                                                   Supreme Court

                                                   No. 2015-92-C.A.
                                                   (P2/13-3694AG)

      State                      :

        v.                       :

Christian Rosado.                :




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notify the Opinion Analyst, Supreme Court of Rhode Island, 250
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                                                                    Supreme Court

                                                                    No. 2015-92-C.A.
                                                                    (P2/13-3694AG)

                      State                      :

                       v.                        :

               Christian Rosado.                 :


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

                                         OPINION

       Chief Justice Suttell, for the Court. The defendant, Christian Rosado, appeals from a

judgment of conviction on two separate counts of assault with a dangerous weapon, to wit, a

firearm. The defendant maintains that the hearing justice erred in denying his motion for a

mistrial based on what he perceived to have been the state’s discovery violation. This case came

before the Supreme Court pursuant to an order directing the parties to appear and show cause

why the issues raised in this appeal should not be summarily decided. After considering the

parties’ written and oral submissions and reviewing the record, we conclude that cause has not

been shown and that this case may be decided without further briefing or argument. For the

reasons set forth in this opinion, we affirm the judgment of the Superior Court.

                                                I

                                 Facts and Procedural History

       This case involves a shooting that occurred in the City of Woonsocket, which left Ikey

Wilson with severe injury to his stomach and required the amputation of his right leg. Three

witnesses—Wilson, Jalisa Collins, and Travis Reeves—identified defendant as one of the three

perpetrators of the March 30, 2013, shooting. On December 11, 2013, a criminal information

was filed, charging defendant with assaulting Wilson with a dangerous weapon, to wit, a firearm,
                                               -1-
in violation of G.L. 1956 § 11-5-2 1 (count 1), assaulting Collins with a dangerous weapon, to

wit, a firearm, in violation of § 11-5-2 (count 2), and using a firearm while in the commission of

a crime of violence, resulting in injury to Wilson, in violation of G.L. 1956 § 11-47-3.2(a) (count

3). 2

        On September 15, 2014, the case proceeded to trial. At trial, Wilson was the first witness

to testify for the state. He testified that, on the evening of March 30, 2013, Reeves, whom he

considered a friend, entered Wilson’s residence wanting Wilson “to go to the liquor store[]

because [Reeves] didn’t have [an] ID.” Wilson testified that at that time he resided on Arnold

Street in Woonsocket with his fiancée, Collins, and two of his children. Wilson testified that

although Collins “was actually going to go to the liquor store,” he decided that he did not want

her “going out at that time of night by herself,” because he “[had] got[ten] into a couple of

incidents with [defendant].” He testified that he had known defendant for “probably a little

longer” than six to seven months at that time. Wilson further testified that they had had a

friendly relationship, but that he had a falling out with defendant about “a month or two” prior to

March 30, 2013, when defendant, along with about five other individuals, approached Wilson as

he was walking his son to school. Wilson confirmed that he had also had other confrontations

with defendant prior to that day.

        Returning to the events of March 30, Wilson testified that he walked to the liquor store

with Collins and Reeves and that Collins entered the store to purchase alcohol while he and

Reeves waited outside. Wilson said that, on their walk back to his apartment, he saw defendant



1
  General Laws 1956 § 11-5-2(a) provides, in relevant part, that “[e]very person who shall make
an assault * * * with a dangerous weapon * * * shall be punished by imprisonment for not more
than twenty (20) years.”
2
  General Laws 1956 § 11-47-3.2(a) prohibits any person from “us[ing] a firearm while
committing or attempting to commit a crime of violence.”
                                               -2-
and approached him in an attempt to end their ongoing dispute. According to Wilson, defendant

then “took off” while holding a phone to his ear. Wilson testified that the three then continued to

walk home, having to cross a bridge on their way. Once they were at the bridge, he saw

defendant “pull [a gun], cock it, and * * * fire[] [it].” Wilson further testified that he saw a total

of three individuals that night involved in the shooting—one who stood next to defendant and

another who stood nearby. Wilson identified the two individuals accompanying defendant as

Smoke and City. 3 Wilson also testified that, although he had not personally known Smoke and

City, he had seen them with defendant during the previous “incident when [he] was walking [his]

son from school.” Wilson testified that he recognized Smoke and City because defendant was

“always with them.”

        Wilson further testified that, on the night of the shooting, before hearing the gun cock and

attempting to flee in response, he was asked by City, “did you rob my boy[?]”—and Wilson

responded that he had not. Wilson testified that at that time both City and defendant had a gun in

their hands. Wilson testified that he “ran straight * * * to go toward [his] house over th[e] bridge

* * * and then * * * when [he] turned around” the gun fired. Although he could not be certain,

Wilson believed he had made it to the end of the bridge before being shot. He testified that he

then observed defendant, Smoke, and City “just run off” and that he remembered “[waking] up

in the hospital.” Wilson described his injuries, which included the loss of his right leg and injury

to his stomach, and he testified that he spent roughly four months in the hospital and two months

in rehabilitation.

        On cross-examination, Wilson conceded that, in his initial interview on May 30, 2013

with Lieutenant Mark Cabral of the Woonsocket Police Department, he had not disclosed the

3
 These were their nicknames. Although Smoke was later identified as Joshua Rojas, it does not
appear that City has ever been identified.
                                                -3-
prior school incident, but believed that he likely did not remember the incident at that time

because he had just recovered from a coma. On redirect, Wilson clarified that he had, however,

disclosed the prior school incident in an April 2014 meeting with Lt. Cabral and the prosecutor

in this case. Wilson maintained that, in the April 2014 meeting, he had also disclosed that,

during this previous incident, defendant had been accompanied by five or six individuals. 4

       On the following morning of trial, defendant moved for a mistrial “based upon * * *

Wilson’s answers to certain questions” on the previous day. The defendant explained to the trial

justice that he had been notified by the state shortly before the trial began that “Wilson would

testify that when [defendant] confronted [Wilson] at the school where [Wilson’s] son was, that

[defendant] had five to six people with him as part of a group to confront * * * Wilson * * *.”

However, defendant pointed out that at trial Wilson went a step further and testified that he could

identify Smoke and City as the two involved in the shooting with defendant because they had

been together at the previous school incident. The defendant maintained that he had not been

informed by the state as to any testimony regarding Smoke and City’s presence at the previous

incident. The defendant argued to the trial justice that this evidence was prejudicial because “it

indicate[d] [he] had contact with [Smoke and City], and that they had some hard feelings as well

toward * * * Wilson.” The defendant argued that, had this information been disclosed to him

prior to trial, “there would have been more efforts to locate and try to talk to Smoke, or to find

the identity of City, or to follow through with this information to try to either rebut it or uncover

further details for [the defense] to use on cross-examination.” He claimed that the information

should have been disclosed prior to trial, but he acknowledged that because the state was also



4
  The state represented to the trial justice that it was not informed that the prior incident involved
five to six other individuals until the morning of the trial and, notably, defendant does not dispute
this representation.
                                                -4-
unaware of Wilson’s account, the disclosure was not possible. The defendant argued to the trial

justice that a cautionary instruction would not suffice and that the trial justice should grant his

motion for a mistrial.

       In response, the state requested that the trial justice deny defendant’s motion. The state

highlighted that it also had not had the information that Wilson had allegedly disclosed to the

police prior to Wilson’s actual trial testimony. The state pointed out that Wilson was at times

combative on the stand and that he was “certainly * * * impeached on many, many, many

inconsistencies,” but that these things went to his credibility and did not warrant a mistrial. The

state also argued that, “if there was going to be an investigation into City and Smoke, * * * it

would have been as to their roles into the shooting itself” and that it did not “quite understand

why * * * defendant’s efforts to investigate the roles of City and Smoke would be redoubled just

by the fact that they may have been present at a confrontation * * * several months[] prior to the

night of the shooting.”

       After hearing argument from both sides, the trial justice denied defendant’s motion for a

mistrial and, in so doing, found that he “[did not] see anything unduly prejudicial * * * relative to

the comment that * * * Wilson made about an incident at the school some five months prior to

the incident * * * when he got shot.” The trial justice noted that Wilson’s first transcribed

interview, conducted on May 30, 2013, and almost 150 pages long, “[was] replete with

references to * * * Smoke and City.” The trial justice, therefore, found that the defense certainly

knew about Smoke and City and that the new testimony had no “prejudicial effect on the case or

the defense whatsoever.”

       Following the trial justice’s denial of the motion for a mistrial, the trial continued and

both Collins and Reeves testified about details that they recalled from the March 2013 shooting.



                                                -5-
Additionally, two officers of the Woonsocket Police Department, Jason Berthellette and Irwin

Harris, testified about their involvement in the case—from their observations upon arriving at the

crime scene to their involvement in the investigation. Following the close of the state’s case, the

defense called Lt. Cabral to testify. Lieutenant Cabral was the “case agent” responsible for

overseeing this case. He testified that on no occasion had Wilson disclosed to him that defendant

had other individuals with him during the prior school incident, nor did Wilson disclose the

identities of any of the other individuals involved.

       At the conclusion of the trial, on September 22, 2014, the jury returned a guilty verdict as

to counts 1 and 2, and acquitted defendant as to count 3. On November 24, 2014, defendant was

sentenced to a total of twenty years to serve; fifteen years on count 1 and five years to serve on

count 2, consecutively, with fifteen years suspended on count 2. A final judgment of conviction

was entered, and defendant filed a notice of appeal. 5

                                                  II

                                        Standard of Review

       It is well settled that “a trial justice’s decision on a motion to pass the case is addressed to

the sound discretion of the trial justice, and this Court will not disturb the ruling on such a

motion absent an abuse of discretion.” 6 State v. Tully, 110 A.3d 1181, 1190-91 (R.I. 2015)

(quoting State v. Cipriano, 21 A.3d 408, 428 (R.I. 2011)). “We give great deference to the trial

justice in this regard because he or she ‘has a front-row seat at the trial and is in the best position




5
  The defendant filed a notice of appeal on November 26, 2014, before final judgment entered on
December 1, 2014. However, we treat the notice of appeal as timely. See Soares v. Langlois,
934 A.2d 806, 808 n.1 (R.I. 2007).
6
  “In Rhode Island, the terms ‘motion to pass the case’ and ‘motion for a mistrial’ are
synonymous.” Roma v. Moreira, 126 A.3d 447, 449 n.3 (R.I. 2015) (quoting State v. Robat, 49
A.3d 58, 83 n.28 (R.I. 2012)).
                                                 -6-
to determine whether a defendant has been unfairly prejudiced.’” Id. at 1191 (quoting State v.

Oliveira, 882 A.2d 1097, 1127 (R.I. 2005)).

                                                III

                                            Discussion

       On appeal, defendant argues that the trial justice’s failure to grant a mistrial in light of a

discovery violation infringed his rights to due process under the Fifth and Fourteenth

Amendments to the United States Constitution and article 1, section 10 of the Rhode Island

Constitution. The defendant further maintains that he was “totally unaware that evidence of the

prior altercation between [Wilson] and * * * defendant existed prior to trial.” He argues that he

was denied the opportunity “to investigate the prior incident and determine what, if anything,

actually occurred.”    The defendant concedes that the state’s failure to disclose was not

intentional; however, he maintains that “there was a disclosure of highly relevant evidence mid-

trial and the [c]ourt should have granted * * * defendant a mistrial and allowed him to * * *

investigate that matter.”

       “When ruling on a motion to pass, the trial justice must assess the prejudicial impact of

the statement in question on the jury and ‘determine whether the evidence was of such a nature

as to cause the jurors to become so inflamed that their attention was distracted from the issues

submitted to them.’” Cipriano, 21 A.3d at 428 (quoting State v. Brown, 619 A.2d 828, 831 (R.I.

1993)). “The trial justice makes this determination by examining the witness’s statement or

remark in its factual context.” State v. Werner, 830 A.2d 1107, 1113 (R.I. 2003). “Moreover,

‘[w]e previously have held that even prejudicial remarks do not necessarily require the granting

of a motion to pass.’” Roma v. Moreira, 126 A.3d 447, 449 (R.I. 2015) (quoting State v. Alston,

47 A.3d 234, 250-51 (R.I. 2012)). “Generally, the declaration of a mistrial is inappropriate if a



                                               -7-
less drastic sanction, such as a continuance, would effectively serve the same purpose.” State v.

Chalk, 816 A.2d 413, 420 (R.I. 2002).

       Rule 16(h) of the Superior Court Rules of Criminal Procedure directs that:

               “If, subsequent to compliance with a request for discovery or with
               an order issued pursuant to this rule, and prior to or during trial, a
               party discovers additional material previously requested which is
               subject to discovery or inspection under this rule, he or she shall
               promptly notify the other party of the existence thereof.”

It is well settled that “Rule 16 requires that discovery be made in a timely manner * * * in order

that defense counsel may marshal the information contained in the discovery material in an

orderly manner.” State v. Huffman, 68 A.3d 558, 568-69 (R.I. 2013) (quoting State v. Simpson,

595 A.2d 803, 807 (R.I. 1991)). “A trial justice considering an alleged discovery violation

pursuant to Rule 16 * * * should examine four factors: (1) the reason for the nondisclosure; (2)

the prejudice to the other party; (3) whether or not a continuance can rectify any such prejudice;

and (4) any other relevant factors.” State v. Marte, 92 A.3d 148, 151 (R.I. 2014) (quoting State v.

Grant, 946 A.2d 818, 828 (R.I. 2008)).

       At the outset, it is important to note that, although defendant argues to this Court that a

Rule 16 violation occurred because he was “totally unaware that evidence of the prior altercation

between [Wilson] and * * * defendant existed prior to trial,” the argument that he made before

the trial justice differed in a significant way from the argument he makes before us. Before the

trial justice, defense counsel argued that a mistrial was appropriate because the defense learned

for the first time shortly before Wilson took the stand that “when [defendant] confronted him at

the school where [his] son was, that [defendant] had five to six people with him as part of a

group to confront * * * Wilson * * *.” (Emphasis added.) In his motion for a mistrial, defendant

also relied on Wilson’s on-the-stand revelation that two of the six people accompanying



                                               -8-
defendant during this prior incident were Smoke and City. Because defendant did not raise any

challenge to the admission of testimony regarding the existence of a prior altercation altogether,

but instead relied on the more specific information regarding who was present during the

altercation, nor did he raise the constitutional arguments he now presents to this Court, we limit

our review to the issues that were properly raised before the trial justice. 7 See State v. Ford, 56

A.3d 463, 470 (R.I. 2012) (“[a]s this Court has made clear, the ‘raise-or-waive’ rule precludes a

litigant from arguing an issue on appeal that has not been articulated at trial”) (quoting State v.

Brown, 9 A.3d 1240, 1245 (R.I. 2010)).

       Accordingly, the issue before this Court is whether the trial justice was clearly erroneous

in finding that the testimony disclosed by the state to defendant just moments prior to the

commencement of trial, i.e., that Wilson would testify that five to six individuals were present

during the prior school incident, and the information that was disclosed for the first time during

Wilson’s direct examination, i.e., that Smoke and City were among those present, were not

prejudicial and did not warrant a mistrial.

       After reviewing the trial record and transcripts, it is our opinion that the trial justice did

not abuse his discretion in denying defendant’s motion for a mistrial.           Importantly, it is

undisputed that any nondisclosure was unintentional. Additionally, the trial justice was in the

best position to determine if the nondisclosure caused any prejudice to defendant, and we see no

reason to disturb his finding that here defendant was not prejudiced. See Tully, 110 A.3d at 1191.



7
  The defense counsel’s acknowledgment in his motion for a mistrial that the new evidence
admitted at trial was not known to the state prior to Wilson’s testimony, and the state’s
representation that it learned about the previous school incident in an April 2014 meeting at
Wilson’s home—roughly six months before Wilson testified—indicates that the new evidence
defense counsel was referring to in his motion for a mistrial was Wilson’s testimony that
additional individuals were present at the prior school incident, and his identification of Smoke
and City as part of that group.
                                               -9-
References to Smoke and City were replete throughout Wilson’s initial statement to the police as

accomplices to the shooting for which defendant alone was charged. Despite this, defendant did

not attempt to contact Smoke or City, but argued that somehow evidence of their presence in a

previous altercation that occurred months prior to the actual shooting would have created the

need to contact these individuals.      This argument is unavailing.      If defendant wanted to

investigate Smoke or City’s involvement further, he could have asked the trial justice for a

continuance, but instead he insisted that a mistrial was the only proper remedy without

articulating why a continuance would have been insufficient. See Chalk, 816 A.2d at 420

(affirming denial of a motion for a mistrial where “[t]he defendant ha[d] not articulated any

reason why measures less severe than a mistrial would have been insufficient”).

       Moreover, defense counsel questioned Wilson extensively regarding the inconsistencies

between his statements to the police and his trial testimony. On one occasion during cross-

examination, after attempting to highlight that Wilson had never previously disclosed the

presence of other individuals at the school incident, defense counsel directly asked Wilson if he

had fabricated the detail of the presence of other individuals to “make the case stronger,” and

Wilson denied doing so. The inconsistencies between Wilson’s trial testimony and his previous

statements to the police went to his credibility and were also highlighted both in cross-

examination and during the defendant’s closing statement. 8 It is our opinion that the trial justice



8
  In its closing statement, the defense highlighted the inconsistencies in the statements by the
state’s witnesses, including the fact that Lt. Cabral corroborated that Wilson had not disclosed to
him that a group of people were present at the prior school incident. The defense also
characterized Wilson’s identification of Smoke and City as two of the individuals in the group as
an “embellishment.” During closing arguments, the state’s only reference to the prior incident
was as follows:
                   “[Wilson] told you, I put in my quotes on my pad that they had
                a strong falling out, and that had happened some months earlier.
                He went on to describe to you there was a confrontation when
                                               - 10 -
was in the best position to weigh the harm caused by Wilson’s new revelations, and we find no

clear error in his finding that Wilson’s testimony was not prejudicial and did not warrant a

mistrial.

                                               IV

                                           Conclusion

        For the reasons stated herein, we affirm the judgment of the Superior Court. The record

shall be returned to the Superior Court.




               [Wilson] was walking his son home from school. And Jalisa even
               told you, she said, Yeah, [defendant] went to my son’s school. She
               told you that. Now, who was with him, and what actually
               happened? You know, we don’t know the details of that, but we
               know, we know there was bad blood between * * * defendant * * *
               and * * * Wilson.”
                                              - 11 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Christian Rosado.

CASE NO:              No. 2015-92-C.A.
                      (P2/13-3694AG)

COURT:                Supreme Court

DATE OPINION FILED: June 16, 2016

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: Jane M. McSoley
                                 Department of Attorney General

                      For Defendant: Matthew S. Dawson, Esq.
