State v. Werner

• Citation: 831 A.2d 183
• Decision Date: 05 June 2003
• Docket Number: No. 94-745-C.A.,94-745-C.A.
• Parties: STATE v. Keith WERNER.
• Court: United States State Supreme Court of Rhode Island

831 A.2d 183

STATE v. Keith WERNER.

No. 94-745-C.A.

Supreme Court of Rhode Island.

June 5, 2003.

Jane M. McSoley/Aaron L. Weisman, for Plaintiff.

Paula Rosin/Susan B. Iannitelli/Christoph S. Gontarz, for Defendant. Present: WILLIAMS, C.J., FLANDERS, J., and WEISBERGER, C.J. (Ret.).

OPINION

WEISBERGER, Chief Justice (Ret.).

This case comes before us on appeal by Keith Werner (defendant or Werner) from a judgment of conviction entered in the Superior Court on a criminal information, which charged the defendant with six felony counts. Count 1 charged the defendant with assault with. intent to murder Loran Stoddard; count 2 charged the defendant with assault with intent to murder Frank Burton; count 3 charged the defendant with assault with a dangerous weapon upon Michael McGonigle; count 4 charged the defendant with possession of a loaded weapon in a vehicle; count 5 charged the defendant with possession of a sawed-off shotgun; and count 6 charged the defendant with possession of a firearm after having been previously convicted of a crime of violence.

Five counts were tried in the Superior Court by a justice sitting with a jury in the County of Kent beginning on May 24, 1994. Count 6 had been severed before trial. At the completion of the trial on June 8, 1994, the jury returned verdicts finding Werner guilty of assault with a dangerous weapon (lesser-included offense) on counts 1 and 2. The jury found defendant guilty on counts 3, 4, and 5. Thereafter, the trial justice denied defendant's motion for a new trial and, on August 4, 1994, sentenced defendant to ten years imprisonment on the three counts of assault with a dangerous weapon (sentences to run concurrently). He sentenced defendant to serve ten years imprisonment on count 4, possession of a loaded weapon in a vehicle, and to serve five years of imprisonment on count 5, possession of a sawed-off shotgun. These latter sentences were to be served concurrently with each other but consecutive to the sentences imposed on the first three counts. All the sentences were to be served consecutively to prison sentences imposed in the Commonwealth of Massachusetts and to sentences previously imposed in Rhode Island. The defendant filed a timely appeal from this judgment. We deny and dismiss defendant's appeal. The facts and procedural history of this case insofar as pertinent to this appeal are as follows.

Facts and Procedural History

On the early morning of May 15, 1988, Michael McGonigle (McGonigle), the manager of Johnny Ray's Beef & Brew (Johnny Ray's or bar) on Crawford Street in West Warwick, stopped at the bar to check on his sister, who was working for the first time as a bartender at the establishment. After a short stay at the bar, he left the premises and encountered a man who drove up to the bar in a silver-blue Ford vehicle, which looked to him "like [a] Grenada or something." McGonigle and the driver had a somewhat heated exchange, after which the man started to pull a black, sawed-off shotgun from a heavy green garbage bag lying on the front passenger seat and pointed it out the car window at McGonigle. Thereupon, McGonigle ran back toward the bar and, on his way, noted that the driver was standing in the street, struggling to take the bag off the gun. When he arrived inside the bar, McGonigle told his sister to call the police.

Loran Stoddard (Stoddard), who lived in an apartment above the bar, had gone down to the bar at about 11:30 p.m. Stoddard, who had been drinking heavily, heard the argument between McGonigle and the driver of the vehicle. When Stoddard attempted to end the argument, the driver (whom he later identified as Keith Werner) told him to mind his own business. When Stoddard did not comply, defendant walked back to his car, reached in through the driver's door, and took out a large garbage bag from which he extracted a shotgun. He pointed the barrel at Stoddard and fired. Stoddard was struck in both knees and fell to the ground. As he pointed the gun, Werner admonished the victim: "[m]aybe this will teach you to mind your own business."

Frank Burton (Burton) arrived at Johnny Ray's establishment at approximately 10:30 p.m. on May, 14, 1988. At about 12 midnight, Burton heard McGonigle shouting that there was a man outside armed with a shotgun. Upon entering the bar, McGonigle had closed the door leaving Stoddard outside with the purported wielder of the gun. Burton peeked out the door and observed the gunman aiming a shotgun at Stoddard. Burton closed the door and listened. When silence indicated that the gunman might have left, Burton reopened the door and heard the gunman yell, "I'll blow your head off." The gunman fired, and some of the pellets ricocheted from the sidewalk and struck Burton in his arm and legs while he was still in the doorway. He noted Stoddard lying in the road with apparently serious wounds on the lower portions of his legs and in his knees.

Shortly afterward, a West Warwick patrolman, Mark Amaral, arrived and observed Stoddard lying in the gutter outside the bar. He saw Burton standing over Stoddard. Burton also was wounded. McGonigle told the officer that the assailant was a white male in his late twenties with sandy blonde hair, worn "pushed up but no part." The officer was told that the gunman drove a gray Ford Grenada with Rhode Island license plates numbered IF-536.

Messrs. Burton and Stoddard were taken to the Kent County Hospital, where Burton was treated and released the same day. Stoddard was required to undergo emergency surgery to remove pellets and to repair damage to his knees. He underwent significant surgical procedures and remained in the hospital for eighteen days. He also was treated for pain after he was discharged.

On the evening of May 15, 1988, West Warwick detectives visited Stoddard at the Kent County Hospital. He had undergone surgery earlier that day. Nevertheless, he did speak with them and viewed a photo array from which he selected a picture of Werner as the man who had shot him.

Shortly after Officer Amaral arrived, Sergeant Peter Appollonio (Sgt.Appollonio) of the West Warwick police arrived at Johnny Ray's. He was informed that the assailant was a white male approximately six feet tall with dirty blonde hair combed straight back from his forehead. He was also informed that the assailant drove away in a vehicle described by witnesses at the scene to be either a 1978 or 1979 gray Ford Grenada or Mercury Monarch with Rhode Island license plates numbered IF-536. About ten minutes later, another West Warwick police officer, Danielle Maynard, radioed to Sgt. Appollonio that she had located the described vehicle parked on St. John Street, within one-half mile of Johnny Ray's. Upon arriving at the location of the automobile, Sgt. Appollonio ascertained that the vehicle was empty. He then directed other officers to search the neighborhood to find out whether the suspect was hiding nearby. Sergeant Appollonio tried the door of the automobile and found it to be unlocked. Inside the car, he discovered a Rhode Island registration certificate listing the owner of a 1976 blue Plymouth Fury as one Dennina Prefontaine with an address at Davisville, Rhode Island. He also found a bill of sale from one Diane Levy to Ms. Prefontaine that described the subject vehicle as a 1979 gray and black Mercury Monarch. This was the specific vehicle that Sgt. Appollonio had found. He also found a receipt for repairs that listed Ms. Prefontaine as the owner of the vehicle that he had discovered. Also in this vehicle, Sgt. Appollonio found billing notices for two magazine subscriptions, both addressed to Werner at 200 Lockwood Street, West Warwick. After seizing these items of evidence from the Mercury Monarch, Sgt. Appollonio returned to the bar, picked up McGonigle, and brought him to the Mercury Monarch. McGonigle identified the vehicle as the one that had been driven by the shooter earlier that night. The car then was towed to the West Warwick police station. Thereafter, the car was removed to a wrecking company and was destroyed after eight days, when it had not been claimed by a purported owner.

After returning to the station, Sgt. Appollonio attempted to trace the suspect by using the documents he had procured from the Mercury Monarch. He was unable to obtain an address for Ms. Prefontaine. Consequently, he went to 200 Lockwood Street, which was the address noted on the magazine subscriptions. He arrived at this address between 3 and 4 a.m. and encountered a woman who identified herself as Cynthia Mackabee (Ms. Mackabee). Ms. Mackabee said that she was Werner's sister. She described her brother as slightly over six-feet tall, approximately thirty years of age, with dirty blonde hair. Ms. Mackabee said that Werner lived with Ms. Prefontaine, and described her as his girlfriend. Ms. Mackabee was not certain of the exact address but she told the sergeant that she believed her brother lived in the vicinity of Brookside Avenue in West Warwick.

When Sgt. Appollonio returned to the West Warwick police station, he checked with the traffic division of the department as soon as it opened. After checking the names of Werner and Prefontaine for traffic violations, he discovered that Werner had listed an address as 14B Brookside Avenue with the Administrative Adjudication Court. He learned that this was an apartment building in the town of West Warwick. It was later discovered that Ms. Prefontaine had begun a dating relationship with Werner during the year 1987. In the course of this relationship, he moved into her apartment at 14B Brookside Avenue. At some point during the month of May 1988, the relationship had deteriorated between the couple and Werner began spending part of his time in another apartment in the same building, as well as residing part of the time in Apartment 14B.

Ms. Prefontaine disclosed later at trial that she and Werner both used a silver and red Mercury Monarch (which sh...