State v. Werner

• Decision Date: 01 July 2004
• Docket Number: No. 1996-570-C.A.,1996-570-C.A.
• Citation: 851 A.2d 1093
• Parties: STATE v. Keith A. WERNER.
• Court: Rhode Island Supreme Court

851 A.2d 1093

STATE v. Keith A. WERNER.

No. 1996-570-C.A.

Supreme Court of Rhode Island.

July 1, 2004.

Lauren Sandler Zurier, Esq., Providence, for Plaintiff.

Paula Rosin, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, and SUTTELL, JJ.

OPINION

WILLIAMS, Chief Justice.

A jury convicted the defendant, Keith A. Werner (defendant), on one count of robbery pursuant to G.L.1956 § 11-39-1, two counts of assault with a dangerous weapon pursuant to G.L.1956 § 11-5-2, and one count of larceny over $500 pursuant to G.L.1956 § 11-41-1. The trial justice then sentenced the defendant to the maximum time in prison under the sentencing guidelines and, relying on the habitual offender statute, G.L.1956 § 12-19-21, declared that the defendant would not be eligible for parole until "the last day of [his] 45th year in jail." The defendant now appeals on several different grounds, including the trial justice's refusal to allow defendant to call an expert witness to testify about eyewitness testimony, the trial justice's refusal to provide money for defendant to take a polygraph test and admit the results at trial, and the trial justice's failure to dismiss the case pursuant to the Interstate Agreement on Detainers Act, G.L.1956 chapter 13 of title 13.

I Facts and Travel

Around 9 p.m. on March 7, 1992, Ann Holzinger (Holzinger), who was five months pregnant, closed the Picway shoe store (store) that she managed on Bald Hill Road in Warwick, Rhode Island. She then drove to the nearby Fleet Bank (bank) to deposit three bags from the store containing $2,322.15 in cash and checks. As per company policy, Michelle Porto (Porto), a fellow employee, followed Holzinger to the bank in a car driven by her mother, Sandra Haines (Haines).

When the group arrived at the bank, Holzinger pulled into the drive-through lane closest to the bank and Haines pulled into the adjacent drive-through lane. Although the sun already had set and a fog was in the air, the area surrounding the night depository was fairly well illuminated. Leaving her car running, Holzinger jumped out of the vehicle and approached the night depository, located around the corner from the drive-through teller windows and an ATM machine. Haines remained in the car with Porto, who was sitting in the front passenger seat, and Haines's two younger daughters, who were in the back seat. None of the women had noticed anyone in the parking lot when they arrived at the bank.

As Holzinger attempted to fit the store's key into the lock on the night depository she realized that something was stuck in the keyhole. Suddenly, a man armed with a gun, later identified as defendant, grabbed Holzinger and demanded the money. Not realizing he had a gun, Holzinger protested. Haines witnessed the altercation, jumped out of her car, and ran up to the assailant. Porto, who also was watching the events unfold, exited the car and ran away from the bank, hoping to find help at a nearby McDonald's restaurant. Realizing Haines was approaching, defendant turned and yelled at Haines to get back in her car and leave. Haines did return to her car but only pulled up a few feet. Once she was about twenty to twenty-five feet from the bank, Porto turned around and made eye contact with defendant before she turned and ran in the opposite direction. Meanwhile, Holzinger was screaming and pleading with defendant not to harm her. The defendant grabbed the bags of money from Holzinger and then demanded her car keys. Holzinger told defendant the keys were in the car but, before driving away, defendant turned around and shot Holzinger right in the belly.

Hearing the yelling and the gunshot, Porto fell, then got up and began to run back toward the bank. She watched as defendant got into the car and drove away. Fortunately, a nurse was passing by and was able to help Holzinger, who was taken to the hospital and, several months later, delivered a healthy baby boy. Porto and Haines were taken to the police station in separate cars.

Police responded to the scene very quickly and spoke to Holzinger. She described her assailant as a white male in his thirties, approximately five-foot-seven or eight inches tall, with sandy blond hair, wearing a t-shirt and a black hat. Haines described the assailant as about six feet tall, with sandy blond hair and light eyes, wearing a black hat with a logo including the word "Light," and a purplish coat. Porto testified that the assailant was tall, with sandy hair and a husky build, wearing a baseball cap and white sneakers.

A few hours after the incident Holzinger's car was found abandoned around the corner from the bank. A black hat emblazoned with the words "Coors Light" was in the back seat. Of the three bags Holzinger intended to deposit, one was left behind at the bank, one was found in the car, and the third never was recovered. Nearly a year later, Holzinger's wallet was found behind another bank.

On March 8, 1992, the day after the crime, the police went to the home of Haines and Porto and presented Haines with a photo array of six pictures of men matching the description that the women gave the night before. The defendant's picture was not among the choices, and Haines did not choose any of the photographs. Haines then spoke to an artist who sketched defendant's picture based on her memory. Porto looked at the completed drawing and agreed that it looked like the assailant without adding any details.

A few days later, Haines and Porto were asked to look at another photo array consisting of six photographs. The police met with Haines at the police station, where she cautiously chose defendant's photograph. An officer pointed out that since the assailant had been wearing a baseball cap his hair line would have been covered. Haines then put her thumb over the top of the men's heads to simulate the baseball cap and was able to identify defendant with certainty. The police then went to the home Haines and Porto shared and asked Porto to look at the same set of photographs. Both women testified that they did not discuss the photo array during the period of time after Haines made her selection and before Porto viewed the photos. Porto chose the same picture as Haines and conclusively identified defendant as the assailant.

Armed with the photo array, the police approached Holzinger while she was still in the hospital and asked her to identify the assailant. Holzinger chose defendant's photo as well as that of another man, and said she could not be sure which one it was. Holzinger was not permitted to identify defendant at the trial, and the parties were instructed not to mention the photo array that Holzinger was shown at the hospital because it was so inconclusive.

The defendant was arrested on March 11, 1992, in Everett, Massachusetts. He was brought to the Everett police station, where he was booked and put in a cell to await the arrival of the Warwick police. When the Warwick police arrived they informed defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and proceeded to question him. The defendant denied any involvement in the crime in Warwick.

Subsequently, defendant was sent to prison in Massachusetts for an unrelated crime. Pursuant to the Interstate Agreement on Detainers Act, defendant was brought to Rhode Island in August 1993. The defendant appeared before the court in two separate matters before this case was called. Trial did not get under way until March 1995, after the trial justice heard nearly one hundred pretrial motions brought by the state, defense counsel, and defendant on his own behalf.

On March 10, 1995, a jury returned guilty verdicts on all four counts of the indictment. For the convictions of robbery, assault with a dangerous weapon on Haines and larceny of an automobile, defendant was sentenced to serve consecutive terms of life in prison, twenty years and ten years, respectively. On the count of assault with a dangerous weapon on Holzinger, defendant was convicted as a habitual offender, and twenty-four years and 364 days were added to an underlying sentence of twenty years, all to be served consecutively to the three previous sentences. Pursuant to the habitual offender statute, the trial justice determined that defendant would not be eligible for parole for forty-five years.

On appeal, defendant presents many questions that will be addressed seriatim. Additional facts will be supplied as needed.

II Expert Testimony About Eyewitness Identification

Among dozens of other pretrial motions brought on defendant's behalf, defendant requested money to hire an expert to testify about the problems with and unreliability of eyewitness identification.¹ To support his pro se motion, defendant submitted the curriculum vitae of Dr. Kipling Williams (Dr. Williams). At the pretrial hearing, defense counsel gave a brief summary about the issues Dr. Williams would address. After hearing defendant's arguments, the trial justice concluded that the expert testimony was not necessary and, thus, denied defendant's request for money to retain an expert.

The defendant now argues that the trial justice abused his discretion by denying defendant's motion to present expert testimony on the subject of eyewitness identification. The defendant further contends that, at the very least, the trial justice should have held an evidentiary hearing on the matter before denying his motion.

Rule 702 of the Rhode Island Rules of Evidence permits "a witness qualified as an expert by knowledge, skill, experience, training, or education" pertaining to "scientific, technical, or other specialized knowledge," to testify at a trial if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." The trial justice has sole discretion to qualify a witness as an expert. State v. Arroyo, 844 A.2d 163, 167 (R.I.2004). "[T]his Court will not disturb such a finding absent a...