolen-car business, testified at the first trial and recounted similar conversations with Ramirez about Sargent and whether he was a police informant. Bogan recalled Ramirez telling him that "he heard [Sargent] was a rat." According to Bogan, defendant began mentioning that Sargent was "working for the cops" and "he'd take him out before he'd let him take him down."

In the ensuing weeks, defendant's obsession with Sargent's informant activities culminated in his murder. During the first trial, Bogan testified that late one evening Ramirez arrived at his home in blood-stained clothing. Bogan gave him clean clothes, and Ramirez disclosed that "he took Billy Sargent out" by shooting him in the head. Ramirez gave Bogan a plastic bag containing his bloody clothing with instructions to throw the bag into a nearby river; Bogan did so the next morning.³ Bogan, like Limburg, feared Ramirez and refused to cooperate with the police.

The record discloses that Ramirez talked about the murder to others, including his brother-in-law, George Joyal (Joyal), as well as his former wife. Ramirez told Joyal that he had killed a man because he believed him to be an undercover Massachusetts narcotics officer. Ramirez told Joyal that he and the victim had walked to a ravine where he shot him twice with a .38-caliber gun. Like Limburg and Bogan, Joyal feared Ramirez and did not contact the police. In fact, Joyal told his sister the story, in the event that something should happen to him.

Based upon the investigation by Det. Riccitelli, the case was presented to a grand jury that returned a one-count indictment charging defendant with Sargent's murder. After a Superior Court jury trial, Ramirez was found guilty of first-degree murder. This appeal ensued.

I Prior Recorded Testimony

The defendant contends that the trial justice violated his Sixth Amendment right of confrontation when he declared that Bogan was unavailable and allowed the state to introduce his testimony from an earlier trial that ended in a mistrial.⁴ The record discloses that Bogan was subpoenaed on August 30, 2002, and was uncooperative from the outset.⁵ During a mid-trial hearing, Bogan refused to testify and invoked his Fifth Amendment privilege against self-incrimination, and the trial justice appointed counsel for the witness. Significantly, the trial justice found that Bogan properly had invoked his privilege against self-incrimination, prompting the state to seek immunity for the witness. The prosecutor asked the trial justice to admonish the witness that he was under subpoena and not free to leave the courthouse. The trial justice directed the witness to remain in the courthouse until he was released by his attorney.

Although the state began immunity proceedings, Bogan had other plans. Notwithstanding the trial justice's order that he remain available, Bogan disappeared. The trial justice issued a body attachment, and a mid-trial search for Bogan's whereabouts was undertaken by both sheriffs and police officers. The next day, after the prosecution recounted the state's efforts to locate Bogan, the trial justice declared him unavailable and his prior recorded testimony was read to the jury. Several days later, Bogan appeared at defense counsel's law office.

On September 23, 2002, defense counsel informed the trial justice that Bogan had turned up at his law office that morning; he contended that, as a result, the Court should strike Bogan's testimony or require the state to seek immunity so that Bogan could be called as a defense witness. Clearly frustrated with Bogan's antics, the state objected to the motion to strike the testimony and refused...