State v. Gonzalez

136 A.3d 1131

STATE

v.Tony GONZALEZ.

No. 2013–289–C.A.

Supreme Court of Rhode Island.

March 29, 2016.

Virginia M. McGinn, Department of Attorney General, for State.

Lara E. Montecalvo, Office of the Public Defender, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON, for the Court.

The defendant, Tony Gonzalez, appeals from his conviction following a jury trial in Kent County Superior Court. The defendant was convicted of one count of murder in the first degree, in violation of G.L.1956 § 11–23–1 ; one count of assault with intent to commit murder, in violation of G.L.1956 § 11–5–1 ; one count of “discharg[ing] a firearm while committing a crime of violence, to wit, murder, resulting in the death of Carl Cunningham, Jr.,” in violation of G.L.1956 § 11–47–3.2 ; and one count of “discharg[ing] a firearm while committing a crime of violence, to wit, assault with intent to commit murder,” in violation of § 11–47–3.2. On appeal, Mr. Gonzalez contends that the trial justice erred in failing to grant his motion to suppress certain evidence that was obtained as a result of his warrantless arrest in his home. He specifically posits that “neither exigent circumstances nor consent justified the failure of [the] * * * police to obtain a warrant * * *.” Mr. Gonzalez also argues on appeal that the trial justice erred in failing to “remove two biased jurors” from the jury or, in the alternative, grant a mistrial.

For the reasons set forth in this opinion, we vacate the judgment of the Superior Court and remand the case for a new trial.

IFacts and Travel

On May 22, 2012, a Kent County grand jury indicted Mr. Gonzalez on the aforementioned four charges: one count of first-degree murder; one count of assault with an intent to commit murder; one count of discharging a firearm while committing a crime of violence, to wit, murder; and one count of discharging a firearm while committing a crime of violence, to wit, assault with an intent to commit murder. The charges against defendant arose out of a shooting which caused the death of Carl Cunningham, Jr. In order to provide some preliminary orientation with respect to the factual and legal matters that are addressed in the following pages, we begin by simply noting that it is undisputed that Mr. Cunningham was shot to death in January of 2012 in a home on Nausaucket Road in Warwick, Rhode Island, and that Patricia Dalomba and Matthew Chivers were also present in that home at the time of the shooting.¹ The police quickly had ample reason to suspect that defendant, Tony Gonzalez, was the person who had shot Mr. Cunningham.

Immediately preceding the start of defendant's jury trial, a hearing was held regarding defendant's motion to suppress. On appeal, he alleges that the following should have been suppressed: (1) his statement regarding the location of the gun which the police were asking him about during the course of his arrest; and (2) certain evidence derived from the search of his residence following his arrest.² We relate below, in pertinent part, what occurred at the motion to suppress hearing.

AThe Hearing on Defendant's Motion to Suppress

The basis of defendant's motion to suppress was his contention that his arrest was unlawful because the police did not have a warrant to enter his home and arrest him. The parties do not dispute the fact that the police did not have either an arrest warrant or a search warrant when they entered defendant's home and arrested him.

1. The Testimony of Detective Thomas Digregorio

Detective Thomas Digregorio testified that he was employed by the Warwick Police Department on the date in question. He stated that his involvement with the instant case began when he was “called in on the investigation” in the early morning hours of January 22, 2012. He further testified that, shortly after being called in, he and Det. Timothy Grant interviewed Matthew Chivers, who was present during the shooting of Carl Cunningham, Jr., which shooting had occurred around midnight. The following is the information which Det. Digregorio stated was provided by Mr. Chivers:

“He told us that he had been dating a woman who lives at that house where the homicide occurred name Patricia Dalomba; that he had been dating her approximately the past month, since December of 2011. He stated that about three days prior he had spoken with Patricia's ex-boyfriend on the phone. According to Mr. Chivers, Patricia was getting harassing phone calls and texts from her ex-boyfriend who's [sic ] name was Tony. He didn't know Tony's last name. He said that about three days prior to us speaking to him he talked to Tony on the phone after he, Tony had called Patricia, and he told Tony that in no uncertain terms to stop calling and texting her and harassing her. * * * The afternoon prior [to the murder], Mr. Chivers received a phone call from Tony Gonzalez stating that he was going to catch him sleeping, and he took that as a threat. * * * [H]e also stated that Tony * * * had come to the house to fight him at about midnight that night.”

Detective Digregorio went on to state that the investigation quickly revealed that Tony Gonzalez had entered Ms. Dalomba's house and fired several shots, striking Mr. Cunningham, who happened to be in the house along with Mr. Chivers and Ms. Dalomba. Mr. Cunningham was killed as a result of the shooting.

It was Det. Digregorio's testimony that he and Det. Grant “went to a couple of locations in Providence in order to try to locate the defendant because he was on the run at that point and [they] were afraid of destruction of evidence, but also [they] were afraid that given the fact that he was armed and dangerous, that he might be a threat to others * * *.” He proceeded to state that, when defendant was eventually located at his home in Providence, he and Det. Grant met up with Providence police officers and other detectives from the Warwick Police Department at Providence Police Substation 7, from which location the group of law enforcement officers all proceeded to defendant's apartment. Detective Digregorio then testified that, after defendant's arrest in his apartment, defendant's mother, Cira Gonzalez, gave written consent to a search of the apartment at 8:10 a.m. on January 22, 2012; he added that she was calm at the time she gave consent.

On cross-examination, Det. Digregorio was specifically asked why the police did not obtain an arrest warrant to arrest Mr. Gonzalez and he replied:

“We went to Mr. Gonzalez's house about seven hours after the murder had occurred. Being involved in several homicides and being the case agent on at least two of them, I know that things evolve quickly and everybody doesn't have full information * * *. In this case we had a homicide that occurred in the city of Warwick where there's a fugitive on the loose that's armed. We try to track that individual and ultimately did to prevent any further loss of life, including his. Sometimes people that murder take their own lives. We also try to prevent any destruction of evidence. All those things happen very quickly, and given the facts and circumstances I feel it was the right thing to do. There wasn't time. Time was of the essence at that point. * * * We were trying to track down Mr. Gonzalez to try and prevent a violent fugitive who was armed, who might be a danger to himself and others, and who might be trying to get rid of evidence. To sit down at a desk and type out a warrant at that point in time to me was a waste of resources, in my opinion.”

2. The Testimony of Detective Timothy Grant

Detective Timothy Grant was a detective in the Warwick Police Department on January 22, 2012. Detective Grant testified that, “shortly after one o'clock in the morning” on that date, he was “advised to come back to work to assist * * * in a homicide investigation.” According to his testimony, it had been shortly after midnight that the Warwick Police Department “got the call” about the homicide. Detective Grant then testified that, when he arrived at the station, he was told that a man named “Tony Gonzalez” had “shot and killed an individual named Carl Cunningham.” Detective Grant stated that, later that morning, he and Det. Digregorio were following some leads in Providence when they received a phone call from Detective Sergeant LeBlanc “indicating that the Defendant may be at his mother's address [ (where defendant was also living) ] in the Chad Brown housing complex” in Providence. According to Det. Grant, Det. Sgt. LeBlanc indicated that he had come by that information “through a controlled phone call with the Defendant's brother,” Juan Zachary Garcia.³

It was the further testimony of Det. Grant that he and Det. Digregorio arrived at Providence Police Substation 7 “shortly before 7:00 a.m.” on January 22. He added that they “waited for additional Warwick personnel to arrive * * * ” He next testified that Warwick and Providence officers subsequently “took a caravan”⁴ to 48 June Street, Apartment J in Providence—defendant's mother's apartment, where defendant was living; Det. Grant added that the officers set up a perimeter around the apartment.

It was subsequently Det. Grant's testimony that, before the police set up the perimeter, they had received information from defendant's brother that defendant “typically [slept] with a handgun under his pillow.” From Det. Grant's perspective, that fact created a “huge officer safety issue;” he added that the police had additional concerns about officer safety due to the nature of the crime that defendant was suspected of having committed. Moreover, Det. Grant stated that the police were concerned about the destruction of evidence, and he also said that they had been told, by the mother of Patricia Dalomba, that in the latter's conversations with defendant he had acknowledged that he owned a firearm, carried a firearm, and liked to shoot at the range.

Detective Grant's testimony then returned to the arrest of...