Opinion
P1/16-2491 AG
06-29-2020
STATE OF RHODE ISLAND v. THOMAS MOSLEY
ATTORNEYS: For Plaintiff: Scott A. Erickson, Esq. Robert E. Johnson, Esq. For Defendant: George W. West, Esq.
DECISION KRAUSE , J. In the late afternoon of August 13, 2014, a single gunman entered Yusef A'Vant's Krazy Kuts barbershop in East Providence, shoved a handgun in the face of Seth Waters, the only waiting customer, and told him to get down and face the floor. Waters complied, catching only a glimpse and not a good look at the man. Immediately thereafter, Waters heard A'Vant exclaim, "You've got to be kidding?" Waters then heard a short struggle; a shot was fired; and the shooter fled, leaving A'Vant bleeding to death on the floor. Rescue personnel soon arrived but could not revive A'Vant, who uttered no words.
Two years later, on August 26, 2016, a grand jury indicted Thomas Mosley, along with Evan Watson, for murdering A'Vant (Count 1), conspiring to commit that murder (Count 2), carrying a pistol without a license (Count 3), and discharging a firearm while committing a crime of violence (murder) which resulted in A'Vant's death (Count 4). Mosley was also separately indicted on three charges of obstruction of justice, two of which were allegedly committed on September 8, 2015 (Counts 5 and 6), and a third one committed between July 29 and August 21, 2015 (Count 7). Mosley allegedly committed those three obstruction offenses while held at the Adult Correctional Institutions (ACI) after having been charged with violating his probation on an underlying felony controlled substance offense.
The grounds for the probation violation were the murder complaint and the obstruction of justice messages contained in telephone calls Mosley made from the ACI. In October of 2015, after a hearing before Associate Justice Sarah Taft-Carter, Mosley was adjudged a violator and ordered to serve six of the seven suspended years of the drug case. That adjudication has been affirmed. State v. Mosley, 173 A.3d 872 (R.I. 2017).
Watson agreed to cooperate with the state not long after he had been arrested on unrelated burglary/home invasion charges which he and others (not including Mosley) had committed before the barbershop shooting. On October 18, 2016, pursuant to a cooperation agreement, Watson pled guilty to a reduced charge of second degree murder, agreeing to accept thirty-five years to serve for his role (driving Mosley to the barbershop and providing him with the gun), along with ten years to serve on the conspiracy and unlicensed gun counts. It was also contemplated that at the time of sentencing he would be excused from the shooting death-resulting charge in Count 4. It was also agreed that those sentences would be served concurrently with each other and with the thirty-year burglary sentence, effectively extending Watson's incarceration period by about five years beyond the burglary term.
Mosley was afforded two jury trials. At his first two-week trial in October of 2019, the jurors convicted him of unlawfully carrying a pistol without a license and the three obstruction of justice counts; they also convicted him of the shooting death-resulting charge in Count 4. The jury was deadlocked on the murder and conspiracy charges.
On November 22, 2019, this Court denied Mosley's motion for a new trial on the gun and obstruction charges, but because he had not been convicted of murder, which was the predicate crime of violence and an element to support Count 4, the Court ceded to him a new trial on the shooting death-resulting offense. Not content with the award of a new trial on that count, Mosley sought a windfall, demanding outright dismissal of Count 4. This Court denied him that undeserved dividend and scheduled a retrial on the murder, conspiracy, and shooting death-resulting charges in February of 2020.
Meanwhile, Mosley sought a writ from the Supreme Court, claiming that a retrial on Count 4 would somehow infringe upon his double jeopardy rights. The Supreme Court denied and dismissed Mosley's petition on January 28, 2020, and his retrial commenced on February 12, 2020. After another two-week trial, Mosley was convicted of second degree murder and, again, of the shooting death-resulting charge in Count 4. The jury acquitted him of the conspiracy charge.
On March 7, 2020, Mosley filed a motion for a new trial, together with a supporting memorandum, addressing the retrial convictions. The state filed its objection and a responsive brief on April 22, 2020. By that time, the coronavirus pandemic had curtailed virtually all court proceedings, and, by June, the defendant's motion had aged three months and had still not been assigned a hearing date. Mosley is incarcerated and serving the violation sentence, but sentencing on Counts 3, 5, 6 and 7 from the first trial is still pending. By agreement, sentencing on those counts was postponed pending a ruling on Mosley's current new trial motion. Watson's sentences are not expected to be imposed until after all of Mosley's proceedings have been concluded in the Superior Court.
Mosley's case has spanned a number of years, absorbed several defense attorneys, consumed countless days devoted to hearings on pretrial motions, and encompassed four weeks of trial. On route, it has also traveled back and forth between the Superior and the Supreme Courts. Collectively, it will have generated thousands of pages of transcripts and briefs, as well as oral and written decisions by this Court.
The pandemic has already significantly hobbled and is projected to significantly impair court proceedings at least through the summer, especially for incarcerated inmates like Mosley. Accordingly, so as not to further prolong the pendency of this senescent motion, the Court has notified the parties that it would decide the matter based upon their ample written submissions and the pertinent record. In view of this Court's considerable familiarity with the case, no additional briefing or oral argument is necessary to assist the Court's examination of the motion. To date, the Court has not been made aware of any party's objection to this procedure. See by analogy, Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 187-88 (R.I. 2008), United States v. DeCologero, 821 F.2d 39, 44 (1st Cir. 1987) (Selya, J.), and the cases collected in those decisions.
Although the retrial proceedings have not yet been officially transcribed, the Court has carefully reviewed its own copious notes as well as some of the court reporter's preliminary transcriptions. Quotations and attributions included in this Decision have been drawn from those sources and from the Court's own recollection of the previous proceedings and the retrial, which concluded only a few months ago. When a complete transcript is eventually produced, it will, of course, constitute the controlling record of the case. The Court has been as careful as possible in its annotations herein and expects that when a final transcript has been produced, differences, if any, will be negligible or slight, and they will only be as to form, and not substance.
The New Trial Motion Tests
Mosley pursues his new trial motion in divergent but tangled ways. Although he contends that the evidence is legally insufficient to support the verdict, he underwrites that contention by asserting that the jury assigned unsuitable weight and credibility to the state's key witnesses and accorded undue reliability to the rest of the prosecution's evidence. Those assertions are not legally consonant with the contention he has advanced.
A defendant may seek a motion for a new trial under Rule 33, R.Cr.P., on alternative theories: (1) that the weight of the evidence was not adequate to convict him; or (2) that the evidence was legally insufficient to support his conviction. State v. Fleck, 81 A.3d 1129, 1133 (R.I. 2014), State v. Clark, 974 A.2d 558, 569 (R.I. 2009). Those two methods invite entirely different analyses:
"[W]hen a defendant argues that the evidence was legally insufficient to serve as the basis for conviction, the trial justice does not weigh the evidence or the credibility of the witnesses, examining it instead in the light most favorable to the prosecution. To deny the motion, the trial justice need only decide that any rational trier of fact could have found that the prosecution established the elements of the crime beyond a reasonable doubt.
"On the other hand, a motion for a new trial based on the weight of the evidence requires that the trial justice act as a thirteenth juror, exercising independent judgment on the credibility of witnesses and on the weight of the evidence." Fleck, 81 A.3d at 1133 (internal citations and quotation marks omitted; emphasis added).
Here, as in Fleck, Mosley couches his motion as a challenge to the legal sufficiency of the evidence, but his arguments, like those in Fleck, actually assail the credibility of the state's witnesses and the weight of its additional evidence, plainly reflecting "the more traditional, weight-of-the-evidence standard." Id. at 1133.
Through that lens, the trial justice initially performs a three-step analytical process. Acting as a so-called "thirteenth juror," the court (1) considers the evidence in light of the jury charge, (2) independently assesses the credibility of the witnesses and the weight of the evidence, and then (3) determines whether the court would have reached a different result. If the trial judge concurs with the verdict, the analysis is over, and the verdict will be affirmed.
A fourth step is required only if the court disagrees with the verdict. Even then, however, if the trial justice concludes that the evidence and the reasonable inferences drawn therefrom are so nearly balanced that reasonable individuals could differ, the motion still must be denied. The motion has legs only if the court's disagreement with the jury's decision outweighs that balanced appraisal such that the verdict is against the fair preponderance of the evidence and fails to do substantial justice. See generally, State v. Silva, 84 A.3d 411, 416-17 (R.I. 2014); State v. DiCarlo, 987 A.2d 867, 870 (R.I. 2010).
* * *
The defendant's motion is emblematic of new trial demands which principally target the credibility of the state's witnesses, echoing a bromidic refrain which has generally been accorded little success unless the testimony is simply without any rational or tenable reliability. This Court has consistently adopted the prescript that credibility choices are "quintessentially entrusted" to the province of the jury. E.g., State v. Yon, 161 A.3d 1118, 1130 (R.I. 2017), State v. Virola, 115 A.3d 980, 992 (R.I. 2015). From its proximate observation post, the Court is firmly of the view that these jurors got it right. State v. Lopez, 129 A.3d 77, 86 (R.I. 2016) (noting "that the trial justice in this case expressly referred to his 'vantage point as a front-row observer' in passing upon defendant's motion for a new trial"); accord, Yon, 161 A.3d at 1130; Virola, 115 A.3d at 992.
Derek Winslow (often referred to simply as "D"), a mutual associate of Mosley and Watson, instigated the homicidal venture, openly announcing that he wanted A'Vant "got," street argot for killing a person. Watson initially considered undertaking the mission himself, but after visiting the barbershop and viewing the setting, he told Winslow that he "didn't feel comfortable" doing it. He and Winslow discussed finding someone else, and eventually Winslow settled on Mosley, whom Watson knew, addressing him (as did all of Mosley's friends) by his nickname "Sauce." Watson testified (and made clear during his redirect testimony) that he had no issues with Mosley and could "work with Sauce." Although Watson refused to shoot A'Vant, he did agree to assist in the endeavor by providing Mosley with transportation and a gun.
On August 13, 2014, Watson drove with Mosley to Krazy Kuts, which in the trial photographs looked like a small house. A loaded handgun wrapped in a bandana was secreted in the glove box. Watson parked at a nearby loading dock, and Mosley took the gun and headed for the barbershop. Within a few minutes, Watson heard gunshots, and Mosley jogged back to the car, returned the handgun to Watson, who rewrapped the weapon in the bandana and put it back in the glove box.
Mosley was not calm when he returned to the car. Watson described him as mostly quiet, but "a bit shaken" and "a little panicked." Mosley told Watson that "it wasn't supposed to go down like that . . . I left someone breathing." They then drove away, and Watson disposed of the gun.
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A few weeks after the barbershop shooting, Watson was arrested on the burglary-home invasion incident, and by the time Mosley's first trial commenced in October of 2019, Watson had already served a few years of the thirty-year burglary sentence. The jurors were well aware of his involvement in that violent burglary, where shots had been fired, and they also knew that he was serving a thirty-year term. He arrived on the witness stand in leg shackles, prison garb, and in the company of uniformed sheriffs. The jurors were also cognizant of the benefits provided to Watson for his cooperation in Mosley's case, particularly the concurrent thirty-five-year term which exacted only about five additional years for his involvement in the A'Vant case. Because Watson had yet to be sentenced, they were free to draw adverse inferences, as urged by Mosley's able defense attorney, that Watson was likely tailoring his testimony to suit the prosecution's case to ensure that he received the leniency for which he had bargained. The jury also learned during Watson's testimony that he had initially accused others of committing the murder before identifying Mosley as the actual culprit.
Michael Drepaul (nicknamed "Little"), an ACI inmate who had cooperated with the state in other cases (and who himself had been a stabbing victim in one of them) also cooperated in Mosley's case and provided important corroborating evidence. In May of 2015, Drepaul was being held at the ACI as an alleged violator in a stolen motor vehicle case, and he wanted to be released so that he could be with his ill mother. While at the ACI, Mosley told Drepaul that "he had caught a body last summer," an incriminating admission which, if true, coincided with the August 2014 A'Vant shooting.
Drepaul contacted a prosecutor and a Providence police detective whom he knew from prior cases and reported what Mosley had told him. He offered to "wear a wire" and engage Mosley in conversation about Mosley's admission in exchange for his release on bail and other benefits. An agreement was reached, and Drepaul was released from custody.
In mid-June of 2015, Mosley was not in custody. He was living at 15 Princeton Avenue in Providence with his girlfriend Rithy Suon, the mother of his year-old infant son. On June 18, 2015, Drepaul went to the home with a concealed pocket recorder which the police had provided to him. The recording device remained on from the time he received it and throughout his extended conversation with Mosley. No one else was present in the home except Mosley's crying infant son, whom Mosley was trying to calm and feed. The child's cries are audible during the recording, but notwithstanding some indecipherable parts, most of which are not germane to the A'Vant killing, an intelligible transcription of the important portions was produced. A transcript of their entire dialog was provided to the jury to assist them while they listened to the recording, along with cautionary instructions from the Court consistent with State v. Rivera, 221 A.3d 359, 369 (R.I. 2019) and United States v. Anderson, 452 F.3d 66, 77-78 (1st Cir. 2006).
Apart from extraneous chatter between Mosley and Drepaul at the outset of their conversation, at pages 54-60 of the transcript, 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.
Mosley described the barbershop akin to a little house, which the BCI photographs of Krazy Kuts fairly depict, and he recounted to Drepaul what Seth Waters had also related to the police: that he was the only other person present and was told to get down and face the floor. In response to Drepaul's criticism that it was risky for Mosley to have left the other person (i.e., Seth Waters) alive, the following dialog was recorded at page 54 of the transcript:
"DREPAUL: He [A'Vant] was the only one?
"MOSLEY: 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?
"DREPAUL: How you let him go?
"MOSLEY: Because I didn't think ...
"DREPAUL: How nigga...deal with it. This is the funniest shit ... the dumbest shit in the world right, how, how you gonna hit one motherfucker and not hit the other one? That's there, that stupid, that's the dumbest shit."
Waters described hearing a scuffle before the shooting, and Mosley also recounted a scuffle to Drepaul, as well as his concern that A'Vant would be able to scurry into a back room and retrieve a "strap" (a gun). First responders to the scene also described, and the photographs of the shop depict, that an altercation had occurred, including an overturned, broken glass table, as well as a back room behind A'Vant.
Mosley ruminated that although he might have intended only to confront his target and just "shake the nigga up" and even "bust a shot and be out," Mosley explained to Drepaul that he shot A'Vant because he "don't know the rules," and that A'Vant disrespected him - "got funky fresh" with Mosley, and that he was concerned that A'Vant might himself be a threat: "I'm like, I don't know if this nigger going to get a strap" from the back room, but Mosley had him cornered: "He's stuck ... like a rat in a corner ... I had to give it to him."
At trial, Mosley objected to the recording's admissibility, complaining that Mosley's child cried too loudly and overrode the dialog between the two men. It is singularly ironic that the audible crying of Mosley's own son on that recording actually helped incriminate him. Those very cries firmly corroborate Rithy Suon's acknowledgement that Mosley warned her that the police were going to ask her to listen to a tape recording between Mosley and "Little" (whom Suon knew to be Drepaul), and that she would also hear their son screaming in the background. Mosley instructed her to lie and tell the police that she didn't recognize anyone's voices on the recording. Not only is Mosley's directive to her an obvious effort to corrupt a witness and obstruct justice, it readily demonstrates his preeminent fear that his recorded admissions to Drepaul would expose him as A'Vant's killer.
The child's intermittent crying does not interfere with the relevant and audible incriminating portions of the conversation. This Court finds absolutely no reason to view the recording and the transcript's admissibility any differently today than it did at trial, particularly in light of the Court's cautionary instructions regarding the use of the transcript. The jurors were admonished that it had been prepared merely to assist them in listening to the recording, and that although efforts had been made to transcribe the recording as accurately as possible, they would find words such as "inaudible" interspersed, indicating that the transcriptionist was unclear about what was said on the recording. The jurors were cautioned more than once, and the Court emphasized to them, that if they heard anything on the recording which didn't correlate with the transcript, it was the recording which was the controlling evidence, not the transcript. See Rivera, 221 A.3d at 369; Anderson, 452 F.3d at 77-78. Further, if Mosley was so concerned about the authenticity of the transcript, he could have submitted his own, which he did not do. Anderson, 452 F.3d at 77.
Seth Waters was fortunate to have survived, but Mosley was right when he predicted to Drepaul that "the other one" (Waters) would be unable to identify him. Thus, the Court finds it peculiar that Mosley now denounces Waters for not being able to identify him and oddly disparages his inability to do so as "the most troubling evidence of all." (Mem. at 9.) With a gun pointed in his face and being told to get down, it is not surprising that Waters was unable to identify Mosley.
Given the cautionary acceptance of eye-witness identification, particularly identifications made hurriedly after a witness has been distracted by a weapon, this Court suspects that Mosley would have been much more disturbed if Waters had been able to identify him. See generally, State v. Davis, 131 A.3d 679, 696 (R.I. 2016) and State v. Henderson, 27 A.3d 872, 904-05 (N.J. 2011) ("When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. 'Weapon focus' can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.").
Waters did, however, work with a sketch artist in an effort to create a rendering that might assist the police. While it is true that the sketch doesn't look very much like Mosley, it nonetheless still adds to his undoing. When Mosley showed a copy of it to Rithy Suon, he smirked and admitted that it was supposed to look like him but that it was a poor likeness.
Add to all of that, Suon's testimony to the grand jury and statements to law enforcement that Mosley had admitted to her from the outset that he had killed someone, which he excused to her as an "accident." She had also told the police that, at a date which coincided with A'Vant's killing, Mosley had hurriedly taken a bus to New York. She said that his hasty departure was unlike prior trips, unusually emotional, and without indicating when he would return. Suon testified that she fabricated her prior statements because she felt that the detectives had pressured her, including threatening to remove her child, if she did not offer incriminating information.
Det. Michael Petow credibly rebutted Suon's recantations and her accounts of threats with entirely contradictory testimony. He had interviewed Suon, and he flatly denied that any such coercion or pressure had been placed upon her, and that she had agreeably spoken with the police without any overreaching on their part. As instructed by the Court, the jury was free to rely on those prior inconsistent statements as substantive evidence and deem them truthful, or accept her trial assertions. Plainly, the jury accepted, as does this Court, Det. Petow's testimony and deemed Suon's prior statements, which included grand jury testimony under oath, the more reliable version. After assessing this witness' demeanor and candor while testifying, this Court credits her prior statements as the truthful versions, not her transparent trial recantations. See Fontaine v. State, 602 A.2d 521, 527 (R.I. 1992) (recantations under oath rejected in favor of prior unsworn statements).
See State v. Offley, 131 A.3d 663, 677 (R.I. 2016) (McKenna-Goldberg, J., concurring and dissenting): "[T]he purpose of Rule 801(d)(1)(A) is 'to allow for [prior inconsistent] statements***to be introduced as substantive evidence in order for the fact finder to decide which statement [i.e., the prior inconsistent statement or the in-court testimony], if any, is worthy of belief.'" (Quoting State v. McManus, 990 A.2d 1229, 1236 (R.I. 2010)). "Importantly, this testimony is admitted as substantive proof at trial." Offley, 131 A.3d at 677. See State v. Clark, 754 A.2d 73 (R.I. 2000) (need not affirmatively instruct jury regarding the substantive use of prior inconsistent statement as long as the instructions place no limitation on the use of such evidence). This Court included in its credibility instructions, infra, guidelines for the jury's consideration of prior inconsistent statements.
Finally, Det. Theodore Michael, the state's digital forensic expert, skillfully guided the jurors through an exacting explication which tracked the location of Mosley's cell phone, ultimately pinpointing its location at the Krazy Kuts barbershop at the time of the shooting and corroborating Watson's account to the detectives of the route he took to get there. That Mosley was in possession of that cell phone at the time of the shooting is an easy and sound inference to draw. Det. Michael had located that phone at 15 Princeton Avenue, where Mosley lived with Rithy Suon and their son, during the nights immediately prior to the murder, and he also placed it the very next day in New York, where Suon had said Mosley had hastily gone after the incident.
In July of 2019, an extensive Daubert hearing was conducted relative to the admission of cell phone location evidence. On August 30, 2019, the Court issued a written Decision explaining its reasons for allowing Det. Michael's testimony.
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The jury was certainly cognizant of the criminal trappings which accompanied Watson and Drepaul to the witness stand, and they were also mindful of the benefits provided to them for their cooperation. The jurors were also well aware that other witnesses, such as Rithy Suon and Casandra Brooks, had offered trial testimony tending to exculpate Mosley but which was contrary to their prior incriminating statements and inconsistent with other evidence.
Apart from Det. Michael's testimony, the case had become, in a very large sense, a credibility buffet, requiring the jurors to carefully pick and wisely choose the trustworthy and reliable items from a sideboard of options. Accordingly, this Court provided the jury with an extensive credibility instruction:
Credibility of Witnesses
"There is no magical formula by which you can evaluate the credibility of witnesses. The jury system works because you, individually and collectively, bring to this courtroom all of the experience and background of your lives. Every day, in a variety of contexts, you determine for yourselves the reliability or unreliability of
statements made to you by others. I suggest to you that the same tests that you use every day are probably the best tests to apply during your deliberations when you weigh and assess the credibility of witnesses.
"Now, without limiting the generality of that, let me suggest some things that you should consider when you weigh and assess the credibility of witnesses. You may be guided by the intelligence, age, and the appearance of a witness, as well as by the conduct and 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 prejudice of the witness, if any; as well as the criminal history of a witness, if any. You may consider whether a witness would have a motive to be truthful or untruthful in his or her testimony.
"You may further consider the probability or improbability of the truth of the witness' testimony. You may give consideration to the presence of corroborating or contradictory evidence, as well as any consistencies or inconsistencies between what was testified to by a witness during the trial and what that witness may have said at an earlier time. A witness' prior statements may be accorded whatever evidentiary weight you feel they deserve.
"If there are inconsistencies or discrepancies in the testimony of a witness, you may consider whether these are normal or explainable in some fashion, or whether they furnish in your mind a basis to discredit that witness' testimony. Your discretion is complete in this arena, and the spectrum of choices is limitless.
"You may consider the testimony of a particular witness and treat all of it as gospel; or, you may go to the other end of that spectrum and give no weight whatever to any part of that testimony. But your choice is not limited solely to those two extremes, because you can come down anywhere in the middle that you think is proper and indicated.
"You have it within your power, for example, to say, "I think that witness misrecollected or exaggerated, or didn't know what he or she was talking about as to fact 'A'; but, as to facts 'B' and 'C', I think that testimony is reliable and probative, and I will therefore discount what the witness said about 'A' and credit what the witness said about 'B' and 'C.'
Prior Inconsistent Statements
"As I said a few minutes ago, a witness's prior statements may be accorded whatever evidentiary weight you feel they deserve. In other words, you may consider a witness' previous statements not only for the purpose of assessing the credibility of his or her trial testimony, but you may also consider whether those prior statements themselves deserve substantive value.
"For example, if you decide to reject as untrue something the witness said during the trial, you may, instead, accept all or part of what the witness said in his or her prior statement as being true and accurate.
"You, as jurors, are the quintessential judges of the credibility of the witnesses. It is entirely up to you to decide what portions, if any, of a witness'
statements are truthful: their testimony to you during the trial, or their statements that were made to others prior to trial.
"After making your own judgment, give the testimony of each witness such weight, if any, as you think it deserves."
It is generally accepted that jurors follow a court's instructions when considering the evidence. State v. Vento, 533 A.2d 1161, 1166 (R.I. 1987). Having thoroughly limned the manner and method by which they should consider their credibility choices, it is obvious that the factfinders opted to credit the testimony of Evan Watson. Given the wealth of corroborative evidence and verification of that testimony, this Court is more than satisfied that the jury would have been well warranted in relying on Watson's, as well as Drepaul's, incriminating testimony.
This case is hardly the first one where the state's witnesses had compromised personal histories but were nevertheless accorded reliability by a jury. Cases with cooperating codefendants are grist for the trial mill, and jurors are constantly called upon to assess their credibility. There are no hard and fast rules, only guideposts which may lead to acceptance or rejection of their testimony. This Court renews the sentiments it expressed earlier in Yon and Virola, that credibility determinations are quintessentially entrusted to the province of the jury. See also State v. LaPointe, 525 A.2d 913, 914 (R.I. 1987) (noting, inter alia, that the "crucial function" of the court considering a new trial motion is to evaluate the credibility of a witness). When twelve sensible and careful factfinders, as were empaneled in this case and deemed satisfactory by the parties, reach consensus, there is no justifiable reason to ignore their credibility assessments unless the witnesses are bereft of a veneer of plausibility. Such was not at all the case here.
Watson's unpleasant criminal history, along with his other imperfections, were published to the jury, but in light of the corroborative evidence of his ultimate accusation that Mosley was responsible for shooting Yusef A'Vant, it was, most assuredly, not at all an unwise determination for the jury to make, and this Court has reached the same conclusion. Mosley's imprecation that Drepaul is little more than "a long time cooperator looking to reduce the effects of his ongoing criminal life" (Mem. at 13) may be fair comment, but his presence in this case is also double-edged. After all, a fair-minded factfinder might well infer that when, as here, the state has continuously showcased a witness at prior criminal trials, he may well carry an air of credibility. This Court is frank to say that, independent of any such inference, it found Drepaul a candid and reliable witness in this case.
Mosley will doubtless disagree with this Court's according credibility to Watson and Drepaul's incriminating narratives. It is settled beyond peradventure, however, that not only are credibility issues earmarked exclusively for the factfinders at trial, they are also the principal domain of the trial court when considering a motion for a new trial. LaPointe, 525 A.2d at 914. "The 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." Lopez, 129 A.3d at 86 (quoting State v. Rivera, 987 A.2d 887, 903 (R.I. 2010); accord, State v. Gomez, 116 A.3d 216, 224 (R.I. 2015). Nor do discrepancies among and between witnesses oblige a trial justice to conclude that witnesses cannot be reliable. Lopez, 129 A.3d at 85; State v. Nabe, 92 A.3d 205, 212 (R.I. 2014).
That Watson and Drepaul's testimony contained discrepancies or was in part dissimilar from that of others, and that their distasteful criminal histories and plea bargain incentives were exposed, were factors to be considered in evaluating their reliability, but they were simply not, at least in the jury's view, and certainly not in this Court's opinion, sufficient to warrant jettisoning their incriminating testimony. As to the crucial issue of whether Thomas Mosley shot and killed Yusef A'Vant, this Court has no hesitation in finding both Watson and Drepaul credible.
This Court also finds entirely untrustworthy the recantations and parables served up by Casandra Brooks and Rithy Suon. The statements which they offered to the police were clearly antithetical to Mosley's interests and, in this Court's opinion, significantly overbalance their recent fictions which were transparently intended to extricate him from a morass of incriminating evidence.
Mosley's complaint that insufficient forensic evidence was developed to connect him to the barbershop (Mem. at 8) is not a basis upon which to grant him a new trial. See Yon, 161 A.3d at 1131 (accepting the trial court's conclusion that the absence of the defendant's fingerprints "on the gun, or the magazine, or the shell casings, the cartridge casings, [did] not diminish the State's proof at all"). In any event, Mosley is mistaken. Det. Michael's forensic analysis connecting Mosley's cell phone (and, as earlier noted, his unmistakable possession of it) to the immediate area of the barbershop at the time of the shooting is, by itself, uncommonly damning evidence.
Mosley's July 8, 2015 ACI phone calls, which are the basis of the obstruction of justice charges in Counts 5 and 6, bespeak his corrupt intent to prevent Suon from providing incriminating evidence to the police. Mosley had already been convicted of those obstruction charges at the first trial, and he unsuccessfully objected to their admission at the retrial. Notably, during pretrial motions before the initial October 2019 trial, Mosley had moved, also unsuccessfully, to sever the obstruction counts. This Court denied the severance request and observed that even if the severance motion had been granted, the potential relevance and probative value of the contents of the calls, by themselves, would accord them admissibility. In other words, their obvious relevance in proving Mosley's guilty knowledge ensured their admissibility, regardless of whether the jury was also asked to pass upon their criminality. Accordingly, when Mosley again objected to their introduction at the retrial (Mem. at 7), their admissibility was predestined. They had not become any less relevant simply because the criminal statute's SKU tag had been removed. (The second jury, of course, was never apprised of Mosley's convictions of those charges.) See State v. Ciresi, 45 A.3d 1201, 1217 (R.I. 2012) (citing State v. Pereira, 973 A.2d 19, 28 (R.I. 2009)) ("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.").
In both of his new trial motions, after trial and retrial, Mosley renewed his claims that the recordings simply reflect a father's desire to see his girlfriend and his child, not criminal, manipulative witness interference. The factfinders were free to adopt either view. It is obvious that they considered Mosley's intent as a corrupt tactic, principally designed to muzzle Suon from offering anything to the authorities which might incriminate him. This Court reaffirms its unreserved opinion which it expressed on November 22, 2019, when it denied Mosley's first motion for a new trial: "I think a rational juror, on the evidence presented at this trial, could easily conclude that those phone calls are nothing more than subterfuges to silence Rithy's statements to the authorities and to influence her testimony so as not to say anything pejorative about the defendant to the police and/or the prosecutors." (Tr. at 19-20, Nov. 22, 2019.)
Mosley again complains, as he did at the retrial, that submitting the case to the jury with a second degree murder option, when that lesser offense was not offered to the first jury, transgressed the law of the case doctrine. He is mistaken. This faulty contention was previously urged upon the Court on February 27, 2020, and, for the reasons set forth from the bench, the Court found that on the expanded record produced at the retrial, the law of the case doctrine was not controlling. See State v. Oliveira, 882 A.2d 1097, 1121 n.12 (R.I. 2005) (citing and quoting from Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 677 n.10 (R.I. 2004). In any event, the Supreme Court has held the doctrine inapplicable to jury instructions at a retrial. State v. Graham, 941 A.2d 848, 856 (R.I. 2008). This Court reaffirms its prior ruling and holds that Mosley's new trial motion fails on that score.
Having reviewed the evidence at his retrial, this Court is quite comfortable with the jury's decision to convict Mosley of second degree murder, along with conjointly convicting him of having discharged a firearm during a crime of violence resulting in A'Vant's death. There are, as the jury was instructed, two methods by which the state could prove second degree murder in this case: the "mere-momentary" theory and a "wanton recklessness" formula. See State v. Gillespie, 960 A.2d 969, 976-77 (R.I. 2008). This Court's pertinent jury instructions provided as follows:
"As I mentioned earlier, the law also recognizes murder in the second degree. Unlike first degree murder, second degree murder does not include premeditation. In the context of this case, there are two ways in which the state may prove second degree murder. One way of demonstrating second degree murder is by what is known as the momentary-intent theory, which involves a fleeting intent that is virtually contemporaneous with the murder.
"Under this theory, the critical difference between first and second degree murder is the time between the formation of the intent to kill and the killing itself. If a person's conscious intent to kill exists only momentarily or fleetingly, it is second degree murder. On the other hand, if that intent existed for more than a mere moment, then the crime rises to the level of first degree murder.
"Second-degree murder may also be found by a defendant's heedless conduct; in other words, by proving that the defendant killed with wanton recklessness or with a conscious disregard for the possibility of death or of great bodily harm."
The evidence unquestionably reflects the classic mere-moment premise to support second degree murder. Notwithstanding Mosley's later musings that he had only intended to unnerve A'Vant, Mosley recounted to Drepaul, as set forth earlier, that A'Vant got "fresh" with him, broke "the rules," and that Mosley, after cornering him "like a rat," decided to shoot him before A'Vant might retrieve a weapon from the back room.
The evidence also supported the "recklessness" method of proving second degree murder. For example, irrespective of her subsequent recantation efforts, Casandra Brooks' narration included her testimony that Mosley had admitted to her that he had entered the barbershop and had shot A'Vant while they struggled. She later changed that version and indiscriminatingly attributed that incriminating story to other sources. The jury had the option of accepting or rejecting the earlier self-inculpatory version as the more reliable one. Based upon this Court's assessment of Brooks, along with all of the other credible evidence, accepting her initial statement of Mosley's self-admitted act would not at all have been unwarranted. Seth Waters also reported that the gunman entered the barbershop brandishing the weapon. He, too, said that he heard a struggle before A'Vant was shot.
Wrestling with someone with a loaded pistol in hand, while already harboring a violent state of mind, undoubtedly reflects sufficient wanton recklessness and complete disregard for potential death or great harm to another so as to support second degree murder. Unanimously settling on second degree murder was a clear and obvious selection based upon the credible evidence in the case.
Quite frankly, Mosley is fortunate that the jury did not opt to convict him of first degree murder. The evidence is also clearly susceptible to supporting a premeditated intent to kill. It was no secret that Derek Winslow wanted A'Vant killed. After Watson had assessed the situation and decided not to do it, Mosley was conscripted and pegged for the job. Traveling to the barbershop with that mindset, arming himself with the weapon supplied by Watson, and then entering the shop and carrying out Winslow's command by shooting A'Vant is unquestionably murder in the first degree if the jury had decided to rely on that supporting evidence.
Whether some jurors relied upon the mere-momentary theory, while others may have been impelled by the wanton recklessness formula, does not affect the ultimate determination of the panel's unanimously finding Mosley guilty of second degree murder. State v. Delestre, 35 A.3d 886, 898-901, and n.13 at 898 (R.I. 2012). See Justice Scalia's comment in Schad v. Arizona, 501 U.S. 624, 632 (1991), repeated by the Delestre Court at 901: "When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. Schad, 501 U.S. at 650, 111 S.Ct. 2491." Delestre, 35 A.3d at 901.
That the jury acquitted Mosley on the conspiracy charge is not surprising. The evidence on that count, as explicitly charged in the indictment, was simply inadequate, as it named Mosley and Watson as the only coconspirators. Watson seemed much more an aider and abettor than a coconspirator personally bent on killing A'Vant. He had decided at the outset not to undertake the mission of personally killing A'Vant, agreeing only to transport Mosley and procure a weapon for him. Inexplicably, the state never asked the grand jury to include Winslow in the conspiracy charge. After all, it was Winslow, at least according to the evidence presented, who had promoted the homicidal venture in the first place and nominated Mosley to take Watson's place. By naming only Watson and Mosley in the conspiracy count, the prosecution was obliged to hew to this state's superannuated law mandating that the state prove exactly those named in the indictment as coconspirators, and the Court was required to so instruct the jury. State v. DeSanto, 603 A.2d 744 (R.I. 1992).
DeSanto was charged with conspiring with "Mark S. Tetreault" to deliver cocaine. The trial judge simply told the jury that in order to convict DeSanto of the conspiracy charge, the state had to prove "that the defendant agreed with another to deliver cocaine," DeSanto, 603 A.2d at 745 (emphasis added). The Supreme Court held that it was reversible error to have refused DeSanto's request to instruct the jury that the state was required to prove that Tetreault was the coconspirator, stating:
"When, as here, the information specifically alleges that only two named persons conspired[,] the identity of those two individuals becomes an essential element of the offense...The jurors should have been instructed that in order to find DeSanto guilty of the conspiracy charged, they must find that the prosecution has proven beyond a reasonable doubt that DeSanto conspired with the person or persons named in the information or indictment. The charge as given did not accomplish this task." Id. at 746.The DeSanto case has been criticized and rejected elsewhere. State v. Reed, 737 N.W.2d 572 (Minn. 2007); State v. Clark, 755 N.W.2d 241 (Minn. 2008). The state could have avoided the DeSanto impediment if the indictment had also named Winslow, or at least included a catch-all alleging other coconspirators "unknown to the grand jury." See State v. Huntley, 171 A.3d 1003, 1007 (R.I. 2017) ("The defendant also attacks the conviction on the ground that the state did not identify defendant's co-conspirator. However, we have recently held that there can be sufficient evidence to establish a conspiracy conviction despite the fact that the co-conspirators' identifies were unknown. See State v. Tully, 110 A.3d 1181, 1195 (R.I. 2015).").
Mosley's acquittal of the conspiracy count in no way diminishes the overwhelming evidence of his guilt on the murder conviction. Indeed, that acquittal importantly demonstrates that this jury carefully adhered to the Court's instructions and conscientiously considered and weighed all of the evidence before making its decisions. In Ciresi, supra, just as in Mosley's case, the jury acquitted Ciresi of one count but convicted him of others. The Ciresi Court said:
"Furthermore, '[t]his Court has adopted the presumption that "juries are able to respond impartially to the trial evidence with the assistance given by instructions from the trial justice."' Rivera, 987 A.2d at 901 (quoting Day, 898 A.2d at 705). Here, the trial justice provided measured instructions to the jury—he articulated that, 'because [Ciresi] ha[d] been charged with more than one criminal offense, each alleged violation [had to] be considered * * * separately, and [that] the [s]tate ha[d] to prove its case beyond a reasonable doubt as to each violation.' * * * The record in this case demonstrates that the trial justice's careful and considered instructions were indeed heeded by the jury—ultimately, Ciresi was acquitted on [one count]. Considering the trial justice's instructions, together with the jury's acquittal of Ciresi on count 2 of the first indictment, we discern "no reason to believe that the jury became hostile, cumulated the evidence, or was prejudiced by inferring that [Ciresi] had a criminal disposition from which it assumed his guilt." Pereira, 973 A.2d at 32; see also Rivera, 987 A.2d at 901." Ciresi, 45 A.3d at 1218.This Court gave the same instruction to Mosley's jurors as it did in the Ciresi trial, admonishing them as follows:
"Because the defendant has been charged with more than one criminal offense, each alleged violation must be considered by you separately, and the state must prove its case beyond a reasonable doubt as to each violation. The defendant is entitled to your independent consideration of each of the charges."
The split verdict presented by Mosley's jurors is entitled to the same respect which the Supreme Court accorded to the determinations reached by Ciresi's panel. See United States v. Cornell, 780 F.3d 616, 627 (4th Cir. 2015) (observing "very tellingly" that the split verdicts "reflect a thoughtful and deliberate jury"); United States v. Dominguez, 226 F.3d 1235, 1248 (11th Cir. 2000) (noting that where the jury had convicted the defendant on some counts but was at an impasse on another, the "split verdict evidences that the jury necessarily must have considered the charges individually and assessed the strength of the evidence as to each charge").
Mosley also complains that this Court should have condoned or somehow overlooked and forgiven his inexcusably late and prejudicial Rule 16 discovery violations and allowed him, essentially, to sandbag the state with two witnesses just before it rested its case. This inexpiable impropriety is as unpardonable now as it was when Mosley first pitched it.
On February 24, 2020, the day before the state's final witness (Det. Michael) was to testify and conclude the state's case, Mosley sprung Tommy Ngo and Brian Wieczorek upon the state, two ACI prisoners, who, if the Court allowed them to slip under the Rule 16 limbo stick, would purportedly have said, according to Mosley's meager oral in-court proffer, that Watson had told them that he didn't know Mosley. At that point, even though Mosley had unquestionably been aware of Ngo and Wieczorek for quite some time, he had not furnished the state with any formal discovery materials or written summaries of their expected testimony.
Mosley also asserts in his motion for a new trial that Ngo would have said that "Watson didn't know Mr. Mosley, but was implicating him to get a deal." (Mem. at 16.) This Court does not anticipate that the record of February 24, 2020, when finally produced, will reflect that concluding flourish.
Notably, Watson had never been asked during his testimony whether he even knew Ngo or Wieczorek, and/or if he had ever in his lifetime even had any conversation with either one of them, much less one which referenced Mosley. Mosley had known about Ngo as long ago as the first trial in October of 2019, but he did not present him. Announcing that he would present him at the retrial without providing the state with proper notice and formal discovery materials was entirely inappropriate.
Mosley's longstanding awareness of Wieczorek's purported remark is also disquieting. Before Mosley announced that he wanted to present him, Wieczorek's own attorney had disclosed to the Court and to counsel for both parties in a conference that Wieczorek had personally reported the comment to Mosley himself as many as two or even three years earlier while they were in prison together. More importantly, and especially relevant here, Mosley told Wieczorek that someday he may need Wieczorek to testify about Watson's professed remark.
Secretively withholding, for years, a witness who a defendant says, as the state is wrapping up its case, harbors exculpatory testimony is, by itself, inexcusable. State v. Vocatura, 922 A.2d 110, 119 (R.I. 2007). The fact that Mosley is more to blame than his attorney for deliberately blind-siding the state with this last minute gimmick does not diminish the reason to exclude it nor lessen the penalty of blocking its admission. In State v. Leddy, 555 A.2d 356, 358 (R.I. 1989), the defendant's discovery responses did not offer an alibi defense, but he tried to proffer one at the eleventh hour, after the state had completed its case and was not in a position to investigate and rebut it. Even though the impropriety which led to the trial court's exclusion of the alibi defense was the unpardonable gambit of the defendant and not his attorney, the Supreme Court nonetheless upheld the exclusion of the evidence, observing that it was Leddy's purposeful endeavor, "point[ing] out that Leddy's court-appointed trial counsel was not a party to such devious behavior." Id. at 358.
Watson had already been thoroughly examined and closely cross-examined for two days, and he had been excused by both parties. All that remained was the state's planned exit from its case in chief by presenting its expert digital witness to explain how he had tracked and located Mosley's cell phone to the barbershop. Recalling Watson would have been more than just awkward. It would have been unfairly prejudicial to the state. Without question, it would have created an untenable delay in the proceedings of a case which had already become unnecessarily protracted.
At the very least, it would have obliged the prosecution to attempt to interview Ngo and Wieczorek. It would have also required the state to undertake an in-depth and lengthy investigation of prison records, including transport records to and from the ACI and the various courthouses, to ascertain if Watson, Ngo and Wieczorek had ever been in each other's company or housed proximately such that they had opportunities to calibrate their proposed testimony. Inquiry would also have to be made to ascertain whether they had, through the ACI's Special Investigative Unit or through other channels, ever made statements to others about Mosley, Winslow, or even the A'Vant shooting itself.
Moreover, the state would, at such a late juncture, have to undertake a thorough investigation of both Ngo and Wieczorek in order to adequately cross-examine them and test their credibility generally. Their cellmates and other ACI inmates proximately housed with them would also have to be located and interviewed, some by that time having already been released and their locations difficult if not impractical to discover. Put plainly, there was no end to the delay and the unfair prejudice the state would have sustained, not to mention the impossible disruption visited upon the jurors.
Rule 16 does not permit a party to irresponsibly circumvent and evade his or her discovery obligations. That rule "was designed to be broad in scope so that neither the defense nor the prosecution is surprised at trial." State v. Powers, 526 A.2d 489, 491 (R.I. 1987); State v. Gomes, 604 A.2d 1249, 1257 (R.I. 1992). See State v. Nardolillo, 698 A.2d 195, 201 (R.I. 1997) (upholding the trial justice's exclusion of the defendant's witness after the state had rested its case, "thereby taking the state entirely by surprise and making it difficult if not impossible for the state to effectively cross-examine and to rebut [the] proffered testimony"). "The state, as well as the defendant, has a clear right to rely upon compliance with Rule 16 discovery requirements and obligations." Id. at 201-02.
In addition, the proposed testimony ran afoul of the Supreme Court's settled rule disallowing impeachment of a witness with collaterally extrinsic material. State v. Walsh, 731 A.2d 696, 698 (R.I. 1999) ("As a general rule, a non-defendant witness may not be impeached by extrinsic evidence on a collateral issue, and the cross-examiner is limited to the answers provided by the witness sought to be impeached.") (citing State v. Tutt, 622 A.2d 459, 462 (R.I. 1993) (emphasis added) (holding that the exception of impeachment by extrinsic evidence on collateral matters only applies to a defendant who testifies concerning such matters on direct examination); accord State v. Scanlon, 982 A.2d 1268, 1275 (R.I. 2009). See State v. Gehrke, 835 A.2d 433, 437-38 (R.I. 2003) (observing that "[e]ven if the trial justice had not excluded [the] testimony as a sanction for a discovery violation, it would have been excluded as improper impeachment evidence . . . [because it] is a collateral matter that must be developed through proper cross-examination, not through the introduction of extrinsic evidence").
Added to Mosley's flawed argument is his contention, for the first time (Mem. at 17), that disallowing Ngo and Wieczorek's testimony interfered with his Sixth Amendment right to present witnesses. Mosley never advanced any such proposition at the February 24, 2020 proceedings, and this new overture which he has inserted in his new trial motion merits no favorable consideration. Mosley's belated Sixth Amendment entreaty succumbs to the same Rule 16 prejudicial dislocations noted above. As the Supreme Court observed in Gehrke:
"The Sixth Amendment to the United States Constitution provides that: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor.' The right of compulsory process includes 'the right to have the witness' testimony heard by the trier of fact.' Taylor
v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). However, a defendant's right to present witnesses on his or her behalf is not absolute. 'The Compulsory Process Clause provides [defendant] with an effective weapon, but it is a weapon that cannot be used irresponsibly.' Id. at 410, 108 S.Ct. 646. Unlike most other Sixth Amendment rights, which arise automatically with the initiation of the adversary process, '[t]he decision whether to employ [the right of compulsory process] in a particular case rests solely with the defendant. The very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct.' Id. The right of compulsory process does not excuse a criminal defendant from complying with applicable discovery rules. Id. at 414-15, 108 S.Ct. 646. Pursuant to Rule 16, defendant, like the state, was bound to identify his potential witnesses prior to trial. See State v. Nardolillo, 698 A.2d 195, 201-02 (R.I. 1997).
"The United States Supreme Court has approved the preclusion of probative evidence when a defendant has failed to comply with a valid discovery rule. For example, the defendant in Taylor, on the second day of trial, attempted to supplement his response to the state's discovery request by adding the names of two witnesses whom he wished to call. Taylor, 484 U.S. at 403, 108 S.Ct. 646. Upon inquiry, however, it was revealed that defense counsel had contacted the proposed witnesses 'on the Wednesday of the week before the trial began.' Id. at 405, 108 S.Ct. 646. As a sanction for the discovery violation, the trial court refused to allow the witnesses to testify at trial, and the defendant ultimately was convicted of attempted murder. Id. Rejecting the defendant's Sixth Amendment claim, the Supreme Court held that preclusion of the defendant's witnesses' testimony was appropriate because the decision to withhold the proffered witnesses' identity was a calculated attempt to secure a tactical advantage at trial. Id. at 414-15, 108 S.Ct. 646." Gehrke, 835 A.2d at 436.
Mosley now laments that the state failed to provide the jury with any motive he may have had to carry out these offenses. (Mem. at 15.) The short answer to that objurgation is that the state has no obligation to prove a motive, and the jury was so instructed without objection. State v. Mendoza, 709 A.2d 1030, 1037 (R.I. 1998); State v. Jimenez, 729 A.2d 693, 696 (R.I. 1999) ("Conviction of [a] crime never requires proof of motive, and the absence of motive, by itself, does not raise a reasonable doubt of guilt . . . [J]ury instructions that assign a particular weight to the presence or the absence of motive should be avoided.") (quoting State v. Caruolo, 524 A.2d 575, 584-85 (R.I. 1987); State v. Houde, 596 A.2d 330, 334 (R.I. 1991) (same).
In any case, Mosley is simply wrong. Motive evidence underlying the obstruction charges was patently obvious, as Mosley had every intention of silencing Rithy Suon from making statements which could incriminate or adversely affect him. Moreover, as this Court, and obviously the jury, found from the credible evidence, Mosley himself explicitly explained on the Drepaul tape recording why he shot A'Vant.
* * *
Mosley, as he did at the first trial, chose not to testify, nor did he present any witnesses who materially assisted him. Det. Sgt. Jonathan Primiano merely recounted that Watson had wrongly identified Martins Omonkhegbe (aka "Spider") as having been involved in the shooting. He also identified a map which Watson had drawn of the route he and Mosley had taken to the barbershop, and he testified that Watson had gone with the police the next day to point out that route.
Lauren Farnsworth said that in the late afternoon of August 13, 2014, a black car driven by a light-skinned Black, Hispanic or Cape Verdean male had cut her off while she was driving in the area of the barbershop. She identified a photograph, which had been shown to her by East Providence Det. Michael Field, of the black Pontiac which the police had impounded in the case, but she conceded on cross-examination that she had simply assumed that was the subject car because a detective had displayed the photographs to her. She could not identify the driver, nor did she see where the car ultimately went.
* * *
As noted at the outset, the Court's consideration of Mosley's new trial motion has generally been geared to address Mosley's weight-of-evidence arguments. From the Court's review as the prescribed thirteenth juror, it has occupied every advantageous observation post in the stadium. It has assessed the credibility of the witnesses and the weight of the evidence, not just from a box seat on the first base line, but also by moving behind home plate and then to the third base side to ensure a front row vantage point from all angles. From those close-up frames of reference, the results unquestionably tip in the state's favor. In this Court's view, Mosley cannot in any way overcome the jury's verdict.
Notwithstanding that Mosley's motion is, at bottom, essentially an ineffective attack on the credibility of the witnesses, as well as an unremarkable attempt to degrade the weight of the state's overwhelming evidence, Mosley nonetheless somehow claims that he is entitled to a new trial because the evidence is also legally insufficient to convict him. His motion fails utterly on that calibration as well.
The test for a motion of that type, as recited in Fleck, invites an accounting which differs from the weight-of-evidence evaluation. When appraising the legal sufficiency of the evidence, the trial court does not gauge the weight of the evidence nor the credibility of the witnesses. Instead, the court assesses that which has been adduced at trial, illuminates it in the light most favorable to the state, and then decides whether any rational factfinder could conclude that it establishes the elements of the crime beyond a reasonable doubt. Fleck, 81 A.3d at 1133-34. There is no question in this corner that when the evidence described and set forth herein is, as it must be, skewed in the light most favorable to the state, no sensible factfinder, much less any casual observer of this trial, could have possibly reached a different result.
For all of the foregoing reasons, not all of which can be neatly catalogued here without a full transcript of the proceedings, this Court is firmly convinced that the guilty verdict produced at Mosley's retrial was entirely appropriate, and this Court fully agrees with it.
Mosley has incorporated by general reference (Mem. at 6) all of his unsuccessful objections, requests, and pretrial motions, including his disagreement with this Court's August 30, 2019 Daubert Decision. The Court hereby renews and reaffirms all of its pertinent rulings, holdings, and decisions not otherwise discussed or referenced herein, and it denies Mosley's new trial motions on those grounds, as well. --------
The motion for new trial is denied.
ATTORNEYS:
For Plaintiff:
Scott A. Erickson, Esq.
Robert E. Johnson, Esq.
For Defendant:
George W. West, Esq.