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State v. Daniel Tejeda
Supreme Court of Rhode Island
Case Number: 2016-242-C.A
Judge: Gilbert V. Indeglia
Court: Supreme Court of Rhode Island
Plaintiff's Attorney: Virginia M. McGinn
Department of Attorney General
Defendant's Attorney: Susan B. Iannitelli, Esq
Description: When this Court reviews a motion to suppress, we “will not overturn a trial justice’s
factual findings unless they are clearly erroneous.” State v. Harrison, 66 A.3d 432, 441 (R.I.
2013). With respect to any purported violations of a defendant’s constitutional rights, “this
Court must make an independent examination of the record to determine if [the defendant’s]
rights have been violated.” Id. (quoting State v. Goulet, 21 A.3d 302, 311 (R.I. 2011)). In
conducting the independent examination, “we view the evidence in the record in the light most
favorable to the state.” State v. Santos, 64 A.3d 314, 319 (R.I. 2013) (quoting Goulet, 21 A.3d at
311). Additionally, we “review a trial justice’s determination of the existence or nonexistence of
probable cause or reasonable suspicion on a de novo basis.” Id. (quoting Goulet, 21 A.3d at
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The defendant moved to suppress the cell phone that was seized from his person when he
was arrested on April 28, which the trial justice denied. The Fourth Amendment to the United
States Constitution “protects the right to be free from ‘unreasonable searches and seizures.’”
Davis v. United States, 564 U.S. 229, 230-31 (2011). Nevertheless, a warrantless search incident
to arrest is permissible if it is of “the arrestee’s person [or] the area ‘within his immediate
control,’ * * * mean[ing] the area from within which he might gain possession of a weapon or
destructible evidence.” Arizona v. Gant, 556 U.S. 332, 339 (2009) (quoting Chimel v.
California, 395 U.S. 752, 763 (1969)); see also Carillo v. Moran, 463 A.2d 178, 180 n. 1 (R.I.
1983) (citing Chimel, 395 U.S. at 762-63).
In denying defendant’s motion to suppress the seizure of the cell phone, the trial justice
made several credibility determinations. The trial justice believed Det. Poncia’s testimony that
he checked defendant’s pockets as a safety precaution before putting him in his vehicle. He was
not troubled by the fact that no officers saw any cell phones in defendant’s bedroom, indicating
their memories may have been clouded by the arrest, which was a “hectic and chaotic event.”
Further, the trial justice found it difficult to accept defendant’s testimony that his phone was
actually located in his North Face backpack at the time of the arrest. The defendant testified that
he told Caraballo to tell Brenda Rivera, his child’s mother, to go get his bag that contained his
phone because he was worried about any incriminating information that could implicate him in
family court matters with Rivera. The trial justice doubted this explanation, reasoning that
defendant’s request for Rivera to go get the phone made little sense if he was really concerned
about legal issues he had with Rivera herself. Furthermore, the trial justice wondered why
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defendant would have requested removal of both the North Face bag and a Marine duffel bag—
where the zip ties were found—if he was concerned only about the phone. The trial justice also
took issue with defendant’s credibility based on his federal fraud convictions and numerous lies
to police during the Wyatt discussions. See State v. Hall, 940 A.2d 645, 657 (R.I. 2008) (noting
that a defendant’s attempts to shift blame to other individuals indicate that the defendant was
“calculating and cunning and understood the gravity of his position” (quoting State v. Monteiro,
924 A.2d 784, 791 (R.I. 2007))). The trial justice found that Det. Poncia did not look through the
bags to find a cell phone, reasoning that, if he had, he would have found the zip ties or at least
taken the cell phone that was on the bureau.11
The defendant asks this Court to find that Det. Poncia’s testimony is contrary to the other
officers in attendance at defendant’s April 28 arrest and cannot reasonably be believed.
However, while we do conduct an “independent examination” of the record to decide whether
defendant’s constitutional rights were violated, we still defer to the trial justice’s findings of fact
unless there is clear error. Harrison, 66 A.3d at 441 (quoting Goulet, 21 A.3d at 311). In this
case, we do not believe there is clear error. Inconsistencies existed among officers’ post-arrest
reports and trial testimony, but we do not believe that the trial justice clearly erred in his
credibility determinations. Detective Poncia’s testimony at the pretrial hearings that he
transported defendant to the hospital was corroborated by Deputy Carvalho and Deputy Engen.
Notwithstanding that Deputy Carvalho’s testimony did contradict his initial police report, the
trial justice found that Det. Poncia’s testimony was still credible in light of the disorder during
the tasing and arrest of defendant, lending credence to the other officers’ claims that they never
11 We recognize that the trial justice referred to a single cell phone found on the bureau at defendant’s apartment, while Det. Otrando testified that he found two cell phones on the bureau during the search. However, the discrepancy does not affect our analysis.
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saw any cell phones. We agree. The only contradictory testimony was by defendant, whom the
trial justice found not credible in light of his admission that he lied to police officers, as well as
his former federal conviction for fraud. We are satisfied with the trial justice’s admission of
evidence on these grounds.
Motions to Suppress—May 4 & May 6 Search Warrants
Standard of Review
“The Fourth Amendment to the United States Constitution and article 1, section 6, of the
Rhode Island Constitution, prohibit the issuance of a search warrant absent a showing of
probable cause.” State v. Byrne, 972 A.2d 633, 637 (R.I. 2009) (quoting State v. Verrecchia, 880
A.2d 89, 94 (R.I. 2005)). The “four corners of the affidavit prepared in support of the warrant”
should demonstrate probable cause, which the issuing magistrate will decide. Id. at 638.
When this Court reviews the issuance of a warrant, we “accord great deference to the
issuing magistrate’s probable-cause determination, so long as there is a showing of a substantial
basis from which to discern probable cause.”12 State v. Storey, 8 A.3d 454, 460 (R.I. 2010)
12 We have further explained that this standard of review is not conducted de novo. State v. Byrne, 972 A.2d 633, 638 (R.I. 2009). Instead,
“[a]lthough ‘the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo,’ * * * a deferential standard of review should be applied when reviewing a magistrate’s decision to issue a warrant because ‘[t]he Fourth Amendment demonstrates a strong preference for searches conducted pursuant to a warrant, * * * and the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable-cause determination to issue a warrant is less than that for warrantless searches.’” Id. (quoting State v. King, 693 A.2d 658, 661 (R.I. 1997)).
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(quoting Byrne, 972 A.2d at 638). Ideally, police officers should secure warrants prior to a
search, and so “an affidavit offered in support of a search warrant should not be judged as if it
had been drafted by one schooled in the niceties of the law nor should it be interpreted in a
hypertechnical manner.” Verrecchia, 880 A.2d at 94 (quoting State v. Nerney, 110 R.I. 364, 365,
292 A.2d 882, 883 (1972)); see also Byrne, 972 A.2d at 638. That is, “the approach to the
probable cause question should be pragmatic and flexible.” Id. “The magistrate need only
conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.”
Byrne, 972 A.2d at 639 (quoting United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985),
overruling on other grounds recognized by United States v. Fernandez, 388 F.3d 1199, 1254 (9th
Cir. 2004)). We emphasize that “the resolution of doubtful or marginal [probable-cause] cases
* * * [is] largely determined by the preference to be accorded to warrants.” Storey, 8 A.3d at
461 (quoting Byrne, 972 A.2d at 639).
Moreover, we “should take care both to review findings of historical fact only for clear
error and to give due weight to inferences drawn from those facts by resident judges and local
law enforcement officers.” Byrne, 972 A.2d at 639 (quoting Ornelas v. United States, 517 U.S.
690, 699 (1996)). We review a trial justice’s decision of whether probable cause existed de
novo. Id. at 638.
Additionally, we review the trial justice’s ruling on a defendant’s request for a Franks
hearing “with deference.” State v. Patino, 93 A.3d 40, 51 (R.I. 2014).
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i. May 4 Search Warrant
On appeal, defendant argues that the affidavit supporting the May 4 search warrant for
defendant’s cell phone records contained a deliberate material omission, indicating that the trial
justice erred in his determination at the Franks hearing below.13
In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court prescribed
a method to challenge search warrants that relied on affidavits that contained “false statement[s]
made knowingly and intentionally, or with reckless disregard for the truth.” Patino, 93 A.3d at
59 (quoting Franks, 438 U.S. at 155-56). A defendant may have a right to an evidentiary
hearing, but only if he or she can satisfy two showings: (1) a “substantial preliminary showing
that a false statement [was made] knowingly and intentionally, or with reckless disregard for the
truth * * *”; and (2) a showing “that the allegedly false statement is necessary to the finding of
probable cause.” Id. (citing Franks, 438 U.S. at 156). If the statements under attack are found to
be sufficiently false and are set aside, but “there remains sufficient content in the warrant
affidavit to support a finding of probable cause, no hearing is required.” State v. DeMagistris,
714 A.2d 567, 574 (R.I. 1998) (quoting Franks, 438 U.S. at 171-72).
13 During the pretrial hearings, the trial justice referred to defendant’s motions to suppress as “semi-Franks” motions, and decided them as such:
“I’ve given you this opportunity because the State hasn’t vigorously objected to having done it. So we’ve done it. But if the things that you complain about nonetheless leave an affidavit that supports probable cause, the motion cannot be successful and cannot prevail.”
Therefore, we will review the trial justice’s determination accordingly.
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The defendant argues that the affidavit written by Det. Michael did not pass muster due to
Det. Michael’s failure to include the fact that, between the time of Masi’s Backpage posting and
the time she sent her last text message at 3:32 p.m., there were over 300 texts and calls between
Masi and other phone numbers in addition to the contacts with defendant’s phone number.
Detective Michael’s affidavit provided that Masi was found unresponsive at her River Avenue
apartment on March 31, 2015 at 5:37 p.m. Detective Michael described Det. Otrando and Det.
Sullivan’s investigation into the persons and contacts in Masi’s life, which encompassed a search
into Masi’s phone records. Detective Michael also included that there were thirteen text
messages “sent/received from a cellular number of 401-442-3344 between 2:56 pm and 3:28 pm,
and one 78 second call incoming” from the same number at 2:51 p.m. The affidavit stated that
Det. Otrando determined that defendant was associated with that (401) 442-3344 phone number,
and that Det. Otrando contacted defendant for a statement. Further, Det. Michael wrote that
“[i]nterview statements were scheduled on two occasions with Tejada [sic], where he failed to
show on both occasions.”
Detective Michael also included the following description of the seizure of defendant’s
phone on April 28: “At the time [of defendant’s arrest], a HAUWEI [sic] CELLULAR PHONE
* * * was in the apartment, and Tejada [sic] stated that the phone was his, and that the phone
number is that of 401-442-3344. The Cellular phone was seized, placed in property, where it
was then turned over to this affiant on May 1, 2015.” Detective Michael also referenced
defendant’s statement to officers during the interview at Wyatt in which he told officers that he
was not at Masi’s residence on that day, but rather with his friend Ramon at a gas station “less
than two blocks from the homicide.”
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The trial justice denied the motion to suppress the May 4 warrant, finding that Det.
Michael’s omission in the affidavit of the other phone numbers used to contact Masi on the day
of her death was not material. He found that the addition of other calls and texts would have
only increased the amount of possible suspects, and would not have affected the probable cause
to seize the phone records of defendant.
There was also some inaccurate information in the affidavit—that defendant “failed to
show on [two] occasions,” but Det. Otrando’s testimony made it clear that he had called
defendant a few times without actually meeting with him before his arrest. Also, the affidavit
incorrectly stated that defendant was interviewed at Wyatt “in the presence of counsel.” The trial
justice found that Det. Michael had made neither error intentionally. Further, the trial justice
found, even omitting “failed to show on both occasions” and “in the presence of counsel” from
the affidavit, the document still contained enough information to support accessing cell phone
It is clear to this Court that defendant failed to make the requisite showings under Franks
to counter the trial justice’s denial of his motion to suppress the cell phone records. Based on
Det. Michael’s testimony at the pretrial hearings, the trial justice determined that Det. Michael’s
decision to omit all the other cell phone numbers could not satisfy defendant’s showing on the
second prong of the Franks test. See Patino, 93 A.3d at 59 (citing Franks, 438 U.S. at 155-56).
Although Det. Michael’s decision to reference only defendant’s communications with Masi in
the affidavit was certainly intentional, his choice to exclude other individuals who also
communicated with Masi on March 31 does not take away from the probable cause evident in the
May 4 affidavit—that, taking the affidavit as a whole, there was probable cause to search
defendant’s cell phone. See Storey, 8 A.3d at 462 (While “each piece of information may not
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alone be sufficient to establish probable cause and some of the information may have an innocent
explanation, ‘probable cause is the sum total of layers of information and the synthesis of what
the police have heard, what they know, and what they observed as trained officers’” (quoting
State v. Schmalz, 744 N.W.2d 734, 738 (N.D. 2008))).
ii. May 6 Search Warrant
The May 6 search warrant issued to search defendant’s apartment, and the affidavit that
supported the warrant was drafted by Det. Otrando. Detective Otrando stated that defendant had
been arrested on April 28 for an unrelated charge, and “a replica firearm and cell phone was
seized from Daniel Tejada [sic].” Detective Otrando described the various conversations he had
with defendant at the hospital on April 28 and at Wyatt on April 29 and 30, in which defendant
offered different versions of his location on March 31. Detective Otrando also referenced the
cell phone records accessed after the May 4 warrant was issued, which placed defendant at 216
River Avenue “and speaking with the victim. In one text the victim Ashely [sic] Masi invites
Daniel Tejeda inside the residence and to the 3rd floor.” Additionally, Det. Otrando specified,
“Tejada [sic] * * * called the victim 7 times between the hours of 1458 and 1538 hrs.”
Detective Otrando also wrote that Tejeda’s DNA “matched the DNA profile located on the
murder weapon (ZIP TIE).”
The defendant contends that there were also material omissions and deliberate falsehoods
in the May 6 affidavit. In another “semi-Franks” hearing, the trial justice heard testimony from
Det. Garcia, who testified that, as part of the search, she found the Marine duffel bag in
defendant’s apartment containing the two packages of zip ties. Detective Otrando testified that
the white zip ties were the same size and color of the zip tie found around Masi’s neck, and the
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package Det. Garcia located initially contained five zip ties, but was missing one. He also
testified that there was no North Face backpack in the bedroom found during that search.
The trial justice denied defendant’s motion to suppress the evidence seized pursuant to
the May 6 warrant. The affidavit supporting the warrant stated that defendant called Masi seven
times. The statement was inaccurate because defendant and Masi had actually exchanged a total
of twenty-five text messages on March 31 and only one phone call. The trial justice found that
this was not a material misstatement and, if anything, the error actually favored defendant in that
it made it appear that he had had less contact with Masi. When defendant spoke with officers
while he was at Wyatt, he mentioned Masi’s black eye as the reason why he left her apartment
when he arrived there to engage her services. The trial justice ruled that, even omitting the
paragraph referring to defendant’s mention of Masi’s black eye, the affidavit was still valid
because it included the information about defendant’s contact with Masi on that day via text
messages, which indicated that defendant had arrived at her house on March 31. Further, the
trial justice held that the affidavit’s reference to a “DNA match” may not have been totally
accurate, but it was not a falsehood. Additionally, the trial justice ruled that the mention of a BB
gun or firearm was irrelevant in a case where cause of death was homicidal asphyxia.
We agree with the trial justice and hold that defendant failed to make the necessary
showings under Franks to challenge the trial justice’s admission of the evidence obtained via the
May 6 warrant. Again, defendant failed to satisfy the second prong of Franks because, even
removing the purported falsehoods of Det. Otrando, there was still reason to find probable cause
within the “four corners of the affidavit.” Byrne, 972 A.2d at 638. In fact, the alleged
misstatements appear to bolster defendant’s case because they indicate that he had less contact
with Masi than he actually did, albeit via text messages instead of phone calls, and the firearm
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had no relevance to Masi’s cause of death. See Patino, 93 A.3d at 55 (acknowledging that courts
have found a similarity “between text messages and other forms of communication”).
Therefore, the trial justice did not clearly err in denying defendant’s motion to suppress
the evidence seized pursuant to the May 6 warrant as the affidavit, even excluding the purported
falsehoods, demonstrated probable cause to search defendant’s apartment.
Motion to Suppress—Defendant’s Statements at the Hospital
Standard of Review
When a defendant moves to suppress a confession, “the trial justice should admit a
confession or a statement against a defendant only if the state can first prove by clear and
convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his [or
her] constitutional rights expressed in Miranda v. Arizona.” State v. Musterd, 56 A.3d 931, 937
38 (R.I. 2012) (quoting State v. Barros, 24 A.3d 1158, 1179 (R.I. 2011)). Upon review of a trial
justice’s ruling, we “defer to the trial justice’s findings of historical fact concerning the
voluntariness of the confession unless those findings are clearly erroneous.” Id. at 938.
Additionally, we “apply those historical facts and review de novo the trial justice’s determination
of the voluntariness of the statement.” Barros, 24 A.3d at 1179 (quoting State v. Bido, 941 A.2d
822, 836 (R.I. 2008)).
A statement is voluntary if it “is a product of free will and rational choice, whereas a
statement is deemed involuntary when the defendant’s will was overcome by coercion, threats,
violence, or undue influence.” State v. Bojang, 83 A.3d 526, 533 (R.I. 2014) (quoting Monteiro,
924 A.2d at 790). As part of our de novo review of whether a confession was voluntary, we
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“consider the totality of the circumstances.” Id. We also look at whether a defendant made the
statement “knowingly and intelligently[—]that is, ‘with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it.’” Musterd, 56 A.3d
at 938 (quoting State v. Jimenez, 33 A.3d 724, 734 (R.I. 2011)).
The defendant contends that Det. Otrando’s trial testimony mischaracterized defendant’s
RWH statements with respect to the time defendant said he was at RIH on March 31. The state
counters that defendant waived that argument because he did not object to Det. Otrando’s trial
In the pretrial hearings, defendant sought to suppress the discussions that he had with
Det. Otrando while hospitalized at RWH after his federal arrest. Once defendant was at the
hospital, Det. Otrando visited him and read him his rights before conversing with him, eventually
learning that one of defendant’s phone numbers was (401) 442-3344.14 Detective Otrando
recalled that defendant also told him he stayed “all day” at RIH on March 31.15 The defendant
expressed that he did not want to make a statement, but Det. Otrando continued asking questions.
The trial justice suppressed everything after defendant’s indication that he did not want to talk.
The trial justice ruled as follows:
“With respect to the hospital statement, everything after the defendant’s comment, ‘I don’t want to make a statement’ is suppressed. That short conversation before that statement in which the defendant recited some telephone numbers and his stay at the emergency room, as recorded at least in his notes and in his memory by Otrando, that is permissible and acceptable and
14 This conversation occurred before Det. Otrando began recording the discussion. 15 Detective Otrando’s notes written on the back of the rights waiver form stated: “3-31 @ RI ER all day (check cameras).”
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admissible. Everything after the statement when he says, ‘I don’t want to make a statement,’ that’s out. All of it. Everything else is in.”
After the trial justice ruled, the prosecutor clarified: “The statement that this defendant
made was that he was at the hospital emergency room from nine to five on 3/31. That portion of
the statement is in.” The trial justice agreed, but defense counsel objected to the entirety of the
statement, contending that defendant did not tell Det. Otrando about his presence at RIH on
March 31 until after he voiced his desire to remain silent. After confirming with Det. Otrando
that he had testified that defendant told him about the RIH visit prior to invoking his privilege,
the trial justice ruled that the statement was admissible.
Later, at trial, Det. Otrando testified that he asked defendant where he was on March 31,
“and he had told me that he was at Rhode Island Hospital from the morning until approximately
5:00 o’clock, I believe.” At trial, defense counsel made no objection to this portion of Det.
Otrando’s testimony. On appeal, defendant contends that Det. Otrando’s reference to 5 p.m.
with respect to defendant’s RIH visit was inaccurate because Det. Otrando’s notes did not
specify a time.
“We repeatedly have expressed our view that a failure to object ‘in the vital context of the
trial itself (except where the in limine ruling was unequivocally definitive) [constitutes] a waiver
of the evidentiary objection and [is] therefore an issue that may not be raised on appeal.’” State
v. Andujar, 899 A.2d 1209, 1222 (R.I. 2006) (quoting State v. Kaner, 876 A.2d 1133, 1134 n. 4
(R.I. 2005) (mem.)). At the suppression hearings, the trial justice made a definitive ruling,
indicating that anything defendant said after invoking his right to remain silent was inadmissible,
but the statements before defendant’s invocation as memorialized in Det. Otrando’s notes or
memory were admissible. Defense counsel objected to the admissibility of defendant’s entire
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statement, arguing that it was inadmissible because of its timing, that is, defendant said it after he
stated he wished to remain silent. It is only on appeal that defendant now argues that the content
of Det. Otrando’s trial testimony was inaccurate with respect to whether defendant said he was at
RIH “all day” or until “5 p.m.” Given that the trial justice’s ruling was definitive only with
respect to the timing of defendant’s statement, not the content of it, we cannot say that the in
limine ruling was “unequivocally definitive” with respect to defendant’s argument on appeal
such that defendant’s objection at the pretrial hearings was sufficient to preserve his argument on
appeal. See id. at 1222 (quoting Kaner, 876 A.2d at 1134 n. 4). Accordingly, defendant’s
argument regarding his RWH statement is waived.
Habitual Offender Sentence
Standard of Review
We review issues of statutory interpretation de novo. State v. Burke, 811 A.2d 1158,
1167 (R.I. 2002). “It is well settled that when the language of a statute is clear and
unambiguous, this Court must interpret the statute literally and must give the words of the statute
their plain and ordinary meanings.” Id. (quoting Solas v. Emergency Hiring Council of Rhode
Island, 774 A.2d 820, 824 (R.I. 2001)). When we interpret “a legislative enactment, it is
incumbent upon us to determine and effectuate the Legislature’s intent and to attribute to the
enactment the meaning most consistent with its policies or obvious purposes.” Id. (quoting
Oliveira v. Lombardi, 794 A.2d 453, 457 (R.I. 2002)).
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The defendant contends that the twenty-five-year sentence imposed in addition to the
mandatory life sentence serves no useful purpose and does not advance the intent of the habitual
offender statute, G.L. 1956 § 12-19-21.
The habitual offender statute provides in relevant part as follows:
“If any person who has been previously convicted in this or any other state of two (2) or more felony offenses arising from separate and distinct incidents and sentenced on two (2) or more occasions to serve a term in prison is, after the convictions and sentences, convicted in this state of any offense punished by imprisonment for more than one year, that person shall be deemed a ‘habitual criminal.’ Upon conviction, the person deemed a habitual criminal shall be punished by imprisonment in the adult correctional institutions for a term not exceeding twenty-five (25) years, in addition to any sentence imposed for the offense of which he or she was last convicted.” Section 12-19-21(a) (emphasis added).
We have referenced the policy behind this statute as a reflection of “the Legislature’s
determination that a third or subsequent offense is more serious than a first or second offense and
accordingly should be punishable as such.” Burke, 811 A.2d at 1167-68 (quoting State v. Smith,
766 A.2d 913, 924 (R.I. 2001)). Moreover, such statutes are passed “to deter and punish
incorrigible offenders * * * [and] [t]hey are intended to apply to persistent violators who have
not responded to the restraining influence of conviction and punishment.” Id. at 1168 (quoting
Smith, 766 A.2d at 924).
Here, the trial justice saw fit to impose the harshest sentence available because of his
belief that defendant’s actions were especially cruel. He remarked that the murder was “one of
the most disturbing and inexplicably violent homicides I have seen * * * nasty and cruel to an
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unimaginable degree.” Further, he stated that there was “no explanation other than uncommon
maliciousness and extreme indifference to the sanctity of human life.”
The defendant’s conviction of such a horrific crime, coupled with his previous
convictions, are enough to support the trial justice’s imposition of the life sentence plus twenty
five years. We have referenced before the United States Supreme Court’s blessing that “a state
may impose its harshest penalty upon a ‘cold-blooded, pitiless slayer’ who kills without feeling
or sympathy.” State v. Garcia, 743 A.2d 1038, 1057 (R.I. 2000) (quoting Arave v. Creech, 507
U.S. 463, 470 (1993)). We are satisfied, then, that the trial justice’s sentence was in accordance
with the policy of the habitual offender statute.
Outcome: For the foregoing reasons, the defendant’s appeal is denied and dismissed, and the judgment appealed from is affirmed. The papers in the case are remanded to the Superior Court.