Supreme Court

                                                          No. 2015-13-C.A.
                                                          (P1/13-591AG)


           State                     :

             v.                      :

       Terrel Barros.                :




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
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                                                                Supreme Court

                                                                No. 2015-13-C.A.
                                                                (P1/13-591AG )


                   State                      :

                     v.                       :

               Terrel Barros.                 :


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

                                         OPINION

       Justice Flaherty, for the Court. The defendant, Terrel Barros, appeals from judgments

of conviction after a jury found him guilty of first-degree murder (count 1), using a firearm

during a violent crime (count 2), possessing a firearm after having previously been convicted of a

violent crime (count 3), carrying a handgun without a license (count 6), felony assault (count 7),

and discharging a firearm during a violent crime (count 8). The defendant received consecutive

life sentences for first-degree murder and using a firearm during a violent crime; three

consecutive ten-year terms for possessing a firearm after having previously been convicted of a

violent crime, carrying a handgun without a license, and discharging a firearm during a violent

crime; and a twenty-year concurrent term for the felony assault. This case came before the

Supreme Court for argument on September 28, 2016. On appeal, the defendant argues that the

trial justice improperly excluded the testimony of Stephen Bodden on the grounds that Bodden

effectively invoked his Fifth Amendment privilege against self-incrimination. The defendant

argues that the exclusion of Bodden’s testimony was reversible error and, therefore, the

defendant is entitled to a new trial at which Bodden would be compelled to testify in front of the



                                               -1-
jury. After careful consideration of the defendant’s arguments and a thorough review of the

record, we affirm the judgment of conviction.

                                                  I

                                         Facts and Travel

       Over the course of fifteen to twenty years, Jamal Cruz and Rokiem Henley had grown so

close that they considered themselves to be like cousins. On the evening of August 25, 2012,

Cruz and Henley, along with some friends, went to the Monet Lounge in Providence to celebrate

another friend’s birthday. The two men and their friends partied in the club’s VIP area, drinking

and socializing without incident. At 2 a.m., the club’s lights came on to indicate that it was

closing time. As Cruz and Henley were leaving the club, there was a “little verbal disagreement”

between Cruz and two men—Stephen Bodden and defendant, Terrel Barros—but apparently no

physical altercation occurred. With the verbal clash apparently behind them, Cruz and Henley

went to the parking lot to retrieve Cruz’s car. Cruz went ahead, first to the valet shack, and then

to his car. After ten to fifteen minutes, Henley walked to Cruz’s car, where he saw Bodden

approach Cruz and heard him say, “What’s up with that shit that happened in the club?” As

Henley continued toward Cruz and Bodden, he heard two gunshots, and he was immediately

aware that he had been hit in the leg. Cruz was less fortunate; he had been shot in the stomach,

an injury that caused his death shortly thereafter.

       Patrolmen Daniel Sirignano and Michael Pattie of the Providence Police Department

were working a police detail at the Monet Lounge on the night of the shooting. The officers

heard the gunshots and instantly reacted. Officer Sirignano was on the scene within seconds; he

saw Bodden and Barros get into a Chevrolet Impala and then noticed that Bodden had a firearm

that he was trying to conceal. Officer Sirignano detained Bodden and Barros at gunpoint.




                                                -2-
Officer Pattie arrived moments later. Working together, the officers arrested and handcuffed

Bodden and Barros.      Ultimately, the pair was charged with multiple crimes related to the

shooting. 1

        Over the course of an eight-day jury trial, the state presented evidence that Cruz had

identified defendant as the shooter before he succumbed to his wounds. The state also presented

an eyewitness who testified that he saw defendant with a gun in his hand. The defendant,

however, argued that Bodden was the shooter. Indeed, Officer Pattie testified that, when Bodden

was arrested, he said, “It’s me. It’s all me. It’s all mine.” Additionally, it was argued at trial

that Bodden’s DNA was found on the gun and defendant’s was not. 2

        At trial, defendant expressed his intention to call Bodden as a witness. The defendant’s

attorney informed the trial justice that he believed Bodden would testify despite the charges that

were pending against him relating to the same incident.         However, when the prospect of

Bodden’s testimony was first addressed at an in-chambers conference, Bodden’s attorney, a

member of the Public Defender’s Office, indicated that his client would invoke his Fifth

Amendment privilege against self-incrimination should he be called as a witness. Accordingly,

the trial justice ordered that a voir dire examination be conducted to determine if Bodden would,

in fact, invoke his Fifth Amendment privilege and decline to testify.

        At the voir dire examination, Bodden’s attorney was unavailable. In accordance with the

trial justice’s request, another attorney from the Public Defender’s Office was summoned and

represented Bodden “on behalf of [the first attorney].” In light of the earlier indication that

Bodden would decline to testify, it was no small surprise that, after he was sworn, he began

1
 The defendant, however, was tried separately from Bodden.
2
  It is worth noting that the expert witness who testified at trial said that DNA from multiple
people was on the gun and that some of the DNA found on the gun matched defendant’s DNA,
but he added that there was not enough of defendant’s DNA to positively identify him.


                                               -3-
answering questions. Bodden testified on defendant’s direct examination that defendant did not

hand him a gun the night of the shooting. On cross-examination, Bodden further stated that he

did not have a gun with him when he arrived at the Monet Lounge that evening. The trial justice

then briefly interrupted the proceeding in an effort to confirm that the witness did intend to

testify. Surprised by Bodden’s statements, the prosecutor requested discovery, arguing that the

state had not been provided with “any information with respect to what Mr. Bodden would

testify to.” Likewise, defense counsel requested time to speak to Bodden. 3 At that point, the

proceedings recessed.

       When the matter resumed, a senior member of the Public Defender’s Office stepped in to

assist in Bodden’s representation. That attorney informed the court in no uncertain terms that

Bodden would indeed invoke his privilege not to testify. When Bodden returned to the stand, he

did just that and he did not answer any more questions. The trial justice then excused Bodden,

ruling that his testimony “will not be had in front of the jury.”

                                                  II

                                             Discussion

                                                  A

                                          Issue on Appeal

       Before this Court, defendant raises but a single argument. He maintains that the trial

justice erred when he ruled that Bodden properly had invoked his Fifth Amendment right against

self-incrimination. The defendant insists that Bodden, because he had answered some questions,

had waived his Fifth Amendment privilege and that he should have been compelled to testify in



3
 Oddly, prior to the voir dire examination, the defense represented that it had information that
Bodden would testify, but when he actually began to do so, co-counsel for defendant claimed to
be totally surprised that Bodden was answering any questions.


                                                 -4-
front of the jury. It is important to note that, although defendant has framed the issue as one of

constitutional dimension, the constitutional right in question resides in Bodden, and defendant

does not have standing to contest Bodden’s Fifth Amendment rights.               See United States

Department of Labor v. Triplett, 494 U.S. 715, 720 (1990) (“Ordinarily, of course, a litigant

‘must assert his own legal rights and interests, and cannot rest his claim to relief on the legal

rights or interests of third parties.’ * * * This is generally so even when the very same allegedly

illegal act that affects the litigant also affects a third party.”); State v. Ducharme, 601 A.2d 937,

940 (R.I. 1991) (noting that the defendant did not have standing to object to a violation of a co-

defendant’s Fifth Amendment rights, even though that violation may have been instrumental in

producing evidence that ultimately was prejudicial to the defendant); see also United States v.

Seifert, 648 F.2d 557, 560 (9th Cir. 1980) (a nonparty witness’s Fifth Amendment “privilege

arises only when he asserts it as to a question put to him, and it is for the court to say whether he

is entitled to the privilege”). Thus, in our opinion, the issue before the Court is not constitutional

in nature, but evidentiary. Simply put, we must determine if the trial justice should have

compelled Bodden’s testimony, thereby allowing it into evidence.

                                                  B

                                       Standard of Review

       “It is well established that decisions concerning the admissibility of evidence are ‘within

the sound discretion of the trial justice, and this Court will not interfere with the trial justice’s

decision unless a clear abuse of that discretion is apparent.’” State v. Gaspar, 982 A.2d 140, 147

(R.I. 2009) (quoting State v. Mohapatra, 880 A.2d 802, 805 (R.I. 2005)). “[This] abuse-of-

discretion standard includes review to determine that the discretion was not guided by erroneous

legal conclusions.” Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524, 527 (R.I. 2002)




                                                -5-
(quoting Votolato v. Merandi, 747 A.2d 455, 460 (R.I. 2000)). “The trial justice will not have

abused his or her discretion as long as some grounds supporting his or her decision appear in the

record.” State v. Reyes, 984 A.2d 606, 615 (R.I. 2009) (quoting State v. Evans, 742 A.2d 715,

719 (R.I. 1999)).

                                                C

                                            Analysis

                                                 i

       As a threshold issue, we must first determine whether defendant’s appeal is properly

before this Court. As we have said on innumerable occasions, “a litigant cannot raise an

objection or advance a new theory on appeal if it was not raised before the trial court.” State v.

Bido, 941 A.2d 822, 829 (R.I. 2008). Moreover, “in order to satisfy the strictures of our ‘raise-

or-waive’ rule, 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)). The Rules of Evidence

require that a specific ground for an objection must be stated unless the reason for the objection

is clear from the context in which it was made. See Rule 103(a)(1) of the Rhode Island Rules of

Evidence. After a careful review of the record, we conclude that, despite several opportunities to

do so, defendant did not articulate an objection to the trial justice’s decision regarding Bodden’s

testimony.

       After the senior public defender informed the court that Bodden would, in fact, invoke his

Fifth Amendment privilege, the trial justice asked defense counsel, “Any comments you want to

make?” This brief colloquy followed:

                      “[DEFENSE COUNSEL]:               We find it extremely
               disheartening, this chain of events.     [Bodden’s counsel] was



                                               -6-
               present this morning. I was under the impression that [Bodden’s
               counsel] at some point had contact with Mr. Bodden. I can’t
               honestly remember if [Bodden’s counsel] told me he spoke to him
               this morning. I just don’t know. But evidently [Bodden’s
               successor counsel] became – had ample time to converse with him,
               and I believe he made it expressly clear when he took the stand
               that he had the absolute, steadfast desire to testify. The defense
               posed four or five questions and concluded its inquiry at that point,
               and then the prosecution began to pose questions on cross-
               examination.
                       “We feel as though he’s still a competent, viable witness
               that’s extremely important to the defendant’s defense, and wish to
               call him.
                       “* * *
                       “THE COURT: * * *. We’re now in the position that the
               record speaks for itself; namely, that the witness is going to invoke
               his Fifth [Amendment privilege] with respect to him.
                       “We are going to go out into the courtroom and make the
               record clear in that regard. Anything else?
                       “[DEFENSE COUNSEL]: No, Your Honor. Thank you.”

       Bodden then resumed the stand. Defense counsel attempted to ask the witness three more

questions. Bodden’s response to each question was the same; “I invoke my Fifth Amendment.”

Once it became clear that Bodden would testify no further, the trial justice ruled that the witness

had “effectively and properly invoked” his Fifth Amendment privilege. The trial justice then

excused the witness and said that “his testimony will not be had in front of the jury, nor will he

be permitted to invoke any Fifth Amendment privilege in front of a jury, as it is inappropriate to

do so.” The trial justice then requested that the jury be brought into the courtroom. While all

were waiting for the jury to return, another short colloquy occurred:

                        “THE COURT: * * *. Do you have your other witness
               available?
                        “[PROSECUTOR]: Judge, we have another witness.
                        “THE COURT: You still have the ME. We’ll do the ME.
                        “[PROSECUTOR]: Judge, I believe Detective A’Vant is
               still on the stand.
                        “[DEFENSE COUNSEL]: I think it’s time for Detective
               A’Vant’s cross, Your Honor.




                                               -7-
                      “THE COURT: I didn’t know if you wanted to interrupt
               him for the ME.
                      “[PROSECUTOR]: No, Your Honor. Thank you. I’ll
               have her wait and begin her testimony this afternoon.
                      “(Jury enters at 2:56 p.m.)
                      “THE COURT: I thank you for your patience, ladies and
               gentlemen. I can assure you that in your absence we were
               working.
                      “Detective A’Vant.
                      “[DEFENSE COUNSEL]: Thank you, Your Honor.”

       The defendant did not object to the trial justice’s decision during or at the conclusion of

the voir dire examination. Instead, when asked during the voir dire if he had anything else to say

upon learning that Bodden would choose to invoke his Fifth Amendment privilege, defense

counsel said, “No, Your Honor. Thank you.” And upon conclusion of the voir dire, defense

counsel again did not object, but instead continued with his cross-examination of Det. A’Vant.

Defense counsel expressed disappointment with Bodden’s decision not to testify, saying it was

“disheartening.” Disappointment, however, does not equate to an objection.

       Defense counsel contends that it did object, citing State v. Baptista, 894 A.2d 911 (R.I.

2006) and Rule 103(a)(1), which says:

                       “Error may not be predicated upon a ruling which admits or
               excludes evidence unless a substantial right of the party is affected,
               and
                       “(1) Objection. In case the ruling is one admitting evidence,
               a timely objection or motion to strike appears of record, stating the
               specific ground of objection, if the specific ground was not
               apparent from the context * * *.”

In Baptista, 894 A.2d at 914 n.2, we held that, pursuant to Rule 103(a)(1), the defendant properly

preserved his appeal of an evidentiary issue despite not stating a ground for his objection at trial.

Also, in Baptista, the defendant had objected twice to the relevant testimony, and we said that the

“objections in [that] case were more than sufficiently focused as to direct the trial justice’s

attention to the objection’s basis.” Id.



                                                -8-
        The defendant’s argument falters because, unlike Baptista, defendant in this case never

actually objected either during the voir dire examination or at trial. The central principle of Rule

103(a)(1) rests on the premise that a trial justice may infer the specific grounds of an objection,

even when an objecting party does not make those grounds clear. The defendant correctly

asserts that the trial justice was on notice that the issue at hand during the voir dire examination

was whether Bodden validly invoked his privilege against self-incrimination. Being aware of the

situation, however, allows the trial justice to infer only the grounds of an objection that was

actually made and does not permit a trial justice to infer an objection in and of itself. Despite

expressing disappointment at the turn of events, defendant did not raise any objection to the trial

justice’s ruling. Furthermore, the above analysis notwithstanding, defendant’s reliance on Rule

103(a)(1) is misplaced because the rule deals with situations in which “the ruling is one

admitting evidence.” Here, however, defendant is challenging the trial justice’s decision to

exclude evidence. Thus, it is our opinion that Rule 103(a)(1) is inapplicable.

                                                 ii

        Even though defendant maintains that he did not waive his objection below, he

nonetheless argues in the alternative that, even if he did not object at trial, this Court should

adopt an exception to the raise-or-waive rule that would allow a review of the merits of the

objection he now raises on appeal. To that end, defendant proposes that “[f]or capital offenses,

due to the high stakes involved when an issue is not properly preserved, * * * this Court [should]

adopt the” four-pronged test enunciated in United States v. Krynicki, 689 F.2d 289, 291-92 (1st

Cir. 1982). 4



4
  We recently had occasion to consider adopting the Krynicki test in State v. Florez, 138 A.3d
789, 796 n.9 (R.I. 2016), and “[w]e decline[d] to do so.” The Krynicki court noted that
“‘exceptional cases or particular circumstances’ may arise where a court will review questions of


                                               -9-
       As discussed above, “[t]his Court staunchly adheres to the ‘raise or waive’ rule.” State v.

Figuereo, 31 A.3d 1283, 1289 (R.I. 2011). We have recognized but one exception to the raise-

or-waive rule where “basic constitutional rights are concerned.” State v. Gomez, 848 A.2d 221,

237 (R.I. 2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I. 1991)). “[T]o fall within this

exception, the defendant must show: (1) that the error complained of amounts to more than

harmless error; (2) that a sufficient record exists to permit a determination of the issue; and (3)

that ‘counsel’s failure to raise the issue [before trial] must be premised upon a novel rule of law

that counsel could not reasonably have known during the trial.’” State v. Florez, 138 A.3d 789,

796 (R.I. 2016) (quoting Cronan ex rel. State v. Cronan, 774 A.2d 866, 878 (R.I. 2001)). Here,

because defendant’s constitutional rights were not violated, nor was the failure to raise the issue

premised on a novel rule of law, the narrow exception does not apply.

       We remain convinced that the raise-or-waive rule is “an important guarantor of fairness

and efficiency in the judicial process.” DeMarco v. Travelers Insurance Co., 26 A.3d 585, 628

n.55 (R.I. 2011). The rule should not “be dismissed as a pettifogging technicality or a trap for

the indolent; the rule is founded upon important considerations of fairness, judicial economy, and

practical wisdom.” National Association of Social Workers v. Harwood, 69 F.3d 622, 627 (1st

Cir. 1995). The raise-or-waive rule requires that objections are to be raised at trial so that

opposing counsel has “an opportunity to respond appropriately to claims raised.” State v. Burke,

522 A.2d 725, 731 (R.I. 1987). The rule has “the salutary effect of making the * * * trial on the


law neither pressed nor decided below.” United States v. Krynicki, 689 F.2d 289, 291 (1st Cir.
1982) (quoting United States v. Miller, 636 F.2d 850, 853 (1st Cir. 1980)). In those exceptional
cases, the court applies a four-pronged analysis in determining whether to review issues not
objected to at trial: (1) the unpreserved issue must be purely legal and the record requires no
further development; (2) the party’s argument is “highly persuasive”; (3) reaching the
straightforward legal issue promotes judicial economy and aids the administration of the criminal
justice system; and (4) declining to reach the issue “would result in a miscarriage of justice.” Id.
at 291-92.


                                               - 10 -
merits the ‘main event,’ so to speak, rather than a ‘tryout on the road’ for what will later be the

determinative” appellate review. Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Accordingly,

we again decline the invitation to adopt Krynicki. 5

         At trial, defendant did not properly articulate the issue he now appeals, nor does his case

fit into our recognized exception to the raise-or-waive rule.        Therefore, we conclude that

defendant’s appeal is not properly before this Court.

                                                 iii

         Although we need not reach the issue because it was not raised below, we pause to note,

nonetheless, that our review of the record fails to reveal any error. The defendant contends that

the trial justice improperly excused Bodden as a witness based upon an erroneous conclusion that

Bodden had invoked his Fifth Amendment privilege, when, to the contrary, defendant believes

that the witness had waived his privilege by beginning to testify. We reiterate that the decision

to exclude Bodden’s live testimony was an evidentiary ruling, and thus falls within the trial

justice’s sound discretion. That said, a trial justice’s evidentiary decision is reviewed to ensure

that it was not guided by any erroneous legal conclusions. If Bodden properly invoked his Fifth



5
    In Hormel v. Helvering, 312 U.S. 552, 557 (1941), Justice Black wrote:

                         “Rules of practice and procedure are devised to promote
                 the ends of justice, not to defeat them. A rigid and undeviating
                 judicially declared practice under which courts of review would
                 invariably and under all circumstances decline to consider all
                 questions which had not previously been specifically urged would
                 be out of harmony with this policy. Orderly rules of procedure do
                 not require sacrifice of the rules of fundamental justice.”

When considering our own rules regarding raise-or-waive, we find that Justice Black’s words
continue to ring true. We believe there is value in our “orderly rules of procedure,” and believe
that the rules “promote the ends of justice.” In the present case, we see nothing that offends our
sense of “fundamental justice,” and therefore decline to recognize another exception to the raise-
or-waive rule at this time.


                                               - 11 -
Amendment privilege, then the trial justice was well within the bounds of his discretion when he

excluded him as a witness.

       Even though Bodden began to testify at the voir dire examination, he subsequently

invoked his Fifth Amendment privilege against self-incrimination.           Relying on Mitchell v.

United States, 526 U.S. 314 (1999), defendant asserts that Bodden should have been compelled

to continue testifying because “[i]t is well established that a witness, in a single proceeding, may

not testify voluntarily about a subject and then invoke the privilege against self-incrimination

when questioned about the details.” Id. at 321 (citing Rogers v. United States, 340 U.S. 367, 373

(1951)). The Mitchell Court, however, went on to instruct that the “privilege is waived for the

matters to which the witness testifies, and the scope of the ‘waiver is determined by the scope of

relevant cross-examination[.]’” Id. (quoting Brown v. United States, 356 U.S. 148, 154-55

(1958)). That is, the dispositive factor is whether additional questions are required to test the

accuracy of what was already disclosed. Cf. 1 Kenneth S. Broun, McCormick on Evidence §

133 at 757 (7th ed. 2013) (at its foundation, the Mitchell rule “rests primarily on the need to

avoid leaving a trier of fact with the limited version of relevant information that would be before

it if a witness was permitted to at will pick a point at which to invoke the privilege”).

       The court in Klein v. Harris, 667 F.2d 274 (2d Cir. 1981), articulated an alternative

analysis to determine the scope of Fifth Amendment waiver. Specifically, waiver can be inferred

only when:

               “(1) the witness’ prior statements have created a significant
               likelihood that the finder of fact will be left with and prone to rely
               on a distorted view of the truth, and (2) the witness had reason to
               know that his prior statements would be interpreted as a waiver of
               the [F]ifth [A]mendment’s privilege against self-incrimination.”
               Id. at 287.




                                                - 12 -
          Although Bodden answered six questions on direct examination (one of which was

stating his name), the trial justice determined that “[t]here was no opportunity whatsoever” for

the state to cross-examine him. The trial justice reasoned that “the State was never permitted to

confront the witness with the statement that’s been admitted into evidence, ‘It’s me. It’s all me.

It’s mine.’ There’s no question that that would’ve been a crucial area of confrontation in cross-

examination, not to mention all the other evidence that has been admitted.” Accordingly, in the

absence of any relevant cross-examination, the trial justice did not err when he ruled that Bodden

properly invoked his Fifth Amendment privilege during the voir dire examination. Furthermore,

because Bodden’s limited testimony occurred during a voir dire examination, there is no risk that

the finder of fact—in this case, the jury—could have been left to rely on a “distorted view of the

truth.”

                                                III

                                            Conclusion

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

The record is remanded to that tribunal.




                                               - 13 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Terrel Barros.

CASE NO:              No. 2015-13-C.A.
                      (P1/13-591AG)

COURT:                Supreme Court

DATE OPINION FILED: October 31, 2016

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

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

                      For State: Virginia M. McGinn
                                 Department of Attorney General

                      For Defendant: Joseph J. Voccola, Esq.