                                                   Supreme Court

                                                   No. 2015-160-C.A.
                                                   (P1/13-725BG)
      State                      :

        v.                       :

Quandell Husband.                :




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-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2015-160-C.A.
                                                                    (P1/13-725BG)
                      State                      :

                       v.                        :

               Quandell Husband.                 :


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

                                          OPINION

       Chief Justice Suttell, for the Court. On July 30, 2012, three persons were brutally

murdered in the Arbor Glen housing complex in Providence during an attempted robbery that

took a tragic turn. Michael Martin, the primary target of the robbery, was shot nine times in the

kitchen of his apartment. Damien Colon was shot once in the chest, and Shameeka Barros, who

had been sleeping on a couch in the living room, was shot several times as the intruders fled the

apartment.

       Quandell Husband (defendant or Husband), then sixteen years old, was initially identified

as the sole shooter. Following a waiver hearing in the Family Court, a Family Court justice

waived that court’s jurisdiction over the juvenile. Subsequently, new information came to light

and the state’s theory of the case indicated that Husband was not the shooter.            He was

nevertheless indicted, tried, and convicted of three counts of first-degree murder, three counts of

discharging a firearm while committing a crime of violence, and one count of conspiracy to

commit robbery. For the reasons set forth in this opinion, we vacate the judgment of conviction.




                                               -1-
                                                 I

                                        Facts and Travel

       The state filed a petition of delinquency in Family Court against Husband, charging him

with the following offenses: three counts of first-degree murder for the murders of Martin, Barros,

and Colon; three counts of using a firearm during a crime of violence; and one count of conspiracy

to commit robbery. The state also moved to waive the Family Court’s jurisdiction. On September

28, 2012, the Family Court hearing justice found probable cause to believe that Husband had

committed the offenses charged; and, on October 19, 2012, the Family Court waived its jurisdiction

over the juvenile based on the heinous and premeditated nature of the offenses. Husband was

subsequently indicted by a Providence County grand jury on the same charges that were the subject

of the Family Court delinquency petition.

       A jury trial commenced on July 9, 2014. The state’s narrative was primarily established by

Donovann Hall.1 Hall testified that he knew one of the victims, Martin, because Hall bought a

“quarter” (seven grams) of marijuana from Martin every day. Martin lived with Barros and her

two children. Hall occasionally hung out, smoked, and played video games with Martin and

Colon at Martin’s apartment. While at Martin’s apartment, Hall noticed that Martin had a lot of

money and marijuana, and he observed where Martin kept the money and marijuana. In July

2012, Hall formed the idea to rob Martin. Hall brought the idea to Tim DeBritto and, in the

presence of Russell Burrell,2 told DeBritto that he had a “lick” in mind and, according to


1
  Hall entered into a cooperation agreement with the state after his arrest on February 23, 2013,
for his alleged involvement in the crimes at issue. While in police custody, Hall initially told
police that he knew nothing about the murders. He then implicated a person named CT from
Connecticut; an Arbor Glen gang called Young Gunners; Tim DeBritto; defendant; and, finally,
Russell Burrell as the shooter.
2
  Burrell was arrested on August 9, 2013. Burrell told police that he knew nothing about the
crimes; then Burrell told police that it was Hall who shot the victims. The police then mentioned
defendant to Burrell. At first, Burrell insisted that defendant was not involved. However, after

                                               -2-
Burrell’s testimony, that they could get a couple of pounds of marijuana and maybe “a couple

thousand” dollars.3 Two days later, on July 30, 2012, at DeBritto’s house, Hall asked DeBritto if

he was “down to doing [the robbery]” and DeBritto responded that he was. DeBritto also told

Burrell to do the robbery with Hall. Burrell testified that DeBritto was his cousin and a very

close friend. The three of them then went outside, Burrell leading the way, with a black, 9mm

firearm in his hand. According to Burrell, DeBritto stayed behind. Hall identified the murder

weapon as a black, Glock, 9mm handgun, with a red “light under the gun.”

       According to Hall and Burrell, defendant showed up at DeBritto’s house just as they were

leaving to rob Martin. Hall testified that he was surprised that Burrell invited defendant to

participate because Hall had first met defendant when defendant robbed him for marijuana at

gunpoint a couple of months earlier. In an earlier police interview, Burrell said that he told

defendant about the robbery and that, at first, defendant did not want to participate but that he

eventually “came around.” At trial, however, Burrell explained that everything he had said about

defendant during the interview was not true, and he testified that defendant was “never” at

Martin’s apartment.    Dakota Snell, Burrell’s acquaintance, also testified that she was at

DeBritto’s house that evening and saw DeBritto, Burrell, and Hall wearing black hoodies, but

that she did not see defendant there. According to Hall and Burrell, when they arrived at

Martin’s apartment, Hall rang the doorbell or knocked on the window, and told Martin that they

wanted to buy some “weed.” Martin invited them to enter. Inside, Colon was at the kitchen

table; and Barros was lying down, asleep, on the living room couch. Burrell suddenly pulled out

the gun and said, “You know what time it is” and asked, “where’s the shit?” According to


officers told Burrell that defendant had named him as the shooter, Burrell said that defendant was
the shooter and that the gun belonged to defendant. Burrell pled guilty to all charges against him
on November 25, 2013, and he testified in the instant case under subpoena.
3
  Hall testified that a “lick” means “[t]o rob somebody.”

                                              -3-
Burrell, Martin pointed and said it was in the drawer. Hall and Burrell testified that, as Hall

looked through the drawer, Burrell shot Martin.4         Hall also testified that, while this was

happening, defendant was looking in a bedroom. Burrell then shot Colon in the chest and shot

Barros several times. According to Burrell, Hall said, “Gotta kill her”, and Burrell gave Hall the

gun and he shot her a final time. Hall testified, however, that he ran out of the apartment as soon

as the first shot was fired. Hall testified that he stated, “it wasn’t supposed to happen like that”

and that defendant responded, “Shit happens.”

       Hall and Burrell both testified that Hall then obtained a ride to the home of Ivy

Copeland.5 Hall testified that he told Copeland that the robbery he had planned “didn’t go the

right way.” Copeland testified that Hall confided the details of the robbery to her, implicating

himself and Burrell, and explained that DeBritto was the shooter. Copeland said that Hall never

mentioned defendant’s participation. Seventeen shell casings were recovered from the crime

scene, all of which were 9 millimeter.

       Two witnesses also testified that they saw defendant going to 151 General Street, the

crime scene location, and leaving that location after shots were fired. Jose Hernandez testified

that he knew defendant from playing basketball and from attending programs at the Wanskuck

Boys and Girls Club with him. Hernandez testified that, on the night of July 30, 2012, he heard

eight or nine gunshots and saw defendant and Burrell put their hoods on and start running across

General Street. He also testified that, when the police originally interviewed him, he said he was

not sure if he had seen defendant because he was afraid of defendant. Emily Molina also

testified that, on that evening, she saw Burrell and defendant walking nearby from outside her



4
  Christine Stanley, M.D., the Chief Medical Examiner for Rhode Island, testified that Martin
was shot nine times.
5
  According to Burrell, Copeland was Hall’s girlfriend.

                                                -4-
window moments before she heard gunshots and that they were both wearing black hoodies. She

further testified that she looked out her front door and saw Burrell and defendant walking in the

opposite direction from which she had seen them walking before the gunfire.

       In addition, Lewis Smith, defendant’s grandfather, testified that he was in his living room

watching wrestling the evening of the murders. Smith claimed that, between 9 p.m. and 11 p.m.,

defendant was at home and stayed mostly in his bedroom.

       Johnathan Anderson testified that, in June 2012, Burrell and defendant went to

Anderson’s house and that defendant wanted to do pushups. Anderson recalled that defendant

asked him to hold a black 9mm handgun he was carrying so he could do the pushups. At a

police interview, Burrell corroborated that he and defendant had gone to Anderson’s house and

identified that particular gun as the murder weapon.

       Finally, a fellow inmate of defendant, Ricardo Vasquez, told police that, while in prison,

defendant told him that he and Burrell had been “put on” to a robbery for marijuana and money,

that they had been given a gun, and that Burrell shot two men and a woman. He also explained

that Burrell threw defendant “under the bus” and had “pretty much told on him,” even though

police had no other evidence against him.

       The jury convicted defendant on all seven charges, and the trial justice denied defendant’s

motion for a new trial. On December 11, 2014, the Superior Court sentenced defendant to three

concurrent life sentences for first-degree murder, three concurrent life sentences for discharging a

firearm during a crime of violence (to be served consecutively to the murder sentences), and ten

years of incarceration for conspiracy (to be served consecutively to the firearm sentences). The

defendant timely appealed.




                                               -5-
                                                II

                                    Waiver of Jurisdiction

                                                A

                                      Meaningful Review

       On appeal, defendant contends that the Family Court violated his due process rights by

waiving jurisdiction without a meaningful review. Specifically, defendant argues that the Family

Court erred (1) “by focusing on the nature of the charges rather than the nature of [defendant]’s

conduct,” (2) by “wrongfully refus[ing] to vacate the waiver even when the Attorney General

abandoned its claim that [defendant] was the shooter,” and (3) “by failing to consider

[defendant]’s background and potential for rehabilitation.”

                                                1

                                      Standard of Review

       “This Court employs ‘a de novo standard [w]hen reviewing an appeal based on an alleged

error of law.’” In re Estate of Griggs, 63 A.3d 867, 869 (R.I. 2013) (quoting Warwick Sewer

Authority v. Carlone, 45 A.3d 493, 498 (R.I. 2012)).

                                                2

                                           Discussion

       On the date of the murders, July 30, 2012, defendant was sixteen years of age, imbuing

the Family Court with jurisdiction to adjudicate the allegations against him. See State v. Day,

911 A.2d 1042, 1045-46 (R.I. 2006). On September 14, 2012, the Family Court held a hearing

pursuant to G.L. 1956 §§ 14-1-7 and 14-1-7.1 to determine whether the Family Court should

relinquish its jurisdiction over defendant. The state presented two witnesses, Providence Police

Det. Robert Washburn and juvenile probation officer Bridget Sarlo, and it introduced recorded



                                              -6-
statements of defendant and various witnesses into evidence. The defendant presented character

and alibi witnesses. On September 28, 2012, the Family Court found that probable cause existed

to waive jurisdiction over defendant, stating:

               “[The defendant] was identified by two witnesses who placed him
               at the scene immediately before and seen running from the scene
               with * * * Burrell immediately after the shots were heard. * * *
               Burrell, placed himself and [defendant] at the scene[,] stating it
               was their plan to commit a robbery with a firearm that * * * Burrell
               was aware [defendant] was carrying. That the robbery went bad,
               so-called, and [defendant] shot * * * Martin, * * * Colon, and * * *
               Barros, and that he and * * * Burrell ran from the apartment
               immediately after the shootings, that [defendant] gave * * * Burrell
               the gun to hold and that ammunition matching the murder weapon
               was found at the home of * * * Burrell pursuant to a search
               warrant.”

       On October 19, 2012, the Family Court declined to make a finding concerning

defendant’s history and treatment and, instead, concluded:

                  “As to the premeditated aspect of the offenses. The [c]ourt
               indicated one of the offenses is conspiracy to commit the crime of
               robbery and this [c]ourt finds that the charge was premeditated in
               nature, based upon the full and thorough findings that this [c]ourt
               made at the Probable Cause aspect of this case.
                  “Further, as to the other offenses, the murders of * * * Colon,
               * * * Martin, * * * Barros and the use of a firearm to commit those
               murders, this [c]ourt finds based upon the findings of fact this
               [c]ourt made earlier in the Probable Cause aspect, that these are
               heinous in nature. Triple homicides, if they’re not heinous I don’t
               know what else is.
                  “Therefore, the statute does not require this [c]ourt to go into
               testimony or hearing regarding the past history of offenses or the
               history of treatment * * *.
                  “Accordingly, this [c]ourt finds that the interest of society or the
               protection of the public necessitates the waiver of jurisdiction of
               this [c]ourt over * * * [defendant] * * *.”

       Subsequently, defendant petitioned the Family Court for relief or, in the alternative, to

reopen the waiver hearing in light of the state’s new theory that Burrell was the shooter. On

January 14, 2014, the Family Court denied defendant’s petitions, stating: “Jurisdiction of


                                                 -7-
[defendant] and the offenses lie squarely in Superior Court.          There is no Family Court

jurisdiction. There is no Family Court case pending. This [c]ourt lacks the power, authority and

jurisdiction to entertain * * * [d]efendant’s request.” The Family Court further explained that the

only relief from waiver is in § 14-1-7.1(c), which provides that, “[i]n the event that the child is

acquitted of the offense for which the waiver has been sought, the waiver shall be vacated.” The

Family Court also noted that, had it considered the new evidence presented, the same result

would have been reached due to the principles relative to the vicarious liability of coconspirators.

Two weeks later, the Family Court similarly denied a second petition by defendant to reopen the

waiver hearing.

       First, we address defendant’s assertion that the Family Court erred by focusing on the

nature of the charges against him rather than on his conduct. Section 14-1-7.1 expresses that,

before waiving jurisdiction over a juvenile, the Family Court must find probable cause to believe

that a juvenile has committed the offense charged and then must examine the facts presented to

determine if “the interests of society or the protection of the public necessitate the waiver” by

considering either “the child’s past history of offenses, [and] history of treatment, or the heinous

or premeditated nature of the offense[s.]” See Day, 911 A.2d at 1050.

       The defendant argues that, after finding probable cause, the Family Court failed to

address his conduct as required by prong two. The defendant contends that, under Day, 911

A.2d at 1053, the term “offense” as employed in § 14-1-7.1 means “the actions of the accused

child.” Here, the Family Court addressed defendant’s conduct in its probable-cause analysis,

finding that defendant rang the doorbell, owned the murder weapon, pulled out the gun, and shot

the victims. The Family Court based its prong-two determination on the state’s theory that

defendant had, in fact, committed the homicides, himself. In reaching its conclusion, the Family



                                               -8-
Court unsurprisingly characterized triple homicide as “heinous in nature.” The defendant relies

on Day in support of his argument that the Family Court must determine that his actions, rather

than the crime, itself, are heinous. See Day, 911 A.2d at 1053 (explaining that the Family Court

is limited to considering the actions of the juvenile and not the crimes charged and interpreting

“offense” to mean “actions”).

        In its probable-cause analysis, the Family Court credited the statement of Burrell that

defendant shot Martin and Colon and then shot Barros as “[s]he woke up screaming” on the

couch. Clearly, both the offenses and defendant’s actions therein, as presented in the evidence

before the Family Court at the waiver hearing, were heinous in nature. Moreover, the Family

Court correctly noted that the offense of conspiracy to commit robbery is by its very nature

premeditated. Accordingly, we are of the opinion that the Family Court’s finding that “the

interest of society or the protection of the public necessitate[d] the waiver of jurisdiction” over

defendant is well supported by the evidence adduced at the waiver hearing.

        We next address defendant’s assertion that the Family Court erred by refusing to vacate

the waiver of Family Court jurisdiction. Section 14-1-7.1(c) provides, in relevant part, that “[a]

waiver of jurisdiction over a child * * * shall constitute a waiver of jurisdiction over that child

for the offense upon which the motion is based as well as for all pending and subsequent

offenses of whatever nature”; only “[i]n the event that the child is acquitted of the offense for

which the waiver has been sought” shall the waiver be vacated. In Day, 911 A.2d at 1053, we

explained that “once the Family Court orders a waiver of its personal jurisdiction over a child,

jurisdiction is vested completely in the adult court.” In the case at bar, the Family Court properly

refused defendant’s repeated attempts to reopen the waiver hearing and correctly ruled that it had

no authority to entertain his petition.



                                               -9-
          Finally, we address defendant’s assertion that the Family Court erred by failing to

consider his “background and potential for rehabilitation.” The defendant argues that the Family

Court’s consideration of only one of the six factors relevant to a prong-two waiver determination

under Rule 12(d) of the Family Court Rules of Juvenile Proceedings was insufficient. By its

express language, however, Rule 12(c) sets forth two standards to provide guidance to the court

in determining whether to waive jurisdiction, and Rule 12(d) delineates six relevant “[f]actors.”6

We do not read Rule 12, however, as mandating the application of these various factors in a case




6
    Rule 12(d) of the Family Court Rules of Juvenile Proceedings articulates:
                     “Factors in Determining Waiver. For purposes of applying the
                 standards set forth in subdivision (c) of this Rule the following
                 factors are relevant:
                     “(1) The child’s prior delinquent and wayward acts and the
                 nature of the child’s conduct therein;
                     “(2) The nature of the child’s alleged conduct in connection
                 with the current charge, to the extent that (a) such allegation of the
                 child’s conduct would form a pattern of anti-social conduct that
                 seems beyond the rehabilitative reach of facilities available to the
                 [F]amily [C]ourt, or (b) such alleged conduct indicates that the
                 child is dangerous to the public (dangerous to be measured in light
                 of circumstances surrounding the alleged conduct, such as
                 aggressiveness and the nature of the reasonably foreseeable
                 consequences);
                     “(3) The child’s age, to the extent that a length of time beyond
                 the limits of [F]amily [C]ourt jurisdiction is required for
                 reasonable prospects of the child’s rehabilitation;
                     “(4) The child’s attitude, to the extent that it bears on the child’s
                 willingness to cooperate with [F]amily [C]ourt rehabilitative
                 efforts;
                     “(5) The child’s family environment (including the degree of
                 care, supervision and support it provides the child), to the extent
                 that family support is essential to the [F]amily [C]ourt’s
                 rehabilitative program;
                     “(6) The child’s prior contacts with rehabilitative facilities
                 available to the [F]amily [C]ourt, in the community and in juvenile
                 institutions, in terms of the extent and apparent rehabilitative
                 impact of such contacts.”

                                                   - 10 -
in which probable cause had been found that the child had single-handedly committed three

murders. The Family Court, therefore, did not err in its analysis.

                                                 B

                                          Miranda Rights

         The defendant also argues that the Family Court erred by considering evidence that was

gathered in violation of his Miranda rights. Specifically, defendant argues that his statements to

Det. Washburn were “involuntary because Det. Washburn failed to afford [defendant’s mother]

an opportunity to invoke [defendant]’s rights on his behalf, despite her presence in the station

during the interrogation.”

         The defendant did not move to suppress these statements during the Family Court waiver

hearing.7 After five days of hearings at the Family Court, during closing argument, defendant’s

counsel argued that the audio recordings of the interrogation violated defendant’s due-process

rights because he was “never made aware of [his] rights or acknowledged it on the audio disc.”

As a result, he argued, the recordings should be “weighed accordingly.” Although the Family

Court justice said that she “listened to every CD recording in its entirety and took notes on what

was heard,” her comprehensive bench decision does not present any indication that she relied on

defendant’s statements to the police in rendering her decision. She thus gave the statements little

weight, if any at all. We are of the opinion, therefore, that defendant’s argument that the Family

Court violated his due-process rights by considering his statements is of no merit.




7
    An audio recording of defendant’s interrogation was introduced into evidence.

                                               - 11 -
                                              III

                           Evidence of Other Bad Acts or Crimes

       The defendant also avers that the Superior Court erred in admitting a substantial amount

of evidence concerning other crimes in the community, defendant’s past possession of a gun, and

the suggestion that he committed past robberies. Specifically, defendant takes issue with the

admission of testimony of defendant’s grandfather regarding his home confinement, “evidence

regarding the shooting of Gary Ellerbe, [defendant]’s alleged possession of a gun at * * *

Anderson’s house, and * * * Burrell’s description of how ‘we do a robbery.’”

                                               A

                                     Standard of Review

       “[I]t is well settled that we review a trial justice’s decision admitting or excluding

evidence under an abuse of discretion standard.” State v. Pona, 66 A.3d 454, 465 (R.I. 2013)

(quoting State v. Brown, 42 A.3d 1239, 1242 (R.I. 2012)).

                                               B

                                          Discussion

       Rule 401 of the Rhode Island Rules of Evidence defines “relevant evidence” as “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” A determination of relevance “may have an important bearing on the rights of the

accused because irrelevant evidence may also be prejudicial and its introduction at trial may

constitute reversible error.” State v. Burke, 427 A.2d 1302, 1304 (R.I. 1981). In addition, Rule

403 of the Rhode Island Rules of Evidence provides: “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,



                                             - 12 -
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” This Court has repeatedly warned that

“the discretion to exclude evidence under Rule 403 must be exercised sparingly.” State v.

Shelton, 990 A.2d 191, 202 (R.I. 2010) (quoting State v. Hak, 963 A.2d 921, 928 (R.I. 2009)).

Accordingly, “[i]t is only evidence that is marginally relevant and enormously prejudicial that

must be excluded.” Hak, 963 A.2d at 928 (quoting State v. Patel, 949 A.2d 401, 412-13 (R.I.

2008)).

          Furthermore, “Rule 404(b) [of the Rhode Island Rules of Evidence] ‘prohibits the use of

evidence of prior bad acts, wrongs, or crimes to show the defendant’s propensity to commit the

crime with which he [or she] is currently charged.’” Pona, 66 A.3d at 465 (quoting State v.

Dubois, 36 A.3d 191, 199 (R.I. 2012)). Other conduct may be admitted into evidence “if it is

interwoven with the current charge in a way that tends to establish guilty knowledge, intent,

motive, design, plan, scheme, system, or the like.” Id. at 466 (quoting Dubois, 36 A.3d at 199).

Finally, Rule 403 provides that even relevant “evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice * * *.”

                                                 1

                          Defendant’s Alleged Possession of a Firearm

          First, we address the evidence regarding defendant’s alleged possession of a firearm at

Anderson’s house in June 2012. The defendant argues that Anderson’s testimony should not

have been admitted because it is not probative of whether defendant was present at the crime

scene on July 30, 2012. The defendant further argues that this testimony “suggests that he is

* * * bad [and] dangerous * * *.” The defendant also argues that corroborative testimony given

by Burrell should have been excluded because it implied past bad conduct by defendant.



                                               - 13 -
       As previously noted, Anderson testified that approximately a month before the murders,

defendant and Burrell came to his house and that defendant asked Anderson to hold a black,

9mm handgun defendant was carrying so that he could do pushups. Burrell corroborated this

story at a police interview on March 31, 2014, and identified the 9mm handgun as the murder

weapon. At a pretrial hearing on the state’s motion in limine, the Superior Court concluded that

Anderson’s testimony was relevant because it showed that, “a month or so” before the murders,

defendant was in possession of the murder weapon. The defendant did not object to Anderson’s

testimony at trial; therefore, the issue has not been preserved for appellate review. See State v.

Saluter, 715 A.2d 1250, 1258 (R.I. 1998) (“this [C]ourt will not consider an issue raised for the

first time on appeal that was not properly presented before the trial court.” (quoting State v.

Gatone, 698 A.2d 230, 242 (R.I. 1997))). Even if the issue had been properly preserved,

however, we are satisfied that defendant’s argument lacks merit. As this issue may again arise if

defendant is retried, we address it briefly.

       In State v. Rios, 996 A.2d 635, 639 (R.I. 2010), similar evidence that a defendant on trial

for murder frequently carried a gun was determined to be “relevant both to identify him as the

murderer and to establish that he had the opportunity to commit the crime.” Here, defendant was

not alleged to have carried the weapon during the crimes or to have been the actual shooter;

rather, the evidence demonstrates that defendant had access to and was carrying the murder

weapon approximately one month before the crimes. This evidence was relevant because it

suggests a connection between defendant and the crime scene. The defendant was tried on the

theory that he was vicariously liable as an aider and abettor of the robbery and murders. His

possession of the very same murder weapon a little more than a month before the commission of




                                               - 14 -
the crimes is probative of defendant’s participation in the conspiracy and murders. We are of the

opinion, therefore, that the trial justice did not abuse his discretion in allowing this evidence.

                                                         2

                                           The Ellerbe Shooting

       The state also moved in limine to admit evidence concerning the shooting of Gary Ellerbe

by DeBritto with the same 9mm handgun that was used to murder Martin, Colon, and Barros.

The state’s argument was that the evidence would establish that the murder weapon “was a so-

called ‘community gun’ * * * used variously by * * * DeBritto, * * * Burrell, * * * [and

defendant].” The state sought to produce as witnesses Ellerbe, a Providence police officer who

had recovered the shell casings from the scene of the Ellerbe shooting, and a ballistics expert

who had compared those casings with the casings recovered at the scene of the triple homicide.

       The defendant objected, arguing that such evidence was highly prejudicial with “very”

limited probative value and that it would be “somewhat confusing to members of the jury.” The

trial justice ruled that he would permit the evidence, but that he did not intend to retry the Ellerbe

shooting.   He indicated that the evidence “corroborates the fact that this was a so-called

community gun * * * [and] [i]t shows a close connection between Burrell and DeBritto in the

months and days leading up to the armed robbery with the same weapon.”

       At trial, defendant renewed his objection to evidence regarding the Ellerbe shooting, to

no avail. Ellerbe testified that, on May 20, 2012, while driving in the vicinity of the Arbor Glen

housing complex, he signaled another automobile to stop. That automobile was occupied by

DeBritto, Burrell, and two other individuals.        Ellerbe said that he got out of his car and

approached DeBritto, who was sitting in the front passenger seat, because he “wanted to figure

out what was going on between [DeBritto] and his girlfriend and [Ellerbe’s] girlfriend, because



                                                - 15 -
they w[ere] fighting.” Ellerbe further testified that, as he attempted to do so, DeBritto shot him

in the back, told him to run, and kept shooting. He said that he was shot a total of nine times in

his back, arm, leg, and down his side. A photograph of Ellerbe, depicting the bullet holes down

his side, was introduced as a full exhibit without objection.

       Providence Police Det. Douglas Allin testified that, on May 20, 2012, he responded to 85

General Street in the area of Arbor Glen. At that location, he discovered a red Volvo (later

determined to have been driven by Ellerbe) with apparent gunshot damage. He also recovered

six 9mm shell casings from the street.

       Finally, Neil Clapperton of the Rhode Island Crime Laboratory was qualified as an expert

in firearms and ballistics examination. He testified that the six shell casings recovered from 85

General Street were all discharged from the same firearm. He also compared these shell casings

with the seventeen shell casings recovered from 151 General Street and determined that they all

were fired from the same weapon, which he concluded was the firearm sent to the crime lab by

the Providence Police in 2013—“[a] Glock model 17, caliber [9mm].”

       Although the evidence concerning the shooting of Ellerbe was styled by the state as Rule

404(b) evidence, there was absolutely no testimony linking defendant to the incident in any way.

Clearly, he was not the shooter; Ellerbe adamantly identified DeBritto as the person who shot

him in the back. Nor was there any evidence suggesting that defendant was present at the scene

or even aware of the shooting. At the pretrial hearing, the trial justice stated that the evidence:

               “certainly shows that DeBritto knew and trusted Burrell, to the
               point that he had no qualms about using that firearm to shoot
               someone in Burrell’s presence; that Burrell was not simply some
               strange third party, but someone who seemingly enjoyed, or at
               least easily tolerated DeBritto’s use of the firearm.
                   “It shows a close connection between Burrell and DeBritto in
               the months and days leading up to the armed robbery with the
               same weapon.”


                                                - 16 -
Such evidence, however, does not link defendant to this criminal cabal.

       We think it significant to note that, when the state filed its motion in limine on February

17, 2014, defendant and DeBritto were co-defendants, the latter subsequently entering a plea. At

the time, the state was seeking to admit the evidence of the Ellerbe shooting only with respect to

DeBritto.

       Based upon our review of the record, we are convinced that the testimony concerning the

Ellerbe shooting had slight probative value, if any at all, with respect to defendant. To the extent

that it may have shown a relationship between defendant and DeBritto and Burrell, through their

shared possession of the 9mm Glock handgun, it was cumulative. See State v. Lynch, 854 A.2d

1022, 1032 (R.I. 2004) (“‘[c]umulative evidence’ means [evidence] ‘tending to prove the same

point to which other evidence has been offered.’” (quoting State v. Coleman, 478 N.W.2d 349,

358 (Neb. 1992))).

       Moreover, at trial, defendant’s relationship with the other coconspirators was not

disputed. Burrell testified that he and defendant had been friends for several years; that they saw

each other “[a] few times” a week; that Burrell has two children with defendant’s sister; that he

lived with defendant’s mother for a time; that he and defendant went to school together and rode

the bus together; and that they were “good friends.” Additionally, Burrell testified that he,

defendant, and DeBritto shared possession of the handgun. Further, there is no dispute that

Burrell was with defendant when Anderson saw defendant carrying the 9mm Glock handgun.

       On the other hand, this testimony is highly likely to have had an unduly prejudicial

impact on the jury. Ellerbe’s testimony is certainly the type that would be likely to rouse the

emotions of a jury. He testified that he is a father of six and that he was shot in the back nine

times. A photograph showing his injuries was introduced as a full exhibit. Moreover, the


                                               - 17 -
evidence may well have been confusing to the jury. The fact that evidence was elicited at trial

that defendant was seen in possession of the same firearm may have led the jurors to believe that

he was somehow implicated in the Ellerbe shooting. We also observe that the evidence of a

seemingly senseless shooting in the same neighborhood in which the murders would soon take

place could not help but cast a pall in the eyes of the jury with respect to the frequency of

violence in the community.

        We are of the opinion, therefore, that the trial justice abused his discretion by not

excluding the evidence of the Ellerbe shooting under a Rule 403 analysis. This is indeed a

situation where the evidence was marginally relevant and enormously prejudicial. We are also

unable to conclude that the admission of the evidence was harmless beyond a reasonable doubt.8

                                               IV

                                          Conclusion

        For the reasons stated herein, we vacate the judgment of the Superior Court and remand

this case for a new trial.




8
  Because we vacate defendant’s judgment of conviction, we need not address the remaining
issues raised by defendant on appeal.

                                             - 18 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Quandell Husband.
                                     No. 2015-160-C.A.
Case Number
                                     (P1/13-725BG)
Date Opinion Filed                   June 21, 2017
                                     Suttell, C.J., Goldberg, Robinson, Flaherty, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Robert D. Krause
                                     For State:

                                     Lauren S. Zurier
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Jeffrey Biolchini, Esq.




SU-CMS-02A (revised June 2016)
