Justice INDEGLIA, for the Court.
Robert Austin (Austin or defendant) appeals from a Superior Court judgment of conviction after a jury verdict finding him guilty of one count of second-degree sexual assault. On April 2, 2015, this case came before the Supreme Court for oral argument, sitting at Rhode Island College in the City of Providence, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be decided without further briefing and argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Sometime around 1 p.m. on November 29, 2010, the complaining witness, Laura
As the bus approached the white church in Barrington,
Laura got off at a stop in Bristol, where she went directly to the Bristol police station to report the incident. Once there, the Bristol police drove her to the Barrington police station, where she spoke with Detective Benjamin Ferreira (Det. Ferreira). Laura described her assailant as a white male over six feet tall and weighing approximately 230 pounds. She noted that he was clean shaven, had short grayish-brown hair, carried a black duffel bag, and wore a gray sweatsuit as well as a purple and yellow sports jacket.
After Laura left the station, Det. Ferreira sent out a department-wide BOLO
On December 1, 2010, while sitting in a park-and-ride adjacent to the white
Detective Ferreira then transferred the serial numbers from the bus passes of Austin and McGill to RIPTA Assistant General Manager, James Dean (Dean). As Dean explained to the jury at trial, a scan of the serial numbers revealed no activity on McGill's pass on November 29. A scan of Austin's pass, however, showed that it was used twice on that date during the relevant time period, once at 12:59 p.m. to board a Route 30 bus to Warwick, and again at 1:06 p.m. to board a Route 60 bus to Newport.
Later on December 1, 2010, Det. Ferreira telephoned Laura and arranged for her to view a photo array at the Bristol police station. The array consisted of seven photographs, which she was shown in sequential order after reading and initialing the Barrington police department procedure on how to view a photo array. The instructions noted that the array "may or may not contain a picture of the person who committed the crime." Photograph No. 1 was of McGill, photograph No. 3 was of Austin, and the remaining five photographs were taken from the Adult Correctional Institutions WINFACTS computer database.
Laura went through all seven photographs at the station, explaining later at trial that she did not "want to send an innocent person to jail." On completion, she asked to again view photographs No. 1 and No. 3 and to be shown side-view photographs of these two men. After viewing the side-view photographs of McGill and Austin, Laura immediately identified No. 3, Austin, as "the person who assaulted her on the RIPTA bus." Confident in her selection, she later testified that the side-view profile photograph of Austin brought his chin and fuller face into focus, and that "[r]ight away [she] knew which one it was." Detective Ferreira then showed her a photograph of the black duffel bag, which she identified as the bag belonging
On January 27, 2011, criminal information P2/11-160A charged Austin with one count of second-degree sexual assault in violation of G.L.1956 §§ 11-37-4 and 11-37-5. Before trial, defendant filed a motion to suppress Laura's out-of-court identification, and hearings were held on the issue on June 28, 2012 and July 2, 2012. At the hearings,
In response, the state contended that the Barrington police appropriately handled the identification procedure. The state noted that the instructions included the admonition that the perpetrator may or may not be in the array, and that nearly all of the men in the photo array were of similar builds, weight, and skin tone. Finally, the state commented that Laura had "four chances" to view her assailant, and that she was "a hundred percent certain" that it was defendant. After reviewing the five-factor test for assessing the propriety of an eyewitness identification,
Austin's trial commenced on July 2, 2012; Laura, Det. Ferreria, Ptlm. Gregorezek, and Dean testified. On July 5, 2012, defendant moved for judgment of acquittal, which was denied by the trial justice.
On July 6, 2012, after the close of evidence, the trial justice gave his charge to the jury, which included the following instruction:
After the trial justice delivered the complete jury charge, defendant objected to the trial justice's failure to read from either of the two proposed instructions he had previously submitted. One set of proposed instructions was based on instructions submitted pursuant to State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011), while the other set was taken from this Court's decision in State v. Figuereo, 31 A.3d 1283, 1290-91 (R.I.2011). The thrust of defendant's argument was that the trial justice's instruction did not include language concerning "accuracy versus certainty." In response, the state noted that this issue has come up more often in the context of a defendant's proffered eyewitness expert testimony, but that this Court has consistently rejected these experts on the ground that "trustworthiness of eyewitnesses is not beyond the ken of the jurors." Siding with the state, the trial justice declined to give defendant's requested instructions and maintained that the instructions given to the jury in the present case adequately covered the law concerning identification. On July 6, 2012, the jury returned a verdict of guilty on one count of sexual assault.
On July 13, 2012, defendant filed a motion for a new trial. At the hearing on September 24, 2012, he argued that the evidence should have yielded a verdict of not guilty because Laura could not have fully formed a reliable identification of her assailant, as evidenced by her broad age range estimate. He pointed out the fact that Laura "demonstrated a level of uncertainty" upon her first viewing of the photo array, and that the procedure became overly suggestive and "sloppy" when she was only shown a photograph of Austin in the jacket with the bag. The defendant argued that these issues produced a high likelihood of misidentification such that a reasonable juror could have found in favor of Austin. In response, the state noted that Laura identified Austin as her assailant before she was shown the full-length photograph of Austin wearing the purple and yellow jacket. In denying the motion, the trial justice expressed satisfaction with the identification procedure and found complainant to have testified credibly. Further, he indicated that, if this had been a bench trial, he, too, would have found defendant guilty.
On November 13, 2012, defendant was sentenced to fifteen years, ten to serve, and five years suspended, with probation. Thereafter, on November 27, 2012, defendant filed a notice of appeal of his conviction. A final judgment of conviction and
The defendant raises three issues on appeal. First, he argues that the trial justice erred in denying his motion to suppress Laura's out-of-court identification because of the dissimilarity in the appearances of the subjects in the photo array and because the photographs of defendant were unnecessarily suggestive. Second, he asserts that the trial justice's denial of his motion for a new trial was in error. Lastly, he contends that the trial justice erred in denying his request for a specific set of jury instructions. We will address each of these issues in turn.
"This Court reviews motions to suppress eyewitness identifications under a clearly erroneous standard." State v. Gallop, 89 A.3d 795, 801 (R.I.2014) (citing State v. Patel, 949 A.2d 401, 410 (R.I. 2008)). "In making this determination, `we assess the available evidence in the light most favorable to the state.'" Id. (quoting Patel, 949 A.2d at 410).
In evaluating the propriety of an eyewitness identification, the trial justice is to undertake a two-step analysis. See Gallop, 89 A.3d at 801. The first step is for the trial justice to determine "whether the procedure used in the identification was unnecessarily suggestive." State v. Brown, 42 A.3d 1239, 1242 (R.I.2012) (quoting State v. Texter, 923 A.2d 568, 574 (R.I.2007)). To be inadmissible, "an identification procedure must have been `so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification' * * *." Gallop, 89 A.3d at 801 (quoting State v. Gatone, 698 A.2d 230, 235 (R.I.1997)). Second, if the identification procedure was unnecessarily suggestive, "the trial justice must `determin[e] whether in the totality of the circumstances the identification was nonetheless reliable.'" Id. (quoting Brown, 42 A.3d at 1242-43).
The defendant advances two arguments before this Court regarding the alleged suggestiveness of the identification procedure. First, he contends that the composition of the photo array was unfair and that the trial justice was clearly wrong in finding that the physical characteristics of the men in the array were similar to Laura's description. This, for defendant, was evidenced by the fact that the photographs of the five younger men were immediately ruled out by Laura and, of the two remaining photographs, only Austin matched the weight of the described perpetrator.
We disagree with defendant's assertion. The seven photographs in the array depicted men fitting all of the general characteristics described by Laura. All seven photographs revealed white men between their thirties and fifties, with short hair, and no facial hair. Also, while not all of the men matched defendant's exact weight of 230 pounds, five of the six other men weighed close to 230 pounds. As we have cautioned, "the images constituting a photographic array need not be `look-alikes,'
The instructions provided by Det. Ferreira prior to the viewing of the photo array further persuade us that there was no likelihood of misidentification. See Gallop, 89 A.3d at 802. Notably, Laura was informed that the photo array "may or may not contain a picture of the person who committed the crime." That instruction "mitigated the risk" that she would select a photograph "simply because she believed she was expected to do so." Id. (citing Imbruglia, 913 A.2d at 1029-30).
Next, defendant argues that the display of Austin's photographs after Laura's initial selection constituted "impermissibly suggestive confirmation." Specifically, he argues that the trial justice was in error in relying on Laura's level of certainty because that certainty was influenced by Det. Ferreira's confirmatory actions. Those suggested confirmatory actions included showing Laura a photograph of Austin in the purple and yellow jacket. This claim of error fails, however, because it is clear from the transcript that this photograph was shown to Laura only after she had already identified defendant as her assailant, and there is no indication that Det. Ferreira gave positive feedback at any point in the process.
Having held that the photo array was not unnecessarily suggestive, we need not engage in step two of the analysis, the determination of whether the identification was nonetheless independently reliable. See Gallop, 89 A.3d at 803; see also Brown, 42 A.3d at 1242-43 (holding that, if the identification procedure was unnecessarily suggestive, the trial justice must "determin[e] `whether in the totality of the circumstances the identification was nonetheless reliable.'" quoting Texter, 923 A.2d at 574). However, even if we had found the identification procedure to have been unnecessarily suggestive, it is readily apparent that the identification was independently reliable. As the trial justice recounted, Laura had a number of opportunities to view her assailant. She looked at defendant when he sat next to her on the bus, when she was fending off his sexual advances, when she maneuvered past him on the way to the front of the bus, when she looked back at him from the front aisle-facing seat, and when he passed her while exiting the bus. Regarding certainty, Laura stated at the photo array that she did not want to send an innocent man to jail, and soon after she said she was certain that defendant was her assailant. Additionally, the mere forty-eight hour lapse between the assault and the identification further weighs in favor of a finding that the identification was independently reliable. Therefore, we find no error in the trial justice's denial of defendant's motion to suppress.
It is well established that, on a motion for a new trial challenging the weight of the evidence, the trial justice acts "as a thirteenth juror, exercising independent judgment on the credibility of witnesses and on the weight of the evidence."
Because a trial justice "is in an especially good position to evaluate the facts and to judge the credibility of witnesses, on appeal, this Court's review is deferential." Watkins, 92 A.3d at 191 (quoting Clay, 79 A.3d at 842). "If the trial justice has articulated adequate grounds for denying the motion, his or her decision is entitled to great weight and will not be overturned by this Court unless he or she has overlooked or misconceived material evidence or was otherwise clearly wrong." Id. (quoting Clay, 79 A.3d at 842).
Here, defendant argues that the trial justice erred in denying the motion for a new trial because the only reasonable response to the evidence presented was that the identification was incorrect. He avers that the trial justice failed to consider all relevant evidence, including the impact of the photograph of Austin wearing the Vikings jacket, as well as the fact that Laura might not have gotten a proper look at her assailant as he sat next to her given that she was mainly focused on removing his hands from her lap. He also disputes the probative value of the testimony regarding the RIPTA pass, contending that it is just as likely Austin was on a Warwick-bound bus.
As laid out in Fleck, 81 A.3d at 1134, the trial justice considered the evidence in light of the charge to the jury, highlighted by complainant's testimony. He then assessed the credibility of the witnesses and the weight of the evidence, declaring that he found complainant to have testified credibly in light of the fact that she was subjected to a comprehensive cross-examination. The trial justice also expressed satisfaction with the credibility of the testimony that Laura was shown photographs of defendant's jacket and duffel bag only after she had identified defendant as the perpetrator. Further, he noted that the data contained in the bus pass weighed heavily in the state's favor. Finally, the trial justice stated that, if the matter had been a bench trial, he would have also found defendant guilty.
"This Court is loath to overturn the credibility findings of a trial justice because `it is the trial justice who has the opportunity to observe the witnesses as they testify and therefore is in a better position to weigh the evidence and to pass upon the credibility of the witnesses than is this [C]ourt.'" State v. Richardson, 47 A.3d 305, 318 (R.I.2012) (quoting Penhallow v. Penhallow, 725 A.2d 896, 897 (R.I. 1998) (mem.)). It is evident that, here, the trial justice followed the proper procedure
This Court reviews a trial justice's jury instructions de novo. See Imbruglia, 913 A.2d at 1031. In so doing, we "must examine the instructions in their entirety in order to determine the manner in which a jury of ordinarily intelligent lay persons would have understood the instructions as a whole." State v. Gomes, 604 A.2d 1249, 1256 (R.I.1992) (citing State v. Lamoureux, 573 A.2d 1176, 1179 (R.I. 1990)).
It is the duty of the trial justice to "instruct the jury on the law to be applied to the issues raised by the parties." Figuereo, 31 A.3d at 1290 (quoting State v. Adefusika, 989 A.2d 467, 477 (R.I.2010)). Significantly, however, "[w]hile a defendant may request that the trial justice include particular language in the jury instructions, the trial justice is not required to use any specific words or phrases when instructing the jury-so long as the instructions actually given adequately cover the law." Id. (quoting Adefusika, 989 A.2d at 477).
Before this Court, defendant argues that the trial justice erred in failing to give his requested instruction regarding accuracy versus certainty.
Despite the defendant's protestations, it is evident that the given instruction presented "the jury with the essence of [the] defendant's requested instruction." Figuereo, 31 A.3d at 1290. While the trial justice did not use all of the specifically requested language, he clearly conveyed
For the foregoing reasons, we affirm the judgment of the Superior Court, and we remand the record in this case to that tribunal.