Opinion
P1-2023-1678AG
12-20-2024
STATE OF RHODE ISLAND v. WALTER KPAN
For Plaintiff: John F. Perrotta, Esq. Alison L. Bittl, Esq. For Defendant: Jeffrey B. Pine, Esq.
For Plaintiff: John F. Perrotta, Esq. Alison L. Bittl, Esq.
For Defendant: Jeffrey B. Pine, Esq.
DECISION
KRAUSE, J.
Defendant Walter Kpan has moved the Court to dismiss this felony-murder indictment which arises from an armed robbery resulting in the death of one of the robbery victims. If he does not prevail on that motion, he contends that the State should be precluded at trial from introducing certain evidence in its case in chief. He also wants the Court to suppress his identification by Pofinima Gweama, an admitted participant in the robbery who pled guilty and said that he had conspired with Kpan to commit the robbery.
Briefly outlined, the State intends to present evidence that on December 26, 2018, at about 4:00 a.m., Kpan and another man, known only as "Smoke," each brandishing guns, robbed three occupants in a vehicle in downtown Providence. Kpan was at the driver's window; Smoke stationed himself at the front passenger's door. During the robbery, Kpan allegedly struck the driver with his gun, and passenger David Long was shot and killed. Only one shot was fired, and it is unclear whether Kpan or Smoke fired the fatal round.
Gweama, a back seat passenger, was secretly part of the planned robbery, and three days later, on December 29, 2018, after conferring with his attorney, Gweama admitted his complicity and told the police during a recorded audio/video statement that he and Kpan had devised the robbery scheme. When presented with a photo array later that day, Gweama identified Kpan. The State has also collected video clips and cell phone texts between Kpan and Gweama allegedly coordinating the robbery and placing Kpan and his vehicle approaching and leaving the area of the event. A fourth confederate may have been involved, but neither he nor Smoke has been identified or apprehended.
During a recorded interview with the Providence police on January 2, 2019, Kpan denied participating in the robbery and said that he didn't know David Long. He also told the police that sometime between midnight and 1:00 a.m. on the morning of December 26, 2018, he drove to his apartment to retrieve some marijuana and, expecting to come right out, he had left the car's motor running. Instead, he said that he had something to eat and lay down to relax; but because he had been smoking and drinking all day, he fell asleep. He said that when he awoke at about 10:00 a.m., his car was gone, and he called the North Providence police and reported that it had been stolen.
On January 28, 2019, Kpan was charged with filing a false stolen motor vehicle report, and on December 15, 2020, he pled nolo contendere to that offense and received a one-year suspended/probationary sentence. (P3-2019-1020A.)
Meanwhile, Gweama had been singly indicted, without codefendants, on May 24, 2019 for the felony murder of Long. On February 20, 2023, he pled guilty to first-degree murder, first-degree robbery, conspiracy to commit robbery, and discharging a firearm during the crime. During that plea hearing he again admitted, as he had said to the police on December 29, 2018, that he had conspired with Kpan to commit the robbery. Gweama agreed to accept a life term of imprisonment, followed by twenty consecutive suspended non-parolable years. (P1-2019-2612AG.)
In May 2023, Gweama, unenthusiastically and by subpoena, appeared before the grand jury which was investigating Kpan. During those proceedings the grand jurors had learned of Gweama's guilty plea, which incriminated Kpan. The State also played Gweama's recorded police statement in which he recounted Kpan's participation in the robbery. Gweama told the grand jury that he had made the statement, but he said it was untruthful. The State did not inquire further of Gweama (whom they described as a hostile witness at the December 12, 2024 hearing to suppress his identification of Kpan). Instead, the prosecutors continued to present other inculpatory evidence to the grand jury, including the incriminating texts between Gweama and Kpan, video surveillance clips, evidence gleaned from Kpan's residence allegedly linking Kpan's car to the crime scene, and other material to support their request for a true bill.
During those grand jury proceedings, the prosecutor also played Kpan's recorded January 2, 2019 statement in which he said, among other things, that he did not know David Long. Detective Theodore Michael recounted to the grand jury that he had examined Long and Kpan's cell phones and that Kpan's phone contained Long's photograph, contradicting Kpan's statement to the police that he had not known Long. Kpan was indicted on May 9, 2023.
Subsequent to the grand jury's indictment, Detective Michael acknowledged that he had unknowingly commingled the material from both cell phones and had mistakenly associated Long's photograph with Kpan's phone and that Long's photo was not, in fact, in Kpan's phone. Kpan does not dispute that the prosecutors who presented his case to the grand jury were unaware of Detective Michael's mistake.
Nevertheless, Kpan insists that the indictment be dismissed, claiming that Detective Michael's "blatantly false" testimony (Def.'s Mot. 11/29/24 at 1), coupled with the prosecutor's failure to explore Gweama's disclaimer of his police statement, irreparably created bias among the grand jurors. Kpan also says that if his dismissal motion is denied, evidence of his conviction for having filed the false stolen car report must be excluded at trial. Lastly, Kpan presses a motion to suppress the identification made by Gweama of Kpan's photo from an array displayed to him by Detective Terrence Green on January 29, 2018.
A hearing on that suppression motion commenced on April 25, 2024, but was suspended. On December 12, 2024, that identification hearing was concluded, as were Kpan's motions to dismiss the indictment and to exclude his conviction for filing the false report at any trial of the case.
I. Motion to Dismiss the Indictment
At the outset, it is clear that Kpan's characterization of Detective Michael's testimony as "blatantly false" requires appreciable moderation. Kpan's barbed term implies deliberate fabrication and an intent to deceive. What occurred before the grand jury was an unrealized error, resulting from Detective Michael's inadvertently commingling the Long and Kpan cell phone materials in a single binder, rather than having separated them into individual folders. A second analysis of the two devices has ensured that there was never any internal or intrinsic alteration of the respective materials themselves.
In a May 10, 2024 memorandum, Detective Michael acknowledged his mistake and explained that it was an unintentional oversight. Kpan does not dispute Detective Michael's explanation, and his clarifying memorandum was received in evidence at the December 12, 2024 hearing without objection. Kpan did not desire any additional testimony from Detective Michael. From its own review of Detective Michael's memorandum, it is clear to the Court that there was no bad faith, nor any fabrication or an intent to deceive by Detective Michael, or that the prosecutor was aware of the inaccuracy of Detective Michael's misstatement to the grand jury. Kpan's acerbic criticism that Detective Michael's testimony was "blatantly false" is excessive and disproportionate to the misstep described.
As referenced earlier, after Gweama's December 29, 2018 recorded statement to the police was played, Gweama acknowledged that he had provided the statement but then unexpectedly abandoned it, declaring that "it wasn't truthful." The grand jury prosecutor did not expect that Gweama, who had pled guilty on February 20, 2023 to conspiring with Kpan to commit the robbery and had never thereafter recanted any portion of his statement, would disavow it before the grand jury. Kpan says that the prosecutor's failure to make further inquiry of Gweama after he had rejected the statement, coupled with Detective Michael's erroneous testimony, created sufficient bias among the grand jurors to support dismissal of the indictment.
We start with the well-settled rule that an indictment returned by a legally constituted, unbiased grand jury invites a trial on the merits of the charges alleged. Costello v. United States, 350 U.S. 359, 363 (1956); State v. Ellis, 619 A.2d 418, 427 (R.I. 1993); State v. Romano, 456 A.2d 746, 753 (R.I. 1983). Thus, dismissal for grand jury irregularities is an extreme remedy and unwarranted except in limited and conspicuously offensive circumstances. State v. Mainelli, 543 A.2d 1311, 1313 (R.I. 1988). In Mainelli, the Court emphasized that unless the claimed error was "flagrant" or "overbearing," the extraordinary sanction of dismissal was not justified (citing Bank of Nova Scotia v. United States, 487 U.S. 250 (1988)). Reaffirming the Costello rule, the Mainelli Court stressed that it must be "established" that the violation substantially influenced the grand jury's decision to indict, stating:
"Our decision today is completely in accord with a recent United States Supreme Court case, where the Court stated that dismissal of an indictment is appropriate only 'if it is established that the violation substantially influenced the grand jury's decision to indict' or if there is 'grave doubt' that the decision to indict was free from substantial influence of such violations. The Bank of Nova Scotia v. United States, 487 U.S. [250, 256] (1988) (quoting United States v. Mechanik, 475 U.S. [66, 78 (1986)]." Mainelli, 543 A.2d at 1314.Accord State v. Mollicone, 654 A.2d 311 (R.I. 1995); State v. Russell, 950 A.2d 418, 430 (R.I. 2008) (observing that dismissal is reserved for situations where there is "flagrant prosecutorial misconduct accompanied by severe and incurable prejudice"). Judge Selya has remarked in response to complaints that trial courts too often decline to dismiss indictments for grand jury errors: "Usually, the trial jury's verdict provides an adequate safeguard against the failings of the grand jury process." United States v. Ortiz de Jesus, 230 F.3d 1, 4 (1st. Cir. 2000). See Mainelli, 543 A.2d at 1313 (noting that "a trial on the merits renders harmless any defect that occurred during the grand jury process" (citing Mechanik, 475 U.S. at 70). To the same effect (and without in any way prejudging the merits of the instant case), see State v. Martin, 68 A.3d 467, 478 (R.I. 2013), where the Court said:
"[W]e have also held that a trial on the merits renders harmless any defect that occurred in the grand jury process, because the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Thus, we apply a harmless-error standard and will dismiss an indictment only if we determine that there has been flagrant prosecutorial misconduct accompanied by severe and incurable prejudice." (Citations and internal quotation marks omitted.)In Ellis, 619 A.2d at 426, the prosecutor presented a key witness who offered less than candid testimony to the grand jury about the suspect's drug enterprises. Citing Costello, Lerner v. Moran, 542 A.2d 1089 (R.I. 1988), and United States v. Williams, 504 U.S. 36 (1992), the Ellis Court again reminded us that facially valid indictments should be tried on their merits, further stating, "Neither we nor the Supreme Court of the United States conduct minitrials to determine the adequacy of evidence presented to the grand jury. We do not require that evidence that may later be determined by counsel for the defense to be exculpatory must be presented to the grand jury on pain of dismissal of the indictment." Ellis, 619 A.2d at 427. See State v. Mosley, 320 A.3d 942, 961 (R.I. 2024) ("This Court has not deviated from Costello and has also stated that 'in the grand jury context * * * a 'subsequent guilty verdict means not only that there was probable cause to believe that defendant was guilty as charged, but also that he is in fact guilty as charged beyond a reasonable doubt.'") (quoting Russell, 950 A.2d at 426). A grand jury is, after all, an accusatory not an adjudicative body; and, echoing Williams, Ellis reiterated that "motions to quash indictments based upon the sufficiency of evidence relied upon by the grand jury have never been allowed and that it would therefore make little sense to scrutinize the sufficiency of the prosecutor's presentation." Ellis, 619 A.2d. at 427.
Kpan himself has conceded that it is "impossible" and "purely speculative" to conclude that Detective Michael's misstatement turned the grand jury into a biased body. (Def.'s Mot. 11/29/24 at 2, 4.) Such conjecture is inconsistent with Mainelli's mandate that Kpan must establish that Detective Michael's unintentional error (a miscue far afield from the requisite "flagrant" or "overbearing" conduct) "substantially influenced" the grand jury, and created "grave doubt" that the grand jurors were contaminated with bias. Mainelli, 543 A.2d at 1314; accord Ortiz de Jesus, 230 F.3d at 4.
Kpan points to cases, some of which are unpublished and others somewhat dated, which he says support his dismissal motion. There are, however, far more authorities (and of similar vintage) reflecting notable grand jury errors which did not invite dismissal of an indictment.
See United States v. Ortiz de Jesus, 230 F.3d 1(1st Cir. 2000) (witness described the defendant as a "hitman" but had no personal knowledge of the defendant's alleged homicidal tendencies); State v. Martin, 68 A.3d 467 (R.I. 2013) (police offer erroneously attributed to defendant some telephone calls which he had not made); State v. Chiellini, 557 A.2d 1195 (R.I. 1989) (detective improperly told the grand jury that the defendant had raped his murder victim and purposefully overstated the State's case); State v. Woodson, 551 A.2d 1187 (R.I. 1988) (prosecutor inappropriately told the grand jury that the complaining witness had passed a polygraph examination); United States v. Edmonson, 962 F.2d 1535 (10th Cir. 1992) (government agent, the only grand jury witness, displayed pictures of drugs and guns, where the defendant was only charged with controlled substances violations and also speculated regarding the purity of the cocaine and further commenting that someone had recently died from bad cocaine); United States v. Font-Ramirez, 944 F.2d 42 (1st Cir. 1991) (witness erroneously told the grand jury that the defendant leased the apartment where multiple kilogram bricks of cocaine were found); United States v. Exarhos, 135 F.3d 723 (11th Cir. 1998) (forged documents presented to the grand jury inaccurately identified defendant's signature on them); United States v. Riccobene, 451 F.2d 586 (3rd Cir. 1971) (prosecutor told grand jury that a crucial witness would not testify because the witness feared the defendants, who were connected to organized crime, might harm him); United States v. Bruzgo, 373 F.2d 383 (3rd Cir. 1967) (prosecutor called witness a thief and a racketeer, inspiring the grand jurors to hiss and openly threatened the witness with loss of citizenship and imprisonment); United States v. Fox, 425 F.2d 996 (9th Cir. 1970) (prosecutor inaccurately told grand jury that the defendant had a "long record"); United States v. Martino, 648 F.2d 367 (5th Cir. 1981) (prosecutor called codefendant a "disgrace" for exercising his right to remain silent); United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974) (prosecutor referred to the defendants as "tough guys," Italians from New York, and made reference to the "Mafia").
In further support of his dismissal motion, Kpan next turns to Gweama's unforeseen abnegation of his recorded statement, claiming that it was imperative that the prosecutor make further inquiry of Gweama to explain why he disavowed its truthfulness.
Kpan suggests that the Court should exercise its supervisory authority and dismiss the indictment because he has essentially been denied due process before the grand jury. A court's rarely used supervisory authority, however, simply does not extend to a witness's wholly unintentional misstatements to a grand jury, which the prosecutor did not know were incorrect. A denial of due process before the grand jury and the application of a Court's supervisory scrutiny is more appropriately focused on critical defects arising from racial, ethnic, or gender discrimination, which are not issues here. See Bank of Nova Scotia, 487 U.S. at 254-57; Mechanik, 475 U.S. at 70-71 n.1; State v. Simpson, 658 A.2d 522, 524 (R.I. 1995); Martin, 68 A.3d at 478 (recognizing that fundamental flaws in the grand jury process, such as race and gender discrimination in the grand jury selection process, will lead to dismissal of an indictment).
In Costello, Justice Black cautioned: "If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment." Costello v. United States, 350 U.S. 359, 363 (1956). Accord State v. Mosley, 320 A.3d 942, 961 (R.I. 2024).
Notwithstanding Gweama's unexpected disclaimer of the truth of his recorded statement, the grand jurors knew of Gweama's guilty plea to the murder charge and his admission that he had conspired with Kpan to commit the robbery, and the prosecutors provided the jurors with the video surveillance clips, text messages, and additional evidence in support of an indictment. They were also aware that Gweama had made his statement in the presence of and after having consulted with a criminal defense attorney.
In light of the grand jury having received other inculpatory material, the State was not, as Kpan now contends, obliged to grill Gweama in an effort to extract any exculpatory offerings he might have offered in order to liberate or detach Kpan from a criminal venture which Gweama had, more than a year earlier, already pled guilty to committing with Kpan. A prosecutor has no obligation to present exculpatory evidence to a grand jury, and the United States Supreme Court has held that courts have no authority to prescribe such a duty. Williams, 504 U.S. at 55. See Ellis, 619 A.2d at 427, where, following Williams, the Court said: "We do not require that evidence that may later be determined by counsel for the defense to be exculpatory must be presented to the grand jury on pain of dismissal of the indictment." Accord Russell, 950 A.2d at 425; Mosley, 320 A.3d at 962.
Withal, Kpan offers insufficient grounds to discard the indictment, and the Court finds no pernicious defects which demand the drastic and extreme sanction of dismissing it. As the Court said in State v. DiPrete, 710 A.2d 1266, 1276 (R.I. 1998):
"[T]he extreme and ultimate sanction of dismissal [is reserved] only to situations in which there has been flagrant prosecutorial misconduct accompanied by severe and incurable prejudice . . . [W]hen a grand jury returns an indictment, the people of the State of Rhode Island are entitled to have the issues of fact and the issues of guilt or innocence tried on their merits. The punishment of an errant prosecutor by dismissal of the charges is in effect a punishment imposed upon the people of this state. Only in the most extraordinary of circumstances should the people of Rhode Island be deprived of their right to a trial of these charges."
II. Admissibility of Defendant's Conviction
Kpan insists that if the case proceeds to trial, the State should be precluded from introducing his conviction for falsely reporting that his vehicle had been stolen. As grounds for exclusion, he asserts that Evidence Rule 404(b) is not applicable because its specifications do not apply to another crime. (Def.'s Mot. 5/3/24 at 1.) He additionally contends that the conviction is too prejudicial to allow its admission and that, in any event, the State has failed to demonstrate that this evidence is reasonably necessary to prove its case, which he maintains is a prerequisite for admissibility. Id. at 3-4. Lastly, he claims that if the evidence of the conviction is allowed, it would impermissibly force him to testify and explain why he pled guilty, thus infringing upon his fundamental right not to testify at his trial. Id. at 4.
Evidence Rule 404(b)
Except for some stylistic differences, R.I. Evidence Rule 404(b) carries the same message and import as its federal counterpart and provides in pertinent part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident[.]"
The admissibility of evidence under Rule 404(b) generally invites a two-part analysis. First, it must be relevant. Secondly, even if relevant, its probative value must not be outweighed by the danger of unfair prejudice under a balancing equation pursuant to Rule 403. See State v. Tucker, 111 A.3d 376, 384 (R.I. 2015) and State v. Pona, 66 A.3d 454, 465-66 (R.I. 2013) ("Pona II"). As Judge Selya has written:
R.I. Evidence Rule 403, like our Rule 404(b), also parallels federal Rule 403, and provides:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
"Determining the admissibility of evidence of other (uncharged) bad acts requires a bifurcated inquiry. First, the district court must be satisfied that the proffered material has 'special' probative value, that is, that the evidence is relevant not to show a defendant's propensity toward evil, but to prove some controverted issue in the case. Thus, evidence of other bad acts may be relevant to show, say, a defendant's intent, or his knowledge, or the existence of a scheme. See Fed. R. Evid. 404(b).
"Once shown to be relevant in the requisite sense, the evidence must pass still another sentry, embodied in Fed.R.Evid. 403. If the evidence brings unwanted baggage, say, unfair prejudice or a cognizable risk of confusing the jury, and if the baggage's weight substantially overbalances any probative value, then the evidence must be excluded. Such determinations are committed to the trial court's sound discretion." United States v. Rodriguez-Estrada, 877 F.2d 153, 155 (1st Cir. 1989) (citations omitted).
Relevance of the False Report Conviction
The State contends that Kpan's conviction for falsely reporting that his car had been stolen has singular relevance. It contends that the false report, made soon after the offense occurred, demonstrates that Kpan mendaciously attempted to separate and shield himself from all of the circumstances surrounding the robbery and Long's homicide. Kpan's confession, says the State, would not only demonstrate that he had affirmatively and falsely tried to conceal his participation in the event, it just also constitutes Kpan's consciousness of guilt.
The checklist of reasons for admissibility contained in Rule 404(b) "is not absolute." Pona II, 66 A.3d at 466; State v. Ciresi, 45 A.3d 1201, 1213 (R.I. 2012) (noting that the list of purposes within the rule provides '"examples, rather than a complete enumeration, of permitted purposes'") (quoting State v. Rodriguez, 996 A.2d 145, 150 (R.I. 2010). Moreover, the shelves are replete with authorities permitting the introduction of other acts which reflect a defendant's consciousness of guilt and demonstrate his "frame of mind," such as flight, using a false identification, resisting arrest, threatening witnesses, and tampering with evidence. E.g. Ciresi, Pona II, and Tucker, supra; United States v. Littlefield, 840 F.2d 143, 148 (1st Cir. 1988); State v. Palmer, 962 A.2d 758, 759 (R.I. 2009); State v. Pule, 453 A.2d 1095, 1098 (R.I. 1982); State v. Acquisto, 463 A.2d 122, 128 (R.I. 1983). Consciousness of guilt with respect to a charged crime is "incorporated within the term 'state of mind.'" State v. Peltier, 116 A.3d 150, 155 (R.I. 2015) (citing State v. Graham, 941 A.2d 848, 861 (R.I. 2008) and State v. Santos, 122 R.I. 799, 821, 413 A.2d 58, 70 (1980)).
Along with the multiple examples recited in Rule 404(b) and the others referenced above to demonstrate consciousness of guilt, false exculpatory statements are also particularly probative. In State v. Diaz, 654 A.2d 1195, 1204 (R.I. 1995), the Court said that false statements told by a defendant hoping to extricate oneself from suspicious circumstances, while insufficient by themselves to convict, nevertheless provide circumstantial evidence of a consciousness of guilt and have independent probative force. Diaz, 654 A.2d at 1204 (citing United States v. Johnson, 513 F.2d 819, 824 (2nd Cir. 1975); accord United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995)).
Kpan's explicit and unconditional confession that he falsely filed the stolen motor vehicle report passes any standard of a materially relevant false exculpatory statement. Notably, our Supreme Court has expressed its approval of allowing evidence of a post-shooting cover-up which included the fabrication of evidence. Peltier, 116 A.3d at 155 (citing State v. Williams, 919 A.2d 90, 91-92 (N.J. 2007)).
Rule 403 Balancing
As noted, a showing of relevancy under Rule 404(b) does not present the only ingredient in the admissibility recipe. "Such evidence, like all evidence, must survive Rule 403 scrutiny," Pona II, 66 A.3d at 466, and it may not bring unfair prejudice which substantially overbalances its probative value. Rodriguez-Estrada, 877 F.2d at 156.
We start with the principle that Rules 403 and 404(b) are generally considered rules of inclusion. United States v. Fields, 871 F.2d 188 (1st Cir. 1989). As our Supreme Court has signaled many times: '"[A] trial justice's discretion to exclude evidence under Rule 403 must be used sparingly. . . . It is only when evidence is marginally relevant and enormously prejudicial that a trial justice must exclude it,"' and further admonishing trial justices that "this Court has repeatedly warned that 'the discretion to exclude evidence under Rule 403 must be exercised sparingly.'" Pona II, 66 A.3d at 466 (quoting State v. Smith, 39 A.3d 669, 675 (R.I. 2012) (citing State v. Hak, 963 A.2d 921, 928 (R.I. 2009)); accord State v. Fry, 130 A.3d 812, 830 (R.I. 2016) (quoting Hak, 963 A.2d at 928).
That directive is particularly applicable when, as here, the evidence is interwoven with facts underlying the charge on trial, even if the evidence is of a criminal nature, if it tends to establish guilty knowledge, intent, motive, design, place, scheme, system, or the like. Pona II, 66 A.3d at 466. Further, again, as here, when the linked incident occurs close in time and is highly relevant to the charged trial offense, "the argument for admissibility is powerful." Rodriguez-Estrada, 877 F.2d at 156. Kpan's fabricated report of his stolen motor vehicle was made within hours of the criminal event that morning. See also, State v. St. Jean, 554 A.2d 206, 209 (R.I. 1989) and State v. Morey, 722 A.2d 1185, 1189 (R.I. 1999).
It is true that the evidence which Kpan seeks to screen from the trial jury is prejudicial, but all of the State's evidence in a criminal trial is, by its very nature, expected to redound to his disadvantage. However, '"no doctrine in the law . . . is designed to insulate [a] defendant from relevant truths, even if such truths might lead the jury to draw less favorable inferences concerning [the] defendant than if they were not exposed."' State v. DeJesus, 947 A.2d 873, 884 (R.I. 2008) (quoting State v. Oliveira, 774 A.2d 893, 924 (R.I. 2001)). Indeed, in Pona and Tucker, the evidence of the defendants' complicity in another murder was admissible under Rule 404(b) to demonstrate motive and intent and their consciousness of guilt regarding the charged homicides on trial.
In short, although a defendant is guaranteed a fair trial, he is "not entitled to a sanitized version of the state's evidence against him[.]" Pona II, 66 A.3d at 468. The goal at trial is to allow the jurors to hear and examine a coherent story. Tucker, 111 A.3d at 384. To exclude Kpan's admission that he fabricated the report that his car had been stolen would inappropriately remove from the jury's consideration relevant evidence, the probative value of which far outstrips any prejudice it might carry. A defendant is not entitled to protection from such highly relevant self-inflicted truths.
That the evidence helps the prosecution and hurts the defendant's chances does not require its exclusion. By design, all of the State's evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided.
"Reasonable Necessity" - Not a Precondition to Admissibility
Kpan's blanket assertion that admissibility of the subject evidence "must" hinge on a showing that it is "reasonably necessary" to the State's case is not correct. (Def.'s Mot. 5/3/24 at 3-4.) Although the reasonable-necessity predicate is a contingent hallmark in sexual assault cases, it is not the admissibility fulcrum for other offenses, a sentiment which our Supreme Court has renewed on multiple occasions. E.g., Ciresi, 45 A.3d at 1213 n.12; State v. Garcia, 743 A.2d 1038, 1052 (R.I. 2000); State v. Martinez, 59 A.3d 73, 85 n.14 (R.I. 2013); Acquisto, 463 A.2d at 129 n.3.
In Acquisto, Justice Weisberger affirmed the trial court's admission of the defendant's threats to the victim of a sexual assault but expressly excised the reasonable-necessity test in all other cases: "In respect to non-sexual crimes, only independent relevance must be shown and the reasonable-necessity requirement is not a condition precedent to the introduction of such evidence." Acquisto, 463 A.2d at 129 n.3.
Nevertheless, lest there be any lingering question as to the view here, this Court finds, unreservedly, that Kpan's sworn admission that he fabricated the stolen motor vehicle report fits easily under the eaves of Rule 404(b), and it is also reasonably necessary to provide a complete picture of the events which the jury is entitled to consider.
Fifth Amendment Claim
Lastly, Kpan contemplates that if his self-admitted conviction is known to the jurors, it will purportedly infringe upon his Fifth Amendment privilege not to testify and "force" him to explain why he acknowledged filing the false report. This claim has no legs.
The fact that Kpan has also officially acknowledged that he concocted it should not be secreted and hidden from the jury. All defendants who make incriminating statements - whether to the police, their friends, to third parties, under oath in prior testimony, or in affidavits - must ultimately decide whether or not to testify and address them at trial. This defendant, represented by able counsel, knowingly and voluntarily confessed in open court to making the false report under oath, without reservations or qualifications, knowing full well that it was related to another offense with which he might later be charged.
Whether a defendant elects to testify or not at his trial is a fundamental option every defendant is afforded. This Court rejects Kpan's asseveration that because he decided to make the admission the State has somehow spiked his option not to testify.
III. Motion to Suppress Identification
Kpan has also moved the Court to suppress a December 29, 2018 identification of him made by Gweama from a photo array.
Assessing the legitimacy of a photographic identification procedure may, depending upon the circumstances, invite a one or two-step analysis. In State v. Gallop, 89 A.3d 795, 801 (R.I. 2014), the Court said:
"First, the trial justice must determine whether the procedure used in the identification was unnecessarily suggestive. We have more precisely delineated the bounds of acceptable suggestiveness by saying that an identification procedure must have been so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification to be inadmissible.
"If, and only if, the photographic array was unnecessarily suggestive is the second step of the analysis implicated. Then, the trial justice must determin[e] whether in the totality of the circumstances the identification was nonetheless reliable. The factors to be considered in making this determination are
"[T]he opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of the witness'[s] prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and
the length of time between the crime and the confrontation.
"If the trial justice concludes that the identification has independent reliability, then it will be admissible notwithstanding the suggestiveness of the procedure employed." Id. at 801 (citations and internal quotation marks omitted).After State v. Gatone, 698 A.2d 230 (R.I. 1997) and other authorities had reiterated that formula for evaluating photo lineup identifications, Rhode Island and other courts began to recognize the shortcomings of identification testimony, especially eyewitness frailties. State v. Davis, 131 A.3d 679, 696 (R.I. 2016); State v. Fuentes, 162 A.3d 638, 645 n.12 (R.I. 2017); State v. Hampton-Boyd, 253 A.3d 418, 426 (R.I. 2021). Other factors referenced in those cases which may affect witness identification include the presence of a weapon, a witness's degree of distraction, cross-racial identification, as well as a modicum of caution before accepting a witness's expression of certainty of the accuracy of his or her identification. State v. Washington, 189 A.3d 43, 47, 58 (R.I. 2018).
Just as importantly, and a key factor in the instant case, is the witness's personal familiarity with the individual, say, as a relative, friend, or an individual whom the witness simply knows well. Gweama and Kpan had known each other for years and, says the State (as did Gweama when he pled guilty), were confederates in this criminal case.
Kpan does not question the fairness of the six-image photo array, and from this Court's examination of it, the collection of photographs is not at all suggestive. He does assert, however, that Detective Green, who conducted the identification process, impermissibly drew Gweama's attention to Kpan's photo. Kpan points to page five of the transcript between Detective Green and Gweama at the Providence police station on December 29, 2018, where the transcriber reported the following;
"DET. GREEN: What I want you to do is just look through the photos. Do you recognize this person?
"MR. GWEAMA: Yeah.
"DET. GREEN: Okay. Who do you recognize in those?
"MR. GWEAMA: KP."
Gweama told Detective Green that he knew the person he selected only as "KP," not by his "government" name. Detective Green then closely questioned Gweama for almost half a page to ascertain the certainty of Gweama's identification, and five times Gweama assured Detective Green that he was certain, and on multiple occasions confirmed that he was "[h]undred percent" certain. At Detective Green's request, Gweama signed and dated the photograph and wrote "KP" beneath Kpan's photograph (no. four in the array). Pretrial Ex. 6 (Tr. at 6, Dec. 29, 2018).
Multiple copies of the Green-Gweama December 29, 2018 transcript were utilized during the April 25 and December 12, 2024 pretrial hearings by both parties, and copies were also appended to various pleadings. Occasionally, the pagination of those transcripts, as well as other transcripts of interviews of, say, Gweama and Kpan, differ by one or two page numbers, but all of them share the same accurate content. For purposes of this Decision, the Court has utilized the transcripts provided to the Court in the State's trial binder.
Kpan says that the above excerpt demonstrates that Detective Green must have encouraged Gweama to identify his photograph. That assertion, simply based upon the cold transcript, is misleading, and the audio/video recording of that identification process supports no such suggestiveness. Indeed, Detective Green's immediate follow-up question in the transcript, "Who do you recognize in those?", by itself, weakens Kpan's notion that Detective Green drew Gweama's attention to Kpan's image. There is much more, however, which disallows Kpan's suppression motion.
Notably, Detective Green conducted a "blind" identification procedure, the preferred method for such an undertaking. See Gallop, 89 A.3d at 803 n.6, citing the final report of the Rhode Island Task Force to Identify & Recommend Policies & Procedures to Improve the Accuracy of Eyewitness Identifications, noting that the administrator of a photographic array is unaware of the identity of the suspect or the position of the suspect's photograph in the arrangement.
At the April 25, 2024 hearing, Detective Green testified that Detective A'Vant asked him to conduct the blind photo lineup. Detective Green did not know Gweama or Kpan and had not been provided with any facts or circumstances relating to the robbery/homicide which Detective A'Vant's team was investigating. (Hr'g Tr. at 3-4, Apr. 25, 2024.) He was also wholly unaware that Gweama had already confessed his guilt to A'Vant's detectives and had identified Kpan as a coconspirator.
Detective Green began the meeting by advising Gweama of the usual photo lineup instructions, which were printed on a form and presented as an exhibit at the hearing. Instead of reading it himself, Gweama requested that Detective Green read it to him. Detective Green obliged and after reciting the instructions, Gweama acknowledged that he understood them and signed the instruction form. Id. at 5-6.
That form provided: "I, [Detective Terrence Green,] am going to show a group of individuals for identification purposes. This procedure is designed to clear the innocent as well as to ensure the accurate and reliable identification of the guilty. The perpetrator may or may not be present in this group of individuals. You do not have to identify anyone, regardless of whether or not you make an identification the investigation will continue. The fact that these individuals are being shown to you should not cause you to believe or guess that the guilty person has been caught. Please keep in mind that the individuals in the physical line-up may not appear exactly as they did on the date of the crime as features such as head and facial hair are subject to change. While viewing the physical line-up please keep in mind the following: 1. There is no significance to the order in which the individuals appear. 2. During the process, no one is to give you any hints or suggestions, or attempt to influence your identification in any way. 3. You must view all of the individuals prior to making an identification. 4. If you make an identification, it will be done in writing. 5. If you make an identification you must state in your own words how certain you are of such identification. Please do not talk to anyone other than the Administrator while viewing the physical line-up. Please do not indicate in any way to other witnesses that you have or have not made an identification."
Detective Green gave the six photographs to Gweama and, as reflected in the transcript, asked him to look through the photographs. It is clear from the recording that Gweama carefully reviewed the photos and pushed number four toward Detective Green. Only then did Detective Green ask Gweama if he knew the person in the photo. As depicted in the recording and in the transcript, Gweama then assured Detective Green that he was one hundred percent sure of his identification of KP. Gweama marked KP's photo as referenced above, id. at 6-8, and Detective Green then left the room, his responsibilities as blind administrator having been concluded.
At that April 25, 2024 hearing, Detective Green assured counsel and the Court that at no time during the process did he ever threaten, coerce, or suggest to Gweama which photograph to select. Id. at 11. Nothing during Detective Green's cross-examination rebuts that testimony.
The Court is easily satisfied that Detective Green neither said or did anything to suggest that Gweama should select Kpan's picture. Apparently, Gweama concurs in that determination, because at the December 12, 2024 hearing, he claimed that he picked out Kpan's photograph purportedly for his own selfish reasons.
When the identification hearing resumed on December 12, 2024, Gweama testified that the only reason he selected Kpan's photograph was because he knew that the police already suspected that Kpan was one of the perpetrators, and Gweama himself had previously admitted his complicity to Detective A'Vant's squad and identified Kpan as his confederate. He testified that he thought he might get a "better deal" for himself by going along with what the police already knew and hoped that his circumstances would improve if he selected Kpan's photograph. At the December 12, 2024 hearing, the following dialogue occurred during direct and cross-examination:
"DEFENSE COUNSEL: Did you know the person KP very well?
"MR. GWEAMA: I won't say very well, but we was acquaintances. I knew him for years, like, you know.
"DEFENSE COUNSEL: Did they make any suggestions to you at the time they presented you with the photo line-up as to who KP was?
"MR. GWEAMA: I won't say suggestions, but they kept like - like - like leading, basically, but they didn't make no suggestions. They just - they just made sure that his photo was in the line-up that they brought me, and then it was after my lawyer wasn't there no more.
"DEFENSE COUNSEL: And in your mind, by picking out of a photo of KP, did you -- were you telling them what you thought they wanted to hear?
"MR. GWEAMA: Yeah. Absolutely. 'Cuz I already -- I already -- I already went along with the evidence that they had in the interview. So that's why when they showed me the photos and KP was one of the photos, I picked his out." (Hr'g Tr. at 8, Dec. 12, 2024.)
"DEFENSE COUNSEL: Did you feel that by identifying that individual on the photo line-up that you would be helping yourself get a better deal?
"MR. GWEAMA: Yes.
"DEFENSE COUNSEL: Did the Providence police give you any indication of who they wanted you to pick out?
"MR. GWEAMA: I won't say any indication, but when they interviewed me before my lawyer got there, they basically already told me that the phone was under KP's name and the car. So that's what made me just go along with that story." Id. at 10-11.
"THE PROSECUTOR: So your testimony today, Mr. Gweama, is that the reason why you picked out Walter Kpan because you thought it be in your best interests to get a better deal down the road; is that fair to say?
"MR. GWEAMA: Yes." Id. at 15.
It is abundantly clear from the record that no police suggestiveness undermined the identification procedure, and there is no reason to exclude Gweama's identification of Kpan, whom Gweama had known for years. The motion to suppress that identification cannot be maintained.
Conclusion
For the reasons set forth herein, all of defendant Kpan's motions are denied.