Preview:

Supreme Court
No.   96-169-C.A.
(P1/94-1092A)
Concurring and Dissenting Opinion begins on page 30
State                                                                                                          :
v.                                                                                                             :
Jose Garcia.                                                                                                   :
Present:  Weisberger, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ.
O P I N I O N
Flanders, Justice.     A night of road rage and vengeful arson culminated in a family of six
innocent victims, including four children, burning to death in a Providence house fire.   Convicted of the
grisly crimes leading to this holocaust, the defendant, Jose Garcia, challenges on appeal not only the
propriety of certain evidence introduced against him at his trial, but also the sentences he received.   For
the reasons adduced below, we affirm the Superior Court’s judgment of conviction.
I
Facts and Travel
On the evening of February 26, 1993, defendant and several acquaintances were traveling by
automobile in opposite directions on Haywood Street in Providence.  The defendant was a passenger in
a car driven by one of those acquaintances, Jose Tapia (Tapia); William Cifredo (William), Tapia’s
cousin, was driving another vehicle.   The drivers had stopped their automobiles in the road and were
conversing among themselves when another vehicle suddenly backed out of a driveway at 54 Haywood
Street and collided with Tapia’s car.  An altercation quickly ensued between Tapia and the driver of this
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other car, Samuel Lorenzo (Lorenzo).   Meanwhile, an occupant in Lorenzo’s automobile, Jorge Diep
(Diep), left the car and briefly entered the house at 54 Haywood Street.   Upon reemerging, Diep
jumped into the driver’s seat of Lorenzo’s vehicle, shoved the gear into reverse, slammed his foot on the
gas pedal, and bashed the vehicle into Tapia’s car.   By now William was out of his driver’s seat and
yelling at Diep to stop.  But Diep was not yet done.  He proceeded to run William over with Lorenzo’s
vehicle, trapping him underneath the car and dragging him several hundred feet down the road until
William’s body finally dropped free of the chassis.   Eventually, an ambulance transported the battered
William to Rhode Island Hospital where he underwent hours of emergency surgery.   Ultimately, he
survived.
While William’s family and friends awaited an update on his condition at the hospital, defendant,
who had witnessed the mayhem on Haywood Street,  “came screaming on the ramp,  [and] told
everyone * * * they [were] going to get them for what they did to Will.”   He also stated that “he [had
previously] burned [a] crackhead’s house down because he owed him $600.”   After delivering this
exhortation, defendant, with Tapia and others, proceeded by car back to the Haywood Street area.
Tapia first drove to Vernon Street to drop off one of their friends.  He and defendant then went inside a
house and came out shortly thereafter.   Tapia requested the keys to the trunk from the driver of their
car, Latissa Southerland (Southerland), and retrieved a yellow antifreeze container from the vehicle’s
trunk.   Tapia and defendant then climbed into the back seat of the car and requested Southerland to
take them to a gas station.  Once there, Tapia and defendant filled the antifreeze container with gasoline
and reentered the car.   Too anxious to drive any further, Southerland requested Tapia to take over the
wheel.   He did so and at about midnight they all drove to an apartment complex located two streets
behind the house at 54 Haywood Street from which Diep had emerged to wreak havoc on William and
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his car.  Carrying the yellow container, defendant left the car with Tapia while the others remained there
and waited for them.   When defendant and Tapia returned some ten minutes later, defendant was no
longer carrying the yellow container.   As defendant and the others drove away from the scene, they
could see smoke rising from the direction of Haywood Street.   When one of the vehicle’s occupants
asked defendant what had happened, he responded that he and Tapia had “poured the gas from the top
to the bottom.”
As fate would have it, however, neither Lorenzo nor Diep, the intended targets of defendant’s
revenge, lived at 54 Haywood Street, nor were they otherwise present there when defendant and Tapia
returned to the premises.   But Carlos Chang, Hilda DeRosario, and their four children did live there.
And they were all present in their apartment on the third floor when defendant and his accomplice
doused the stairwells with gasoline and set the building ablaze.   Despite a desperate attempt by Carlos
Chang’s  brother-in-law,  Ivan  Ponce,  to  rescue  them, the  entire  Chang  family perished  in  the
gasoline-induced inferno.
The next day, after hearing that the police were questioning some of the individuals who had
been with him the previous evening, defendant boarded a van bound for New York.   Nine days later,
New York City police arrested him at his mother-in-law’s Bronx apartment, at which point defendant
unsuccessfully attempted to flee through a window.   Ultimately, a jury convicted defendant of arson,
conspiracy to commit arson, and the felony murder of the Chang family’s six members.   He was
sentenced to two concurrent terms of life without parole, plus a term of ten years to serve, to be
followed by four consecutive life sentences.   Challenging the evidence that was introduced at his trial
and the sentences he received, defendant appeals from these convictions.
II
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Analysis
A.  Coerced Testimony
The defendant first claims that the police statements and trial testimony given by two of the
witnesses against him were coerced and should have been suppressed.   Because this evidence was
introduced against him at trial, he contends that his federal constitutional right to due process of law was
violated.1   Because the totality of the circumstances pertaining to the gathering and the presentation of
this evidence does not support his contention, we reject this argument.
At the outset, we note that persons who are mere witnesses to criminal acts do not enjoy the
same federal due process protections when they are being questioned by the investigating authorities as
do suspected wrongdoers who are being interrogated while they are in police custody.   For example,
Miranda warnings2 need be given only to suspects in police custody, but not to potential witnesses who
are subjected to investigative police questioning.   See State v. Diaz, 654 A.2d 1195,  1204-05 (R.I.
1995).   See also United States v. Mandujano, 425 U.S. 564, 579, 96 S.Ct. 1768, 1777-78, 48
L.Ed.2d 212, 220 (1976) (Miranda warnings are aimed at “the evils seen by the court as endemic to
police interrogation of a person in custody”).  Most importantly, even when a witness has been coerced
into providing the police with a pretrial statement that implicates the accused, the mere fact that a
witness has given the police such a statement during the investigation of a crime does not necessarily
prevent the witness from testifying voluntarily at trial in a manner consistent with the pretrial statement.
As we said in State v. Damiano, 587 A.2d 396, 399 (R.I. 1991):   “We know of no precedent from the
Supreme Court of the United States that would require a jury to ignore the testimony of a live witness
1
The defendant makes no claim that any of his rights under state law were violated.  Accordingly,
we have no occasion to pass on the propriety of the alleged misconduct under Rhode Island law.
2
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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on the basis of having a reasonable doubt concerning whether a prior statement containing the substance
of such testimony had been produced by coercion.”   Nevertheless, this is exactly what defendant is
suggesting should be the law when he argues in this appeal that the trial testimony of two witnesses
should have been precluded on the basis of alleged pretrial coercion by the police in obtaining
statements from them.
The defendant insinuates that one of the witnesses against him, Southerland, was a callow
nineteen-year-old who had no previous experience in dealing with the police.  He claims that the police
arrested her two days after the fire without probable cause to do so and then held her at the police
station for several hours, where, he says, they screamed at her, accused her of lying, threatened her with
murder charges and with the loss of her child, and denied her request to call an attorney.  He claims that
these circumstances render involuntary any subsequent statements she gave to the police.  Ultimately, he
claims the trial justice should have suppressed not only these statements but also her trial testimony to
avoid violating his due process right not to be convicted based upon coerced evidence.
The facts and the applicable law, however (see, e.g., Damiano, supra), support the contrary
conclusion drawn by the trial justice.   We will reverse a trial justice’s findings on a motion to suppress
only if (1) his or her findings  concerning the challenged statements reveal clear error, and (2)  our
independent review of the conclusions drawn from the historical facts establishes that the defendant’s
federal constitutional rights were denied.   See State v. Humphrey, 715 A.2d 1265, 1273 (R.I. 1998).
In this case, the police arrested Southerland on February 28, 1993, two days after the February 26
incidents that gave rise to the criminal charges against defendant.   On that date, she gave the police a
statement which she later described as “a half truth,” but she did not incriminate defendant.   The police
then released her, only to bring her back to the station on the next day for additional questioning.
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Nevertheless, she refused to give them any further statements on that day.  The police then released her
again and told her to come back with an attorney.   Thus, whatever the police may have said and done
to Southerland on February 28, it did not cause her on that day (or the next) to implicate defendant in
the crimes for which he was ultimately convicted.
The following day   she did return to the police station with her lawyer, but still she gave no
statement to the police at that time.  Instead, the police and Southerland’s attorney merely discussed the
prospect of Southerland’s giving the police another and more forthcoming statement about the fire.  Not
until March 5 did Southerland, accompanied by her attorney, proceed to the Attorney General’s office
and provide a more lengthy written statement fully inculpating defendant.  The trial justice found that she
had done so without any governmental authority having leveled any threats against her.  The trial justice
also concluded that Southerland had not been forced to return to the police station on each of the prior
occasions.   Rather, as Southerland herself stated, “I went voluntarily,” albeit “I just didn’t want to go
back down there.”   Indeed, at that point, according to Southerland, “I wasn’t cooperating.”   Only
during her meeting with law enforcement personnel on March 5 in the presence of her counsel did
Southerland give her second and only statement that incriminated defendant.   The defendant presented
no evidence to suggest that there was any police coercion in connection with this fourth and final meeting
between Southerland and the authorities.
During another portion of Southerland’s trial testimony, she indicated that “while all these
lawyers and police officers” were waiting for her at the Attorney General’s office on March 1, she
remained in a room with her attorney, who “told [her] it was up to me.”   Finally, she admitted, “I
decided to cooperate with them.”   It was only at that point that she even discussed the possibility of
giving the police a second statement that would incriminate defendant.   Four days later on March 5,
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without any showing by defendant of any coercion in the interim by any law enforcement personnel, and
in the presence of her attorney, Southerland provided her second statement to the authorities.  Based on
these circumstances, we are unable to fault the trial justice’s conclusion that Southerland’s March 5
statements to the police                                                                                         (as well as her consistent trial testimony)  were not the product of police
coercion.
Likewise, the trial testimony and pretrial statements of the other witness in question, Nesha
Perry (Perry), also appear to us, as they did to the trial justice, to have been voluntary.  With regard to
her pretrial statements, the only threatening tactics by police occurred before Perry’s first and false
statement in which she claimed that she knew nothing about the fire; Perry’s second statement
incriminating defendant was not the result of police threats.  Before she provided the police with her first
and false statement, she claimed that a police detective threatened to “put his foot in [her] * * * behind.”
It was also before this first statement that police showed her pictures of the bodies charred by the fire.
Notwithstanding these allegedly coercive police tactics, Perry maintained in her first statement that she
knew nothing about the fire.  Thus, the trial justice was correct in concluding that Perry did not inculpate
defendant solely as a result of police coercion and threats.
To be sure, after giving her first statement wherein she claimed to have no knowledge about the
fire, Perry testified that the police told her that they did not believe her, that she could be in trouble for
withholding truthful information from them, and that she would not be allowed to leave until she provided
them with the truthful information they were asking to obtain from her.   But Perry also testified that the
police made no intimidating statements to her, nor did they engage in an otherwise coercive course of
conduct towards her after she gave them her second and truthful statement and before she testified at
both defendant’s bail hearing and before the grand jury.   The trial justice found that the police did not
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tell Perry what to say, and we are unable to conclude that this historical finding is clearly erroneous.  We
acknowledge that some of the evidence indicated that a detective had insisted to Perry that he knew she
was lying after she initially denied any knowledge about the fire, that Perry would be in trouble for
making such a statement, and that she would have to remain at the police station until she told the police
what she knew about the fire.   But in light of the fact that Perry later testified that she then voluntarily
relayed the truth to the police in her second statement, we are not persuaded that these acts were so
coercive as to cause Perry to provide her second and truthful statement to the police against her will,
much less that her later sworn testimony at the bail hearing and before the grand jury were the product
of unlawful police coercion.3
We also conclude that the mere fact that both these witnesses entered into agreements with the
authorities for non-prosecution and/or for plea bargains of one sort or another does not render their
testimony coerced.  As the First Circuit observed in the case of United States v. Dailey, 759 F.2d 192
(1st Cir. 1985):
“Long  ago  the  courts  rejected  the  notion  that  the  testimony  of
co-defendants  and  other  interested  witnesses  was  so  likely  to  be
unreliable that it should be excluded.                                                                          * * *  Recognizing that such
individuals were frequently the most knowledgeable witnesses available,
the courts have chosen to allow them to testify and to rely upon
cross-examination to ferret out any false testimony they might give.”  Id.
at 196.
3
The defendant’s reliance on LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir. 1974) in this regard
is misplaced.  LaFrance merely held that a trial judge who fails to hold a voluntariness hearing out of the
presence of the jury when a factual issue exists concerning the voluntariness of a witness’s impeaching
statement violates the defendant’s rights.   Id. at 34.   Vargas v. Brown, 512 F. Supp. 271 (D. R.I.
1981), also cited by defendant, stands for the same proposition.   In this case, the trial justice did hold
such a hearing outside the jury’s presence, so we have no need to rule on whether the court was
required to do so.
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Thus, the “mere fact that a witness hopes to receive a reduced sentence or some other form of leniency
does not disqualify him [or her] as a witness but affects only the weight of his [or her] testimony.”  Id. at
198 (quoting United States v. Insana, 423 F.2d 1165, 1168 (2d Cir. 1970)).   Likewise, the mere fact
that some of the witnesses against defendant entered into quid pro quo agreements with the prosecution
granting them immunity or other favorable treatment in connection with their agreement to cooperate
does not destroy the voluntariness of their truthful statements to the police nor their later trial testimony
that was consistent with such statements.
B.  Admissibility of Jose Cifredo’s Bail Hearing Testimony and His Purported Recantation
On February 27, 1993, the police arrested Jose Cifredo (Cifredo), William’s brother, who was
also with defendant on the evening of February 26 and who later signed a written statement inculpating
defendant in setting the fire.   However, after invoking his constitutional right not to incriminate himself,
Cifredo refused to testify at trial.   Moreover, he claimed during a voir dire hearing at the trial that his
earlier statement to the police and his bail hearing testimony -- both of which implicated defendant --
were false.   Nevertheless, the trial justice permitted the prosecution to read Cifredo’s bail hearing
testimony to the jury during the trial.   When a witness is unavailable to testify at trial, “[r]ecorded
testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same or another proceeding, [is admissible] if the party
against whom the testimony is now offered, * * * had an opportunity to develop the testimony by direct,
cross, or redirect examination.”   R.I. R. Evid. 804(b)(1).   Here, Cifredo’s bail hearing testimony was
shown to have been competent and admissible and to have been adduced in the course of a prior
judicial proceeding at which defendant was present,  was represented by counsel, and was able to
cross-examine Cifredo.  See State v. Ouimette, 110 R.I. 747, 753, 298 A.2d 124, 129 (1972).
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Compelling Cifredo to testify at trial would have required him to concede under oath that he had
lied in his earlier police statement and in his sworn bail-hearing testimony.  Such admissions would have
subjected him to criminal prosecution for filing a false police statement and for perjury because he had
no immunity from such charges.    Thus, the trial justice did not err in precluding defendant from
questioning Cifredo about such matters during the trial.   Finally, Cifredo testified that the police did not
threaten him and that his father and his attorney were present when he provided the police with his
original statement.   Nor was he threatened in any way before giving his bail hearing testimony.   Hence,
we are unable to conclude that the trial justice erred in admitting his prior recorded testimony.
We are also convinced that the trial justice did not err in denying defendant’s motion to admit
Cifredo’s subsequent sworn testimony at a pretrial hearing during which he attempted to recant at least
a portion of his earlier bail hearing testimony.4   During a voir dire hearing in the middle of defendant’s
trial, Cifredo stated, “I just don’t want the testimony that I made [at the bail hearing] to count against
anything,” thereby leading the trial justice to conclude that “[i]t was obvious to this Court in observing
this witness, he just did not want to testify, and more particularly, he did not want to testify against his
cousin, Mr. Tapia, who was still involved in the case at that time.”   It is precisely for this latter reason
that courts look with particular  disfavor and suspicion on  purported recantations by relatives of a
defendant.   See, e.g., United States v. Provost, 969 F.2d 617, 621 (8th Cir. 1992) (“[r]ecantation is
particularly common when family members are involved and the [witness] has feelings of guilt or the
4
Cifredo, however, was unable or unwilling to specify which aspects of his prior testimony were
supposedly false. Thus, his attempted recantation  did not indicate which answers that he gave were
false, nor did he specify in what respect they were false.   Such a purported disavowal of his earlier
sworn testimony failed to clear the threshold hurdle for admitting such evidence as a genuine recantation:
that is, showing that the recantation contains “specific and clear” admissions as to “which * * * answers
in prior testimony were false and in what respects they were false.”  United States v. Goguen, 723 F.2d
1012, 1018 (1st Cir. 1983).
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family members seek to influence the [witness] to change [his] story”).   In this case, Cifredo’s cousin,
Tapia, was a codefendant.   Moreover, here, as in  State v. Doctor, the trial justice found that the
disavowing witness was not credible, that the witness had given contradictory statements on prior
occasions, and that his attempted recantation of his earlier sworn testimony was “for reasons other than
desiring to correct any inaccuracy in his prior testimony.”                                                    690 A.2d 321, 329-30 (R.I. 1997). Thus,
the trial justice stated that he did not “believe a word [Cifredo] said” in connection with his recantation.
Cifredo’s claim that some or all of his bail hearing testimony was false also contradicted his previous
statement to the police.  Thus, evidence existed that Cifredo wanted to recant his bail hearing testimony
for reasons other than a mere desire to correct any inaccuracy.   This is why “[a] statement tending to
expose the declarant [Cifredo] to criminal liability and offered to exculpate the accused [defendant] is
not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
R.I. R. Evid. 804(b)(3).   Here, on the contrary, substantial, additional, and corroborative evidence
exists in the record to support the accuracy of Cifredo’s bail hearing testimony and, consequently, the
falsity of his purported recantation.
In sum, defendant adduced virtually no evidence to support his claim that Cifredo’s bail hearing
testimony had been coerced, and we are not persuaded that the trial justice erred in preventing
defendant from introducing into evidence Cifredo’s  spurious attempt to recant his earlier testimony
during the trial’s voir dire hearing.
C.  Defendant’s Reference to A Prior Uncharged Act of Arson
Southerland testified that while she and her other friends were at the hospital awaiting an update
on William’s condition, she heard defendant on the hospital ramp screaming that “they were going to get
them for what they did to Will,” and that defendant said that he had previously “burned [a] crackhead’s
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house down because he owed him $600.”5   The defendant contends that the trial justice should have
excluded this testimony as “evidence of other crimes, wrongs, or acts” because it was offered to prove
his character in order to show that he acted in conformity therewith in violation of Rule 404(b) of the
Rhode Island Rules of Evidence.6
First, we note  that although defendant’s counsel initially objected to the admission of this
testimony and moved to strike it, ultimately he decided to withdraw his objection after the trial justice
and the prosecutor elicited evidence from Southerland that defendant’s reference to a prior house
burning “didn’t have anything to do with the fire” in this case:
“Q     At this point when [defendant] talked about burning this house down,
what had Jose Tapia done with Tamara?
“A     He told her to go in the hospital to get Nesha so she could bring her home.
“THE COURT: I think we better clarify what you mean by ‘burning this house
down.’
5
Evidence of defendant’s statement regarding his prior act of arson also appears in the transcript
of Cifredo’s bail-hearing testimony, which was admitted at trial as State’s Exhibit No. 16.   However,
defendant did not object  to the admission of this  testimony on R.I. R. Evid. 404(b) grounds, nor did he
request a limiting instruction concerning such evidence.   Thus, even if defendant had not withdrawn his
objection to Southerland’s testimony on this same subject, infra, his failure to object to this evidence
coming in through Cifredo’s bail-hearing testimony or to request any limiting instruction regarding same
was fatal to any preservation of this issue on appeal because “a party loses the benefit of his original
exception if he thereafter permits similar testimony on the same subject to be introduced into evidence
without objection.”   State v. Gordon, 508 A.2d 1339, 1347 n.7 (R.I. 1986) (citing State v. Dettore,
104 R.I. 535, 540, 247 A.2d 87, 90 (1968)).
6
Rule 404(b) provides as follows:
“Other Crimes, Wrongs, or Acts.    Evidence 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.   It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident, or to prove that defendant feared imminent bodily
harm and that the fear was reasonable.”
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“MR. LEVIN:  I’m sorry.
“Q     The house ---.
“THE COURT:  In another jurisdiction.
“Q     In another jurisdiction, the crackhead’s house.
“THE COURT:  It has nothing to do with the house allegedly in this case.
“Q     Is that correct?
“A     No, it didn’t have anything to do with the fire.
“Q     At that time?
“A     Yes.
“THE COURT:   And you  [referring to defendant’s attorney] object to that?
Overruled. Overruled.
“MR. O’BRIEN:  I withdraw my objection.
“Q     When [defendant] said that he had burned down a crackhead’s house
for $600 did Jose Tapia say anything?”   (Emphasis added.)
Because defendant’s objection to the admission of his prior-house-burning statement was
withdrawn and because this evidence also was introduced without a Rule 404(b) objection through
Cifredo’s bail-hearing testimony, the trial justice’s admission of this evidence cannot now form the basis
for a claim of error under Rule 404(b).7   Nonetheless, despite having withdrawn his objection to the
7
Notwithstanding the fact that defendant’s original objection to the admission of his prior
house-burning statement was both withdrawn (in the case of Southerland’s testimony) and not asserted
at all (with respect to Cifredo’s testimony), the dissent maintains that the admission of this evidence was
“in direct violation of Rule 404(b) of the Rules of Evidence.”   With all due respect to our dissenting
colleague, we will not permit a party who withdraws an evidentiary objection at trial because he or she
perceives it as tactically advantageous to do so (and who fails to object at all when such evidence is
introduced through another witness) to claim later on appeal that the very testimony which was the
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court’s admission of this evidence, defendant later requested the trial justice to give the jury a cautionary
instruction about its use of this prior-arson evidence.  The trial justice did so, actually reading the text of
Rule 404(b) to the jurors and cautioning them that “it’s not used to show that defendant committed this
particular crime.   He’s presumed innocent * * * evidence of any other unlawful activity is not used to
show that someone has the capacity to commit a crime.”                                                            (Emphasis added.)   The defendant did not
object to this instruction, nor did he request that it be modified or supplemented.  Thus, any objection to
its adequacy has not been preserved for appellate review.8   However, when the prosecutor again
subject of the withdrawn objection was improperly admitted into evidence.  Having made his evidentiary
bed at trial, defendant cannot complain when he is required to sleep in it on appeal.   This same
reasoning also applies to defendant’s failure to object or to move to strike Cifredo’s bail-hearing
testimony on this subject.                                                                                        “Our long-standing rule is that a contemporaneous objection or at least a
motion to strike * * * are prerequisites to an appellate review.”   State v. Dettore, 104 R.I. 535, 540,
247 A.2d 87, 91 (1968); see also State v. Martinez, 651 A.2d 1189, 1194 (R.I. 1994) (Weisberger,
C.J.) (“defendant did not object to [the witness’] testimony on the ground of a violation of Rule 404(b),
thus * * * defendant has waived the right to raise that issue on appeal”).  And the trial justice cannot be
charged on appeal with failing to give a Rule  404(b) instruction regarding Cifredo’s bail-hearing
testimony because “the trial justice was under no obligation to give a limiting or cautionary instruction in
the absence of a request to be made by counsel for the defense,” id. at 1195, because “[t]he present
case does not deal with sexual assault.”   Id. (citing State v. Jalette, 119 R.I. 614, 621-28, 382 A.2d
526, 533-34 (1978)).
8
The dissent, nonetheless, claims that “[c]ertainly the issue of the adequacy of the instruction has
been preserved.”   Not surprisingly, the dissent cites to nothing in the record that could support this
proposition because the instruction was given without any objection whatsoever from the defendant.
Thus, the dissent’s contention that the adequacy of this instruction “has been preserved” is untenable.
The dissent also finds fault with the trial justice’s instruction concerning defendant’s prior-arson
statement, characterizing it as “scatter-shot” and “a mere collocation of words,” a criticism that it also
levels at our explication of the various legitimate purposes for the trial justice admitting this prior-arson
evidence in the first place.   Notably, defendant raised no such objections when the instruction was
given.  Moreover, the dissent’s brickbats on this score might as well be hurled at the text of Rule 404(b)
itself because it too allows the proponent of prior-bad-acts evidence to offer it for a broad range of
relevant purposes while barring its use for only one impermissible purpose.   The dissent, however,
grouses that this Court just “gives lip service to the obligation of the trial justice to explain the limited
purpose for which the jury may consider such evidence, but apparently  [is] unable to select an
appropriate purpose even at the appellate level.”   As we show below, however, the trial justice had no
such instruction obligation absent a specific request from the defendant asking the trial justice to instruct
the jury that it could only consider such evidence for certain specific and limited purposes, but it could
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adverted to defendant’s prior-arson statement in his summation -- arguing that defendant had acted in
conformity with his admitted prior act of arson (“what [defendant] was doing [in this case] was acting in
conformity about [sic] what he had done”) -- defendant’s counsel again objected and requested a
cautionary instruction.   Ultimately, the trial justice declined to repeat his prior instruction on this point,
except to tell the jury that what the attorneys say in their arguments “are never law or never fact.”
In any event, even if defendant had not withdrawn his objection to this prior-arson evidence,
and thereby waived his right to later claim that its admission constituted reversible error and even if
defendant had objected to the introduction of Cifredo’s bail-hearing testimony on this issue instead of
making no objection at all based upon Rule 404(b), we hold that this evidence was properly admitted.
First, it was not introduced to prove defendant’s bad character to show that he acted in conformity
therewith.   Rather, it was admissible under several of the various exceptions to the general exclusionary
rule of Rule 404(b) that prohibits the use of prior-bad-acts evidence to prove conduct in conformity
with character.                                                                                                   “[U]nder Rule 404(b) evidence of prior criminal acts are [sic] inadmissible only if that
evidence is both prejudicial and irrelevant.”   State v. Martinez, 651 A.2d 1189, 1194  (R.I. 1994)
(Weisberger, C.J.).   Thus, the mere fact that this evidence was prejudicial to defendant did not require
not use such evidence for propensity or bad character purposes.   No such specific request was ever
presented.  Moreover, the appropriate purposes for allowing such evidence to be introduced during this
trial were manifold.   Thus, there was no requirement then or now for the trial court, the prosecution, or
this Court “to select an appropriate purpose” (emphasis added) -- at least when the evidence, as here,
was admissible for each of several discrete purposes.   Put differently, Rule 404(b) does not require the
proponent to offer prior-bad-acts evidence just for one appropriate purpose when in fact such evidence
is admissible for several appropriate purposes.   Most significantly, defendant never objected to the
prosecution’s failure to specify a particular purpose when it introduced this evidence, nor did defendant
request the trial justice to ascertain the purposes for which this evidence was offered and then instruct
the jury that it could only use this evidence for such purposes.   Having failed to do so, defendant has
waived appellate review concerning the propriety of the trial justice’s handling of this evidence when it
was ruled admissible.
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its exclusion.   Here, for the reasons set forth below, defendant’s prior-arson statement was clearly
relevant to whether defendant was guilty of committing the charged act of arson.   In any event,
“questions of relevancy of evidence, including whether the probative value of proffered testimony is
outweighed by the danger of undue prejudice, are left to the sound discretion of the trial justice.   The
trial court’s determination will not be disturbed on appeal absent a showing of prejudicial abuse of that
discretion.”   State v. Gordon, 508 A.2d 1339, 1347 (R.I. 1986).   And even though the trial justice’s
refusal to reinstruct the jury on Rule 404(b) in response to the prosecutor’s improper closing argument
that defendant “was acting in conformity about [sic] what he had done” constituted error, it was
harmless error in light of (a) the trial justice’s previous instruction to the jury on the proper and improper
uses of such evidence, (b) defendant’s earlier withdrawal of his objection to the admission of this
evidence through Southerland’s testimony and his non-objection to its admission through Cifredo’s
bail-hearing testimony, and (c) the overwhelming other evidence of defendant’s guilt.   As a result, we
reject defendant’s contentions on appeal that this evidence should not have been admitted at all and that
the trial justice’s failure to sustain the defendant’s objection to the prosecutor’s acting in conformity with
closing argument and to reinstruct the jury on what use it could make of defendant’s prior-arson
statement constituted reversible error.
First, the evidence concerning defendant’s prior-arson statement was not offered to prove
defendant’s bad character to show he had acted in conformity therewith on this occasion.   Rather,
Southerland’s and Cifredo’s  recollections of defendant’s prior-arson reference  were relevant  and
admissible in proving at least three separate aspects of the crime charged:                                      (1) defendant’s motive to
seek revenge for William’s injuries  (he was telling William’s friends and family that when some
“crackhead” had crossed him previously, he had retaliated for that perceived wrong by burning this
- 16 -




person’s house down; thus, defendant was indicating to his compatriots that he was motivated to
retaliate for William’s injuries in the same manner in which he claimed to have responded when some
“crackhead” had failed to pay him what was owed); (2) his settled purpose to achieve that revenge by
committing the charged act of arson; and (3) his malicious intent to burn down 54 Haywood Street that
very night.  Thus, it was defendant’s utterance itself -- and not whether he in fact committed such a prior
arson or was just boasting about having done so -- that was relevant in proving defendant’s motive, his
settled purpose, and his intent to commit the charged act of arson.
Second, the prosecution  was entitled to elicit Southerland’s and Cifredo’s testimony about
defendant’s prior-arson statement because of its undeniable relevance to proving how the events leading
up to the defendant’s commission of the charged crimes unfolded on the night in question.   See
Advisory Committee’s Note, R.I. R. Evid. 404 (stating that “[e]vidence of other crimes or acts by the
accused may also be admitted to explain other evidence or for background purposes”)   (citing State v.
Gordon, 508 A.2d 1339  (R.I. 1986)).   Significantly, it was not offered as part of a gratuitous or
freestanding  attack  on  defendant’s  character.    Indeed,  when  the  trial  justice  and  Southerland
emphasized several times before the jury that the alleged prior arson had no connection to the crime
charged, defendant’s attorney withdrew his objection to the admission of this evidence.   Moreover,
when the prosecutor next asked  Southerland whether Tapia, the codefendant, had responded to
defendant’s prior-arson reference, the state  was using this prior-arson testimony to  show how a
conspiracy to commit this crime arose between defendant and Tapia.   Thus, in the context of what
happened that evening, defendant’s prior-arson boast served as a catalyst to mobilize William’s friends
and family into taking action to avenge his mistreatment.   In other words, defendant’s prior-arson
- 17 -




assertion to his accomplices was an important part of the factual background concerning how and why
this crime came to be committed.
Nevertheless, we recognize that defendant’s prior-arson statement, in addition to its relevance in
proving several essential aspects of the crime for which he was accused, was also relevant to show that
defendant’s character was less than sterling and that he had acted in conformity with his prior act of
arson on the night in question.  But the mere fact that the jury is capable of using prior-bad-act evidence
for such purposes does not mandate its exclusion under Rule 404(b) because that rule does not “require
exclusion of  otherwise legally probative evidence simply because such evidence might also suggest past
criminal activity.”   See Gordon, 508 A.2d  at 1348  (holding that “[t]he prohibition against use of
evidence of a defendant’s prior criminal conduct to infer bad character and action in conformity
therewith on the occasion in question does not mandate exclusion of all evidence, regardless of how
otherwise legally probative, containing any reference to past criminal conduct”).
In Gordon, we  upheld as relevant background information the  admission into evidence of
testimony concerning the prior theft of a medical information card found in a car connecting the accused
to the crime of arson.  We also upheld the admission into evidence of a note written by the accused to
his girlfriend shortly after the discovery of the crime which read, “If we can do without it in jail, we can
do without it on the street.”   Id. at  1347.    Notwithstanding the accused’s reference to  “jail”  --
suggesting he had been incarcerated for one or more prior crimes -- we reasoned that the note was
admissible because it suggested flight to avoid prosecution and thereby was relevant to demonstrate the
defendant’s consciousness of his guilt.   Id. at 1347-48.   Thus, we upheld the note’s admission into
evidence  despite  its  undeniable  suggestion  of  defendant’s  prior  criminal  activity  and  resulting
incarceration.   See id.   And in State v. Sepe, 122  R.I. 560, 410 A.2d 127 (1980), we quoted
- 18 -




Wigmore’s treatise on evidence to the effect that “evidence of criminal conduct tending to show that a
defendant had formed a settled purpose * * * is admissible, and * * * the criminality of such prior acts
does not affect their admissibility.”  Id. at 566, 410 A.2d at 130 (quoting 2 Wigmore, Evidence §§ 304,
305 (3d ed. 1940)).   Rather, “they are received in spite of their criminality.”   Id. (quoting 2 Wigmore,
§ 305 at 205).
Thus, the mere fact that defendant’s prior-arson reference obviously suggested that he was
guilty of past criminal activity did not mean that such a statement was necessarily inadmissible.  Instead,
it called for an analysis of whether it could nonetheless be admitted under one or more of the exceptions
to Rule 404(b)’s general prohibition on admitting evidence of prior bad acts to prove character and acts
in conformity therewith.   See State v. Gallagher, 654 A.2d 1206, 1209  (R.I. 1995).   For example,
evidence of prior bad acts is admissible to prove guilt of the crime charged, see State v. Parkhurst, 706
A.2d 412, 424 (R.I. 1998) (citing State v. Stewart, 663 A.2d 912, 923 (R.I. 1995)), if such evidence
has “independent relevance in respect to the proof of an element material to ‘the chain of proof of the
crime in issue.’”   See State v. Acquisto, 463 A.2d 122, 128 (R.I. 1983) (quoting State v. Colangelo,
55 R.I. 170, 174, 179 A. 147, 149 (1935)).   Furthermore, evidence of prior bad acts is admissible to
prove “‘guilty knowledge, intent, motive, design, plan, scheme, system, or the like * * *.’”  See State v.
Lemon,  497 A.2d 713, 720  (R.I. 1985).   In this case, defendant’s claim to have burned down a
crackhead’s house in the past as he urged his cohorts to retaliate for William’s injuries revealed both his
vengeful motive and his “settled purpose,” Sepe, 122 R.I. at 566, 410 A.2d at 130, to commit the
charged misconduct, as well as his preferred plan and intention to achieve his revenge via arson, and
thus falls squarely within these exceptions to Rule 404(b).   Certainly, it was a part of defendant’s
conduct on the night in question that was “inconsistent with the defendant’s claim of innocence” and that
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“constitute[d]  circumstances  bearing  on  the  question  of  guilt.”    Acquisto,                              463  A.2d  at                                                                       129
(notwithstanding fact that defendant’s threat to a witness may well have constituted a discrete crime, its
independent relevance to proving defendant’s consciousness of guilt for the charged crime caused it to
be admissible in evidence).
This Court has noted previously that the line dividing prior-bad-act evidence offered to show a
propensity to commit such acts and/or a defendant’s bad character, and prior-bad-act evidence offered
to show motive, intent, or for some other permissible purpose is both a fine one to draw and an even
more difficult one for judges and juries to follow.   See State v. Hopkins, 698 A.2d 183, 191 (R.I.
1997).9     In cases like the one at bar, in which   the evidence in question  can be used for multiple
purposes, some of which are permissible and others of which are not,  the trial justice should issue
specific instructions to the jury explaining “the limited purpose  [or purposes] for which the jury may
consider it.”   See Gallagher, 654 A.2d at 1210.   However, we reiterate that it is only in sexual assault
cases that a trial justice is required to issue a cautionary instruction to the jury regarding the limited use
of Rule 404(b) evidence even in the absence of a specific request by defense counsel to do so.   See
Martinez, 651 A.2d at 1195.   Because “[t]he present case does not deal with sexual assault * * *
9
In State v. Hopkins, 698 A.2d 183 (R.I. 1997), we observed   that “judges (let alone jurors)
have great difficulty in limiting the use of 404(b) evidence to the noncharacter purposes for which it has
been admitted.   But this difficulty is inherent in the fine (some would say illusory) distinctions drawn by
Rule 404(b) between evidence introduced to show conduct in conformity with character and evidence
introduced for                                                                                                   ‘other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge,’ and the like.”   Hopkins, 698 A.2d at 188 n.5.   Nonetheless, “as long as the trial justice
properly instructed the jury on the limited purpose or purposes for which such evidence may be
considered, it is generally admissible for such limited purposes, notwithstanding its undeniable relevance
to proving that defendant acted in conformity with his prior bad acts.”  Id.
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therefore, the trial justice was under no obligation to give a limiting or cautionary instruction in the
absence of a request to be made by counsel for the defense.”  Id.10
Nevertheless, we take this opportunity to emphasize that whenever evidence of prior bad acts is
admitted under one or more of the exceptions to Rule 404(b), the better practice is for the trial justice to
give an appropriate limiting instruction  to the jury before or as soon after such evidence is admitted as
the circumstances permit, without waiting for one of the parties either to request such an instruction or to
object to the trial justice’s failure to do so.   Such an instruction should advise the jury concerning both
the permissible and impermissible uses of such evidence.   In the case at bar, the trial justice gave the
jury a limiting instruction with regard to its use of defendant’s statement, but only after the witness had
answered several succeeding questions and only after defendant’s counsel in front of the jury had
withdrawn his objection to this evidence. An instruction immediately preceding or following the
introduction of any such evidence, rather than at some later point in the proceedings, will be more likely
to prevent jury speculation about defendant’s bad character and propensity to commit such acts than
one that is delivered at some later point in the proceedings after the jury has already been given the
opportunity to draw conclusions about defendant’s bad character or his or her propensity to commit this
type of bad conduct.   Nonetheless, the general rule remains that “although the trial justice has a
10
For this reason, the dissent’s reliance on Justice Kelleher’s remarks in State v. Jalette, 119 R.I.
614, 382 A.2d 526 (1978), concerning the method of instruction to be given the jury in sexual assault
cases and how Rule 404(b) evidence should be used only when it is reasonably necessary for the
prosecution to carry its burden of proof in such cases is misplaced.                                             “In respect to non-sexual crimes,
only independent relevance must be shown and the reasonable-necessity requirement is not a condition
precedent to the introduction of such evidence.”  State v. Acquisto, 463 A.2d 122, 129 n.3 (R.I. 1983)
(Weisberger, J.).   Because the case at bar is not a sexual assault case, the trial justice’s jury instruction
obligations regarding defendant’s prior bad acts depended on defendant offering specific limiting
instruction requests for the trial justice to give to the jury and on defendant making specific objections to
whatever portion of those instructions he disagreed with, both of which were absent here.    See
Martinez, 651 A.2d at 1195.
- 21 -




responsibility to issue a limiting instruction in certain instances, there is no requirement that this instruction
be given immediately after the testimony has been given.”   State v. Cardoza, 649 A.2d 745, 748 (R.I.
1994).   And any defendant who objects to the content or timing of the trial justice’s instructions to the
jury about its use of Rule 404(b) evidence or to the trial justice’s alleged failure to instruct the jury
adequately concerning the limited purposes for which it may use such evidence -- if the objections are to
be preserved for appellate review -- must do so specifically and must place those objections on the
record in a manner that alerts the trial justice to the alleged inadequacy of the instruction, thereby giving
him or her an opportunity to correct the same.   See, e.g., State v. Cianci, 430 A.2d 756, 765 (R.I.
1981) (counsel must direct the court to that portion of the charge or omission therefrom that counsel
finds objectionable and to state the grounds for the objection if alleged errors in the charge are to be
preserved for appellate review).
We reject the notion, moreover, that relying on jury instructions in connection with the admission
of prior-bad-acts evidence will virtually erase Rule 404(b) from the Rhode Island Rules of Evidence.
See Delli Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 300, 1 L.Ed.2d 278, 285 (1957)
(“[u]nless we proceed on the basis that the jury will follow the court’s instructions where those
instructions are clear and the circumstances are such that  the jury can reasonably be expected to follow
them, the jury system makes little sense”).11   On the contrary, if jury instructions are not used to
11
The Seventh Circuit case of United States v. Wright, 901 F.2d. 68 (7th Cir. 1990), relied upon
by the dissent, is distinguishable from the case at bar.   In Wright, the defendant was on trial for
distributing cocaine.   The trial judge ruled that a tape recording in which the defendant claimed to be a
drug dealer was admissible for the limited purposes of showing intent and identity.   See id. at 69.   The
Seventh Circuit, however, held that the recording had no relevance to the crime charged except to
“depict [the defendant] as a drug dealer” because it did not “illuminate the particular conduct of which
the defendant is accused.” Id. at 70.   On the other hand, the Seventh Circuit impliedly acknowledged
that evidence which does cast light on the particular conduct of which the defendant is accused could be
admitted under one of the exceptions to Rule 404(b).   The erasure of Rule 404(b) would be imminent,
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implement the fine distinctions governing the appropriate use of Rule 404(b) evidence, then either one of
two pernicious results will follow:   evidence of prior bad acts will be excluded altogether from trials (a
result that alters the text of Rule 404(b) by judicially eliminating the various legitimate purposes for which
prior bad acts can be offered and admitted in evidence), or judges and juries will be allowed carte
blanche to use prior-bad-acts evidence to convict defendants of the charged criminal acts because of
their bad character or because they acted in presumptive conformity with their prior bad acts.   A trial
justice’s instructions with regard to a defendant’s prior bad acts must serve as the strong and clearly
marked guardrails that prevent jurors from falling into such an   evidentiary abyss and that keep them on
the straight and narrow path to a just and true verdict based on the law and the evidence presented.
Here,  after Southerland first testified about  defendant’s  prior-arson statement                                (albeit not
immediately thereafter), the trial justice did read to the jury the text of Rule 404(b) and he also told
them:
“Now there’s been some evidence of a statement by one of the
defendants about an alleged crime.                                                                                * * * [E]vidence of other crimes,
wrongs or acts are [sic] not admissible to prove the character of the
person in order to show that he acted in conformity therewith  * * *
[s]o, it’s not used to show the defendant committed this particular
crime.   He’s presumed innocent.                                                                                  [E]vidence of any other unlawful
activity is not used to show that someone has the capacity to commit a
crime.”
Having withdrawn his objection to the admission of his prior-arson reference, defendant did not object
to this instruction or request any supplementation or alteration to its wording.  As a result, this instruction
became the law of the case.   See, e.g., State v. Giordano, 413 A.2d 93, 94 (R.I. 1980).   Hence we
must not only presume that the jury followed this instruction, but also we will not allow defendant to
Judge Posner warned, if evidence of prior crimes were to be admitted based solely on their similarity to
the crime charged.  See Wright, 901 F.2d at 70.
- 23 -




complain about the adequacy of this charge on appeal when he failed to do so at the trial.   See, e.g.,
Cardoza, 649 A.2d at 748 (holding that when defendant argued on appeal that the trial justice should
have given the jury a sua sponte limiting instruction regarding alleged Rule 404(b) evidence, defendant’s
failure to object at trial constituted a waiver of that issue).
However, notwithstanding this instruction,  the prosecutor  still told the jury in his closing
argument that “[w]hat [defendant] was doing was acting in conformity about [sic] what he had done. * *
* [I]f someone is willing to burn for $600 someone is more than willing to burn for an accident where a
car gets damaged and someone is run over * * *.”  Rule 404(b) clearly forbids such an open invitation
for a jury to assess a defendant’s character and guilt for charged misconduct based upon his or her prior
bad acts.   In response to the defendant’s objection to this improper argument, the trial justice should
have immediately instructed the jury to disregard this contention and reiterated his prior instruction to
them about the proper and improper uses of defendant’s prior-arson statement in light of Rule 404(b).
Although the trial justice failed to do so, we believe, for the reasons limned below, that this error was
harmless in the context of this case.
First, overwhelming and independent evidence  of defendant’s guilt  exists in the record to
support the verdict without regard to the prior-arson statement.   In addition to the damning eyewitness
testimony of Southerland and Cifredo, Latawn Wigginton, a witness who had no agreement with the
state and who defendant never claimed had been coerced into incriminating him, testified that defendant
admitted to her that he had poured the gasoline used to set the fire.  Specifically, she answered defense
counsel’s question in the affirmative when asked whether defendant had told her, “I poured the gas.  I lit
the match.   I don’t care.”   Her testimony also corroborated Southerland’s and Cifredo’s testimony to
the same effect.    Accordingly, the record reveals that the prosecution introduced substantial and
- 24 -




overwhelming evidence of defendant’s guilt that was more than sufficient to convict him of the charged
misconduct without relying upon the propensity/bad-character implications of defendant’s reference to
his having committed a prior arson.  Moreover, having earlier withdrawn his objection to the unqualified
admission of this prior-arson statement and having failed to object on Rule 404(b) grounds to the
admission of this evidence via Cifredo’s bail-hearing testimony, defendant was already somewhat
compromised by his tactical decision to allow this evidence to come in without any objection on his part
and to allow the court’s earlier instruction on this evidence to stand without objection.   Thus, when
defendant tried to reassert his objection in response to the prosecutor’s later and improper attempt to
maximize the inculpatory significance of this evidence against defendant during his closing argument, the
jury already had this evidence before it, was aware that defendant had withdrawn his previous objection
to its admission, and had been instructed on what use it could and could not make of it.
Second, the prosecutor’s acting in conformity with closing argument was not so prejudicial as to
deprive defendant of a fair trial -- especially in light of the trial justice’s previous jury instruction on this
point and defendant’s withdrawn objection to the evidence in question.   As a result, we are convinced
that the court’s error in failing to instruct the jury to disregard this argument does not require a new trial
because, absent the prosecutor’s improper argument, it is clear to us beyond a reasonable doubt that
the jury would have returned a guilty verdict anyway.   See United States v. Hasting, 461 U.S. 499,
511-12, 103 S.Ct. 1974, 1982, 76 L.Ed.2d 96, 108 (1983) (applying harmless error analysis to
prosecutor’s improper closing argument).   See also In re Shannon B, 725 A.2d 893, 895 (R.I. 1998)
(holding that admission of hearsay constituted harmless error when there was “more than sufficient other
evidence in the record to support” the verdict); State v. McKone, 673 A.2d 1068, 1075 (R.I. 1996)
- 25 -




(finding that harmless error occurred when the challenged testimony “was in fact otherwise supported by
other direct or indirect evidence in the record”).
In sum, defendant’s prior-arson statement was admissible to  prove defendant’s motive to
commit the charged misconduct, to establish his knowledge of how to accomplish the type of crime in
question, and to show his settled purpose, malicious plan, and criminal intent to do the very act that he
was charged with:   namely, the commission of arson in retaliation for what had happened to William.
(“No one returns with good will to the place which has done him a mischief.”)12   Accordingly, even if
defendant’s lawyer had not withdrawn his objection,  the trial justice did not err in admitting this
evidence.    And even though the trial justice should have sustained defendant’s objection to the
prosecutor’s acting in conformity with closing argument and instructed the jury to disregard this
contention, such errors were harmless in light of the trial justice’s previous instruction to the jury
concerning the proper and improper uses of this evidence, the earlier withdrawal of defendant’s
objection to the admission of this evidence through Southerland’s testimony, his non-objection to its
admission through Cifredo’s testimony, and the other overwhelming evidence of defendant’s guilt.13
D.  Defendant’s Remaining Arguments
We also conclude that defendant’s remaining arguments are meritless.    The evidence of
defendant’s flight was admissible without regard to the validity of the arrest warrant that defendant
12
Phaedrus, Fable No. 18, 1.
13
The dissent earnestly suggests to us that “either Rule 404(b) should be honored or it should be
repealed.”   Our corresponding suggestion to the dissent -- most respectfully advanced -- is that either
the text of Rule 404(b) should be honored in its entirety, including all of the specified and unspecified
purposes for which prior-bad-acts evidence can be admitted into evidence, or those who disagree with
that text should advocate elsewhere for the repeal or modification of this rule.   But until and unless the
rule is changed, all of it should be honored and enforced, not just the exclusory portion that the dissent
seeks to champion.
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challenges.    The  defendant’s  flight  from  Rhode  Island  and  his  later  attempt  to  flee  from  his
mother-in-law’s apartment preceded any arrest or entry to effect the arrest and, therefore, the evidence
of defendant’s flight did not flow from the execution of the arrest warrant.   In any event, we conclude
that the arrest warrant here was valid.   The original warrant unequivocally used the name “Jose Perez,”
one of the names to which defendant answered.  As a result, the fact that someone later added the name
“Jose Garcia” to the warrant -- allegedly without authorization to do so -- did not invalidate the warrant
itself.   Rather, it was valid before and notwithstanding this addition and/or alteration.   Further, the flight
evidence here was clearly admissible under the standards this Court has used in allowing such evidence
to be introduced at trial.   The evidence was capable of supporting each of four related inferences:               (1)
That defendant’s behavior constituted flight, (2) that it indicated a general consciousness of guilt, (3) that
the consciousness of guilt was attributable to the specific crime alleged, and (4) that consciousness of
guilt concerning the crime charged implied actual guilt of the crime charged.   See State v. Reyes, 705
A.2d 1375, 1377 (R.I. 1998) (citing State v. Cooke, 479 A.2d 727, 732-33 (R.I. 1984)).
We also determine that the trial justice was correct in denying defendant’s motion to preclude
the state from impeaching his credibility with two misdemeanor convictions for offenses committed when
he was seventeen years old.  The trial justice concluded that the defendant’s two prior convictions in the
state of New York for criminal possession of stolen property in the fifth degree and criminal possession
of a controlled substance in the seventh degree were not mere juvenile adjudications under New York
law.   Absent any showing that the trial court abused its discretion in giving full faith and credit to New
York’s “adult” classification of these prior adjudications, we have no basis to reverse this discretionary
ruling.  See State v. Morel, 676 A.2d 1347, 1357 (R.I. 1996).  These convictions occurred less than a
- 27 -




year before the fire.   Moreover, even defendant’s lawyer conceded that they “do have some reflection
on a person’s trustworthiness.”
Finally, we hold that the trial justice did not err in imposing sentences of life without parole upon
defendant for having participated in the murder of two of the youngest children among his six victims.
Pursuant to G.L. 1956 § 11-23-1, “[e]very murder * * * committed in the perpetration of * * * any
arson * * * is murder in the first degree.”  Furthermore,
“Every person guilty of murder in the first degree * * * committed in a
manner creating a great risk of death to more than one person by means
of  a  weapon  or  device  or  substance  which  would  normally  be
hazardous to the life of more than one person * * * shall be imprisoned
for life and if ordered by the court pursuant to chapter 19.2 of title 12 *
*  * shall not be eligible for parole from imprisonment.”    Section
11-23-2(2).
In State v. Villani, we said that a “felony murder is murder in the first degree simply because the
Legislature has said so.  A first-degree-murder conviction, be it a willful, malicious, premeditated killing
or a felony murder, calls for the mandatory imposition of at least a life sentence.”   491 A.2d 976, 980
(R.I. 1985).   Chapter 23 of title 11 does not limit this holding.   Here, defendant poured gasoline down
three flights of stairs in a building where he was told that children might be living.   Moreover, given his
knowledge of the potential presence of children in the house, defendant was very likely aware that their
parents or other care-giving adults might be living there as well.   His actions in thereafter pouring and
igniting the gasoline in the dead of the night, when the children and most of the residents of a three-story
house probably would be asleep, represented conduct “committed in a manner creating a great risk of
death to more than one person.”   See § 11-23-2(2).   Moreover, no evidence of any mitigating factors
emerged at trial.   The defendant barely knew William, the victim of the car-dragging, yet he urged and
sought revenge for the victim’s injury without showing any concern whatsoever for the fact that innocent
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people might be hurt by his inflammatory rampage.   Most significantly, when informed later that his
incendiary behavior did indeed cause children to be burned to death, the defendant responded simply
that “he didn’t give a f* * * .”  The Supreme Court has held that a state may impose its harshest penalty
upon a “cold-blooded, pitiless slayer” who kills without feeling or

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