                                                   Supreme Court

                                                   No. 2010-128-C.A.
                                                   (P2/09-1761AG)

      State                      :

        v.                       :

 Gerald D. Price.                :




NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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                                                                     Supreme Court

                                                                     No. 2010-128-C.A.
                                                                     (P2/09-1761AG)

                      State                       :

                       v.                         :

                Gerald D. Price.                  :

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Chief Justice Suttell, for the Court. The defendant, Gerald D. Price, was convicted by

a jury of one count of possession of marijuana and two counts of possession of cocaine with the

intent to deliver while armed with or having available a firearm. On appeal, Price contends that

the trial justice committed three errors, each of which, he maintains, entitles him to a new trial.

First, the defendant argues that the trial justice incorrectly interpreted the meaning of the phrase

“having available any firearm,” within G.L. 1956 § 11-47-3. Secondly, he avers that the trial

justice erroneously permitted the state to impeach the defendant’s credibility with an allegation

of previous criminal conduct and with information that was false and prejudicial. Finally, Price

argues that the trial justice violated the defendant’s constitutional right to make an informed

decision regarding whether to plead or proceed to trial. For the reasons set forth in this opinion,

we vacate the judgment of conviction.




                                               -1-
                                                I

                                 Facts and Procedural History

       On March 26, 2009, Thomas J. Zincone, a police officer in the violent crime task force 1

of the Providence Police Department, secured a search warrant seeking cocaine and firearms at

defendant’s residence—a second-floor apartment located at 62 Heath Street in the city of

Providence. When the search warrant was executed that evening, defendant’s girlfriend Pachae

Washington was present; defendant, however, was not.

       During the search of the apartment, the Providence police officers seized a digital scale, a

clear plastic sandwich bag containing forty-one smaller bags of crack cocaine, 2 a baby-wipes box

containing bagging material, 3 an envelope containing assorted paperwork in the name of

defendant and Washington, and a clear plastic bag containing five bags of marijuana. Officer

Louis Gianfrancesco testified that, while searching a blue storage bin in the bedroom closet, 4 he

found a blue leather handbag containing two firearms—a .45-caliber handgun and a .380-caliber

handgun. The officers also discovered a magazine to the .45-caliber handgun with seven live

rounds, a box of ammunition containing forty-seven rounds for the .360-caliber handgun, and

one white latex glove. 5




1
  The former name of the violent crime task force was the gun task force.
2
  The cocaine’s gross weight was 45.1 grams (including bagging materials) and its net weight
was 32.2 grams (excluding bagging materials).
3
  The bagging material consisted of “numerous empty clear plastic bags with torn corners.”
4
  Officer Peter Conley testified that the closet had a sliding door that was half-opened, but
jammed.
5
  Officer Gianfrancesco testified that it would take approximately a “[s]econd or two” to put a
loaded magazine into a .45-caliber handgun and five to ten seconds to eject the magazine from
the .380-caliber handgun, put a round in, and then put the magazine back in. Detective Paul
William Romano testified that he was not able to lift any fingerprints from the handguns.
Detective Romano further testified that, during a test fire, the .45-caliber weapon “fired
flawlessly” the first round; however, “something didn’t work properly the second time” so he
                                               -2-
       As a result of this search, Washington was charged with various narcotic and gun

offenses. Approximately one month later, defendant was located and placed under arrest. On

June 8, 2009, the state filed a criminal information charging defendant and Washington each

with seven criminal counts. 6 Ms. Washington entered into a plea agreement with the state, and

defendant proceeded to trial.

       During a pretrial hearing held on October 19, 2009, it came to light that federal charges

had also been filed against defendant and that the state had extended a plea offer to him under

which, if he filed a motion with the federal government stating his intent to plead on the federal

case, the state would dismiss its case against defendant. The defendant, however, had rejected

that offer. The state also had offered to recommend a sentence of ten years, with two years to

serve, in exchange for defendant’s plea to one of the firearm charges. The defendant refused to

accept that plea offer as well.

       A seven-day jury trial commenced on October 22, 2009, which resulted in a verdict of:

(1) not guilty of possession of marijuana with the intent to deliver; (2) guilty of the lesser

included offense of marijuana possession; (3) guilty of possession of cocaine with the intent to

deliver it when being armed with or having available a .45-caliber handgun; and (4) guilty of

possession of cocaine with the intent to deliver it when being armed with or having available a

.380-caliber handgun. The defendant moved for a new trial, and the trial justice denied that

motion. On January 8, 2010, defendant was sentenced to a term of seven years to serve on


“racked a round back,” which means he ejected the round that was in the chamber and then put it
back. This process took approximately twenty seconds, and the second round then fired.
6
  The seven counts within the criminal information were: (count 1) possession with the intent to
deliver cocaine; (count 2) conspiracy to possess cocaine with the intent to deliver; (count 3)
conspiracy to possess marijuana with the intent to deliver; (count 4) unlawful possession of
marijuana with the intent to deliver; (count 5) possession of cocaine; (counts 6 and 7)
commission of a crime of violence—possession of cocaine with the intent to deliver while armed
with or having available a firearm.
                                              -3-
counts 6 and 7 (the firearm-related charges, to run concurrently with each other) and to one year

suspended, with probation, on count 5 (the marijuana possession charge, to run consecutively to

counts 6 and 7). Judgment then entered, and defendant timely appealed. 7

       Additional facts will be provided as necessary.

                                                   II

                                             Discussion

       On appeal, defendant alleges three errors committed by the trial justice: (1) the denial of

his motion for judgment of acquittal based on what defendant contends was the trial justice’s

misinterpretation of the phrase “having available any firearm,” as stated in § 11-47-3; (2) the

admission of improper impeachment evidence; and (3) the violation of his “right to decide

whether or not to proceed to trial or to plead.”

                                                   A

                          Denial of Motion for Judgment of Acquittal

       After the state rested, defendant moved for a judgment of acquittal pursuant to Rule 29 of

the Superior Court Rules of Criminal Procedure, 8 which the trial justice denied. The defendant

then presented a defense and testified before resting. On appeal, he takes issue with the trial

justice’s ruling regarding the two counts alleging possession of cocaine with the intent to deliver

“when armed with or having available any firearm.” See § 11-47-3. Specifically, defendant




7
  Although defendant prematurely filed his notice of appeal before final judgment was entered,
this Court will treat the appeal as timely filed. See State v. Cipriano, 21 A.3d 408, 419 n.10 (R.I.
2011).
8
  Rule 29(a)(1) of the Superior Court Rules of Criminal Procedure, in pertinent part, states that a
judgment of acquittal shall be entered “if the evidence is insufficient to sustain a conviction” of
one or more of the charged offenses.
                                                   -4-
renews his argument from trial that the above-quoted language, as used in § 11-47-3, 9 should be

interpreted to require that the firearms at issue be in defendant’s possession or “immediately

available,” i.e., within arm’s reach. The uncontroverted evidence, he maintains, demonstrates

that the two firearms were located in a woman’s purse, covered by clothing and other items

inside a large, plastic storage bin in a closet approximately six to eight feet from defendant’s bed.

Moreover, defendant points out that he was not present at the apartment when the guns were

discovered.

       In denying defendant’s motion, the trial justice noted that both firearms were operable,

that a clip with live cartridges and a full box of live cartridges were also found within the purse

and that crack cocaine was found within close proximity of the closet. Significantly, defendant

did not renew his motion for judgment of acquittal at the close of his own case.

       This Court previously has stated that, for us to consider an appeal of a trial justice’s

denial of a motion for judgment of acquittal pursuant to Rule 29(a), the issue must have been

properly preserved by the defendant for appellate review. State v. Tower, 984 A.2d 40, 45 (R.I.

2009). In this case, defendant moved for judgment of acquittal at the close of the state’s case;

however, he did not renew this motion at the close of his own presentation of evidence. “We

consistently have held that the failure to renew a motion for judgment of acquittal at the close of

evidence forecloses the defendant’s right to appeal the denial.” Id.; see also State v. Grullon, 117

R.I. 682, 689, 371 A.2d 265, 268-69 (1977) (“If defendant wanted to preserve this argument for

appellate review, then he would have had to either renew the motion after the presentation of all

the evidence or rest his own case at the time he made the motion[,]” and, “[t]herefore, the denial

of his motion for judgment of acquittal, being within the discretion of the trial justice, is not

9
  General Laws 1956 § 11-47-3 states, in relevant part, that “[n]o person shall commit or attempt
to commit a crime of violence when armed with or having available any firearm * * *.”
                                                -5-
reviewable in this [C]ourt.”). As such, defendant’s argument concerning the denial of his Rule

29 motion has been waived. 10

                                                B

                                Improper Impeachment Evidence

       At trial, Price’s defense to the charges of possession with the intent to distribute was that

he suffered from a drug addiction and that, therefore, the cocaine and marijuana found in his

apartment were for his personal use rather than for sale. To support this claim, defendant

testified on his own behalf and admitted, on direct examination, that he “had got caught with

drugs in the past,” “had an addiction,” and had been “placed on 18 months probation for the

crack.” Consequently, during his cross-examination, the prosecutor questioned defendant about

his criminal history:

               “[Prosecutor:] You’ve never sold marijuana?
               “[Defendant:] Have I? In the past, I did.
               “[Prosecutor:] As a matter of fact, yesterday you told the jurors --
               you talked a little bit about your criminal history. You told the
               jurors that at one point, you were placed on 18 months’[sic]
               suspended sentence and probation for possession of crack cocaine,
               right?
                      “[Defense Counsel]: Objection.
                      “[Trial Justice]: Basis?
                      “[Defense Counsel]: It was 18 months’ [sic] probation.

10
   We also note that defendant did not object to the trial justice’s jury instructions, in which he
informed the jury, inter alia:
                       “In the context of this case, the issue is the firearm or
               firearm[s’] availability for use, not whether it was actually used.
               Accordingly, the State must prove more than the defendant’s mere
               possession of a gun. The State must also prove that the gun or
               guns were operable, and that they were easily accessible or readily
               obtainable. The major concern is not whether the firearms were
               instantly available, or exclusively dedicated to the narcotics trade,
               but whether they were readily available to the defendant to arm
               himself in connection with his alleged cocaine offense.”
Moreover, defendant did not argue in his motion for a new trial that there was insufficient
evidence to support his conviction.
                                               -6-
                      “[Trial Justice]: You brought it out.
                      “[Defense Counsel]: It was 18 months --
                      “[Trial Justice]: You brought it out. You brought it out.
               “[Prosecutor:] And, Mr. Price, would you agree with me, when you
               were arrested on that charge, you were actually initially charged
               with possession with intent to deliver that crack cocaine, right?
               “[Defendant:] No. I was charged with simple possession.
               “[Prosecutor:] Initially, when you were arrested, you were charged
               with possession with intent to deliver crack cocaine?
                      “[Defense Counsel]: Objection.
               “[Prosecutor:] Right?
               “[Defendant:] I don’t know.
                      “[Trial Justice]: The answer is, ‘I don’t know.’ Let’s move
               on.”

       On appeal, defendant argues that his criminal history consists only of a single charge of

possession of cocaine, to which he pled nolo contendere and received a sentence of eighteen

months probation, with conditions of community service and substance-abuse counseling.

Therefore, according to defendant, the trial justice erred in permitting the state to impeach his

credibility by questioning him about an incorrect disposition of a prior possession charge (an

eighteen-month suspended sentence) and by asking him about a non-existent criminal charge

(possession of crack cocaine with intent to deliver) because “there was no factual basis for either

of the * * * erroneous and misleading questions posed by the prosecutor.”

       The state counters that, even if the prosecutor’s question regarding the suspended

sentence is considered error, it did not harm defendant’s case because members of the jury likely

did not understand the distinction between a suspended sentence and probation and, also,

because the trial justice provided a cautionary instruction. 11 With regard to the prosecutor’s

mention of the incorrect criminal charge, the state contends that defendant’s argument is barred

on appeal because his objection was not timely and, further, that defendant was not prejudiced by

11
   We note, however, that the trial justice did not provide such an instruction until later in the
trial when defense counsel again asked defendant about his prior conviction on redirect
examination.
                                               -7-
this line of questioning as the jury had already heard defendant’s response: “No. I was charged

with simple possession.”

       “It is well established that decisions concerning the admissibility of evidence are ‘within

the sound discretion of the trial justice, and this Court will not interfere with the trial justice’s

decision unless a clear abuse of that discretion is apparent.’” State v. Gaspar, 982 A.2d 140, 147

(R.I. 2009) (quoting State v. Mohapatra, 880 A.2d 802, 805 (R.I. 2005)).

       The defendant’s principal assertion on appeal is that “[t]he trial judge, apparently

misunderstanding both the falsity of the assumed facts in the state’s questions * * * and the

substance of the defense attorney’s objections, sat by as a spectator and permitted the

prosecutor’s egregiously inappropriate cross-examination without appropriate intervention, much

to [defendant’s] great detriment.”

       It is axiomatic that a witness’s credibility may be challenged by evidence that the witness

has been convicted of a crime, but that, generally, prior criminal conduct not amounting to a

conviction or previous criminal charges are not admissible to impeach a witness. See G.L. 1956

§ 9-17-15 (“[A] conviction or sentence for any crime or misdemeanor may be shown to affect [a

witness’s] credibility.”); Rule 609(a) of the Rhode Island Rules of Evidence (“For the purpose of

attacking the credibility of a witness, evidence that the witness has been convicted of a crime

shall be admitted if elicited from the witness or established by public record.”); Rule 404(b) of

the Rhode Island Rules of Evidence (“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.”); see also State v. Christofaro, 70 R.I. 57, 63, 37 A.2d 163, 166 (1944) (finding

reversible error where the state referred to an arrest because it “exceeded the bounds of fair

cross-examination”).



                                                -8-
       This Court has previously stated that “evidence of unrelated, prior crimes is irrelevant

and inherently prejudicial,” State v. Gallagher, 654 A.2d 1206, 1211 (R.I. 1995), and is,

therefore, “deemed inadmissible in order ‘to prevent a jury from finding a defendant guilty based

upon unrelated crimes rather than upon the evidence pertaining to the charged offense.’” Id.

(quoting State v. Cardoza, 465 A.2d 200, 202 (R.I. 1983)). We also have stated that “the

credibility of a witness may not be impeached merely by a showing of an arrest or criminal

accusation.” State v. Sepe, 122 R.I. 560, 566, 410 A.2d 127, 131 (1980). Evidence of “other

crimes” may be admissible under Rule 404(b), however, for such purposes 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.”

       We are well satisfied that the three questions at issue in this case were improper and

inappropriate for impeachment purposes.       In particular, we are troubled by the questions

concerning the nature of the offense with which defendant was previously charged. Not only did

these questions place factually incorrect information before the jury, they also impermissibly

introduced false evidence of defendant’s previous criminal conduct. The only evidence properly

admissible for the purpose of attacking defendant’s credibility under Rule 609(a) was evidence

that he had been convicted of a crime. 12

       The implication that defendant was previously charged with a crime without an

evidentiary basis for that suggestion is patently improper. See Foster v. Barbour, 613 F.2d 59, 60

(4th Cir. 1980) (“[T]he repeated assertions that [the defendant] had been convicted of other

crimes * * * when those assertions were untrue * * * destroyed the fairness of [the defendant’s]



12
   Although a criminal disposition resulting in eighteen months of probation does not qualify as a
conviction pursuant to Rule 609 of the Rhode Island Rules of Evidence, it was defendant who
initially brought this issue to the jury’s attention.
                                              -9-
trial and denied him due process of law.”); State v. Peoples, 996 A.2d 660, 665 (R.I. 2010)

(“[T]here must be a good-faith basis for asking a witness about a given set of facts at trial

because there is a danger that the jury may consider questions that are not factually based and

then deliberate on matters that are not in evidence.”).

       We also reject the state’s suggestion that, even if the trial justice did err, such error was

harmless. On the contrary, we believe that the questions as posed were significantly prejudicial

to defendant. The false information provided by the prosecutor, viz., that defendant was charged

“with possession with intent to deliver crack cocaine,” was virtually identical to the charge for

which he was standing trial, albeit without the element “when armed with or having available

any firearm.” See § 11-47-3. The fact that the party introducing this false evidence was the

state’s prosecuting authority, and presumably a repository of defendant’s criminal record, only

exacerbated the prejudice to defendant.

       At trial, defendant provided a defense to the two counts of having available a firearm

while being in possession of cocaine with intent to deliver stating that he was a user, not a dealer.

The prosecutor’s questions implied that defendant had been initially charged in a previous case

with possession of cocaine with intent to deliver. This false information could only heighten the

already serious likelihood that the jury would use this evidence for improper propensity-based

purposes.

       The state seemingly acknowledges that the questions concerning the crime with which

defendant was previously charged were without “factual basis,” but it argues that defendant was

not prejudiced thereby because the jury heard the first such question without objection. Further,

the state contends prejudice to defendant was lacking because the jury heard defendant’s

“favorable” response: “No. I was charged with simple possession.”



                                               - 10 -
       In order to adequately preserve an issue concerning the admissibility of evidence for

appellate review, a litigant must articulate a timely and specific objection at trial. State v. Crow,

871 A.2d 930, 936 (R.I. 2005) (holding that the defendant’s failure to “make a timely and

specific objection” precluded his argument on appeal). In the instant case, we are satisfied that

the issue has indeed been preserved. When prompted by the trial justice to state the basis of his

objection to the question concerning defendant’s sentence of “18 months’ [sic] suspended

sentence and probation for possession of crack cocaine,” defense counsel responded, “It was 18

months’ [sic] probation,” thus clearly objecting to the factual predicate of the question. The trial

justice apparently misapprehended the nature of the objection, stating that defendant had

“brought it out.”   The prosecutor then asked defendant whether the initial charge was for

possession with the intent to deliver crack cocaine, and defendant responded that it was for

“simple possession.” The prosecutor immediately repeated the inaccurate question, at which

point defense counsel objected; however, the trial justice did not rule on the objection before

defendant retreated from his initial response, instead saying, “I don’t know.” The trial justice

then abruptly terminated this line of questioning by stating: “The answer is, ‘I don’t know.’

Let’s move on.” Thus, defendant’s final answer to the state’s erroneous question heard by the

jury was “I don’t know.” In light of the significant likelihood of prejudice embodied in the

relatively short colloquy, we conclude that the trial justice erred by not sustaining defendant’s

objection and by not giving an immediate cautionary instruction to the jury.

       When a defendant is testifying at his trial, prosecutors and trial justices must be

scrupulous to ensure that impeachment of defendant by reference to prior convictions or past

criminal conduct is effected in a proper manner and based on true facts. In Christofaro, 70 R.I.

at 63, 37 A.2d at 166, this Court recognized that improperly placing evidence before the jury of



                                               - 11 -
the defendant’s prior arrests or charges under the guise of impeachment could not be considered

harmless error because “the presumption of [the] defendant’s innocence should not be adversely

affected by the injection in evidence of extraneous matter which has no probative value on the

real issue in the case.” Here, the jury watched as the prosecutor—the attorney for the state—

dismissively ignored defendant’s denial to her initial question and asked the question again.

Even after defense counsel objected but before the trial justice ruled on the objection, the

prosecutor pressed further, leading and confusing defendant as she implored him with the terse

question: “Right?” to answer differently than he just had answered. The defendant’s confusion is

evident from his subsequent answer of “I don’t know.” This sequence of questioning raises a

serious concern that defendant’s initial denial of that charge was undermined in the jury’s eyes

and did nothing to cure the error that occurred when the trial justice allowed defendant’s final

answer to stand over defense counsel’s objection. Accordingly, we vacate the judgment of

conviction. 13

                                                  C

                       Defendant’s Right to Make an Informed Decision

        The defendant’s third contention of error is that he was incorrectly informed by the trial

justice that, if he rejected the state’s plea offer and proceeded to trial, he would be tried on only a

single count—count 6, which alleged possession of cocaine with intent to deliver when armed

with or having available a firearm. This misinformation, he argues, violated his “constitutional

right to make an informed decision whether or not to proceed to trial or plead nolo contendere.”




13
  We express no opinion as to whether the first question regarding defendant being placed on an
eighteen-month suspended sentence alone would have warranted the judgment of conviction
being vacated.
                                                - 12 -
He urges this Court to vacate his conviction on all counts and grant him a new trial on count 6

alone.

         The colloquy at issue occurred at a hearing on October 19, 2009—two days before a jury

trial was scheduled to commence. The transcript of the hearing discloses that defense counsel

advised the trial justice that the state had offered to recommend a sentence of ten years

imprisonment with two years to serve if defendant pled to one of the gun counts; all other counts

would then be dismissed. The trial justice thereupon confirmed with the prosecutor that the state

had agreed to accept a plea to an amended count 6 in exchange for dismissing all other counts.

The trial justice then addressed defendant directly, stating:

                “If you do not wish to take advantage of [the offer presented by the
                state], that, instead, it is your desire to go to trial on count 6 as
                presently alleged; namely, having committed a crime of violence,
                which under the statute includes possession with intent to deliver
                cocaine, while armed with or having available a firearm, that’s the
                single charge that the State intends to pursue at trial.”

         At the next hearing, on October 21, 2009, when the case was reached for trial, the trial

justice said:

                         “The first matter I want to take up relates to the various
                charges that are in the information. The State has decided to go
                forward on some of them and to dismiss others, or at least not
                proceed on them because of a matter that’s pending in Federal
                Court. We had a conference with counsel after our last session, in
                chambers, and, at that time, [the prosecutor] did not have the file in
                its entirety with her. We went over some of the counts, and I think
                we identified -- and you correct me if I’m wrong, counsel -- that
                the State would proceed on counts 3, 4, 6 and 7 at that trial.”

The prosecutor confirmed the trial justice’s understanding, and defendant did not object or

attempt to correct the trial justice; indeed, both defendant and defense counsel remained silent.

The trial justice offered no further commentary about the plea negotiations, but, rather,

immediately entertained several pretrial motions.

                                                - 13 -
       We also note that defendant did not object when, during the voir dire, the trial justice and

prosecutor explained to prospective jurors on several occasions that defendant was being charged

with three counts, two of which involved the possession of firearms. Moreover, defense counsel

even informed the jury during the voir dire that it would have to find beyond a reasonable doubt

that defendant “possessed cocaine with the intent to distribute that substance, while at the same

time * * * having possessed a firearm” for each of “counts 6 and 7.” It was not until defendant

moved for a new trial after the jury’s verdict that defendant posited that “it was his impression

that he was going forward on one of the * * * gun charges, and not both of them,” explaining that

his belief was that, “if he were to plea to one of the gun charges, the other one would be

dismissed.”

       On appeal, defendant argues that, because “[a] defendant has a constitutional right to a

trial,” he “concomitantly [has] a right to decide whether or not to proceed to trial or to plead.”

He further cites to Rule 11 of the Superior Court Rules of Criminal Procedure to support his

contention that “the choice between pleading guilty and proceeding to trial must be an informed

one, and an accurately informed one at that.”

       Rule 11 states:

               “A defendant may plead not guilty, guilty or, with the consent of
               the court, nolo contendere. The court may refuse to accept a plea
               of guilty, and shall not accept such plea or a plea of nolo
               contendere without first addressing the defendant personally and
               determining that the plea is made voluntarily with understanding of
               the nature of the charge and the consequences of the plea. If a
               defendant refuses to plead or if the court refuses to accept a plea of
               guilty or if a defendant corporation fails to appear, the court shall
               enter a plea of not guilty. The court shall not enter a judgment
               upon a plea of guilty or nolo contendere unless it is satisfied that
               there is a factual basis for the plea.”




                                                - 14 -
The reporter’s notes to Rule 11 make clear that the rule requires “that the court make inquiry of

the defendant personally to determine that a plea of guilty or nolo contendere is made voluntarily

and with knowledge,” but this rule cannot be read to require a trial justice to make this same

inquiry of a defendant who is rejecting a plea offer. Although a defendant’s right to proceed to

trial is constitutionally protected, this does not concomitantly confer upon a defendant the right

to enter into a plea agreement or require that a trial justice ensure that a defendant voluntarily

and with knowledge rejected a plea offer when he instead decides to proceed to trial.

       The trial justice was very clear as to which counts the state would prosecute at trial and

no objection was made when the trial justice clarified those counts with the prosecutor. Even

within defendant’s motion for a new trial, the argument proffered was that it was defendant’s

belief that the state would only be “going forward on one of the * * * gun charges, and not both

of them” because “that was part of the plea bargain[—]that if he were to plead to one of the gun

charges, the other one would be dismissed.” The defendant rejected the plea bargain offered by

the state, however.

       We are satisfied that the defendant was fully aware of the counts for which he was being

tried and that the argument he now presses on appeal was raised for the first time only after the

jury had rendered its verdict. Accordingly, we discern no reason to restrict his retrial on remand

to count 6 only.

                                                III

                                           Conclusion

       For the reasons set forth in this opinion, we conclude that the trial justice erred and that

this error was not harmless. Accordingly, we vacate the judgment of the Superior Court and

remand the papers in this case to the Superior Court for a new trial.



                                               - 15 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Gerald D. Price.

CASE NO:              No. 2010-128-C.A.
                      (P2/09-1761AG)

COURT:                Supreme Court

DATE OPINION FILED: June 18, 2013

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

                      For State: Aaron L. Weisman
                                 Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
