May 31, 2017


                                                      Supreme Court

                                                      No. 2015-370-C.A.
                                                      (P2/14-1420A)

         State                      :

           v.                       :

    Keith J. Pittman.               :



   NOTICE: This opinion is subject to formal revision before
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   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. 2015-370-C.A.
                                                                     (P2/14-1420A)

                       State                      :

                        v.                        :

                 Keith J. Pittman.                :

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

                                          OPINION

         Chief Justice Suttell, for the Court. A robbery on the streets of Providence led to a

thief’s short-term possession of stolen goods but long-term period of incarceration.        The

defendant, Keith J. Pittman, appeals from his conviction by a jury of second-degree robbery, for

which he was given a twenty-year sentence with sixteen years to serve at the Adult Correctional

Institutions (ACI) and four years suspended with probation. This case came before the Supreme

Court, sitting at Woonsocket High School, 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 Travel

         On January 17, 2013, after leaving work for the day, Ryan Laughlin and his roommate,

Kyle Nichols-Schmolze, left their Chestnut Street office in downtown Providence and began

walking home. Laughlin testified that they left in the early evening because it was “definitely


                                                -1-
* * * starting to get dark out but not fully dark.” Laughlin explained that he and his roommate

walked across the Point Street Bridge and proceeded up Wickenden Street.             According to

Laughlin, he “was carrying a messenger bag with a laptop; and [Nichols-Schmolze] [also] had a

backpack with his laptop * * * [and] other work supplies.” Laughlin testified that, while walking

“somewhere near * * * Pizza Pie-er” on Wickenden Street, “two men stepped out from an

alleyway” and grabbed him.

       Laughlin continued to testify that “somebody” came from behind, “grabbed ahold of

[him] and grabbed ahold of [his] bag and said, ‘Give me your bag. I’ve got a gun.’” He began

“taking off [his] bag” because he was “afraid” and did not “know [what was] going to happen.”

Laughlin testified that “the guy took [his] bag [from] over [his] head” when Nichols-Schmolze,

standing “a couple of steps” away, said to the man, “You don’t have a gun,” to which the man

repeated, “I have a gun.” Laughlin described the man who took the bag from him as “a black

guy” in his mid to late thirty’s; 1 he did not get as good a look at the second man, however.

Laughlin testified that, as the two men ran off with his bag towards the Point Street Bridge,

Nichols-Schmolze gave chase closely behind them, with Laughlin about twenty to thirty feet

behind Nichols-Schmolze.

       Nichols-Schmolze’s testimony at trial essentially corroborated Laughlin’s version of the

incident. He described the two suspects, however, as “a white male and a black male[,]” stating

that “[t]he black male was the one threatening that he had a gun” and “basically arresting

[Laughlin], trying to peel the messenger bag over his head and pull it off.”

       Nichols-Schmolze continued to testify that, when the men started running, he realized

that it appeared “very unlikely” that they had a firearm, and he started chasing after them. He

1
  At trial, Laughlin described the man as “pretty average;” not “noticeably tall or short or fat or
thin, kind of like an average guy, probably 5’10”, 6 feet, * * * and average weight.”

                                               -2-
said that, “[a]fter [running] the first block, the white male peeled off into a driveway[.]” 2

Nichols-Schmolze continued to pursue the man with the bag, who was “turning corners around

the block.” After one of the corners, the man “turned left down a driveway” and out of Nichols-

Schmolze’s sight.    Nichols-Schmolze testified that he then “slowly walked and kept [his]

distance from the corner” of the house, where he “assumed” the man with the bag was hiding.

As he “rounded the corner” of the house, he saw the man in a driveway “leaning up against the

house holding the bag,” near “an overhead light.” Nichols-Schmolze testified that he was ten

feet from the man with the bag, and could see his face clearly, in what “could have been five

seconds, [or] it could have been [fifteen].”

       According to Nichols-Schmolze, the man then “threw the bag towards [him] and it landed

at [his] feet[,]” and then the man “started jogging out [of] the driveway and back towards * * *

where the original incident had happened.” Nichols-Schmolze followed the man, encountering

Laughlin on the way. Nichols-Schmolze said that he handed Laughlin the bag and told him to

ensure that his belongings were not missing. Nichols-Schmolze testified that, after encountering

Laughlin, the black male was “trailing” him and kept threatening that he still had a gun.

       Nichols-Schmolze said he saw the man “get out a set of keys” and get into a silver sedan.

At trial, Nichols-Schmolze could not recall the license plate number, but he testified that he

“screamed the license plate number out loud” and he heard Laughlin, who was on the phone with

911 at the time, relay the number to the 911 dispatcher. 3 The man then drove off.

       Providence Police Det. Charles Matracia testified that he was assigned to investigate the

robbery “shortly after the incident occurred.” Detective Matracia indicated that the license plate

2
  Nichols-Schmolze testified that he “did not [continue] pursu[ing] [the white male] because he
didn’t have the bag.”
3
  The 911 recording was proffered at trial, in which Laughlin informs the dispatcher that the man
drove off in a “silver” car, license plate number “675 063.”

                                               -3-
number was entered into the Division of Motor Vehicles database and that the registration “came

back to a Dena Magiera,” owner of a silver Nissan. 4 Magiera’s information was then entered

into a police database, where it was discovered that defendant was “involved with that

registration”—particularly, that Magiera and defendant were in a “domestic relationship.”

Detective Matracia testified that he pulled a picture of defendant, placed it into a photo array, and

showed it to the roommates. 5

         The day after the robbery, according to Det. Matracia, he met with Nichols-Schmolze to

review the photo array. Detective Matracia testified that, before he showed Nichols-Schmolze

any photos, Nichols-Schmolze read a “photo lineup instruction sheet,” which he signed and

dated.    Detective Matracia testified that, “when it came to [defendant’s picture], [Nichols-

Schmolze] immediately recognized that photograph, stating that that was the person that robbed

him.” 6 A few days later, Laughlin was shown the photo array, but was “unable to identify

anyone.”

         The defendant was arraigned on March 28, 2013, on charges of second-degree robbery in

violation of G.L. 1956 § 11-39-1(b). A two-day trial commenced in the Superior Court on July

8, 2015, after which a jury found defendant guilty as charged.            On September 3, 2015,



4
  Magiera also testified at trial. She testified that she “was in a relationship with” defendant for
two years. In addition, she also testified that she owned a silver 2008 Nissan Altima, license
plate number 675 063, which defendant used “like every day” and to which he had access on the
day of the robbery.
5
  Detective Matracia clarified at trial that he assembled the photo array according to normal
procedure; that is, taking the suspect’s information and characteristics, entering it into the police
database, which would yield a number of photographs of persons matching the suspect’s
characteristics. Those photographs are then assembled along with the suspect’s picture to create
a photo array.
6
  Nichols-Schmolze testified that, when he identified defendant, he provided a “disclaimer” that
“it seems hard, if not impossible, to be a hundred percent confident that you [could] correctly
identify a picture of someone * * * based on a relatively brief interaction * * *.” Nonetheless, he
indicated that he was “pretty confident” in his identification.

                                                -4-
defendant’s motion for a new trial was heard and denied. The trial justice then imposed a

twenty-year sentence with sixteen years to serve at the ACI, four years suspended with probation

upon release. The defendant timely appealed.

                                                  II

                                        Standard of Review

         On a motion for a new trial, this Court “will not disturb a trial justice’s decision * * *

unless we determine that the trial justice committed clear error or that he or she overlooked or

misconceived material and relevant evidence [relating] to a critical issue in the case.” State v.

Williams, 137 A.3d 682, 686 (R.I. 2016) (quoting State v. Mendez, 116 A.3d 228, 247 (R.I.

2015)). “We employ this deferential standard of review with respect to a motion for a new trial

because a trial justice, being present during all phases of the trial, is in an especially good

position to evaluate the facts and to judge the credibility of the witnesses.” State v. Texieira, 944

A.2d 132, 141 (R.I. 2008).

                                                  III

                                             Discussion

                                      Motion for a New Trial

         On appeal, defendant takes issue with the trial justice’s denial of his motion for a new

trial.   Specifically, defendant contends that the trial justice “overlooked and misconceived

material evidence” in denying his motion, and that the verdict “went against the fair

preponderance of the evidence”; thus, failing to do “substantial justice.”

         Rule 33 of the Superior Court Rules of Criminal Procedure provides, in pertinent part,

that “the court may grant a new trial to [a] defendant if required in the interest of justice.”




                                                 -5-
       “When a trial justice considers whether a verdict is against the weight of the evidence, he

or she ‘acts as a thirteenth juror and exercises independent judgment on the credibility of

witnesses and on the weight of the evidence.’” Mendez, 116 A.3d at 246 (quoting State v.

Barrios, 88 A.3d 1123, 1128 (R.I. 2014)). In so doing, the trial justice must “(1) consider the

evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and

the weight of the evidence, and then (3) determine whether he or she would have reached a result

different from that reached by the jury.” Id. (quoting State v. Silva, 84 A.3d 411, 416 (R.I.

2014)). “If the trial justice agrees with the jury’s verdict or determines that reasonable minds

could disagree about the outcome, then he or she must deny the new-trial motion * * *.”

Williams, 137 A.3d at 686 (quoting State v. Karngar, 29 A.3d 1232, 1235 (R.I. 2011)). “If the

trial justice does not agree with the jury’s verdict, ‘the trial justice must * * * determine whether

the verdict is against the fair preponderance of the evidence and fails to do substantial justice.’”

Texieira, 944 A.2d at 140 (quoting State v. Banach, 648 A.2d 1363, 1367 n.1 (R.I. 1994)).

       In support of his appellate argument, defendant notes that he was identified only by

Nichols-Schmolze, “who candidly testified that” he was not “a hundred percent confident” that

the photograph he had selected from the photo array was that of the man who had robbed his

roommate. Further, defendant notes that Nichols-Schmolze’s identification of the robber was

based primarily upon his observation of the man for at most fifteen seconds on a dark night,

during which brief period the man threw the bag at Nichols-Schmolze, who “immediately began

checking the bag’s contents,” thereby distracting his focus.

       In denying defendant’s motion, the trial justice found “that there was more than sufficient

evidence” to support the conviction. The trial justice began his analysis by stating that Nichols-

Schmolze and Laughlin were “impressive * * * and spoke credibly [and] forthrightly about their



                                                -6-
experience with * * * defendant.” The trial justice noted that Laughlin “testified directly as to

the fact that he didn’t have the same look at * * * defendant as * * * Nichols-Schmolze did,” but

that Nichols-Schmolze was “unhesitant in identifying * * * defendant” and testified that he “got

a good look at [defendant] when he stopped at a driveway where * * * defendant was standing

under a light, [and] he could see who [defendant] was.”

       Further, the trial justice pointed to the fact that Nichols-Schmolze “had the presence of

mind during the chase to relay the license plate numbers of the car that * * * defendant was

driving * * * and that license plate came back to * * * defendant’s partner at the time, * * *

Magiera, who identified * * * defendant and stated that he did have access to the car.”

Furthermore, the trial justice also noted that Nichols-Schmolze “identified [defendant] within

one or two days when the photo array was shown to him without any hesitation whatsoever.” 7

       In his conclusion, the trial justice pronounced that “the evidence that the [c]ourt heard

provided more than sufficient evidence to find beyond a reasonable doubt that the defendant did

commit the crime of second degree robbery * * *.” We are of the opinion that the trial justice

did not overlook or misconceive any material evidence relating to the testimony proffered by the

state, nor did he commit clear error in denying the defendant’s motion for a new trial.




7
  Although the trial justice did not address Nichols-Schmolze’s forthright acknowledgment that
he could not be one hundred percent confident that the photograph he selected was that of the
man he saw in the driveway, we are satisfied that the trial justice did not thereby overlook
material evidence. The witness was merely stating the obvious when he said, “there’s no way I
can know for sure[.]” He went on to say, however, “but looking at these pictures, pretty quickly
obvious, * * * I recognize this guy, so I said I’m pretty confident but I can’t be a hundred percent
sure.” Moreover, Nichols-Schmolze made an unequivocal in-court identification of defendant.

                                               -7-
                                             IV

                                        Conclusion

       For the foregoing reasons, we affirm the judgment of the Superior Court and return the

record of this case thereto.




                                            -8-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Keith J. Pittman.
                                     No. 2015-370-C.A.
Case Number
                                     (P2/14-1420A)
Date Opinion Filed                   May 31, 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 Luis M. Matos
                                     For State:

                                     Owen Murphy
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Megan F. Jackson
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
