State v. Christian Rosado , 139 A.3d 419 ( 2016 )

Supreme Court
No. 2015-92-C.A.
(P2/13-3694AG)
State :
v. :
Christian Rosado. :
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. 2015-92-C.A.
(P2/13-3694AG)
State :
v. :
Christian Rosado. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Christian Rosado, appeals from a
judgment of conviction on two separate counts of assault with a dangerous weapon, to wit, a
firearm. The defendant maintains that the hearing justice erred in denying his motion for a
mistrial based on what he perceived to have been the state’s discovery violation. 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 considering the
parties’ written and oral submissions and reviewing the record, we conclude that cause has not
been shown and that this case may be decided without further briefing or argument. For the
reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Procedural History
This case involves a shooting that occurred in the City of Woonsocket, which left Ikey
Wilson with severe injury to his stomach and required the amputation of his right leg. Three
witnesses—Wilson, Jalisa Collins, and Travis Reeves—identified defendant as one of the three
perpetrators of the March 30, 2013, shooting. On December 11, 2013, a criminal information
was filed, charging defendant with assaulting Wilson with a dangerous weapon, to wit, a firearm,
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in violation of G.L. 1956 § 11-5-2 1 (count 1), assaulting Collins with a dangerous weapon, to
wit, a firearm, in violation of § 11-5-2 (count 2), and using a firearm while in the commission of
a crime of violence, resulting in injury to Wilson, in violation of G.L. 1956 § 11-47-3.2(a) (count
3). 2
On September 15, 2014, the case proceeded to trial. At trial, Wilson was the first witness
to testify for the state. He testified that, on the evening of March 30, 2013, Reeves, whom he
considered a friend, entered Wilson’s residence wanting Wilson “to go to the liquor store[]
because [Reeves] didn’t have [an] ID.” Wilson testified that at that time he resided on Arnold
Street in Woonsocket with his fiancée, Collins, and two of his children. Wilson testified that
although Collins “was actually going to go to the liquor store,” he decided that he did not want
her “going out at that time of night by herself,” because he “[had] got[ten] into a couple of
incidents with [defendant].” He testified that he had known defendant for “probably a little
longer” than six to seven months at that time. Wilson further testified that they had had a
friendly relationship, but that he had a falling out with defendant about “a month or two” prior to
March 30, 2013, when defendant, along with about five other individuals, approached Wilson as
he was walking his son to school. Wilson confirmed that he had also had other confrontations
with defendant prior to that day.
Returning to the events of March 30, Wilson testified that he walked to the liquor store
with Collins and Reeves and that Collins entered the store to purchase alcohol while he and
Reeves waited outside. Wilson said that, on their walk back to his apartment, he saw defendant
1
General Laws 1956 § 11-5-2(a) provides, in relevant part, that “[e]very person who shall make
an assault * * * with a dangerous weapon * * * shall be punished by imprisonment for not more
than twenty (20) years.”
2
General Laws 1956 § 11-47-3.2(a) prohibits any person from “us[ing] a firearm while
committing or attempting to commit a crime of violence.”
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and approached him in an attempt to end their ongoing dispute. According to Wilson, defendant
then “took off” while holding a phone to his ear. Wilson testified that the three then continued to
walk home, having to cross a bridge on their way. Once they were at the bridge, he saw
defendant “pull [a gun], cock it, and * * * fire[] [it].” Wilson further testified that he saw a total
of three individuals that night involved in the shooting—one who stood next to defendant and
another who stood nearby. Wilson identified the two individuals accompanying defendant as
Smoke and City. 3 Wilson also testified that, although he had not personally known Smoke and
City, he had seen them with defendant during the previous “incident when [he] was walking [his]
son from school.” Wilson testified that he recognized Smoke and City because defendant was
“always with them.”
Wilson further testified that, on the night of the shooting, before hearing the gun cock and
attempting to flee in response, he was asked by City, “did you rob my boy[?]”—and Wilson
responded that he had not. Wilson testified that at that time both City and defendant had a gun in
their hands. Wilson testified that he “ran straight * * * to go toward [his] house over th[e] bridge
* * * and then * * * when [he] turned around” the gun fired. Although he could not be certain,
Wilson believed he had made it to the end of the bridge before being shot. He testified that he
then observed defendant, Smoke, and City “just run off” and that he remembered “[waking] up
in the hospital.” Wilson described his injuries, which included the loss of his right leg and injury
to his stomach, and he testified that he spent roughly four months in the hospital and two months
in rehabilitation.
On cross-examination, Wilson conceded that, in his initial interview on May 30, 2013
with Lieutenant Mark Cabral of the Woonsocket Police Department, he had not disclosed the
3
These were their nicknames. Although Smoke was later identified as Joshua Rojas, it does not
appear that City has ever been identified.
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prior school incident, but believed that he likely did not remember the incident at that time
because he had just recovered from a coma. On redirect, Wilson clarified that he had, however,
disclosed the prior school incident in an April 2014 meeting with Lt. Cabral and the prosecutor
in this case. Wilson maintained that, in the April 2014 meeting, he had also disclosed that,
during this previous incident, defendant had been accompanied by five or six individuals. 4
On the following morning of trial, defendant moved for a mistrial “based upon * * *
Wilson’s answers to certain questions” on the previous day. The defendant explained to the trial
justice that he had been notified by the state shortly before the trial began that “Wilson would
testify that when [defendant] confronted [Wilson] at the school where [Wilson’s] son was, that
[defendant] had five to six people with him as part of a group to confront * * * Wilson * * *.”
However, defendant pointed out that at trial Wilson went a step further and testified that he could
identify Smoke and City as the two involved in the shooting with defendant because they had
been together at the previous school incident. The defendant maintained that he had not been
informed by the state as to any testimony regarding Smoke and City’s presence at the previous
incident. The defendant argued to the trial justice that this evidence was prejudicial because “it
indicate[d] [he] had contact with [Smoke and City], and that they had some hard feelings as well
toward * * * Wilson.” The defendant argued that, had this information been disclosed to him
prior to trial, “there would have been more efforts to locate and try to talk to Smoke, or to find
the identity of City, or to follow through with this information to try to either rebut it or uncover
further details for [the defense] to use on cross-examination.” He claimed that the information
should have been disclosed prior to trial, but he acknowledged that because the state was also
4
The state represented to the trial justice that it was not informed that the prior incident involved
five to six other individuals until the morning of the trial and, notably, defendant does not dispute
this representation.
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unaware of Wilson’s account, the disclosure was not possible. The defendant argued to the trial
justice that a cautionary instruction would not suffice and that the trial justice should grant his
motion for a mistrial.
In response, the state requested that the trial justice deny defendant’s motion. The state
highlighted that it also had not had the information that Wilson had allegedly disclosed to the
police prior to Wilson’s actual trial testimony. The state pointed out that Wilson was at times
combative on the stand and that he was “certainly * * * impeached on many, many, many
inconsistencies,” but that these things went to his credibility and did not warrant a mistrial. The
state also argued that, “if there was going to be an investigation into City and Smoke, * * * it
would have been as to their roles into the shooting itself” and that it did not “quite understand
why * * * defendant’s efforts to investigate the roles of City and Smoke would be redoubled just
by the fact that they may have been present at a confrontation * * * several months[] prior to the
night of the shooting.”
After hearing argument from both sides, the trial justice denied defendant’s motion for a
mistrial and, in so doing, found that he “[did not] see anything unduly prejudicial * * * relative to
the comment that * * * Wilson made about an incident at the school some five months prior to
the incident * * * when he got shot.” The trial justice noted that Wilson’s first transcribed
interview, conducted on May 30, 2013, and almost 150 pages long, “[was] replete with
references to * * * Smoke and City.” The trial justice, therefore, found that the defense certainly
knew about Smoke and City and that the new testimony had no “prejudicial effect on the case or
the defense whatsoever.”
Following the trial justice’s denial of the motion for a mistrial, the trial continued and
both Collins and Reeves testified about details that they recalled from the March 2013 shooting.
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Additionally, two officers of the Woonsocket Police Department, Jason Berthellette and Irwin
Harris, testified about their involvement in the case—from their observations upon arriving at the
crime scene to their involvement in the investigation. Following the close of the state’s case, the
defense called Lt. Cabral to testify. Lieutenant Cabral was the “case agent” responsible for
overseeing this case. He testified that on no occasion had Wilson disclosed to him that defendant
had other individuals with him during the prior school incident, nor did Wilson disclose the
identities of any of the other individuals involved.
At the conclusion of the trial, on September 22, 2014, the jury returned a guilty verdict as
to counts 1 and 2, and acquitted defendant as to count 3. On November 24, 2014, defendant was
sentenced to a total of twenty years to serve; fifteen years on count 1 and five years to serve on
count 2, consecutively, with fifteen years suspended on count 2. A final judgment of conviction
was entered, and defendant filed a notice of appeal. 5
II
Standard of Review
It is well settled that “a trial justice’s decision on a motion to pass the case is addressed to
the sound discretion of the trial justice, and this Court will not disturb the ruling on such a
motion absent an abuse of discretion.” 6 State v. Tully, 110 A.3d 1181, 1190-91 (R.I. 2015)
(quoting State v. Cipriano, 21 A.3d 408, 428 (R.I. 2011)). “We give great deference to the trial
justice in this regard because he or she ‘has a front-row seat at the trial and is in the best position
5
The defendant filed a notice of appeal on November 26, 2014, before final judgment entered on
December 1, 2014. However, we treat the notice of appeal as timely. See Soares v. Langlois,
934 A.2d 806, 808 n.1 (R.I. 2007).
6
“In Rhode Island, the terms ‘motion to pass the case’ and ‘motion for a mistrial’ are
synonymous.” Roma v. Moreira, 126 A.3d 447, 449 n.3 (R.I. 2015) (quoting State v. Robat, 49
A.3d 58, 83 n.28 (R.I. 2012)).
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to determine whether a defendant has been unfairly prejudiced.’” Id. at 1191 (quoting State v.
Oliveira, 882 A.2d 1097, 1127 (R.I. 2005)).
III
Discussion
On appeal, defendant argues that the trial justice’s failure to grant a mistrial in light of a
discovery violation infringed his rights to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and article 1, section 10 of the Rhode Island
Constitution. The defendant further maintains that he was “totally unaware that evidence of the
prior altercation between [Wilson] and * * * defendant existed prior to trial.” He argues that he
was denied the opportunity “to investigate the prior incident and determine what, if anything,
actually occurred.” The defendant concedes that the state’s failure to disclose was not
intentional; however, he maintains that “there was a disclosure of highly relevant evidence mid-
trial and the [c]ourt should have granted * * * defendant a mistrial and allowed him to * * *
investigate that matter.”
“When ruling on a motion to pass, the trial justice must assess the prejudicial impact of
the statement in question on the jury and ‘determine whether the evidence was of such a nature
as to cause the jurors to become so inflamed that their attention was distracted from the issues
submitted to them.’” Cipriano, 21 A.3d at 428 (quoting State v. Brown, 619 A.2d 828, 831 (R.I.
1993)). “The trial justice makes this determination by examining the witness’s statement or
remark in its factual context.” State v. Werner, 830 A.2d 1107, 1113 (R.I. 2003). “Moreover,
‘[w]e previously have held that even prejudicial remarks do not necessarily require the granting
of a motion to pass.’” Roma v. Moreira, 126 A.3d 447, 449 (R.I. 2015) (quoting State v. Alston,
47 A.3d 234, 250-51 (R.I. 2012)). “Generally, the declaration of a mistrial is inappropriate if a
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less drastic sanction, such as a continuance, would effectively serve the same purpose.” State v.
Chalk, 816 A.2d 413, 420 (R.I. 2002).
Rule 16(h) of the Superior Court Rules of Criminal Procedure directs that:
“If, subsequent to compliance with a request for discovery or with
an order issued pursuant to this rule, and prior to or during trial, a
party discovers additional material previously requested which is
subject to discovery or inspection under this rule, he or she shall
promptly notify the other party of the existence thereof.”
It is well settled that “Rule 16 requires that discovery be made in a timely manner * * * in order
that defense counsel may marshal the information contained in the discovery material in an
orderly manner.” State v. Huffman, 68 A.3d 558, 568-69 (R.I. 2013) (quoting State v. Simpson,
595 A.2d 803, 807 (R.I. 1991)). “A trial justice considering an alleged discovery violation
pursuant to Rule 16 * * * should examine four factors: (1) the reason for the nondisclosure; (2)
the prejudice to the other party; (3) whether or not a continuance can rectify any such prejudice;
and (4) any other relevant factors.” State v. Marte, 92 A.3d 148, 151 (R.I. 2014) (quoting State v.
Grant, 946 A.2d 818, 828 (R.I. 2008)).
At the outset, it is important to note that, although defendant argues to this Court that a
Rule 16 violation occurred because he was “totally unaware that evidence of the prior altercation
between [Wilson] and * * * defendant existed prior to trial,” the argument that he made before
the trial justice differed in a significant way from the argument he makes before us. Before the
trial justice, defense counsel argued that a mistrial was appropriate because the defense learned
for the first time shortly before Wilson took the stand that “when [defendant] confronted him at
the school where [his] son was, that [defendant] had five to six people with him as part of a
group to confront * * * Wilson * * *.” (Emphasis added.) In his motion for a mistrial, defendant
also relied on Wilson’s on-the-stand revelation that two of the six people accompanying
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defendant during this prior incident were Smoke and City. Because defendant did not raise any
challenge to the admission of testimony regarding the existence of a prior altercation altogether,
but instead relied on the more specific information regarding who was present during the
altercation, nor did he raise the constitutional arguments he now presents to this Court, we limit
our review to the issues that were properly raised before the trial justice. 7 See State v. Ford, 56
A.3d 463, 470 (R.I. 2012) (“[a]s this Court has made clear, the ‘raise-or-waive’ rule precludes a
litigant from arguing an issue on appeal that has not been articulated at trial”) (quoting State v.
Brown, 9 A.3d 1240, 1245 (R.I. 2010)).
Accordingly, the issue before this Court is whether the trial justice was clearly erroneous
in finding that the testimony disclosed by the state to defendant just moments prior to the
commencement of trial, i.e., that Wilson would testify that five to six individuals were present
during the prior school incident, and the information that was disclosed for the first time during
Wilson’s direct examination, i.e., that Smoke and City were among those present, were not
prejudicial and did not warrant a mistrial.
After reviewing the trial record and transcripts, it is our opinion that the trial justice did
not abuse his discretion in denying defendant’s motion for a mistrial. Importantly, it is
undisputed that any nondisclosure was unintentional. Additionally, the trial justice was in the
best position to determine if the nondisclosure caused any prejudice to defendant, and we see no
reason to disturb his finding that here defendant was not prejudiced. See Tully, 110 A.3d at 1191.
7
The defense counsel’s acknowledgment in his motion for a mistrial that the new evidence
admitted at trial was not known to the state prior to Wilson’s testimony, and the state’s
representation that it learned about the previous school incident in an April 2014 meeting at
Wilson’s home—roughly six months before Wilson testified—indicates that the new evidence
defense counsel was referring to in his motion for a mistrial was Wilson’s testimony that
additional individuals were present at the prior school incident, and his identification of Smoke
and City as part of that group.
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References to Smoke and City were replete throughout Wilson’s initial statement to the police as
accomplices to the shooting for which defendant alone was charged. Despite this, defendant did
not attempt to contact Smoke or City, but argued that somehow evidence of their presence in a
previous altercation that occurred months prior to the actual shooting would have created the
need to contact these individuals. This argument is unavailing. If defendant wanted to
investigate Smoke or City’s involvement further, he could have asked the trial justice for a
continuance, but instead he insisted that a mistrial was the only proper remedy without
articulating why a continuance would have been insufficient. See Chalk, 816 A.2d at 420(affirming denial of a motion for a mistrial where “[t]he defendant ha[d] not articulated any
reason why measures less severe than a mistrial would have been insufficient”).
Moreover, defense counsel questioned Wilson extensively regarding the inconsistencies
between his statements to the police and his trial testimony. On one occasion during cross-
examination, after attempting to highlight that Wilson had never previously disclosed the
presence of other individuals at the school incident, defense counsel directly asked Wilson if he
had fabricated the detail of the presence of other individuals to “make the case stronger,” and
Wilson denied doing so. The inconsistencies between Wilson’s trial testimony and his previous
statements to the police went to his credibility and were also highlighted both in cross-
examination and during the defendant’s closing statement. 8 It is our opinion that the trial justice
8
In its closing statement, the defense highlighted the inconsistencies in the statements by the
state’s witnesses, including the fact that Lt. Cabral corroborated that Wilson had not disclosed to
him that a group of people were present at the prior school incident. The defense also
characterized Wilson’s identification of Smoke and City as two of the individuals in the group as
an “embellishment.” During closing arguments, the state’s only reference to the prior incident
was as follows:
“[Wilson] told you, I put in my quotes on my pad that they had
a strong falling out, and that had happened some months earlier.
He went on to describe to you there was a confrontation when
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was in the best position to weigh the harm caused by Wilson’s new revelations, and we find no
clear error in his finding that Wilson’s testimony was not prejudicial and did not warrant a
mistrial.
IV
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court. The record
shall be returned to the Superior Court.
[Wilson] was walking his son home from school. And Jalisa even
told you, she said, Yeah, [defendant] went to my son’s school. She
told you that. Now, who was with him, and what actually
happened? You know, we don’t know the details of that, but we
know, we know there was bad blood between * * * defendant * * *
and * * * Wilson.”
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RHODE ISLAND SUPREME COURT CLERK’S
OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Christian Rosado.
CASE NO: No. 2015-92-C.A.
(P2/13-3694AG)
COURT: Supreme Court
DATE OPINION FILED: June 16, 2016
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Robert D. Krause
ATTORNEYS ON APPEAL:
For State: Jane M. McSoley
Department of Attorney General
For Defendant: Matthew S. Dawson, Esq.