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Supreme Court
No. 2022-13-C.A.
(P1/16-2491AG)
State :
v. :
Thomas Mosley. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2022-13-C.A.
(P1/16-2491AG)
State :
v. :
Thomas Mosley. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. On the afternoon of August 13, 2014, a
gunman entered Yusef A’Vant’s Krazy Kuts barbershop in East Providence, Rhode
Island. A scuffle ensued, the result of which ended with A’Vant sustaining a fatal
gunshot wound to the chest. After two trials, the defendant, Thomas Mosley
(Mosley or defendant), was convicted on multiple counts, including second-degree
murder. On appeal, the defendant identifies twenty-one appellate issues for our
consideration. Having carefully scoured the voluminous record and the parties’
arguments, we discern no error. The judgment of conviction is affirmed.1
1
It is evident that many of the appellate issues were conceived and researched by
the defendant. We take this opportunity to express the Court’s sincere appreciation
to court-appointed defense counsel, who graciously included the defendant’s legal
arguments in an able and professional manner.
-1-
Facts and Travel
Derek Winslow and A’Vant had an acrimonious relationship, leading
Winslow to declare that he wanted A’Vant “got,” which in street parlance evidently
signifies “murdered.” Winslow enlisted the assistance of Evan Watson; and after
initially agreeing to kill A’Vant, Watson declined, advising Winslow that he “had a
bad feeling,” which proved prophetic. Undeterred, Winslow conscripted a
replacement, Mosley; and in a subsequent conversation, Watson agreed to supply
the gun and to drive Mosley to and from the barbershop. Thereafter, Watson testified
against defendant and for the prosecution.
At trial, Watson provided critical testimony implicating Mosley in A’Vant’s
murder. He admitted providing a loaded .38 caliber revolver and driving Mosley to
the barbershop. Watson detailed the route driven and described that, as they
approached the barbershop, defendant reached into the glove compartment, retrieved
the loaded revolver, and proceeded in the direction of the barbershop. He was not
gone long. Watson testified that within minutes he heard gunshots and
“immediately” thereafter witnessed defendant jogging back to the vehicle. As
Watson drove away, Mosley stated to Watson, “it wasn’t, like, supposed to go down
like that” and “someone might have saw [me].”
Seth Waters also testified and explained that he visited the barbershop during
his lunch break for a haircut. According to Waters, within minutes of his arrival, a
-2-
male opened the barbershop door, pointed a gun at his head, and told him “to get on
the floor.” Waters complied, and although he was not an eyewitness—because he
was face-down on the floor—Waters recalled hearing A’Vant exclaim, “[y]ou’ve
got to be kidding me,” the sounds of a scuffle, and then the explosion of a gunshot.
After the gunman fled the barbershop, Waters stood up and discovered A’Vant,
bleeding from his stomach or chest area. Waters described the assailant to police
and later assisted in compiling a composite sketch of the gunman.
According to Rithy Suon, Mosley’s then-girlfriend and the mother of his
child, one evening Mosley showed her a composite sketch. After Suon inquired
concerning the significance of the sketch, Mosley smirked and mused that the sketch
“was supposed to look like him.” While Suon testified that she was not, at that time,
unduly alarmed by defendant’s comment, Suon recounted that later, after Mosley’s
arrest, he advised her that she was going to hear a recording of himself and a person
Mosley referred to as “Little” (Michael Drepaul), with their infant son in the
background. Suon related that Mosley directed her to tell “them” that she did not
recognize any of the voices on the recording, an instruction she assumed meant the
police.
Drepaul testified concerning firsthand knowledge of the forewarned
conversation, which he had recorded surreptitiously at defendant’s home. Drepaul
related that, with the assistance of officers from the Providence Police Department,
-3-
he concealed a recorder in the pocket of his shorts, visited Mosley at his residence,
and engaged Mosley in a lengthy conversation. After discussing matters not
germane to this opinion, the conversation changed to a different topic. Without
specifically mentioning the barbershop or A’Vant, Mosley recalled exiting a
building and “hearing sirens. Like, I’m thinking that shit’s for me.” Mosley
continued and described that he
“rushes out and as I coming out * * * I’m hearing the
sirens. * * * So in my mind I’m like * * * I, I, I looked,
walked for a second and dipped * * * as I’m hitting the
corner I see Staties flying by.[2] * * * Soon as I hit that
corner, soon as I could -, soon as I hit that corner where
they couldn’t see me, ‘boom,’ took off. Floated. And
fucking jumped in the wheels, jumped in the wheels.”
Mosley’s recitation of events also largely corroborated Watson’s testimony
concerning statements made by defendant during the getaway:
“[W]hat happened was I was supposed to shake [A’Vant]
up. [A’Vant] got funky fresh. You know what I’m
saying? I had to give it to him. You know what I’m
saying? I was supposed to shake [A’Vant] up. Yo drop to
the floor. You know what I’m saying? Bust a shot and be
out.”3
2
Kris Ellinwood, a then-patrol officer with the East Providence Police Department,
testified that in the moments before the report of the shooting, a dispatch call was
received concerning another incident. In responding to that incident, Officer
Ellinwood activated the vehicle’s emergency lights and siren and drove past the
barbershop. Upon receiving the dispatch for the report of a shooting at the
barbershop, Officer Ellinwood turned around and responded to the barbershop.
3
The transcript uses a racial epithet, which we have replaced with A’Vant’s name.
-4-
After Drepaul questioned whether “[h]e was the only one,” defendant replied: “No,
I’m saying I let the other one go. I don’t think the other one, he got a good look at
me, know what I’m saying”; and “[t]he other [person] stayed laying down.”4
Providence Police Detective Theodore Michael also testified and was
qualified as an expert in digital forensics, specifically geolocation with respect to
Wi-Fi, GPS, and cellular site locations. After obtaining a search warrant to seize
Wi-Fi location data associated with defendant’s Google account, Det. Michael
testified that he was able to trace the location of defendant’s cellular telephone
through its connection to Wi-Fi access points. Utilizing this method and data, Det.
Michael determined that on August 13, 2014—the date of the murder—defendant’s
cellular telephone was located in Cranston at 1:45 p.m., moved in the direction of
East Providence, and remained within a twenty-seven-to fifty-three-yard radius of
the vicinity of the barbershop from 1:56 p.m. until 2:03 p.m. At 2:13 p.m.,
defendant’s cellular telephone was tracked to within an approximate thirty-yard
radius of 15 Princeton Avenue in Providence, Mosley’s residence. Detective
Michael also testified that on the late evening of August 11, 2014, to early morning
of August 12, 2014—the day before the murder—defendant’s cellular telephone was
located in the vicinity of 68 Whipple Street in Cranston (Winslow’s residence),
4
The transcript uses a racial epithet, which we have replaced.
-5-
traveled to the barbershop in East Providence, with a radial proximity between
twenty-six yards and seventy-one yards, and then traversed back to the vicinity of
68 Whipple Street.
On or about August 26, 2016, a grand jury returned a seven-count indictment
against Mosley. On the same date, and as part of the same indictment, the grand jury
returned a four-count indictment against Watson. The indictment charged both with
murder; conspiracy to commit an unlawful act, to wit, murder; carrying a firearm
without a license; and discharging a firearm while in the commission of a crime of
violence. Mosley additionally was charged with three counts of obstruction of the
judicial system, stemming from his instruction to Suon that she tell police that she
did not recognize the voices on the Drepaul recording, as well as two recorded
telephone conversations Mosley made while he was incarcerated at the Adult
Correctional Institutions encouraging family members or friends to tell Suon not to
cooperate with law enforcement officials. Watson’s case was severed from that of
defendant’s based on his cooperation.
A jury trial commenced in the fall of 2019, at the conclusion of which Mosley
was convicted of carrying a firearm without a license (count 3), discharging a firearm
while in the commission of a crime of violence (count 4), and all three obstruction
of justice counts (counts 5 to 7). The jury deadlocked on the remaining counts,
murder (count 1) and conspiracy to commit murder (count 2). The trial justice
-6-
subsequently denied defendant’s motion for a new trial with respect to count 3 and
counts 5 to 7, but granted the motion for a new trial with respect to count 4,
discharging a firearm while in the commission of a crime of violence.
In February 2020, a second trial ensued, encompassing the murder charge
(count 1), the charge of conspiracy to commit murder (count 2), and the charge of
discharging a firearm while in the commission of a crime of violence (count 4). The
jury convicted Mosley of second-degree murder and discharging a firearm while in
the commission of a crime of violence, and acquitted defendant of the charge of
conspiracy to commit murder. After denying defendant’s motion for a new trial, the
trial justice sentenced Mosley to consecutive life sentences on counts 1 and 4, a
ten-year concurrent sentence on count 3, and five years on counts 5 to 7, to be served
concurrently, but consecutively to count 4. The trial justice also determined that
defendant qualified as a habitual offender pursuant to G.L. 1956 § 12-19-21, and
sentenced him to an additional twenty-year consecutive sentence, with ten years to
be served and without parole at the ACI.5 This appeal ensued.
5
This Court is once again confronted with an incorrect judgment of conviction
signed by a trial justice. In this case, the corrected judgment of conviction entered
on July 14, 2021, does not contain the habitual-offender sentence. According to the
record, on June 9, 2021, the trial justice adjudged Mosley a habitual offender and
sentenced him
“to a 20-year period, all of which without parole. You will
be serving ten of it, the balance will be suspended with
probation. That suspended time is obviously without
-7-
Additional salient facts will be set forth as necessary.
Discussion
Mosley raises twenty-one appellate issues for our consideration. As discussed
herein, the law with respect to these legal issues is well-trod and adverse to Mosley’s
position. For organizational purposes, we combine appellate arguments raising
similar issues or legal principles.
A
Double Jeopardy
At the conclusion of the first trial, the jury found defendant guilty of carrying
a firearm without a license (count 3), discharging a firearm while in the commission
of a crime of violence (count 4), and three counts of obstruction of justice (counts 5
to 7). The jury was deadlocked on the murder charge (count 1) and the charge of
conspiracy to commit murder (count 2), and, therefore, returned no verdict on these
two charges.
parole. And that habitual sentence is to be served
consecutively to all of the prior sentences that I have
identified.”
Additionally, the record evinces that although the trial justice sentenced Mosley to
ten years on count 3, to be served concurrently with count 1, the corrected judgment
of conviction indicates that on count 3, Mosley is to serve ten years consecutively to
count 1. On remand, we direct the Superior Court to enter a second corrected
judgment of conviction.
-8-
Subsequently, Mosley filed a motion to strike the verdict on count 4,
discharging a firearm during the commission of a crime of violence, asserting that
the guilty verdict was legally inconsistent with the jury’s inability to reach a verdict
on counts 1 and 2. The defendant also filed, pursuant to Rule 33 of the Superior
Court Rules of Criminal Procedure, a motion for a new trial, arguing that the verdict
was against the weight of the evidence, against the sufficiency of the evidence, and
against the weight and the sufficiency of the evidence.
The trial justice analyzed the motion for a new trial consistent with the weight
of the evidence standard as the thirteenth juror, considering the evidence in light of
the jury charge, independently assessing the credibility of the witnesses and the
weight of the evidence, and determining whether he would have reached a different
result. In so doing, the trial justice granted the motion for a new trial on count 4,
and denied the motion for a new trial on counts 3, and 5 to 7.
With respect to count 4, the trial justice explained that, although the state did
not have to prove the predicate offenses beyond a reasonable doubt, the state “does
have to, at minimum, provide sufficient persuasive elements on the predicate
criminal conduct.” The trial justice continued that:
“Here, the conduct was murder, and it was expressly
alleged in the indictment that murder was the predicate
crime of violence, and this jury could not agree on that
[predicate] offense. If the jury could not agree on the basic
elements of that misconduct, I don’t think that the [c]ourt
-9-
should or, frankly, even can substitute its judgment in any
contrary way.”
On that basis, the trial justice afforded Mosley a new trial on count 4, discharging a
firearm while in the commission of a crime of violence, and denied the motion to
strike the verdict. Accordingly, the trial justice ordered a retrial on counts 1 and 2,
upon which the jury was unable to reach a verdict, and on count 4.
On appeal, defendant reasserts that his conviction on count 4 was legally
inconsistent with the jury’s inability to reach a verdict on counts 1 and 2. However,
he charges that the trial justice erred because “[t]he remedy is an acquittal on Count
4, not a new trial; this placed Mr. Mosley in double jeopardy for being tried twice
for the same offense * * *.” The defendant is incorrect.
Mosley’s foundational argument that the verdict on count 4 is legally
inconsistent with the verdict on counts 1 and 2 is a nonstarter. For well over a
century, the United States Supreme Court has recognized that “a criminal defendant
who successfully appeals a judgment against him ‘may be tried anew * * * for the
same offence of which he had been convicted.’” Tibbs v. Florida,
457 U.S. 31, 39-40
(1982) (quoting United States v. Ball,
163 U.S. 662, 672
(1896)). In so holding, the
Supreme Court observed that “the Double Jeopardy Clause ‘imposes no limitations
whatever upon the power to retry a defendant who has succeeded in getting his first
conviction set aside’” and that the rule “has persevered to the present.”
Id.
at 40
- 10 -
(quoting North Carolina v. Pearce,
395 U.S. 711, 720
(1969)). Among the
considerations supporting this rule of law, the Supreme Court explained, was that
“retrial after reversal of a conviction is not the type of governmental oppression
targeted by the Double Jeopardy Clause.”
Id.
After distinguishing between the
sufficiency of the evidence and the weight of the evidence, the Supreme Court
summarized, “the rule barring retrial would be ‘confined to cases where the
prosecution’s failure is clear.’”
Id.
at 41 (quoting Burks v. United States,
437 U.S. 1,
17
(1978)).
While defendant theorizes that the inability to render a verdict on count 1 is
legally inconsistent with the guilty verdict on count 4, this Court has concluded
otherwise:
“‘[T]he applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each
provision requires proof of a fact which the other does
not.’ * * * The United States Supreme Court further
indicated that ‘[a] single act may be an offense against two
statutes; and if each statute requires proof of an additional
fact which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from
prosecution and punishment under the other.’” State v.
Rodriguez,
822 A.2d 894, 905-06
(R.I. 2003) (emphasis
added) (quoting Blockburger v. United States,
284 U.S.
299, 304
(1932)).
Here, as in Rodriguez,
- 11 -
“the state charged defendant with murder on count 1 and
with using a firearm while committing a crime of violence
(murder) on count 2. These crimes cannot merge because
each required proof of a separate element (murder and
using a firearm, respectively) that the other did not; thus,
they constituted separate crimes.” Id. at 906-07.
Because counts 1, 2, and 4 each required a separate element of proof, a
conviction on each charge does not implicate the Double Jeopardy Clause.
Moreover, as noted supra, “the Double Jeopardy Clause ‘imposes no limitations
whatever upon the power to retry a defendant who has succeeded in getting his first
conviction set aside * * *.’” Tibbs,
457 U.S. at 40
(quoting Pearce,
395 U.S. at 720
).
Accordingly, we reject defendant’s claim that double jeopardy bars his retrial on
count 4.
B
The Second-Degree Murder and Accomplice Instructions
Mosley raises two contradictory arguments regarding the second-degree
murder instruction. First, he complains that the trial justice erred during the first
trial when he refused to charge the jury on the lesser-included offense of
second-degree murder. Second, Mosley avers that the trial justice erred during the
second trial when he instructed the jury on the lesser-included offense of
second-degree murder, as well as committing error when he refused to render an
accomplice instruction. Mosley contends that because “[t]he facts laid out in the
first case were the same facts that were laid out in the second trial,” the trial justice
- 12 -
was precluded from instructing on second-degree murder at the second trial pursuant
to the law-of-the-case doctrine. Mosley is mistaken.
The defendant’s initial claim that the trial justice erred during the first trial
when he declined to instruct on second-degree murder is moot. In this respect, we
have noted on numerous occasions that, if a court’s decision concerning “a particular
matter ‘would fail to have a practical effect on the existing controversy, the question
is moot, and we will not render an opinion on the matter.’” State v. Gaylor,
971 A.2d
611, 614
(R.I. 2009) (quoting City of Cranston v. Rhode Island Laborers’ District
Council, Local 1033,
960 A.2d 529, 533
(R.I. 2008)). While Mosley suggests that,
had the jury at the first trial been instructed on second-degree murder, a second trial
would have been unnecessary, this argument is nothing more than speculation. More
importantly, assuming, arguendo, that Mosley is correct and the trial justice should
have instructed the jury at the first trial on second-degree murder, our recourse on
appeal would be to vacate the conviction for first-degree murder and direct the entry
of a judgment of guilty on second-degree murder. Here, the jury at the second trial
was instructed on second-degree murder and returned a verdict on that offense,
rendering the argument concerning the lack of a second-degree murder instruction
during the first trial utterly moot.
Undaunted, and having received an instruction on second-degree murder in
the second trial, Mosley submits that the trial justice again erred, this time by
- 13 -
providing the second-degree murder instruction in contravention of the
law-of-the-case doctrine.
Pursuant to this doctrine, when a “judge has decided an interlocutory matter
in a pending suit, a second judge on that same court, when confronted at a later stage
of the suit with the same question in the identical manner, should refrain from
disturbing the first ruling.” State v. Graham,
941 A.2d 848, 856
(R.I. 2008) (quoting
Richardson v. Smith,
691 A.2d 543, 546
(R.I. 1997)). This Court has expressed that
the law-of-the-case doctrine “does not have the finality of the doctrine of res
judicata. It is more in the nature of a rule of policy and convenience.” Salvadore v.
Major Electric & Supply, Inc.,
469 A.2d 353, 356
(R.I. 1983). Here, “[w]e do not
believe this doctrine is remotely applicable * * * because decisions by the trial justice
on how to charge the jury are not interlocutory rulings.” Graham,
941 A.2d at 856
.
Instead, this Court has “agree[d] with various other jurisdictions that explicitly have
held that decisions to use certain jury instructions in a trial ending in a mistrial are
not binding in a subsequent trial.”
Id.
Accordingly, we reject defendant’s argument
that the trial justice was barred by the law-of-the-case doctrine from instructing the
second jury on second-degree murder.
Mosley also posits that the trial justice erred when he failed to provide an
accomplice instruction. This argument ignores our precedent.
- 14 -
In State v. DeMasi,
413 A.2d 99
(R.I. 1980), we rejected a similar argument
that the trial justice erred when he failed to present an instruction concerning a
coconspirator who provided inculpatory testimony in exchange for a grant of
immunity. See DeMasi,
413 A.2d at 100
. This Court deemed the omission proper
and referenced that “[o]n other occasions we have refused to fault trial justices for
refusing to charge a jury that an accomplice’s uncorroborated testimony should be
carefully scrutinized or that a jury must receive and consider an accomplice’s
testimony with caution.”
Id.
(internal quotation marks omitted). In so doing, this
Court advised that such an “admonition might be considered by the jury as a judicial
impeachment of a witness, and it emphasized that in this jurisdiction a trial justice is
under a strict obligation to avoid disclosing any opinion regarding the weight of the
evidence or the credibility of the witnesses as long as the case is still before the jury.”
Id.; see also State v. Collins,
543 A.2d 641, 656
(R.I. 1988) (“[W]e are of the opinion
that the trial justice’s instructions on the subject of credibility were more than
adequate.”), overruled on other grounds by State v. Rios,
702 A.2d 889, 890
(R.I.
1997); State v. Fenner,
503 A.2d 518, 525
(R.I. 1986) (“[I]t is probably better
practice for a trial justice to avoid giving such instructions in respect either to alibi
testimony or to accomplice testimony and to rely instead upon general instructions
concerning credibility, motivation, bias, and the like.”).
- 15 -
In this case, there is no question that the jury was apprised of Watson’s status
as an accomplice and his accompanying baggage. Watson extensively testified
concerning his role in A’Vant’s death, his numerous prison sentences, and the fact
that his testimony was procured through a cooperation agreement with the state in
exchange for a recommended thirty-five-year sentence, which would be served
concurrently to a previously imposed unrelated thirty-year sentence. These
circumstances could not have been lost on the jury since, as the trial justice observed,
Watson “arrived on the witness stand in leg shackles, prison garb, and in the
company of uniformed sheriffs.”
Consistent with DeMasi, Fenner, and Collins, the trial justice provided an
extensive general credibility instruction, which included:
“I spent some time when we were selecting you as jurors
talking about credibility of witnesses. That’s your job.
Essentially, that’s probably the most important job you
have, and there’s no magical formula by which you can
weigh and assess and evaluate the credibility and the
testimony of a witness. Basically, the jury system works
because you, individually and collectively, decide for
yourselves the reliability or the unreliability of statements
made to you by others. And I suggest to you that the same
tests that you use every day are probably the best tests to
apply when you evaluate the credibility of witnesses.
“Now, without limiting the generality of that statement, let
me suggest some things you should consider.
“You may be guided by the intelligence, the age, and the
appearance of a witness, as well as by the conduct and the
- 16 -
demeanor of the witness while testifying. And also by his
or her frankness and candor while testifying.
“You should consider the interest or lack of interest of the
witness, if any, in the outcome of the case, and the bias or
the prejudice of the witness, if any, as well as any criminal
record or history of a witness.
“* * *
“You, as the jurors, are the quintessential judges of the
credibility of witnesses. And it is entirely up to you to
decide what portions, if any, of a witness’s statements are
truthful, their testimony to you during the trial or
statements that they made to others prior to trial. And after
making your own judgment, give the testimony of each
witness such weight, if any, as you think it deserves.”
The trial justice’s thoughtful and comprehensive credibility instruction “adequately
cover[ed] the subject matter relating to the request.” Fenner,
503 A.2d at 525
.
C
Motions for New Trial
“When passing on a motion for new trial, ‘the trial justice acts as a thirteenth
juror and exercises independent judgment on the credibility of witnesses and on the
weight of the evidence.’” State v. Cerda,
957 A.2d 382, 385
(R.I. 2008) (quoting
State v. Bergevine,
942 A.2d 974, 981
(R.I. 2008)). In so doing, “the trial justice
must (1) consider the evidence in light of the jury charge, (2) independently assess
the credibility of the witnesses and the weight of the evidence, and then (3) determine
whether he or she would have reached a result different from that reached by the
- 17 -
jury.” State v. Paola,
59 A.3d 99, 104
(R.I. 2013) (brackets omitted) (quoting State
v. Vargas,
21 A.3d 347, 354
(R.I. 2011)). “If, after conducting this independent
review, the trial justice agrees with the jury’s verdict or if the evidence is such that
reasonable minds could differ as to the outcome, the motion for a new trial should
be denied.” Cerda,
957 A.2d at 385
(quoting State v. Schloesser,
940 A.2d 637, 639
(R.I. 2007)).
On appeal, “a trial justice’s ruling on a motion for new trial is entitled to great
weight provided that he has ‘articulated an adequate rationale for denying a
motion.’” Cerda,
957 A.2d at 385
-86 (quoting Bergevine,
942 A.2d at 981
). “A trial
justice’s ruling on a new-trial motion will not be overturned unless the trial justice
was clearly wrong or unless he or she overlooked or misconceived material and
relevant evidence that related to a critical issue in the case.”
Id.
at 386 (quoting State
v. Lynch,
854 A.2d 1022, 1046
(R.I. 2004)). We conclude that the trial justice
appropriately and independently evaluated the evidence, properly assessed the
credibility of the witnesses, and did not overlook relevant or material evidence.
After the first trial, Mosley was convicted of carrying a firearm without a
license (count 3), discharging a firearm during the commission of a crime of violence
(count 4), and obstruction of the judicial system (counts 5 to 7). As discussed supra,
the trial justice granted defendant’s motion for a new trial on count 4; accordingly,
any claim that the trial justice erred by not granting a new trial on count 4 is moot.
- 18 -
With respect to the two obstruction-of-justice counts stemming from recorded
telephone conversations defendant made from the ACI, the trial justice recounted:
“The jury heard the defendant on two tape-recorded phone
calls from the ACI, in which he entreated people, someone
called ‘Ma,’ for example, indeed, insistently instructing
her to reach out to Rithy Suon and make certain that she
stops talking to the police. He obviously knew full well
that she could do him considerable damage in this
homicide case. He couches his entreaties in these phone
calls in the purported context of a father who is unfairly
being separated from seeing his child, and that Rithy
should not deprive him of that benefit.”
Without needlessly recounting the conversations in toto, the trial justice highlighted:
“The defendant recites that Rithy needs to come up here
and talk to me and stop talking to or stop listening to
anybody else. He says, ‘Have everybody call her to try to
convince her. Tell her she’s safe if she does the right thing.
She doesn’t have to be scared of these people.’ Obviously,
referencing the authorities.
“He laments in one of the calls that Rithy stopped coming
out and she started talking to this prosecutor, and he says
to the person he’s speaking to on the telephone, ‘Call her.
Tell her, Ma, she needs to stop doing what she’s doing to
me. She needs to stop talking to who she’s talking to.
Please convince her to come up here and see me. She has
to come up here and see me. She has to come up here and
talk to me. She has to bring my son up here to see me. I
need her to stop doing what she is doing.’”
Additionally, with respect to the remaining obstruction-of-justice count, the trial
justice recounted the evidence that defendant “tells Rithy personally that the police
- 19 -
are going to play a tape recording for her and that she should not identify his voice
on it.”
After reviewing this evidence, the trial justice appropriately employed the
new-trial analysis and concluded:
“The jury found, and I concur in that kind of judgment
* * * that the defendant was intent on influencing and or
having others on his behalf influence her behavior in
statements with the intent of persuading her to stop
cooperating with the police. In short, this jury found that
the defendant tried mightily and corruptly to quiet Rithy
Suon, whom he knew the State considered a key witness
against him. And I don’t think the jury was at all
unwarranted in making that determination from the
evidence presented at this trial.”
Notably, on appeal, Mosley does not specifically identify that the trial justice
overlooked or misconceived any relevant evidence in arriving at this decision.
On count 3, carrying a firearm without a license, the trial justice observed that
there was no dispute that “Mr. Mosley did not have a duly-issued license to carry a
pistol.” The trial justice observed that “[t]he principal evidence that he had
possession of the pistol is essentially or principally Evan Watson’s testimony that
the defendant personally took the pistol, which had been in the glove box in the car,
got out of the vehicle with the gun, and shortly thereafter Watson heard gunfire.”
Again, defendant does not contest this determination.
Here, the record amply supports that the trial justice properly employed the
analysis for a motion for a new trial, detailed the grounds for denying the motion,
- 20 -
and articulated clear and strong credibility determinations. See State v. Karngar,
29
A.3d 1232, 1235
(R.I. 2011) (“If the trial justice agrees with the jury’s verdict or
determines that reasonable minds could disagree about the outcome, then he or she
must deny the new-trial motion * * *.”). Accordingly, we discern no error in the
trial justice’s decision to deny the motion to grant a new trial on counts 3, and 5 to
7.
Mosley also challenges the trial justice’s denial of the motion for a new trial
after the second trial. Here, the trial justice issued a comprehensive and thoughtful
thirty-page written decision recounting the evidence and the credibility of various
witnesses. The trial justice concluded that he was “firmly convinced that the guilty
verdict produced at Mosley’s retrial was entirely appropriate, and this [c]ourt fully
agrees with it.” On appeal, Mosley’s substantive argument is limited to a single
sentence: “Reviewing the trial justice’s decision de novo as delineated above, and
examining the evidence in the light most favorable to the verdict, no rational trier of
fact could have found Mr. Mosley guilty of second-degree murder and consequently
committing the crime of violence of murder with a firearm.” Mosley provides no
authority or references to the record to support this contention.
The trial justice again employed the correct standard, comprehensively
reviewing the evidence in light of the jury instructions, articulating detailed
credibility determinations and discussing the weight of the evidence, and concluding
- 21 -
that “the guilty verdict produced at Mosley’s retrial was entirely appropriate * * *.”
See, e.g., Paola,
59 A.3d at 104
. Notably, Mosley’s appellate argument fails to
identify any specific error committed by the trial justice. See State v. Tavares,
312
A.3d 449
, 465 (R.I. 2024) (failing to develop a motion for a new trial argument
constituted waiver). Notwithstanding the failure to develop an appellate argument,
on the merits, our independent examination reveals no error in the trial justice’s
decision to deny the motion for a new trial after the second trial. See Karngar,
29
A.3d at 1235
.
D
Inconsistent or False Statements
Mosley maintains that the trial justice erred when he denied defendant’s
motion to suppress the testimony of his former girlfriend, Rithy Suon, which, he
submits, was obtained through coercive law enforcement efforts. Additionally,
defendant avers that the trial justice erred by denying two motions to dismiss the
indictment. Specifically, Mosley references grand jury testimony provided by Suon,
during which she testified that defendant admitted to her that he had accidentally
killed a person. It is undisputed that Suon later admitted that her grand jury
testimony was false. The defendant also posits that the trial justice erred by not
dismissing the indictment based upon the state’s failure to elicit certain testimony
during the grand jury proceeding, namely evidence suggesting that, when Winslow
- 22 -
recruited Mosley, Winslow’s intent—and thus his instruction to defendant—was no
longer to murder A’Vant. Mosley argues that the grand jury should have been
apprised of this intent and that the state’s failure to present it improperly skewed the
evidence submitted to the grand jury. We disagree.
We first address the motion to suppress Suon’s testimony. “In reviewing the
trial justice’s denial of defendant’s motion to suppress the incriminating evidence,
we defer to the factual findings of the trial justice, applying a clearly erroneous
standard.” State v. Barkmeyer,
949 A.2d 984, 995
(R.I. 2008) (deletion omitted)
(quoting State v. Apalakis,
797 A.2d 440, 443
(R.I. 2002)). “It is well established
that decisions concerning the admissibility of evidence are within the sound
discretion of the trial justice, and this Court will not interfere with the trial justice’s
decision unless a clear abuse of that discretion is apparent.” State v. Stokes,
200 A.3d
144, 150
(R.I. 2019) (quoting State v. Alves,
183 A.3d 539, 542
(R.I. 2018)). “The
trial justice will not have abused his or her discretion as long as some grounds
supporting his or her decision appear in the record.”
Id.
(quoting Alves,
183 A.3d at
542
).
In this case, Mosley essentially challenges the voluntariness of Suon’s
statements. This Court has long recognized, however, that “in order to challenge an
alleged violation of constitutional rights and to have the fruits of the violation
excluded by the trial court in the first instance, the individual alleging the deprivation
- 23 -
must be the one whose rights have been violated by the unlawful governmental
conduct, not a defendant claiming to be aggrieved by introduction of damaging
evidence.” State v. Vargas,
420 A.2d 809, 814
(R.I. 1980). Suon does not challenge
the voluntary nature of her statements.
Seemingly, defendant seeks to distinguish the assertion of Suon’s
constitutional rights, which he cannot challenge, from what he contends is his
fundamental right that reliable evidence be presented that is not the product of
coercion. In our opinion, this asserted distinction is of no moment; these
circumstances go to the weight of the evidence, not its admissibility. Rather “the
testifying witness may be examined by counsel in regard to the circumstances
surrounding the giving of the statement, and the jury is free to give possibly coerced
statements less weight than voluntary statements.” Vargas,
420 A.2d at 814
. Here,
the record aptly demonstrates that this is precisely what occurred; Suon was
subjected to extensive cross-examination concerning the circumstances by which her
testimony was elicited. We thus reject defendant’s claim that the trial justice erred
when he denied the motion to suppress Suon’s testimony.
The defendant also argues that the trial justice erred when he denied two
motions to dismiss the indictment; the first based upon Suon’s admittedly false
testimony to the grand jury that Mosley told her that he accidentally killed a person,
and the second based upon the state’s failure to present to the grand jury what Mosley
- 24 -
submits is exculpatory evidence that Winslow’s murderous intentions had changed
by the time defendant was recruited.
In Costello v. United States,
350 U.S. 359
(1956), the United States Supreme
Court considered whether an indictment should have been dismissed based on the
alleged insufficiency of evidence presented to the grand jury. See Costello,
350 U.S.
at 361
. The Supreme Court rejected the argument, explaining that “[i]f indictments
were to be held open to challenge on the ground that there was inadequate or
incompetent evidence before the grand jury, the resulting delay would be great
indeed.”
Id. at 363
. Critically, the Supreme Court concluded that “[a]n indictment
returned by a legally constituted and unbiased grand jury, like an information drawn
by the prosecutor, if valid on its face, is enough to call for trial of the charge on the
merits.”
Id.
(footnote omitted). This Court has not deviated from Costello and has
also stated that “in the grand jury context * * * a ‘subsequent guilty verdict means
not only that there was probable cause to believe that defendant was guilty as
charged, but also that he is in fact guilty as charged beyond a reasonable doubt.’”
State v. Russell,
950 A.2d 418, 426
(R.I. 2008) (brackets omitted) (quoting State v.
Stone,
924 A.2d 773, 782
(R.I. 2007)). Alternatively stated, a subsequent guilty
verdict supersedes any infirmities that may have occurred “by a legally constituted
and unbiased grand jury.” Costello,
350 U.S. at 363
.
- 25 -
Here, we conclude that the trial justice properly denied both motions to
dismiss the indictment. While this Court in no way condones a witness conveying
false testimony to the grand jury, Suon admitted, during the second trial, that her
prior account concerning Mosley telling her that he had accidentally killed someone
was false.6 And, as we have previously noted, even if a witness “had perjured
himself [or herself] before the grand jury * * * dismissal of the indictment would
not have been required.” Lerner v. Moran,
542 A.2d 1089, 1093
(R.I. 1988).
Because defendant was subsequently found guilty beyond a reasonable doubt—and
Mosley makes no allegation that Suon’s testimony at the second trial was less than
truthful—we discern no error.
Similarly, Mosley’s contention that the indictment should have been
dismissed because the state did not present to the grand jury alternative evidence to
the effect that, as defendant suggests, Winslow’s murderous intentions had abated
when he was recruited, is utterly without merit. See State v. Ellis,
619 A.2d 418, 427
(R.I. 1993) (“We do not require that evidence that may later be determined by
counsel for the defense to be exculpatory must be presented to the grand jury on pain
of dismissal of the indictment.”). Accordingly, the trial justice did not err when he
denied the motions to dismiss the indictment.
6
Critically, the record is devoid of any allegation or evidence that the state was
aware of the perjured testimony at the time it was elicited.
- 26 -
E
Michael Drepaul and the ACI Recordings
With the assistance of officers from the Providence Police Department,
Drepaul visited Mosley at his residence while surreptitiously recording their
conversation. Mosley raises two issues with respect to the Drepaul recording, one
issue related to recorded telephone conversations he had while incarcerated at the
ACI, and one evidentiary issue. First, defendant contends that the trial justice abused
his discretion in denying a motion to suppress the Drepaul recording, claiming that
the recording was obtained in violation of the wiretap statute and was based upon
“[s]tate action” without a warrant. Second, Mosley asserts that the trial justice
abused his discretion in denying a motion in limine, which sought to preclude
admitting the Drepaul recording into evidence. The defendant suggests that the poor
quality of the recording, the numerous episodes of Mosley’s infant son crying in the
background, and various inaudible portions rendered the recording untrustworthy
and unduly prejudicial. Third, Mosley submits that the trial justice erred when he
denied a motion to suppress two telephone conversations recorded while defendant
was incarcerated at the ACI as violative of the Fourth Amendment to the United
States Constitution. Finally, Mosley asserts that the trial justice abused his discretion
in overruling an objection to Drepaul’s testimony, which referenced that defendant
- 27 -
had committed “murder.” The defendant argues that such testimony invaded the
province of the jury. We reject these contentions.
In State v. Ahmadjian,
438 A.2d 1070
(R.I. 1981), the defendants argued that
the trial justice erred in denying a motion to suppress tapes and transcripts of
conversations obtained through electronic surveillance. See Ahmadjian,
438 A.2d at
1079
. Similar to the instant matter, in Ahmadjian the state police monitored and
recorded certain conversations, which occurred between an unindicted coconspirator
(with his knowledge and consent but without court approval) and defendants.
Id.
This Court rejected the defendants’ claim of error and explained:
“We hold that participant monitoring is not governed by the
requirements of chapter 5.1. The State Police were not
obliged to obtain a court order before monitoring [the
coconspirator’s] conversations with [the defendants] when
[the coconspirator] had already consented. We believe that
the legislative intent in enacting chapter 5.1 was to provide
procedural safeguards for individuals in situations in which
law enforcement officials desire to intercept wire or oral
communications without the knowledge or the consent of
any of the parties. In situations where an individual
consents to having his communications monitored, G.L.
1956 (1969 Reenactment) § 11-35-21(c)(2), as assigned,
P.L. 1969, ch. 55, § 3 applies.” Id. at 1080 (emphasis
omitted).
With one limited amendment (not relevant for our purposes), § 11-35-21(c)(2)
remains the law today and provides that “[i]t shall not be unlawful under this chapter
for * * * [a] person acting under color of law to intercept a wire, electronic, or oral
- 28 -
communication, where that person is a party to the communication, or where one of
the parties to the communication has given prior consent to the interception[.]”
Here, Drepaul’s testimony is pellucid that he was a willing and consenting
participant to the recording of his conversation with defendant. Mosley’s argument
to this Court is in accord: “The State’s reliance on the wiretapping statute is
misplaced since essentially this was State action under the guise of one-party
consent.” Mosley makes no allegation that Drepaul was unaware of the recording
device, and in fact, Drepaul extensively testified concerning the process by which
the recorder was secreted in his clothing by law enforcement officers with his full
knowledge and consent. Drepaul also testified that, after his conversation with
Mosley, he personally returned the recorder to law enforcement officials. As we
explained in Ahmadjian, in these circumstances, chapter 35 of title 11 does not
apply.7
Mosley also claims that the trial justice abused his discretion by denying the
motion in limine based on the quality of the recording. We disagree and note that
7
Mosley also argues that the recording device in this case violated the state wiretap
statute, G.L. 1956 § 11-35-21, and he directs our attention to State v. O’Brien,
774
A.2d 89
(R.I. 2001). In O’Brien, we noted that a surreptitious tape recording may
violate the state wiretap statute, “but only if the taping is ‘for the purpose of
committing any criminal or tortious act in the violation of the constitution or laws of
the United States or of any state or for the purpose of committing any other injurious
act.’” O’Brien,
774 A.2d at 98
(quoting § 11-35-21). Here, no evidence or argument
suggests this prerequisite has been satisfied.
- 29 -
we have reviewed the Drepaul recording and agree with the trial justice’s cogent
observation that “notwithstanding some indecipherable parts, most of which are not
germane to the A’Vant killing, an intelligible transcription of the important portions
was produced.” The trial justice also appropriately and accurately described the
Drepaul recording, noting that:
“Mosley, without identifying his victim or the precise
location of the barbershop, nonetheless provided details of
the premises and of the event which could only have been
chronicled by the perpetrator. Much of Mosley’s
tape-recorded recitation on that portion of the recording
was corroborated by others, leaving no doubt that Mosley
was narrating the A’Vant shooting to Drepaul.”
The trial justice also properly instructed the jury consistent with our admonition in
Ahmadjian: “Once transcripts are admitted into evidence, the trial justice should
instruct the jurors that they are the final arbiter of their accuracy and reliability and
that if the jurors perceive any differences between the tapes and the transcripts, they
must rely on the tapes.” Ahmadjian,
438 A.2d at 1082-83
; see also State v. Rivera,
221 A.3d 359
, 369 (R.I. 2019); State v. Donato,
414 A.2d 797, 805
(R.I. 1980)
(holding no abuse of discretion in admission of audio recording that trial justice
estimated was approximately 80 percent audible). The trial justice did not abuse his
discretion in denying the motion in limine to preclude the Drepaul recording from
evidence.
- 30 -
Third, Mosley contends that the trial justice abused his discretion in denying
a motion to suppress his oral, written, and tape-recorded statements, including
recordings of conversations at the ACI.8 More specifically, defendant claims that,
when the state subpoenaed his recorded prison telephone conversations for
September 8, 2015, to September 14, 2015—about two months after his arrest—it
violated his Fourth Amendment rights. The defendant asserts that the state’s
proffered reason to obtain the telephone recordings—the ongoing murder
investigation—was unreasonable and “doesn’t make sense” since that investigation
was complete and culminated in his July 2015 arrest. Mosley is wrong.
During the suppression hearing, defense counsel acknowledged that defendant
made the telephone calls in question. Further, it was undisputed that at the ACI,
inmates must complete a consent form in order to obtain a PIN number (a
prerequisite to using the telephones at the ACI), that signs are posted in the telephone
area advising inmates that calls are monitored, and that a recorded message is played
at the beginning of all telephone calls announcing to the participants that the
conversation may be monitored. We note that the telephone calls in question were
8
While defendant broadly frames this issue, the written arguments before this Court
are limited to the recorded telephone conversations involving defendant while he
was incarcerated at the ACI. To the extent Mosley complains about other oral,
written, or tape-recorded statements—unless addressed elsewhere in this opinion—
these arguments are waived. See, e.g., State v. Barros,
148 A.3d 168, 174-75
(R.I.
2016); Drew v. State,
198 A.3d 528, 530
(R.I. 2019) (mem.) (holding that failure to
meaningfully develop an appellate argument constitutes waiver).
- 31 -
not made to an attorney nor were they otherwise privileged; they served as the basis
for two of the obstruction-of-justice charges upon which Mosley was convicted.
Under similar circumstances, the United States Court of Appeals for the First
Circuit has concluded that “inmates and pretrial detainees who have been exposed
to the sort of warnings that [an inmate] saw here have been deemed to have
consented to monitoring.” United States v. Novak,
531 F.3d 99, 102
(1st Cir. 2008)
(concluding no Fourth Amendment violation when attorney-client conversation was
monitored in violation of regulation);9 see also United States v. Footman,
215 F.3d
145, 155
(1st Cir. 2000) (holding that “a prison inmate’s express acceptance of
having his calls recorded as a condition of using the telephone” constitutes
consent).10
9
We conclude only that under the circumstances present in this case, Mosley’s
recorded conversation with a non-attorney did not violate the Fourth Amendment to
the United States Constitution. We need not reach the precise issue discussed in
United States v. Novak,
531 F.3d 99
(1st Cir. 2008), concerning whether a recorded
attorney-client conversation violated the Fourth Amendment or the state analog.
10
Mosley asserts that “the seizure of prison communications by subpoena must be
reasonable for Fourth Amendment purposes” and that this standard requires “a
determination whether (1) the contested actions furthered an important or substantial
government interest, and (2) the contested actions were no greater than necessary for
the protection of that interest.” (Citing Whitehurst v. State,
83 A.3d 362, 367
(Del.
2013).) While Delaware may have adopted such standard, there is no Rhode Island
or binding federal court authority that adopted a similar standard, nor has Mosley
identified any such authority.
- 32 -
Finally, Mosley argues that the trial justice erred in overruling an objection
made in reaction to Drepaul’s testimony, as well as the court’s failure to provide a
curative instruction. During direct examination, the state elicited testimony that,
when Drepaul visited Mosley at his residence for the purpose of eliciting and
recording incriminating statements, the initial conversation had nothing to do with
A’Vant’s death. After testifying that the topic of conversation changed, Drepaul was
asked: “And what did the topic of the conversation turn to?” Drepaul responded,
“[t]he murder that he committed.” Mosley objected to Drepaul’s characterization of
A’Vant’s death as a “murder,” asserting that such a conclusion was within the
exclusive determination of the jury. This argument is without merit.
It is undisputed that, after suffering a single gunshot wound to the chest,
A’Vant was murdered. The manner of death in this case—homicide—has never
been contested, but rather the question presented to the jury for its consideration was
whether this defendant murdered A’Vant.
As the second trial commenced, the trial justice instructed the venire on
precisely this focus, advising the potential jury members that “this is a criminal case”
and that the charges “brought against the defendant, Mr. Mosley, alleging that on or
about the 13th of August, in the year 2014, he murdered an individual named Yusef
A’Vant in East Providence.” (Emphasis added.) Following the close of evidence,
the trial justice also instructed the jury that “[i]t’s you, and you alone, who have the
- 33 -
responsibility for making credibility and factual determinations and the ultimate
determination as to the proper verdict in the case.”
Under these circumstances, we are satisfied that the trial justice did not abuse
his discretion in overruling the objection concerning the admissibility of testimonial
evidence and that Drepaul’s reference to “murder” did not invade the province of
the jury. See, e.g., State v. McManus,
990 A.2d 1229, 1234
(R.I. 2010) (“The
applicable standard of review of a trial justice’s admission of evidence is a clear
abuse of discretion.”). Nor did the trial justice err by declining to provide an
immediate curative instruction in lieu of the general instruction provided by the trial
justice at the conclusion of testimony. The defendant did not move to pass the case.
We perceive no error.
F
Joinder and Severance
The defendant insists that the trial justice erred when he failed to sever the
obstruction-of-justice charges (counts 5 to 7) from the remaining charges. Mosley
invokes Rules 8 and 14 of the Superior Court Rules of Criminal Procedure and
maintains that the obstruction charges should not have been joined and/or should
have been severed because those “charges occurred a year after the gun charges, are
not of the same or similar character, are not based on the same charge of murder, do
not constitute part of a common scheme or plan, are brought under different statutes,
- 34 -
do not involve the same victims, locations, modes of operations or time frames.”
The trial justice rejected this argument, and we concur. In so doing, we note that
because he was convicted of these offenses at the first trial, as a matter of law, these
obstruction charges were severed during the second trial.
Rule 8(a) provides:
“Two (2) or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors or both, are of the same or similar
character or are based on the same act or transaction or
on two (2) or more acts or transactions connected together
or constituting parts of a common scheme or plan.”
(Emphasis added.)
As this Court has explained, “Rule 8(a) permits the state to charge a defendant
with multiple offenses in a single indictment or information.” State v. Pereira,
973
A.2d 19, 25
(R.I. 2009). “Because proper joinder under Rule 8(a) is a matter of law,
we review de novo whether the state properly joined one or more charges in a single
indictment * * *.”
Id.
(quoting State v. Hernandez,
822 A.2d 915, 918
(R.I. 2003)).
Rule 8(a) “permits such joinder of offenses in the same indictment if the offenses
charged are of the same or similar character or are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan.”
State v. Ciresi,
45 A.3d 1201, 1216
(R.I. 2012) (brackets omitted) (quoting State v.
Trepanier,
600 A.2d 1311, 1315-16
(R.I. 1991)).
- 35 -
Here, the trial justice concluded that the three obstruction charges and the
underlying gun and homicide charges were part of a common plan or scheme
appropriate for joinder under Rule 8(a). We agree and adopt the trial justice’s cogent
observation that “there’s a connection or a nexus between the obstruction counts and
the alleged homicide charge * * *. Clearly, they are connected. They are intertwined
with the murder accusation.” Markedly, and contrary to defendant’s position, the
record demonstrates a common scheme or plan connecting all charges; specifically,
that on July 8, 2015, defendant was held at the ACI without bail, 11 and that in the
ensuing months—from July 29, 2015, to September 8, 2015—defendant embarked
on a course of conduct intended to influence the testimony of Suon, a person this
Court previously described as “a key witness in the state’s then-pending case against
defendant for the murder of Yusef A’Vant.” State v. Mosley,
173 A.3d 872
, 877 n.4
(R.I. 2017).
11
On July 8, 2015, the state filed a probation-violation report pursuant to Rule 32(f)
of the Superior Court Rules of Criminal Procedure, alleging that defendant violated
the terms and conditions of probation and “had been charged with the murder of one
Yusef A’Vant.” State v. Mosley,
173 A.3d 872, 875
(R.I. 2017). The state later filed
a second Rule 32(f) report, “alleging that defendant had been charged with
obstruction of the judicial system while making certain phone calls from the ACI
between September 6 and September 10, 2015 * * *.”
Id.
A justice of the Superior
Court declared defendant a probation violator on the basis of the
obstruction-of-justice charges.
Id. at 878
. The probation-violation proceeding forms
the basis of Mosley’s argument that the state was collaterally estopped from the
criminal prosecution, an allegation we address infra.
- 36 -
We also agree with the trial justice’s later conclusion that “even if the
obstruction counts had not been substantively charged in the indictment, the
statements that are the subject of these [obstruction counts], they, themselves, are
extraordinarily relevant * * *. They reflect an effort to keep a witness from testifying
adversely to the defendant in a murder charge.” Under similar circumstances, many
United States Circuit Courts of Appeals have embraced a similar construction of
rules that are essentially equivalents of Rule 8(a). See, e.g., United States v. Lingala,
91 F.4th 685, 693
(3d Cir. 2024) (“The witness tampering charges in Counts Three
and Four are clearly ‘connected with’ Counts One and Two in ‘a common scheme
or plan,’ namely, hiring a hitman to kill Alkanti.”); United States v. Stackpole,
811
F.2d 689, 694
(1st Cir. 1987) (“Were the counts severed, substantially the same
evidence would have been admitted in both resulting trials. In a trial on the arson
and related charges, the obstruction of justice acts would have been admissible to
show consciousness of guilt.”). We conclude that joinder was proper.
“[E]ven though offenses may be appropriately joined in a single indictment, a
defendant may move for severance of said counts for purposes of trial in the event
that he or she is able to show such prejudice as might constitute a denial of his or her
right to a fair trial, pursuant to Rule 14 of the Superior Court Rules of Criminal
Procedure.” Ciresi,
45 A.3d at 1216
(brackets omitted) (quoting State v. Goulet,
21
A.3d 302, 309
(R.I. 2011)). In relevant part, Rule 14 states, “[i]f it appears that a
- 37 -
defendant or the State is prejudiced by a joinder of offenses or of defendants in an
indictment, information, or complaint or by such joinder for trial together, the court
may order an election or separate trials of counts, grant a severance of defendants or
provide whatever other relief justice requires.” Super. R. Crim. P. 14. Questions
surrounding severance based on Rule 14 are “within the sound discretion of the trial
justice, and we will not disturb his or her decision on appeal absent the showing of
a clear abuse of discretion.” Ciresi,
45 A.3d at 1216
n.16 (quoting Goulet,
21 A.3d
at 309
).
“To prevail in demonstrating that a trial justice has abused his or her
discretion, a defendant must show that the trial justice’s denial of the motion to sever
prejudiced the defendant to such a degree that he or she was denied a fair trial.”
Ciresi,
45 A.3d at 1216-17
(brackets omitted) (quoting Pereira,
973 A.2d at 28
). “It
is not sufficient for the defendant to cite the potential for and the likelihood of
prejudice. His burden is to demonstrate substantial prejudice resulting from the
joinder.”
Id.
at 1217 (quoting State v. Day,
898 A.2d 698, 705
(R.I. 2006)).
“Substantial prejudice is determined by balancing efficiency and convenience in
judicial administration on the one hand and the defendant’s right to a fair trial
without prejudice on the other.”
Id.
(quoting State v. Rivera,
987 A.2d 887, 900
(R.I.
2010)). This Court has observed that substantial prejudice may occur in the
following circumstances:
- 38 -
“(1) The defendant may become embarrassed or
confounded in presenting separate defenses; (2) the jury
may use the evidence of one of the crimes charged to infer
a criminal disposition on the part of the defendant from
which it found his guilt of the other crime or crimes
charged; or (3) the jury may cumulate the evidence of the
various crimes charged and find guilt when, if considered
separately, it would not so find.”
Id.
(brackets omitted)
(quoting Rivera,
987 A.2d at 900
).
We have also recognized that substantial prejudice “may reside in a latent feeling of
hostility engendered by the charging of several crimes as distinct from only one.”
Id.
(quoting State v. Patriarca,
112 R.I. 14, 30
,
308 A.2d 300, 311
(1973)).
Critically, “[i]n general, the right to a fair trial is not prejudiced by the joinder
of charges in cases in which the outcome would have been the same if separate trials
had been held.” Ciresi,
45 A.3d at 1217
(quoting Pereira,
973 A.2d at 30
). In this
respect, we have observed that:
“‘When the evidence admitted in a trial on the joined
charges would be mutually admissible in separate trials, it
is not likely that the defendant can show that he actually
was prejudiced by the joinder.’ * * * Moreover,
in Pereira, this Court highlighted that even in cases in
which ‘the evidence may not be mutually admissible in
separate trials, we are not compelled to assume that the
defendant has been prejudiced.’ * * * Rather, severance
under Rule 14 is generally not necessitated ‘when the
evidence related to each one of the counts is
straightforward, simple, and distinct.’”
Id.
(quoting Pereira,
973 A.2d at 30, 31
).
Here, we are satisfied that the trial justice did not abuse his discretion when
he denied the motion to sever. Specifically, at the conclusion of the first trial, the
- 39 -
trial justice instructed the jury that with respect to its consideration of all seven
charges, “each alleged violation must be considered by you separately, and the State
must prove its case beyond a reasonable doubt as to each violation.”
It is evident that the jury heeded the trial justice’s instruction because it
returned guilty verdicts on counts 3 to 7 and hung on counts 1 and 2. Not only was
the evidence “straightforward, simple, and distinct,” but the split verdict accorded
with the presumption that “juries are able to respond impartially to the trial evidence
with the assistance given by instructions from the trial justice.” Ciresi,
45 A.3d at
1217, 1218
; see also Pereira,
973 A.2d at 28
(“The defendant must show that he did,
in fact, suffer real and substantial prejudice.”).
Having been convicted of the obstruction charges during the first trial, those
charges were effectively severed from defendant’s retrial, which resulted in his
conviction on the charges of second-degree murder and discharging a firearm during
the commission of a crime of violence. Moreover, during the second trial, the facts
underlying the obstruction-of-justice charges were admitted into evidence.12 See
Ciresi,
45 A.3d at 1217
(“When the evidence admitted in a trial on the joined charges
12
Prior to the first trial, defense counsel did object to the admissibility of the ACI
recordings, but the trial justice overruled this objection, which ruling we have
affirmed. Based on the record before us, it is unclear whether defense counsel
renewed the objection prior to and/or during the second trial. Since this Court has
not been presented with a waiver argument, we have no occasion to address it.
- 40 -
would be mutually admissible in separate trials, it is not likely that the defendant can
show that he actually was prejudiced by the joinder.”) (quoting Pereira,
973 A.2d at
30
). Thus, there is no link between defendant’s conviction on the
obstruction-of-justice charges and defendant’s conviction on the underlying
homicide and gun charges. We conclude that the trial justice did not abuse his
discretion when he denied the motion to sever.
G
Admissibility of the Google Wi-Fi Data
Mosley alleges that the trial justice abused his discretion and thus erred when
he: (1) denied a motion in limine to exclude or limit expert testimony, (2) denied a
motion to suppress the Google Wi-Fi data, and (3) denied a motion to preclude
admission of Google records into evidence under the business records exception to
the hearsay rule.13 In sum, the testimonial and documentary evidence traced
13
Although Mosley’s written arguments to this Court identify (in a heading) the trial
justice’s decision to allow the Google records into evidence under a hearsay
exception, defendant does not expand upon this argument in his brief. Accordingly,
this issue is waived. See Drew,
198 A.3d at 530
(“[S]imply stating an issue for
appellate review, without a meaningful discussion thereof or legal briefing of the
issues, does not assist the Court in focusing on the legal questions raised, and
therefore constitutes a waiver of that issue.”) (quoting Dunn’s Corners Fire District
v. Westerly Ambulance Corps,
184 A.3d 230, 235
(R.I. 2018)).
Notwithstanding the waiver issue, this issue is meritless. In his written
decision denying the motion to preclude the use of the Google records, the trial
justice observed that Chelsea Clays, a Google records custodian, identified the
geolocation data (preserved on a disc) and certified that the disc contained precise
- 41 -
defendant’s cellular telephone on the late evening of August 11, 2014, to the early
morning hours of August 12, 2014, traveling from Winslow’s residence in Cranston,
to the vicinity of the barbershop in East Providence, and back to Winslow’s
residence. The evidence also illustrated that in the minutes before the murder on
August 13, 2014, defendant’s cellular telephone traveled in the direction of East
Providence and remained within a twenty-seven-to fifty-three-yard radius of the
vicinity of the barbershop from 1:56 p.m. until 2:03 p.m. Thereafter, at 2:13 p.m.,
defendant’s cellular telephone was traced to a location within an approximate
thirty-yard radius of 15 Princeton Avenue in Providence, Mosley’s residence.
In his written decision denying the motions, the trial justice referenced three
methods by which a person’s cellular telephone may be tracked. First, Global
Positioning System (GPS) “is a proven Government methodology which relies on
satellites for positioning, navigation and timing. GPS receiver equipment is * * *
typically included in modern mobile devices (‘smart phones’). A cell phone
exchanges signals with satellites, and the transmitted information is used to identify
the user’s location.” Second, cellular-site location or so-called towers; “[m]ost
and accurate copies of the data retrieved from Google’s records. Clays testified that
the information was automatically electronically collected by Google and that
unique identifiers had been assigned to the data files. Clays also confirmed that
Google relies upon the data, which it collects in the conduct of its ordinary business.
See State v. Adams,
161 A.3d 1182, 1199
(R.I. 2017) (“It is our opinion that the trial
justice did not abuse his discretion in allowing the cell phone records to be admitted
into evidence * * *.”).
- 42 -
modern phones tap into the wireless network several times a minute whenever their
signal is on, whether or not the user knows it and regardless of whether he or she is
even using one of the phone’s features. Each time the phone connects to a cell site,
it generates time-stamped location information.” Third, Google Wi-Fi data, the
method used in this case, which, the trial justice explained, “relies on Wi-Fi signals
to determine the distance between the cell phone and a signal ‘access point,’ which
is a device such as a router in an office or in a home, which creates a wireless local
area network by projecting a Wi-Fi signal within a designated area.” Google collects
the Wi-Fi “scans,” which identify the access points a particular cellular telephone
“sees” at a certain time and at a designated location. In order for a cellular telephone
to interface with an access point, the cellular device must be nearby, typically no
more than fifty yards away.
Rule 702 of the Rhode Island Rules of Evidence provides that “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form
of fact or opinion.”
“[W]hen a party seeks to introduce novel or complex evidence, the trial justice
will exercise a gatekeeping function.” Morabit v. Hoag,
80 A.3d 1, 11
(R.I. 2013).
“In performing that gatekeeping role, the trial justice holds ‘a preliminary
- 43 -
evidentiary hearing outside the presence of the jury in order to determine whether
such evidence is reliable and whether the situation is one on which expert testimony
is appropriate.’”
Id.
(quoting DiPetrillo v. Dow Chemical Company,
729 A.2d 677,
685
(R.I. 1999)). “The trial justice’s primary function as gatekeeper is to make
certain ‘that the proposed expert testimony, presented as a scientifically valid theory,
is not mere junk science.’”
Id.
(quoting Owens v. Silvia,
838 A.2d 881, 891
(R.I.
2003)).
In DiPetrillo, we identified four nonexclusive factors to assist a trial justice in
determining the reliability and validity of expert testimony involving novel or
technically complex theories or procedures. See DiPetrillo,
729 A.2d at 689
; see also
Morabit,
80 A.3d at 12
. Those factors are:
“(1) whether the proffered knowledge has been or can be
tested; (2) whether the theory or technique has been the
subject of peer review and publication; (3) whether there
is a known or potential rate of error; and (4) whether the
theory or technique has gained general acceptance in the
scientific community.” Morabit,
80 A.3d at 12
(citing
DiPetrillo,
729 A.2d at 689
).
“Satisfaction of one or more of these factors may suffice to admit the proposed
evidence and the trial justice need not afford each factor equal weight.”
Id.
Importantly, this Court has recognized that “when the proffered knowledge is neither
novel nor highly technical, satisfaction of one or more of these factors is not a
necessary condition precedent to allowing the expert to testify.”
Id.
(quoting Owens,
- 44 -
838 A.2d at 892
). “If the expert’s evidence is not novel, then the foundation need
not be novel either.”
Id.
(quoting DiPetrillo,
729 A.2d at 688
).
The DiPetrillo factors were intended “to liberalize the admission of expert
testimony by providing a mechanism by which parties can admit new or novel
scientific theories into evidence that may have previously been deemed
inadmissible.” Morabit,
80 A.3d at 13
(quoting Owens,
838 A.2d at 892
). “If ‘the
evidence presented to support the expert’s proposed opinions is sufficient to allow a
reasonable juror to conclude that his methods are grounded in valid science, then
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the appropriate means of attacking the reliability of this
evidence.’”
Id.
(deletion omitted) (quoting Owens,
838 A.2d at 899-900
).
“Thereafter, the jury can decide how much weight—if any—to give an expert’s
opinions in light of the dearth of peer-reviewed studies and published protocols to
corroborate his or her specific theories.”
Id.
(deletions and brackets omitted)
(quoting Owens,
838 A.2d at 900
).
In denying defendant’s motions to preclude testimony concerning the Google
Wi-Fi data, the trial justice concluded that “expert testimony fixing the location of
cell phones is simply not novel intellection. Such evidence has been introduced by
qualified experts in Rhode Island and in numerous other forums.” In so doing, the
trial justice referenced, among other cases, State v. Adams,
161 A.3d 1182
(R.I.
- 45 -
2017), in which we observed that “expert testimony regarding cell phone towers was
not novel.” Adams,
161 A.3d at 1196
. Because the cellular phone tower technology
was not novel, this Court concluded that “no evidentiary hearing was necessary, the
state ‘needed only to show that [the proposed expert] arrived at his conclusion in
what appeared to be a scientifically sound and methodologically reliable manner.’”
Id.
(deletion and brackets omitted) (quoting Owens,
838 A.2d at 892
).
Here, we reach the same determination and conclude that the trial justice did
not abuse his discretion when he denied the motions to preclude testimonial evidence
concerning the Google Wi-Fi data. See Adams,
161 A.3d at 1194
(“It is well
established that decisions concerning the admissibility of evidence are ‘within the
sound discretion of the trial justice, and this Court will not interfere with the trial
justice’s decision unless a clear abuse of that discretion is apparent.’”).
As the trial justice noted, Det. Michael, the state’s proffered digital forensic
expert, “is a major crimes investigator assigned to the Providence Police
Department’s Digital Forensic Unit, which analyzes all of the digital evidence
submitted to the Providence Police Department.” Detective Michael has been
assigned to that unit for several years; has been trained in, studied, and utilized the
GPS, cellular-site, and Wi-Fi location methods; and has been trained by the Cellular
Analysis Survey Team, the same organization of which the expert in Adams was a
member. See Adams,
161 A.3d at 1194
. He has also participated in extended
- 46 -
seminars conducted by the Federal Bureau of Investigation and the Secret Service,
and at the time of trial was a task force officer in both federal agencies.
Detective Michael also testified that in the two years preceding the trial
justice’s decision, he received particularized Wi-Fi training, participated in monthly
webinars, and studied current scientific journals and peer-reviewed articles on the
topic. The trial justice also deemed it notable, as do we, that Det. Michael’s “opinion
as to the nature and accuracy of the three methodologies has been corroborated by
other professionals.”
In addition to Det. Michael’s impressive qualifications, the evidence
presented at trial demonstrates that the Google Wi-Fi technology is “scientifically
sound and methodologically reliable * * *.” Adams,
161 A.3d at 1196
(quoting
Owens,
838 A.2d at 892
). Detective Michael testified that compared to the GPS
method, “Wi-Fi, it narrows it down to about 150 feet, * * * [v]ery, very, very
accurate.” In this vein, Det. Michael’s opinion that Wi-Fi data is reliable is shared
by the expert in a reported Delaware trial court decision, which both parties reference
in support of their positions. Indeed, Google Wi-Fi location data has already been
admitted into evidence (and apparently its reliability was unchallenged) in Rhode
Island courts. See State v. Baribault,
247 A.3d 1237
, 1243 (R.I. 2021) (referencing
Google location history that revealed position of the defendant’s truck and cellular
phone).
- 47 -
The testimony also illustrated that the three methodologies work in tandem.
For instance, Det. Michael explained:
“If there is no signal within that 150 feet, the Wifi will
transmit to GPS. The GPS signal and/or a cellular tower
signal will then captivate. All three working in
conjunction with one another, and all three work kind of
in the back room. Where the signal is strongest, the signal
will show.”
In this respect, on the day of the murder, Mosley’s cellular telephone lost
connectivity to a Wi-Fi access point and switched to GPS and/or cellular tower
locations. The coordinates for the three methods were consistent, further evidencing
the reliability of the Wi-Fi technology. See DiPetrillo,
729 A.2d at 689
(noting that
additional considerations bearing on reliability include “the relationship of the
technique to methods that have been established as reliable”). On this record, we
reject defendant’s abuse-of-discretion argument.
H
Additional Allegations
Mosley raises and has preserved additional allegations, none of which merit
extended discussion. We address these issues seriatim.
First, Mosley contends that the trial justice erred by denying his motion to
dismiss the indictment on the basis of the collateral estoppel doctrine. Specifically,
Mosley argues that the state alleged the same conduct at the Rule 32(f)
probation-violation hearing. Although a justice of the Superior Court determined
- 48 -
that Mosley was a probation violator based on the conduct stemming from the
obstruction-of-justice charges, the hearing justice declined to address the possible
probation consequences arising from the murder charge, stating that “[t]here is no
need to address the second violation since the court has just ruled [defendant violated
the terms and conditions of probation].” Mosley,
173 A.3d at 878
n.5 (brackets
omitted). Mosley asserts that “the State essentially put [him] in double jeopardy on
the same charges in this case, and should be collaterally estopped from same.”
Recently, we rejected the identical argument and in so doing, explained that
“further application of the doctrine of collateral estoppel to bar relitigation of a
criminal charge, following a determination during a probation-revocation hearing
that is adverse to the state, inequitably overlooks and misconceives the inherent and
important differences between those proceedings and criminal trials.” Tavares, 312
A.3d at 470 (quoting State v. Gautier,
871 A.2d 347, 358
(R.I. 2005)). We added
that “practical public policy requires that new criminal matters, when charged in the
criminal justice system, must be permitted to be there decided, unhampered by any
parallel probation-revocation proceedings.”
Id.
at 471 (quoting Gautier,
871 A.2d at
359
). Accordingly, we reject defendant’s claim that collateral estoppel bars the state
from presenting the same charges upon which the hearing justice either based the
probation-revocation determination or declined to consider as a basis for the
probation-revocation determination.
- 49 -
Second, Mosley argues that the trial justice erred when he denied a motion to
recuse. On September 6, 2016, defendant’s then-court-appointed defense counsel
attended the arraignment of Watson and acted as stand-in counsel in place of
Watson’s attorney. As Mosley’s then-court-appointed defense counsel related
during a November 4, 2016 hearing:
“On the arraignment of the co-defendant, Mr. Watson, he
was represented by Attorney Judith Crowell. Attorney
Judith Crowell unfortunately sustained an injury and was
unavailable to execute the formal document saying that
she represented Mr. Watson in this case. I was asked to
sign her name to an entry of appearance. I never met Mr.
Watson. I did meet him that day; I said hello. I didn’t ask
him any questions about the case. And I signed Judith
Crowell’s name to the entry of appearance and entered a
not guilty for Mr. Watson. That was the extent of my
representation of Mr. Watson.
“I do not have a conflict of interest with respect to that
entry of appearance. I explained that to Mr. Mosley. I said
to Mr. Mosley that I have no intention of authorizing any
information, which I don’t have, against Mr. Mosley, but
I needed to have him understand that all I was, was a fill-in
one day to sign somebody’s name.”
Mosley sought to “reserve” his right to assert a conflict of interest with his
then-court-appointed defense counsel and the trial justice warned that “if I find that
your complaint, if you have one, is such that there is no foundation and is ephemeral,
and is in no way substantiated, you don’t get another lawyer; you represent yourself.”
On or about December 9, 2016, the trial justice permitted defendant’s
then-court-appointed defense counsel to withdraw, and on December 19, 2016,
- 50 -
substitute court-appointed defense counsel filed an entry of appearance. Nearly
three years later, on June 11, 2019, defendant filed a motion seeking recusal of the
trial justice, asserting that the trial justice’s decision and comment during the
November 4, 2016 hearing “struck Mr. Mosley as unfair.”
“When a party argues on appeal that a trial justice should have recused himself
or herself due to bias or prejudice, we must ‘scrutinize closely whatever is asserted
to have disclosed prejudice of a character and in such degree as to work a
disqualification.’” State v. Washington,
189 A.3d 43, 64
(R.I. 2018) (quoting State
v. McWilliams,
47 A.3d 251, 257
(R.I. 2012)). “[T]he party seeking recusal bears
the burden of establishing that the judicial officer possesses a personal bias or
prejudice by reason of a preconceived or settled opinion of a character calculated to
impair his or her impartiality seriously and to sway his or her judgment.”
Id.
(brackets omitted) (quoting State v. Howard,
23 A.3d 1133, 1136
(R.I. 2011)). “To
prevail on a recusal motion based on bias, a party must show that there are facts
present such that it would be reasonable for members of the public or a litigant or
counsel to question the trial justice’s impartiality.”
Id.
at 65 (quoting In re Jermaine
H.,
9 A.3d 1227, 1230
(R.I. 2010)).
Based on our careful review of the record, we are satisfied that Mosley has
not met his heavy burden in this case. In so doing, we observe that defendant’s
motion to recuse was filed nearly three years after the November 4, 2016 hearing
- 51 -
and months prior to the commencement of his first trial. The defendant’s allegation
of error is completely unsubstantiated by the record before us and is without merit.
Third, defendant avers that the trial justice erred when he allowed the hearsay
testimony of Cassandra Brooks. Brooks testified that in November 2014 she
contacted the East Providence Police Department—believing she was anonymous—
and reported that she overheard Mosley “bragging” about his involvement in
A’Vant’s murder at the barbershop. After defendant’s arrest in July 2015, Brooks
was interviewed by law enforcement. According to Brooks’s trial testimony, during
this interview, she “provided the same information, but the story in which it was told
or provided to me was changed.” Specifically, Brooks testified at the second trial,
“I changed the person in which the information was being told. So at first I said it
was Mr. Mosley, but then I said it was provided by his girlfriend.”
Thereafter, in preparation for her testimony at the first trial, Brooks advised
prosecutors that the content of what she initially told the East Providence Police
Department in November 2014 remained the same, but she attributed the information
to yet a third source. Specifically, Brooks testified at the second trial, “now I had to
reveal the true source of the information that I was giving, which was my boyfriend
at the time, he told me something in confidence, in which I repeated it, and I didn’t
want to get him in trouble, so I changed the story.” On appeal, defendant argues that
- 52 -
the trial justice abused his discretion in allowing Brooks’s testimony, which he
describes as hearsay.
“A trial justice’s evidentiary rulings are reviewed for an abuse of discretion.”
State v. Jaiman,
850 A.2d 984, 987
(R.I. 2004). Under Rule 801(d)(1)(A)14 of the
Rhode Island Rules of Evidence, “a prior statement of a witness who testifies at the
trial or hearing and is subject to cross-examination is not hearsay if the statement is
inconsistent with the declarant’s testimony.”
Id. at 987-88
. “For a prior statement to
be admitted into evidence under Rule 801(d)(1)(A), ‘there must be two statements
and each must be sufficiently inconsistent to render the prior statement admissible.’”
Id.
at 988 (quoting State v. Bettencourt,
723 A.2d 1101, 1111
(R.I. 1999)). “The
determination of whether a pretrial statement is inconsistent with the witness’s
in-court testimony is within the sound discretion of the trial justice.”
Id.
(deletion
14
Rule 801(d) of the Rhode Island Rules of Evidence provides:
“Statements Which Are Not Hearsay. A statement is not
hearsay if:
“(1) Prior Statement by Witness. The declarant testifies
at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A)
inconsistent with the declarant’s testimony, or (B)
consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive, or (C)
one of identification of a person made after the declarant
perceived the person being identified * * *.”
- 53 -
and brackets omitted) (quoting Bettencourt,
723 A.2d at 1111
). “[U]nlike the federal
rule, the inconsistent statement need not have been made while under oath subject
to penalty of perjury at a trial, hearing, deposition or other proceeding.”
Id.
(quoting
Advisory Committee’s Notes to Rule 801 at 1052). Thus, “the touchstone of Rule
801(d)(1)(A) is that the witness testify at trial and be available for
cross-examination.”
Id.
All agree that Brooks’s initial statement—that she called the East Providence
Police Department and told them that defendant was “bragging” about his
involvement in A’Vant’s murder—is not hearsay. In fact, during a colloquy with
the trial justice prior to the first trial, Mosley’s defense counsel acknowledged that
if Brooks “says it here, it’s not hearsay.” With this threshold statement resolved, our
attention turns to the remaining statements—Brooks’s subsequent admission to law
enforcement that she heard about Mosley’s involvement from Suon and then her
later statement to prosecutors that she heard about Mosley’s involvement from her
boyfriend. Contrary to defendant’s position, these subsequent statements were
admissible prior inconsistent statements, and “not hearsay,” pursuant to Rule
801(d)(1)(A).
As this Court has explained, the “justification for the [prior inconsistent
statement] rule is that ‘the usual dangers of hearsay are largely nonexistent where
the witness testifies at trial’ because the declarant’s availability for
- 54 -
cross-examination allows the adverse party to probe the veracity of the statement
* * * and ‘puts the trier-of-fact in as good a position to appraise the reliability of the
prior statement as it would be if the prior statement were made under oath.’” Jaiman,
850 A.2d at 988
(quoting California v. Green,
399 U.S. 149, 154-55
(1970) and
Advisory Committee’s Notes to Rule 801 at 1052).
Here, there is no question that Brooks provided varying iterations concerning
the source or basis of knowledge. During defense counsel’s extensive
cross-examination, Brooks repeatedly acknowledged the inconsistencies with her
various statements, and it was within the purview of the jury to assess Brooks’s
credibility, consistent with the trial justice’s instructions on a witness’s inconsistent
statements, as it deemed appropriate. The trial justice did not abuse his discretion
by allowing these statements into evidence.
I
Raise-or-Waive Rule
It is well known that “this Court staunchly adheres to the raise or waive rule.”
State v. Barros,
148 A.3d 168, 174
(R.I. 2016) (brackets omitted) (quoting State v.
Figuereo,
31 A.3d 1283, 1289
(R.I. 2011)). The raise-or-waive rule “should not ‘be
dismissed as a pettifogging technicality or a trap for the indolent; the rule is founded
upon important considerations of fairness, judicial economy, and practical
wisdom.’”
Id.
at 175 (quoting National Association of Social Workers v. Harwood,
- 55 -
69 F.3d 622, 627
(1st Cir. 1995)). “The rule has ‘the salutary effect of making the
trial on the merits the “main event,” so to speak, rather than a “tryout on the road,”
for what will later be the determinative’ appellate review.”
Id.
(deletion omitted)
(quoting Wainwright v. Sykes,
433 U.S. 72, 90
(1977)).
“As we have said on innumerable occasions, ‘a litigant cannot raise an
objection or advance a new theory on appeal if it was not raised before the trial
court.’” Barros,
148 A.3d at 172
(quoting State v. Bido,
941 A.2d 822, 829
(R.I.
2008)). “[T]o satisfy the strictures of our ‘raise-or-waive’ rule, an evidentiary
objection must be sufficiently focused so as to call the trial justice’s attention to the
basis for said objection.”
Id.
(deletion omitted) (quoting State v. Diefenderfer,
970
A.2d 12, 30
(R.I. 2009)). Further, this Court has recognized that “a specific ground
for an objection must be stated unless the reason for the objection is clear from the
context in which it was made.”
Id.
(citing R.I. R. Evid. 103(a)(1)). “[S]imply stating
an issue for appellate review, without a meaningful discussion thereof or legal
briefing of the issues, does not assist the Court in focusing on the legal questions
raised, and therefore constitutes a waiver of that issue.” Drew v. State,
198 A.3d 528,
530
(R.I. 2019) (mem.) (brackets omitted) (quoting Dunn’s Corners Fire District v.
Westerly Ambulance Corps,
184 A.3d 230, 235
(R.I. 2018)). Mosley infringes upon
these well-settled canons on multiple occasions.
- 56 -
First, Mosley complains that the trial justice erred in disallowing the
testimony of defense witnesses Sterling Stevens, Tommy Ngo, Brian Wieczorek,
and Melvin Brown. Second, defendant asserts that the trial justice erred in
overruling an objection that permitted his Google account to be admitted into
evidence. In both situations, defendant’s appellate argument is limited to a single
undeveloped paragraph, which provides no legal authority and instead merely
references the trial justice’s decision.
Recently, this Court examined a similar waiver issue and concluded that a
defendant’s “entire appellate argument [was] to refer this Court to the Superior Court
record.” Tavares, 312 A.3d at 465. Accordingly, we determined that the failure to
develop an appellate argument constituted a waiver of that issue on appeal. Id. at
465-66. Similarly, Mosley’s failure to develop either argument on appeal “does not
assist the Court in focusing on the legal questions raised, and therefore constitutes a
waiver of that issue.” Drew,
198 A.3d at 530
(quoting Dunn’s Corners Fire District,
184 A.3d at 235
); see also Terzian v. Lombardi,
180 A.3d 555, 557
(R.I. 2018) (“We
have consistently made it clear that, under our raise-or-waive rule, ‘even when a
party has properly preserved its alleged error of law in the lower court, a failure to
raise and develop it in its briefs constitutes a waiver of that issue on appeal and in
proceedings on remand.’”) (brackets omitted) (quoting McGarry v. Pielech,
108
A.3d 998, 1005
(R.I. 2015)). Accordingly, we deem both issues waived.
- 57 -
Third, Mosley argues that the trial justice erred when he permitted the state to
argue during closing arguments: “Unlike Yusef A’Vant, maybe [Suon] won’t get a
bullet in the heart if she doesn’t cooperate.” Fourth, Mosley insists that the trial
justice abused his discretion in declaring a mistrial following the first trial when the
jury was unable to return a unanimous verdict on counts 1 and 2. According to
defendant, the jury was not “genuinely deadlocked” and the trial justice failed to
“make a finding the jury was genuinely deadlocked, or consider available
alternatives in a balance between Mr. Mosley’s rights and the State’s interests.”
Fifth, defendant maintains that the trial justice erred when he denied defendant’s
“right” to be present at a sidebar during which jury instructions were discussed.
Having diligently inspected the record, we conclude that with respect to the
alleged errors set forth in the preceding paragraph, defendant failed to assert an
objection at trial. Indeed, before this Court, Mosley does not identify any reference
to an objection within the record. While Mosley suggests that the trial justice
committed various alleged errors, “to satisfy the strictures of our
‘raise-or-waive’ rule, an evidentiary objection must be sufficiently focused so as to
call the trial justice’s attention to the basis for said objection.” Barros,
148 A.3d at
172
(deletion omitted) (quoting Diefenderfer,
970 A.2d at 30
). The defendant fails
to do so; therefore, consistent with this Court’s well-recognized raise-or-waive rule,
each allegation is waived.
- 58 -
Sixth, we conclude that defendant’s allegation that the state violated Rule 16
when it failed to disclose that Drepaul left the recording device in the bushes for later
retrieval by law enforcement officers was not preserved and is otherwise meritless.
During direct examination, Drepaul testified concerning the chain of custody of the
recording device:
“Q: And as it relates to that recording device that you
talked about, what happened with that?
“A: I handed it over to them.
“Q: And they took it from you?
“A: Yeah.
“Q: Now, you testified earlier --
“A: No, I did not hand it to them. I threw it in the
bushes. That’s what happened.
“Q: You did what?
“A: I took it off and put it to the side. When I went back
in the house.”
Shortly thereafter, testimony ended for the day, without defense counsel raising a
Rule 16 objection. The following day, after testimony resumed, defense counsel
requested a sidebar concerning Drepaul’s revelation, but again, the objection never
raised the specter of a Rule 16 violation:
“[DEFENSE COUNSEL]: * * * I just wanted to make sure
the objection -- Mr. Drepaul has disclosed he threw this
recording device into bushes. That’s the first time I ever
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heard this. It may be somewhere in the record. It hasn’t
been called to my attention. But the point is, I don’t know
who received the recording device, if this is the recording
device, and I object to it being played.
“[PROSECUTOR]: I heard him say that yesterday for the
first I heard of it, too. I think he’s mistaken. It’s right on
the tape in the last page, with the detective saying, I’m
recovering the device.
“THE COURT: Well, the tape is what the tape is.
Nevertheless, the witness has identified the [recording].
He’s identified it as having been an accurate recording of
what transpired when he spoke with your client.
The objection is overruled.”
This Court has observed that “[t]he raise-or-waive rule imposes upon litigants
a duty to raise all their claims for relief in the trial court and properly articulate them
to a judge for a ruling.” State v. Cahill,
196 A.3d 744, 753
(R.I. 2018) (quoting State
v. Yon,
161 A.3d 1118, 1128
(R.I. 2017)). “In the context of Rule 16 violations, we
have held that a party must ‘adequately express its Rule 16-based objection in a
manner sufficient to afford the trial justice an opportunity to elicit further
information and properly pass on the issue.’” Id. at 753-54 (brackets omitted)
(quoting State v. Stierhoff,
879 A.2d 425, 435
(R.I. 2005)).
Here, based on our inspection of the record, it is apparent that defense counsel
never raised a Rule 16 objection, and the trial justice never addressed an alleged
Rule 16 violation. Instead, the trial justice based his decision to overrule the
- 60 -
objection on foundation and authenticity grounds. Accordingly, the defendant’s
appellate argument is waived.15
Conclusion
For these reasons, the judgment of conviction is affirmed. The papers in this
case are remanded to the Superior Court. The Superior Court is directed to enter a
corrected judgment of conviction forthwith.
15
In any event, later on direct examination, the state clarified Drepaul’s prior
testimony:
“Q: And if you will turn, Mr. Drepaul, to the last page
[of the transcript of the recorded conversation], Page 64,
is that where you turned the -- or the detective takes the
device?
“A: Yes.
“Q: I think you mentioned yesterday, something about
putting it in a bush, but he did take it from you?
“A: I took it off -- I gave it to him -- I grabbed it and
gave it to him afterward.”
In light of this testimony and clarification, it appears that the defendant’s allegation
of a Rule 16 violation is of no moment.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Thomas Mosley.
No. 2022-13-C.A.
Case Number
(P1/16-2491AG)
Date Opinion Filed August 28, 2024
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Robert D. Krause
For State:
Virginia M. McGinn
Attorney(s) on Appeal Department of Attorney General
For Defendant:
Jodi M. Gladstone, Esq.
SU-CMS-02A (revised November 2022)Case Information
- Court
- R.I.
- Decision Date
- August 28, 2024
- Status
- Precedential