Justice FLAHERTY, for the Court.
The defendant, Donald Young, appeals to this Court from a judgment of conviction on seven counts; the murder of Kasean Benton in violation of G.L.1956 § 11-23-1 (count 1), conspiracy to commit murder in violation of G.L.1956 § 11-1-6 (count 2), discharging a firearm during the commission of a violent crime resulting in the death of another in violation of G.L. 1956 § 11-47-3.2 (count 3), assault with a dangerous weapon on Dukuly Torell Soko in violation of G.L.1956 § 11-5-2 (count 4), conspiring with others to assault Soko with intent to murder in violation of § 11-1-6 (count 5), discharging a firearm while committing a crime of violence in violation of § 11-47-3.2 (count 6), and possession of an unlicensed firearm in violation of § 11-47-8(a) (count 7). The trial justice sentenced the defendant to consecutive life sentences plus twenty non-parolable years to run consecutively to the life sentences.
On appeal, defendant advances two arguments why this Court should vacate the convictions. First, he argues that the trial justice erred when he admitted evidence of gang affiliation, evidence relating to the earlier stabbing of Soko, allegedly by defendant, and testimony about an unsolved homicide. Second, he contends that the trial justice should have dismissed the offense of discharging a firearm while in the commission of a crime of violence because it merged with the offense of assault with a dangerous weapon with intent to murder.
After a careful review of defendant's arguments and a thorough review of the record, we affirm the judgments of conviction.
During the waning daylight hours on July 12, 2009, defendant and two associates were walking on Trask Street in Providence. The group approached a white Buick that was parked next to the driveway in front of 30 Trask Street. Inside the vehicle, the owner and operator, Kasean Benton, a Providence resident, sat next to his friend, Dukuly Torell Soko. Soko was a former resident of Providence who was visiting from New York and staying with family members at 30 Trask Street. When defendant was approximately thirty feet away from the Buick, he raised his arms and fired several rounds from a black semiautomatic weapon into the vehicle's windshield; after which, witnesses testified to hearing, "Fu* * you, ni* *er," "motherf* *****," "bit* *," "ni* *er." Immediately, Benton and Soko fled the vehicle; Benton ran toward the backyard at 30 Trask Street while Soko ran towards Cahill Street. They did not, however, escape unscathed. In the aftermath of the shooting rampage, one man was wounded and another was dead.
Soko reached Cahill Street and laid low until he heard emergency sirens approaching the area. He then rushed back to 30 Trask Street, his grandfather's house, in an effort to locate Benton. Soko first encountered a Providence Police Officer, but he refused to answer any questions or
Soon after this exchange, police noticed that Soko had suffered an apparent gunshot wound. Soko was placed in a police cruiser, and then an ambulance, before being transported to Rhode Island Hospital. At the hospital, Soko named defendant as the shooter and then identified him from a six-person photographic lineup.
Shortly after the police arrived on the scene, responding officers found Benton's white sneaker, still tied and with blood on it, at the base of a stockade fence at the rear end of the driveway at 30 Trask Street. After the owner of the house opened the locked gate, police found Benton's body between the fence and a backyard swimming pool. The state's medical examiner testified that Benton had died due to a gunshot wound that entered the left side of his back, passed between his ninth and tenth ribs, struck his left lung and his heart, and then exited his body on the left side of his chest between his second and third ribs.
The state developed at trial that the shooting on July 12 was the final act of an ongoing feud between two groups of young men, YNIC
Soko also testified that Benton and defendant had become enemies because Benton was a member of YNIC and defendant was a member of Comstock. Because Benton and defendant were members of their respective and rival gangs, their formerly friendly relationship came to an end. Soko also testified that in 2007, another member of Comstock, Darren Regans, had been murdered in a Providence nightclub. Although he never was charged with any crime arising from that homicide, Benton had been questioned in connection with Regans's death.
The defendant stood for trial before a jury in April 2011 for seven criminal offenses.
The defendant predicates his appeal on two grounds. First, defendant asserts that the trial justice erred in allowing testimony about gang affiliation, physical altercations between defendant and Soko, and the unsolved murder of Darren Regans. Second, defendant argues that the trial justice erred when he denied his motion for judgment of acquittal, pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure, because defendant claimed he was twice placed in jeopardy in that counts 4 and 6 should have merged.
Before the trial began, defendant filed several motions in limine in an effort to exclude certain testimony under Rules 403 and 404(b) of the Rhode Island Rules of Evidence.
Next, defendant moved for an order restricting Soko from testifying about the stabbing he suffered at the 2007 party, and his subsequent physical altercation with defendant, because Soko could not swear that defendant stabbed him. Soko could only testify that, based on defendant's presence when the stabbing took place, he assumed defendant had stabbed him. The trial justice delayed ruling on that motion until trial, when the parties could make their respective arguments as to the relevance of the testimony. The trial justice also deferred ruling on a final motion in limine, which was defendant's motion to exclude any testimony about the unsolved homicide of Darren Regans.
We review a trial justice's admission of evidence for an abuse of discretion.
Before we consider the merits of defendant's appeal, we must first address whether the issues are properly before us. We consistently have held that we will review only those issues that have been properly preserved for appellate review. State v. Harris, 871 A.2d 341, 345 (R.I. 2005) (citing State v. Saluter, 715 A.2d 1250, 1258 (R.I.1998)); see also State v. Long, 488 A.2d 427, 432 (R.I.1985).
Rule 103(a)(1) of the Rhode Island Rules of Evidence provides that an erroneous evidentiary ruling "may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and * * * a timely objection * * * appears [on] record, stating the specific ground of objection, if the specific ground was not apparent from the context." We have said that, "[b]y failing to record specific objections, a party is deemed to have waived his or her rights on appeal." State v. Mastracchio, 612 A.2d 698, 704 (R.I.1992) (citing Long, 488 A.2d at 432). "A party who fails to assert his specific objections is deemed to have waived his rights on appeal." Long, 488 A.2d at 432 (citing Russell v. Kalian, 414 A.2d 462, 465 (R.I.1980)).
The defendant first argues that the trial justice erred in admitting evidence of gang affiliation. However, the record indicates that defendant failed to object to the introduction of this testimony. It is a basic rule of our appellate practice that it is inappropriate for us to consider an issue on appeal when no objection was interposed at trial. See State v. Bettencourt, 723 A.2d 1101, 1107 (R.I.1999) (citing State v. Toole, 640 A.2d 965, 973 (R.I.1994)). In addition and of equal significance, defendant appeared to have actively withdrawn the motion in limine because he intended to use gang affiliation testimony during cross-examination of the state's witnesses. At the conclusion of the State's case, the trial justice had the following colloquy with counsel for defendant:
Thus, defendant appears to have made a conscious decision to employ this line of questioning and he cannot now object to its admission on his appeal. The trial justice ruled that "some evidence" of gang affiliation could come in during jury selection. The above colloquy aside, to preserve this issue for appeal, defendant had the obligation to object during the trial to introduction of this testimony. It is clear to us that defendant has waived the issue on appeal because the absence of any objection and the use of the testimony about gang affiliation on defense precludes our consideration.
The defendant next argues that the trial justice erred when he allowed testimony about the murder of Darren Regans, a member of Comstock, in 2007. The defendant maintains that admitting testimony of Regans's stabbing death at a Providence nightclub may have led the jury to believe that Comstock murdered Benton because Benton had been questioned about the Regans killing. However, again we do not reach the merits of this argument because defendant did not preserve this issue for appeal. Indeed, at several points throughout the trial, defendant failed to object when the state questioned a witness about the murder of Darren Regans. As we have stated on occasions too numerous to cite, we will not consider issues on appeal that were not objected to at trial. Moreover, during the cross-examination of Soko, defendant himself asked questions relating to the murder of Darren Regans. At one point during the state's direct examination of Soko, defendant objected to a question relating to Darren Regans's affiliation with Comstock, but he failed to offer any basis for the objection. As we held in Mastracchio,
Finally, defendant argues that the trial justice erred when he allowed testimony about the stabbing of Soko and the subsequent physical altercation between Soko and defendant the following day. Young emphasizes that Soko admitted he did not know who stabbed him, only that defendant was present along with several other members of Comstock. Therefore, he argues that introduction of this testimony only served to demonstrate defendant's violent propensity. But, as with the previous two arguments, this issue also fails because it was not preserved for appeal. At no point did defendant object to questions by the state designed to elicit testimony from Soko relating to his prior confrontations with defendant. It is true that defendant did file a motion in limine on which the trial justice deferred ruling, but defendant failed to raise the issue again even when prompted by the trial justice at the conclusion of the state's presentation. As a result, we hold that this argument has also been waived. See State v. Burke, 529 A.2d 621, 627 (R.I.1987).
The defendant also contends that the trial justice erred in denying his Rule 29 motion for judgment of acquittal. At trial, defendant asserted a double-jeopardy claim, arguing that pursuant to Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), count 6, discharging a firearm in commission of a crime of violence in violation of § 11-47-3.2, merged with count 4, assault with intent to murder in violation of § 11-5-2. The trial justice conducted a Blockburger analysis and ultimately denied the motion, ruling that each offense required separate elements, notably that assault with a dangerous weapon does not require the use of a firearm. Although we agree with the trial justice's denial of the Rule 29 motion, we arrive at our conclusion after treading a different path.
An alleged violation of the Double Jeopardy Clause is, "`a mixed question of
The Fifth Amendment to the United States Constitution "protects criminal defendants from being `twice put in jeopardy' for the same offense." State v. Oliver, 68 A.3d 549, 557 (R.I.2013) (quoting State v. Bolarinho, 850 A.2d 907, 909 (R.I. 2004)). This Court has long established that "[b]ecause of the similar wording and purpose underlying the state and federal constitutional provisions on this subject, Rhode Island cases have hewed closely to federal double-jeopardy law when applying the analogous clause in the Rhode Island Constitution." State v. Rodriguez, 822 A.2d 894, 906 (R.I.2003) (citing State v. Grullon, 117 R.I. 682, 371 A.2d 265 (1977)).
There are two methods to determine whether a defendant has been twice placed in jeopardy. First, we conduct our analysis under the "same evidence" test established in Blockburger, 284 U.S. at 304, 52 S.Ct. 180 and adopted by this Court in State v. Davis, 120 R.I. 82, 86, 384 A.2d 1061, 1064 (1978). Under this analysis, "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." Davis, 120 R.I. at 86, 384 A.2d at 1064 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180).
The second method is a test established in Hunter that this Court adopted in Rodriguez, 822 A.2d at 907 n. 15. See also Hunter, 459 U.S. at 367-68, 103 S.Ct. 673. The Court "examine[s] the challenged statutes to ascertain whether the Legislature intended to authorize cumulative sentencing" for the offenses contained in the indictment. Rodriguez, 822 A.2d at 907 n. 15. If the underlying legislative intent of the enactment is clear, there is no double-jeopardy violation for consecutive sentences after conviction under both statutes, "regardless of whether both statutes proscribe the same conduct under Blockburger." Id. (citing Hunter, 459 U.S. at 367-68, 103 S.Ct. 673).
Although the defendant argues that the trial justice erred in his Blockburger analysis
For the reasons set forth in this opinion, we affirm the judgment of conviction in this case. The record shall be returned to the Superior Court.
Under Rule 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." We have previously held "that Rule 404(b) is designed to prohibit the introduction of evidence that is relevant only to show that the defendant is a bad person and, therefore, likely to have committed the offense with which he is charged." State v. Graham, 941 A.2d 848, 861 (R.I.2008). "[S]uch evidence is admissible if it tends to establish, `guilty knowledge, intent, motive, design, plan, scheme, system, or the like.'" Id. (quoting State v. Lemon, 497 A.2d 713, 720 (R.I. 1985)). The prior altercations defendant had with Benton and Soko were probative of a feud between YNIC and Comstock that could have served as a source of defendant's motive to retaliate or seek retribution.