Supreme Court
No. 201 8

- 1 44

- C.A. ( P1/ 17

- 1236AG )

State :

v. : Joseph Segrain. :

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 (401) 222

- 3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made bef ore the opinion is published. June 24, 2021- 1

- Supreme Court
No. 2018

- 144

- C.A. ( P1/ 17

- 1236AG )

State :

v. : Joseph Segrain

. :

Present: Suttell, C.J., Goldberg, Robinson , L ynch Prata , and L ong , JJ. O P I N I O N Justice Robinso n , for the Court. Th is case is replet e with complexities that necessitate a relatively lengthy factual narrative on our part. In the end , however, our focus will of course be on the legal issues imp licated by the appeal of
the defendant, Joseph Segrain

. The defendant appeals from a March 29, 2018 judgment of conviction and commitment entered in the Providence County Superior Court , reflect ing the fact that he was found guilty by a jury o n five count s related to conduct stemming from a drive

- by shooting

. 1 On appeal, the defen dant

1 The defendant was al so convicted of one other count ( viz. , Count Seven) stemming from the same conduct ; but , pursuant to a stipulation, that count was not decided by t he jury, but by the trial justice , who found def endant guilty

. See footnote 3, in

fra

.- 2

-

contends that the trial justice 2 erred by : (1) granting the first mistrial, thereby allegedly violat ing his constitutional right against being put in double jeopardy; (2) denying his motion to suppress a particular eyewitness ide ntification; (3) denyi ng his motion to recuse ; (4) denying his right to represent himself at trial and at the sentencing hearing; and (5) allowing certain video s and testimony to be
admitted int o evidence

. For the reasons set forth in this opinion, we affi rm the judgment of the Superior Court.
I
Facts and Travel The instant case ar i se s out of what can best be characterized as a feud involving members of two rival gangs based in Pawtucket

— one call ed “ Bucket
East ” and the other “ Bucket West .” That feud ultim ately led to a drive

- b y shooting on January 9, 2017 , which resulted in a number of criminal charges being lodged against defendant

. The relevant facts as to what transpired on that date will b e set forth in detail when we relate the witness testimony that is part of the volumi nous record in this case.

2 Since the same just ice of the Superior Court was involved in all phases of th is case, we shall refer to him throughout this opinion as “the trial justice” without var iously referring to him as “the hearing justice” or “the sentencing justice.”- 3

-

On May 10, 2017, defendant was indicted by a grand jury on the following
counts : assault with a dangerous weapon (Count One); discharge of a fi rearm during a crime of violence (Count Two); conspiracy to com mit a felony (Count
Th ree); unlawful possession of a firearm (Count Four); unlawful possession of a firearm (Count Five); discharge of a firearm from a motor vehicle (Count Six); and unlawful p ossession of a firearm by a n individual having previously been convicted of a crime o f viol ence (Count Seven). 3
A Pretrial Motions
Before the eventual criminal trial of defendant took place , the trial justice heard pretrial motions with respect to a number of issues, the rulings on all but one of which motions have n ot been challenged on appeal. Accordingly, we need only focus on the pretrial hearing relative to defendant’s motion to suppress a particular eyewitness identification

. Geovanni Perez, a parking attendant, testified at the pretrial hearing (and
later at t rial) . Mr. Perez test ified that, on January 9, 2017, he was employed as a valet at the Hope Club, which is located on the corner of Benefit Street and Benevolent Street in Providence, and where an event was scheduled for noon . He

3 C ount Five was eventually di smissed by the trial justice as being identical to Count Four. Count Seven was not presented to the jury; instead, pursuant to a stipulation, it w as decided by the trial justice

. See footnote 1 , supra .- 4

-

stated that, when he arr ived in the vicinity o f the Hope Club , he parked his car on Benevolent Street toward the top of the hill . He said that, wh il e he was walking down Benevolent Street toward s the Hope Club, he was interrupted by a man sitting in the driver’s seat of a “black ” “ BMW X5 SUV,” who lo wered his window and asked him if one was permitted to park on t hat street . Mr. Perez added that, during this interaction, he was standing on the driver’s side of the car, roughly one foot away from the driver

. Mr. Perez also testif

ied that, at some poin t there after, people began to arrive for the scheduled event a t the Hope Club and that, because there were so many cars trying to park, traffic was overflow ing onto Benefit Street (which runs perpendicular to Benevolent Street)

. 4 He stated that he then on ce again saw the

man with whom he had spoken earlier and that the man was still driving the BMW and was attempting to get around the traffic

. Mr. Perez testified that, when the car tried to “ come up ” Benevolent Street, he approached the driver and helped him

“ back out ” on to , and proceed down , Benefit Street

. He added that, while doing so, he made eye contact with the man .

4 In order to assist the read er unfamiliar with the city streets of Providence in visualizing the events that are summarized in this opinion, we would indicate that Benevolent Street is a relatively small street, which runs in a roughly East

- West direction and is on a hill. Bene fit S treet is a lengthy str eet in the historic section of Providence; it runs in a roughly North

- South direction. The Providence County Courthouse is located on Benefit Stree t, and it is not far from Benevolent Street.- 5

-

Mr. Perez proceeded to testify at the hearing that, on January 19, 2017 (ten days after his encounter s with the driver of the BMW near the Hope Club ) , he spoke with detectives from the Providence Police Department about his above

described interactions with the driver of the BMW. He stated that the detectives first showed him a single photograph of a car (in which there was a driver) , w hich

car he identified as the c ar that he had twice seen near the Hope Club on January 9

. Mr. Perez added that, following his identification of the vehicle, the detectives had him participate in a photographic lineup by displaying a series of photographs sequentially. He testified that , when he saw the second photograph in the sequential display, he told the detectives that it was a photograp h of the man with whom he had spoken on January 9. After he had testified at the suppression hearing with respect to his January 19 out

- of

- court i dentification of defendant in the presence of the detectives , Mr. Perez proceeded next to make an in

- court identification of defendant as being the individual whom he had spoken to and seen driving the BMW on January 9

. Th e trial justice ultimately deni ed defendant’s motion to suppress Mr. Perez’s identification , and Mr. Perez was thereafter permitted to testify at trial

.- 6

- B The First Aborted Trial The defendant’s first trial commenced on January 2, 201 8 . The first witness to testify was Attorney Lauren Balkc om . She testified on direct examination about what occurred in and around Courtroom 10 of the Superior Court on January 9,
2017

. While being cross - examined by defense counsel and while attempting to seek clarification of a question posed to her by coun sel , she made reference to “the violation hearing * * * .” 5 Immediately following that mention of “ the violation hearing, ” defense counsel requested a sidebar conference with the trial justice. At
th at conference, defense counsel moved for a mistrial on the gr ound that Attorney Balkcom’s reference to a prior judicial proceeding involving defendant (“the violation hearing”) prejudiced defendant in the eyes of the jury. After hearing arguments from cou nsel, the trial justic e denied the motion for a mistrial, fi nding that the reference to the violation hearing was not a “ purposeful remark on [Attorney Balkcom’s] part to try and derail this train

. ” Nonetheless , the trial justice gave a cautionary instruc tion to the jury , whic h included the following statement (c haracterized by the trial justice as “ a civil untruth”): “T here was no

5 Solely for the purpose of contextu alizi ng Attorney Balkcom’s reference to “the violation hearing,” w e note that, several months before defendant’s actual criminal trial, he was the subject of a probation viol ation hearing that addressed whether his alleged conduct on January 9, 2017 had vi olate d the terms and condit ions of a probationary sentence he had previously received

. See State v. Segrain , 243 A.3d 1055 , 10 56

- 57 (R.I. 2021).- 7

-

violation type of proceeding prior to this trial. The witness misspoke herself. ” The trial justice added : “ That is to say, t he proceedings before this Court

. ”
The trial then resumed . However, partway thr ough the testimony of the second witness for the state , the trial justice revisited the issue of the motion for a mistrial . He stated that, although he had told the jury “ a ci vil untruth,” he
consi dered the jury to be a “smart group , ” and he said that he was not sure

“ [ w ] hether they buy [the civil untruth] or not * * *.” Ultimately, the trial justice opted to grant the mistrial

. The defendant did not immediately move for dism issal of the indictmen t on double jeopardy grounds. See, e.g. , State v. Cas as , 792 A.2d 737, 738 (R.I. 2002). C The Second Aborted Trial The defendant’s second trial began on January 10, 2018 . Before jury impanelment commenced, defend ant asked to addres s the trial justice

. In the midst of the trial justice’s admonition to defendant that he would not permit “hybrid counsel,” 6 defendant interrupted to complain about what he claimed to be “the violation of [his] rights” under the Fourte enth Amendment. The defendant specificall y stated that his rights were violated because the trial justice was

6 This Court has stated that a “crim inal defendant has no right to hybrid r epr esentation, whereby some tasks are perf ormed by counsel and o thers by the defendant on a pro se basis.” State v. Connery , 139 A.3d 401, 403 n.4 (R.I. 2016) (quoting State v. Oliveira , 127 A.3d 65, 80 (R.I. 2015)).- 8

-

“supposed to call th[e] mistrial immediately, and * * * didn’t” and because the trial justice had “lied” when he “ gave the jurors the wrong instru ctions .” The trial justice did not respo nd to defendant’s comments and instead directed the sheriffs to bring the jury into the courtroom . Before the jury entered, however, defendant refused to let the sheriffs remove his leg restraints , and he complaine d about being “spra y ed and tase red ” by th e sheriffs. When defendant finally permitted the sheriffs to remove his leg restraints , jury voir dire began

. On January 16, 2018, the third day of defendant’s second trial, while the jury was still being impanele d, defendant again asked to address the c o urt directly because he “ ha [d] a couple of issues that [he] would like to bring up * * *.” Specifically, and for the first time, defendant raised the issue of the double jeopardy provision in the Fifth Amendment to the United State s Constitution, 7
statin g that it “ affords a criminal defendant a valued right to have his trial completed by a particular tribunal, which the first one was tainted, not because of

me. ” He further added that he wanted to “stop[] these pro ceedings” because h e “never consented to a mistrial .”

7 “The Fifth Amendment to the United Sta tes Constitution (made applicable to th e states through the F ourteenth Amendment) * * * protect[s] a defendant from being prosecuted more than once for the same offense.” State v. O’Connor , 936 A.2d 216, 220 n.4 ( R.I. 2007). The Fifth Amendment provid es in pertinent part: “[N]or shall an y per son be subject for the same offense to be twice put in jeopardy of life or limb [.]” Id. ( internal quotation marks omitted)

.- 9

-

In a response spanning thirteen transcript pages, the trial justice outlined the
ways whereby he had attempted to protect defendant’s rights

— which included his having given the jury a cautionary instru ction and having gra nted the mistrial moti o n with respect to the first trial . After the trial justice completed his remarks and attempted to let the impanelment process continue, defendant stated that, for the remainder of the trial, he planned to procee d pro se and that def ense counsel would the r eafter act as standby counsel. The trial justice warned defendant that “[r] epresenting oneself is very chancy and not a very smart move ,” to which defendant responded:

“ It ’ s definitely not hard. I did all this myself. I didn ’ t ask [defense counsel] to h elp me. Every motion that was put in, I told her to put it in. Franks hearing, I told her to do it. That was me. That wasn ’ t [defense counsel]

. So it ’ s not hard. I can comprehend everything. I got a Black ’ s Law Dictionary

. I have the same books yo u have. It ’ s not hard. I can pull over the law, too

.

“ * * *

“ * * * I just need a couple of days to go over my paperwork, and I’ll represent myself. It’s not hard.” With respect to defendant’s request for a continuan ce of “a coup le of days,” t he trial justice stated that, because defendant had “ spr [u] ng this on [him] at the last minute ” and because there was “ a jury upstairs that [they had] begun to impanel ” and “ other new jurors that [they were] going to use to finis h the impanel ment ,” he would not gr a nt a continuance

. The defendant continued to directly address the- 10

-

court by making a motion to dismiss the case and a “ motion to suppress ” the entirety of Attorney Balkcom’s testimony from the first trial ; he also asked for the
oppor tunity to review the t r anscript of the sidebar conference during the first trial regarding the motion for a mistrial . After denying each of these motions, the trial justice permitted defendant to proceed pro se , wit h defense counsel acting as standby coun sel

. On two more occas i ons that same day, the trial justice revisited the issue of defendant’s decision to represent himself, reiterating the point that “ firing a lawyer and waiving your right to counsel are very se rious things .” Notably, after jury impan elment had concluded ( b ut before the jury was sworn) , the following colloquy ensued:

“ THE DEFENDANT : I never indicated I wanted to go pro se .

“ THE COURT: Yes, you did.

“ THE DEFENDANT : Yeah. I ’ m being forced to go pr o se because you won ’ t let me get anot her attorney. Don ’ t s a y I made that decision.

“ THE COURT: Don ’ t you raise your voice to me.

“ THE DEFENDANT : I ’ m not raising my voice. I ’ m talking to you.

“ THE COURT: Yes, you are.

“ THE DEFENDANT : That ’ s the way I tal k. I apologize if I ’ m loud. That ’ s the way I talk.- 11

- “ T H E COURT: Well, you better modulate your tongue from now on.

“ THE DEFENDANT : All right. Then you do the same.

“ THE COURT: I ’ m holding you in contempt. This jury will be sent home. It will not be sw orn. Six months. And I would s uggest and recommend t h at it will be [in] administrative segregation

. ” On January 18, 2018, two days after the colloquy that ended with defendant being held in contempt, he appeared again before the trial justice

. At tha t point , defense counsel informed the trial justice that defendant had again engaged her as his attorney , and she added that defendant had “something that he would like to say to the [c]ourt * * *.” The trial justice reviewed with defendant the ram ifications of separating from counsel and confirmed that defend a nt was prepared to move forward with defense counsel represent ing him . He permitted defendant to directly address the court , at which point defendant apologized for his conduct earl ier that week

. D efense counsel then asked that the trial justice purge t h e finding of contempt in light of defendant’s “acknowledge[ment] [of] the error of his
ways * * * .” The trial justice responded as follows:

“THE COURT: You know, Mr. Segrain , this is the second time you have offered to me an apology for conduct that one c ould easily view as contumacious and insolent in the courtroom. You gave the sheriffs a hard time, you uttered vulgarities, the likes of which are at the furthest pole that one could ima gine. Vulgarities were directed at the [c] our t. You were argumenta t ive. You- 12

- interrupted. You raised your voice. One does not easily forgive or forget when a defendant says to the [c] ourt,
‘ F *** you. ’ But let ’ s start fresh. Okay?

“ THE DEFENDANT : Yes, Your Honor.

“ THE COURT: Out of respect to [ defense counsel’s] eff o rts on your behalf, and her long

- standing representation of the clients in this courthouse over the years, okay, I ’ ll purge the contempt

. ” Following this colloquy, the trial justice quest ioned whether defendant wished to proceed wit h the jury that had be e n impaneled or whether he wanted to

“ start fresh ” the foll owing week . Defense counsel, after conferring with defendant, informed the trial justice of defendant’s wish that an entirely new trial take place

. 8 At this point, the panel was excu sed, but jeop a rdy had not attached.
D
The Actual Trial 1. The Motion to Recuse On January 22, 2018, another trial commenced

— and, this time, it would proceed to a verdict and sentencing . Before jury voir dire began, defense counsel, at defendant’s request, moved to r ec u se the trial justice. In making that motion,

8 We would note that, because defendant began representing himself halfway through j ury imp anelment, defense counsel conducte d pa rt of the voir dire an d defendant thereafter completed the process. In granting the mistrial motion, the trial justice stated that he wanted to “protect [defendant] from any kind of adverse impression that the pres ent jury might draw if we were to go forw ard as it has been con scripted, first with [defense counsel], then with you, then with [defense counsel] again * * *.”- 13

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defense counsel stated: “My client feels that the [c] ourt ’ s decisions on the motions that have thus far been addressed in this case reflect a prejudice on the part of the [c] ourt against him, and he is askin g t hat this case be transferred to another judge for trial

. ” After hearing the s tate’s response, the trial justice denied the motion. In rendering his decision, the trial justice stated: “ The party seeking recusal bears the
burden of establishing that t he j udicial officer possesses a personal bias or prejudice by reason of a preconceived or settled opinion of a characteristic calculated to impair his impartiality seriously and to sway his judgment. ” He further stated: “The defendant h as not only complet ely failed to make any such showing, he has offered no grounds whatsoever

. ” Accordingly, the trial justice continued presiding over the trial. The case was ultimately heard by a jury on various dates in January and February of 2018. We relate below the sali e nt aspects of what transpired at that trial. 2. The Testimony of Various Witnesses
The re follows the testimony of th os e witnesses whose testimony we deem relevant to our resolution of the issues on appeal.

i. The Testimony of Brando n Bates
Bran don Bates , a member of the Bucket East gang, testified that, on January 9, 2017, he drove one John Laboy, also a member of th at gang, to the Providence- 14

-

County Courthouse , where Mr. Laboy had a scheduled court appearance

. Mr. Bates further tes tified that he accompa n ied Mr. Laboy to court because

“ supposably [ sic ] some people we had issues with were supposed to be in the courtroom that day

. ” Mr. Bates stated that, when he and Mr. Laboy arrived at their destination , he parked on College Stre et 9 behind what he recogni z ed as defendant ’ s BMW . He further stated that, upon arriving at the courthouse, he and Mr. Laboy were joined by eight or nine other members of the Bucket East gang

. Mr. Bates added that, after entering th e courthouse , he remained b y the court roo m door ,

w hile some other members of the group , including defendant, proceeded into the
courtroom . He stated that , at some point thereafter , members o f the group were escorted outside by courthouse security . Mr. Bates testified that, about t en or fifteen minutes l ater , the group walked toward the parked cars ; he added that
defendant got into the driver ’ s seat of the BMW

.

ii. The Testimony of Attorney Lauren Balkcom Attorney Lauren Balkcom also testified a bout the events of January 9, 2017. She began by stating t h at, on that date, she was on the fifth floor of the Providence

9 The record reflects that several of the witnesses at trial referred to the street on which de fen dant and other members of the Buck et E ast gang had pa rked th eir vehicles as “College Hill.” However, it is clear from Mr. Bates’s testimony and the record as a whole that all references to “College Hill” actually relate to “College Street,” which stree t i s located adjacent to the Providen ce C ounty Courthous e ; and w e shall hereinafter use the latter des ignat ion

.- 15

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County Courthouse 10 representing one Carlos Depina 11 on a matter unrelated to the instant cas e . Attorney Balkcom testified that Carlos Depina was accompanied by
three frie nds and family members , including Mathew Depina (the eventual victim of the drive

- by shooting at issue in this case) ; she added that Carlos Depina and his three companions were seated in the back row of the courtroom . Attorney Balkcom further testified th at she was sitting in t he back of the courtroom speaking with Carlos Depina (her client) when d efendant and several other individuals entered the court room ; she added that def endant sat between Carlos Depina and one of his companions . Attorney Balkcom sta ted that she briefly s poke to
d efendant and asked him to relocate to another place in the courtroom so that she could continue her conversation with her client in private . She te stified that d efendant directed a vulgarit y at her before he left the courtro om accompanied by
oth e r individuals . Attorney Balkcom stated that she followed d efendant and the other individuals into the hallway , where she “ spoke with the hea d of security * * * and a sheriff * * *. ”

10 A person entering or leaving the fifth floor of the Providence County C ourthouse would use the Benefit Street entrance.

11 Mathew Depina te sti fied that he knew Carlos Depina to be a m ember of the Bucket West gang.- 16

-

Attorney Balkcom further testified that, when she returned to the court r oom, Carlos Depina and his companions were watching a Facebook L ive 12 video on a cellular phone. She stated that the video showed a group of individuals standing outside on the courthouse steps direct ing vulgarities at her and at Carl os Depina and other m e mbers of the Bucket West gang . Attorney Balkcom said that, after viewing the video, she walked ov er to the court room window , from where she saw th e same group of individuals walking up College Street and then entering their vehicles and driving down the s treet

. Attorney Balkcom further stated that she photograph ed the vehicles , as she was able to see them from the court room window as they were driving . She added that she recognized the individual driving the first vehicle, a BMW, as d efendant

. Attorn e y Balkcom testified that, at some point thereafter, Carlos Depina and
his companions left the courthouse . She added that, after the y left, she went down to the first floor of the courthouse , 13 from which location she observed Dana Smi th , the official in c h arge of security operations for the Superior Court, running

12 Facebook Live is a feature of Facebook, an online social networking platform, that allows users to “[g]o live on Facebook to broadcast a conversation, performance, Q&A or virtua l e vent.” See https:// w ww. facebook.com/fo rmed ia/ solutions/facebook

- live (last visited June 2 2 , 2021).

13 The first floor of the courthouse faces South Main Street, a major street that runs in a North

- South direction.- 17

-

toward the Crawford Street Bridge. 14 Attorney Balkcom testified that sh e followed Mr. Smith across South Main Street and that , when she was closer to the bridge,
she “ observe d a white four

- door s e dan crashed on the bridge ” and “ Mr. Mathew
De p ina being put into an ambulance

. ” She stated that the white vehicle belong ed to Mathew Depina

. iii. The Testimony of Dana Smith Dana Smith , the above

- referenced security official, provid ed further testimony a bout the events of January 9 . Mr. Smith stated that he was standing outside of Courtroom 10 when he observed several men

— including defendant and Mr. Laboy

— exit th at courtroom

. He testifi ed that, when he spoke to those individuals so on thereafter, he tol d them that they sh ould not re

- enter the
courtroom . He added that he later told th em

— and others who had joined them

— to leave the c ourthouse entirely

. Mr. Smith stated that all of the individuals to whom he had spoken , with the except ion of d efendant , lef t the building . He said that d efendant remained in the building , but went downstairs , asserting that “ he had
some other business * * * elsewhere in the courthouse * * *

. ” Mr. Smith testified that, although the group of individuals ha d exited the building , they remained close by

— standing “ on the sta irs and right in front of the courthouse * * *

. ”

14 We note that Attorney Balkcom did not in dicate the name of the bridge duri ng h er testimony, but only described its location. However, based on the entirety of her testimony, it is clear to us that she was referring to the Crawford Street Bridge.- 18

-

It was further Mr. Smith ’ s tes timony that, about fifteen or twenty minutes later, he told the group standing outside to leave the area . He stated that the group , which defendant had now rejoined , proceeded up College Street and got into several vehicles ; he added that defendant was sitting in the driver ’ s seat of a SUV

style BMW . Mr. Smith testified that, from a window inside the courthouse, he watched the cars d rive down College Street in the direction of Benefit Street

. He stated that, at some point thereafter, he heard gunshot s and that he then proceeded to the first floor of the courthouse , ran across South Main Street toward the Crawfor d Street Bridge , 15 and observed “ a white vehicle that had just been shot
up . ” iv. The Testimony of Samuel An individual to whom we shall refe r as “ Samuel ” 16 also testified as to what occurred on January 9 , 2017

. Samuel stated that, as of that date , he was a member of the Bucke t East gang . H e testified that he and other members of th at gang went to the courthouse on January 9 because they were going to “ target Carlos Depina , ”

15 It should be noted that, like Attorney Balkcom , Mr. Smith did not indicate the n ame of the b ridge during his te stimony but only referred to its location. Based on the entirety of his testimony and the record as a whole, it is clear to us that he was referring to the Crawford Street Bridge.

16 We ref

er to said witness pseudonymously in v iew of h is status as a mino r at the time of trial

.- 19

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a member of the Bucket West gang , who had a court appearance scheduled for that da y . Samuel stated that , when he ultimately left the courthouse with other members of the Bucket East gang , he got into a black BMW and that d efendant got into the driver ’ s seat of th e same car . Samuel further testified that , while they were driving, defend ant located and follo w ed the “ white Chevy ” in which Carlos Depina had arrived at the courthouse

. He added that , soon thereafter , d efendant pulle d the BMW next to the “ Chevy ” and fired shots “[s] ix , seven times” into th at vehicle

.

v. The Testimony of Geova nni Perez At trial, M r. Perez testified consistently with the testimony which he had provided at the pretrial suppression hearing

. And h e provided an in

- co urt identification of defendant as the man he had seen driving the BMW on January 9,
2017

.
v i . The Testimony of Detective Jonathan Pri m iano Detective Jonathan Primiano testified that, at the time of trial, he was a detective in the Investigative Bureau of the Providence Police Department

. Detective Primiano testified that, in addition to carrying out h is usual duties , he also work ed wit h the Digital Forensics Unit, where he dealt with “ computer, video
and mobile forensics

. ” He stated that, with respect to the instant case , he “ assisted in some digital video forensics

. ” H e testified that videos taken f rom different- 20

-

vantage points throug h out the city on January 9, 2017 were turned over to him for analysis

. 17 Detective Primiano identified the individua l videos which he reviewed

as well as (1) a compilation of videos that was produced by “ IT people here at the courthouse ” and (2) a “ PowerPo i nt presentation ” that he had created based on information contained in the videos . Each of the individual videos as well as the video compilation and the “ PowerPoint presentation ” were entered into evidence as full exhi bits, with out objection from defens e c ounsel

. (D efense counsel ’s only objection was to Detective Primiano ’ s “ narration and identification of the individ uals who are allegedly depicted in the video [s] , including the defendant

. ” )

vi i . The Testimony of Corre ctional Officer Jon Defilippis
Jon De filippis was called by the s tate to rebut the testimony of Carlos Depina , who had testified that he had never befo re seen defendant

. He stated that,

a s of the time of trial, he was working as a correctional officer at the Adult Correctional Institution s . He stated that, while working at the ACI, he had witnessed a fight between Carlos Depina and d efendant , but that he did not know who started the fight. Defense counsel neither objected to the admission of Mr. Defilip pis ’ s testimony nor requested a cau tio nary instruction to the effect that the evidence could be used only for purposes of impeachment.

17 Detective Primiano testified that the videos he analyzed came from “[t]he Rhode [Island] School of Design, Brown University, the Superior [Court ] , and One Fi nancial Square .”- 21

- 3. The V erdict
After the presentation of all the evidence, and after closing arguments and the jury instructions, the jur y found d efendant guilty o n C ounts One , Two, Three, Four, and Six

. Pursuan t to a stipulation in the case, Count Seven was decided by the trial justice rather than the jury; the trial justice adjudged d efendant guilty on that Count. 18
E The Sentencing Heari ng On March 29, 2018, d efendant was sc heduled to appear before the trial ju stice for sentencing

. Before the sentencing hearing began, however, d efendant refused to leave the courthouse cell block. The trial justice directed defense counsel to inform defe ndant of his right to be present at th e sent encing hearing and
to advise him that, should he fail to appear, he would “waive any and all rights and steps and measures that are taken at [the] sentencing proceeding * * *.” After speaking with defendant in t he cellblock, defense counsel infor med the t rial justice that, after she had advised d efendant as to his rights, he stated: “‘ You ’ re not my lawyer. I ’ m going to represent myself. ’” The defendant entered the courtroom shortly thereafter, at which point he
made comments to a similar effect

— n ame ly, th at he would not be represented by

18 See footnote 1, supr a .- 22

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counsel at the sentencing hearing and would instead be representing himself

. More specifically, d efendant stated that he wished to represent himself for the following

reasons: “ B ecause [counsel] put in a motion f or a new trial two weeks after my conviction, without telling me . S he never consulted with me and I just got newly

discovered evidence that I’m going to present * * *.”
In responding to d efendant ’ s express ed wish to proc eed pro se , the trial justice point ed out that this was not the first time during the course of the various proceedings relative to this case that defendant had attempted to separate himself from defense counsel

. T he trial justice further stated: “ I thoug ht you realized how
ill

- prepared you we re to undertake your own representation and it seemed, at least at first blush, that you regretted your mistake in trying to do so, and you again realigned yourself with [defense counsel ]

. ” He then stated that, based on defendant’s behavior 19 and his ex p ressed intention to proceed pro se at the sentencing hearing , “ i t is clear to me that you still do not understand or appreciate the risks and disadvantages of trying to represent yourself, even though I have previously warned you about the proverbial a dag e of having a fool for a client,

19 The trial justice noted t hat defendant had “tried to obstruct the sheriffs;” “loudly paraded down the hallway outside this courtroom, proclaiming that this was ‘a circus and where were the balloons[;]’” “openl y curse d this [c]ourt and behaved insulti ngly and disres pectfully to the point of being held in contempt ; ” “vaulted to [his] feet loudly and yelled, ‘Objection’ three times” during cross

examination of a certain witness ; and “[l]ater during the trial [he] became disengaged, turning [his] chair ar ound , turned [his] back to the ju ry for a great length of time, staring at the gallery and/or out the window.”- 23

-

which you so quickly dismissed

. ” The trial justice proceeded to tell defendant that he had found that “ the two

- part test to support an election to represent yourself has
not at all been satisfied. The attempt to waive cou nsel is not fully voluntary and it is certainly not knowing and intelligent

. ” Accordingly, the trial justice denied d efendant ’ s expressed desire to proceed pro se at the sentencing hearing.
The d efendant was sentence d as follows: twenty years to serv e o n Count One; twen ty years to serve , without parole, on Count Two (consecutive to Count One); ten years to serve on Count Three (concurrent with Count One); ten years to serve on Count Four (concurrent with Count One); fi fteen years to serve on Count Six (c onsecutive to Count Two); ten years to serve on Count Seven (consecutive to Count Six) ; and, as a habitual offender, he was sent enced to twenty

- five years , with fifteen years to serve without parole , and the remaining te n years suspended, with probation , to be served consecut ive ly to Count Seven

. A notice of appeal to this Court was timely filed

. II Issues on Appeal On appeal, d efendant contends that: (1) the trial justice erred by granting a mistrial and thereby violat ing his constitutio nal right agai nst being put in double jeopardy; (2) the trial justice erred by denying the motion to suppress a particular eyewitness identification; (3) the trial justice erred by denying the motion to- 24

-

recuse; (4) the trial justice erre d by denying d efend ant ’ s right to represent himself
at t rial and at the sentencing hearing ; and (5) the trial justice erred by allowing in to evidence certain video s and testimony

. We shall now proceed to address defendant’s various contentions.
III Analys is
A The First Mistrial and the D ouble Jeopardy Contenti on The d efendant asserts on appeal that there is nothing in the record to indicate
that he consented to a mistrial following Attorney Balkcom ’ s reference to “the violation hearing” in the course of th e first trial

. H e contends that he never discussed the mistrial issue with his trial attorney and that, when he questioned the trial justice as to the ramifications of a mistrial, the trial justice provided an
erroneous response . The d efendant argues to this Court that , because h e did n ot
consent and because the trial justice “sua sponte reverse[d] his previous denial of the mistrial,” his subsequent trial s on the same charge s violated his rights under the double jeopardy provision in the Fifth Amendment to the United States
Const itution

. 20 We need not reach t he substance of this argument because
d efendant has failed to properly preserve it for our review.

20 See footnote 7 , supra .- 25

-

Pursuant to Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure, t he defense of double je opardy “ may be raised onl y by mot ion before
trial

. ” ( E m phasis added

. ) S ee State v. Day , 925 A.2d 962 , 977 (R.I. 2007) ; State v. Thomas , 654 A.2d 327 , 330 (R.I. 1995)

. We have stated that “ failure to raise such a motion before trial precludes that defe nd ant from thereafter raising a dou ble jeopardy challenge

. ” Day , 925 A.2d at 977. It is true that w e have also stated that, upon a showing of good cause, a “ defendant can obtain relief from the strong medicine that Rule 12(b)(2) dispenses * * *. ” State v. Feliciano , 901 A.2d 631 , 647 (R. I. 2006). However, o ur case law also make s clear that “ [o] nly in limited circumstances will this [C] ourt review a claim of double jeopardy despite its improper assertion. ” Thomas , 654 A.2d at 330. And in those limited ci rcumstances, “ the burden is on a defendant to show cause why relief should be granted notwithstanding the untimely assertion of the defense. ” State v. Lee , 502 A.2d 332 , 334 (R.I. 1985). In the present case, it is undisputed that d efendant failed to s ub mit before the
start of his secon d trial a motion to dis miss on the grounds of double jeopardy pursuant to Rule 12(b)(2) . In fact, in the course of arguing before this Court, d efendant candidly conceded this point as well as the fact that no such motion w as made before his third trial co mmenced

. Although it i s true that defendant eventually br ought to the trial justice’s attention his contention relative to double- 26

-

jeopardy, we note that that did not occur until halfway through jury voir dire on the thi rd day of defendant’s second trial

. After careful consider ation, it is our view that, because defendant did not “show cause why relief should be granted notwithstanding the untimely assertion of the defense,” we are convinced that the
instant case does n ot c onstitute one of the “limited cir cumstances” referenced in
the Thomas opinion. Thomas , 654 A.2d at 330 (internal quotation marks omitted)

. Instead, it is our view that Rule 12(b)(2) as explicated in the Day opinion is controlling. See Day , 925 A.2d at 9 77

. A ccordingly , we are convince d that there is no need to reach the merits of d efendant ’ s belatedly raised double jeopardy
contention

. B

Denial of Motion to Suppress Eyewitness Identification
The d efendant contends on appeal that , because Mr. Perez ’ s ide ntification s

w ere “ tainted ,” the t rial justice erred in denying the motion to suppress th at identification. He bases his contention about the identification being “ tainted ” on the fact that the lead detective assigned to his case conducted what defendant characterized as a “ single photo show up ” with Mr. Perez prior to the sequential photo display

. The d efendant contends in essence that, because Mr. Perez was the

s ole unbiased witness , the faulty identification procedure “ ruined the neutrality ” of- 27

-

his ide ntification, which served to “ but tr ess the * * * testi mony of the cooperating

co - defendant s that testified against d efendant

. ” It is well established that, when reviewing a trial justice ’ s denial of a motion to suppress evidence, we will “ defer to the fa ctual findings of the trial justi ce, applying a clearl y erroneous standard. ” State v. Gonzalez , 136 A.3d 1131 , 1145 (R.I. 2016) (internal quotation ma rks omitted) ; see State v. Washington , 189 A.3d
43 , 56 (R.I. 2018). We have further stated that, “ [i]n m aking this determination,

we asse ss the available evid ence in t he light most favorable to the state. ” State v. Gallop , 89 A.3d 795, 801 (R.I. 2014) (internal quotation marks omitted). In this context, the trial justice must undertake a two

- step analysis t o determine the propriety of an e yewitness identificat ion proce dure. Washington , 189 A.3d at 55 ; see State v. Austin , 114 A.3d 87 , 9 4 (R.I. 2015); Gallop , 89 A.3d at
801

. First, t he trial justice must determine whether the procedure used was

“ unnecessari ly suggestive

. ” Gallop , 89 A.3d at 801 (internal quot ation marks omitt ed)

. We have explicated th e concept of unnecessary suggestiveness by stating that , to fall into that category , “ an identification procedure must have been so impermissibly suggestive a s to give rise to a very substant ial likelihood of
irr eparable misidentification * * *

. ” Id. (internal quotation marks omitted)

. Then,
i f the trial justice does find that the identification procedure at issue was unnecessarily suggestive, “ he or she must look at the totality of the circ umstances- 28

-

to determin e whether the identificat ion was nevertheless reliable

. ” Washington , 189 A.3d at 55. In dealing with the reliability issue , the trial justice is called upon
to consider var ious factors

. See , e.g. , Ga llop , 89 A.3d at 801; State v. Pa tel , 949 A.2d 401, 411 (R.I. 2008)). If, after evaluating these factors, “ the trial justice concludes that the identification has independent reliability, then [the identification] will be admissible notwithstanding the su ggestiveness of the procedure emp loyed. ” Gallop , 89 A. 3d at 801

. The d efendant contends on appeal that what he calls the “ single photo show
up ” was unnecessarily suggestive and that it tainted the reliability of the identification procedure

. With respec t to the first step of the analys is, t he trial justice qu ite correctly commented at the outset (in what appears to us to have been an ironic understatement ) that present ing the single photograph of d efendant in the
BMW before presenting the photo display w as not “ the best way of doing thi ngs . ” However, he fur th er observed that said photo did not “ clearly or obviously depict defendant * * *

. ” Moreover, he added that, in spite of the fact that he himself had seen defendant in the courtroom on multiple occas ions, he could not “look at that BMW photograph and pos it ively state that the driver is [defendant].” It is noteworthy that, during his discussion with respect to the question of the
unnecessary suggestiveness of the identification procedure, the trial ju stice did not explicitly state th at the procedure was a ct ually unnecessarily suggestive

. In any- 29

-

event, t he trial justice nonetheless proceeded to address the second step of the analysis . He explicitly stated that h e “ categorically and without hesitation ”
determined that Mr. Perez ’ s iden tification was otherwi se reliable

. In coming to this conclusion, the trial justice went through the factors enunciated in Neil v. Biggers , 409 U.S. 188 (1972) , and then made the following insightful case - specific
statement :

“ [A] ll four of the [] salient el ements outlined in G al lop

and the Biggers case under the totality of the circumstances are readily satisfied.

“ More than that, I would point to the testimony of Mr. Perez during these proceedings, that when he called the p olice on January 1 9, he did so pr ecisely because of hi s independent recollection of the events on Benevolent Street on January 9, which he realized may have had something to do with the shooting downtown. That independent recollection was based on his own memory before the police ever sh owed him any photogra p hs.

“ More than that, Mr. Perez testified that he has a penchant, an ability for remembering people ’ s faces and which ones go with which vehicles. It is, after all, what he does for a living. He ’ s a professional valet. He simply has a knack for rememb er ing the connections between a face and a car. It ’ s what he does. And I fully credit his testimony in this regard. He was not bragging or boasting. He was simply stating a fact about himself, and I believe him

. ”
Even t hough the trial justice never s t ate d with specificity that the identification was

or was not unnecessarily suggestive, we are more than satisfied that, based on his further clear and detailed explication about Mr. Perez’s talent for “remembering- 30

-

people’s faces , ” eve n if the trial just ice had found unnecessary suggestiveness , the trial justice’s determination that the identification was otherwise reliable was especially well

- founded

. Accordingly, w e perceive no error whatsoever in the trial justice ’ s denial of the mo t ion to suppress Mr. Pe rez’s eyewitness identification

. Nevertheless , while we do not hesitate to uphold the trial justice’s ruling about the eyewitness identification in this case, we believe that it is imperative to emph asize that we view as unfortunate the procedure emplo yed by the investigating detectives

— especially given the emphasis that the General Assembly has placed on improving the policies and procedures of law enforcement with respect to eyewitness identificatio ns. 21
C

Denial of the Motion to Re c use the Trial Justice
The d efendant further contends that the trial justice erred by summarily denying d efendant ’ s motion for recusal at the beginning of the third trial

. The d efendant argues that the trial justice was p rejudiced against him and should h ave

21 Notably , d uring its 2010 session, the General As sembly enacted G.L. 1956 § 12

- 1

- 16 , which created a task force charg ed w ith “ develop [ing] guideline s for policies, procedures and training with respect to the collection and handling of eyewitness evidence in criminal investigations by law enforcement agen cies in Rhode Island. ” Alt hough w e recognize that the final report prod uced by the task force purs uant to this statutory mandate is simply a guideline , we consider it to be of genuine importance that investigating officers constantly strive to av oid any unnecessary suggestiveness i n the c ontext of eyewitness identificatio n.- 31

-

recused himself be cause the trial justice had : ( 1 ) previously held d efendant in contempt of court; ( 2 ) denied hi s request for a continuance to con tinue preparing
his defense ; (3) violated Rule 42 of the Superior Court Rules of Criminal Procedure ; 22 (4) tried to persuade defe ndant not to represent himself at trial; and (5) attempted to “ goad ” or “ wheedle ” him into agreeing to a mistrial. For the

reasons s et forth below, we are of the opinion that the trial justice did no t err in denying d efendant ’ s moti o n for recusal. It is a well

- settled principle that “ judicial officers are duty

- bound to recuse themselves if they are unable to render a fair or an impart ial decision in a particular

case. ” Ryan v. Roman Catholic Bishop of Providence , 941 A.2d 174 , 185 ( R.I. 2008) (internal q uotation marks omitted); see Mattatal l v. State , 947 A.2d 896, 902 (R.I . 2008). However, “ [i] t is an equally well

- recognized principl e that a trial justice has as great an obligation not to disqualif y himself or herself when there i s

22 Rule 42(b) of the Superio r Court Rules of Criminal Procedure provides as follows: “ A criminal contempt except as provided in subdivi sion (a) of this rule shall be prosecuted on notice. The notice shall state the tim e and place of hearing, allowing a rea sonable time for the prepara tion of the defense, and shall state the essential facts constituting the criminal contempt charged and des cribe it as such. The notice shall be given orally by the judicial officer in open court in the presence of the defe ndan t or, on application of an at torney for the State or of an attorney appointed by the court for that purpose, by an order to show cause o r an order of arrest. The defendant is entitled to admission to bail as pr ovided in these rules. In a proceeding u nder this subdivision , if the conte mpt charged involves disrespect to or criticism of a judicial officer, that judicial officer is disqualifie d from presiding at the trial or hearing except with the defendant’s cons ent. U pon a verdict or finding of guilt the court shall enter an order fixin g the punishment. ” (Emphasis added.)- 32

-

no sound reason to do so * * *

. ” Kelly v. Rhode Island Public Transit Authority , 740 A.2d 1243, 1246 (R.I. 1999) (emphasis added) ; see Ryan , 941 A.2d at 1 85

. We have stated that “ [a] party seeking recusal must establish that the [trial] justice has a p e rsonal bias or prejudi ce by reason of a preconceived or settled opinion of a character calculated to impair his [or her] impartiality seriously and to sway his [or her] judgment

. ” Ryan , 941 A.2d at 185 (internal quota tion marks omitted)

. In the instant case, d efendant has co mpletely failed to show that the trial justice held any personal bias or prejudice against him so as to make the trial justice “ duty

- bound ” to recuse himself

. I d. Firs t, although the trial justice h eld
d efendant in contempt of cour t during the second abo rted trial , only two days later the trial justice , after a modicum of advocacy by defense counsel , purged the finding of contempt

. After carefully reviewing the record , it is our view that the
contem pt finding was not a result of a “ preconceived or settle d opinion of [ defendant’s ] character * * *

. ” Id. (internal quotation marks omitted). I nstead, the trial justice stated that , during the course of the proceedings befor e him , d efendant did not cooper ate with the sheriffs ; he uttered vulgarities directed a t the court ; he raised his voice ; he was argumentative ; and he interrupted the trial justice

. We would further point out that, following the trial justice’s purg ing of the contempt finding, he also g ranted defendant a new trial in o r der to “ protect [defen dant] from- 33

-

any kind of adverse impression that the present jury might draw if we were to go forward as it has been conscripted * * * .” Second , a lthough the t rial justice assented to defendant’s reques t to represent himself at the sec o nd aborted trial , he s tated that he would not grant defendant’s request for a continuance of the proceedings because defendant had “spr[u]ng this on [him] at the last minute” and because there was “a jury upstairs that [th e parties had ] begun to impanel * * * [and] other new ju rors that [the parties were ] going to use to finish the impanelment .” Given the timing of d efendant ’ s decision to proceed pro se and his statements to the trial jus tice with respect to his assessment of his own legal qualifications, we do not perceive the denial of the continuance as the product of any bias or prejudice, but rather as the product of the trial justice’s understanding that, in the interest of justice a nd judicial economy, he wanted the trial to proceed in a timely and e fficient manner . Third , in arguing that the trial justice must be precluded from presiding at his trial pursuant to Rule 42 of the Superior Court Rules of Criminal Procedure,
defendant mi sconstrues the meaning of that r ule . That rule states , in pertinent part , that “ [i] n a pro ceeding under this subdivision , if the contempt charged involves disrespect to or criticism of a judicial officer, that judicial officer is disqualified from presidi ng at the trial or hearing except w ith the defendant ’ s consent. ” Su p er. R. Crim. P

. 42(b) (emphasis added). By cherry

- picking language from the rule,- 34

-

d efendant blatantly ignores the fact that the dictates of that rule apply only to

“ proceeding [ s ] un der [that] subdivision ”

— in other words, co ntempt proceedings. Id. (emphasi s added). We would poi nt out that d efendant was never subject to a Rule 42(b) proceeding before the trial justice ; accordingly, th e cited rule is not applicable to the case at bar

. It is clear to us that, far from being prejudic ed and biased, the action s taken by the trial ju stice were entirely appropriate and were, in fact, necessary so that a fair and just trial might be conducted

. Accordingly, it is clear to us that the trial justice certainly did not err in deciding not to recuse himself from d efend a nt ’ s

case . See Ryan , 941 A.2d at 186; Kelly , 740 A.2d at 1246.
D Denial of Defendant ’ s Right to Self
- Representation
The d efendant asserts on appeal that he was denied his constitutional right to

s elf

- representation . He specifically argues: (1) that the trial justice “ stymied ” his attempts to prepare his own defense at trial ; and (2) that the trial justice erred in denying him the right to represent himself during his sentencing hearing . For the following reasons, we are of the opinion that the trial ju s tice did not err in so doing

. Pursuant to the United States Supreme Court ’ s ruling in Faretta v. California , 422 U.S. 806 (1975), “[t] he Sixth Amendment does not provide merely- 35

-

that a defense shal l be made for the accused; it grants to the accused persona l ly the right to make h is defense

. ” Faretta , 422 U.S. at 819

. “ The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails

. ” Id. at 819

- 20

. The Sup reme Court has further stated that “ [t] he pro se defendant must be allo wed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire , to question witnesses, and to address the court and the jury at ap propriate points in the trial. ” M

cKaskle v. Wiggins , 46 5 U.S. 168 , 174 (1984). This Court has further noted that “ a defendant may proceed pro se if he or she wishes only so long as the waiver of his or her right to counsel is valid

. ” Sta te v. Withers , 172 A.3d 765, 771 (R.I. 2017) (em p hasis added)

. “ In ord er for a waiver to be valid, a defendant must waive his or her right to counsel voluntarily, knowingly, and intelligently. ” State v. Cruz , 109 A.3d 381, 390 (R.I. 2015). To determine whether such a waiver wa s valid , “ this Court emp l oys a two

- prong analys is * * *

. ” Id. First, we must “ determine whether the waiver was

‘ voluntary * * *

. ’ ” Id. After that, “ we must determine whether the waiver was

‘ knowing and intelligent. ’ ” Id. We conduc t this two

- pronged inquiry in a de novo

mann e r, and we proceed by c onsidering the “ totality of the circumstances ” as set- 36

-

forth in State v. Chabot , 682 A.2d 1377 (R.I. 1996). 23 Id. at 3 90. We have stated that “ [a] valid waiver is effective only if a defendant know s what he [or she] is doing and h i s [or her] choice is m ade with eyes open. ” Id. (internal quotation marks omitted). The defe ndant has presented conflicting argumen ts

. I n his brief before this
Court , defendant has conceded (1) that, at some point during his trial, he “ had assumed the responsibilities o f representing himself ” and (2) that “ [ t ] he trial court had finally[] acceded to [his] request for self

- representation. ” He also argues on appeal , h owever, that during the course of his attempt to re present himself at trial,

23 In State v. Chabot , 682 A.2d 1377 (R.I. 1996), the Court set forth six factors that a trial justice may use as a guide in determining whet her a d efendant’s request to represent hi msel f was made voluntarily, knowingly , and intelligently. S ee State v. Withers , 172 A.3d 765, 771 (R.I. 2017). The Court in Chabot , in the context of a probation violation hearing, stated that the following factor s shoul d be considered: “(1) the backgr ound , the experience, and the conduct of

the defendant at the hearing, including his age, his education, and his physical and mental health; (2) the extent to which the defendant has had prior c ontact with lawyers b efore t he hearing; (3) the defendant’s kn owle dge of the nature of the proceedi ng and the sentence that may potentially be reimposed; (4) the question of whether standby counsel has been appointed and the extent to which he or she has a ided the defendant be fore or at the hearing; (5) the question of w hether the waiver of counsel was the result of mistreatment or coercion; and (6) the question of whether the defendant is trying to manipulate the events of the hearing.” Chabot , 682 A.2d a t 1380.- 37

-

“ he pre s ented the trial court with several motions, seeking the information that any attorney would have needed in order to be prepared to present a defense, ” and that
each motion was summarily denied, thereby stymying his ability to prepare his defense

. In part i cular, d efendant argue s that, after he began representing himself, the trial justice erred by denying the following motion s: his motion for a
continuance ; his motion to review the exhibits presented at the first trial ; his motion to preclude the state fro m calling Attorney Balk com as a witness a t subsequent trials ; and his motion to receive the transcript of the sidebar conference that was held during Attorney Balkcom ’ s testimony at the first trial

. We are not persuaded by defendant’s argument

. The d efend a nt fails to meaningful ly explain how the trial justice ’ s denial of the just

- referenced motions interfered with his ability to present his defense or otherwise control his case. Although a d efendant has certain rights when proceeding pro se , a defendant d o es not thereby acquire the right to obtain a favorable ruling on any or all of the motions that he or she presents to the court

. See , e.g. , McKaskle , 465 U.S. at 174 n. 4 , 181

. We are satisfie d that, in spite of d efendant ’ s frequent and utterly inappropr iate behavior towards the t rial justice , the trial justice judiciously scrutinized each of d efendant ’ s motions and provided explanations for his subsequent denials

. In other words, d efendant w as not prevented from “ hav [ ing ] his voice heard ” in accordance with the Supreme Court ’ s- 38

-

te aching in McKaskle

. Id. at 174. We are convinced that the trial justice in no way stymied defendant’s efforts to prepare and present a defense.
The d efendant also asserts b efore this Court that the trial justice erred by denyin g him his right to self

- rep resentation at the time of the sentencing hearing

. We recognize that the trial justice did, in fact, deny d efendant the right to represent himself during the sentencing hea ring

. However, we have stated that a defendant ’ s right to re present himself or her self is valid only “ so long as the waiver of his or her right to counsel is valid. ” Withers , 172 A. 3 d at 771 (emphasis added)

. We perceive no reversible error in the trial justice ’ s assessment o f the defendant’s
overall conduct and performance in the var ious proceedings that ultimately led up to the sentencing hearing. And we, therefore, perceive no reversible error in the trial justice’s conclusion that d efend ant ’ s waiver of his right to counse l at the sentencing hearing was s imply not “valid

. ” Id.
I n responding to defendant’s request to proceed pro se at the sentencing hearing , the trial justice explicitly referenced both the two

- prong test used to determin e whether a waiver of counsel is vo luntary as well as the six factor s

enu merated in Chabot

. We find persuasive the trial justice ’ s determination that, based on d efendant ’ s actions and conduct throughout the numerous proceedings before the Superior Court, it wa s clear tha t, at the time of t he sentencing hearing, defendant did n ot “ understand or appr eciate the risks and disadvantages of trying- 39

-

to represent [ himself] , even though [the trial justice had ] previously warned [him] about the proverbial adage of havin g a fool for a client * * *

. ” A ccordingly, we perceive no error in th e trial justice ’ s expr ess finding that “ the two

- part test to support an election to represent yourself has not at all been satisfied , ” nor in his
further statement that “ [t] he att empt to waive counsel is not fully volu ntary and it is certainly not know ing a nd intelligent

. ” In v iew of the trial justice ’ s findings and the record as a whole , we are of the opinion that d efendant ’ s waiver of his right to counsel was not voluntary, kno wing, and intelligent

. A ccordingly , it is our view that the trial justice did not err in denying def endant the right to represent himself at the sentencing hearing

. For these reasons , it is our view that d efendant ’ s various argument s concerning his righ t to self

- representation are unavailing

.

E Evidentiary Rulings 1. The Intr oduct ion of the Composite V ideo
The d efendant argues on appeal that the trial justice erred in allowing into evidence “ the composite videotape detailing the travels of the vehicles involved in the alleged chase scene on t he roads surrounding the Providenc e Sup erior Court on January 9, 2017

. ” The d efendant contends that “ [t]he individual videotapes that were secured by the Providence Police Department used to create the composit e- 40

-

video were never authenticated and no chain of custody was ever established f or th e introduction

. ” Cont rary to d efendant ’ s assertions, however, each of the individual video s, the composite video , and the “ PowerPoint presentation ” were authenticat ed and admitted as evidence with no objection having been interposed by defense counse l

. F or this reason, w e are satisfied that this issue has not been properly preserved for appellate review. See State v. McManus , 990 A.2d 1229, 1237 (R.I. 2010) ( “ Acco rding to our well settled raise or waive rule, if a n issue was not preserved by speci fic o bjection at trial, the n it may not be considered on appeal. ” ) ; see also State v. Kelly , 20 A.3d 655, 660 (R.I. 2011)

.

2. The Introduction of Rebuttal Testimony of C orrectional Officer Jon Defilippis
The d efendant co ntends that the trial justice erre d in failing to provide the jury with certain cautionary instruction s following the testimony of a witness who

was called upon to testify for the sole purpose of impeach ing the t estimony of Carlos Depina that he had never before seen defendant

. Specifical ly, d e fendant argues that, as a result of the testimony provided by Officer Defilippis, the jury became aware of d efendant ’ s status as an inmate at the ACI, which impacted his

r ight to a fair trial

. Although d efendant obj ected to the testimony of Officer Defil ippis, at no point did he request that a cautionary instruction be given to the jury following such testimony

. Since d efendant did not request a cautionary instruction o r object to the fact that the trial justice did not give such an instruction,- 41

-

thi s iss ue is not properly pre served for appellate review. See State v. Garcia , 743
A. 2 d 1038, 1053 (R.I. 2000).
I V Conclusion
For the reasons set forth in this opinion, we aff irm the judgment of the Superior Court. The rec ord may be returned to that tribun al.SU

- CMS

- 02 A (revised June 20 20 ) STATE OF RHODE ISLAND SUPREME COURT

– CLERK’S OFFICE L icht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET

Title of Case State v. Joseph Segrai n.
Case Number S U

- 2018

- 144

- C.A. (P1/17

- 123 6 AG) Date Opinion Filed June 2 4 , 2021

Justi ces Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ. Written By Associate Justice William P. Robinson III
Source of Appeal Provid ence County Superior Court

Judicial Officer from Lower Court Associate Justice Robert D. Kr a u se

Attorney(s) on Appeal For State:
Owen Murphy Department of Attorney General For Defendant: Christopher S. Gontarz, Esq.