                                                    Supreme Court

                                                    No. 2012-244-C.A.
                                                    (P2/09-1012A)


                                 :
        State

         v.                      :

Antonio O. Whitfield.            :




   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. 2012-244-C.A.
                                                                   (P2/09-1012A)


                                               :
                    State

                      v.                       :

          Antonio O. Whitfield.                :


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


                                          OPINION

       Justice Goldberg, for the Court. This case stems from the brutal, late-night beating of a

young man that occurred on the East Side of Providence. The complainant suffered a head

wound that required eight stitches, a severe concussion, a broken nose, and multiple lacerations

and contusions over his entire body. After a four-day jury trial, the defendant, Antonio O.

Whitfield (Whitfield or defendant), was convicted of two counts of assault with a dangerous

weapon and one count of simple assault for his role in the fracas. On appeal, the defendant

argues that (1) the trial justice abused his discretion by allowing the state to impeach his

credibility with fourteen prior criminal convictions and (2) the trial justice erred by denying

defense counsel’s motion to pass the case after the prosecutor allegedly vouched for the

credibility of two witnesses during her closing argument. The parties appeared before this Court

on February 25, 2014, pursuant to an order directing them to show cause why the issues raised in

this appeal should not summarily be decided. We are satisfied that cause has not been shown

and that the appeal may be decided at this time. For the reasons that follow, we affirm the

convictions.

                                                -1-
                                       Facts and Travel

       Michael Newell (Newell or complainant) lived in a third-floor apartment on Angell Street

in Providence.    The basement of the building housed a club: the Liquid Lounge.               At

approximately 3:30 a.m. on November 27, 2008, a friend of Newell’s—a bouncer at the Liquid

Lounge—knocked on his door and asked whether Newell had a wire coat hanger because another

Liquid Lounge employee, named Kelsey, was locked out of her car. Although he could not find

a wire hanger, Newell went outside to assist Kelsey with her attempts to access her vehicle,

which was parked in the driveway adjacent to the building.

       Within minutes, Newell watched as another female employee left work and began

walking down Angell Street toward her car. She did not walk far. A black Dodge Charger

stopped on Angell Street and the occupants began shouting catcalls at the woman, who

immediately turned around and began walking back toward the group gathered in the vicinity of

Kelsey’s car, which included the complainant, Kelsey, three Liquid Lounge bouncers, and two

patrons. Undeterred, the Charger reversed direction and pulled into the driveway where the

group was standing. At that point, Newell and the bouncers told those in the Charger to leave.

According to Newell, rather than depart, the occupants of the Charger responded by hurling

unopened beer bottles at them from the rear driver’s side window.

       Newell testified that as he approached the rear driver’s side door of the Charger, he was

pulled through the window of the vehicle, and the Charger backed out of the driveway and sped

forward about 150 feet. When the vehicle came to a stop, the door opened, and Newell fell to the

ground. As he attempted to stand, he was struck in the temple with an unopened beer bottle and

again fell to the ground. Newell was repeatedly kicked and stomped on his head and upper body

by three individuals for an extended period of time. Newell testified that he knew that there were



                                              -2-
three assailants during the attack because there were distinct sets of legs and feet simultaneously

assaulting him; however, he could not see the faces of his attackers.1 According to Newell, the

bouncers finally reached the Charger and attempted to intervene. Eventually, the police arrived

on the scene; Newell was transported to Rhode Island Hospital, where he received eight stitches

around his temple. Newell also suffered “a severe concussion, a broken nose, and multiple

lacerations and contusions from head to toe.”

         A Providence police officer and a Brown University security officer responded to the

melee: Providence police officer Joshua Greeno (Officer Greeno) and Brown University security

officer Nicholas Gonsalves (Gonsalves).          Gonsalves was on foot patrol—checking the

University’s Environmental Lab—when he heard a loud commotion coming from Angell Street.

Gonsalves testified that as he walked toward the noise, he saw a Dodge Charger stopped in the

middle of the road and that individuals in the car and on the sidewalk were shouting at each

other. Gonsalves testified that a beer bottle was thrown from the rear of the vehicle towards

Newell, who was standing on the sidewalk.

         Gonsalves then saw Newell approach the vehicle “towards the rear window” and

“actually go into the vehicle,” at which time the car started to move and then abruptly stopped.2

Gonsalves testified that three men exited the vehicle: “[t]he driver, * * * a lighter-skinned male;

a rear passenger, * * * also a lighter-skinned male; and a darker-skinned male, [from] the front

passenger side, who later identified himself to police as Keeron Hardmon.” “Keeron Hardmon”

was later identified as defendant, Antonio Whitfield. Gonsalves made an in-court identification



1
    Newell also admitted that he had consumed about eight beers that night.
2
  It is not clear from the direct examination of Gonsalves whether he was referring to the driver’s
or passenger’s side rear window. Furthermore, in contrast to Newell’s testimony, during his
cross-examination, Gonsalves testified that the car moved only one to two feet forward.
                                                -3-
of defendant.3 Gonsalves testified that defendant threw a beer bottle at Newell, striking him in

the face. He next saw a white male approach the vehicle from the sidewalk, and a fight ensued

between Newell, defendant, “the other darker-skinned male,” and the white male who had just

approached.4 Gonsalves testified that defendant and “the other male” got Newell and the other

man onto the ground and began kicking them; the kicks were so forceful that Gonsalves could

hear “knocking sounds” from his vantage point fifty feet away.

          According to Gonsalves, he did not approach the fracas because his job was limited to

that of a security officer with no arrest power; however, he broadcast a call to Brown University

police.    Within minutes, a police cruiser approached with audible sirens.         At that point,

Gonsalves saw two assailants return to the vehicle, while defendant fled on foot. The vehicle

was stopped by police, and a Brown University police unit located defendant and brought him

back to the scene for a show-up. Gonsalves identified him as one of the assailants.

          While these events were unfolding, Officer Greeno arrived on the scene to find Newell

on the ground. He then learned that the black Dodge Charger had been stopped by the police a

short distance away, with two suspects in the vehicle and that the third suspect also had been

apprehended.

          After the close of the state’s case, defendant’s motion for judgment of acquittal was

denied by the trial justice. Before the start of the defense’s case, defense counsel inquired about

whether the state intended to introduce defendant’s prior convictions, in the event he testified on


3
  For clarity, when the officers refer to “Keeron Hardmon,” we will refer to that person as
defendant because no identity issue was raised and defendant later admitted to having an ID
bearing that name.
4
 It is unclear who the “other darker-skinned male” is, given that Gonsalves initially testified that
two “lighter-skinned” males and only one “darker-skinned male”—whom he identified as
defendant—exited the vehicle.

                                               -4-
his own behalf. The state sought to admit fourteen prior convictions, and defendant argued that

the convictions were inadmissible under Rule 609 of the Rhode Island Rules of Evidence. The

trial justice, however, overruled defendant’s motion and allowed the prior convictions in

accordance with Rule 609.

       The defendant testified in his own defense and gave an account of the events that

markedly differed from the state’s case. According to defendant, in the early morning hours of

November 27, 2008, he had just left a club in Providence with two friends: Mario and Kenny.

As Kenny proceeded down Angell Street, Mario was trying to talk to a girl, but she “was running

away from something.” According to defendant, Kenny then reversed direction and pulled into a

parking lot where there was a group of men. The defendant testified that the group of men

started hitting the car and yelling obscenities. The defendant contends that, while he sat in the

rear driver’s side seat, someone hit him in the face and then tried to pull him through the

window. He did not, however, identify that man as Newell. At the same time, a similar

altercation began through the front passenger window, but that passenger—presumably Mario—

got out of the car. The defendant testified that he was unable to exit the vehicle because of the

child locks, but that the door was opened from the outside. At that point, according to defendant,

a fight erupted with him and Mario against four or five other people. The defendant admitted

that he had a beer bottle in the car, but testified that it fell to the ground when he was pulled

partially through the window. He denied throwing a beer bottle or striking anyone with it. The

defendant testified that, during the altercation, he turned around “like when everybody went to

go run back to the car, because there [were] so many other people, [and] the car was gone,

Kenny had left.” Knowing that the police were coming, defendant testified that he ran away

because he knew he had an outstanding warrant for failure to pay court fines.



                                              -5-
          On cross-examination, defendant’s credibility was impeached through the introduction of

his fourteen prior criminal convictions. The trial justice immediately gave a limiting instruction,

informing the jury that evidence of defendant’s prior convictions could only be considered in

relation to his credibility and not for propensity purposes. Additionally, on cross-examination,

defendant stated that he did not give the police the name “Keeron Hardmon,” but that he had his

cousin’s ID in his pocket, and the police took that ID as his. The defendant admitted that he did

not correct the police officers’ misimpression regarding his identity because he was aware of the

outstanding warrant for his arrest.

          On two occasions during the prosecutor’s closing arguments, defense counsel objected

and moved to pass the case. The defendant argued that the prosecutor’s remarks amounted to a

comment on his right to remain silent and also alleged that the prosecutor had vouched for the

credibility of Officer Greeno.5 The trial justice refused to pass the case, but stated that he would

give a limiting instruction on both points.          Although defense counsel wanted a limiting

instruction in the event the trial justice refused to pass the case, he argued nonetheless that he did

not think that “there’s any instruction that can cure the prejudice that’s inured to Mr. Whitfield.”

In addition to an instruction regarding defendant’s right to remain silent, the trial justice

instructed the jury that the drawing of inferences and the assessment of credibility is a function

exclusively reserved for the jury.

          The defendant was found guilty on all counts: assault with a dangerous weapon (beer

bottle), assault with a dangerous weapon (shod foot), and simple assault. After trial, defendant

moved for a new trial, and the trial justice denied the motion. He was sentenced to four years at

the Adult Correctional Institutions with six months to serve and three-and-a-half years suspended



5
    The right to remain silent issue is not before us on appeal.
                                                  -6-
with probation on count 1; four years with six months to serve and three-and-a-half years

suspended with probation on count 2, to run concurrently with count 1; and one year suspended

with probation on count 3.        Additionally, defendant was ordered to complete an anger

management program and to pay $5,178.58 in restitution for the victim’s medical bills.

                                       Standard of Review

       This Court reviews evidentiary rulings under an abuse of discretion standard. See State

v. Tetreault, 31 A.3d 777, 782 (R.I. 2011). A trial justice “has broad discretion in deciding

whether or not to admit evidence of prior convictions under Rule 609.” Id. (quoting State v.

Silvia, 898 A.2d 707, 718 (R.I. 2006)). “‘This Court will not disturb a trial justice’s finding

regarding the admissibility of prior conviction evidence for impeachment purposes unless our

review of the record reveals an abuse of discretion on the part of the trial justice’ that prejudices

the complaining party.” Id. (quoting State v. Rodriquez, 731 A.2d 726, 731 (R.I. 1999)).

       Similarly, “a decision to pass a case and declare a mistrial are matters left to the sound

discretion of the trial justice.” State v. McRae, 31 A.3d 785, 789 (R.I. 2011) (quoting State v.

Suero, 721 A.2d 426, 429 (R.I. 1998)). This Court defers to the trial justice on such a motion

because he or she “has a ‘front row seat,’ allowing him or her to ‘best determine the effect of the

improvident remarks upon the jury.’” Id. (quoting State v. Tempest, 651 A.2d 1198, 1207 (R.I.

1995)). “As such, the trial justice’s determination concerning the prejudicial effect of evidence

and the jury’s ability to render a fair and impartial verdict are reviewed by this Court under an

abuse of discretion standard.” Id.




                                                -7-
                                            Analysis

                                   Prior Criminal Convictions

       The defendant argues that the trial justice abused his discretion by allowing the state to

impeach his credibility with fourteen prior criminal convictions. The defendant accumulated

those fourteen convictions in less than five years after his eighteenth birthday. The convictions

include possession of marijuana, operating under the influence of alcohol, resisting arrest, and

numerous assaults and batteries, among other offenses. In his ruling, the trial justice considered

defendant’s “series of crimes”—detailing the different types of offenses involved—and, although

he was concerned about the jury’s potential consideration of the convictions as propensity

evidence, he concluded that the potential danger to defendant could be cured by a limiting

instruction at the appropriate time.

       “Rule 609 of the Rhode Island Rules of Evidence permits the admission of a witness’s

prior conviction to attack that witness’s credibility unless the court determines that the

prejudicial effect of the conviction substantially outweighs its probative value.” McRae, 31 A.3d

at 791. “In making a determination under Rule 609, a trial justice must consider the remoteness

of the conviction, the nature of the crime, and the defendant’s disdain for the law as reflected by

his or her criminal record.” Tetreault, 31 A.3d at 784. Rhode Island’s Rules of Evidence do not

limit the types of prior criminal convictions that may be admitted to impeach a witness, as

opposed to the more limited set of convictions set forth in Rule 609 of the Federal Rules of

Evidence, because this Court has declared that “the jury should be able to consider whether or

not a person who has previously broken the law may have such disrespect for the law as to

render him or her unwilling to abide by the oath requiring truthfulness while testifying.” State v.

Remy, 910 A.2d 793, 798 (R.I. 2006).



                                               -8-
       In 2011, this Court decided two cases on nearly the same issue as presented in this case.

In Tetreault, 31 A.3d at 781-82, 783, the trial justice allowed the state to impeach the defendant

with fifteen prior convictions which spanned sixteen years. On appeal, the defendant argued that

eleven of the fifteen convictions were too remote and unduly prejudicial. Id. at 783. We agreed

with the trial justice that “given defendant’s long and continuous record of criminal behavior

throughout most of his adult life, the jury was entitled to consider the proffered convictions.” Id.

at 784. Accordingly, we upheld the admission of the convictions “[i]n light of the defendant’s

voluminous criminal record and the probative value of prior convictions as bearing on his

credibility as a witness * * *.” Id.

       In McRae, 31 A.3d at 791, the trial justice allowed the state to impeach the defendant

with seven prior convictions. On appeal, the defendant argued that three different categories of

prior convictions were inadmissible: convictions involving “assaultive behavior,” misdemeanor

convictions, and a conviction for obtaining food or accommodations with the intent to defraud.

Id. at 792-93. We held that the trial justice did not abuse his discretion as to any of the groups of

crimes for impeachment purposes. Id. Specifically, although the defendant was charged with

domestic assault, we held that the defendant’s prior “assaultive” convictions were no more

prejudicial than those admitted in other cases decided by this Court. Id. at 792.

       Here, because at the time of trial all of defendant’s prior convictions were less than five

years old, none of the convictions were remote. While some of defendant’s prior convictions

were for assault and battery—the same type of offense with which defendant was charged—we

repeatedly have declared, most recently in McRae, 31 A.3d at 792, that the similarity of the prior

offenses does not render them per se inadmissible for the purpose of impeaching a testifying

defendant’s character for truthfulness. Finally, although his record was not as lengthy as the



                                                -9-
defendant’s record in Tetreault, defendant nonetheless displayed his disdain for the law by

accumulating fourteen adult criminal convictions before his twenty-third birthday. A crime

spree spanning fewer than five years that resulted in fourteen criminal convictions is relevant on

the issue of whether a testifying defendant will honor his oath to testify truthfully, given his

demonstrated disrespect for the law. Thus, considering the factors set out in Tetreault, the

prejudicial effect of evidence of defendant’s prior convictions did not substantially outweigh

their probative value. In addition, we note that the trial justice gave a limiting instruction to the

jury before the prosecutor asked a series of questions about his prior convictions. Accordingly,

in these circumstances, the trial justice did not abuse his discretion by allowing the state to

impeach defendant’s credibility with his prior criminal convictions.

                                          Motion to Pass

       The defendant also argues that the trial justice erred by denying defense counsel’s motion

to pass the case after the prosecutor allegedly vouched for the credibility of two witnesses during

her closing argument.     First, we must address whether and to what extent this issue was

preserved. To preserve an objection to a prosecutor’s closing argument, defense counsel “must

not only make an objection at the time, but must make a request for cautionary instructions * * *

or move for a mistrial.” State v. Horton, 871 A.2d 959, 964 (R.I. 2005) (quoting State v. Portes,

840 A.2d 1131, 1141 (R.I. 2004)).

       Although defendant contends that the prosecutor vouched for the credibility of

Gonsalves, it is clear that defense counsel made no objection during the prosecutor’s remarks

concerning Gonsalves. Defense counsel’s two objections, posited during closing argument,

solely related to the prosecutor’s comments about defendant’s flight from the scene (which

defendant does not contest on appeal) and the prosecutor’s comments about Officer Greeno



                                               - 10 -
(which are discussed below). Therefore, the issue of the prosecutor vouching for Gonsalves is

waived. See Horton, 871 A.2d at 964 (noting that the defendant must object at the time of the

comment and either request a cautionary instruction or move for a mistrial to preserve a claim of

prejudicial error in a closing argument).

       Regarding the prosecutor’s remark about Officer Greeno, it is the state’s position that the

issue was not preserved because defense counsel failed to move for a mistrial or object to the

trial justice’s cautionary instruction. Although the state contends that the transcript of the

hearing at sidebar is clear on this point, we are not convinced. The defendant raised two

objections in a single, mid-argument sidebar, and each objection separately was argued by

counsel.   The trial justice declared that he would give a cautionary instruction as to each

objection. Defense counsel immediately responded, “Just note, Judge, my exception. I don’t

think there’s any instruction that can cure the prejudice that’s inured to Mr. Whitfield.” Because

the trial justice’s ruling encompassed both of defendant’s objections, it is unclear whether

defendant’s exception related to one objection or to both. We are cognizant of the setting: the

parties and the trial justice were at sidebar, in the midst of a closing argument, during a criminal

trial that spanned several days. A fair reading of defense counsel’s remark is that he was

objecting to the trial justice’s refusal to pass the case and to give a cautionary instruction as to

both of his objections. Therefore, we conclude that the issue was preserved for our review.

       Satisfied that the issue properly is before us, we next address whether the prosecutor’s

comments about Officer Greeno actually constitute vouching for the credibility of a witness.

During closing argument, the prosecutor stated, “Do you think Officer Greeno, who appears, I

would suggest to you, to be a very by-the-book officer, he stood there at military attention the

whole time that he testified to you, do you think he’s going to risk his career?” This sentence



                                               - 11 -
contains two remarks of questionable appropriateness: the reference to Officer Greeno being a

“by-the-book officer” and the reference to the risk to the officer’s career, presumably in the event

that he gave false testimony. We address the latter instance first.

       The proper divide between appropriate remarks about an officer’s credibility and

improper comments regarding the impact of perjured testimony on an officer’s career can be

difficult to discern. This tension was highlighted in a decision by the Court of Appeals of

Maryland when confronted with the following closing argument by a state’s attorney:

               “You have to weigh the credibility of each individual. Who has a
               motive to tell you the truth. The Officer in this case would have to
               engage in a lot of lying, in a lot of deception and a conspiracy of
               his own to come in here and tell you that what happened was not
               true. He would have to risk everything he has worked for. He
               would have to perjure himself on the stand.
                       “* * *
               “[Y]ou have to understand that Officer Williams has no motive to
               lie, because he has everything to risk in this case. Because he
               doesn’t have to go out and make up drug arrests. Because he has
               plenty of legitimate drug arrests. There’s absolutely no incentive
               for him to come in here and tell a story about Mr. Spain.” Spain v.
               State, 872 A.2d 25, 28, 29 (Md. 2005).

The court’s reaction to this argument was twofold. The court first declared that the prosecutor’s

remarks regarding the officer’s motivation to lie did not constitute improper vouching because

there was no expression of the prosecutor’s personal belief about the credibility of the officer and

the comment did not “explicitly invoke the prestige or office of the State or the particular police

department or unit involved.” Id. at 31. Nevertheless, the court also held that the prosecutor’s

comments about the adverse consequences to the police officer’s career were improper:

               “Although the State is free to highlight the incentive, or lack of
               incentive, of a witness to testify truthfully, courts consistently have
               held that it is improper to argue that a police officer may be
               deemed more credible simply because he or she is a police officer.
               * * * By invoking unspecified, but assumed, punitive
               consequences or sanctions that might result if a police officer
               testifies falsely, a prosecutor’s arguments imply that a police
                                               - 12 -
               officer has a greater reason to testify truthfully than any other
               witness with a different type of job. Although the factfinder
               generally is made aware that a witness who is a police officer is
               testifying as to events witnessed while on duty as a police officer, a
               prosecutor must be careful not to insinuate that the credibility of
               statements made in this capacity may be assessed at a level of
               scrutiny other than that given to all witnesses.” Id. at 32.

       We also find the First Circuit’s decision in United States v. Torres-Galindo, 206 F.3d 136

(1st Cir. 2000) persuasive and evincive of the sensitivity regarding comments about a

government agent’s career. In Torres-Galindo, 206 F.3d at 142, the court addressed a comment

during closing argument of an Assistant United States Attorney that, if the jury believed a

statement by a codefendant, the jury “would also have to believe that [a FBI agent who testified]

would actually jeopardize [his] ten years [as an FBI agent].” The First Circuit began its analysis

by analyzing whether this remark actually constituted vouching—it contained no statement of

personal belief and the FBI agent’s service time was in evidence, yet the use of the term

“jeopardize” in relation to the agent’s career, while falling short of vouching, did suggest “some

knowledge outside the record of punishment that [the FBI agent] could receive for lying in

court.” Id. The court declared:

               “[W]e hold that this kind of general appeal to believe the police or
               FBI because of their history, integrity, or public service is
               inappropriate, although not the worst offense that a prosecutor can
               commit. While not vouching in the most familiar sense, it does
               invite the jury to rely on the prestige of the government and its
               agents rather than the jury’s own evaluation of the evidence; to this
               extent, the argument presents the same danger as outright
               vouching.” Id. (citing United States v. Young, 470 U.S. 1, 18-19
               (1985)).

       Thus, although courts tend to allow a general reference to a specific officer’s credibility

or lack of motive to lie, a prosecutor’s reference to the “risk” to an officer’s career should he or

she commit perjury is not appropriate. See Torres-Galindo, 206 F.3d at 142; Spain, 872 A.2d at

32; see also United States v. McMath, 559 F.3d 657, 667 (7th Cir. 2009) (holding that

                                               - 13 -
prosecutor’s comment that police witnesses would lose their jobs if they lied was improper);

People v. Adams, 962 N.E.2d 410, 414 (Ill. 2012) (holding that prosecutor’s comment that

officer was “risking his credibility, his job, and his freedom” was improper).6 While a witness’s

status as a police officer certainly mandates that he or she testify truthfully, we are mindful that,

in the context of the criminal justice system, all witnesses are expected to give truthful

testimony. We agree with the First Circuit’s evaluation that a comment during closing argument

about the risk to an officer’s career may invite the jury “to rely on the prestige of the government

and its agents rather than the jury’s own evaluation of the evidence.” Torres-Galindo, 206 F.3d

at 142. Therefore, in the circumstances of this case, the prosecutor’s rhetorical question about

whether Officer Greeno would risk his career, while not vouching in the true sense, nonetheless

was inappropriate.

       Regarding the remaining portion of the challenged remark—“Officer Greeno, who

appears, I would suggest to you, to be a very by-the-book officer, he stood there at military

attention the whole time that he testified to you”—we perceive no impropriety given the full

context of the prosecutor’s comment. It is important to note that the prosecutor preceded her

comment with “I would suggest,” and followed it with a reference to his demeanor on the

witness stand: “he stood there at military attention the whole time that he testified to you.” It is

common to instruct the jury, as occurred here, that they may consider the appearance and




6
   Notably, despite holding that the comments were improper, in none of these cases did the
appellate court vacate the jury’s verdict for this reason. See United States v. McMath, 559 F.3d
657, 668 (7th Cir. 2009) (holding that remark did not jeopardize the fairness or integrity of the
trial); United States v. Torres-Galindo, 206 F.3d 136, 142-43 (1st Cir. 2000) (holding that
prosecutor’s comment was harmless); People v. Adams, 962 N.E.2d 410, 416 (Ill. 2012) (holding
that comments did not amount to plain error); Spain v. State, 872 A.2d 25, 34 (Md. 2005) (court
was “convinced beyond a reasonable doubt that the error in no way influenced the verdict”).

                                               - 14 -
demeanor of a witness when assessing the witness’s credibility.7 Therefore, considering the

whole of the prosecutor’s remark and the jury instructions, the argument that Officer Greeno

appeared to be a “by-the-book officer” was merely a comment meant to draw the jury’s attention

to his demeanor while testifying. Accordingly, that comment was not improper vouching.

       Although we conclude that a portion of the prosecutor’s closing argument was akin to

vouching, we are satisfied that the trial justice did not err by refusing to pass the case. A trial

justice is vested with considerable discretion when ruling on a motion to pass a case. See

McRae, 31 A.3d at 789; State v. Nelson, 982 A.2d 602, 607 (R.I. 2009). The trial justice’s front-

row seat at the trial places him or her in the best position to determine the effect of the remarks

on the jury and the proper remedy for any prejudice. See McRae, 31 A.3d at 789. “As such, the

trial justice’s determination concerning the prejudicial effect of evidence and the jury’s ability to

render a fair and impartial verdict are reviewed by this Court under an abuse of discretion

standard.” Id.

       Here, the trial justice was faced with an objection to a comment that was on the

borderline of improper vouching. In his cautionary instruction, the trial justice told the jury that

findings of fact and assessment of credibility were exclusively within their province.

Specifically, he stated,

                 “I can assure you that no one, from the State to the defense
                 counsel, to the witnesses, have any inside information. There is no
                 magical formula with regard to credibility. The witnesses were
                 sworn to tell the truth; and the assessment of their credibility is
                 exclusively within your prerogative once the final 12 are chosen to
                 deliberate.”




7
   In this case, the trial justice instructed the jury that they “may be guided by the
* * * appearance of a witness, as well as the conduct and demeanor of that witness while
testifying * * *.”
                                               - 15 -
The Court presumes that members of the jury follow the trial justice’s instructions. State v.

LaRoche, 683 A.2d 989, 1000 (R.I. 1996). We are satisfied that this cautionary instruction was

sufficient to quell the effect of any prejudice caused by the prosecutor’s remark about Officer

Greeno’s career. See Torres-Galindo, 206 F.3d at 142-43 (holding prosecutor’s remark harmless

because “(1) * * * it was not a severe infraction, (2) * * * the court properly instructed the jury

that the statements and arguments of counsel are not evidence, and (3) the substantial weight of

the evidence against appellants”); LaRoche, 683 A.2d at 1000 (concluding that instructions

“were more than adequate to cure any possible prejudice that may have resulted from the

prosecutor’s arguably overzealous remarks”); see also supra, note 6 (noting several appellate

court decisions refusing to overturn jury verdicts for similar vouching remarks during closing

argument). Accordingly, the trial justice did not abuse his discretion in declining to pass the

case.

                                           Conclusion

        For the foregoing reasons, we affirm the defendant’s convictions. The papers may be

returned to the Superior Court.




                                              - 16 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Antonio O. Whitfield.

CASE NO:              No. 2012-244-C.A.
                      (P2/09-1012A)

COURT:                Supreme Court

DATE OPINION FILED: June 30, 2014

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice William E. Carnes, Jr.

ATTORNEYS ON APPEAL:

                      For State: Christopher R. Bush
                                 Department of Attorney General

                      For Defendant: Kara M. Maguire
                                     Office of the Public Defender
