                                                   Supreme Court

                                                   No. 2012-3-C.A.
                                                   (P1/10-680A)


                                     :
       State                  :
                                     :
         v.                   :
                                     :
  Lakesha Garrett.            :




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. 2012-3-C.A.
                                                                   (P1/10-680A)


                                                      :
                       State                  :
                                                      :
                        v.                    :
                                                      :
                 Lakesha Garrett.             :


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

                                         OPINION

       Justice Robinson, for the Court. The defendant, Lakesha Garrett, appeals from a

judgment of conviction on one count of voluntary manslaughter. On appeal, the defendant

contends that the trial justice overlooked and misconceived material evidence and was otherwise

clearly wrong in denying her motion for a new trial because, in her view, the state failed to meet

its burden of proving beyond a reasonable doubt that she did not act in self-defense when she (as

her brief states) “grabbed a kitchen knife to protect herself from imminent death or serious

bodily injury at the hands of Gary Mitchell.” For the reasons set forth in this opinion, we affirm

the judgment of the Superior Court.

                                                  I

                                       Facts and Travel

       On October 15, 2009, defendant fatally stabbed Gary Mitchell after a violent altercation.

Subsequently, on February 26, 2010, a Providence County grand jury returned an indictment

charging defendant with the murder of Mr. Mitchell in violation of G.L. 1956 §§ 11-23-1 and 11-




                                              -1-
23-2. In due course, a jury trial took place in May of 2011. We summarize below the salient

aspects of what transpired at trial.

                                                 A

                            The Testimony of Dr. Alexander Chrikov

        Doctor Alexander Chrikov, a medical examiner in the Office of State Medical Examiners,

offered expert testimony as to the cause of Mr. Mitchell’s death. He testified that, in his opinion,

Mr. Mitchell died from a “[s]tab wound of the chest with injury of pulmonary artery and aorta;”

he added that the manner of Mr. Mitchell’s death was homicide.

                                                 B

                               The Testimony of Keneisha Roberts

        Keneisha Roberts testified for the state. She testified that, on October 15, 2009, she was

pregnant and living in one of the two rooms that were in the basement of a “three-family

apartment house” on Harrison Street in Providence; she added that her grandfather, Norman

Cornish, lived in the other room. Ms. Roberts further testified that Mr. Cornish’s room was in

the front of the basement closer to stairs that led outdoors, whereas her room was in the back.

Several photographs of Mr. Cornish’s room and the surrounding area in the basement were

entered into evidence at trial; it appears from those photographs that inside Mr. Cornish’s room,

to the right of the door, there was a counter area with cooking utensils and cooking equipment.

Those photographs further indicate that inside the room, to the left of the same door, there were a

nightstand, a bed, and a television set. The photographs also indicate that there was a door from

the basement hallway into Mr. Cornish’s room and that, in order to go outside from the

basement, one would have to walk up approximately seven or eight steps to a landing, up three

more steps to a door, and then down five steps to the front lawn.




                                               -2-
       Ms. Roberts testified that, on the afternoon of the incident at issue, she observed Mr.

Cornish and defendant “getting ready to smoke crack.” She stated that sometime thereafter Mr.

Cornish’s friend, Gary Mitchell (the victim), arrived, went into Mr. Cornish’s room, and shut the

door. She added that, “after they were done smoking,” she went inside Mr. Cornish’s room to

prepare some food, returning to her own room a short time later to take a nap.

       Ms. Roberts stated that, earlier that day before she left to take a nap, she had observed

that defendant and Mr. Mitchell were arguing about his taking her belongings, including her

liquor and cigarettes—even though she had told him not to do so; Ms. Roberts also

acknowledged that she and defendant had called Mr. Mitchell a “hypocrite” because, in their

view, he participated in a church choir solely for the money. Ms. Roberts stated that, as it

appeared to her, those two incidents caused Mr. Mitchell to become angry.

       Ms. Roberts proceeded to testify that she was awakened from her nap by the sound of

“screaming and crashing” coming from Mr. Cornish’s room. She further testified that, when she

entered Mr. Cornish’s room, she saw Mr. Mitchell “choking [defendant] from behind and

punching her in her face really hard.” She stated that, although defendant was “chunkier” than

Mr. Mitchell, he was “more muscular.”1 It was Ms. Roberts’s testimony that she yelled at Mr.

Mitchell to “get off of” defendant; it was her further testimony that she attempted to “physically

try to remove him” but that her efforts to do so were unsuccessful.

       Ms. Roberts testified that Mr. Cornish then entered the room, and she described what he

did as follows:

                  “My grandfather tried to get in-between them while Gary
                  [Mitchell] was still choking Lakesha but finally he got ahold of

1
         The autopsy report prepared by Dr. Chirkov which was entered into evidence at trial
indicates that Mr. Mitchell was five feet five inches tall. According to defendant’s testimony,
she is five feet three inches tall.


                                                -3-
               Gary and he was in the back of the room like bear hugging him,
               right, to keep him away from Lakesha because he was still trying
               to get to her.”

Ms. Roberts testified that Mr. Cornish also moved a chair to the middle of the room while trying

to maneuver Mr. Mitchell farther away from defendant. Ms. Roberts additionally testified that,

even though Mr. Cornish was pulling Mr. Mitchell away from defendant, Mr. Mitchell

nonetheless succeeded in pushing defendant into the door that led from the room to the hallway;

she added that the door broke from the impact of defendant’s body and that defendant then fell to

the ground. It was Ms. Roberts’s further testimony that, after being pushed into the door,

defendant was “really stunned” and “started crying and going crazy and talking to herself.” She

testified that defendant said: “I can’t believe you did this to my face. I can’t believe you

punched me in my face. How dare you[?]” Ms. Roberts stated that she observed defendant

“reach to the top of the microwave to try to steady herself to get up” off the floor and that, in the

process, defendant ended up knocking over certain kitchen items that were located on a piece of

plywood above the microwave. According to Ms. Roberts’s testimony, defendant then began

searching for something on the counter and stopped doing so when she found “a big kitchen

knife.” Ms. Roberts stated that, when defendant grabbed the knife, she was approximately two

inches from the damaged door, whereas Mr. Mitchell and Mr. Cornish were on the other side of

the room (farthest from the door). Ms. Roberts also stated that defendant was still “ranting” at

that point, saying: “I’ll kill you, you missed [sic] up my face.”

       Ms. Roberts testified that then, because Mr. Cornish did not have a very good hold on

Mr. Mitchell, he “ended up coming – as if he was coming toward [defendant].” She added that,

at that point, defendant “was going toward him so it was like they were lunging at each other.” It

was Ms. Roberts’s testimony that defendant took approximately five steps towards Mr. Mitchell




                                                -4-
and that, when “[t]hey met in the middle” of the room, defendant stabbed him twice with the

knife. Ms. Roberts stated that Mr. Mitchell then “fell on top of” the chair which was located

between the two of them and that defendant then fell on top of Mr. Mitchell.2 She further stated

that she saw defendant attempt to stab Mr. Mitchell approximately three or four times during the

incident at issue. She testified that she then left the room where the stabbing had occurred and

went upstairs3 to call an ambulance.

                                                C

                              The Testimony of Norman Cornish

       Norman Cornish, the grandfather of Ms. Roberts, also testified for the state. He testified

that, on October 15, 2009, defendant had been staying with him in his room in the basement

apartment on Harrison Street. Mr. Cornish further testified that, on that date, Mr. Mitchell came

to the apartment and brought alcohol with him, which Mr. Mitchell and defendant began

drinking.

       Mr. Cornish testified that, at some point during that afternoon, he left the apartment for

approximately forty-five minutes and that, upon his return, defendant told him, in Mr. Mitchell’s

presence, that Mr. Mitchell was “disrespecting her, * * * was taking her beers [and] cigarettes

and * * * was making sexual advances towards her.” Mr. Cornish also stated that, although Mr.

Mitchell had remained quiet while defendant was talking, she went over to Mr. Mitchell and


2
       On recross-examination, Ms. Roberts answered in the affirmative when asked if Mr.
Mitchell fell “[b]ackwards in the area of the chair.” Ms. Roberts’s testimony is therefore unclear
as to whether Mr. Mitchell had in fact advanced past the chair towards defendant before he was
stabbed.
3
        Despite Ms. Roberts’s testimony that she left Mr. Cornish’s room and went upstairs after
the stabbing, she responded in the affirmative when asked on cross-examination “if [defendant]
had wanted to exit that room, the door was broken, right?” She also acknowledged that there
was debris in front of the broken door. She additionally testified that, when the paramedics
arrived, they broke off part of the door to get inside Mr. Cornish’s room.


                                              -5-
“gave him a little slap behind the ear.” He added that defendant then grabbed a two-prong fork

used for “carving food” and held it to the side of Mr. Mitchell’s neck, stating: “[Y]ou don’t want

to see the bad side of me.” He further testified that defendant, at his request, gave him the fork,

which he put away. He said that he thereafter went outside to take out the garbage.

       Mr. Cornish testified that, on his way back to the basement, he heard Ms. Roberts saying:

“[G]et off of her, Gary; stop sitting [on] her, Gary; leave her alone, Gary.” Mr. Cornish further

testified that, when he opened the door to his room, he saw Mr. Mitchell “choking [defendant] up

against the wall.” When Mr. Cornish was confronted on cross-examination with his October

15th statement to the police, he stated (describing the incident in a manner that differed from

what he had said on direct examination) that he told Mr. Mitchell to let defendant go and that he

“grabbed” him and “took his hands away” from defendant. Mr. Cornish stated that Mr. Mitchell

then shoved defendant backwards with his hand and that she “fell back and hit the door,” which

he stated was “totally demolished” from the impact of her body; he added that she also “knocked

over the shelf [in the kitchen area] where the knife was” resting.

       Mr. Cornish stated that, at that point, defendant was in front of the door and that he and

Mr. Mitchell were at the back of the room, approximately four to five feet away from her. Mr.

Cornish testified that Mr. Mitchell, whom he described as being “calm” and not “violent” at that

time, then took a step forward towards defendant. Mr. Cornish further testified that defendant

stood up from the floor with the knife in her hand; he added that he believed that Mr. Mitchell

was trying to leave, but backed up when he saw the knife in defendant’s hand. It was Mr.

Cornish’s testimony that defendant thereafter took three steps towards Mr. Mitchell and then

“struck him three times” with the knife. Mr. Cornish stated that defendant and Mr. Mitchell then




                                                -6-
both fell to the floor and that defendant, at his request, gave him the knife, which he placed

outside his room.4

                                                D

                     The Defendant’s Motion for a Judgment of Acquittal

        At the close of the prosecution’s case, defense counsel made a motion for a judgment of

acquittal pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure, which motion

was directed at only the charge of first-degree murder. The trial justice granted defendant’s

motion. After the trial justice’s ruling on the Rule 29 motion, the defense then proceeded to

present its case.

                                                E

                                 The Testimony of Defendant

        The defendant, Lakesha Garrett, testified in her own defense. She testified that, on

October 15, 2009, she was at Mr. Cornish’s apartment on Harrison Street, where Mr. Mitchell

and Ms. Roberts were also present. She acknowledged on cross-examination that she had gone

there “to use crack cocaine.” However, Ms. Garrett denied having used crack cocaine on the day

of the stabbing—although she acknowledged that the results of the tests performed at the hospital

after the stabbing indicated the presence of cocaine in her bloodstream.

        It was defendant’s testimony that, at some point during the day when she was alone with

Mr. Mitchell in Mr. Cornish’s room, he had taken her cigarettes from her lap and had touched

her arms, breasts, and “between [her] legs;” she added that that touching “went on for quite a

while.” She stated that Mr. Mitchell’s conduct made her a “little upset” but “[n]ot angry;” and

she denied smacking Mr. Mitchell’s head, holding a meat fork to his neck, or threatening him.

4
       The state presented additional witnesses at trial; however, we need not detail their
testimony.


                                               -7-
The defendant’s testimony was impeached by a recorded statement that she gave to the

Providence police on October 16, 2009, which was played for the jury and entered into evidence

as an exhibit, in which statement defendant admitted that she had threatened Mr. Mitchell. When

the prosecutor asked defendant on cross-examination whether she had made such a statement to

the police, she replied: “I did not say that.”

        The defendant testified that, when Mr. Cornish left the apartment for the second time that

day, she attempted to leave as well. However, she said that, as she was gathering her belongings

on Mr. Cornish’s bed with her back turned towards Mr. Mitchell, he hit her head from behind.5

According to her testimony, Mr. Mitchell was choking her and punching her in the face when

Ms. Roberts came into the room and screamed at Mr. Mitchell to “get off of her.” She testified

that, at some point, she broke free from Mr. Mitchell, but she added that Mr. Mitchell was still

holding her when she took “three steps” across the room to the area near the microwave. It was

her testimony that she saw a spatula and then a knife; and, in explaining her decision to pick up

the knife instead of the spatula, defendant stated that she “knew a spatula wasn’t going to keep

him off of [her].” With respect to her intention when she picked up the knife, defendant stated:

“I didn’t intend to hurt him. * * * I just wanted to keep him off of me. I only intended to

brandish the knife.” According to defendant, she “thought [Mr. Mitchell] was going to kill

[her].” When defendant was asked whether she was able to walk out of the apartment at any

point during the incident, she stated: “I was not turning my back on [Mr. Mitchell].”




5
        The defendant answered in the negative when asked on cross-examination whether she
did anything to provoke Mr. Mitchell. However, she stated that “the hypocrite thing” (referring
to the incident when she and Ms. Roberts called Mr. Mitchell a hypocrite, (see Part I.B, supra))
and her telling Mr. Cornish about Mr. Mitchell having taken her cigarettes and having touched
her inappropriately made Mr. Mitchell “really angry.”


                                                 -8-
       The defendant testified on direct examination that she did not know how she stabbed Mr.

Mitchell; she stated, however, that what she remembered about the altercation was that she “had

the knife in [her] left hand and * * * was kind of hoarding [sic] off blows” from Mr. Mitchell.

She subsequently testified on cross-examination that she had “just poked” him with the knife.6

She further testified that she did not remember how many times she had “poked” him, but she

recalled that “all of a sudden” “he sat down in the chair,” which she testified was behind him.

       The defendant’s testimony differed from that of Ms. Roberts and Mr. Cornish in some

respects; and, at times, she also contradicted herself. During the course of her testimony,

defendant denied several times that Mr. Cornish had been in the room during the altercation and

that he had restrained Mr. Mitchell. It was additionally defendant’s testimony that no one

(neither Ms. Roberts nor Mr. Cornish) attempted to pull Mr. Mitchell away from her. She

claimed that Mr. Mitchell “never let off of” her during the incident, stating: “[H]e was behind me

the whole time. I was trying to get to the door. I never got away from him.” Subsequently,

however, the prosecutor asked defendant on cross-examination whether she was “standing at the

door” after Mr. Mitchell pushed her into it. In response, defendant stated that she was not

standing but was instead “on the floor;” and she responded in the negative when asked if Mr.

Mitchell was also on the floor. She nonetheless later stated, also on cross-examination, that she

did not remember being pushed into the door and that she had not been able to reach the door

before she stabbed Mr. Mitchell. When the prosecutor asked defendant on cross-examination

6
         The record indicates that, when defendant testified that she “poked” Mr. Mitchell with
the knife, she also (in the words of the trial justice in ruling on defendant’s new trial motion)
“demonstrated [that motion] at trial by waiving [sic] her knife-wielding arm above her shoulders
and thrusting the knife into the air.”
         Doctor Chirkov, the medical examiner, testified that Mr. Mitchell was stabbed five times
in total; he added that, while four of the stab wounds were superficial, the fatal stab wound was
the result of the penetration of the chest cavity to a depth of approximately four inches. The
autopsy report indicated that four of the stab wounds were inflicted in a “downward” direction.


                                               -9-
whether she remembered “ranting and raving and yelling about the fact that [Mr. Mitchell] hit

[her] face,” she responded: “That did not happen.” She also denied walking towards Mr.

Mitchell before stabbing him—in contrast to her account of the incident in the above-referenced

recorded interview with the Providence police, during which she stated: “But, I turned around. I

don’t know how I turned around. I began walking, I remember that.” (Emphasis added.)

                                                       F

           The Jury Instructions, the Verdict, the New Trial Motion, and the Sentencing

       After the closing arguments, the trial justice instructed the jury with respect to the law of

second-degree murder, voluntary manslaughter, and the defense of self-defense. On May 26,

2011, the jury rendered its verdict; it acquitted defendant of second-degree murder, but it

returned a verdict of guilty on the lesser-included offense of voluntary manslaughter.

       On June 3, 2011, defendant filed a motion for a new trial pursuant to Rule 33 of the

Superior Court Rules of Criminal Procedure. After a hearing was held on that motion on August

1, 2011, the trial justice denied it. In a decision that occupies some forty transcript pages, her

ultimate conclusion was as follows:

               “[A]fter a thorough examination of all of the evidence, this Court
               finds that there was sufficient evidence for the jury to find beyond
               a reasonable doubt both that the State negated defendant’s self-
               defense and the defendant committed the crime of manslaughter.”

In due course, the trial justice sentenced defendant to twenty years imprisonment, with nine years

to serve and eleven years suspended, with probation. A timely notice of appeal was filed.

                                                G

                            The Defendant’s Appellate Contentions

       The defendant appeals only the trial justice’s denial of her motion for a new trial. Her

appellate argument is based on the law of self-defense. The defendant contends that a new trial



                                              - 10 -
is warranted because, in her view, the trial justice clearly erred and misconceived or overlooked

material evidence in denying her motion since “[r]easonable minds could not differ that

[defendant’s] use of deadly force against the substance-crazed and enraged Gary Mitchell was

indisputably in self-defense and, accordingly, * * * the killing was justified under the

circumstances then pertaining.”       The defendant makes two separate arguments: (1) that

defendant “did not use excessive force when she stabbed [Mr.] Mitchell in self-defense because

she was the victim of an unlawful and violent physical attack which left her in reasonable fear of

imminent death or serious bodily injury;” and (2) that defendant “was justified in using deadly

force against [Mr.] Mitchell in self-defense because, at the time of the confrontation, she was not

consciously aware of an open, safe and available avenue of retreat.”

                                                  II

                                        Standard of Review

       When a trial justice considers a motion for a new trial, he or she “acts as a thirteenth juror

and exercises independent judgment on the credibility of witnesses and on the weight of the

evidence.” State v. Silva, 84 A.3d 411, 416 (R.I. 2014) (internal quotation marks omitted); see

also State v. Clay, 79 A.3d 832, 841 (R.I. 2013); State v. Rosario, 35 A.3d 938, 947 (R.I. 2012).

In carrying out that role, 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.” State v. Gonzalez, 56 A.3d 96, 102 (R.I. 2012) (internal quotation marks omitted);

see also State v. Mitchell, 80 A.3d 19, 30 (R.I. 2013); State v. Paola, 59 A.3d 99, 104 (R.I.

2013). If, after conducting that three-step analysis, “the trial justice agrees with the jury’s verdict

or determines that reasonable minds could differ, then the analysis is complete and the verdict




                                                - 11 -
should be affirmed.” State v. Harrison, 66 A.3d 432, 445 (R.I. 2013) (internal quotation marks

omitted); see also Rosario, 35 A.3d at 947; State v. DeOliveira, 972 A.2d 653, 665 (R.I. 2009).

       We have “indicated that the record should reflect a few sentences of the [trial] justice’s

reasoning on each point.” State v. DiCarlo, 987 A.2d 867, 870 (R.I. 2010) (internal quotation

marks omitted). However, this Court has also stated that “[i]n providing a rationale for a

decision * * * the trial justice * * * need only cite evidence sufficient to allow this [C]ourt to

discern whether the justice has applied the appropriate standards.” Id. (internal quotation marks

omitted).

       We note that, on appeal, “the moving party bears the burden of convincing this [C]ourt

that the trial justice did not conscientiously apply these standards.” State v. Guerra, 12 A.3d 759,

766 (R.I. 2011) (internal quotation marks omitted); see also State v. Banach, 648 A.2d 1363,

1367 (R.I. 1994). In reviewing a ruling on a new trial motion, “[i]f the trial justice has complied

with this procedure and articulated adequate reasons for denying the motion, his or her decision

will be given great weight and left undisturbed unless the trial justice overlooked or

misconceived material evidence or otherwise was clearly wrong.”            Paola, 59 A.3d at 104

(internal quotation marks omitted); see also Guerra, 12 A.3d at 766; State v. Espinal, 943 A.2d

1052, 1058 (R.I. 2008).

       When we review a trial justice’s credibility determinations, “we do not focus on whether,

this Court simply agrees or disagrees with the trial justice’s credibility determinations,” but

rather we are “deferential to those determinations,” Clay, 79 A.3d at 842 (internal quotation

marks omitted); and “we will not overturn [such determinations] unless the trial justice has

overlooked or misconceived material evidence or was otherwise clearly wrong.” State v.

LaPierre, 57 A.3d 305, 311 (R.I. 2012) (internal quotation marks omitted). This Court has stated




                                               - 12 -
on more than one occasion that we afford “a great deal of respect to the factual determinations

and credibility assessments made by the judicial officer who has actually observed the human

drama that is part and parcel of every trial and who has had an opportunity to appraise witness

demeanor and to take into account other realities that cannot be grasped from a reading of a cold

record.” Paola, 59 A.3d at 106 (internal quotation marks omitted); see also DiCarlo, 987 A.2d at

872.

                                                III

                                             Analysis

                                                 A

                              The Trial Justice’s New Trial Ruling

       It should be noted that defendant does not challenge the trial justice’s determination that

there was sufficient evidence presented at trial whereby a reasonable jury could have found that

defendant was guilty beyond a reasonable doubt of voluntary manslaughter, but she does

vigorously challenge the trial justice’s determination that a reasonable jury could have found that

defendant’s self-defense argument was unconvincing.

       In order to put in proper perspective the trial justice’s denial of defendant’s motion for a

new trial, it is necessary to briefly summarize the law in this jurisdiction regarding the defense of

self-defense. This Court has articulated the legal principles relative to the defense of self-

defense as follows:

                        “Under the law relating to self-defense, one may defend
               oneself whenever one reasonably believes that he or she is in
               imminent danger of bodily harm at the hands of another. Such a
               person, having the fear, need not wait for the other to strike the
               first blow. However, such a person must use only such force as is
               reasonably necessary for his own protection. The permissible
               degree of force used in defense of oneself varies with the particular
               set of circumstances in which he or she acts, but in no set of



                                               - 13 -
               circumstances may one apply more than that degree of force
               necessary to prevent bodily injury.” State v. Linde, 876 A.2d
               1115, 1129 (R.I. 2005) (internal quotation marks omitted); see also
               State v. D’Amario, 568 A.2d 1383, 1385 (R.I. 1990).

Before resorting to the use of deadly force, however, “individuals [who are] attacked must

attempt to retreat if they are consciously aware of an open, safe and available avenue of escape.”

State v. Silvia, 836 A.2d 197, 200 (R.I. 2003) (internal quotation marks omitted); see also State

v. Rieger, 763 A.2d 997, 1003 (R.I. 2001). It is also well settled that “one may not invoke the

doctrine of self-defense if he or she has instigated the combative confrontation.” State v. Pineda,

13 A.3d 623, 631 (R.I. 2011) (internal quotation marks omitted); see also State v. Martinez, 652

A.2d 958, 961 (R.I. 1995). We have stated that the “very essence of the defense of self-defense

[hinges on] how the defendant perceived the situation at the time of the incident in question.”

D’Amario, 568 A.2d at 1385 (internal quotation marks omitted); see also Linde, 876 A.2d at

1129. We have also stated that “[o]nce a defendant introduces evidence of self-defense, the

burden is on the state to negate that defense beyond a reasonable doubt.” State v. Urena, 899

A.2d 1281, 1288 (R.I. 2006); see also In re John Doe, 120 R.I. 732, 742, 390 A.2d 920, 926

(1978). Bearing these principles in mind, we next turn to the trial justice’s consideration of

defendant’s motion for a new trial.

       In accordance with the first step in the new trial analytical process, the trial justice

properly considered the evidence in light of the jury charge. The trial justice acknowledged that

defendant had introduced adequate evidence to raise the issue of self-defense, which defense was

referenced in the instructions to the jury. The trial justice stated that the jury could not have

convicted defendant of voluntary manslaughter without first concluding that the state had

negated the defense of self-defense beyond a reasonable doubt. She proceeded to consider the

evidence in light of the settled law of self-defense.         The trial justice comprehensively



                                              - 14 -
summarized the trial proceedings in an “extensive fashion to ensure that all material aspects of

the trial evidence, much of which was disjointed and confusingly presented,” were considered in

her ruling; and she candidly noted the consistencies and inconsistencies in the evidence.

       The trial justice then reached the second step of the required analysis, and independently

assessed the credibility of the witnesses and the weight of the evidence. She found the testimony

of Ms. Roberts to be the most credible, stating as follows:

               “[R]easonable jurors could have accepted the testimony of
               Keneisha Roberts as to how the stabbing incident occurred, it was
               the most credible testimony and the most complete and lacking
               inconsistencies of the witnesses. And she was the most
               disinterested * * * .
                       “In addition, she had not been drinking and smoking crack,
               presumably, like all the others had.”

By contrast, with respect to the testimony of defendant, the trial justice found as follows:

                       “Defendant’s testimony was replete with inconsistencies
               and reflected a woman trying to reconstruct events to match how
               she felt at the time or attempt to justify her actions based on those
               feelings after the facts.”

       It was the trial justice’s opinion (largely based on her crediting of Ms. Roberts’s

testimony as to the brutality of the altercation between defendant and Mr. Mitchell) that a

reasonable juror could have determined that, earlier on October 15, 2009, “defendant actually

believed she was in imminent danger of bodily harm and had reasonable grounds for that

belief * * * .” Significantly, however, the trial justice further found that Mr. Mitchell’s shoving

of defendant into the door constituted a “break in [that] action that affected the analysis of the

evidence” from that point on. The trial justice explicitly noted that, after defendant was shoved

into the door, she was on the opposite side of the room from Mr. Mitchell, who was being

“guard[ed]” by Mr. Cornish, and the trial justice also noted that there was a chair between Mr.




                                               - 15 -
Mitchell and defendant.7 The trial justice then expressly considered the fact that defendant

thereafter chose to pick up the knife (instead of the spatula), did not seek to leave the room (even

though she was closer to the exit than was Mr. Mitchell), and walked “at least five steps”

towards Mr. Mitchell (who was unarmed) before she stabbed him.                   The trial justice

acknowledged that “a reasonable jury could have found that defendant subjectively believed she

still was in imminent danger of bodily harm from Mr. Mitchell at this point in time perhaps

because the defendant’s view of the situation was colored by emotion and the ingestion of

substances.” But the trial justice also determined that a “reasonable jury could have found at that

point the defendant was no longer in reasonable fear of imminent bodily harm and that she

became the aggressor to retaliate in anger against Mr. Mitchell for his past deeds * * * .”

       The trial justice then stated that, even if the jury found that defendant still believed she

was in danger of imminent harm, it could have found that, by “plunging a knife four inches into

[Mr. Mitchell’s] chest,” defendant used an amount of force that was not reasonably necessary for

her own protection. The trial justice found “defendant’s testimony as to how she stabbed upward

blind and into the air in fending off Mr. Mitchell” not to be credible, whereas she found the

testimony of Ms. Roberts with respect to the stabbing to be credible. The trial justice also stated

that it could be inferred from Ms. Roberts’s testimony that defendant’s “goal * * * seemed to be

to stab Mr. Mitchell in the chest rather than stab to deter.” The trial justice noted that “the

autopsy report * * * showed downward stab wounds consistent with the defendant being the

7
        The defendant contends on appeal that the trial justice overlooked evidence that, in
advancing towards defendant prior to the stabbing, Mr. Mitchell “maneuvered beyond [the]
chair.” However, it was the opinion of the trial justice that, after considering the photographs of
Mr. Cornish’s room in light of his testimony describing the respective locations of defendant and
Mr. Mitchell prior to the stabbing and Ms. Roberts’s testimony that they met at the chair, “a jury
could have reasonably concluded that Mr. Mitchell made little, if any, advancement toward
defendant and defendant had to cross a much greater length of the room in order to ultimately
stab Mr. Mitchell.”


                                               - 16 -
aggressor.” Additionally, with respect to defendant’s ability to retreat, the trial justice stated

that:

               “[D]efendant did not first try to retreat, even though she was near
               the door and armed. She could have chose[n] to leave, albeit
               having to stumble over debris and with the risk that Mr. Mitchell
               would follow by backing her way out of the room and up the stairs
               while remaining armed with a knife instead of walking toward and
               lunging at Mr. Mitchell in a crazed state.”

Accordingly, the trial justice found that “reasonable jurors could have found that [defendant] had

an open, safe, available avenue of escape that was not sufficiently blocked in making it unopen

or unavailable.”

        Moving next to the third step in the new trial analytical process, the trial justice

recognized that she was confronted with “a close case of self-defense” in view of what she

described as the “abhorrent, violent actions of Mr. Mitchell toward defendant” preceding the

stabbing, as well as the “drug and alcohol fueled emotions and distorted perceptions of both the

defendant and victim.” Ultimately, however, the trial justice concluded that there was sufficient

evidence for the jury to have found that the state had negated defendant’s defense of self-defense

beyond a reasonable doubt. Then, pursuant to step three of the required analysis, the trial justice

proceeded to state:

               “This Court is in accord with the jury’s verdict, a sensible one
               given all of the evidence, and finds that this does indeed do justice
               in this case.”

At that point, the trial justice denied defendant’s motion for a new trial. See Guerra, 12 A.3d at

765 (stating that if, after conducting the required three-step analysis, the trial justice agrees with

the jury’s verdict, “then the inquiry is at an end and the motion for a new trial should be

denied”).




                                                - 17 -
                                                  B

                    The Defendant’s Challenge to the Denial of a New Trial

       The defendant contends that the trial justice overlooked and misconceived material

evidence and was otherwise clearly wrong in denying her motion for a new trial since, in her

view, the state failed to meet its burden of proving beyond a reasonable doubt that she did not act

in self-defense when she stabbed Mr. Mitchell. The defendant presents two arguments in support

of that contention, which we shall now address.

       The defendant first asserts that she did not use excessive force when she stabbed Mr.

Mitchell because “she was the victim of an unlawful and violent physical attack which left her in

reasonable fear of imminent death or serious bodily injury.” The defendant contends that, in

determining whether her use of deadly force was reasonable, the trial justice overlooked and

misconceived evidence with respect to defendant’s physical condition after Mr. Mitchell’s

assaultive conduct; in support of that contention, she cites State v. Fetzik, 577 A.2d 990 (R.I.

1990), and In re Paul F., 543 A.2d 255 (R.I. 1988). Although defendant correctly states that,

under our law of self-defense, the reasonableness of a defendant’s actions must be considered in

light of the then-present conditions and circumstances, including his or her physical condition,

we cannot say that the trial justice’s analysis of the facts was clearly erroneous in that respect.

       The defendant argues that, as a result of her altercation with Mr. Mitchell, she was in a

“weakened condition,” “[e]xhausted,” and “disoriented” at the time that she picked up the knife

and stabbed Mr. Mitchell. It is clear, however, that the evidence that defendant had been choked,

repeatedly punched, and otherwise assaulted by Mr. Mitchell was before the jury and was

referred to by the trial justice in her ruling on defendant’s motion for a new trial. The trial justice

specifically noted that Mr. Mitchell had perpetrated “particularly horrendous physical abuse”




                                                - 18 -
against defendant, which had “almost killed” her.         Accordingly, we discern no merit in

defendant’s argument that the trial justice overlooked and misconceived material evidence with

respect to defendant’s physical condition in determining that a reasonable jury could find that

defendant’s use of deadly force was unreasonable under the circumstances.8

       The defendant’s second argument is that she was justified in using deadly force against

Mr. Mitchell in self-defense because, “at the time of the confrontation, she was not consciously

aware of an open, safe and available avenue of retreat.” The defendant emphasizes that “the

existence of an ‘open’ and ‘available’ means of egress was dubious” in light of the evidence that

the exit door was broken, that there was debris in front of it, and that defendant would have had

to turn her back to Mr. Mitchell and navigate the stairs out of the basement. It will be recalled,

however, that the trial justice specifically considered those facts in her ruling, finding that

defendant could have chosen to leave “by backing her way out of the room,” “albeit having to

stumble over debris and with the risk that Mr. Mitchell would follow [her] * * * .” We are

unable to conclude that the trial justice clearly erred in finding that a reasonable jury could have

found that there was an “available avenue of escape that was not sufficiently blocked in making

it unopen or unavailable” and that, consequently, defendant was, as our law requires, obliged to

attempt to retreat before using deadly force. See Silvia, 836 A.2d at 200; see also Rieger, 763

A.2d at 1003. The defendant also argues that, because the paramedics had to “break * * * down”



8
         Before this Court, defendant attempts to frame an argument that the reasonableness of her
actions should have also been considered in light of what she contends is “her substantial girth
and probable physical unfitness.” However, due to the fact that such an argument was not raised
at any point before the trial court, it has not been preserved for appellate review. See State v.
Merida, 960 A.2d 228, 236 (R.I. 2008) (“This Court’s well-settled raise-or-waive rule precludes
us from considering at the appellate level issues not properly presented before the trial court.”)
(internal quotation marks omitted); see also State v. Figuereo, 31 A.3d 1283, 1289 (R.I. 2011)
(“This Court staunchly adheres to the raise or waive rule, which requires parties to raise an issue
first in the trial court before raising it on appeal.”) (internal quotation marks omitted).


                                               - 19 -
the door in order to get inside Mr. Cornish’s room, one could assume that defendant was unable

to get out of Mr. Cornish’s room, but the evidence presented at trial indicated otherwise.

Although the trial justice stated that Ms. Roberts’s testimony may have suggested that the

damage to the door hindered defendant’s ability to leave, it was also elicited at trial that both Mr.

Cornish and Ms. Roberts were able to exit the room through the door after the stabbing and

before the paramedics arrived.

                                                  C

                            The Defendant’s Challenge Is Unavailing

       The defendant has failed to convince us that the trial justice did not “conscientiously

apply” the requisite standard in ruling on her motion for a new trial. Guerra, 12 A.3d at 766

(internal quotation marks omitted). Before denying the defendant’s motion, the trial justice

properly considered the evidence in light of the jury charge, thoroughly reviewed all of the facts

adduced at trial in assessing the credibility of the witnesses and weighing the evidence, and

ultimately stated that she was in accord with the jury’s verdict. It is evident that the trial justice

employed the appropriate analytical approach and that she performed her role as the thirteenth

juror carefully, articulating a more than adequate rationale for her decision. In light of the

deferential standard that governs our review of a trial justice’s findings and conclusions in the

context of a motion for a new trial, we are unable to conclude that the trial justice in this case

was either clearly wrong or that she overlooked or misconceived material and relevant evidence

in her denial of the defendant’s motion for a new trial. See Clay, 79 A.3d at 842; State v.

Adefusika, 989 A.2d 467, 481 (R.I. 2010).




                                                - 20 -
                                               IV

                                          Conclusion

       For the reasons set forth in this opinion, we affirm the Superior Court’s judgment of

conviction. The record in this case may be remanded to that tribunal.




                                             - 21 -
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       State v. Lakesha Garrett.

CASE NO:             No. 2012-3-C.A.
                     (P1/10-680A)

COURT:               Supreme Court

DATE OPINION FILED: May 30, 2014

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

WRITTEN BY:          Associate Justice William P. Robinson III

SOURCE OF APPEAL:    Providence County Superior Court

JUDGE FROM LOWER COURT:

                     Associate Justice Judith C. Savage

ATTORNEYS ON APPEAL:

                     For State: Lauren S. Zurier
                                Department of Attorney General

                     For Defendant: Catherine Gibran
                                    Office of the Public Defender
