State v. Mohamed Nabe , 92 A.3d 205 ( 2014 )

Supreme Court
No. 2013-4-C.A.
(P2/11-2297AG)
State :
v. :
Mohamed Nabe. :
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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2013-4-C.A.
(P2/11-2297AG)
State :
v. :
Mohamed Nabe. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The defendant, Mohamed Nabe, appeals from a
judgment of conviction on one count of carrying a firearm in a motor vehicle without a license.
This case came before the Supreme Court pursuant to an order directing the parties to appear and
show cause why the issues raised in this appeal should not be summarily decided. After a close
review of the record and careful consideration of the parties’ arguments (both written and oral),
we are satisfied that cause has not been shown and that this appeal may be decided at this time.
For the reasons set forth in this opinion, we affirm the Superior Court’s judgment of conviction.
I
Facts and Travel
On May 2, 2011, a drive-by shooting occurred near the intersection of Camp Street and
Doyle Avenue in Providence. Subsequently, on August 5, 2011, the state filed a multi-count
criminal information charging defendant and a codefendant, Jean Sajous, in connection with that
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shooting.1 On May 18, 2012, the state filed a second criminal information against defendant
charging him with additional crimes relating to the May 2 shooting incident. Prior to trial, the
state dismissed several of the counts against defendant that had been charged in the two criminal
informations; and the trial justice consolidated for trial the remaining counts in the two cases
stemming from the two separate informations. A trial was held in June of 2012 with respect to
the following charges: carrying a handgun in a motor vehicle without a license in violation of
G.L. 1956 § 11-47-8(a); operating a motor vehicle in an attempt to elude the police in violation
of G.L. 1956 § 31-27-4; discharging a firearm from a motor vehicle with a substantial risk of
death or serious bodily injury in violation of § 11-47-51.1; conspiracy to discharge a firearm
from a motor vehicle in violation of G.L. 1956 § 11-1-6; using a firearm while committing a
crime of violence in violation of § 11-47-3.2(b); driving with a suspended license in violation of
G.L. 1956 § 31-11-18; and solicitation in violation of § 11-1-9. Prior to trial, the parties
stipulated that, on May 2, 2011, defendant did not have a duly issued license or permit to carry or
possess a pistol. We summarize below the salient aspects of what occurred at trial.
A
The Testimony of Officer David Lorince
Providence Police Officer David Lorince testified for the state. He stated that, on May 2,
2011, Officer Donald Castigliego and he had been driving in their patrol car on Camp Street
1
On February 6, 2012, Jean Sajous pled nolo contendere to the following offenses
stemming from the drive-by shooting: carrying a handgun in a motor vehicle without a license in
violation of G.L. 1956 § 11-47-8(a); assault in violation of G.L. 1956 § 11-5-2; conspiracy to
discharge a firearm from a motor vehicle in violation of G.L. 1956 § 11-1-6; discharging a
firearm from a motor vehicle with a substantial risk of death or serious bodily injury in violation
of § 11-47-51.1. On each of those counts, he was sentenced to six years imprisonment, which
sentences were to run concurrently. Mr. Sajous also pled nolo contendere to one count of using a
firearm while committing a crime of violence in violation of § 11-47-3.2(b); with respect to that
count, Mr. Sajous received a ten-year suspended sentence, with probation. A judgment to that
effect was entered on February 22, 2012.
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headed towards Doyle Avenue when he observed a dark-colored Nissan Maxima turn onto Doyle
Avenue. Officer Lorince testified that, approximately ten to fifteen seconds later, he “observed a
single gunshot out of the passenger side of [the] Maxima.” According to Officer Lorince, the
occupants of the Maxima then fled the scene; he added that Officer Castigliego activated the
patrol car’s lights and sirens and that the two officers “gave chase to the vehicle.”
Officer Lorince testified that the Maxima drove through the intersection of Doyle Avenue
and North Main Street and continued onto Randall Street, at which point it “skidded and hit [a]
utility pole.” He stated that, as their patrol car was pulling up alongside the passenger’s side of
the Maxima, two individuals exited the vehicle. At trial, Officer Lorince identified defendant as
the individual who exited from the driver’s side, and he stated that he later learned that the
individual who exited from the passenger’s side was Mr. Sajous. It was Officer Lorince’s
testimony that, as Mr. Sajous exited the Maxima, he “was holding his waist like he was holding
something or his pants were going to fall off when he ran.”2 Officer Lorince testified that he
then pursued both individuals on foot and that, assisted by additional officers who had responded
to the scene, he apprehended them in the parking lot of a nearby Marriott Hotel. Officer Lorince
further testified that, after the two individuals were arrested, the police found a firearm in a trash
can which Officer Lorince had seen Mr. Sajous run past during the chase; he acknowledged,
however, that he had not seen defendant pass that same trash can while he was being chased.
2
The testimony of Providence Police Officer Donald Castigliego with respect to what
occurred on the evening of May 2, 2011 was largely consistent with that of Officer Lorince.
Notably, Officer Castigliego testified that, as Mr. Sajous was exiting the vehicle, “he was
clutching his waist as if he was concealing something;” Officer Castigliego added that, based on
his training and experience, he believed that the “something” could be a “firearm or a weapon.”
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B
The Testimony of Det. Paul Renzi
Detective Paul Renzi of the Providence Police Department’s Bureau of Criminal
Identification testified that, on May 2, 2011, he responded to a crime scene at the Marriott Hotel
in Providence. He stated that, when he arrived at the hotel, his “attention was directed to the rear
of the Marriott to a trash can which was being watched over by a patrolman * * * .” He testified
that in that trash can he observed a pistol which had been placed inside of a black sock, with the
barrel sticking out of the sock. Detective Renzi further testified that he fingerprinted the firearm,
the magazine, and a spent cartridge casing; he acknowledged, however, that, “[b]ecause of [the]
sock,” he was not able to recover any fingerprints. The exhibits at trial indicated that the serial
number of the gun recovered from the trash can matched that of a gun purchased by one Ronique
Perou (to whose testimony we turn next).
C
The Testimony of Ronique Perou
Ronique Perou testified that, having previously obtained a gun permit, she purchased her
first gun on April 12, 2011 at a store in Woonsocket called “Bullseye.”
Ms. Perou testified that she had met defendant and Mr. Sajous (whom she referred to as
“Beans”) approximately three years prior to trial. With respect to her relationship with the two
men, she further testified that she had seen defendant visiting the home of a friend of his which
was close to where she lived in Providence and that she and defendant had exchanged greetings
on several occasions. Ms. Perou stated that, in late April of 2011, defendant came to her home,
where he observed an empty box of bullets; she added that, when defendant asked her if she had
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a gun, she told him that she did. She testified that shortly thereafter, on May 2, 2011,3 defendant
again visited her home, where she showed him her gun upon his request; she added, however,
that, when he asked her if he could borrow her gun, she refused. It was Ms. Perou’s further
testimony that defendant then asked her if she could “get [him] one” because, as he informed her,
he would not be able to obtain a gun permit due to a previous arrest. She stated that she assented
to defendant’s suggestion that she use her permit to purchase a gun and have it “transfer[red] to
his name.”
Ms. Perou testified that, later that same day (May 2), she drove defendant to the
Woonsocket gun store called Bullseye. She further testified that they went into the store together
and that defendant gave her one hundred dollars. It was her testimony that she filled out the
paperwork relative to the gun purchase, listing herself as the actual buyer of the firearm. She
stated that she used the money given to her by defendant to place a deposit on the gun, which
could be picked up after a seven-day waiting period.4
According to Ms. Perou, she and defendant then returned to her home, where defendant
asked her if he could see her gun again.5 Ms. Perou testified that, when she showed defendant
3
The reader will recall that the shooting that is at the center of this case occurred on May
2, 2011.
4
Ronique Perou testified that, with respect to the trip to the gun store to purchase a second
firearm, she was charged by the state with one count of providing false information in securing a
firearm in violation of § 11-47-23; it was her testimony that she pled guilty to that charge after
entering into a cooperation agreement with the state. Pursuant to the cooperation agreement, Ms.
Perou agreed to testify truthfully with respect to the events of May 2, 2011 in exchange for the
state’s recommendation that she receive a suspended five-year sentence, with probation. In
addition, Ms. Perou acknowledged that, “as part of [her] agreement with the State, [she was]
promised that [she] would not be prosecuted by the Federal Government[.]”
5
The reader will recall that Ms. Perou had previously purchased a gun on April 12, 2011—
which gun is not to be confused with the gun on which she made a deposit on May 2, 2011. The
gun purchased in April of 2011 is the one that is at issue in this case.
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her gun, he asked her if he could take it to show to a friend of his. She stated that she told
defendant no, but that he then grabbed the gun from her hand and departed. Ms. Perou testified
that she followed defendant outside, where he told her that he was not going to do anything with
the gun other than show it to a friend; she added that he drove away from her home in a “[b]lack
Maxima” that was waiting outside. Ms. Perou testified that she then tried calling defendant by
phone but that she was not able to reach him until later that day, at which point he assured her
that nothing would happen with her gun. According to Ms. Perou, the next day she attempted
unsuccessfully to locate defendant’s friend “Beans” so that he could help her locate defendant.
Ms. Perou stated that, on May 4, 2011, she filed a report with the Providence Police
Department alleging that the gun had been stolen; she added that, because she did not want to get
“in trouble,” she told the police that someone had broken into her home and had stolen the gun.
On cross-examination, Ms. Perou acknowledged that, when agents from the federal Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) first questioned her on June 23, 2011, she
gave a recorded statement repeating in substance her statement to the Providence Police
Department. (That was the first of four recorded statements that Ms. Perou made to ATF that
day.) Ms. Perou further testified at trial that, after becoming somewhat “scared” when the ATF
agents told her that they thought she was lying to them and that, if she was lying, they would
charge her with a crime, she gave a second recorded statement; in that statement she told the
ATF agents that her gun could have been stolen by defendant, by “Beans,” or by a third man who
wore “braids”—in view of the fact that all three of them had been at her home for a party in
April. She stated that the ATF agents again told her that they thought she was lying and that, if
she was not telling the truth, she would be charged with a crime; and she acknowledged that the
ATF agents also told her that they believed defendant had taken the gun and that she was trying
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to protect him. Ms. Perou testified that, after listening to those statements by the ATF agents,
she gave a third recorded statement, in which she admitted that defendant had taken the gun from
her. She further testified that she also told the ATF agents about having gone with defendant to
purchase a gun for him.6 Ms. Perou also stated that several months later, on February 9, 2012,
she was again interviewed by the ATF agents, at which time she told them that defendant had not
taken her gun until approximately two to three days after she had gone to the gun store with
him—which contrasted with her trial testimony that defendant had taken her gun that same day,
May 2, 2011. At trial, Ms. Perou explained that she made the February 9, 2012 statement only
because the ATF agents told her that defendant could not have taken her gun on May 2.
D
The Testimony of Paul Connolly
Paul Connolly, the owner of Bullseye Shooting Supply in Woonsocket, testified that he
was familiar with Ms. Perou because she had purchased firearms from his store, whereas he
stated that he did not recognize defendant. At trial, he identified a form that Ms. Perou had filled
out on May 2, 2011 in connection with her purchase of a firearm (which would have been her
second firearm); and he further testified that she came into the store by herself on that date. It
was Mr. Connolly’s testimony that he had previously refused to sell firearms to customers whom
he suspected of attempting to make a “straw purchase,” and he stated that he would not have sold
the firearm to Ms. Perou if, when she was filling out the just-referenced form, “there was another
gentleman standing with her that then gave her $100 to pay for that firearm * * * .”
6
Although Ms. Perou testified that she gave a fourth recorded statement to the ATF agents
on June 23, 2011, she did not testify with specificity as to the contents thereof.
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Mr. Connolly acknowledged that, in October of 2011, ATF agents came to his store and
asked him questions about purchases made there; he stated that he “cooperated with them.” He
also stated that he “do[es] everything [he] can to assist law enforcement * * * .”
E
The Verdict, the Motion for a New Trial, and the Sentencing
After the parties had rested, the trial justice instructed the jury. On June 12, 2012, the jury
convicted defendant of carrying a firearm in a motor vehicle without a license and attempting to
elude a police officer, while it acquitted him of the remaining charges.7
The defendant then moved for a new trial with respect to both convictions pursuant to
Rule 33 of the Superior Court Rules of Criminal Procedure. The trial justice granted the motion
for a new trial on the charge of attempting to elude a police officer, but he denied defendant’s
motion with respect to the charge of carrying a firearm in a motor vehicle without a license.8 In
due course, the trial justice sentenced defendant to seven years imprisonment, with eighteen
months to serve and the remainder suspended, with probation. A timely appeal was filed.
On appeal, defendant contends that the trial justice should have granted his motion for a
new trial as to the charge of carrying a firearm in a motor vehicle without a license because, in
his view, there was no evidence that he was aware that his codefendant was in possession of a
gun until the gun was fired on Doyle Avenue.
7
After both parties had rested, the trial justice dismissed the charge of driving with a
suspended license, leaving six counts to go to the jury (see infra).
8
In ruling on defendant’s motion for a new trial, the trial justice ruled that, based on the
evidence presented at trial, a fair inference could be drawn that defendant had sole possession of
the firearm at issue in this case when he entered the vehicle on May 2, 2011. It follows from that
ruling that the trial justice concluded that the jury had an adequate evidentiary basis on which to
convict defendant of possession of a firearm in the motor vehicle—despite the fact that Mr.
Sajous had pled nolo contendere to discharging a firearm from a motor vehicle on the day in
question.
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II
Standard of Review
When a trial justice considers a motion for a new trial, he or she “acts as a thirteenth juror
and exercises independent judgment on the credibility of witnesses and on the weight of the
evidence.” State v. Silva, 84 A.3d 411, 416 (R.I. 2014) (internal quotation marks omitted); see
also State v. Mitchell, 80 A.3d 19, 30 (R.I. 2013); State v. Rosario, 35 A.3d 938, 947 (R.I. 2012).
In fulfilling his or her role as the thirteenth juror, “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 jury.” State v. Espinal, 943 A.2d 1052, 1058 (R.I. 2008)
(internal quotation marks omitted); see also State v. Baker, 79 A.3d 1267, 1273 (R.I. 2013); State
v. Paola, 59 A.3d 99, 104 (R.I. 2013). If, after conducting this three-step analytical process, “the
trial justice agrees with the jury’s verdict or determines that reasonable minds could differ, then
the analysis is complete and the verdict should be affirmed.” State v. Harrison, 66 A.3d 432, 445
(R.I. 2013) (internal quotation marks omitted); see also State v. Kizekai, 19 A.3d 583, 590 (R.I.
2011).
We have stated that the “record should reflect a few sentences of the justice’s reasoning
on each point * * * .” Silva, 84 A.3d at 417 (internal quotation marks omitted). However, we
have also indicated that “the trial justice need not refer to all the evidence supporting the decision
* * * .” Id. (internal quotation marks omitted). In ruling on a new trial motion, “[t]he trial
justice need only cite evidence sufficient to allow this [C]ourt to discern whether the justice has
applied the appropriate standards.” Id. (internal quotation marks omitted).
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When we review the trial justice’s denial of a motion for a new trial, “we do not focus on
whether this Court simply agrees or disagrees with [his or her] credibility determinations,” but
rather we are “deferential to those determinations.” State v. Clay, 79 A.3d 832, 842 (R.I. 2013)
(internal quotations marks omitted); see also State v. LaPierre, 57 A.3d 305, 311 (R.I. 2012).
Accordingly, “[i]f the trial justice has complied with [the requisite] procedure and articulated
adequate reasons for denying the motion, his or her decision will be given great weight and left
undisturbed unless the trial justice overlooked or misconceived material evidence or otherwise
was clearly wrong.” Paola, 59 A.3d at 104 (internal quotation marks omitted); see also Clay, 79
A.3d at 842.
III
Analysis
It is our judgment that the trial justice conducted the appropriate three-step analysis
before denying defendant’s motion for a new trial with respect to the charge of carrying a firearm
in a motor vehicle without a license. The record indicates that the trial justice first properly
considered the evidence in light of the jury charge. Moving next to the second step, the trial
justice proceeded to independently assess the credibility of the witnesses and the weight of the
evidence. With respect to the credibility of Ms. Perou, the trial justice stated as follows:
“I recognize that Miss Perou [gave] inconsistent statements, but
I’m satisfied that as she went through the testimony, she did
explain why they were inconsistent, and when she got to the
bottom line, it was clear to me, as a front-row observer, of
watching her and listening to her, that her inconsistent statements
were really borne [sic] of a concern for her own situation with
immigration or with the ATF. She didn’t want to get herself in
trouble. She obviously didn’t want to get [defendant] in trouble
either, at least not at first.”
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In contrast, the trial justice found Mr. Connolly to be an “overearnest witness looking too hard to
please law enforcement, particularly the ATF.” The trial justice further found that Ms. Perou’s
testimony “reflected * * * defendant’s clear desire to get his hands on a handgun,” and he stated
that he had “no difficulty in accepting her rendition that it was [defendant] who had [her] gun
and introduced that gun into the vehicle that night.” Based on the evidence presented at trial, it
was the opinion of the trial justice that a fair inference could be drawn that, when defendant
entered the vehicle, he had sole possession of the firearm at issue in this case; and, although he
noted that, “at one point, [Mr.] Sajous picked it up and used it,” he found that “the gun was
shared by both of them that night.” The trial justice then concluded, pursuant to the third step in
the analytical process, that he would have reached the same result as the jury, stating:
“I’m well satisfied that * * * defendant was properly convicted
beyond a reasonable doubt of unlawfully carrying a firearm in a
motor vehicle without a duly-issued license or permit * * * .”
Accordingly, the trial justice denied defendant’s motion for a new trial with respect to that
charge. See State v. Guerra, 12 A.3d 759, 765 (R.I. 2011) (stating that if, after conducting the
required three-step analysis, the trial justice agrees with the jury’s verdict, “then the inquiry is at
an end and the motion for a new trial should be denied”).
The defendant contends that, without the testimony of Ms. Perou, whose testimony he
asserts was lacking in credibility, “[t]here was absolutely no evidence of any statements or
conversations which indicated [that the defendant had actual possession of the gun or] that [he]
was aware that [Mr.] Sajous possessed a gun prior to [Mr.] Sajous’ discharge of the weapon.”
After a careful review of the record in this case, it is clear to us that the defendant’s contention
on appeal amounts to nothing more than a disagreement with the trial justice’s assessment of the
credibility of the witnesses and the weight of the evidence. See State v. Gonzalez, 56 A.3d 96,
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103 (R.I. 2012) (stating that “[t]he mere fact that [a] defendant disagrees with the trial justice’s
conclusions about credibility is not a sufficient basis to warrant the granting of a motion for new
trial”) (internal quotation marks omitted); see also Clay, 79 A.3d at 842; State v. Ferreira, 21
A.3d 355, 367 (R.I. 2011). The trial justice recognized that Ms. Perou had given inconsistent
statements to the police and the ATF; however, he was satisfied by her explanation as to why she
had done so, and he ultimately chose to accept her in-court testimony with respect to the events
of May 2, 2011. We have stated on more than one occasion that “the presence of some
inconsistencies between or among utterances of a witness or witnesses at different points in time
does not ipso facto render the testimony unworthy of belief.” State v. Jensen, 40 A.3d 771, 781
(R.I. 2012); see also Rosario, 35 A.3d at 948-49. We are unable to conclude that the trial justice
overlooked or misconceived material evidence or was clearly wrong in crediting Ms. Perou’s
testimony that the defendant had taken her handgun. See Paola, 59 A.3d at 106 (“[T]his Court
affords a great deal of respect to the factual determinations and credibility assessments made by
the judicial officer who has actually observed the human drama that is part and parcel of every
trial and who has had an opportunity to appraise witness demeanor and to take into account other
realities that cannot be grasped from a reading of a cold record.”) (internal quotation marks
omitted); see also State v. DiCarlo, 987 A.2d 867, 872 (R.I. 2010). We therefore perceive no
error in the trial justice’s denial of the defendant’s motion for a new trial with respect to the
charge of carrying a firearm in a motor vehicle without a license.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the Superior Court’s judgment of
conviction. The record in this case may be returned to that tribunal.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Mohamed Nabe.
CASE NO: No. 2013-4-C.A.
(P2/11-2297AG)
COURT: Supreme Court
DATE OPINION FILED: June 16, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice William P. Robinson III
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Robert D. Krause
ATTORNEYS ON APPEAL:
For State: Christopher R. Bush
Department of Attorney General
For Defendant: Janice M. Weisfeld
Office of the Public Defender