June 12, 2020


                                                                       Supreme Court

                                                                     No. 2019-55-Appeal.
                                                                     (NM 10-649)


                   Roger Graham                   :

                          v.                      :

                State of Rhode Island.            :




                    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
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                    corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2019-55-Appeal.
                                                                  (NM 10-649)


              Roger Graham                    :

                     v.                       :

          State of Rhode Island.              :


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

                                         OPINION

       Justice Indeglia, for the Court. The applicant, Roger Graham (applicant or Graham),

appeals from a judgment denying his application for postconviction relief. On May 13, 2020,

this case came before the Supreme Court by videoconference pursuant to an order directing the

parties to appear and show cause as to why the issues raised in this appeal should not be

summarily decided.        After hearing the parties’ arguments and reviewing the memoranda

submitted by the parties, we are satisfied that cause has not been shown and that further briefing

or argument is not required to decide this matter. For the reasons stated herein, we affirm the

judgment of the Superior Court.

                                                  I

                                        Facts and Travel

       The underlying facts of this case are set forth in State v. Graham, 941 A.2d 848 (R.I.

2008), where this Court affirmed applicant’s conviction for first-degree murder, discharging a

firearm during the commission of a crime of violence, and conspiracy. Graham, 941 A.2d at

852-53. We recite only the facts that are pertinent to this appeal. On December 31, 2001,

applicant and two friends, Monty France (France) and Hubert “Tall Man” Gordon (Gordon), set

                                               -1-
out in a 1992 Ford Taurus in pursuit “of a profitable drug opportunity in Boston.” Id. at 853.

However, the plans were foiled when the vehicle broke down. Id. After the car was towed to a

local gas station, the men were spotted removing the license plates from the vehicle, and a North

Attleboro police officer was dispatched to investigate the suspicious behavior. Id. At that point,

applicant was stranded after his two friends, France and Gordon, were arrested on outstanding

warrants. Id. The applicant called his friend, T.J. Patel, who brought applicant to a hotel for the

night. Id.

        The next day, January 1, 2002, Patel picked applicant up at the hotel “and the two drove

around for some time, finally ending up in the vicinity of the Founder’s Brook Motel in

Portsmouth.” Graham, 941 A.2d at 853-54. That same day, the manager of that motel was

murdered. Id. at 852.     A subsequent investigation led the police to Patel, which disclosed

applicant’s acquaintance with Patel and applicant’s possible involvement in the murder. Id. at

855. Ultimately, applicant was arrested and charged with first-degree murder, discharging a

firearm during the commission of a crime of violence, and conspiracy. Id. After a trial, applicant

was convicted of all three charges. Id.

        The applicant appealed to this Court, contending “that the trial justice erred in his (1)

instructions to the jury, (2) rulings on various evidentiary issues, (3) denial of defendant’s motion

for a judgment of acquittal on the conspiracy charge, (4) life-without-parole proceedings and

sentencing of defendant, and (5) not appointing defendant additional counsel for his third trial.”

Graham, 941 A.2d at 855. This Court upheld both the conviction and sentence. Id.

        On November 22, 2010, applicant filed a pro se application for postconviction relief, and

counsel was thereafter appointed. In an amended application, applicant argued that (1) newly

discovered evidence had come to light that tended to prove that France, a state witness, had



                                                -2-
testified falsely at applicant’s trial, (2) the trial justice impermissibly amended the indictment

that charged him as a principal, by allowing the jury to consider convicting him as an aider and

abettor, and (3) a consecutive life sentence for discharging a firearm during the commission of a

crime of violence should not have been imposed in addition to his sentence of life without parole

for first-degree murder. The state objected to the amended application and filed a motion to

dismiss. The state asserted that the testimony of France was not newly discovered, the issue of

the amended indictment was barred by res judicata, and the trial justice did not err when he

sentenced applicant.

          On August 6, 2014, a hearing was held before a justice of the Superior Court on the

application for postconviction relief.1 At the hearing, Corey Day was the first witness to testify.

Day testified that he is an inmate incarcerated at the Adult Correctional Institutions for robbery

and was then serving a twenty-year sentence. He testified that, in January 2005, he had direct

contact with France at the ACI “over a period of time[,]” and that he learned that France was

being held as a hostile witness in applicant’s murder trial. Day further testified that he learned

that France and applicant had been friends for ten years and “that they sold cocaine together.”

He testified that at that time he thought he would be getting released from prison on bail and also

thought that France could be a “good coke connection for cocaine distribution[.]”

          Day testified that France told him that the prosecutor in applicant’s case threatened to

charge France with the murder if he did not testify against applicant; but when Day asked France

if applicant had actually committed the murder, France did not answer and simply said “I don’t

know. I don’t know.” According to Day, he continued to ask France whether applicant had




1
    We note that the hearing justice was also the original trial justice.
                                                   -3-
committed the murder, and France finally “broke down, and he said, look man, I’m just doing

what I got to do to get out of this. He didn’t do no murder. It was just a drug deal.”

       Day further testified that, because he needed France as a cocaine connection, he decided

to write a letter to the prosecutor in applicant’s case to strengthen France’s credibility. Day

testified that he changed one detail in the letter in order to help France, writing to the prosecutor

that France said applicant had in fact committed the murder, “when in fact this was not true.”

Day testified that he never received a reply from the prosecutor in the case, but that applicant’s

defense counsel, Robert Mann, called Day’s attorney to ask if Day would testify as a defense

witness. Day testified that he declined because by then he realized he was not “getting out of

prison, so the benefit of helping Monty France was no longer needed.”

       Day testified that he eventually learned that applicant was convicted for the murder and

that it “concerned” him because France was being forced to testify that applicant committed the

crime when, in fact, France had told Day otherwise. Day testified that, on November 25, 2008,

due to this concern, he wrote a letter to Attorney Mann to offer the information he had with

regard to France’s testimony.

       Next, Attorney Mann testified on behalf of applicant. He testified that he received a copy

of the 2005 letter that Day had sent to the prosecutor in applicant’s case. Attorney Mann

testified that he communicated the contents of the letter to applicant and contacted Day’s

attorney to request permission to speak with Day. In response, Day’s attorney told Attorney

Mann that he did not want Attorney Mann to contact Day. Attorney Mann testified that, as a

result of that communication, he did not attempt to make any further contact with Day.

       Attorney Mann further testified that, in November 2008, he received a letter from Day,

which indicated that Day was “taking a totally different point of view and that this would



                                                -4-
potentially be very helpful to Mr. Graham.” Attorney Mann testified that he helped applicant

prepare an application for postconviction relief, based in part on Day’s letter, and, within the

application, he requested that counsel be appointed for applicant, so as to not foreclose applicant

from raising issues in the postconviction-relief application that might involve Attorney Mann.

Attorney Mann testified that, once the application was filed, he had no further involvement with

the case.

       On January 30, 2015, the hearing justice rendered a bench decision. He noted that

applicant had raised three arguments in support of his application for postconviction relief, and

he addressed each issue in turn. With regard to applicant’s claim that Day’s 2008 letter to

Attorney Mann constituted newly discovered evidence, the hearing justice noted that “a

petitioner bears a heavy burden when seeking a new trial on the basis of newly discovered

evidence[.]” The hearing justice found that the evidence was “merely impeaching” and would

only be used “to the effect that Roger Graham told [France] that he was coming to this area to do

a drug deal, not to rough someone up or murder someone.” He further found that Day “had no

personal knowledge of the crime itself” and that whatever knowledge Day did have resulted from

his alleged conversations with France and from reading newspaper articles.

       The hearing justice also commented on Day’s credibility, finding that his “testimony

[was] not worthy of belief” because “[h]e either lied in the first letter or he lied in the second

letter. So he’s an admitted liar, and his testimony on the stand * * * [wa]s not worthy of belief.”

Ultimately, the hearing justice determined that Day’s 2008 letter warranted no weight and was

“certainly not the type of evidence that would change the verdict in this case, nor d[id] it rise to

the level necessary to warrant relief based upon newly discovered evidence.”




                                               -5-
       Regarding whether he impermissibly amended the indictment, which charged applicant

as a principal, by allowing the jury to convict him as an aider and abettor, the hearing justice

stated that this issue was raised before this Court on direct appeal when applicant challenged the

adequacy of the jury instruction. See Graham, 941 A.2d at 858. The hearing justice further noted

that this Court held in Graham that the aiding-and-abetting instruction was appropriate in light of

the substantial amount of evidence presented at trial that may have served as a foundation for a

finding that applicant had assisted Patel in the murder of the motel manager. See id. The hearing

justice found that applicant’s contention was a “distinction without a difference, that could have

also been raised on appeal and argued on appeal, and therefore was waived.”

       Finally, the hearing justice addressed whether he had erred in imposing a consecutive life

sentence for the conviction of discharging a firearm during the commission of a crime of

violence, in addition to applicant’s sentence of life without parole for first-degree murder. The

hearing justice stated that this Court had upheld the firearm statute, G.L. 1956 § 11-47-3.2, on

various grounds, and that the imposition of the consecutive sentence was not only permissible

but mandatory under § 11-47-3.2. Additionally, the hearing justice stated that such an issue

“could have been raised on appeal and was not.” With that, the hearing justice denied the

application for postconviction relief. The applicant timely appealed to this Court.2




2
  We pause to note that applicant’s challenge to the denial of postconviction relief comes to us on
appeal, not certiorari, because he filed his notice of appeal prior to the 2015 amendment to G.L.
1956 § 10-9.1-9, which requires an applicant to file a petition for a writ of certiorari to seek
review of a final judgment regarding postconviction relief. See State v. Gibson, 182 A.3d 540,
543 n.1 (R.I. 2018).
                                               -6-
                                                 II

                                       Standard of Review

        “Rhode Island’s statutory postconviction remedy is set forth in [G.L. 1956] chapter 9.1 of

title 10.” State v. Thornton, 68 A.3d 533, 539 (R.I. 2013). “Section 10-9.1-1 enumerates the

circumstances in which ‘one who has been convicted of a crime may seek collateral review of

that conviction.’” Id. (deletion omitted) (quoting Anderson v. State, 45 A.3d 594, 601 (R.I.

2012)). “An applicant who files an application for postconviction relief bears the burden of

proving, by a preponderance of the evidence, that such relief is warranted.” Id. at 540 (quoting

Anderson, 45 A.3d at 601).

        “When we review an application for postconviction relief, ‘this Court will not impinge

upon the fact-finding function of a hearing justice absent clear error or a showing that the hearing

justice overlooked or misconceived material evidence in arriving at those findings.’” Chum v.

State, 160 A.3d 295, 298 (R.I. 2017) (brackets and deletion omitted) (quoting Tempest v. State,

141 A.3d 677, 682 (R.I. 2016)). “We review de novo ‘questions of fact or mixed questions of

law and fact pertaining to an alleged violation of an applicant’s constitutional rights.’” Id. at

298-99 (deletion omitted) (quoting Tempest, 141 A.3d at 682). “Even when employing a de

novo review, ‘we still accord a hearing justice’s findings of historical fact, and inferences drawn

from those facts, great deference.’” Id. at 299 (deletion omitted) (quoting Tempest, 141 A.3d at

682).

                                                III

                                            Discussion

        Before this Court, applicant asserts that the hearing justice erred when he determined that

the testimony of Day was not newly discovered evidence, the indictment which charged



                                               -7-
applicant as a principal was not impermissibly amended by allowing the jury to convict him as

an aider and abettor, and a sentence of imprisonment for discharging a firearm during the

commission of a crime of violence could be imposed consecutive to a sentence of life without

parole for first-degree murder. We address each of these contentions below.

                                                A

                                  Newly Discovered Evidence

       The applicant first contends that the hearing justice erred when he determined that Day’s

2008 letter did not meet the test for newly discovered evidence because it was “merely

impeaching.” According to applicant, the trial testimony of France, claiming that applicant went

to Boston to commit an act of violence, was the only direct evidence of a conspiracy between

applicant and Patel, his codefendant, to commit such act. Also, applicant claims that Day’s 2008

letter “is more compelling than that,” because France’s testimony at trial contradicted that of

applicant’s when applicant testified at trial that “he traveled to Boston to complete a drug deal

and not to commit murder.”

       “When conducting the analysis of an application for postconviction relief based on newly

discovered evidence, the hearing justice utilizes the same standard used for considering a motion

for a new trial due to newly discovered evidence.” Reise v. State, 913 A.2d 1052, 1056 (R.I.

2007). “That standard consists of two parts.” Id. “The first part of this analysis requires that a

postconviction-relief applicant ‘establish that (a) the evidence is newly discovered or available

only since trial; (b) the evidence was not discoverable prior to trial despite the exercise of due

diligence; (c) the evidence is not merely cumulative or impeaching but rather is material to the

issue upon which it is admissible; and (d) the evidence is of a kind which would probably change

the verdict at trial.’” Rice v. State, 38 A.3d 9, 15 n.8 (R.I. 2012) (quoting Reise, 913 A.2d at



                                              -8-
1056). “Should an applicant meet this preliminary threshold, ‘the hearing justice must then

determine, in his or her discretion, whether or not the newly discovered evidence is sufficiently

credible to warrant relief.’” Id. (quoting Reise, 913 A.2d at 1056).

       It is clear to us that the hearing justice correctly determined that applicant did not carry

his burden and meet the standard for newly discovered evidence. On appeal, as in the trial court,

the state concedes that applicant meets the first two prongs of the test for newly discovered

evidence. Indeed, Day’s revelation was not discoverable until he wrote the letter to Attorney

Mann in November 2008, well after trial. For similar reasons, the evidence was not discoverable

prior to trial despite the exercise of due diligence from trial counsel. However, we agree with the

hearing justice that Day’s 2008 letter is merely impeaching, and in no way material to applicant’s

underlying convictions.

       This Court has held that “[i]mpeaching evidence * * * is ‘information that is not related

to the defendant’s guilt or innocence and serves only to destroy the credibility of the witness.’”

D’Alessio v. State, 101 A.3d 1270, 1276 (R.I. 2014) (brackets omitted) (quoting Bleau v. Wall,

808 A.2d 637, 644 (R.I. 2002)).         Contrarily, “material evidence is that which creates a

‘reasonable probability of a different result.’” Id. (quoting Bleau, 808 A.2d at 643).

       Day’s 2008 letter is not the type of evidence that creates a reasonable probability of a

different result. Neither Day nor France had firsthand knowledge of the murder, and the little

knowledge that Day did have about applicant’s case came from his alleged conversations with

France and from reading newspaper articles. Day’s 2008 letter, which stated that applicant’s

purpose for driving to Boston was for a drug deal, would merely contradict France’s testimony at

trial that applicant’s original purpose for driving to Boston was for a “robbery or some other act

of violence, and did not relate to drugs.” Graham, 941 A.2d at 853. Such evidence is clearly



                                                -9-
collateral to the essential question of whether applicant committed the murder and, if admissible,

would only serve to impeach France’s credibility.

       Additionally, the hearing justice commented on Day’s credibility and found that Day

“clearly ha[d] an axe to grind”; was “an admitted liar” whose testimony “is not worthy of belief”;

and accorded Day’s testimony “no weight whatsoever[.]” This determination was clearly the

hearing justice’s to make. See State v. Marizan, 185 A.3d 510, 518 (R.I. 2018) (“[T]he trial

justice is in a much better position to make factual findings and credibility determinations than

we are[.]”). We therefore hold that the hearing justice was neither clearly wrong nor did he

overlook or misconceive the evidence in finding that Day’s 2008 letter did not meet the test for

newly discovered evidence.

                                                  B

                                            Res Judicata

       Next, applicant avers that the trial justice impermissibly amended the criminal indictment

by instructing the jury on aiding and abetting, despite applicant being “charged as the principal

offender, indicted as a principal, [and] presented evidence against as a principal[.]”           The

applicant also asserts that the trial justice erred in imposing his sentence by sentencing him to life

without parole for first-degree murder followed by a consecutive life sentence under § 11-47-3.2.

       “The doctrine of res judicata as applied to applications for postconviction relief is

codified in § 10-9.1-8.” Ricci v. State, 196 A.3d 292, 298 (R.I. 2018) (quoting Hall v. State, 60

A.3d 928, 931 (R.I. 2013)). Section 10-9.1-8 provides, in pertinent part, that:

               “Any ground finally adjudicated or not so raised, or knowingly,
               voluntarily and intelligently waived in the proceeding that resulted
               in the conviction or sentence or in any other proceeding the
               applicant has taken to secure relief, may not be the basis for a
               subsequent application, unless the court finds that in the interest of



                                                - 10 -
               justice the applicant should be permitted to assert such a ground
               for relief.”

“Thus, the doctrine of res judicata ‘bars the relitigation of any issue that could have been

litigated in a prior proceeding, including a direct appeal, that resulted in a final judgment

between the same parties, or those in privity with them.’” Ricci, 196 A.3d at 299 (quoting Hall,

60 A.3d at 932).

       Clearly, the same parties involved in applicant’s direct appeal are involved in this case,

applicant and the state, and applicant’s direct appeal resulted in a final judgment. See Graham,

941 A.2d at 848, 867. More importantly, applicant could have raised his contentions that the

trial justice impermissibly amended the indictment and erred in implementing his sentence on

direct appeal. Indeed, he raised strikingly similar issues on direct appeal, challenging the trial

justice’s aiding-and-abetting instructions to the jury and the imposition of the sentence of life

without the possibility of parole, both of which were affirmed by this Court. See id. at 866-67.

As such, we conclude that applicant’s contentions that the trial justice impermissibly amended

the indictment and erred in implementing his sentence are barred by res judicata. See Ricci, 196

A.3d at 299.

       Although we conclude that these issues are both barred by res judicata, it is our opinion

that they are also without merit.

                                                 1

                                      Amended Indictment

       The applicant contends that this Court should use this opportunity to define the “interest

of justice” exception, found in § 10-9.1-8, to overcome the res judicata bar and hold that the trial

justice impermissibly amended the criminal indictment by instructing the jury on aiding and

abetting, and allowing the jury to consider convicting him as an aider and abettor. We disagree.

                                               - 11 -
       We have continuously held “that one who aids and abets in the commission of the crime

and is also present at the scene may be charged and convicted as a principal.” State v. Davis, 877

A.2d 642, 648 (R.I. 2005) (quoting State v. McMaugh, 512 A.2d 824, 831 (R.I. 1986)). Our

view is based on our reading of G.L. 1956 § 11-1-3, “which ‘eliminates the legal distinction

between * * * the commission of a crime as a principal and * * * aiding and abetting another in

the commission of a crime.’” State v. Delestre, 35 A.3d 886, 899 (R.I. 2012) (quoting Davis, 877

A.2d at 648). Based on our jurisprudence, a “defendant’s manner of participation, whether as a

principal or an aider or abettor, is not an element of the crime[,]” and is therefore “not an element

of the crimes charged in the indictment[.]” Davis, 877 A.2d at 648.

       As such, the trial justice did not, and could not, impermissibly amend applicant’s criminal

indictment by instructing the jury on aiding and abetting. In any event, we discern no prejudice

to applicant because, as we have previously held, applicant was indeed convicted as a principal.

See Graham, 941 A.2d at 857, 858.

                                                 2

                                   Consecutive Life Sentences

       The applicant avers that the trial justice erred by sentencing him to a life sentence,

pursuant to § 11-47-3.2, consecutive to a sentence of life without parole, because § 11-47-3.2(a)

provides that “a person sentenced to life under this section may be granted parole.”            The

applicant also contends that G.L. 1956 § 12-19-5, authorizing consecutive sentences, creates a

“legal impossibility” because the consecutive life sentence under § 11-47-3.2 will never

commence, because applicant has no possibility to get out on parole on the life-without-parole

sentence for the first-degree murder conviction. Such an argument is without merit.




                                               - 12 -
        It is well established “that the proper procedure for reviewing a sentence imposed in the

Superior Court [is] by a motion to reduce [the] sentence pursuant to Rule 35 of the Superior

Court Rules of Criminal Procedure.” State v. Price, 820 A.2d 956, 973 (R.I. 2003). Our review

of the record reveals that applicant has not filed such a motion.

        Additionally, we have held that § 11-47-3.2(c) provides a mandatory direction that

sentences imposed under § 11-47-3.2 “shall run consecutively, and not concurrently, to any other

sentence imposed[.]” See State v. Monteiro, 924 A.2d 784, 794, 795 (R.I. 2007) (recognizing that

consecutive life sentences imposed under § 11-47-3.2 were mandatory). Therefore, the trial

justice was obligated to sentence the applicant to a life sentence, pursuant to § 11-47-3.2, that ran

consecutively, and not concurrently, to his sentence of life without parole for first-degree

murder.

                                                 IV

                                            Conclusion

        Accordingly, we affirm the judgment of the Superior Court. The record shall be returned

to that tribunal.




                                               - 13 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Roger Graham v. State of Rhode Island.
                                     No. 2019-55-Appeal.
Case Number
                                     (NM 10-649)
Date Opinion Filed                   June 12, 2020
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Newport County Superior Court

Judicial Officer From Lower Court    Associate Justice Stephen P. Nugent
                                     For Applicant:

                                     Jodi M. Gladstone, Esq.
Attorney(s) on Appeal                For State of Rhode Island:

                                     Virginia M. McGinn
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
