                                                   Supreme Court

                                                   No. 2011-398-C.A.
                                                   (P1/09-3674A)


      State                     :

       v.                       :

Markus Matthews.                :




  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. 2011-398-C.A.
                                                                   (P1/09-3674A)


                    State                      :

                      v.                       :

              Markus Matthews.                 :


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


                                          OPINION

       Justice Goldberg, for the Court. On the night of May 6, 2009, three men savagely

attacked and robbed Cesar Lopez (Lopez or complainant), who had unwittingly arrived at an

abandoned house to deliver pizza. The attackers made off with about $20. Several days later, a

chance encounter with one of the robbers led to his arrest, and that perpetrator implicated the

defendant, Markus Matthews (defendant), in this brutal crime. The defendant was tried and

convicted by a jury of a single count of first-degree robbery. He now appeals that conviction,

assigning an array of errors to the trial court. For the reasons set forth below, we affirm the

conviction.

                                         Facts and Travel

       Cesar Lopez was employed by Domino’s Pizza (Domino’s) as a pizza delivery-person.

On May 6, 2009, he drove to 54 Lynch Street in Providence to make a delivery. Upon arriving at

that address, Lopez called the phone number associated with the order, and the voice on the other

end told him to “go through the back door.” Although something about the situation appeared

amiss, particularly because the house was dark, Lopez attempted to fulfill the delivery.



                                                -1-
          As Lopez exited his vehicle, he was struck from behind with “a piece of tubing.”1 As a

second attacker grabbed him, he heard someone say “bring him into the house.” While Lopez

was being moved toward the house, there was one man in front, wearing a blue and white

bandana over his nose, and another assailant behind him, with his arm around Lopez’s neck.

When Lopez tried to turn around, the choke-hold tightened, almost to the point of strangulation.

Lopez briefly was able to free himself, but was then struck on the leg with the pipe and dragged

up the driveway toward the house.

          As the attackers moved Lopez toward the house, the beating continued. According to

Lopez, there were three assailants: one with the pipe and two men pummeling with their fists.

Lopez testified that he was struck with the pipe on the head and left eye. Approximately $20

was taken from his pocket. As the attackers wrestled him toward the back door of the house, he

was able to grab onto the handrail; the attackers repeatedly hit him in an effort to make him let

go of the railing. At that point, Lopez fought back. The assailants grabbed his uniform shirt; he

slipped out of it and escaped to his car. The assailants were left holding the shirt. After Lopez

reached the street, the attackers retreated and, despite his injuries—one eye was completely

closed—he was able to drive back to Domino’s. When he arrived, he sounded the horn, exited

the car, and collapsed. Lopez’s co-workers helped him up and called 911. Lopez continues to

have problems with his eyesight and suffers from headaches.

          On May 10, 2009, Lopez visited Domino’s in order to return some items belonging to the

store, including his uniform and pizza bag. While driving there with his wife, Lopez saw one of

his attackers who was loitering on the street. According to Lopez, when the attacker saw him, he

“started doing some suspicious things,” such as backing up so that Lopez could not see him.



1
    It appears from the testimony that the “tubing” was a metal pipe.
                                                 -2-
After his wife called the police, they decided to circle the block; when the alleged attacker saw

the car again, he went into a driveway and came out onto another street. Lopez directed his wife

to drive to another street, where he expected the attacker to appear. Upon seeing Lopez again,

the assailant started running with Lopez in pursuit.       After a foot chase, Lopez caught the

attacker—Michael Long—and held him until the police arrived.

       The police arrested Long for the May 6, 2009 robbery and proceeded to interview him.

Long initially denied any involvement in the crime, but eventually confessed, and in so doing, he

implicated defendant.2 Based on statements made by Long, defendant was apprehended. Long

later pled nolo contendere to charges of robbery and conspiracy to rob.

       At trial in this case, the complainant testified about the attack, noting that he could not

recall the exact time that he left to deliver the pizza, but that it was after 10 p.m.3 He also

testified about the circumstances that led to Long’s arrest. The state also called Long to testify;

however, he professed to have no memory of the events, notwithstanding his confession and

subsequent plea. Jeannine Labossiere, Michael Long’s former fiancée and the mother of his

child, also testified at trial, and her memory was intact. She testified that, at about 10:30 p.m. on

May 6, 2009, Long borrowed her cell phone and left her apartment. Labossiere testified that he

was gone until about 1 a.m. when he returned to her house, accompanied by defendant. She

testified that after some prodding, Long disclosed the beating and robbery of a Domino’s

delivery-person, as defendant stood silent. The defendant neither contested nor denied Long’s

recital of the events of the evening. Labossiere also testified that her cell phone number matched


2
  Long implicated defendant in both versions that he gave to police, including when he denied
his own involvement. Long also implicated a third man referred to as “Knowledge” in his
recorded statement.
3
  The owner of the Domino’s Pizza testified that his establishment’s tracking system indicated
that the call came in at 11:17 p.m.
                                                -3-
the one used to call Domino’s on May 6, 2009. Because the testimony of both Long and

Labossiere are central to the issues in this case, we elaborate upon their testimony in the

discussion below.

        The defendant testified in his own defense and denied any involvement in this crime. He

claimed that he was not at 54 Lynch Street on the night of May 6, 2009, having left Labossiere’s

house at about 9:30 p.m., arriving home a little after 10 p.m. The defendant’s mother also

testified, corroborating her son’s alibi. The jury was unconvinced.

        The trial justice instructed the jury that they were to consider three charges against

defendant. The trial justice told the jury that defendant was charged with first-degree robbery,

but that it was alleged to have been committed under two different theories: “The first theory is

that [defendant did] rob Cesar Lopez by use of a dangerous weapon. The second, or alternative,

theory is he did rob Cesar Lopez and Cesar Lopez was, in fact, injured.” Later, the trial justice

told the jury,

                 “There’s only one robbery being charged but two factual elements
                 that are different from each count. One is the dangerous weapon;
                 one is the injury. You make separate decisions for each one. But
                 they clearly are one count, one charge of the robbery. He’s not
                 being charged with two separate counts of robbery.”

Additionally, defendant was charged with conspiracy to rob.

        The jury returned verdicts of not guilty on first-degree robbery by means of a dangerous

weapon and the conspiracy count. The defendant, however, was found guilty of first-degree

robbery resulting in injury. The defendant’s motion for a new trial was denied by the trial

justice, who subsequently sentenced defendant to twenty years at the Adult Correctional

Institutions, with nine years to serve and the remaining eleven years suspended with probation.




                                               -4-
                                            Analysis

                                                I

                                       Double Jeopardy

       Count 1 of the indictment charged that defendant “on or about 6th day of May, 2009, in

the City of Providence, in the County of Providence, did rob Ceasar Lopez by use of a dangerous

weapon * * * .” Similarly, count 2 of the indictment charged that defendant “on or about 6th day

of May, 2009, in the City of Providence, in the County of Providence, did rob Ceasar Lopez

causing him to be injured * * * .” The defendant argues that his conviction for first-degree

robbery must be vacated because “[c]harging one robbery as two crimes and permitting the jury

to deliberate twice on one robbery violated double jeopardy principles.”

       Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure provides that “[t]he

defense of double jeopardy * * * may be raised only by motion before trial.” (Emphasis added.)

“[A] defendant’s failure to raise such a motion before trial precludes that defendant from

thereafter raising a double jeopardy challenge.” State v. Day, 925 A.2d 962, 977 (R.I. 2007)

(citing State v. Feliciano, 901 A.2d 631, 647 (R.I. 2006)). In this case, defendant did not comply

with the provisions of Rule 12(b)(2) and, therefore, has waived this argument.

       Nonetheless, we deem it appropriate to address two important issues. First, were this

issue properly before the Court, we would affirm defendant’s conviction because we are satisfied

that defendant’s double jeopardy contentions are without merit. The principal evil against which

the Double Jeopardy Clause protects—multiple criminal punishments for the same offense—is

not implicated in this case because defendant stands convicted of (and punished for) a single

offense. See Hudson v. United States, 522 U.S. 93, 99 (1997) (“The [Double Jeopardy] Clause

protects only against the imposition of multiple criminal punishments for the same offense



                                              -5-
* * * .”) (emphasis omitted); see also 1A Charles Alan Wright & Andrew D. Leipold, Federal

Practice and Procedure: Criminal § 142 at 11-12 (4th ed. 2008) (“It remains permissible to

charge a single offense in several counts (although not to convict and punish on more than one

for a single crime) * * *.”). Additionally, this Court has noted that “it would be impermissible to

charge a defendant with murder in the second degree and, subsequent to disposition of the

charge, then charge him or her with first-degree murder,” but that “[t]rial of lesser-included

offenses contemporaneously with the trial for the greater offense does not violate principles of

double jeopardy.” State v. Grabowski, 644 A.2d 1282, 1286 (R.I. 1994). Although the two

separate factual predicates for first-degree robbery here do not constitute a primary and a lesser-

included offense, the same principle nonetheless applies because they are alternative theories of

guilt. Furthermore, the trial justice’s instruction to the jury mollified the risk that the indictment

would result in unconstitutional multiple punishment. The trial justice instructed the jury that the

indictment alleged two different theories of robbery, and, later in the instruction, she stated that

the two robbery charges “clearly are one count, one charge of robbery. He’s not being charged

with two separate counts of robbery.”

       The defendant argues that in accordance with our decision in State v. Bolarinho, 850

A.2d 907 (R.I. 2004), this Court must vacate defendant’s conviction. We agree that the issues

presented in Bolarinho are similar, but we disagree that our holding compels the remedy sought

by defendant. In Bolarinho, 850 A.2d at 908-09, the defendant was convicted of two offenses—

felony assault resulting in serious bodily injury and felony assault by means of a dangerous

weapon, a shod foot. It was clear, however, that both crimes arose from the same assault. Id. at

911. This error was remedied by our decision that vacated the conviction on count 1—assault

resulting in serious bodily injury. Id. We did not vacate both convictions and order a new trial.



                                                -6-
See id. Here, defendant contends that the Bolarinho remedy cannot be invoked because the jury

found him not guilty on count 1; and that, therefore, the Court must vacate the conviction and

order a new trial because defendant “cannot be both innocent and guilty of the same crime.” We

reject this argument. In this case, defendant was found guilty, beyond a reasonable doubt, of the

offense of first-degree robbery that resulted in injury. The jury was not satisfied that the state

had proven robbery by means of a dangerous weapon. Simply because the jury rejected this

theory of robbery, that fact does not impact the Double Jeopardy Clause. Because there was a

single conviction in this case, there is no double jeopardy violation for us to remedy. See id.

Additionally, we are not confronted with inconsistent verdicts. Because the prosecution had two

theories of robbery, the jury could have concluded that both theories were proven beyond a

reasonable doubt, or that defendant robbed Lopez causing bodily injury, but the state did not

prove that defendant used a dangerous weapon in the process. Nevertheless, a conviction of a

single count of first-degree robbery would result.

       Second, we provide guidance to the trial court and its practitioners in order to avoid

confusion when a single offense is charged under multiple theories. Initially, we note that a bill

of particulars is designed to cure any potential problems with the indictment in the early stage of

a prosecution; however, defendant did not file for a bill of particulars in this case. Contrast

Pierce v. Wall, 941 A.2d 189, 194 (R.I. 2008) (“The record discloses that a bill of particulars was

filed in this case that made clear that a single act was charged in each of the seven counts.”).

Furthermore, although a permissible practice, charging defendant with two separate counts of

first-degree robbery is not the ideal manner in which to draft an indictment. The preferable

manner is to charge a single offense as one count, setting forth multiple theories that may be

alleged. See Sanabria v. United States, 437 U.S. 54, 66 n.20 (1978) (“A single offense should



                                               -7-
normally be charged in one count rather than several, even if different means of committing the

offense are alleged.”).     General Laws 1956 § 12-12-1.4 provides in pertinent part, “An

indictment, information, or complaint shall be a plain, concise, and definite written statement of

the offense charged.” Nothing in this section precludes the assertion of multiple theories in a

single count. Additionally, Rule 7(c) of the Superior Court Rules of Criminal Procedure permits

such a procedure: “It may be alleged in a single count that the means by which the defendant

committed the offense are unknown or that he [or she] committed it by one or more specified

means.” (Emphasis added.) Although it may be constitutionally permissible to charge a single

offense in several counts, we reiterate that “the rules are intended to discourage that practice.”

Wright and Leipold, § 142 at 12 (discussing identical federal rule). As the Eighth Circuit

recently stated:

                “[W]here a ‘statute specifies two or more ways in which one
                offense may be committed, all may be alleged in the conjunctive in
                one count of the indictment, and proof of any one of the methods
                will sustain a conviction.’ * * * This method of procedure would
                adequately inform the defendant of each allegation that he must
                defend against while solving any potential multiplicity problems.”
                United States v. Roy, 408 F.3d 484, 492 n.4 (8th Cir. 2005)
                (quoting Gerberding v. United States, 471 F.2d 55, 59 (8th Cir.
                1973) (emphasis added)).

Ultimately, when confronted with a single offense in an indictment from which a jury could

conclude that the offense was committed under one or more theories, it is the trial justice’s

responsibility—through instructions to the jury and a carefully drafted verdict form—to ensure

that a defendant stands convicted, if at all, of a single offense.

        An indictment or criminal information that charges one offense having been committed

by multiple means is a fair solution for both the state and the defendant. It lessens, or eliminates,

any potential double jeopardy concerns, because it ensures that the accused is charged with a

single offense, and thus, can only be convicted and sentenced on a single count. It also addresses
                                                 -8-
duplicity issues because the jury would have to state which theory or theories were proven

beyond a reasonable doubt.4 Requiring a jury to deliberate on each factual predicate alleged in

the charging document is also fair to the state because it permits the jury to find that the state

proved multiple theories, but only one offense—a practice that permits a complete examination

of the sufficiency of the evidence in the event that there is a motion for a new trial.

                                                  II

                       Admission of Michael Long’s Recorded Statement

       The defendant wages a multi-pronged attack against the use at trial of Michael Long’s

statement to police following his arrest. As noted, when he testified during the state’s case-in-

chief, Long suffered from the ubiquitous failure of memory of a confessing codefendant. Long

admitted that he participated in the robbery of a pizza delivery-person on May 6, 2009, and that

he was serving a sentence at the Adult Correctional Institutions for that crime. However, he

claimed to remember almost nothing else about that night or his arrest on May 10, 2009. The

prosecutor attempted to refresh Long’s recollection by showing him the statement that he gave to

police after he was arrested; this proved futile because Long repeatedly denied that his

recollection was refreshed. Long not only professed a failure of memory about the statement, he

refused to acknowledge his own voice on the tape recording. When confronted with defendant’s

photograph—the one he identified when he was arrested—Long recognized defendant as the

person in the photograph; however, he denied that it was his signature below the picture, despite

acknowledging that the name looked like “Michael Long” and the date was “5/10/09.” When the



4
  “The term ‘duplicity’ refers to the joining of two or more offenses, however numerous, in a
single count of an indictment.” State v. Saluter, 715 A.2d 1250, 1253 (R.I. 1998). The problem
with duplicity is that “a guilty verdict on a duplicitous indictment does not indicate whether the
jury found defendant guilty without having reached [a] unanimous verdict on the commission of
a particular offense.” Id. (quoting United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)).
                                                 -9-
prosecutor asked Long whether he remembered the interrogation at the Providence police station,

Long responded, “I don’t know what happened five minutes ago.”

       In the face of Long’s recalcitrance and refusal to acknowledge that his recollection was

refreshed in any way, the prosecutor began asking specific leading questions about Long’s

statement to police. At this point, defense counsel raised an objection to “the further continuance

of [the prosecutor’s] line of questioning” and argued at sidebar that Long’s statements did not

qualify as prior inconsistent statements. The trial justice, however, analogized this case to two

prior opinions of this Court5 and stated, “I think that I am going to make a finding that at the

appropriate time it’s a prior inconsistent statement.”6 The prosecutor continued asking specific

leading questions after Long continued to claim that his recollection had not been refreshed.

These questions included statements by Long that he punched the complainant and that

defendant hit him with a lead pipe. Later, during the testimony of a Providence police detective,

the recording of the interview was admitted as a full exhibit and played for the jury.7

       The defendant raises issues under the Rules of Evidence, the Confrontation Clause, and

the Due Process Clause. His primary argument is that Long’s statements were inadmissible

hearsay and violative of the Confrontation Clause. Although defendant contends that “[t]he

arguments against admissibility are the same under [Rule 801(d)(1)(A) of the Rhode Island

Rules of Evidence] and the Confrontation Clause,” such is not the case. See Crawford v.


5
 We discuss these cases below; they are State v. McManus, 990 A.2d 1229 (R.I. 2010) and State
v. Jaiman, 850 A.2d 984 (R.I. 2004).
6
  Although the trial justice stated this in the future tense, it appears that counsel took this as the
trial justice’s definitive ruling.
7
 When the state moved for admission, defense counsel objected and noted the previous sidebars.
The court asked whether defense counsel wanted further argument, but defense counsel declined.
The trial justice then stated, “Same ruling. May be marked.” Transcripts of the recording were
provided as aids for the jury, but the transcripts were not admitted as full exhibits.
                                                - 10 -
Washington, 541 U.S. 36, 61 (2004) (“Where testimonial statements are involved, we do not

think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules

of evidence, much less to amorphous notions of ‘reliability.’”). Therefore, we will consider

these arguments separately.

                                                  A

                                  Rule of Evidence 801(d)(1)(A)

       “The applicable standard of review of a trial justice’s admission of evidence is a clear

abuse of discretion.” State v. McManus, 990 A.2d 1229, 1234 (R.I. 2010). Rule 801(d)(1)(A)

provides: “A statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement, and the statement is * * * inconsistent

with the declarant’s testimony * * *.” The trial justice allowed examination based on Long’s

prior statements and admitted the recording of his statement under this rule. We conclude that

the trial justice did not abuse her discretion in doing so.

       We have addressed nearly identical situations in two previous opinions. In State v.

Jaiman, 850 A.2d 984, 986 (R.I. 2004), a key witness “suffered a convenient failure of memory,

declaring over and over again, especially at critical points about details of [a] drive-by shooting,

that he had difficulty remembering the events of [the evening of the shooting].” At trial, the state

introduced portions of the witness’s police statement, and, on appeal, the defendant argued that

the statement should not have been admitted under Rule 801(d)(1)(A). Jaiman, 850 A.2d at 986,

987. This Court concluded that “the provisions of Rule 801(d)(1)(A) have been satisfied and that

[the witness] was subject to cross-examination within the meaning of the rule.” Jaiman, 850

A.2d at 990. In McManus, 990 A.2d at 1232, a witness who had been approached by the

defendant to engage in a murder for hire scheme “professed a total failure of memory about



                                                - 11 -
everything concerning the incident, including his discussions with the state police.”           The

prosecutor questioned the witness as an adverse witness and used leading questions over defense

counsel’s continuing objection.    Id.    We held that the introduction of the witness’s police

statement was proper under Rule 801(d)(1)(A). McManus, 990 A.2d at 1236. Permitting this

kind of examination in the face of a witness’s convenient failure of memory is consistent with a

prominent treatise on the law of evidence:

                “Where a witness no longer remembers an event, a prior statement
               describing that event should not be considered inconsistent. Yet
               the tendency of unwilling or untruthful witnesses to seek refuge in
               a claim of forgetfulness is well recognized. Hence the judge may
               be warranted in concluding under the circumstances the claimed
               lack of memory of the event is untrue and in effect an implied
               denial of the prior statement, thus qualifying it as inconsistent.
               The case law readily accepts this position.” 2 McCormick on
               Evidence, § 251 at 214 (7th ed. 2013).

       We discern no difference between this case and our prior holdings in Jaiman and

McManus. Here, Long similarly professed a lack of memory regarding almost all of the facts

salient to the robbery and his subsequent arrest, including his own signature and the sound of his

voice. Thus, it was permissible for the prosecutor to question him about the details of his

statement to police in an attempt to refresh his recollection and for the trial justice to admit the

recording. It was for the jury to determine whether Long’s refusal to admit his recollection was

refreshed was in fact a denial of the prior statement and therefore, a prior inconsistent statement

of a testifying witness. Accordingly, the trial justice did not abuse her discretion by admitting

the statements under Rule 801(d)(1)(A).

                                                 B

                                      Confrontation Clause

       This Court reviews issues of constitutional dimension on a de novo basis. State v.

Oliveira, 961 A.2d 299, 308 (R.I. 2008) (“This Court undertakes a de novo review of questions
                                               - 12 -
of law, as well as mixed questions of law and fact, that involve issues of constitutional

dimension.”). The Sixth Amendment to the United States Constitution provides: “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against

him * * *.” Although not articulated with perfect clarity, defendant’s Confrontation Clause

argument seems to suggest that, despite his physical presence on the witness stand, Long was

unavailable for cross-examination because of his professed lack of memory.

       The seminal case in modern Confrontation Clause jurisprudence is Crawford v.

Washington, 541 U.S. 36 (2004).        In Crawford, the Supreme Court recognized that the

Confrontation Clause provides a procedural, rather than substantive, guarantee that evidence be

tested by cross-examination:

              “[T]he [Confrontation] Clause’s ultimate goal is to ensure
              reliability of evidence, but it is a procedural rather than a
              substantive guarantee. It commands, not that evidence be reliable,
              but that reliability be assessed in a particular manner: by testing in
              the crucible of cross-examination. The Clause thus reflects a
              judgment, not only about the desirability of reliable evidence (a
              point on which there could be little dissent), but about how
              reliability can best be determined.” Id. at 61.

Nevertheless, Crawford also declared, “[W]hen the declarant appears for cross-examination at

trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial

statements.” Crawford, 541 U.S. at 60 n.9. In this case, the declarant—Long—appeared at trial

and was subject to cross-examination, including cross-examination with the contents of his prior

statement. Additionally, defense counsel questioned Long about his plea deal, his arrest, and a

possible love affair between defendant and Labossiere.

       The defendant relies upon two United States Supreme Court cases for his Confrontation

Clause argument. In Douglas v. Alabama, 380 U.S. 415, 416 (1965), the witness called to testify

was a previously convicted codefendant who invoked his privilege against self-incrimination


                                              - 13 -
when he took the stand. After the judge ordered the witness to answer and he again refused, the

prosecutor read from a document purporting to be a signed confession by the witness and, every

few sentences, asked the witness whether he made the statement. Id. The witness continued to

assert the privilege and to refuse to answer. Id. at 416-17. The Supreme Court held that the

defendant’s inability to cross-examine the witness regarding the confession denied the defendant

his right of cross-examination under the Confrontation Clause. Id. at 419. Here, Long did not

refuse to testify based on any Fifth Amendment privilege; rather, he testified that he had no

memory about the statement but was, in fact, available for cross-examination. Although his

responses were not particularly helpful, they were substantive in that he stated that he did not

remember making the statement and did not recognize the sound of his own voice or his

signature; Long did not deny making the statement to police. Further, on cross-examination,

defense counsel asked a number of questions about the circumstances surrounding Long’s

statement, and Long answered those questions.8         Thus, we cannot say that Long was not

available for cross-examination as is a witness who claims a privilege against self-incrimination

and refuses to answer any questions at all.

       The defendant also cites Lee v. Illinois, 476 U.S. 530 (1986), to support his

Confrontation Clause argument. Because the reasoning of Lee is fundamentally at odds with the

reasoning of Crawford, its continued viability is dubious. Compare Crawford, 541 U.S. at 63

(rejecting an “indicia of reliability” framework as “so unpredictable that it fails to provide

meaningful protection from even core confrontation violations”) with Lee, 476 U.S. at 539

8
  For example, when shown the rights form that he signed, Long acknowledged that he signed
the form at 6:12 p.m.; when shown the transcript of the recorded statement, Long acknowledged
that it did not start until 6:52 p.m. Defense counsel then asked a number of questions about what
happened in the time between the signing of the rights form and the start of the recording. Long
responded that he did not remember having a conversation with the police officers before they
turned the recorder on, but that they “said something about the robbery.”
                                              - 14 -
(holding that the witness’s statement was “presumptively unreliable and that it did not bear

sufficient independent ‘indicia of reliability’ to overcome that presumption”); see also State v.

Moten, 64 A.3d 1232, 1240 (R.I. 2013) (noting that Crawford definitively abrogated the “indicia

of reliability” framework as announced in Ohio v. Roberts, 448 U.S. 56 (1980)). Regardless of

the legal reasoning, the facts of Lee are inapplicable here because the confessing codefendant

witness in Lee never took the stand. See Lee, 476 U.S. at 536.

       Accordingly, we are satisfied that the use of Long’s prior police statements as prior

inconsistent statements did not violate the Confrontation Clause. See Crawford, 541 U.S. at 60

n.9; see also Jaiman, 850 A.2d at 989 (“[T]he Confrontation Clause ‘guarantees only an

opportunity for effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.’”).

                                                  C

                                      Remaining Arguments

       The defendant also contends that the leading questions that the prosecutor was permitted

to ask Long were prejudicial. When reviewing leading questions posed to another witness

suffering from jailhouse amnesia, this Court declared,

               “Although leading questions generally are prohibited on direct
               examination, they may be allowed for a limited purpose such as to
               guide the testimony of a hostile or a purportedly forgetful witness.

                        “Here, it is clear that [the witness’s] appearance at trial was
               anything but cooperative; he experienced a failure of memory that
               could be characterized as hostile and lacking in credibility. A
               party is entitled to treat a forgetful witness as adverse; and, in an
               effort to elicit truthful testimony from the witness, the examiner
               may resort to leading questions. It is within the discretion of the
               trial justice to decide whether to allow the examiner to lead; that
               discretion, however, is not without limit.” McManus, 990 A.2d at
               1236.



                                                - 15 -
Although in McManus, the trial justice came “dangerously close to a prejudicial abuse of

discretion,” we deemed any error to have been harmless “in light of our decision upholding the

introduction of [the witness’s] statement to the police.” Id. In this case, we are of the opinion

that error, if any, arising from the use of leading questions by the state was harmless based on

our conclusion that Long’s police statement was admissible as a prior inconsistent statement.

This holding simply recognizes the difficulty inherent in attempting to refresh the recollection of

an unwilling witness without resort to leading questions. This is a decision left to the discretion

of the trial justice.

        The defendant also argued that his due process rights were violated because Long’s

statement was obtained without counsel and was the product of coercion.            This argument,

however, was not raised to the trial justice below. Therefore, it was waived. See State v. Bido,

941 A.2d 822, 828-29 (R.I. 2008) (“It is well settled that a litigant cannot raise an objection or

advance a new theory on appeal if it was not raised before the trial court.”).

                                                III

           Admission of Jeannine Labossiere’s Testimony as an Adoptive Admission

        The defendant argues that Long’s statements to Labossiere should not have been admitted

as adoptive admissions by defendant. At trial, Labossiere testified that Long and defendant came

to her house at 1 a.m. on May 7, 2009. She noticed that defendant was limping and that Long

had a bandana wrapped around his hand; thus, she sensed that something was amiss. After she

repeatedly asked them what happened, Long admitted that “they robbed a Domino delivery guy.”

According to Labossiere, defendant “looked a little mad that Long said something” to her, but he

remained silent. Long then provided additional details about the crime, including that he gave

Labossiere’s cell phone to defendant so that defendant could call Domino’s and place an order



                                               - 16 -
for delivery to an abandoned house. Long disclosed that, when Lopez approached the house,

defendant grabbed him and put him in a choke-hold. At that point, it was defendant who

demonstrated the choke-hold to Labossiere. She also testified that Long described Lopez as

badly beaten and that he got away a couple of times such that defendant had to put him back in

the choke-hold. Shocked at these revelations, Labossiere said to them, “What the hell did you

guys do?” She testified that defendant responded, “We just told you what we did.” (Emphasis

added.) When she inquired about the fruits of the robbery, defendant told Labossiere that he

bought her a pack of cigarettes and produced about $15 in cash.

       A trial justice’s evidentiary rulings are reviewed under an abuse of discretion standard.

McManus, 990 A.2d at 1234. Rule 801(d)(2)(B) provides that “[a] statement is not hearsay if

* * *[t]he statement is offered against a party and is * * * a statement of which the party has

manifested his or her adoption or belief in its truth[.]”    It is well settled that “silence is

sometimes sufficient to signify adoption.”    Day, 925 A.2d at 983.      Where an accusatory

statement was made within hearing distance of an accused and the accused did not respond to the

accusation, this Court has pointed to five factors to consider in deciding whether a purported

adoptive admission results:

              “(1) whether the statement was incriminating or accusatory; (2)
              whether it was one to which an innocent person in the defendant’s
              situation would respond; (3) whether the statement was made
              within the presence and hearing range of the defendant; (4)
              whether it was understood by the defendant; and (5) whether the
              statement was one to which the defendant had an opportunity to
              respond.” Id.

       We are satisfied that this case represents a use of classic adoptive admissions. Long

implicated defendant in a robbery; thus, the statement was clearly incriminating. Furthermore,

an innocent person would certainly respond to such a direct suggestion of robbery. Labossiere

also testified that Long and defendant were standing side-by-side—clearly within hearing range.
                                             - 17 -
The fact that defendant looked annoyed by Long’s initial disclosure of the robbery and later

demonstrated the choke-hold he applied to subdue Lopez establish that he not only understood

the statements, but that he also had an opportunity to respond; additionally, evidence that

defendant demonstrated the choke-hold is an admission by conduct. If defendant’s silence

during Long’s initial disclosure was not enough to establish an adoptive admission, defendant

later affirmed his participation in the robbery by telling Labossiere, “[w]e just told you what we

did.” Accordingly, the trial justice did not err by admitting Long’s statements to Labossiere in

the presence of defendant as adoptive admissions.

                                                 IV

                         Denial of Defendant’s Motion for a New Trial

       The defendant contends that the trial justice erred by denying his motion for a new trial.

“When ruling on a motion for a new trial, the trial justice acts as a thirteenth juror, exercising

‘independent judgment on the credibility of witnesses and on the weight of the evidence.’” State

v. Heredia, 10 A.3d 443, 446 (R.I. 2010) (quoting State v. Imbruglia, 913 A.2d 1022, 1028 (R.I.

2007)). “Specifically, ‘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. Texieira, 944 A.2d 132, 140 (R.I. 2008)). “If, after conducting such

a review, the trial justice reaches the same conclusion as the jury, the verdict should be affirmed

and the motion for a new trial denied.” Id. Only when the trial justice does not agree with the

jury’s verdict must he or she consider whether reasonable minds could differ as to the outcome.

State v. LaPierre, 57 A.3d 305, 310 (R.I. 2012). “[W]hen ‘the trial justice has articulated a

sufficient rationale for denying a motion for a new trial, the decision will be given great weight’



                                               - 18 -
and we will disturb it only if the trial justice ‘has overlooked or misconceived material evidence

relating to a critical issue or if the justice was otherwise clearly wrong.’” State v. Ferreira, 21

A.3d 355, 365 (R.I. 2011) (quoting State v. Banach, 648 A.2d 1363, 1367 (R.I. 1994)).

        In this case, the trial justice thoroughly recounted the evidence witness-by-witness. She

made credibility determinations as to the key witnesses; specifically, she found that Lopez and

Labossiere were credible and that the defendant, his mother, and Long were not credible

witnesses. Ultimately, the trial justice agreed with the jury’s verdict and denied the motion for a

new trial. Primarily, the defendant seizes upon the trial justice’s apparent misstatement that it

was the defendant who told Labossiere that he and Long had robbed a Domino’s delivery-

person. While the defendant is correct—the record discloses that it was Long who made the

disclosure—this error is immaterial to the decision denying the defendant’s motion for a new

trial. Although the defendant did not directly declare, “we robbed a Domino’s delivery guy,” his

silence and demonstrative conduct permit the factfinder to draw an inference that the defendant

adopted that statement. Furthermore, as noted by the trial justice, the defendant demonstrated his

choke-hold for Labossiere and also responded to her question by saying, “We just told you what

we did.” Therefore, the trial justice did not overlook or misconceive material evidence relating

to a critical issue in this case. Accordingly, she did not err by denying the defendant’s motion

for a new trial.

                                           Conclusion

        For the reasons articulated above, we affirm the conviction. The papers may be returned

to the Superior Court.




                                              - 19 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Marcus Matthews

CASE NO:              No. 2011-398-C.A.
                      (P1/09-3674A)

COURT:                Supreme Court

DATE OPINION FILED: April 11, 2014

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Susan E. McGuirl

ATTORNEYS ON APPEAL:

                      For State: Aaron L. Weisman
                                 Department of Attorney General

                      For Defendant: David D. Prior, Esq.
