April 29, 2019
          April 29, 2019




                                                                               Supreme Court

                                                                               No. 2017-376-C.A.
                                                                               (P1/14-1484C)


                                State                     :

                                 v.                       :

                           Thomas Sanchez.                :




                            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 Tel. 222-3258 of any typographical or other
                            formal errors in order that corrections may be made before the opinion is
                            published.
                                                                Supreme Court

                                                                No. 2017-376-C.A.
                                                                (P1/14-1484C)
                                                                (concurrence and dissent
                                                                 begins on page 15)

                   State                      :

                     v.                       :

             Thomas Sanchez.                  :


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

                                         OPINION

       Justice Flaherty, for the Court. The defendant, Thomas Sanchez, seeks review of a

judgment of conviction after a jury found him guilty of two counts of first degree robbery and

one count of conspiracy to commit robbery. Sanchez raises a sole issue before this Court—

whether or not the admission of an out-of-court statement made by Maria Rojas, an alleged

coconspirator who did not appear at Sanchez’s trial, deprived him of his right to confront the

witnesses against him, in violation of the Sixth Amendment to the United States Constitution and

article 1, section 10 of the Rhode Island Constitution. After thoroughly reviewing the record and

after carefully considering the arguments of the parties, we affirm the judgment of conviction.

                                                  I

                                        Facts and Travel

       It has been said that nothing good happens after midnight. The facts before us in

connection with this case provide some support for that adage. One night in February 2014, four

friends—Leonardo Sanchez, Miguel Sanchez, Yonathan Melendez, and Joan Mustafa—spent the

evening and early morning enjoying the nightlife of downtown Providence while partying at a




                                               -1-
local nightclub.1 When the establishment closed at 3 a.m., the revelers visited a 7-Eleven and

ordered some pizza. While they were eating, Christopher Xavier approached Leonardo, claiming

that he knew him. Although he believed that Xavier might have been an occasional customer at

his father’s store, Leonardo told Xavier that he did not recognize him.

        Meanwhile, Melendez had become engaged in a conversation with two women who had

entered the store with Xavier. One of the women was Maria Rojas, who invited the group to an

“after party.” After some cajoling, Melendez persuaded his compatriots to accompany the

women to the party. A third woman joined the group and together, the four young men and three

women squeezed into Leonardo’s car as Maria directed them to her home, which was located on

a dead end street in Pawtucket.

       Upon arriving, the group got out of the car and descended into a “make-shift” basement

apartment. The “after party” the young men found there did not meet their expectations, and

they found it to be sorely lacking in the expected festive accoutrements. When he later testified

at trial, Melendez said that the men remarked at the time, “Ah, there’s no alcohol. There’s no

music. There’s no party. What’s going on?” Both Melendez and Leonardo testified that the

apartment was brightly illuminated, like “[a] normal apartment[,]” and that they could see

clearly. That said, the friends observed that the apartment was in a state of disarray and that a

young man and a woman, later identified as Julian Diaz and his girlfriend, were sleeping in the

living room.2 The friends had been in the basement apartment for about ten to fifteen minutes

when they were joined by three new arrivals—Christopher Xavier, Josue Laboy, and defendant

Thomas Sanchez.


1
  To avoid confusion, Leonardo and Miguel, who share their last name with defendant, will
henceforth be referred to by their first names. No disrespect is intended.
2
  Julian Diaz later testified that Maria Rojas’s two young children were sleeping elsewhere in the
apartment.


                                               -2-
       Leonardo testified that, after Maria asked defendant why he had arrived so late, defendant

replied, “Oh, I’m late because I went home to get this,” as he brandished what Leonardo believed

to be a handgun that defendant had removed from his waistband. Also, Melendez later claimed

at trial that, at some point soon after defendant and the other men arrived, Melendez excused

himself to use the bathroom. He was soon joined by defendant, who offered to allow Melendez

to “have sex with this girl” if Melendez were to pay him. According to Melendez, he rejected

that offer and decided that it was time to leave. A few minutes later, Melendez and Miguel made

their exit from the apartment.

       Leonardo testified that, seeing his friends leave, he turned to say goodbye to the

remaining partyers. Suddenly, defendant grabbed him from behind and held the handgun to his

head. At the same time, Leonardo testified, Xavier held two knives to his abdomen. Leonardo

testified that defendant then told him, “Run your pocket.” Mustafa, who was huddled in the

corner of the room, urged Leonardo to “give everything away. Give everything away.”

Leonardo did not heed that advice, and instead fought with defendant, lunging for the gun.

Although he put up a valiant effort, in the end, Leonardo was subdued after defendant slammed

the weapon into Leonardo’s face three times.

       Leonardo testified at trial that his face was so bloody that he “couldn’t see nothing.” He

claimed that someone picked him up from the floor and that one of the women told him to

remove his ring. With some effort he managed to remove the ring from his finger, and he “gave

it to one of the girls.” Someone, Leonardo was not sure who, relieved him of his wallet, cell

phone, and $150 in cash. After Leonardo’s pockets were unburdened, Maria helped him into the

bathroom so that he could wash himself.

       Melendez testified that, while the scene in the basement was playing out, he and Miguel




                                               -3-
were waiting outside by the car. Melendez testified that one of the women came outside and told

them that Mustafa and Leonardo wanted them to rejoin the party and that the woman insisted that

everyone was having fun. Despite having reservations, Melendez said that he eventually decided

to return to the party, but that Miguel remained outside.

       Leonardo and Melendez each testified that defendant accosted Melendez as soon as he

reentered the apartment; according to Melendez, defendant positioned himself behind Melendez

while he held what Melendez believed to be a handgun while another man held a knife to

Melendez’s throat. Melendez said that, although defendant was behind him, he was able to see

defendant’s face during the encounter. Melendez further testified that someone told him, “Run

your shit[,]” and Mustafa, who was sitting in a chair nearby, urged him, “Look what they did to

Leonardo just do what they say.”        Melendez averred that, unlike Leonardo, he acted on

Mustafa’s advice, and he was soon separated from his jewelry, personal phone, work phone,

roughly $800 in cash, and his “good luck charm,” a $2 bill. Melendez testified that defendant

also demanded that he hand over his sweater. According to Melendez, defendant removed his

own shirt, which had been soiled by Leonardo’s blood, and donned Melendez’s sweater.

       Melendez, Leonardo, and Mustafa were then allowed to leave, but Leonardo and

Melendez each testified that their assailants were taunting them and bragging about having their

belongings, and that one of their assailants—Leonardo testified that it was the man holding the

knives—explained that he was aware of where the victims lived and that he threatened to hurt

them or their families if they called the police. Before they left, Melendez asked defendant to

return his sweater—he claimed it was a Christmas gift from his sister—and his work phone, and

defendant complied with those requests. Despite the assailants’ threats, Melendez called the

police with his newly returned phone as Leonardo, Mustafa, and Melendez were leaving the




                                               -4-
apartment. The men got into Leonardo’s car and drove to a Dunkin’ Donuts about a block away,

where they reconnected with Miguel and waited for the police.

       When police officers arrived at the scene, they stopped a vehicle as it was leaving the

premises. Inside that vehicle were Julian Diaz, Josue Laboy, Christopher Xavier, Maria Rojas,

two other women, and Maria’s two young children. The defendant, who had been seated in the

front passenger seat, already had left the vehicle and fled. The officers followed tracks in the

snow through several residential lots and soon discovered defendant a few streets away from

Maria’s apartment, hiding under a deck. Police searched defendant and discovered that he was

in possession of $737 in cash, two earrings, and a cell phone. A search of the suspects’ car

revealed a black BB gun on the floor behind the passenger seat and a magazine for the BB gun in

the front passenger door compartment.

       Police arrested defendant, Rojas, Diaz, Xavier, and Laboy, and, on May 15, 2014, all five

were charged by indictment with three counts of robbery and one count of conspiracy to commit

robbery.3 Trial testimony revealed that Leonardo and Melendez both identified defendant from a

photographic array of twelve pictures, both claiming that defendant was the man who had

wielded what they believed was a firearm during the robbery. Diaz and Xavier each pled nolo

contendere to the charges brought against them. Subsequently, at trial, both Diaz and Xavier

acknowledged that, during the course of their plea colloquies, each had admitted to helping

Sanchez commit the robberies. Xavier agreed during his trial testimony that he had answered

“yes” during his plea colloquy when asked if defendant had held a gun to one of the victims.4



3
  The third count of robbery against defendant was dismissed prior to the conclusion of his trial.
The charges against Laboy were dismissed pursuant to Rule 48(a) of the Superior Court Rules of
Criminal Procedure after he signed an affidavit detailing the events of the party-cum-robbery.
4
  Although the photographic array and plea colloquies were not transmitted to this Court as part
of the record below, defendant did not dispute at trial that it was his picture that had been


                                              -5-
       At defendant’s trial, Laboy, Diaz, Xavier, and defendant all testified about the events of

that night. Laboy’s testimony was largely corroborative of that provided by Leonardo and

Melendez. Significantly, Laboy testified that, about twenty minutes after the four friends had

arrived at the party, defendant struck Leonardo with a handgun and told him, “Run your pocket.

Give me your money[,]” while another man wielded two knives. Laboy further testified that

defendant later robbed the second victim (Melendez) while using the “same gun.” The stories

told by defendant, Diaz, and Xavier, however, were considerably inconsistent. Significant to this

appeal, however, Maria Rojas absconded and a warrant was issued for her arrest. By the time of

defendant’s trial, she had not been apprehended and therefore was unavailable to testify at trial.

       When defendant took the stand in his own defense, he testified that he had joined Xavier

and Laboy on the way to Maria’s apartment to pick up some of Xavier’s friends. According to

defendant, neither he nor Xavier ever entered the apartment; instead, according to defendant,

they remained outside in the car. The defendant testified that when Maria, her two children,

Diaz, Laboy, and three other women packed into the car some time later, the new arrivals started

“passing stuff out” and he was handed an iPhone. The defendant said he fled when police

stopped the car because he believed that his fiancée might have called the police earlier that

night, and he feared that police would arrest him for domestic abuse. He testified that the large

amount of cash that was found on his person when he was apprehended belonged to him and that

he had earned that money working on a construction job for his fiancée’s father.

       Although Diaz and Xavier each had averred previously in open court that defendant had

committed the robberies at the time they pled nolo contendere to charges relating to the events of



identified in the photographic array by Leonardo and Melendez, nor did he take issue with the
way Diaz and Xavier characterized the admissions they had previously made during their
respective plea colloquies.


                                               -6-
that night, at defendant’s trial, each recanted his earlier version of events. Each claimed that he

had not been paying attention to what was being said during his plea colloquy.

       Indeed, in a complete reversal, Diaz took credit for robbing all four of the hapless friends,

contradicting the testimony of Leonardo, Melendez, and Laboy that Miguel had not even been

present at the time of the robberies. Diaz further swore that it was he who had battered the

victims while Laboy and Maria helped him rifle through the victims’ pockets. According to

Diaz, both defendant and Xavier were outside in the car during the entire encounter.

Significantly, Diaz’s identification of the weapon used in the robbery oscillated between a BB

gun, a .22 caliber handgun with the serial number shaved off, and “a high-power BB gun”

bearing a legible serial number. Diaz claimed that he dropped the weapon in the back seat of the

getaway car after the robberies and that he left the magazine inside the apartment, varying from

the state’s version of events that police had found the weapon’s magazine in the passenger door

compartment of the car.

       Interestingly, Xavier also testified that it was he who bore sole responsibility for the

robberies, explaining that his weapon of choice had been knives. Contradicting the version of

events he had previously said was true during his own plea hearing, Xavier testified that,

although defendant was in the room during the robberies, and not outside as Diaz had testified,

Xavier did not recall seeing defendant holding a gun. In fact, Xavier claimed that he was

“dumbfounded” when police found a BB gun in his car because, he said, he had never seen the

weapon before.

       Officer Donti Rosciti, of the North Providence Police Department, also testified about his




                                               -7-
investigation of the robberies.5 On cross-examination by defendant, Officer Rosciti confirmed

that Maria had acknowledged that she stole one of the victim’s earrings. Later, during redirect

examination, the prosecutor further inquired about Maria Rojas’s statement to police. This

exchange followed:

               “[THE STATE]:               Did [Maria Rojas] say anything
                                           about the defendant?

              “[OFFICER ROSCITI]:          Yes.

              “[DEFENSE COUNSEL]:          Objection -- well, not to that.
                                           Withdrawn, Your Honor.

              “THE COURT:                  All right.

              “[OFFICER ROSCITI]:          She said he had a gun.

              “[DEFENSE COUNSEL]:          Objection.

              “[THE STATE]:                He put it in for ID.

              “THE COURT:                  Well, first of all, the question is did
                                           he have a knife?

              “[THE STATE]:                No, I asked what did she say.

              “THE COURT:                  What did who say?

              “[THE STATE]:                Maria, in the statement.

              “THE COURT:                  All right. I’ll allow that. Go ahead.

              “[OFFICER ROSCITI]:          She said Thomas Sanchez had the
                                           gun.

              “[THE STATE]:                Did she refer to him in that statement
                                           by any other name other than
                                           Thomas Sanchez?




5
 At the time of the robberies, Officer Rosciti was a detective with the Pawtucket Police
Department assigned to the Major Crimes Unit.


                                             -8-
               “[DEFENSE COUNSEL]:            Objection, same objection, Your
                                              Honor.

               “[OFFICER ROSCITI]:            Bebe.”

       On May 27, 2016, a jury found defendant guilty of two counts of first degree robbery and

one count of conspiracy to commit robbery. The trial justice sentenced defendant on the robbery

counts to two concurrent thirty year terms of incarceration, with twenty years to serve and the

balance suspended, with probation, and, on the conspiracy count, to ten years of imprisonment,

the entirety of which was suspended, with probation. Judgment was entered on September 6,

2016, and defendant filed a notice of appeal on October 21, 2016.6 The defendant argues before

this Court that the introduction of Maria Rojas’s out-of-court statement during Officer Rosciti’s

testimony, in view of Rojas’s failure to appear as a witness at trial, violated his right to confront

the witnesses against him afforded by the Sixth Amendment to the United States Constitution

and article 1, section 10 of the Rhode Island Constitution.

                                                 II

                                            Discussion

       The sole issue to be determined by this Court is whether or not defendant’s Sixth

Amendment confrontation rights were violated. Before we reach the merits of that argument,

however, we must first determine whether or not it has been preserved for our consideration.




6
  It is unclear whether the notice of appeal was filed by defendant’s trial attorney, who is
currently disbarred, or by defendant himself, as his trial counsel’s signature does not appear on
the document. In any case, we note that defendant’s appeal was not timely filed. See Article I,
Rule 4(b) of the Supreme Court Rules of Appellate Procedure (“In a criminal case the notice of
appeal by a defendant shall be filed with the clerk of the Superior Court within twenty (20) days
after the entry of the judgment or order appealed from.”). We will nevertheless review this case
as though defendant had filed a common law petition for writ of certiorari so that we may avoid
depriving defendant of the opportunity to seek review of his criminal conviction. We therefore
proceed to the merits of defendant’s argument.


                                                -9-
                                                 A

                                          The Objection

       We repeatedly have “made it abundantly clear that ‘a litigant cannot raise an objection or

advance a new theory on appeal if it was not raised before the trial court.’” Atryzek v. State, 197

A.3d 334, 337 (R.I. 2018) (quoting State v. Bido, 941 A.2d 822, 829 (R.I. 2008)); see State v.

Donato, 592 A.2d 140, 141 (R.I. 1991); State v. Byrnes, 433 A.2d 658, 670-71 (R.I. 1981).

Moreover, “this Court will not review issues that were not presented to the trial court ‘in such a

posture as to alert the trial justice to the question being raised.’” State v. Figuereo, 31 A.3d

1283, 1289 (R.I. 2011) (quoting Pollard v. Acer Group, 870 A.2d 429, 433 (R.I. 2005)). To that

end, with the exception of situations where “the reason for the objection is clear from the context

in which it was made[,]” State v. Offley, 131 A.3d 663, 670 (R.I. 2016), in the typical case “a

general objection is not sufficient to preserve an issue for appellate review; rather, assignments

of error must be set forth with sufficient particularity to call the trial justice’s attention to the

basis of the objection.” State v. Moten, 64 A.3d 1232, 1238 (R.I. 2013) (emphasis in original)

(quoting Union Station Associates v. Rossi, 862 A.2d 185, 192 (R.I. 2004)).

       The defendant does not dispute that he did not explicitly state the grounds for objecting to

the introduction of Maria Rojas’s out-of-court statement.        Instead, he argues that, because

Rojas’s statement was repeated by Officer Rosciti, the reasons underpinning his bald objection

should have easily alerted the trial justice that he was raising a Confrontation Clause issue. To

support that argument, defendant directs us to our holding in Offley, in which we recognized that

a party’s failure to explain the specific grounds for his objection may not necessarily be fatal if

“the reason for the objection is clear from the context in which it was made.” Offley, 131 A.3d at

670.




                                               - 10 -
       In Offley, the defendant argued on appeal that the admission of a witness’s prior

testimony was error because a proper foundation had not been laid. Offley, 131 A.3d at 670.

However, despite the fact that he repeatedly objected to the admission of the prior testimony at

trial, the defendant never once stated the basis for his objections in that proceeding. Id. at

668-69. Although we ultimately affirmed the conviction in Offley, we nevertheless concluded

that the argument had been preserved because the context of the objections was sufficient to

“alert the trial justice” as to the grounds for the objections. Id. at 670. We arrived at this

conclusion after noting that the objections were made as the prosecutor was reading the prior

testimony into evidence and, importantly, that the defendant was “rebuffed” by the trial justice

multiple times when he attempted to explain the rationale for his objections, both at counsel table

and at sidebar. Id.

       In contrast, an examination of the transcript in the case before us at this time reveals that

defendant was not “rebuffed,” and that, when the trial justice attempted to clarify the nature of

the question, a discussion ensued but defendant did not provide any reason for his objection.

What is more, there is no indication that the trial justice understood that defendant’s objection

sounded in the Confrontation Clause.

       Importantly, we previously have considered and rejected an argument that was strikingly

similar to defendant’s argument in this case. See Moten, 64 A.3d at 1239. In Moten, the

defendant alleged on appeal that the introduction of a nontestifying declarant’s statement

violated the defendant’s right to confront the witnesses against him. Id. at 1237-38. As is the

case here, however, when the defendant in that case made his objection at trial, he failed to state

the basis for the objection. Id. at 1239. The defendant in Moten sought to circumvent this

infirmity by arguing that “it was clear that counsel was objecting to his inability to confront the




                                              - 11 -
[nontestifying witness]” because of the declarant’s absence at trial. Id. In our view, however,

we deemed it “equally—if not more—plausible that the prosecutor and the trial justice

understood defendant’s objection to be on hearsay grounds[,]” and we thus concluded that the

defendant’s naked objection failed to call the trial justice’s attention to the basis of the

defendant’s objection. Id. at 1239, 1240.

       Just as the defendant did in Moten, defendant in this case objected at the moment a

witness was testifying about an out-of-court statement by a nontestifying witness. See Moten, 64

A.3d at 1239. It was therefore “equally—if not more—plausible that the prosecutor and the trial

justice understood defendant’s objection to be on hearsay grounds.” Id. As we noted in Moten,

“[a] hearsay objection is not equivalent to an objection based on the constitutional right to

confront a witness.”7 Id. at 1239 n.7. At the same time, we recognize that the objection was

repeated and that the principles set forth in Crawford v. Washington, 541 U.S. 36 (2004), are no

longer new law.8 We will, therefore, assume without deciding that a Confrontation Clause

objection was properly articulated.

                                                 B

                                         Harmless Error

       There is no doubt that even a properly articulated objection premised on the Sixth

Amendment must be viewed through the prism of the effect the evidence may have had upon the


7
  An examination of the transcript leads easily to the conclusion that the objection made by
defendant was intended, and understood by both the prosecutor and the trial justice, to be
founded on hearsay. Although defendant has not pursued that argument before this Court, it
appears to us that that objection should have been sustained on hearsay grounds. However, any
error arising from the decision to admit the testimony is, for reasons set forth in this opinion, not
reversible.
8
  In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court established
that the introduction of testimonial hearsay against a defendant violates the Confrontation Clause
unless the witness is unavailable and the defendant had previously had a meaningful opportunity
to cross-examine the witness. See Crawford, 541 U.S. at 68.


                                               - 12 -
trial. This is so because “[v]iolations of the Confrontation Clause are subject to harmless-error

analysis[,]” and “[t]he inquiry is whether, assuming the defense had been afforded the

opportunity to cross-examine the unavailable witness and that ‘the damaging potential of the

cross-examination were fully realized, a reviewing court might nonetheless say that the error was

harmless beyond a reasonable doubt.’” State v. Roscoe, 198 A.3d 1232, 1245 (R.I. 2019)

(quoting State v. Albanese, 970 A.2d 1215, 1222 (R.I. 2009)). The record before us reveals that

the evidence placing a gun in defendant’s hand during the robberies was both abundant and

compelling. Three witnesses—Leonardo, Melendez, and Laboy—testified at trial that it was

defendant who wielded a firearm during the robberies. Testimony at trial revealed that each

victim independently identified defendant in court and from a photographic array following the

incident, and each asserted that the individual whom they identified as defendant had used a

firearm during the robbery. Laboy also testified that defendant had used a gun to effectuate the

robberies.

       In contrast, the testimony of defendant’s cohorts with respect to the events of that fateful

night was inconsistent to a startling degree. At trial, Diaz and Xavier testified that defendant had

been uninvolved in the robberies. That story starkly conflicted with the facts that those two men

admitted that they had sworn to during their own plea colloquies, however, when each had

previously admitted to conspiring with defendant to commit robbery. Indeed, Xavier agreed at

trial that he had claimed during his plea colloquy that defendant had used a firearm when he

robbed and struck Leonardo. Moreover, Diaz and Xavier could not agree as to where defendant

was during the robberies; Diaz claimed that defendant spent the encounter outside the apartment,

while Xavier claimed that defendant had been present during the robberies, but that he had not

participated in them. Furthermore, Diaz and Xavier each claimed sole responsibility for the




                                               - 13 -
robberies—an obvious impossibility that shredded the credibility of both of them—and Diaz’s

description of the weapon that he claimed to have used varied among a BB gun, a .22 caliber

handgun with an obliterated serial number, and “a high-power BB gun” bearing a legible serial

number.

       Importantly, defendant’s own testimony matched neither of the stories provided by Diaz

or Xavier. What is more, when defendant was apprehended after fleeing from police, he was

found in possession of roughly the same amount of cash that one of the victims claimed had been

stolen from his person, one of the victim’s phones, and some of the victims’ jewelry. Further, a

BB gun and magazine were found near the seat in the getaway car that had been occupied by

defendant.

       It is clear to us that the state’s case against the defendant neither rose nor fell with

Rojas’s statement that the defendant employed a weapon during the robberies. The statement

attributed to Rojas by the testifying police officer is relatively unimportant in light of the

testimony of the three witnesses who claimed that the defendant had used the gun, and it was

wholly cumulative of the overwhelming evidence of the defendant’s guilt that was presented by

the state. See State v. Doctor, 644 A.2d 1287, 1290 (R.I. 1994) (laying out factors to consider in

a harmless error analysis: “the importance of the witness’ testimony in the prosecution’s case,

whether the testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and, of course, the overall strength of the prosecution’s case”) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Therefore, we can reach no conclusion

other than, had the defendant “been afforded the opportunity to cross-examine” Maria Rojas, and

had “the damaging potential of the cross-examination [been] fully realized,” the remaining




                                              - 14 -
evidence was sufficiently compelling to support the jury’s finding of guilty and, therefore, the

admission of Rojas’s out-of-court declaration was harmless beyond a reasonable doubt. Roscoe,

198 A.3d at 1245 (quoting Albanese, 970 A.2d at 1222).

                                                 III

                                            Conclusion

       For the reasons stated in this opinion, we affirm the judgment of conviction. The papers

in this case are remanded to the Superior Court.



       Justice Robinson, concurring in part and dissenting in part.                I am pleased to

unreservedly join the thoughtful opinion of the Court with respect to its holding relative to

harmless error. However, I feel obliged to disassociate myself from that small portion of the

Court’s opinion which, in discussing the issue of whether or not a particular objection was

sufficiently articulated at trial and thereby preserved for appellate review, engages in speculative

dicta suggesting that there is even an arguable possibility that any objection on Crawford1

grounds was adequately preserved. In my judgment, any such objection very definitely was not

preserved, and I believe that it is unwise to even indirectly imply that anyone could correctly

conclude that it somehow was preserved.2



1
       Crawford v. Washington, 541 U.S. 36 (2004).
2
        I refer specifically to the final paragraph of Part II.A of the Court’s opinion, which reads
as follows:

                       “Just as the defendant did in Moten, defendant in this case
               objected at the moment a witness was testifying about an out-of-
               court statement by a nontestifying witness. See Moten, 64 A.3d at
               1239. It was therefore ‘equally—if not more—plausible that the
               prosecutor and the trial justice understood defendant’s objection to
               be on hearsay grounds.’ Id. As we noted in Moten, ‘[a] hearsay


                                               - 15 -
       Few principles in our jurisprudence are more basic or have been more emphasized than

the principle that “[t]his 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.” State v. Figuereo, 31

A.3d 1283, 1289 (R.I. 2011) (internal quotation marks omitted); see also State v. Hak, 963 A.2d

921, 927 (R.I. 2009) (“This Court’s familiar raise or waive rule precludes us from considering

issues at the appellate level that were not properly presented before the trial court.”); State v.

Saluter, 715 A.2d 1250, 1258 (R.I. 1998).3

       An important aspect of the raise or waive rule is the requirement that “an evidentiary

objection must be ‘sufficiently focused so as to call the trial justice’s attention to the basis for

said objection * * *.’” State v. Diefenderfer, 970 A.2d 12, 30 (R.I. 2009) (quoting State v.

Warren, 624 A.2d 841, 842 (R.I. 1993)); see also State v. Maxie, 187 A.3d 330, 343 (R.I. 2018)




               objection is not equivalent to an objection based on the
               constitutional right to confront a witness.’ * * * Id. at 1239 n.7. At
               the same time, we recognize that the objection was repeated and
               that the principles set forth in Crawford v. Washington, 541 U.S.
               36 (2004), are no longer new law. * * * We will, therefore, assume
               without deciding that a Confrontation Clause objection was
               properly articulated.”
3
        In Pollard v. Acer Group, 870 A.2d 429 (R.I. 2005), this Court summarized the
implications of the raise or waive rule and characterized it as “one of our most well-established
principles * * *.” Pollard, 870 A.2d at 432. That same opinion also noted and described “a
narrow exception to the axiomatic raise or waive rule.” Id. at 432 n.10 (internal quotation marks
omitted). That “narrow exception” is not applicable to the instant case.
        It is true that this Court’s staunch adherence to the raise or waive rule has been the
subject of thoughtful criticism. See, e.g., Nicholas Nybo, Preserving Justice: A Discussion of
Rhode Island’s “Raise or Waive” Doctrine, 20 Roger Williams U. L. Rev. 375 (Summer 2015).
However, while this Court certainly gives due consideration to such responsible critiques, there
is no indication in the decided cases that our adherence to the raise or waive rule has become less
than staunch; and I for one am not inclined to cease to adhere to that rule—at least not at this
point in time.


                                                - 16 -
(noting that the requirement that an objection be sufficiently focused “is grounded, in part, in our

[own] rules of evidence”); State v. Gautier, 950 A.2d 400, 407 (R.I. 2008).4

           As I review the above-referenced principles of law that have been so clearly and

repeatedly articulated in this Court’s opinions, and as I seek to apply those principles to the

instant case, I am entirely unable to conclude that there is any necessity for “assum[ing] without

deciding that a Confrontation Clause objection was properly articulated.” In my judgment,

counsel’s twice having uttered the word “objection” without further elaboration was plainly not

sufficient to preserve a Confrontation Clause argument for appellate review.

           I do not lightly take the time to address language in an opinion that is clearly dicta.

However, it is my definite belief that the raise or waive rule and especially the requirement that

“an evidentiary objection must be sufficiently focused” are such important components of our

jurisprudence that I feel obliged to clearly reiterate my conviction that the evidentiary objection

at issue in this case was definitely not even remotely “sufficiently focused so as to call the trial

justice’s attention to the basis for said objection * * *.” Diefenderfer, 970 A.2d at 30 (internal

quotation marks omitted). If indeed the Confrontation Clause was somehow in the back of

defense counsel’s mind, the plain fact is that he entirely failed to articulate it with any degree of

clarity.

           For these reasons, I hereby record my concurrence in part and my dissent in part.


4
       In State v. Diefenderfer, 970 A.2d 12 (R.I. 2009), we explained as follows the rationale
that underlies the raise or waive rule:

                  “There is nothing Kafkaesque or arbitrary about the requirement
                  that evidentiary objections be sufficiently focused and specific.
                  The purpose of the requirement is to afford trial justices and
                  opposing counsel the opportunity to grapple in the first instance
                  with particular arguments based on the law of evidence in the vital
                  context of the then-ongoing trial.” Diefenderfer, 970 A.2d at 30
                  n.33.
                                                 - 17 -
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                          SUPREME COURT – CLERK’S OFFICE

                                  OPINION COVER SHEET

Title of Case                         State v. Thomas Sanchez.
                                      No. 2017-376-C.A.
Case Number
                                      (P1/14-1484C)
Date Opinion Filed                    April 29, 2019
                                      Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                      Indeglia JJ.
Written By                            Associate Justice Francis X. Flaherty

Source of Appeal                      Providence County Superior Court

Judicial Officer From Lower Court     Associate Justice Francis J. Darigan, Jr.
                                      For State:

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

                                      J. Richard Ratcliffe, Esq.

 




SU‐CMS‐02A (revised June 2016) 
