State v. Richard Baribault

March 31, 2021

Supreme Court

No. 2019-59-C.A.
(K1/16-69B)

State :

v. :

Richard Baribault. :

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
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typographical or other formal errors in order that corrections may be
made before the opinion is published.
 Supreme Court

No. 2019-59-C.A.
(K1/16-69B)

State :

v. :

Richard Baribault. :

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

OPINION

Justice Flaherty, for the Court. The defendant, Richard Baribault, appeals

from his conviction following a jury trial in Kent County Superior Court for second-

degree murder, receiving stolen goods, conspiracy, operating a vehicle on a

suspended license, and carrying a knife greater than three inches in length. For those

offenses, the defendant was sentenced to life imprisonment at the Adult Correctional

Institutions for the murder, a consecutive ten-year sentence for the conspiracy, and

suspended one-year sentences for each of the three remaining convictions, with

probation.

On appeal, defendant argues that (1) the trial justice erred by failing to

suppress the fruits of a police interrogation, urging that the interrogation violated

Rule 5(a) of the Superior Court Rules of Criminal Procedure and the Fourth

Amendment to the United States Constitution; (2) the trial justice abused his

-1-
discretion by declining to redact certain statements that defendant had made outside

the presence of his interrogators that were overly prejudicial and that were shown to

the jury; (3) defendant was denied medication during his extensive detention and

interrogation in violation of his Fifth Amendment rights; and (4) the trial justice

abused his discretion by failing to suppress a witness’s out-of-court identification.

For the reasons set forth herein, we affirm the judgment of the Superior Court.

I

Facts and Travel

This case involves the brutal beating and murder of Fernando Silva, a seventy-

year-old man who was found dead aboard his sailboat. Following an investigation

by the Warwick police, defendant was arrested and, on January 27, 2016, a Kent

County grand jury indicted defendant for the murder, in violation of G.L. 1956 § 11-

23-1; defendant was also indicted for conspiracy to commit robbery, receiving stolen

goods, driving with a suspended license, and possession of a knife greater than three

inches in length, in violation of G.L. 1956 § 11-1-6; G.L. 1956 §§ 11-41-2 and 11-

41-5; G.L. 1956 § 31-11-18; and G.L. 1956 § 11-47-42, respectively.

A

The Investigation and Arrest

On August 4, 2015, while he was on routine patrol, the City of Warwick’s

Chief Harbormaster, Jeffrey Baris, came upon a twenty-six-foot sailboat that was

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“dragging the anchor” at the northern end of Warwick Cove. The older, yellow-

hulled sailboat was named “Star Capella.” Mr. Baris boarded the Star Capella.

After taking notice of its disheveled state, and, believing that nobody was aboard,

Mr. Baris towed the Star Capella and then secured it to a vacant mooring in the south

end of the cove.

Eleven days later, on August 15, Mr. Baris attempted to make a visual check

of the Star Capella to ensure that it remained properly moored. Mr. Baris became

aware of a foul odor as he approached the vessel. By the time he boarded the boat,

he found the odor to be overpowering. While aboard, Mr. Baris observed significant

insect activity. Investigating, he used a bore, which he described as a pole with a

hook at one end, to lift objects inside the cabin. After using the bore to displace a

piece of plywood, a foam mattress, and a blanket, Mr. Baris discovered what he

believed to be human feet, covered by flies and maggots and in an advanced stage

of decomposition. Mr. Baris immediately contacted law enforcement.

The Warwick Police Department quickly determined that the body that had

been found aboard the Star Capella was that of Fernando Silva, who was known in

the community as “Captain Freddy.” Captain Freddy owned and lived on the Star

Capella. The police received a tip that the vessel previously had been docked at the

Warwick Cove Marina but, after speaking with the owner of that marina,

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investigators learned that the sailboat actually had been docked at a private dock that

had been rented by Stephen Emerson, a local quahogger.

The police spoke with Mr. Emerson on August 18, 2015. Mr. Emerson, who

lived at property abutting the dock, told police that he had observed two white men

attempting to start the Star Capella’s engine. He also led the officers to Donald

“Ducky” Waterman in an effort to assist in identifying the two men. The next day,

while trying to locate Ducky, police instead encountered his brother, Charles

“Chucky” Waterman. Chucky told police that, a couple of weeks prior, Troy

Gunderway had tried to assist Captain Freddy in acquiring a new engine for his boat.

Chucky led police to Ducky and, in turn, to Mr. Gunderway, who was living

sometimes in a tent in Ducky’s backyard and sometimes at the home of Ducky’s

father. Mr. Gunderway admitted to police that he had done work on the Star Capella

and said that he had been assisted by defendant, who drove a red pickup truck.

The police determined where defendant lived after speaking with Mr.

Gunderway. The same day, the police traveled to that location in search of a pickup

truck that matched the description given by Mr. Gunderway. The police discovered

a maroon pickup truck outside defendant’s residence and “ran” the license plate

affixed to the vehicle. After doing so, the officers learned that the license plate had

been reported stolen. The police also conducted a “driving abstract” on defendant

and learned that his driver’s license had been suspended. After staking out that

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location for several hours, the police observed defendant leaving the residence. At

that time, they identified him through photographic records of the Department of

Motor Vehicles.

The police arrested defendant after they observed him entering and operating

the truck. The defendant was charged with three misdemeanors at that time:

Possession of stolen license plates, driving on a suspended license, and possessing a

knife greater than three inches in length, which was discovered on his person during

the course of a search incident to his arrest.1 After his arrest, and before he was

arraigned the following afternoon, defendant was held in custody and was

interrogated by the police on three separate occasions. While he was in police

custody, defendant made a number of contradictory and incriminating statements,

which ultimately led to his being charged with the murder of Captain Freddy.

B

The Trial

The defendant stood trial by jury in Kent County Superior Court, which

commenced on June 14, 2017. The trial continued over a two-week period and

resulted in voluminous testimony and evidence. The following is a summation of

1
The knife was stained with a “reddish brown substance” that was later determined
to be blood that came from the body of Captain Freddy.

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the testimony and evidence produced during defendant’s trial that is relevant to this

appeal.

1

Testimony of Stephen Emerson

Mr. Emerson testified that, on July 31, 2015, he discovered that the Star

Capella was docked at the private dock at the end of his property, a dock of which

Mr. Emerson claimed to be “in charge[.]” Mr. Emerson confronted Captain Freddy,

who explained that he was docked in that spot with the permission of Mr. Emerson’s

landlord, through his friend, Donald Waterman. Mr. Emerson did not work the

following morning. He testified, however, that, accustomed to his typical

quahogging schedule, he was awake early in the morning, “about sun up[,]” when

he noticed two individuals crossing through his yard carrying a cooler and gasoline

container. Mr. Emerson identified one of those men as defendant.

Mr. Emerson further testified that he confronted the two individuals that

morning about cutting through his yard. Both appeared nervous, he recounted, and

one responded, “We are moving Freddy’s boat up to Conimicut. He’s getting high

with a woman and he asked us to move the boat.” Mr. Emerson said that he saw the

individuals go to the boat, begin moving things around, and attempt to start the

engine. After about an hour, he testified, Mr. Emerson went down to the boat and

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offered his assistance to the individuals. Shortly thereafter, the two individuals left

so that they could return with another engine.

Mr. Emerson recalled that one of the individuals, the one who was not

defendant, was “in and out” of Mr. Emerson’s backyard that day many times,

returning to the boat in an effort to start the engine. Mr. Emerson testified that, at

one point in the early afternoon, he observed defendant sitting in a red burgundy

truck, parked on the side of his house, at the same time the other individual worked

on the boat. Eventually, Mr. Emerson recounted, the individual who was not

defendant began moving the boat but, after experiencing engine trouble, the boat

“turned around and it was bouncing off other boats[.]”

Mr. Emerson testified that, at some point, he went to Boston with his

girlfriend. When he returned on August 4, 2015, he noticed that the vessel was no

longer at the dock.

2

Testimony of Donald “Ducky” Waterman2

Ducky Waterman, a commercial shell-fisherman, testified that he first met

Captain Freddy in the summer of 2015. At that time, Captain Freddy had asked

Ducky for a ride because his bicycle had been stolen. The witness said that he and

2
This opinion will refer to Donald Waterman as “Ducky,” as he was referred to
during trial and to avoid confusion with his brother, Charles “Chucky” Waterman.

-7-
Captain Freddy became acquainted and that, from that point on, Captain Freddy

would call on Ducky from time to time when he was in need of transportation.

Ducky testified that he also helped Captain Freddy in securing dock space for his

sailboat by contacting Mr. Emerson’s landlord on Captain Freddy’s behalf.

Ducky further testified that Captain Freddy was “hooked on Keno,” a lottery

game. According to Ducky, Captain Freddy was “lucky[,]” “kept hitting[,]” and

“was always winning.” Ducky also recounted that Captain Freddy did not keep his

good fortune to himself. He testified that Captain Freddy would hand out money to

people who were standing outside the convenience stores whenever Captain Freddy

would “hit.” Ducky recounted that, in late July 2015, Captain Freddy informed him

that, in Portsmouth, “he won $800 on one [ticket] and a couple of hundred on

another. He hit like three times in one day.” Ducky recalled that, around that time,

Captain Freddy “hit” at another convenience store in Warwick, and Ducky estimated

that Captain Freddy won a couple of thousand dollars on that occasion. Around that

time, according to Ducky, Captain Freddy “was hitting three or four times a day.”

Ducky proceeded to describe Mr. Gunderway’s relationship with Captain

Freddy. Ducky recounted how he, from time to time, drove Mr. Gunderway around

when Mr. Gunderway needed a ride. On a couple of occasions, Ducky and Mr.

Gunderway drove to the convenience store when Captain Freddy was playing Keno.

Ducky testified that Mr. Gunderway knew that Captain Freddy had been successful

-8-
at playing Keno, and he told Ducky at some point that Captain Freddy “was a lucky

guy.” Ducky also said that, on another occasion, he tried to assist Captain Freddy

find a more powerful engine for his boat through an acquaintance of Mr. Gunderway,

and the three men had driven together to look at an engine.

3

Testimony of Troy Gunderway

Mr. Gunderway’s testimony was especially damning to defendant. He

testified that he had known defendant for several years, that he had worked with him,

and that, at various times, he had lived with him. From the witness stand, he relayed

the events surrounding the night of July 31, 2015, and the days that followed.

Mr. Gunderway testified that, on the evening of July 31, 2015, defendant

transported him to a meeting with Mr. Gunderway’s ex-girlfriend so that he could

make a child-support payment. The two men then went to the “Zebra strip joint[.]”

The witness said that the pair hung around the strip club for a while, purchased some

crack cocaine, and then traveled to the home of defendant’s friend. He said that they

consumed the crack cocaine en route. Mr. Gunderway testified that he and defendant

drank alcohol at the home of defendant’s friend until they exhausted their supply of

liquor. They then decided to head to Mr. Gunderway’s residence to see if there was

more alcohol there. Mr. Gunderway recounted that he and defendant encountered

Ducky after they arrived at Mr. Gunderway’s residence. Mr. Gunderway testified

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that Ducky was “bragging” about Captain Freddy’s winnings when Ducky jokingly

said, “Let’s roll him[,]” which Mr. Gunderway understood to mean “rob him.” Mr.

Gunderway said that he and defendant left shortly thereafter in defendant’s truck,

“looking for money to go hang out some more[.]” He said that defendant then

suggested that they attempt to “borrow” money from Captain Freddy, and with that

they drove to Captain Freddy’s sailboat.

Mr. Gunderway testified that he boarded the boat, walked down the stairs into

the cabin, and called out Captain Freddy’s name, but realized that he was sleeping.

Mr. Gunderway said that he was sitting at a table in the boat, deciding what to do

next, when defendant arrived. According to Mr. Gunderway, he informed defendant

that Captain Freddy was sleeping, to which defendant responded, “Well, I have no

money. I need money and f**k it. Let’s rob this dude.”

Mr. Gunderway testified that defendant then proceeded down the stairs and

awakened Captain Freddy. He said that Captain Freddy started screaming when

defendant, according to Mr. Gunderway, “just went and blasted him like five times

in the face * * * [f]ull punches to the face. Blood splurted on the walls, the curtains.”

Mr. Gunderway admitted to holding Captain Freddy down while defendant

threatened Captain Freddy with a knife, stomped on his legs, and demanded money.

Eventually, Mr. Gunderway recounted, the two left the boat, leaving Captain Freddy

still on the floor and “breathing real heavy[.]”

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 Mr. Gunderway testified that he and defendant returned to the boat the next

morning because Mr. Gunderway had lost his cell phone and thought that he might

have left it in the boat. He recalled that, upon arriving at the boat, he called out to

Captain Freddy, but there was no response. The witness then said that he went down

into the cabin and kicked Captain Freddy’s foot. But again, there was no response.

Mr. Gunderway testified that he returned to defendant’s truck and informed

defendant that Captain Freddy was dead. It was at that point, he recounted, that the

two agreed that they would cover up the crime scene.

Mr. Gunderway testified that, consistent with Mr. Emerson’s testimony, he

had returned to the boat on several occasions that day, all in a futile attempt to start

the engine. According to Mr. Gunderway, the plan hatched by him and defendant

was to dispose of the body before it began to decompose and give off the odor of

decaying flesh. Mr. Gunderway recalled that the pair planned to clean the boat, take

Captain Freddy’s body “out towards the sea[,]” and “throw the body over board and

sink it.” Mr. Gunderway testified that, to that end, he and defendant purchased

cleaning supplies and returned to the boat with a cooler that contained bleach, gloves,

a cinderblock, and rope. Mr. Gunderway then recounted his encounter with Mr.

Emerson and, consistent with Mr. Emerson’s testimony, explained his attempts

throughout the day to start the engine.

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 He testified that eventually, on August 4, 2015, he managed to start the Star

Capella’s engine. Mr. Gunderway said that he operated the boat out into the bay,

when he became aware of the presence of the harbormaster, and so he decided to

turn the other way. Mr. Gunderway testified that, after changing course, he motored

the boat to “[t]he end of the cove[,]” threw out the anchor, and rowed on the Star

Capella’s dinghy to shore, where defendant picked him up.3

4

Other Evidence Introduced at Trial

Other evidence admitted during the trial painted a vivid picture not only of

defendant’s involvement in the killing of Captain Freddy but also of his state of mind

between the time of the killing and his eventual arrest.

Video surveillance of the Warwick Cove Marina, along with Google location

history, revealed that defendant’s truck and cell phone were at the marina from

approximately 3:27 a.m. to 4:15 a.m. on August 1, 2015. 4 Other evidence included

3
Mr. Gunderway pled guilty to charges of second-degree murder and conspiracy to
commit robbery. He was sentenced to ten years to serve at the ACI for the
conspiracy charge and had not yet been sentenced for the murder charge at the time
of defendant’s trial.
4
Detective Jean Toussaint, who was assigned to the Warwick Police Department’s
computer forensics unit, testified that Google location history can provide an
individual’s location through an electronic device by way of cell tower proximity,
WiFi point proximity, and GPS. In this case, the police used Google location history
to pinpoint defendant’s location through the Google account associated with his cell
phone.

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Google voice searches made from defendant’s cell phone, in defendant’s own voice,

which were played to the jury and identified by Mr. Gunderway. Those searches

involved inquiries that included: “Does bleach kill everything including skin cells?”;

“Boat motor mechanic in Warwick, Rhode Island”; “What towns in Rhode Island

have garbage days—garbage pickup on Friday morning?”; and “Where would

Warwick harbormaster take a towed boat?”

C

The Verdict and Sentencing

The defendant was found guilty by a jury on all five counts with which he was

charged. He was sentenced to life imprisonment at the ACI for the murder of

Captain Freddy; a consecutive ten-year sentence for the conspiracy; and suspended

one-year sentences for each of the three misdemeanors, with probation, two being

concurrent to the other sentence and one consecutive.

Additional facts are set forth infra as necessary to discuss the issues before

the Court on appeal.

II

Issues on Appeal

Before this Court, defendant offers an array of arguments which, he contends,

should cause his convictions to be vacated. First, he asserts that the trial justice erred

by failing to suppress the fruits of his third interrogation by the Warwick Police

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Department, because the delay between his arrest and presentment to a judicial

officer exceeded that which is permissible under Rule 5(a) of the Superior Court

Rules of Criminal Procedure and the Fourth Amendment to the United States

Constitution. Next, he argues that the trial justice abused his discretion by failing to

redact certain recorded prejudicial statements made by defendant while he was in

the interrogation room, but outside the presence of his interrogators. Those video

recordings were later shown to the jury. Third, he contends that his detention by the

Warwick Police Department was extensive, and that he was denied prescription

medication during his detention, in violation of his Fifth Amendment rights. Lastly,

defendant maintains that the trial justice abused his discretion by failing to suppress

a witness’s out-of-court identification. We will address each of these arguments in

turn.

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 III

Discussion

A

The Interrogations5

1

Facts

The defendant argues that the trial justice erred by failing to suppress the fruits

of his third interrogation by the police because the delay between his arrest and

presentment to a judicial officer violated Rule 5(a) of the Superior Court Rules of

Criminal Procedure and the Fourth Amendment to the United States Constitution.

The defendant was arrested on misdemeanor charges on August 19, 2015, at

about 3 p.m. and he was “booked” at the police station at about 4:26 p.m. His first

interrogation began around 5:58 p.m., and the questioning continued for about four

hours. Although defendant had been arrested on three misdemeanor offenses, and

even though he was examined about the stolen plates in the interrogation room, there

is no question that defendant had captured the police’s interest with respect to the

killing of Captain Freddy and that, according to police, he “became more on [their]

5
The facts set forth in this section have been adduced from the testimony of
Detective Mark Canning and Detective Scott Robillard of the Warwick Police
Department along with the transcript of defendant’s interrogations. The jury and
this Court have also viewed the recorded interrogations.

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radar” and “a suspect slash witness” when they discovered what appeared to be blood

on the knife that had been seized from defendant’s person at the time he was arrested.

Accordingly, the conversation between the police and defendant soon turned to the

circumstances surrounding Captain Freddy’s death.

At some point during defendant’s first interrogation, Mr. Gunderway had

voluntarily reported to the police station and spoke with the police. From time to

time, one of defendant’s interrogators would leave defendant in the interrogation

room and speak with Mr. Gunderway. After speaking to the police for about sixty

minutes, Mr. Gunderway completely implicated himself in Captain Freddy’s death,

relating a story similar to his later testimony, set out supra, thereby also implicating

defendant. This afforded the police the opportunity to contemporaneously confront

defendant with any discrepancies between his and Mr. Gunderway’s versions of

what had transpired on the Star Capella on July 31, 2015, and August 1, 2015. The

defendant, after initially denying any involvement with Mr. Gunderway whatsoever,

began to shift his story and eventually provided the police with conflicting accounts

about what had happened on that night as well as during the days leading up to his

arrest. Although defendant never confessed or admitted culpability for Captain

Freddy’s murder, he did tell police that he was in his parked truck while Mr.

Gunderway performed work on the Star Capella’s engine on August 1, 2015, and

that he later drove Mr. Gunderway to the boat so that he could move it.

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 The defendant’s first interrogation concluded around 10 p.m., and his second

interrogation began a few hours later, around 1:20 a.m. on August 20, 2015, the next

day. Shortly after his second interrogation began, the police informed defendant that

they had spoken with Mr. Gunderway and that, “basically, in a nutshell, you guys

were looking for money and you both killed the guy.”6 The defendant, confronted

with both the fact of Mr. Gunderway’s cooperation and the officers’ suggestion that

surveillance cameras would reveal if defendant did, in fact, leave his vehicle that

night, began to amend his version of events. The defendant conceded, “All right. I

went down—listen. I didn’t go on the boat. I went down on the dock.” He contended

that he went on the dock as a lookout for Mr. Gunderway. However, aside from this

revelation, defendant continued to deny the officers’ factual suggestions for the

duration of the interrogation, which lasted for about an hour. The police terminated

the interrogation after defendant said that he was tired.

Later that morning, despite the fact that arrangements had been made to bring

defendant to the courthouse at 9 a.m. to be arraigned on the three misdemeanor

charges, defendant continued to be held at the police station. There, police elected

to interrogate defendant for a third time, beginning at 12:25 p.m.

6
Mr. Gunderway had given his statement to the police by approximately 11:30 p.m.
on August 19, 2015.

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 The police asked defendant at the start of the third interrogation, “Anything

come to your head last night?” The defendant responded, “Yeah, a lot. * * * About

the boat. * * * I remember a lot now, because I did a lot, a lot of f**king thinking.”

The video recording reveals that defendant then began to relate his version of events,

with little interruption by the police. This third time, however, defendant admitted

to going onto the boat, but he claimed that it was Mr. Gunderway who sought to,

and did, rob Captain Freddy, and that defendant “grabbed” Mr. Gunderway in an

effort to stop him, but Mr. Gunderway “kicked [him] in the n**s or almost in the

n**s.” The defendant continued to “remember” certain factual details that he had

not recollected the night before, such as the detail that Mr. Gunderway carried a

cooler to the Star Capella when they returned to the boat a few hours after their fatal

encounter with Captain Freddy. An investigating officer then informed defendant

that “[t]he only discrepancy between [his and Mr. Gunderway’s] stories at this point,

pretty much is who the aggressor was.” The defendant then terminated the

interrogation, and he was arraigned in the District Court on the three misdemeanor

charges later that afternoon.

It is clear from the recorded interrogation that, in each of the three

interrogations, defendant spoke to the police of his own volition about the death of

Captain Freddy. He waived his Miranda rights in writing before each interrogation;

and during the first interrogation he provided the police with written consent to

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search his cell phone, his truck, and his apartment.7 The defendant was given a

bathroom break during the first interrogation, a cigarette break after the start of the

second interrogation, and prescription medication during the third interrogation; and

he was provided with food and water on all three occasions. The defendant also

slept after the second interrogation. The police described defendant’s demeanor as

“very cooperative” during the interrogations and said that “[h]e appeared pretty

calm, friendly, [and] willing to talk.” Moreover, defendant repeatedly told the police

during the interrogations that he wanted to talk with them and that he was “trying to

help [them] out.”

Before trial, defendant moved in the Superior Court to suppress each of his

three interrogations and, consequently, the fruits of those interrogations. In his

motion, he asserted that the Warwick police failed to present him to a judicial officer

without unnecessary delay, in violation of Rule 5(a) of the Superior Court Rules of

Criminal Procedure. A hearing on that motion was held on June 12, 2017. After

hearing the testimony of Detective Mark Canning, one of defendant’s interrogators,

and, importantly, from defendant himself, who testified that he voluntarily spoke to

the police during the third interrogation because he desired to tell his side of the story

and clear his name, the trial justice denied defendant’s motion.

7
Miranda v. Arizona, 384 U.S. 436 (1966).

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 In reaching his decision, the trial justice found that there was no “causative

effect” resulting from any delay between defendant’s arrest and any statement or

consent given by defendant. On appeal, defendant contests only the trial justice’s

conclusions with respect to the third interrogation.

2

Standard of Review

“This Court’s review of a trial justice’s ruling with respect to a motion to

suppress a statement which a defendant has alleged was made involuntarily requires

‘a two-step analysis.’” State v. Barros, 24 A.3d 1158, 1179 (R.I. 2011) (quoting State

v. Taoussi, 973 A.2d 1142, 1146 (R.I. 2009)). “In the first step, we review the trial

justice’s findings of historical fact relative to the issue of the voluntariness of the

confession.” Id. “We accord deference to the trial justice’s findings of historical fact

unless those findings are clearly erroneous.” Id. “If we conclude that the trial

justice’s findings of historical fact were not clearly erroneous, we proceed to the

second step of our analysis. At the second step, we ‘apply those historical facts and

review de novo the trial justice’s determination of the voluntariness of the

statement.’” Id. (quoting State v. Bido, 941 A.2d 822, 836 (R.I. 2008)).

- 20 -
 3

Analysis

Rule 5(a) of the Superior Court Rules of Criminal Procedure commands, in

pertinent part, that “[a]ny person making an arrest without a warrant shall take the

arrested person without unnecessary delay before a judicial officer of the District

Court[.]”

“In interpreting Rule 5(a), this Court has held that delay in presentment,

without more, does not warrant automatic suppression of a statement made during

the period of delay. Rather, we have squarely held that ‘delay, if it is to render a

confession inadmissible, must have been operative in inducing the confession.’”

State v. King, 996 A.2d 613, 622 (R.I. 2010) (emphasis in original) (quoting State v.

Lionberg, 533 A.2d 1172, 1178 (R.I. 1987)). “We have likewise stated that a

‘hearing justice must consider whether the time preceding a suspect’s statement had

any causative effect upon his or her * * * decision to confess.’” Id. (emphasis in

original) (brackets omitted) (quoting Lionberg, 533 A.2d at 1178). “Therefore, ‘the

elapsed time between the defendant’s arrest and his confession is the critical period

we must examine and scrutinize in order to determine if it had been operative in

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inducing the defendant’s admissions.’” Id. (emphasis in original) (quoting State v.

Nardolillo, 698 A.2d 195, 199 (R.I. 1997)).8

Accordingly, “our well-settled case law with respect to Rule 5(a)

unambiguously indicates that a defendant who seeks to have an inculpatory

statement suppressed because of an unnecessary delay in presentment ‘must

demonstrate both: (1) that the delay in presentment was unnecessary and (2) that

such delay was causative with respect to’ the making of the inculpatory statement.”

Barros, 24 A.3d at 1182 (emphasis in original) (quoting King, 996 A.2d at 622).

In this case, where the delay in presenting defendant to a judicial officer is

troubling, we will assume without deciding that there was not strict compliance with

the requirements of Rule 5(a). We do so because it is our firm opinion that the

evidence does not support a conclusion that any delay here was operative in inducing

defendant’s inculpatory statements.

There can be no question that the third interrogation was fruitful for the police

because defendant made more inculpatory statements in that interrogation than he

had in the two preceding interrogations. However, we cannot say that any statements

made by defendant were caused by the delay. The causation element of our Rule

5(a) analysis “militate[s] against the employment of [a] police tactic of delay

8
In this case, although defendant never confessed, he did make statements against
his own interest in his changing account of events. We have, therefore, applied the
same principles that have been employed in confession cases.

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designed to produce an involuntary or unwitting confession[.]” King, 996 A.2d at

623 (quoting Nardolillo, 698 A.2d at 200). However, those types of tactics are not

present in this case. Rather, our review of the record leads us to the unwavering

conclusion that the statements that defendant made to the investigating officers in

the third interrogation were motivated by defendant’s own explicit willingness to

cooperate with the officers’ investigation and by his desire to distance himself from

any responsibility for Captain Freddy’s death.

In King, this Court held that the inculpatory statements made by the defendant

were not caused by any delay in presentment because the defendant was eager to

speak with the police and willingly relayed his story “to persuade the police as to the

veracity of his version of the events, while simultaneously attempting to shift blame

away from himself.” King, 996 A.2d at 621, 623; see id. at 622 (the defendant was

on “a mission to tell * * * his side of the story”). In our opinion, that is essentially

what happened in this case. Having had the benefit of reviewing the video recording,

we come to the inescapable conclusion that defendant’s active participation in the

third interrogation was an effort to build his own credibility with the police while

shifting any criminal liability to Mr. Gunderway.

The third interrogation began with defendant recounting, on his own initiative,

a more complete story after indicating that he had done a lot of thinking since the

prior interrogation and that he “remember[ed] a lot now[.]” Viewing the three

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interrogations together, it is noteworthy that the evolution of defendant’s story

coincided with his increasing awareness of the knowledge of the officers with

respect to the killing of Captain Freddy and defendant’s role in that killing. In the

recordings, as the state argues, defendant appears “calm, friendly, [and] willing to

talk.” Indeed, by defendant’s own admission in the course of his testimony at the

hearing on his motion to suppress, he had spoken with the police during the third

interrogation in an effort to tell his side of the story and, thus, clear his name.

Therefore, it is our firm opinion that there was no causative effect between any delay

in defendant’s presentment and the statements that he made during the third

interrogation.

The defendant places great emphasis on the federal counterpart to Rule 5(a)

and points us to analogous caselaw interpreting Rule 5(a) of the Federal Rules of

Criminal Procedure.9 Nonetheless, as we have said in prior opinions, Rule 5(a) is

“‘not a constitutional command to be found within the text of our Federal or State

Constitutions, and its breach does not necessarily create any constitutional

violation.’ [Rather], this Court has viewed ‘the rule as a prophylactic measure

designed to prevent other constitutional infirmities.’” King, 996 A.2d at 621 (quoting

9
Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure provides, in relevant
part, that “[a] person making an arrest within the United States must take the
defendant without unnecessary delay before a magistrate judge, or before a state or
local judicial officer[.]”

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Nardolillo, 698 A.2d at 199). “While cases interpreting and applying federal rules

may at times be enlightening as we interpret and apply our rules of criminal

procedure, those federal cases are by no means binding on us as we deal with a

Rhode Island rule such as Rule 5(a).” Id. at 621 n.17. Accordingly, and in view of

the fact that we have available our own well-defined jurisprudence, “we consider

defendant’s reliance on such federal cases as Corley v. United States, [556] U.S.

[303], 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009), to be largely misplaced.” Id.

Accordingly, we hold that the trial justice did not err in denying defendant’s

motion to suppress the fruits of his third interrogation.

B

Inculpatory Statements Captured by Interrogation Room Recording

The defendant next argues that the trial justice erred by declining to redact

certain prejudicial statements he made while he was alone in the interrogation room.

1

Facts

Although defendant implicated himself in the death of Captain Freddy only

minimally during the first interrogation, he did make some statements that raised

eyebrows. The defendant maintained throughout the first interrogation that he

believed that the Star Capella was owned by Ducky, and he said that Mr. Gunderway

had to move the boat for Ducky because the dock rental was expiring. At one point,

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the detectives asked defendant if Mr. Gunderway had contacted him between the

time the boat had been moved and the time of defendant’s arrest. Specifically, the

police asked defendant if Mr. Gunderway mentioned anything about a T-shirt that

was found wrapped around Captain Freddy’s feet and ankles when the decedent’s

body was discovered.10 The defendant responded, “I think he said like Ducky’s boat

stinks or something. Ducky needs to clean his boat, it f**king stinks. And I think I

said, well why not just f**king burn it then. You know? If it stinks that bad, which

I was joking with him.” The interrogation ended shortly thereafter and the police

left the room. Speaking to himself in an empty room, defendant exclaimed, in a

Hamlet-like soliloquy, “I’m f**ked. Oh, no. I’m f**ked man. * * * F**ked up—

going to jail for the rest of my life, bro. * * * They’re gonna f**king put me and I’m

never leaving f**king jail again.”

At trial, defendant was heard on his motion to redact that statement before the

video recordings of his interrogations were played to the jury.11 The defendant

argued that the statement should be excluded under Rule 403 of the Rhode Island

Rules of Evidence because the statement would cause speculation among the jury

10
Earlier in the first interrogation and after being pressed about his involvement in
the death of Captain Freddy, defendant told the police that “Troy did something to
him.” When pressed further, defendant said, “He said he choked him * * * there
was a f**king shirt or a white [T]-shirt or something. * * * It’s Troy’s.”
11
The defendant also moved to redact two other statements made under similar
circumstances. However, on appeal, defendant contests only the trial justice’s ruling
with respect to the above-recited statement.

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about whether it was an admission of guilt. The trial justice denied the motion,

finding that the statements were “relevant and probative and not so prejudicial” as

to outweigh their probative value.

2

Standard of Review

“In reviewing the admission or exclusion of evidence, it is well settled that

the admissibility of evidence is 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

discretion is apparent.” State v. Cavanaugh, 158 A.3d 268, 273 (R.I. 2017) (brackets

omitted) (quoting State v. Peltier, 116 A.3d 150, 153 (R.I. 2015)). “[O]nly rarely—

and in extraordinarily compelling circumstances—will we, from the vista of a cold

appellate record, reverse a trial court’s on-the-spot judgment concerning the * * *

weighing of probative value and unfair effect.” State v. Patel, 949 A.2d 401, 413

(R.I. 2008) (brackets omitted) (quoting United States v. Rodriguez-Estrada, 877

F.2d 153, 155-56 (1st Cir. 1989)).

3

Analysis

Rule 403 of the Rhode Island Rules of Evidence provides, “[a]lthough

relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

- 27 -
by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Our precedent makes plain, however, that “[i]t is only

evidence that is marginally relevant and enormously prejudicial that must be

excluded.” Patel, 949 A.2d at 412-13. It is apparent, then, that a defendant seeking

to overturn a trial justice’s admission of evidence under a Rule 403 analysis has a

high hurdle to clear.

After reviewing the record, we discern no error on the part of the trial justice.

There can be no question that defendant’s statement, “I’m f**ked. * * * [G]oing to

jail for the rest of my life,” is probative of defendant’s awareness of the compromised

position in which he found himself. When the first interrogation is considered as a

whole, the contested statement was made after he had agreed to allow the police to

search his phone, truck, and apartment, after he knew that Mr. Gunderway had been

speaking with the police, and after defendant had shared somewhat incredible details

of his involvement, such as when he suggested burning the boat to Mr. Gunderway

after Mr. Gunderway told defendant that there was a foul odor emanating from the

boat. Under these circumstances, we reach the same conclusion as did the trial

justice and hold that the probative value of these statements is not outweighed by

their prejudicial effect. See Patel, 949 A.2d at 414 (“Under our law, we do not

distinguish between the probative value of circumstantial and direct evidence; the

- 28 -
jury must weigh the evidence and determine whether it establishes the guilt of the

accused beyond a reasonable doubt.”).12

C

Other Issues

The defendant raises two additional arguments before this Court on appeal:

(1) his detention by the Warwick Police Department was extensive and he was

denied medication during the detention in violation of his Fifth Amendment rights

and (2) the trial justice abused his discretion by failing to suppress a witness’s out-

of-court identification. It is apparent from the record, however, that neither of those

issues was raised prior to or during the defendant’s trial. Pursuant to our well-settled

raise-or-waive rule, “no party may assign as error any portion of the charge or

omission therefrom unless the party objects thereto before the jury retires to consider

its verdict[.]” State v. Hunt, 137 A.3d 689, 693 (R.I. 2016) (brackets omitted)

(quoting Super. R. Crim. P. 30). As such, we need not, and shall not, address these

issues on appeal.

12
We note that, even if this evidence had been admitted in error, the evidence would
be subject to a harmless-error analysis. Given the overwhelming evidence
introduced against defendant at trial that was probative of his guilt, we would affirm
defendant’s conviction even if the trial justice had erred in admitting the statement.
See State v. Doyle, 235 A.3d 482, 497 (R.I. 2020) (“[B]ased on the extensive record
in this case and the overwhelming evidence presented at trial, we are of the opinion
that, even if there were evidentiary error, it was harmless beyond a reasonable
doubt.”).

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 IV

Conclusion

For the reasons stated in this opinion, we affirm the judgment of the Superior

Court. The record shall be returned to the Superior Court.13

Justice Flaherty participated in the decision and authored this opinion prior to

his retirement.

Justice Lynch Prata and Justice Long did not participate.

13
We pause to note that the recording of all custodial interrogations in this case
enabled the finder of fact and this Court to see and hear the defendant’s statements
first hand, rather than in the form of a second-hand rendition from the witness stand.
This advances the interests of justice, and we urge all law-enforcement agencies to
do the same.

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 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Richard Baribault.

No. 2019-59-C.A.
Case Number
(K1/16-69B)

Date Opinion Filed March 31, 2021

Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

Written By Associate Justice Francis X. Flaherty

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Brian P. Stern

For State:

Virginia M. McGinn
Attorney(s) on Appeal Department of Attorney General
For Defendant:

J. Richard Ratcliffe, Esq.

SU-CMS-02A (revised June 2020)