Supreme Court
No. 2017-2 -C.A. No. 201 7 -2 -C.A.

( P1 /14 -891 AG)

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. State :

v. : Ashner Alexis

. : June 13, 2018- 1

- Supreme Court
No. 201 7

- 2

- C.A. ( P1 / 14

- 891 A G )

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. O P I N I O N Chief Justice Suttell, for the Court. A senseless compulsion for revenge resulted in the tragic and unintended death of George Holland , Jr. and the conviction of fou r conspirators. In the case under review , Ashner Alexis ( Alexis or defend ant) appeals from a judgment of conviction for murder (count 1); conspiracy to commit murder (count 2); and discharging a weapon while committing a crime of violence (count 3). He was sentenced to two consecutive life terms of imprisonment on counts 1 and 3, and ten years to serve on count 2, also to be served consecutively . He seeks to have his convictions reversed and the case remanded for a new trial , on the grounds that the tri al justice abused his discretion in denying Alexis’s motions to pass and in overruling Alexis’s objection s to photographic evidence , and because the trial justice erred in denying Alexis’s motion for a new trial. For the reasons set forth herein, we affir m the judgment of the Superior Court. 1
I Facts and Procedural History In January 2014, Seydina Limamou Ndoye contacted Alain Bedame about purchasing a weapon for self

- protection. Bedame arranged a meeting with Jo h nathan and James Gomez so

1 This matter was heard at Lincoln High School.

State :

v. : Ashner Alexis

. :- 2

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that Ndoye could purchase a gun from them. At the meeting, Ndoye gave Jo h nathan and James $240 for the purchase of a Glock handgun, which the Gomez brothers represented they would procure from their uncle. Bedame also allowed Jo h nathan to borrow his cell phon e so Jo h nathan could contact his uncle. The Gomez brothers then left, cell phone and $240 in hand, never to

return

. After fifteen

- to

- twenty minutes passed, Ndoye and Bedame picked up some friends and drove to the Gomez residence on Colfax Street in Provi dence. Ebony Gomez, Jo h nathan and James’s sister, told the group that her brothers were not at home. Ndoye told Ebony that he “wanted his stuff back.” Ndoye and Bedame eventually located and confronted Jo h nathan , whom Bedame described as “shaking” and appearing as though he “ was about to cry.”
Jo h nathan told Ndoye and Bedame that his uncle had robbed him of the cash and cell phone at gunpoint , but Jo h nathan pr omised that he would reimburse N doye and replace Bedame’s cell phone.
Later , Ndoye showed Be dame a photo graph posted on Jam es Gomez’s Facebook page, which, Ndoye believed, depicted James holding Bedame’s cell phone. This initiated an exchange of hostile Facebook messages between Bedame and James Gomez. Thereafter, Alexis , having heard that Ndoy e had been robbed by the Gomez brothers, contacted Ndoye on Facebook and told Ndoye that the Gomez brothers had also stolen scrap met al from A lexis’s yard. Ndoye
asked Alexis for a firearm ; and, on February 4, 2014, Bedame, Alexis, and Ndoye drove to Woonsocket to “ get the gun ” from Alexis’s friend

. When t hey arrived at the home of Alexis’s friend, Anthony Moore , 2 they encountered twenty to twenty

- five people having a party

. Ndoye observed as Alexis informed Moore that he

2 Anthony Moore was also charged and convicted of first

- degree murder, conspiracy to commit murder, and using a firearm while committing a crime of violence for his involvement in the death of George Holland , Jr

. See State v. Moore , 154 A.3d 472 (R.I. 2017 ).- 3

-

wanted the gun because he had been robbed. Alexis told Moore that he would return the gun

. Moore then directed Robert Winston to fetch a weapon. Winston and Bedame left the house to obtain the gun. Shortly thereafter, they ret urned and Winston placed a shot gun wrapped in a
C ape Verdean flag and bullets with small pellets inside on the kitchen table. According to Ndoye, Moore picked up the weapon and han ded it to Alexis, who tucked it into his waistband, causing him to walk with a pronounced limp . According to Ndoye , Alexis said that he would shoot “whoever comes to the door” at the Gomeze s ’ home. Winston, Ndoye , Bedame, and Alexis left Moore’s house and headed to Providence

. According to Ndoye, they first stopped at the house of Alexis’s girlfriend so that Alexis could ch ange into dark clothes. Bedame then drove to the Gomeze s ’ home and parked a short distance
away. Alexis took a pair of work gloves and wore on e glove himself, giving the other to Winston. Alexis then put on a mask, removed the gun from the trunk of Beda me’s car , “stuff[ed ] the gun inside his waistband,” and approached the Gomez house with Winston. Alexis instructe d Winston to knock on the Gomeze s ’ window

. When Winston complied, a shadow appeared behind the closed blinds , and Alexis fired the shotgun , shattering the window. Bedame and Ndoye heard the gunshot blast and then Alexis and Winston ran back to the car . According to Ndoye, once Alexis and Winston were inside the vehicle , Alexis was laughing “hysterically” and
exclaimed excitedly , “I got him ” and “I pulled the trigger.” Bedame recalled Alexis stating that he “fe [ lt ] like shooting somebody else.” At this point, t hey left Bedame’s vehicle in Providenc e, picked up Ndoye’s car , and
pro ce eded to Woonsocket to return the gun to Moore

. En route, Bedame received a Facebook
message from James Gomez that stated, “T hey’re coming for you, bro.” Hours later , Winston received a phone call from Moore, informing him that the wrong person had been shot.- 4

-

In fact, the shadowy figure behind the bli nds at the Gomez es ’s home was Ebony’s boyfriend, seventeen

- year - old George Holland , Jr

. Miguel Gomez, the father of Jo h nathan, James, and Ebony, was watching television in a bedroom with his girlfriend on the evening of February 4, 2014, when he heard a l oud bang, followed by a flash of light and t he sound of his children screaming that Holland had been shot. M r. Gomez ran into the living room and saw Holland, l ying on the floor amid shell casings and glass, as Ebony held a sweat er to his abdomen

. Holland was transported to Rhode Island Hospital, where he was pronounced dead shortly after

t en o’clock that evening as a result of nine individual shotgun pellet strikes to his right abdominal area. During the police investigation, James Gomez showed P rovidence Police Detective Kenneth Court the Facebook postings made by Bedame. Detective Court then spoke with Bedame, which conversation led him to contact Ndoye. Both Bedame and Ndoye made statements implicating themselves , as well as Moore, Winston, a nd Alexis. On March 28, 2014, Alexis was indicted along with Moore, Bedame, and Ndoye. 3 Alexis was charged with the murder of Holland (count 1); conspiracy to commit murder (count 2); and discharging a weapon while committing a crime of violence (count 3). A jury trial commenced on November 6, 2014

. On November 17, 2014 , Alexis was found guilty on all three counts. On January 8, 2015, the trial justice denied Alexis’s motion for a new trial , and o n February 12, 2015, he sentenc ed Alexis to two life sentences and ten years to serve, with each term to be served consecutively

.

3 Winston entered into a cooperation agreement with the state in exchange for his promise to testify truthfully at Alexis’s trial. Bedame and Ndoye likewise entered into agreements with the state

.- 5

- II Issues on Appeal Alexis argues that the trial justice abused his discretion in denying hi s motion s to pass the case because an emotional outburst by a witness and Ndoye’s reference during his testimony to a “mug shot” photograph of Alexis w ere extr aordinarily prejudicial and because the instruction s given were not sufficient to cure the prejudice. Alexis further contends that the trial justice abused his discretion in overruling hi s objection to the admission of a “gang” photograph. Alexis also argues that the cumulative effect doctrine should apply in this case. Lastly , Alexis argues that the trial justice erred in denying hi s motion for a new trial , arguing that the verdict was against the weight of the evidence. Alexis requests that his conviction be reversed , and that the case be remanded for a new trial.
A Motion s to Pass and Motions f or Mistrial 4
1 Standard of Review “It is well settled that ‘a trial justice’s decision on a motion to pass the case is addressed to the sound discretion of the trial justice, and this Court will not disturb the ruling on such a motion absent an abuse of discretion.’” State v. Rosado , 139 A .3d 419, 423 (R.I. 2016) (quoting State v. Tully , 110 A.3d 1181, 1190

- 91 (R.I. 2015)). “We give great deference to the trial justice in this regard because he or she has a front

- row seat at the trial and is in the best position to determine whether a defe ndant has been unfairly prejudiced.” Id. (quoting Tully, 110 A.3d at

4 “A motion to pass a case is viewed for all intents and purposes as identical to a motion for a mistrial.” State v. Disla , 874 A.2d 190, 198 (R.I. 2005) (quoting State v. LaRoche , 683 A.2d 989, 999 (R.I. 1996)).- 6

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1191). “When ruling on a motion to pass, the trial justice must assess the prejudicial impact of the statement in question on the jury and determine whether the evidence was of such a na ture as to cause the jurors to become so inflamed that their attention was distracted from the issues submitted to them.” Id. at 424 (quoting State v. Cipriano , 21 A.3d 408, 428 (R.I. 2011)). “[W]e previously have held that even prejudicial remarks do not necessarily require the granting of a motion to pass.” Id. (quoting Roma v. Moreira , 126 A.3d 447, 449 (R.I. 2015)).

a Miguel Gomez’s Emotional Outburst Alexis first argues that the trial justice abused his discretion in denying hi s motion for a mistrial because Mr. Gomez’s emotional outburst on the witness stand prejudiced the jury against him . Moreover, he contends that the cautionary instruction given by the trial justice was insufficient to cure the prejudicial effect.
i Discussion
M r. Gomez was the f

irst witness for the state

. While on the witness stand, the prosecutor showed him a photograph of Holland and asked him if he knew the identity of the young man in the photograph

. Mr

. Gomez started crying and stated, “ Yeah. It’s George. He was like a son. H e came all the time to the house. ” D efense counsel made a motion for a mistrial and the trial justice immediately called a recess. In the absence of the jury, d efense counsel argued that Mr. Gomez’s testimony did not provide any information that p ertained to an essential element of any of the offenses and was not necessa ry to the s tate’s case. Defense counsel further argued that the extremely emotional nature of the testimony prejudiced the jury against Alexis and that the testimony “irreparably t ainted [the] jury and prejudiced the jury against” Alexis

.- 7

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Alt hough the trial justice acknowledged the emotional nature of Mr. Gomez’s response, he denied the motion for a mistrial

. T he trial justice explained that “ [ s ]urrounding his crying his responses were rather conversational, not fraught with emotion.” T he trial justice continued,
“I ’m not at all of a mind to believe that the witness’s very short, although clear degree of upsetness, is something tha t is going to interfere with this ju ry’s assigned work.” He stated , “although the gentlema n became upset, h is degree of upset wi ll not inflame the passions of jurors so as to prevent their calm and dispassionate examination of the evidence.” At the request of defense counsel, the trial justice gave a cautionary instruction when the jury returned to the courtroom

. In giving the cautionary instruction, t he trial justice stated :

“ All right. Folks, thank you for giving us a few minutes to take up some matters outside your presence.

“ Mr. Go mez, obviously, as you know, became upset when he was speaking about the death of George Holland. Cases such as these, obviously, will engender some emotion . Sometimes even spectators

— it [h] asn’t happened yet, but sometimes even spectators in the courtro om become unglued, if I can use the vernacu lar. In those instances, we tak e a recess and let things calm down.

“ And I simply want to remind you, as I said before the trial started, that there would be instances, for example, during the medical examiner’s testimony or during photographic evidence, that would not be particularly pleasant, and I didn’t want you to be d istracted from your assigned responsibility simply because of things that you heard on the stand or pictures that you saw.

“ I also remi nded you at the beginning that

— if I didn’t, I certainly will emphasize it now, and probably later, and I think the lawy ers referred to it during their comments to you

— sympathy plays no part in the course of your deliberations. Obviously, Mr. Gomez was upset to the extent that he may have engendered some sympathy from you. Understand that notwithstanding his sad feelings over the loss of the young man, that cannot be permitted to affect your judgment as you go forward in this case and as you deliberate.

“ In other words, you must not permit these kinds of events, be they photographic pieces of evidence of an autopsy, or te stimony from someone who is near and dear to the deceased, or things like that, you can ’ t permit tho se things to inflame your- 8

- passions so as to prevent your calm and dispassionate examination of the evidence and acceptance of the law that I will provide to you at the end of the case.

“ Can all of you do th at?” The trial just ic e then questioned the jury, “A re there any of you at all who have been so affected by Mr. Gomez’s short interlude of sadness and crying on the stand that they cannot g o forward? Anybody feel that way ? Everybody okay?” Alexis argues that the cautionary instruction was insufficient t o cure the prejudice because the trial justice “ did not direct the jurors to disregard the prejudicial emotional outburst, and he did not emphasize th at this behavior did not relate to the guilt or innocence of Mr. Alexis.” Alexis further argues that the trial justice “failed to direct the jurors t o not consider this emotional outburst, or to put the outburst out of their minds.”
We afford the trial justice a great deal of discretion in determining whether or not a witness’s emotional reaction inordinately inflamed the passions of the jury. See Rosado , 139 A.3d at 4 24. The trial justice is in the best position to determine whether or not the emotion al outburst would distract the jury from its function. Id. at 423

- 24. Here, the trial justice considered the potential impact of the witness’s emotional display and determined that, despite the outburst , the jurors would be able to continue in their dutie s calmly and dispassionately. “[T]here is no ‘precise formula’ to determine whether any prejudicial taint may have been cured by a cautionary instruction. ” State v. Hie , 93 A.3d 963, 973 (R.I. 2014) (quoting State v. Oliviera , 882 A.2d 1097, 1127 (R.I. 2005)) . Instead , “[e]ach case must be decided on an ad hoc basis and each challenged remark must be viewed in the context in which it appeared and in light of the attendant circumstances.” Id

. (quoting State v. Hoyle , 122 R.I. 45, 48, 404 A.2d 69,
70

- 71 ( 1979)). Where “ the trial justice decide [ s ] to ‘ u tilize a cautionary instruction [ , ] ’ * * * ‘ the question before u s is whether [the trial justice’ s] instruction can be fairly said t o have removed- 9

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from [the jurors’ minds], when weighing the evidence properly bef ore them, the taint represented ’ * * *

. ” Id

. (quoting State v. Brown , 528 A.2d 1098, 1103 (R.I. 1987) )

. We are well satisfied that Mr. Gomez’s relatively short display of emotion on the witness
stand did not warrant a mistrial and that the trial justice did not abuse his discretion in denying Alexis’s motion. Moreover, we are of the opinion t hat t he cautionary instruction given by the trial justice was sufficient to remove any possible taint caused by Mr. Gomez’s outburst from the
minds of the jury. The defendant points to State v. Massey , 119 R.I. 666, 382 A.2d 801 (1978) , for the proposition that a trial justice must inform the jury that they are not to consider the improper statement or outburst. The circumstances of this case, however , are distinguishable from Massey , where evidence of a prospective juror’s opinion that a defendant had committed the crime was heard by the entire prospective jury panel. Massey , 119 R.I. at 669

- 70, 382 A.2d at
803

. Here, Mr. Gomez’s emotional response did not implicate Alexis in the crime. Further, while the trial justice did not specifically tell the jury to disregard the emotional display, he explained to the jury that “ sympathy plays no part in the course of [their] deliberations ” and that they were not to become “ distracted from [their] assigned responsibility” or let the outburst

“ affect [their] judgment .” Finally, he tw ice asked the jurors whether they could put Mr. Gomez’s sadness and crying aside during their deliberations, to which the jurors collectively responded in the affirmative. In our judgment, after a review of the record, consider ing the context in which Mr. Gomez’s emotional response was elicited, and the trial justice’ s curative instruction, there is no reason to believe that the j ury in the instant case was not able to make an objective evaluation of the evidence against Alexis. The trial justice, t herefore, did not abuse his discretion in denying the motion for a mistrial

.- 10

- b Ndoye’s Reference to Mug S hot Photograph Alexis next argues that the trial justice abused his discretion in fa iling to pass the case because Ndoye’s characteriza tion of a photo of Alexis as a mug shot by Ndoye was extraordinarily prejudicial and the cautionary instruction was insufficient to cure the prejudi ce. i Discussion At trial, upon being asked if he recognized a photograph, Ndoye stated, “I t’s a mugshot of Ashner Alexis.” Defense counsel objected, the objection was sustained, and then defense counsel moved to strike the testimony

. The trial justice ruled , “It is stricken, of course.”
Defense counsel then moved at sidebar to pass the case and requested, in the alternative, a cautionary instruction. Though the trial justice agreed that the photo graph was not necessary to the state’s case, he denied t he motion to pass. The trial justice noted t hat the photograph was

“ clearly a photograph of the processing of [] defendant , ” but indicated that “ [ t ] he [s] tate i s very fortunate in this instance that [] defendant i s in custody * * * [ and ] that the jury kn ows he’ s in custody” because “all people who are detained in custody have a photograph taken.” The trial justice gave a cautio nary instruction, which stated:

“ Ladies and gentleme n, you’ve heard me sustain [ defense counsel’s ] objection to this witness’s g ratuitous , editorial comment that the photograph that he was shown was somehow or another a mugshot.

“ It is not a mugshot. Simply because the police department ha s a photograph of the defendant doesn’t mean that he committed this or any other crime. The police collect pictures of many people from many sources and for many different purposes.

“ How many of you have a driver’s license ? Every single one of you. The DMV has a picture of every single one of you. And for a dollar and fifty cents, whatever the going rate is these- 11

- days, you can get a copy. If the police wanted a picture of you, they have it at their fingertips.

“ The photograph shall not be admitted into evidence. The witness’s gratuitous comment as to how he describes it is erroneous. It’s no t what he [ said ] it is, and let’s move on. ” Alexis argues that the instruction was inadequate to cure the prejudice because the trial justice “did not direct the jurors to disregard the mugshot characterization, and he did not emphasize that this gratuit ous comment did not relate to the guilt or innocence of Mr. Alexis.” Alexis further argues that the trial justice “failed to direct the jurors to not consider this comment, or to put the comment out of their minds. Instead, [the trial justice] said that the photograph was not a mugshot.” Here, the trial justice instructed the jurors that the term “ mug shot ” was inaccurate and was not indicative of any crimi nal activity on the part of defendant. This Court has expressed that “t he introduction of mug

- shot photographs clearly has the potential of unfairly tipping the scales of justice in favor of one party or the other [ , ] ” Thomas v. Proctor , 63 A.3d 881, 8 87 (R.I. 2013), because “they generally indicate past criminal behavior and are likely to create in the minds of jurors an inference of criminal behavior.” State v. Dinagen , 639 A.2d 1353 , 1356 (R.I. 1994)

. However, a cautionary instruction ca n be curative of prejudice. See State v. Werner , 831 A.2d 183, 207 (R.I. 2003) ( determining that a cautionary instruction that expresses that the term

“ mug shot ” does not “connote anything with regard to [the] defendant’s guilt or his participation
in the crime or any other crime” was sufficient )

. We conclude that, al t hough the photograph at issue was described as a mug shot in front of the jury, the witness ’ s statement was stricken , the photograph was not placed into evidence , and the jury was told that the photograph was not a
mug shot and that the photograph was not indicative of defendant’s guilt in this or any other- 12

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crime. We are satisfied that this instruction was sufficient to cure any prejudice and that the trial justice did not abuse his discretion.
B Admissibility of Photograph Alexi s next argues that the trial justice abused his discretion in admitting a photograph depicting Moore, Alexis, Winston, and others at Moore’s house party on February 4, 2014 , because “[t]he probative value of the photograph was substantially outweighed by t he prejudicial effect * * *

. ”
1 Standard of Review Rule 403 of the Rhode Island Rules of Evidence provide s that, even if evide nce is considered relevant, it “ 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 prese ntation of cumulative evidence. ” “It is well settled that this Court will not disturb a trial justice’s ruling on an evidentia ry issue unless that ruling constitutes an abuse of the justice’s discretion that prejudices the complaining party.” State v. Tetreault , 31 A.3d 777, 782 (R.I. 2011) (quoting State v. Dellay , 68 7 A.2d 435, 439 (R.I. 1996)). This Court has indicated “that a trial justice’s discretion to exclude evidence under Rul e 403 must be used sparingly [ , ] ” and “ [i]t is only when evidence is marginally relevant and enormously prejudicial that a trial justice must exclude it. ” State v. DeJesus , 947 A.2d 873, 883 (R.I. 20 08).- 13

- 2 Discussion Winston testified that the photograph at issue was taken at Moore’s house and explained that the photograph depicted himself, Alexis, Moore, and other individuals at the party; but the photograph did not display Ndoye or Bedame. Later at trial, defense counsel objected to the admission of the photograph as a full exhibit, arguing that the photograph was unduly prejudicial because the individuals were making hand gestures or signs that appeared to be gang - related. Defense c ounsel also a rgued that the photograph was irrelevant because it was uncontested that Alexis was at Moore’s party. The state argued that the photograph was relevant as it bore directly on the credibility of the witnesses , and that it was not undul y prejudicial because the word “ gang ” had not been used throughout the trial

. The trial justice overruled the objection, finding the photograph to be “relevant for purposes of showing the concert of action, concert of activity, corroboration of testimony [ , ] ” and “ credibility * * * of witnesses who have testified

. ” The trial justice also found that the evidence was not unduly prejudicial because there was no evidentiary basis to support an inference of gang activity

. The trial justice also gave a cautionary instruction to the jury , which provid ed:

“ That picture that portrays some young men, ladies and gentlemen, you’ve h e a r d some testimony about them, a group of some sort, and I simply want to caution you that simply because a person may be a member of or affiliated wi th a group is in no way to be considered as evidence that the person is somehow necessarily disposed to commit a crime or crimes

. ” Alexis argues before this Court that the photograph was “enormously prejudicial to Mr. Alexis because all of the young men in that photograph looked like a bunch of thugs who should be locked up forever * * *.” Alexis a s serts that “[n]obody was contesting that Mr. Alexis, Mr. Winston or Mr. Moore were at that party and this was not an issue at trial. ” Alexis also argues- 14

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that the trial justice’s cautionary instruction was insufficient to cure the prejudice of the photo graph because “the photographs [ we re ] obviously gang pictures and extremely prejudicial to Mr. Alexis .” Based on the record, this photograph appears highly probative of defendant’s guilt because it was taken the evening of Holland’s death; shows Alexis with two individuals who, according to the state’s theory of the case, were involved in the murder of Holla nd; and was taken at the location where the murder weapon was said to have been procured. See DeJesus , 947 A.2d at 883 (“ I t is only when evidence is marginally relevant and enormously prejudicial that a trial justice must exclude it.”). We agree with the trial justice here that there is no evidentiary basis to support an inference of gang activity based on the photograph alone

. See Delarosa , 59 A.3d at 1188 ( stating that it is within the sound discretion of the trial justice to admit or exclude photographic evidence ). However, even if this photograph may have raised a question in the mind s of the jurors regarding Alexis’s affiliation with a gang, the trial justice’s caution ary instruction

su fficiently directed the jury not to infer criminal activity on the part of Alexis based on his affiliation with the individuals in the photograph. Therefore, the trial justice did not abuse his discretion in admitting the photograph. C Cumulative Effect Doctrine Alexis also argues that “the cumulative effect of all of the errors and abuses of discretion
in this case resulted in the denial * * * of a fundamentally fair trial.” Because w e have concluded that none of the rulings complaine d of constituted an abuse of discretion, this claim is- 15

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without merit. See State v. Ashness , 461 A.2d 659, 672 (R.I. 1983) ( determining that “ several rulings that individually are not erroneous cannot cumulativel y constitute prejudicial error ” )

. D Motion for a New Trial Lastly , Alexis argues that t he trial justice erred in denying his motion for a new t rial because the verdict was agai nst the weight of the evidence. Alexis asserts that the evidence against him was based enti rely on the credibility of the s tate’s witnesses and avers that these witnesses were not credible because they had been “ bought and paid for ” by the s tate, had time to confer with one another, “gave self

- serving testimony, lied, contradicted each other and themselves, and tried to defle ct responsibility from themselves to [Alexis] * * * .” Specifically, Alexis a rgues that Ndoye’s testimony was incredible because he “deleted all of his Facebook
conversations before he went to talk with the Providence Police * * * .” Alexis a lso maintains that Bedame’s testimony was not credible because he lied “about not being mad at the Gom ez brothers” when “his Facebook records indicated he was furious and wanted the Gomez brothers dead.” Finally, Alexis avers that Winston’s testimony was incredible be cause he “lied to the
p olice about nearly everything * * * .” Moreover, Alexis argues that he had no motive to become involved in a confrontation that was strictly between the Gomez brother s, Ndoye, and Bedame. Alexis theorizes that Ndoye and Bedame lied on the stand “because they were afraid of
Johnathan Gomez * * * .”
1 Standard of Review “On a motion for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure, ‘the trial justice places himse lf or herself in the role of a thirt eenth juror and then- 16

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exercises his or her independent judgment as to the credibility of the witnesses and the weight of the evidence.’” State v. Adams , 161 A.3d 1182 , 1200 (R.I. 2017) (quoting State v. Grantley , 149 A.3d 124, 131 (R.I. 2016)). “[T]he tria l justice must (1) consider the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and the weight of the evidence, and then (3) determine whether he or she would have reached a result different from that reached by the jury.” Id . (quoting Grantley , 149 A.3d at 131). “If, after conducting this independent review, the trial justice agrees with the jury’s verdict or if the evidence is such that reasonable minds could differ as to the outcome, the motion for a new t rial should be denied.” Adams , 161 A.3d at 1200 (quoting State v. Clay , 79 A.3d 832, 842 (R.I. 2013)). “Only when the trial justi ce does not agree with the jury’ s verdict, [must he or she] embark on a fourth analytical step.” Id. (quoting Clay , 79 A.3d at 842). “ The fourth step of the analysis requires the trial justice to ‘ determine whether the verdict is against the fair preponderance of the evidence and fails to do substantial justice. If the verdict meets this standard, then a new trial m ay be granted. ’ ” Id. (quoting State v. Guerra , 12 A.3d 759, 765

- 66 (R.I. 2011)). “When reviewing a trial justice’s decisio n on a motion for a new trial, [w]e accord great deference * * * because a trial justice, being present during all phases of the tri al, is in an especially good position to evaluate the facts and to judge the credibility of the witnesses.”
Adams , 161 A.3d at 1200 (quoting Grantley , 149 A.3d at 131). “If the trial justice has articulated adequate grounds for denying the motion, his or her decision is entitled to great weight and will not be overturned by this Court unless he or she has overlooked or misconceived material evidence or was otherwise clearly wrong.” Id. at 1200

- 01 (quoting Grantley , 149 A.3d at 131).- 17

- 2 Discussion Here, the trial justice considered Alexis’s arguments in support of his motion for a new trial , agreed that “there were discrepancies and/ or inconsi ste ncies in Winston’s testimony , ” and was “mindful that he testifie d under a cooperation agreement, ” but determine d that “the essence of [the state’s witnesse s ’ ] testimony was credible and reliable.” A review of the record indicates that much of the witnesses’ testimony was consistent. Winston, Ndoye, and Bedame all testified about Alexis’s boastful conduct in the v ehicle after the shooting. Additionally, Bedame and Ndoye testified that they went with Alexis to M oore’s house to purchase a gun. Moreover, several witnesses testified that Moore instructed Alexis to harm Winston if he did not do as he was told.
A mere disagreement with the trial justice’s credibility determination is an insufficient basis for reversal. The trial justice “ has [ had ] the opportunity to observe the witnesses as they testify and therefore is in a better position to weigh the evidence and t o pass upon the credibility of the witnesses than is this [ C ] ourt.” State v. Harrison , 66 A.3d 432, 4 46 (R.I. 2013) (quoting
State v. Rivera , 987 A.2d 887, 903 (R.I. 2010) )

. We perceive no basis in the record before us to question the adequacy of the trial justice’s credibility determinations or that would cause us to believe that he overlooked or misconceived material evidence or was otherwise clearly wrong.
III Conclusion For the reasons stated herein, we affirm the judgment of the Superior Court

. The record shall be returned to the Superior Court.STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT

– CLERK’S OFFICE OPINION COVER SHEET

Title of Case State v. Ashner Alexis

. Case Number No. 2017

- 2

- C.A. (P1/14

- 891AG) Date Opinion Filed June 13, 2018 Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Written By Chief Justice Paul A. Suttell Source of Appeal Providence County Superior Court Judicial Officer From Lower Court Associate Justice Robert D. Krause

Att orney(s) on Appeal For State: Jane M. McSoley Department of Attorney General For Defendant: Jodi M. Gladstone, Esq.

SU

- CMS

- 02A (revised June 2016)