State v. Rodriguez

• Decision Date: 14 May 2003
• Docket Number: No. 2001-517-C.A.,2001-517-C.A.
• Citation: 822 A.2d 894
• Parties: STATE v. Jose Luis RODRIGUEZ.
• Court: Rhode Island Supreme Court

822 A.2d 894

STATE v. Jose Luis RODRIGUEZ.

No. 2001-517-C.A.

Supreme Court of Rhode Island.

May 14, 2003.

Present WILLIAMS, C.J., FLANDERS, and GOLDBERG, JJ.

Lauren Sandler Zurier/Aaron Weisman, Providence, for Plaintiff.

Janice M. Weisfeld, Providence, for Defendant.

OPINION

FLANDERS, Justice.

A bitter feud left the bullet-riddled body of Angel Cruz (Cruz or victim) lying dead on a Providence sidewalk. After a jury trial, the Superior Court convicted Jose Luis Rodriguez (defendant or Rodriguez) of murder in the first degree, of using a firearm when committing a crime of violence, and of carrying an unlicensed weapon. As a result, the trial justice sentenced the defendant to serve two consecutive life sentences for these crimes, in addition to a concurrent ten-year term.

The defendant raises three issues on appeal. First, the trial justice committed prejudicial error, he asserts, when the court delivered an improper Allen charge after the jury informed the trial justice that it had reached an impasse in its deliberations. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)

. Second, he contends, his conviction of murder in the first degree and of using a firearm when committing a crime of violence violated the state constitutional prohibition against double jeopardy. Third, the trial justice erred, he suggests, in refusing to instruct the jury on second-degree murder.

Because the court's Allen charge was not illegally coercive or prejudicial; because defendant's convictions satisfied the different-crimes test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); because, in any event, the General Assembly intended the consecutive sentences for the crimes in this case, and, therefore, such punishment did not violate the prohibition against double jeopardy in article 1, section 7, of the Rhode Island Constitution; and because the evidence did not warrant a jury instruction on second-degree murder, we reject these arguments and affirm the convictions.

Facts and Travel

On the evening of August 3, 2000, a gunman shot the victim four times, leaving him dead on the sidewalk near the intersection of Almy and Penn Streets in Providence. Among the various trial witnesses, two testified to having observed how this murder occurred and another discussed the antagonistic relationship between the victim and defendant that led to the killing. Devin Frias (Frias), who lived on the corner of Almy and Penn Streets, testified that on the evening of August 3, she heard two gunshots while she was painting her bedroom. She then ran out of her house and observed a white Honda Accord in the middle of the intersection of Almy and Penn Streets. She saw two people in the car and another unidentified man standing outside the car on the driver's side.

At the same time, she also observed the victim, whom she did not know, limping around the corner of her house. Frias said she watched as defendant held a gun in his hand and shot the victim twice. According to her testimony, defendant then jumped into the car, which sped backwards onto Almy Street and then down Penn Street. Frias went over to where Cruz fell and saw that he had been shot in the head and was bleeding. She began yelling out the license number of the departing vehicle and asking that someone call 9-1-1. But she quickly returned toher house after a man asked "[w]ho [was] [expletive] saying that?" Frias testified that she was standing about five feet away from defendant when he shot Cruz and got a "pretty good" look at him, "enough for [her] to recognize his face to this day." Because she was afraid of becoming a witness, however, the police were unable to locate her until only a week before the trial. Frias later identified defendant from a police-assembled photographic array, saying that she had no doubts about the accuracy of her identification.

The other witness who testified at defendant's trial was Donald Adams (Adams). He contacted the police on September 20, 2000, seeking to trade his knowledge about Cruz's murder to obtain favorable treatment for his cousin on an unrelated charge. Adams had been a friend of defendant for approximately nine months before the night of the August 3 shooting. At first, Adams provided the police with an admittedly false statement because he did not want them to know that, on the evening of the incident, he was attempting to complete a drug transaction on the street where the murder occurred.

Adams testified that he knew at least a month before the shooting that defendant and Cruz had been feuding with each other. Apparently, they were at odds for several reasons, including their interactions with Cruz's girlfriend, Alicia Figueroa. Adams also recalled an incident during which defendant told him that he had a problem with Cruz because Cruz supposedly had "jumped" him. Both in his first and in his later police statements, Adams explained that, a few days before the Cruz murder, he observed defendant inquire about and then try to purchase a handgun from a man called Avelino while all three of them were present in Avelino's home. Adams heard defendant say that he "need[ed] a burner [referring to a gun], so that [he] [could] pop [Cruz]." When Adams asked whom he was referring to, defendant replied "Angel Cruz." Adams testified that he observed Avelino go into the basement, retrieve a "black .380" gun and hand it over to defendant. He then heard defendant say that he would do whatever was necessary to handle this matter because Cruz and his friends had "jumped" him in a park. On another occasion he also heard defendant say that he intended to kill Cruz.

Adams further testified that, on the night of the murder, he was present at the crime scene when he observed a burgundy car drive up, and saw defendant and a black man get out of it and approach Cruz, who was standing on the sidewalk. The car then sped off. Adams saw defendant and the other man walk up behind Cruz and ask, "What now, mother [expletive]?" before Cruz turned around. All three men then began to argue, pushing or shoving each other. Adams then saw defendant pull a gun and point it at Cruz. At that instant, Adams began running up a nearby driveway to the back of a house. He then heard the firing of three or four shots that apparently sounded as if they were all fired from the same gun. After hearing the shots, Adams walked back down the driveway and saw the victim lying on the sidewalk across the street. Although he did not see defendant shoot Cruz or thereafter enter into any vehicle, he testified that he watched as a white Honda drove by him quickly in reverse on Almy Street. Adams identified defendant from a police-assembled photographic array as the person whom he saw point the gun at Cruz immediately before he heard the gunshots.

Cruz's girlfriend, Alicia Figueroa (Figueroa), also testified that defendant and Cruz did not get along with each other. Apparently, defendant had said something to her that caused Cruz to take offense. She testified that one day defendant told her that he was going to shoot Cruz while they were both together in defendant's car. But according to what defendant told her, he did not do so only because Figueroa was present. Allegedly, defendant also told her that a man named Manny was going to kill Cruz. During the summer of 1999, Cruz apparently suspected that defendant and perhaps others were out to get him because he obtained a bat for protection.Before the August 3 shooting, Figueroa informed Cruz that defendant had said that "they" were going to kill him because Cruz had shot at someone in a car. There allegedly were other previous incidents in which both Cruz and defendant seemed to be on the verge of attacking each other, but, Figueroa explained, defendant always would walk away.

According to the chief medical examiner's testimony, she found four gunshot wounds on Cruz's body, together with associated "stippling." She explained that this is a forensic-pathology term for small gunpowder fragments that become imbedded into the skin of a shooting victim when a gun has been fired at close range. She found stippling on Cruz's right arm, his face, right forehead, and left cheek. One of the shots struck the victim in the upper lip, near the center of his face; another shot apparently entered his abdomen after passing through his left hand, which was covered by a bandana; another ricocheted off a surface, and fragments of that bullet lodged under the skin of the victim's chest; and the fatal shot entered above his left ear before passing through his brain and brain stem. The medical examiner further testified that even though this last bullet wound to Cruz's head was immediately fatal, it was not the first wound he suffered. She explained that the cause of death was bleeding because of the injuries to the abdomen and to the brain, and she opined that the manner of death was homicide. Although the police never recovered the murder weapon, a firearms and tool-marks expert testified that the shooter apparently fired three of the recovered projectile fragments from a .38-caliber-class gun. Under cross-examination, he testified that the fourth projectile was too big to be fired from a .380 caliber semi-automatic gun and that he could not determine without inspecting it whether the murder weapon had been altered to allow it to fire a larger .38-caliber bullet. Eventually, a three-count indictment charged Rodriguez with: (1) the murder of Cruz in violation of G.L.1956 § 11-23-1;¹ (2) with using a firearm when committing a crime of violence in violation of G.L. 1956 § 11-47-3.2(b)(3);² and (3) with carrying a pistol without a license in violation of § 11-47-8.³ A jury found defendant guilty of both counts 1 and 3 and the trial justice found him guilty on count 2.⁴ The trial justice then denied defendant's motion for a new trial and sentenced him as follows: to a mandatory term of...