State v. Nigel Nichols

Supreme Court

No. 2015-238-C.A.
(P1/13-2586AG)
State :

v. :

Nigel Nichols. :

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.
 Supreme Court

No. 2015-238-C.A.
(P1/13-2586AG)
State :

v. :

Nigel Nichols. :

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

OPINION

Chief Justice Suttell, for the Court. On December 6, 2009, David Thomas, on

leave from the Army, and Domingo Ortiz, both of whom were twenty-two years old,

were mercilessly gunned down and killed in front of the Garrahy Judicial Complex in

Providence (Garrahy Complex) in a senseless act of depravity. A third victim, then

eighteen-year-old Dwayne Thomas, was shot seven times but survived with permanent

injuries. 1 The defendant, Nigel Nichols, was ultimately arrested, charged, and convicted

of these inexplicable crimes. He now appeals from the Superior Court judgment of

conviction of two counts of first-degree murder, one count of felony assault, and three

counts of discharging a firearm during a crime of violence. For the reasons set forth in

this opinion, we affirm the judgment of the Superior Court.

I

Facts and Procedural History

On December 5, 2009, David, Dwayne, and Ortiz planned for a night of “having a

good time[,] * * * [d]ancing” and “having fun” at Club Ultra in downtown Providence.

1
David Thomas and Dwayne Thomas were brothers. We refer to them by their first
names to avoid confusion.

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On this particular weekend, David was visiting home from his military base at Fort

Drum, New York; it was Dwayne’s first time attending a nightclub.

In the early morning hours of December 6, 2009, after an incident-free evening of

“dancing, meeting new friends and just having a good time,” the club closed, and the trio

proceeded directly to a parking lot to procure David’s car and return home to Boston. In

the car, David drove, Dwayne sat beside him in the passenger seat, and Ortiz sat behind

Dwayne in the rear passenger seat. After exiting the parking lot, David’s sedan continued

onto Dorrance Street, in the direction of Interstate 95 North’s entrance ramp, towards

Boston. At the corner of Clifford and Dorrance Streets—in front of the Garrahy

Complex—the vehicle came to a stop at a red light.

Dwayne testified that, while “waiting for the light to turn green,” he observed

David “texting one of his friends” and “the next thing [he] kn[e]w, all [he] hear[d] [was],

‘What the F[uck] you looking at?’’’ Attempting to “see what was going on,” Dwayne

arose to a fusillade of gunfire. He heard his brother “moaning * * * because he [was] in

so much pain” and then Dwayne “blacked out.” Dwayne further testified that when he

regained consciousness he had to muster “all [his] strength” to open the passenger door,

exit the vehicle, and yell to bystanders that his brother “got shot * * * [and] needs help,”

before collapsing on the ground. Twenty-two .40-caliber shell casings were subsequently

recovered from the crime scene, all of which were fired from a semiautomatic weapon.

Devon Boswell, who considered defendant to be his “best friend” and “brother,”

testified that on December 5, 2009, he, defendant, Kevin Innocent, and Kerron Phillip left

Boston and traveled to Providence to attend a nightclub. According to Boswell’s

testimony, both he and defendant left their homes with a firearm that night: Boswell

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carried a .45-caliber Taurus 911 and defendant a .40-caliber Glock 23 with a fifteen-

round magazine as well as an extended magazine, capable of holding thirty rounds of

ammunition, which they stowed behind the radio in Boswell’s vehicle.

Boswell said they arrived at Level 2 nightclub in Providence before midnight.

Boswell and defendant left their firearms in the vehicle before entering the club.

According to Boswell, they socialized in the club, hung out, consumed “a few drinks,”

and met some friends with whom he and defendant had attended high school. Boswell

testified that at some point during the evening he said to defendant, “Snag is crazier than

you,” referring to a March 2009 incident in Boston in which a Keron “Snag” Pierre shot

and killed “[t]wo girls [and] one boy,” all of whom were under the age of twenty-one.

This comment caused defendant to become very upset; he responded “Snag is a bitch. He

kills women and children.” According to Boswell, defendant was furious and “looking to

fight somebody right away.” Boswell stayed close to him to make sure “he didn’t do

anything or fight anybody.”

Approximately forty or forty-five minutes later, the club closed. As defendant

and his friends were descending the stairs to leave, they became involved in an

altercation with another club patron. Boswell testified that defendant “started swinging at

the guy,” and then the entire group “started to beat up on” him for about fifteen to twenty

seconds until security pushed them down the stairs. Eventually, the group returned to

Boswell’s vehicle and proceeded to drive home to Boston.

Shortly thereafter, while driving in Providence traffic, Boswell’s car was

sideswiped by an SUV. According to Boswell’s testimony, the SUV attempted to leave

the scene, so Boswell drove up and pulled in front of the SUV to secure it. Boswell said

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that he started fighting with the driver of the SUV, and defendant jumped on top of the

SUV and kicked in the windshield. After some time, Boswell, defendant, and the rest of

the party returned to Boswell’s vehicle and continued to drive to Boston.

Boswell testified that, before they reached Interstate 95 North, defendant received

a call and directed Boswell to stop, prompting Boswell to pull over in front of the

Garrahy Complex. There, two other vehicles arrived occupied by the acquaintances who

had met Boswell and defendant earlier at Level 2. Shortly thereafter, another vehicle

pulled up, driven by Kevin Innocent’s girlfriend, Rachel Regis. Boswell testified that

defendant was visibly upset when speaking to one of his friends on the sidewalk.

Boswell further testified that defendant went into Boswell’s car to retrieve his firearm.

Boswell testified that he “[saw] [defendant] * * * [p]ull the radio out, le[ave] the radio

hanging, [and] * * * grab[ ] his gun,” and “[take] the 15-round clip out and * * * grab[ ]

the extended magazine and put * * * the magazine in the gun.”

A vehicle then pulled in front of the Garrahy Complex and stopped at a red light.

Boswell testified that the vehicle was a four-door sedan with three male occupants, all of

whom appeared to be between the ages of eighteen and twenty-five. According to

Boswell, defendant then said, “[w]hat the fuck are you looking at?” as he stared at the

vehicle and opened fire.

Boswell testified that, after firing several shots, defendant “got into [his] car” and

everyone that had congregated in front of the Garrahy Complex entered their vehicles and

left. On their way back to Boston, according to Boswell, defendant “screamed out, ‘Body

number 8, left three of them slumped.’”

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 Providence Police Sgt. Robert Yekelchik, who at the time was a detective

assigned to the BCI division, was patrolling the area of Providence in the early morning

hours of December 6, 2009. At approximately 2:30 a.m., Sgt. Yekelchik responded to a

call indicating that there had been a shooting outside of the Garrahy Complex. Upon

arrival, Sgt. Yekelchik saw a sedan with two male victims inside. He testified that the

victims had apparently been shot and appeared to be deceased. Thereafter, the sergeant

secured the scene and collected the spent shell casings. Sergeant Yekelchik testified that

all of the shell casings “start[ed] from the passenger side of the vehicle and they appeared

to be ejecting towards the front of the vehicle”—indicating that the shooter was on the

passenger side of the vehicle because most semiautomatic weapons eject to the right

when fired. In total, Sgt. Yekelchik collected twenty-two casings, all of which were .40

caliber. The sergeant subsequently submitted the shell casings to the Rhode Island State

Crime Lab (crime lab) for analysis. At trial, Sgt. Yekelchik testified that the shell casings

were indicative of being from a semiautomatic firearm and that they also had a unique

rectangular mark on them.

Neil Clapperton, a criminalist employed by the crime lab, testified that the crime

lab received twenty-two shell casings and thirteen projectiles from the Providence police

in December 2009. In addition, Clapperton testified that he also received a .40-caliber

extended, high-capacity magazine from the Providence police department for analysis.

According to Clapperton, the extended magazine is capable of holding thirty cartridges

and was specifically designed for .40-caliber ammunition, but was also capable of

holding 9-millimeter ammunition. The criminalist’s goal was to determine whether the

extended magazine fit a Glock pistol and to analyze the markings the magazine left on

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the ammunition to determine whether the extended magazine created the rectangular

marks on the cartridges. Clapperton determined that the extended magazine fit a Glock

firearm “well,” but he stated that he could not conclusively determine that the shell

casings found at the crime scene had once been housed in that particular magazine.

Providence Police Det. Angelo A’Vant was assigned to investigate this case in

October 2011. He testified as to the difficulties he had in locating several key witnesses

in this case. Nonetheless, Det. A’Vant testified that he traveled to Boston to elicit

testimony from Kevin Innocent and his girlfriend, Rachel Regis. According to Det.

A’Vant, Regis stated that she saw defendant with a gun in his hand on the night of the

shooting. 2 Detective A’Vant testified that Regis then “pointed to [his] firearm and she

said, [i]t was a lot bigger than the one [Det. A’Vant] ha[d] on [his] side,” and she

continued pointing to the hand grip of the firearm and specifically indicated, using her

fingers, that that portion “was a lot larger.”

On February 18, 2015, a jury convicted defendant of two counts of first-degree

murder, one count of assault with a dangerous weapon, and three counts of discharging a

firearm during a crime of violence resulting in injury or death. The defendant filed a

motion for a new trial, which was denied. The trial justice then sentenced defendant to

the maximum allowable prison term—four consecutive life sentences, followed by two

consecutive twenty-year sentences. 3 The defendant timely appealed.

2
At trial, Regis testified that she did not remember seeing defendant with a firearm on
the night of the shooting.
3
The defendant was sentenced to two consecutive life terms under G.L. 1956 § 11-23-1,
murder; in addition to two consecutive life sentences under G.L. 1956 § 11-47-3.2(b)(3),
discharging a firearm when committing a crime of violence; and two terms of twenty
years, also consecutive, under G.L. 1956 § 11-5-2(a), felony assault, and § 11-47-3.2(b),
for discharging a firearm when committing a crime of violence.

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 II

Standard of Review

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

“within the sound discretion of the trial justice, and this Court will not interfere with the

trial justice’s decision unless a clear abuse of that discretion is apparent.” State v.

Mohapatra, 880 A.2d 802, 805 (R.I. 2005) (quoting State v. Grayhurst, 852 A.2d 491,

504 (R.I. 2004)). “The trial justice will not have abused his or her discretion as long as

some grounds supporting his or her decision appear on the record.” State v. Evans, 742

A.2d 715, 719 (R.I. 1999).

III

Discussion

A

Admission of the High-Capacity Magazine

On appeal, defendant contends that the trial justice erred as a matter of law in

admitting into evidence the extended, high-capacity magazine based on the expert

testimony of Clapperton. The magazine in question was seized from defendant’s home

by Det. Gregory Brown of the Boston police department, pursuant to a search warrant

executed on October 19, 2011—nearly two years after the shootings. Before the

commencement of trial, defendant filed a motion in limine seeking to exclude the

magazine from the evidence because it “ha[d] no arguable relevance to any issue in the

case.” The trial justice denied the motion.

At trial, Clapperton testified that the magazine seized from defendant’s home was

capable of holding thirty .40-caliber cartridges. He was unable to state with certainty,

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however, that the twenty-two shell casings found at the crime scene had come from that

particular magazine; the results of his examination, rather, were inconclusive.

On appeal, defendant argues that the trial justice erred in admitting the high-

capacity magazine and Clapperton’s expert testimony related thereto. He asserts that

Clapperton could not establish within a reasonable degree of scientific certainty that the

magazine seized by the Boston police was linked to the Providence homicides, nor were

his test results probative as to whether the magazine was in fact used in the murders.

Thus, defendant posits, the jury was allowed to speculate as to whether the magazine was

connected to the crimes for which he was being tried.

The fact that the state was unable to establish conclusively that the magazine

seized from defendant’s home was the same magazine used in the shootings, or that the

spent shell casings were ejected therefrom, however, does not preclude its admission into

evidence. Such considerations may properly be evaluated by the trier of fact in

determining the weight to be given to the evidence, but they do not affect its

admissibility. See State v. Rios, 996 A.2d 635, 640 (R.I. 2010) (“evidence was relevant

despite [witness]’s inability to say definitively that the handgun he had seen [the]

defendant carry was the same as the * * * firearm he described as the murder weapon”);

State v. Reyes, 984 A.2d 606, 615, 616 (R.I. 2009) (affirming trial justice’s ruling that

“probability exists” that handgun found near crime scene and shell casings found at crime

scene were used to murder [the] victim when a firearms expert testified that, “although he

could not say with certainty that the * * * handgun fired the bullets that caused [the

victim]’s death, the bullets were consistent with and could have been fired from that

weapon”).

-8-
 In the instant case, the twenty-two .40-caliber shell casings found at the scene and

the manner in which the witnesses described the shooting, were consistent with the use of

an extended, high-capacity magazine. Significantly, Boswell testified that defendant had

stashed two .40-caliber Glock handgun magazines, one capable of holding thirty rounds

of ammunition, in Boswell’s car that evening. Boswell had also observed defendant

retrieve the gun, remove the fifteen-round clip and replace it with the extended magazine.

Boswell further testified that defendant later told him that he had “buried” the Glock

because “[i]t had so many bodies on it.” He also testified that defendant said that he

would never get rid of the extended magazine because “[t]hose were hard to come by.”

In denying defendant’s motion in limine, the trial justice said that he thought

“there [was] a clear nexus to that which [was] found in * * * defendant’s apartment, even

though it[ ] [was] a couple, three years down the road.” The trial justice also noted that

“[i]f he ha[d] a fondness and a liking for this particular magazine, and * * * it’s a type of

magazine that would have held as many shots as were fired during the course of the

shooting in 2009, [he thought] it[ ] [was] clearly admissible.” The trial justice also found

that its probative value outweighed any prejudice to defendant.

Based upon our review of the record, we are of the opinion that the trial justice

was acting well within his discretionary authority when he admitted the evidence. Here,

the jury was capable of sifting through the evidence that defendant was in possession of a

high-capacity magazine, that he was seen inserting it into his .40-caliber Glock just prior

to the shooting, and that the number of shell casings found at the crime scene were

consistent with the use of such a magazine. The jury was then entitled to weigh the

evidence against the state’s inability to establish that the magazine seized from

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defendant’s apartment two years later was in fact the same magazine used to murder

David Thomas and Domingo Ortiz and grievously injure Dwayne Thomas. Accordingly,

we perceive no error in the trial justice’s evidentiary ruling.

B

Rule 16 Violations

Next, defendant argues that the trial justice violated Rule 16 of the Superior Court

Rules of Criminal Procedure when he admitted certain testimony of Boswell, Det.

A’Vant, and Clapperton.

“Rule 16 governs discovery procedures in criminal trials.” State v. Santiago, 81

A.3d 1136, 1140 (R.I. 2014). “The overarching purpose of Rule 16 is ‘to ensure that

criminal trials are fundamentally fair.’” Santiago, 81 A.3d at 1140 (quoting State v.

Briggs, 886 A.2d 735, 754 (R.I. 2005)). “The rule strives to avoid surprise at trial.” Id.

“It includes a requirement that ‘[w]hen a criminal defendant requests discovery material

concerning witnesses the state may call to testify at trial, Rule 16 obligates the state to

produce only prior recorded statements of a witness, a summary of the witness’s expected

trial testimony, and any records of prior convictions.’” Santiago, 81 A.3d at 1140

(quoting Briggs, 886 A.2d at 754).

“Significantly, Rule 16 also imposes a continuing duty to disclose.” Santiago, 81

A.3d at 1140. “This duty requires a party, having previously complied with requests for

discovery, to ‘promptly notify the other party of the existence’ of ‘additional material

previously requested which is subject to discovery or inspection under this rule[.]’” Id.

(quoting Rule 16(h)). “The rule permits a trial justice to prohibit witnesses from

testifying if their identities or their statements were not disclosed to the requesting party.”

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Id. (quoting State v. Ricci, 639 A.2d 64, 68 (R.I. 1994)). Accordingly, “[t]he

appropriateness of a sanction under Rule 16 can be determined only after the trial justice

has considered (as must this Court on review) the following factors: ‘(1) the reason for

nondisclosure, (2) the extent of prejudice to the opposing party, (3) the feasibility of

rectifying that prejudice by a continuance, and (4) any other relevant factors.’” State v.

Perez, 882 A.2d 574, 585 (R.I. 2005) (quoting State v. Coelho, 454 A.2d 241, 245 (R.I.

1982)).

“It is well established that, when this Court reviews questions regarding claimed

Rule 16 discovery violations, ‘the applicable standard is narrow: [T]he trial justice must

have committed clear error.’” Santiago, 81 A.3d at 1139 (quoting Briggs, 886 A.2d at

755). “The trial justice is in the best position to determine whether any harm resulted

from alleged noncompliance with discovery motions and whether the harm can be

mitigated.” Id. (quoting State v. Boucher, 542 A.2d 236, 241 (R.I. 1988)). “Therefore,

‘[w]e accord great deference to the trial justice’s decision regarding whether a violation

of Rule 16 occurred.’” Id. at 1139-40 (quoting State v. Marmolejos, 990 A.2d 848, 852

(R.I. 2010)). “The discovery ruling of a trial justice ‘will not be overturned absent a clear

abuse of discretion.’” Id. at 1140 (quoting State v. Farley, 962 A.2d 748, 753 (R.I.

2009)).

1. Devon Boswell

In particular, defendant takes issue with the trial justice’s admission of Boswell’s

testimony that he saw defendant take the pistol out from behind the radio console in

Boswell’s car, remove the magazine from the firearm, and insert the extended magazine

because such testimony was “neither disclosed by the [s]tate in discovery, nor per its

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continuing duty.” 4 Conversely, the state asserts that defendant is not entitled to a new

trial because he fails to aver how the alleged discovery violations were intentional and

how the “alleged violations contributed to his conviction.”

Our review of the record reveals no reason to disturb the trial justice’s rulings.

After defendant’s objection to Boswell’s testimony that defendant took one clip out of the

gun and put the extended magazine in, the trial justice explained that, “as [he] recall[ed],

the discovery indicate[d] that he used the extended magazine when he was doing the

shooting.” Upon defendant clarifying his objection to “new testimony that one

[magazine] was in the gun and one wasn’t,” the trial justice indicated that, if the extended

magazine was used in the shooting, it was “not terribly novel, new or surprising that one

[magazine] was substituted for the other,” and determined that it was not a “prejudicial[ ]

surprise” or could even be “character[ized] as [a] surprise.” We have long recognized

that a “trial justice is in the best position to determine whether any harm result[s] from

[an] alleged noncompliance with [a] discovery motion * * *.” Santiago, 81 A.3d at 1139

(quoting Boucher, 542 A.2d at 241). Here, we perceive no abuse of the trial justice’s

discretion in admitting Boswell’s testimony.

2. Detective Angelo A’Vant

Next, defendant argues that Det. A’Vant’s testimony regarding Regis’s

description of defendant’s weapon, viz., that Regis pointed to the hand grip of the

4
The defendant also contends, without much discussion, that Boswell’s testimony, that
defendant “screamed out ‘Body number 8, left three of them slumped’” on their way back
to Boston, was not disclosed to him before trial by the state. What had been disclosed to
the defense, in a report from Det. A’Vant, however, was that defendant had made a
similar statement to Boswell “shortly after the shooting.” At trial, defendant argued that
the disclosure did not place the statement in its proper context, i.e., that it was said in the
car on their way back to Boston. The term “shortly,” he argued, could mean days or it
could mean weeks. We perceive no merit to defendant’s contentions.

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detective’s weapon and indicated that the grip of defendant’s firearm was longer, was not

disclosed to defendant under Rule 16.

We conclude, however, that the trial justice’s ruling was supported by the

evidence and that he conducted an appropriate analysis under Rule 16. At sidebar,

defendant indicated that Det. A’Vant’s testimony was going “to elaborate on [the

firearm’s] description beyond what[ ] [was] in the report.” The trial justice concluded

that the testimony was “not new evidence” because “[t]here [was] other evidence that

was given in discovery about the size of the gun and the magazine” and that Regis’s

description of the firearm was “in the report * * * offered in the interview of February

3rd, 2015.” The trial justice then supported his decision by stating that “[t]here was a

reference to [Regis] having seen the gun and asking her to describe it, and * * * she was

much more specific when she spoke to [Det.] A’Vant, and I will permit him to testify to

it.” Again, we perceive no error in the trial justice’s ruling.

3. Criminalist Neil Clapperton

Finally, defendant avers that the trial justice improperly allowed Clapperton’s

testimony concerning the rectangular markings on the shell casings and the extended

magazine’s compatibility with both 9-millimeter and .40-caliber ammunition because the

report submitted by Clapperton in discovery did not include these items. As a result,

defendant maintains that he was caught by “surprise” at trial. The state contends that

defendant was aware of this testimony because Clapperton’s report did in fact include

that 9-millimeter ammunition could be loaded into the extended magazine and,

furthermore, that, although the report was silent on the markings on the spent shell

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casings, the jury had already heard testimony from Clapperton regarding this without

objection from defense counsel.

At trial, defendant’s objection to the testimony of Clapperton was entertained at a

lengthy sidebar. The state read from Clapperton’s report that “[t]he extended magazine

from item 39 was used to load four laboratory cartridges of caliber [9]-millimeter.” The

defendant argued that he had no way of knowing from the report which of the three

magazines that had been sent to the crime lab for inspection was tested with 9-millimeter

cartridges. In overruling defendant’s objection, the trial justice noted that “it’s this

particular clip that the [s]tate [h]as always targeted as being the relevant clip” and that the

testing by Clapperton with 9-millimeter cartridges was in the report. We cannot say that

the trial justice abused his discretion in allowing Clapperton’s testimony. Moreover, on

appeal, defendant fails to show how he was prejudiced thereby.

C

Batson Peremptory Challenge

During jury selection, the state used its peremptory challenges to strike several

potential jurors, including Juror No. 110. The defendant, who identifies as African-

American, immediately objected to the state striking Juror No. 110, who defendant

claims was Hispanic. 5 The trial justice indicated that he “tend[ed] not to agree with

[defendant]”and that, in his opinion, there were not any Batson issues whatsoever, but he

nonetheless asked the state to proffer its race-neutral reasons for the strike. See Batson v.

Kentucky, 476 U.S. 79, 96 (1986).

5
The record is not clear whether Juror No. 110 is in fact Hispanic. Before the jury was
impaneled, the trial justice indicated that he did not know whether Juror No. 110 was
Hispanic and that “[h]e very well might be Italian with that name.”

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 In response to the trial justice’s inquiry, the state offered two purportedly race-

neutral explanations for challenging Juror No. 110. First, the state was concerned that

Juror No. 110 had some knowledge of the legal system because he had “two friends in

[the Attorney General’s] [O]ffice, as well as in the criminal defense [bar],” and he had

asked a question during voir dire concerning circumstantial and direct evidence. Second,

the state alleged that Juror No. 110 “appear[ed] to be a leader on the jury” and therefore

might influence other jurors.

The trial justice then permitted defendant to challenge the state’s reasons. The

defendant countered that there were other potential jurors “who ha[d] all the

characteristics that [the state] described” and that there had been instances where other

potential jurors “asked questions about [the] law” and knew defense attorneys and people

in the Attorney General’s Office. In closing, defendant proclaimed that the reasons for

challenging Juror No. 110 were “individually and collectively * * * pretextual” and that

“the real reason for the challenge” was that Juror No. 110 was “a minority.”

After hearing the parties’ arguments, the trial justice allowed the state’s

peremptory challenge, indicating to defendant that:

“I don’t join your concerns as to whether this is a juror who
invites a Batson discussion at all, and even if it did invite
Batson, I’m satisfied that the reasons offered by [the state]
are credible, sensible and not at all pretextual for striking
him.”

The defendant argues that the trial justice erred in dismissing the juror pursuant to

the state’s peremptory challenge, which defendant contends was in violation of the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution.

Particularly, defendant contends that the real reason for the prosecution’s challenge was

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the juror’s race and was thus “pretextual in nature, and not race-neutral.” Conversely, the

prosecution avers that the trial justice was not clearly wrong in accepting the

prosecution’s race-neutral reasons for using a peremptory challenge to strike the potential

juror.

The Equal Protection Clause of the Fourteenth Amendment “guarantees the

defendant that the [s]tate will not exclude members of his [or her] race from the jury

venire on account of race[.]” State v. Pona, 66 A.3d 454, 472 (R.I. 2013) (Pona II)

(quoting State v. Pona, 926 A.2d 592, 601 (R.I. 2007) (Pona I)). “To determine whether

a defendant has been deprived of this guarantee by the state’s use of a peremptory

challenge, we employ Batson’s familiar tripartite test.” Id. “First, the defendant must

‘establish a prima facie case of purposeful discrimination[.]’” Id. (quoting Pona I, 926

A.2d at 601). “Upon such a showing, the burden shifts to the prosecution to articulate its

race-neutral reason(s) for challenging that particular juror.” Id. (quoting State v. Price,

706 A.2d 929, 935 (R.I. 1998)). “Finally, ‘[t]he trial court is then left to determine

whether the defendant has carried his or her burden of proving purposeful racial

discrimination.’” Id. (quoting Price, 706 A.2d at 935).

Accordingly, “[t]he trial justice’s evaluation of the prosecutor’s state of mind is

accorded great deference.” Pona II, 66 A.3d at 472 (quoting Price, 706 A.2d at 935).

“Thus, the ‘ruling on the issue of discriminatory intent must be sustained unless it is

clearly erroneous.’” State v. Gallop, 89 A.3d 795, 804 (R.I. 2014) (quoting Pona II, 66

A.3d at 472).

Based upon our review of the record, we are satisfied that the trial justice’s

decision regarding the peremptory challenge to Juror No. 110 was not clearly erroneous

- 16 -
and was supported by the record. In this case, we will assume that Batson’s first prong is

met because, upon defendant’s peremptory objection, the trial justice required the state to

offer its race-neutral reasons for the strike. See Pona I, 926 A.2d at 607 (“Although the

trial justice did not state explicitly whether [the] defendant made a prima facie showing

of purposeful discrimination * * * ‘the preliminary issue of whether * * * [the] defendant

had made a prima facie showing [became] moot’”) (quoting State v. Austin, 642 A.2d

673, 678 (R.I. 1994)). Further, the record is clear as to the state’s race-neutral reasons

proffered at trial, which satisfies the second prong. Therefore, the issue before this Court

is whether the state’s proffered reasons were pretextual in nature.

Here, defendant has offered no evidence to disturb the trial justice’s evaluation of

the prosecutor’s stated reason for striking the juror, other than claiming that Juror No.

110’s last name was perhaps Hispanic and that other potential jurors had similar

friendships with lawyers in the bar. The trial justice, however, was satisfied with the

state’s presentation and reasonably determined that the challenges were “credible,

sensible and not at all pretextual.” We cannot say that the trial justice erred in so finding.

D

Motion for New Trial

Lastly, defendant avers that the trial justice incorrectly determined that the

testimony supported a conviction of first-degree murder because the prosecution’s case

relied primarily on the testimony of Boswell, whose testimony defendant described as

“quite unworthy of belief” due to his lack of candor to the court. Additionally, defendant

argues that the testimony of Michael James, Kevin Innocent, and Rachel Regis, whom the

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prosecution also relied upon, were also unworthy of belief because of the witnesses’

reluctance to testify and similar lack of candor to the tribunal.

“When considering whether or not to grant or deny a motion for a new trial, ‘the

trial justice acts as a thirteenth juror.’” State v. Texieira, 944 A.2d 132, 140 (R.I. 2008)

(quoting State v. Imbruglia, 913 A.2d 1022, 1028 (R.I. 2007)). “In dealing with a motion

for a new trial, ‘the trial justice must (1) consider the evidence in light of the jury charge,

(2) independently assess the credibility of the witnesses and the weight of the evidence,

and then (3) determine whether he or she would have reached a result different from that

reached by the jury.’” Id. (quoting State v. Morales, 895 A.2d 114, 121 (R.I. 2006)). “If

the trial justice concludes that reasonable minds could differ as to the result or if the trial

justice reaches the same conclusion as the jury did, the verdict should be affirmed and the

motion for a new trial denied.” Id. “If the trial justice does not agree with the jury’s

verdict, ‘the trial justice must * * * determine whether the verdict is against the fair

preponderance of the evidence and fails to do substantial justice.’” Id. (quoting State v.

Banach, 648 A.2d 1363, 1367 n.1 (R.I. 1994)).

“On review, we accord great weight to a trial justice’s ruling on a motion for a

new trial if he or she has articulated sufficient reasoning in support of the ruling.”

Texieira, 944 A.2d at 140-41. “This Court will not overturn a trial justice’s

determination with regard to such a motion unless we determine that the trial justice

committed clear error or that he or she ‘overlooked or misconceived material and relevant

evidence [relating] to a critical issue in the case.’” Id. at 141 (quoting State v. Bolduc,

822 A.2d 184, 187 (R.I. 2003)). “We employ this deferential standard of review with

respect to a motion for a new trial because a trial justice, being present during all phases

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of the trial, is in an especially good position to evaluate the facts and to judge the

credibility of the witnesses.” Id.

Here, the trial justice determined that there was sufficient evidence supporting

defendant’s convictions. The trial justice independently considered the evidence

proffered against defendant and determined that the state’s key witnesses were Boswell

and Regis. The trial justice then distilled the issue surrounding their testimony as one of

credibility. The trial justice then focused on Boswell’s testimony: Boswell testified that

he saw his “very good friend” nearly empty an extended magazine into a car and leave

two dead and one seriously injured, and that defendant had stated on their ride back to

Boston “that he left three of them slumped,” which, the trial justice noted, was “precisely

how the two [deceased victims] appeared.” The trial justice continued by indicating that

Boswell was “severely cross-examined” by defendant with respect to his prior

inconsistent statements and the cooperation agreement made in connection with his

testimony. The trial justice then determined that “[i]t [was] plain that the jury accepted *

* * Boswell’s incriminating testimony, warts and all” and noted that, frankly, he, too,

“found [Boswell’s] trial testimony compelling.”

The trial justice then directed his attention to Regis’s testimony. He indicated that

“after several starts and stops and, obviously, false professed lapses of memory, [Regis]

eventually conceded that she had told the police early on that she saw [defendant] with

the gun in his hand.” The trial justice then determined that the jury must have decided

that Regis’s “professed amnesia” was not real and that “her prior statements to the police

and the Grand Jury, * * * when pieced together, reflected her actual and true full

recollection of the events.”

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 In dismissing the motion for a new trial, the trial justice indicated that he was

“satisfied that th[e] jury properly adjudicated the case and did justice to the evidence

which was presented.” We conclude that the trial justice articulated sufficient reasoning

and did not overlook or misconceive any critical issue relating to the testimony proffered

by the state when he found that there was sufficient evidence to support a conviction of

first-degree murder.

IV

Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court. The

record of this case shall be returned to the Superior Court.

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Title of Case State v. Nigel Nichols.
SU-15-0238-C.A.
Case Number
(P1/13-2586AG)
Date Opinion Filed March 24, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer From Lower Court Associate Justice Robert D. Krause
For State:

Aaron L. Weisman
Department of Attorney General
Attorney(s) on Appeal
For Defendant:

Michael S. Pezzulo, Esq.

SU-CMS-02A (revised June 2016)