Supreme Court
No. 2017 -158 -C.A. (P1/15-3593AG)

State :

v. : Bruce Moten. :

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. June 26, 2018- 1

- Supreme Court
N o. 2017

- 15 8

- C.A. ( P1 /15

- 3593AG )

State :

v. : B ruce Moten. :

Pre sent: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia , JJ. O P I N I O N Justice Goldberg , for the Court. This case came before the Supreme Court on May 2, 2018, on appeal b y the defendant, Bruce Moten (defendant), from a Superior Court judgment of conviction on eight counts and from the denial of the defendant’s motion for a new trial. The trial justice imposed two consecutive sentence s of life imprisonment for murder and f or discharging a firearm while committing a cri me of violence, death resulting; two consecutive

sentence s of t wenty years to serve for felony assault and discharging a firearm while c ommitting a crime of violence; three consecutive sentence s of ten years t o serve for felony assault, discharging a firearm while committing a crime of violence, and conspiracy; and a suspended sentence of ten years, with probation , for carrying a pistol without a license. The sentences imposed for the two counts of discharging a firearm while committing a crime of violence were ordered to be nonparolable. Before this Court, defendant argues that the trial justice erred by allowing Providence
Police Detective Theodore Michael to offer a lay opinion regarding the location of a pa rticular cell p hone at a certain point in time and by denying defendant’s motion for a new trial. For the reasons set forth herein, we affirm the judgment of the Superior Court.- 2

- Facts and Travel
The case on appeal arises out of a long

- standing feud betwe en two rival gangs that left one young man deceased and another man injured from gunshot wounds . The two Providence gangs, “Young Niggas in Charge” (YNIC) and its youth affiliate, the “Triple Y,” and a gang known as the Chad Brown gang, or the “Triple C,” had been embroiled in a grudge match that eventually erupted in 2014. Tensions began to rise during the summer of 2014 when Henry Lopez (Henry) and Tevin Briggs (Tevin), 1 members of YNIC, were at a local car wash and noted the presence of Triple C member s Kendrick Johnson (Kendrick), Sean , and Tito in the vicinity. Upon observing the Triple C members , Tevin began to shoot at the rival gang, striking the car
wash itself . The following day, at the same car wash, Henry was speaking to his fellow YNIC
membe r, Antonio Fortes (Tone) , who had driven up in a rented Buick with tinted windows

. Triple C members Kendrick, Delacey Andrade (Delac ey), and Terry Robinson (Terry) also were present at the car wash. After Tone departed in the Buick, Henry refused to disc lose to Tito, a
rival Tri ple C member, the iden tity of the persons inside Tone’s Buick; the Triple C memb ers took off in an unsuccessful pursuit of Tone. Some months later, on the morning of October 22, 2014, the defendant , Bruce Moten,
called his fello w YNIC member Henry and asked him for a ride to the Garrahy Judicial Complex so that he could pay some court fines. Henry picked up defendant and Tevin in his black Infiniti , and the three men drove around smoking marijuana for some time before arriving a t the
courthouse. Prior to entering the courthouse, defendant stashed his 9 mm handgun in Henry’s glove compartm ent , and Tevin hid his .45

- calibe r handgun in the pouch on the back of Henry’s seat. After defendant paid his fines, Henry, defendant, and Tev in went to the courthouse snack

1 We refer to the individuals involved in this case by either their first names or nicknames in order to avoid confusion. We do not intend any disrespect by doing so.- 3

-

bar , where they encountered Brian and D izzle, two other YNIC members . Brian and D izzle told Henry, defendant, and Tevin that they “got into a situation” when they were s urrounded by members of Triple C on the fourth floor o f the courthouse. Henry, defendant, and Tevin then left the courthouse and drove around for approximately one hour before receiving a phone call from Tone that Kendrick was “slipping” 2 at the PC Mart on the corner of Douglas Avenue and Eaton
Street in Pro vidence. The defendant suggested that Henry follow Kendrick , who was known to
drive a Camry, and Henry headed to the PC Mart. When Henry, defendant, and Tevin arrived at
the PC Mar t in Henry’s black Infiniti , they immediately saw Kendrick’s black Camry a nd
noticed that Kendrick, Terry, and Delacey were exiting the store. Henry began to tail the black Camry as it traveled down Douglas Avenue and onto Fillmore Street, at which point Kendrick’s Camry pull ed into the parking lot of the Chad Brown housing com plex. As soon as Henry parked on the side of the road , defendant and Tevin pulled up their hoods , had their guns in the
waistbands of their sweatpants , and exited the vehicle, leaving Henry at the wheel. After hearing multiple gunshots, Henry drove to th e intersection of Fillmore and Oregon Stre ets , and defendant
and Tevin ran to the Infiniti with their guns in their hands. Henry sped off to the home of one of his girlfriends, Yahaira Montanez (Yadi). 3 A bystander, Charlene Rainey, heard the gunshots a s she drove away from a nearby Dunkin’ Donuts ; she reported the shooting to the Providence police at approximately 11:30 a.m. Rainey also saw two young men run by her car , both wearing black hoodies. The police and emergency medical personnel arrived at the crime scene to find Terry gunned down and

2 According to Henry’s testimo ny, “s lipping” is a term used to indicate that someone has let his or her guard down.

3 Henry was also dating Marilyn Ramos at the same time and had given her a ride to the courthouse earlier on the morning of October 22, 2014, where he saw Kendrick’s Cam ry at the courthouse before switching cars and picking up defendant and Tevin.- 4

-

deceased 4 and Delacey injured from a gunshot wound to the buttocks. 5 Provid ence BCI
detectives recovered 9 mm and .45

- caliber cartrid ge casings and a .45

- caliber in tact bullet. Approximately sixty to ninety m inutes after the shooting, the police broadcast a description of the car involved in the shooting

— a black Infiniti with tinted windows. Meanwhile, at Yadi’s house, located at 49 Tappan Street in Providence, Henry and Tevin
asked Yadi to drive the black In finiti to Courtney Rivers’ s (Courtney) h ome located at 67 Alaska
Street in Providence. 6 As instructed, Yadi and her friend Jennifer Martinez (Jennifer) drove Henry’s Infiniti to Courtney’s house, an d Courtney and Henry’s brother , Juan , drove Yadi and
Jenn ifer back to Tappan Street. When Yadi returned to her home, she found Henry, defendant, and Tevin sitting at her kitchen table with their guns on the table, discussing what had just transpired. The defendant went into Yadi’s bathroom to wash his hands an d asked Yadi for a garbage bag. Ya di testified that she saw a gun near the sink and that defendant told her, “It was
either us or them [ , ] ” and he displayed s cars on his stomach. Before leaving Yadi’s house, Henry
hid the guns belonging to defendant and T evin in Yadi’s bedroom.
Later that evening, at the apartment building in which both Henry and Tone lived, on Cherry Street in Pawtucket, Henry d isclosed to Yadi and Jennifer the events surrounding the shooting earlier in the day. Henry then joined Tone, Tevin, defendant, Courtney, and Juan inside Tone’s apartment. While inside Tone’s apartment, Courtney received a phone call from his

4 The autopsy revealed that Terry had died of a gunshot wound to the head, causing an “irreversible devastating head injury,” which in turn led to immediate unconsciousness and death.

5 Delacey did not require surgery for his injury; however, the bullet causing the injury damaged the nerve that controlled his lower leg and foot. He was hospitalized for pain management and underwent physical therapy.

6 Courtney Rivers is a fri end of Henry Lopez and does not have any gang affiliation.- 5

-

landlord that the police had arrived at Courtney’s house and were towing the black Infiniti. Henry immediately ask ed Juan to call their cousin Danny Gomez (Danny) , the putative owner of the Infiniti, and direct him to retrieve the vehicle from the Providence police station. 7 Although he initially maintained that he was the owner of the black Infiniti, Danny eventually revea led to
the Providenc e police that the car actually belonged to Henry. Approximately three weeks after the October 22, 2014 shooting, Henry fled to Puerto Rico. He returned to Providence for a short perio d of time before Christmas 2014; but , when he
was i nformed that Yadi’s friend Jennifer had appeared before the grand jury, he again departed. Henry was eventually apprehended in the Dominican Republic and extradi ted to Providence. On April 10, 2015, defendant was indicted in Providence County Superior Cou rt and charged with nine felony counts: Count 1

— murder, in violation of G.L. 1956 §§ 11

- 23

- 1 and
11

- 23

- 2; Count 2

— discharging a firearm while committing a crime of violence, death resulting, in violation of § 11

- 47

- 3.2 (b)(3) ; Count 3

— assault with a dange rous weapon, in violation of § 11

- 5

- 2 and G.L. 1956 § 12

- 19

- 39 ; Count 4

— discharging a firearm while committing a crime of violence, injury resulting, in violation of § 11

- 47

- 3.2 (b)(2) ; Count 5

— assault with a dangerous weapon , in violation of § § 11

- 5

- 2 and 12

- 19

- 39 ; Count 6

— discharging a firearm while committing a crime of violence, in violation of § 11

- 47

- 3.2 (b)(1) ; Count 7

— conspiracy, in violation of § 11

- 1

- 6; Count 8

— carrying a pistol without a license, in violation of § 11

- 47

- 8 (a) ; and Count 9

— carr ying a pistol without a license, in violation of § 11

- 47

- 8 (a)

. On the same day, Tevin, Henry, and Tone also were indicted on the same nine counts. While Henry was being
held at the Adult Correctional Institutions , defendant urged him to take the case to trial. Instead,

7 Although Henry owned the black Infiniti and paid the car insurance for the vehicle, the vehicle was registered in his cousin Danny Gomez’s name in order to prevent the car from being seized by la w enforcement if the police caught Henry for selling drugs and to avoid paying the taxes that he owed on the vehicle.- 6

-

Henry entered into a cooperation agreement with the s tate , in which he agreed to ple a d guilty to
second

- degree murder, discharging a firearm while committing a crime of violence , and other related charges, in exchan ge for a fifty

- year sent encing c ap. Tevin also entered a guilty plea on several charges in exchange for the dismissal of the remaining counts. On November 5, 2015, superseding indictments were filed against defendant and Tone, charging them with the same nine original counts. The defendant and Tone were tried together before a jury in Superior Court beginning on October 4, 2016, and the trial spann ed ten trial days. Yadi testified at trial with respect to the events that occurred on October 22, 2014, the day of the shooting. She testified that she did not realize what had happened that morning when Henry, Tevin, and defendant were at her home until she watched the news that afternoon and saw Henry’s black Infiniti on television described as being connected to a homicide in th e Chad Brown housing complex. She testified that she told Henry she did not want the guns in her home
and that he told her “[n] ot to worry about it.” She also testified that , later in the evening, while she and Henry were at Henry’s uncle’s house, Henry told her that Tevin and defendant “both had guns. They went out the car with guns[,]” and that “they shot somebody.” Despite feeling “used” by Henry, Yadi continued to see him over the next year. In fact, she reunited with Henry during his second fl ight attempt in Puerto Rico. Yadi also testified that around the same time, during the w inter of 2015, she and defendant began t o exchange messages on Facebook; and , in January 2015, defendant took Yadi out to dinner. Yadi testified that , on one occasion, de fendant bought her an outfit from Victoria’s Secret and that , when he gave her the outfit, he said , “Snitches get stitches.” Henry also testified at trial with respect to the fatal shooting. He testified that defendant
and Tevin both exited his black I nfiniti with their guns in their waistbands. He also stated that- 7

-

defendant and Tevin both ran back to the Infiniti with their guns in their hands after gunshots had
been fired. Once defendant and Tevin were back in the Infiniti, according to Henry, defen dant stated that Tevin was “crazy” “[b]ecause he ran up to the car. He ran up to the car shooting.” He further testified that Tevin recounted the details of the shooting once the three men were inside Yadi’s house: “Tevin was telling me that he chased do wn

— he chased down

Terry Robinson and

—

but first he said he was shooting at the car, and his gun jammed, and said that

— that Terry Robinson peeked his head out between these cars while his gun jammed. And then I guess when Terry Robinson seen him with the gu n jammed, he took off running and then Tevin unjammed the gun and started chasing him, shooting at him.” Henry also admitted that he fled to Puerto Rico because he “ thought [the police were] going to come looking for [him].” Henry’s testimony was corrob orated by a wealth of technical evidence at trial , introduced by the s tate . Surveillance footage depicted Henry, Tevin, and defendant parking and entering the Garrahy Complex. Another surveillance video showed Kendrick’s black Camry at PC Mart. A
video compilation from the Chad Brown area depicted the black Infiniti driving around the vicinity of the crime scene, two men walking towards Fillmore Street and then running back towards the Infiniti, and the Infiniti speeding down Fillmore Street. Henry’s credibility was also e nhanced by corroborating cell

- site data and cell phone
records. The s tate introduced Agent Jennifer Banks, of the Federal Bureau of Investigation (FBI) Cellular Analysis Survey Team (CAST) , as an ex pert witness in historical cell

- sit e analysis. Agent Banks testified that she was provided with three sets of cell phone records from three different phone companies, and that she then obtained the cell tower listing from those providers
for the hours between 9 a. m. and noon on October 22, 2014; and , based on this data, she created- 8

-

maps that showed the location of those cell sites used during that particular time frame. The various maps that Agent Banks composed as part of her analysi s were introduced into evidence and were presented in co njunction with her testimony at trial. Agent Banks testified that , based on her analysis and collected data, the cell phones belonging to Henry, defendant, and Tevin
were all located in the downtown Providence area b etween 9 and 10 a.m. , and then , at
appr oximately 10:58 a.m., all three phones indicate d movement slightly north to an area east of Providence College. She also testif ied that defendant’s phone move d towards Douglas Avenue
at 11:04 a.m. : “This phone, as you recall, in the 10:00 to 11:00 hour ha d moved

north up east of Providence College, and then at 11:00 a.m. you see another registration here up east of Providence College, then moves at 11:04 to a tower covering here, near the, you know, near Route 7, which I believe is Douglas Street here and Admiral Street, that general area, and then moves southeast to this 11:08 registration here, which covers this western side of the tower. And then by 11:31, that phone is using the northeast sector of this tower, and then moves back to the 30

- degree secto r here by 11:38.” In addition to collecting data, Agent Banks also conducted a field survey to validate her conclusions, in which she drove through all of the streets in the Providence College to downtown
Providence area in order “to collect what radio fr equencies were in that area and which were the most dominant towers of coverage.” Based on her research and analysis, Agent Banks concluded that defendant’s phone was in or near the area of the shooting at the time in question:

“[ PROSECUT OR:] So based on your analysis, would it be consistent to say that this phone was in or near the area of 100 Fillmore Street at this time? “[BANKS:] Yes. The Fillmore Street address is right on the boundary of where there’s dominant and possible coverage.
“* * *- 9

- “[ PRO SECUT OR: ] And based on these two maps you were able to create through this drive

- test analysis, what was the general location of Bruce Moten’s phone during the time period of 11:38 and 12:00 p.m.? “[BANKS:] The [defendant’s] phone is using this tower, wh ich provides coverage northeast of Providence College to extend to these dominant areas.
“* * * “[ PROSECUT OR:] And would the phone be consistent with being in or near the area of 49 Tappan Street on the map? “[BANKS :] Yeah. That’s one area that this to wer provides dominant coverage to. “[ PROSECUT OR:] And, again, that would be the AT&T phone, where the phone I referred to as Bruce Moten’s phone? “[BANKS:] Yes.” The defendant did not object to any portion of Agent Banks’s testimony. 8
Detective Theodo re Michael , a forensic ce ll phone examiner with the Providence Police Department, also testifie d as an expert in forensic cell phone analysis. The defendant objected to Det. Michael offering an expert opinion in the field of historical ce ll

- site analysis, to which the

s tate responded that the testimony on historica l cell

- site analysis w as being offered by Agent
Banks and that Det. Michael would only testify about the data he physically extracted from the various cell phones. The trial justice overruled de fendant’s objection and offered a voir dire : “I’m satisfied that the witness has sufficient qualifications to testify in the mode that the State is going to pursue. The objection is overruled. Do you wish to have any voir dir e?” The

8 We also note that no Fourth Amendment objection was raised by defendant regarding the extraction of historical cell

- site data, such that the recent United States Supreme Court opinion in Carpenter v. United States , No. 16

- 402, 2018 WL 3073916 (June 22, 2018), has no application to the case at bar.- 10

-

defendant declined t o question the witness as to his qualifications and offered no objection to any portion of Det. Michael’s trial testimony

. Det ective Michael first testified with respect to the call detail records (CDR) of the actors alleged to be involved in the shootin g , which he obtained from the ir various cell phone carriers

. He testified generally as to how the cell tower’s identifying information can be used along with a list of the provider’s local cell tower locations to determine where the cell tower associated with a given call is located. Det ective Michael testified that he had extra cted the contents of defendant’s phone us ing specialized software, which he then compiled into a report. At the outset, Det. Michael testified that there had been a “heavy deletio n” of over 3,000 items from defendant’s phone. Det ective Michael retrieved a photograph of Kendrick, Delacey , and Terry from defendant’s phone that had been downloaded from Facebook and later deleted. He also
testified about certain text messages he retr ieved that were between the cell phones belonging to
defendant and Tone

. The defense proffered the theory that it was actually Courtney , and not defendant, who participated in the shooting. Det ective Michael testified with respect to the location of
Court ney ’s cell phone at the time of the murder by using historical cell

- site information contained in Courtney’s call log. Based on his analysis, Det. Michael determined that Courtney was not near 100 Fillmore Street during the time of the shooting. The foll owing colloquy
ensued: “[ PROSECUT OR:] And going back to Courtney Rivers. Did you

have the opportunity to examine those records for the date of the homicide, October 22, 2014? “[ DET. MICHAEL :] I did. “[ PROSECUT OR:] And were you able to examine those rec ords for the time of the homicide at approximately 11:32 a.m.?- 11

- “[ DET. MICHAEL :] I did. “[ PROSECUT OR: ] And did the call detail records that you had for that Courtney Rivers’s phone number include the cell site information that’s been discussed in testim ony today? “[ DET. MICHAEL :] Yes. “[ PROSECUT OR:] So based on [those] records and the information contained therein, were you able to make any determination about Courtney River[s]’s location at 11:32 a.m. on the day of the homicide? “[ DET. MICHAEL :] Y es. When I had looked at Courtney River[s]’s 11:32 a.m. phone call for the tower that I was hitting, I observed that it was hitting the School Street in Pawtucket tower.

“ [ PROSECUT OR:] And then did you also look at some communication on Courtney River[s ]’s cell phone at 11:37 a.m.? “[ DET. MICHAEL :] I did. “[ PROSECUT OR:] Do you remember what you were able to determine from the communication on his phone at that time? “[ DET. MICHAEL:] Yes. That call actually moved from 11:32 to 11:37, and that was o n the Branch and Woodward Road, over near the McDonald’s, on the Branch Avenue location. “[ PROSECUT OR:] And are you familiar with Courtney River[s]’s home address? “[ DET. MICHAEL:] I don’t know the number, but I know the street. “[ PROSECUT OR:] What s treet did he live on at this time? “[ DET. MICHAEL :] Alaska

— Alaska Street or Alaska Avenue. “[ PROSECUT OR:] And is that near at all the Woodward Avenue location that you just testified to? “[ DET. MICHAEL :] It is. “[ PROSECUT OR:] How close would that be?- 12

- “[ DET. MICHAEL :] Within a quarter of a mile.”
On cross

- examination, defendant attempted to rebut Det. Michael’ s testimony that Courtney was not near the crime scene at the time of the shooting:

“[ DEFENSE COUNSEL:] [Courtney] was a pretty obvious ea rly suspect in the case, right? “[ DET. MICHAEL :] Along with others, yes. “[ DEFENSE COUNSEL:] Because the car was found at his home, right? “[ DET. MICHAEL :] Yes. “[ DEFENSE COUNSEL:] And one of the reasons he was excluded as a suspect is because you found an 11:32 a.m. telephone call that put him out of the area, right? “[ DET. MICHAEL :] That along with other things, yes. “[ DEFENSE COUNSEL:] And you were assuming that he was the one who placed that telephone call, right? “[ DET. MICHAEL :] I was. “[ DEFENSE COUNSEL:] You realized that someone else could have had his phone, though, right? “[ DET. MICHAEL :] Absolutely.” The trial proceeded.
At the close of the s tate’s case, t he trial justice granted defendant’s motion for a judgment of acquittal on Count 9, carrying a pistol without a license . On October 18 , 2016, the jury found defendant guilty of the remaining counts pending against him. The defendant moved for a new trial on the basis that Henry was the only witness who was able to place defe ndant a t the crime
scene and that the s tate had failed to produce any other competent evidence to show that defendant was one of the shooters. The trial justice denied defendant’s motion for a new trial- 13

-

and sentenced him to consecutive life sentences on C ounts 1 and 2; consecutive terms of twenty
y ears to serve on Counts 3 and 4; consecutive terms of ten years to serve on Counts 5, 6, and 7;
and a ten year suspended sentence, with probation, on Count 8. T he sentences on Counts 4 and
6

— the two firearms off

enses

— were ordered to be ineligible for parole. The defendant timely appealed.
Standard of Review “A trial justice’s ruling on the admissibility of an expert witness’s proffered testimony ‘will be sustained provided the discretion has been soundly and ju dicially exercised, that is, if it has been exercised in the light of reason applied to all the facts and with a view to the rights o f all the parties to the action * * * and not arbitrarily or willfully, but with just regard to what is right and equitable under the circumstances and the law.” Owens v. Silvia , 838 A.2d 881, 890 (R.I. 2003) (quoting Morra v. Harrop , 791 A.2d 472, 476

- 77 (R.I. 2002 ) ). Moreover, “[t]he purpose of expert testimony is to aid in the search for the truth. It need not be conclus ive and has no special status in the evidentiary framework of a trial.” Id. at 890 (quoting Morra , 791 A.2d at 477). Further, “[w]hen ruling on a motion for a new trial, the trial justice acts as a thirteenth juror, exercising ‘independent judgment on th e credibility of witnesses and on the weight of the evidence.’” State v. Heredia , 10 A.3d 443, 446 (R.I. 2010) (quoting State v. Imbruglia , 913 A.2d 1022, 1028 (R.I. 2007)). “If, after conducting such a review, the trial justice reaches the same
conclusi on as the jury, the verdict should be affirmed and the motion for a new trial denied.”
State v. Porter , 179 A.3d 1218, 1231 (R.I. 2018) (quoting State v. Phannavong , 21 A.3d 321, 324 (R.I. 2011)). The trial justice need set forth only a few sentences sum marizing his reasoning. State v. Lopez , 129 A.3d 77 (R.I. 2016). “As long as the trial justice has complied- 14

-

with this procedure and articulated adequate reasons for denying the motion, his or her decision will be given great weight and left undisturbed u nless the trial justice overlooked or
misconceived material evidence or otherwise was clearly wrong. ” Porter , 179 A.3d at 1231 (quoting Phannavong , 21 A.3d at 325). Analysis On appeal, defendant argues that Det. Michael’s testimony that Courtney’s pho ne was not at the Fillmore Street parking lot in Providence at the time of the shooting severely undercut defendant’s contention that it was Courtney , and not defendant , who had been one of the
shooters. The defendant further contends that Det. Michael wa s neither qualified as an expert in
historical cell

- site analysis nor did he possess the knowledge and training to render a technically
sound opinion

. However, after a thorough examination of the record, w e deem defendant’s arguments with respect to Det. Michael’s testimony to be waived. This Court has long adhered to the raise

- or - waive rule. See State v. Pona , 66 A.3d 454, 468 (R.I. 2013). It is this Court’s policy that , “if an issue was not preserved by specific objection at trial, then it may not be considered on appeal.” Id. (second emphasis added) (quoting State v.
McManus , 9 90 A.2d 1229, 1237 (R.I. 2010) ). This Court “require[s] a specific objection so that the allegation of error can be brought to the attention of the trial justice, who will the n have an opportunity to rule on it.” Id. The defendant failed to raise any objection , whatsoever , to any portion of Det. Michael’s testimony. On appeal, defendant takes issue with the portion of Det. Michael’s testimony that places Courtney in Pawtuc ket at the date and time of the shooting:

“[ PROSECUT OR:] So based on [those] records and the information contained therein, were you able to make any determi nation about Courtney River[s]’s location at 11:32 a.m. on the day of the homicide?- 15

- “[ DET. MICHAEL : ] Yes. When I h ad looked at Courtney River[s]’s 11:32 a.m. phone call for the tower that I was hitting, I observed that it was hitting the School Street in Pawtucket tower.” However, defendant may not object to Det. Michael’s testimony at the appellate l evel when he failed to do so in Superior Court

. See State v. Bido , 941 A.2d 822, 828

- 29 (R.I. 2008) (“It is well settled that a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.”). Clearly , t here is nothing in the record before us to suggest that defendant wanted to exclude Det. Michael’s testimony at trial. The s tate suggests that defendant did not object at trial
because the context of Det . Michael’s testimony was clear and it was understoo d that he was simply testifying with respect to the locations of the various cell phones, not the locations of the
various actors. Further, defense counsel undercut De t. Michael’s testimony on cross

examination when she implied that it was possible that C ourtney could be at one location and his cell phone could be at a different location:

“[ DEFENSE COUNSEL:] And you were assuming that he was the one who placed that telephone call, right? “[ DET. MICHAEL :] I was. “[ DEFENSE COUNSEL:] You realized that so meone else could have had his phone, though, right? “[ DET. MICHAEL :] Absolutely.” Although t here is nothing to suggest that this cross

- examination was not part of defendant’s trial strategy, w hether defendant intentionally failed to object to Det. Micha el’s testimony is of no

moment to this appeal , because the absence of an objection renders the issue not properly before

us . The defendant is not entitled to a “do over” simply because he is not satisfied with how his- 16

-

trial strategy panned out. According ly, we deem this issue waived and need not reach the merits of defendant’s claim. The second issue defendant raises on appeal is his assertion that the trial justice erred in denying his motion for a new trial based on the weight of the evidence. The def endant contends that he was entitled to a new trial because the only evidence incriminating him as a principal shooter came from Henry, who, he alleges, had a motive to lie based upon his plea agreement . It
is well settled that , when deciding a motion for a new trial based upon th e weight of the
evidence:

“ T he trial justice must consider, in the exercise of his [or her]

independent judgment, all the material evidence in the case, in the light of his [or her] charge to the jury and pass on its weight and th e credibility of the witnesses, determine what evidence is believable, and, decide whether the verdict rendered by the jury responds to the evidence presented and does justice between the parties.” McGarry v. Pielech , 47 A.3d 271, 280 (R.I. 2012) (quoting Morgera v. Hanover Insurance Co. , 655 A.2d 698 , 698 (R.I. 1995 ) (mem.) ). Here, the trial justice summarized in great detail what he described as the credible evidence presented in this case. He found Henry’s testimony credible:

“[S]uffice it to say, tha t from my vantage point, as a front

row observer, Henry Lopez’s testimony was persuasive, reliable, an d weighty to convict Bruce Moten of the charges in this indictment.

“ I am, of course, fully cognizant that Lopez underwent severe cross - examination duri ng the course of the trial, and his cooperation agreement with the State was fully explored along with his criminal record. Nonetheless, his testimony was, in my view, very credible, ensnaring Bruce Moten as a co

- conspirator as well as a principal in thes e shootings.” The trial justice also noted the presence of corroborating evidence in the record:

“I need not catalogue or neatly list here all of the other evidence, including the wealth of cell phone history, as well as the video- 17

- recordings of the Infini ti and black Camry, which were offered in evidence to corroborate Henry Lopez’s testimony.”
In the case at bar , the trial justice carefully performed his duty as a thirteenth juror , consider ing all of the material evidence in the record and independently weigh ing that evidence. The trial justice passed upon the credibility of the testimony by Henry and Yadi and found both
witnesses to be quite credible, a finding to which this Court accords great deference. See State v.
Giard , 155 A.3d 1193, 1200 (R.I. 2017) (“It is noteworthy that we ‘accord [ ] deference to the credibility determinations of the hearing justice,’ * * * because ‘[w]e do not have the same vantage point as [him or her], and we are unable to assess the witness’ demeanor, tone of voice,
and body language. ’ ”) (quoting State v. Jensen , 40 A.3d 771, 778 (R.I. 2012); State v. Woods , 936 A.2d 195, 198 (R.I. 2007)). He also determined that the verdict rendered by the jury responded to the evidence presented and stated:

“These jurors took their res ponsibilities most seriously, and their split verdict, acquitting Antonio Fortes [Tone] while convicting Bruce Moten, demonstrates their careful parsing of the evidence and th eir assiduous adherence to the [c] ourt’s instructions to weigh the evidence and g ive each defendant separate attention.
“* * * “The verdict convicting Bruce Moten was absolutely a correct one, and the motion for new trial is denied.” The defendant does not advance any other reason or argument why his motion for a new trial
should h ave been granted. Discerning no error on the part of the trial justice in this case, we conclude that the trial justice properly denied the defendant’s motion for a new trial.
Conclusion For the reasons set forth herein, we affirm the judgment of the Supe rior Court. The papers may be returned to that tribunal.STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT

– CLERK’S OFFICE
OPINION COVER SHEET

Title of Case State v. Bruce Moten.
Case Number No. 2017

- 158

- C.A. (P1/15

- 3593AG) Date Opinion Filed June 26, 2018
Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Written By Associate Justice Maureen McKenna Goldberg Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Robert D. Krause

Attorney(s) on Appeal For State:
Lauren S. Zurier Department of Attorney General For Defendant: Angela M. Yingling Office of the Public Defender

SU

- CMS

- 02A (revised June 2016)