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Shianna Kelly was found guilty by jury of entering a dwelling with the intent to commit larceny. Kelly appealed on the ground that the trial justice erred in denying her motion for a new trial. The Supreme Court affirmed, holding (1) the trial justice performed the correct analysis in deciding defendant's motion for a new trial and was not clearly wrong in denying the motion; (2) the trial judge did not err in refusing to grant a new trial on the basis that the judge allowed testimony after a discovery violation; and (3) the issue of whether a surveillance DVD and photographs were properly admitted at trial was not properly preserved for appellate review.Receive FREE Daily Opinion Summaries by Email
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 2223258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Chief Justice Suttell, for the Court. The defendant, Shianna Kelly, was found guilty by
a jury of entering a dwelling with the intent to commit larceny. She now appeals on the sole
ground that the trial justice erred in denying her motion for a new trial. This case came before
the Supreme Court for oral argument pursuant to an order directing the parties to appear and
show cause why the issues raised in this appeal should not summarily be decided. After
reviewing the record and considering the parties’ written and oral submissions, we are satisfied
that this appeal may be decided without further briefing or argument. For the reasons set forth in
this opinion, we affirm the judgment of the Superior Court.
Facts and Procedural History
In August 2007, Ms. Kelly was criminally charged with: (1) entering the dwelling of
Raymond Thimes 1 on June 24, 2007, 2 with the intent to commit larceny, in violation of G.L.
Although the name appears as “Thimas” in the record and in parts of the transcript, we use
“Thimes,” which was the spelling provided by the individual at the beginning of his testimony.
The trial justice granted the state’s motion to modify the date of the alleged incident from June
25, 2007 to June 24, 2007.
1956 § 11-8-3, and (2) committing larceny over $500, in violation of G.L. 1956 §§ 11-41-1 and
11-41-5. Ms. Kelly was tried in Superior Court before a jury in October 2008.
It was established at trial that in June 2007 Mr. Thimes was living in the first-floor
apartment of a four-family home in Providence. John Waite, who was the owner of the home,
lived on the second floor. Mr. Waite and Mr. Thimes had known each other prior to this living
arrangement, having attended high school together.
Around 11 a.m. on June 24, 2007, Mr. Thimes went to his son’s third-birthday party at
his father’s house in Charlestown. Mr. Thimes testified that the party started around noon and
that approximately thirty guests attended. Among the guests were Russell Gobern (Mr. Thimes’s
brother), Ms. Kelly, Mr. Gobern and Ms. Kelly’s infant son, Ms. Kelly’s unidentified female
friend, and Mr. Waite.
Mr. Thimes testified that, toward the end of the party, at approximately 4 p.m., Ms. Kelly
and Mr. Gobern began cursing and arguing in “really loud” voices and that, as a result, Ms. Kelly
was asked to leave. Mr. Thimes testified that Ms. Kelly was “[a]ngry” and that she left the party
in a green Saturn wagon with her son and female friend. Mr. Gobern remained at the party.
Mr. Waite testified that he returned home from the party around 8 p.m. Mr. Waite
noticed that the door to Mr. Thimes’s first-floor apartment was open; Mr. Waite poked his head
in and yelled to see whether anyone was home, but there was no response. Mr. Waite proceeded
to call Mr. Thimes, who was then on his way home from the party, and he informed Mr. Thimes
that his apartment door was open; Mr. Thimes told Mr. Waite to look inside the apartment. Mr.
Waite testified that, upon entering the apartment, he observed that “[e]verything was trashed in
the place, fish on the floor from the freezer, cereal boxes emptied out, everything rummaged,
clothes covering the floor. The place was totally upside down.”
Mr. Waite then went upstairs to his apartment and viewed digital recordings from three
surveillance cameras that he had had installed on his property six months before this incident.
Upon reviewing the recordings, Mr. Waite testified that he “noticed a woman coming there and
carrying an air conditioner and looking into the windows.” Mr. Waite testified that, after
isolating the relevant portion of the surveillance footage, he “recorded it onto a VHS.”
Mr. Thimes testified that, when he arrived home, he went into his apartment and similarly
observed that “stuff [was] everywhere.” He testified that there were fish from the freezer along
with other boxes and cans of food on the kitchen floor; his cabinets had been “gone through”; the
bathroom towel rack was broken; clothes and papers were strewn across the bedroom floors;
beds were overturned; and there was a crack in the living room wall. 3 Mr. Thimes also noticed
that a bedroom window, which had had a window-unit air conditioner in it, was open, and that
both the glass window pane and the screen were broken. Mr. Thimes testified that his windowunit air conditioner, jewelry box, jade Buddha, new sneakers, Xbox video game console, laptop
computer, computer modem, cordless phone, camcorder, and handgun, and approximately
$1,100 in cash, all were missing.
Mr. Thimes then went upstairs and reviewed the surveillance videotape with Mr. Waite.
Mr. Thimes testified that the videotape revealed two women carrying items out of his apartment
and that he recognized the two women as being Ms. Kelly and the female friend who had
accompanied her to the birthday party. Mr. Thimes testified that he then called Mr. Gobern to
inform him that Ms. Kelly had broken into his apartment and to tell him to convey the message
to Ms. Kelly that he wanted his belongings back. When Mr. Thimes still had not received his
belongings by approximately 1 a.m., he called the police.
Several photographs revealing the condition of the apartment were admitted as exhibits at trial.
Officer Scott Sambarano of the Providence Police Department testified that at
approximately 1:16 a.m. he was dispatched to Mr. Thimes’s apartment to respond to a call for
breaking and entering. Upon arrival, Officer Sambarano spoke with Mr. Thimes and Mr. Waite,
walked around Mr. Thimes’s apartment, and proceeded to watch the surveillance videotape,
which he later took with him.
The day after the incident, Mr. Waite copied the pertinent surveillance recordings onto a
DVD. In addition, Mr. Waite testified, the individual who had installed the cameras came to Mr.
Waite’s apartment, while he was present, and made thirteen still photographs from the
surveillance recordings. Mr. Waite gave the DVD and the photographs to Mr. Thimes, who then
gave them to the police.
The defendant filed motions in limine seeking to: (1) prevent Mr. Waite from testifying
for purposes of authenticating the DVD because the state allegedly failed to include him in its list
of witnesses; (2) preclude the admission of the DVD and the photographs, based on objections to
both clarity and authentication; and (3) prevent Mr. Thimes from positively identifying Ms.
Kelly at trial as the woman in the DVD and the photographs.
The defendant argued that Mr. Waite’s testimony should be precluded because the state
failed to list him as a witness until just prior to trial, in violation of Rule 16 of the Superior Court
Rules of Criminal Procedure. 4 The state indicated that it had failed to disclose Mr. Waite as a
witness previously because it was under the misimpression that Mr. Thimes, as opposed to Mr.
Waite, had owned the cameras and made the DVD. The trial justice found the nondisclosure to
Under Rule 16(a)(7) of the Superior Court Rules of Criminal Procedure, the state is required,
upon written request, to furnish a defendant with “a written list of the names and addresses of all
persons whom the attorney for the [s]tate expects to call as witnesses at the trial in support of the
[s]tate’s direct case.”
be inadvertent and allowed Mr. Waite to testify for purposes of authenticating the DVD; the trial
justice, however, also granted defendant’s request for a one-day continuance to prepare for crossexamination of Mr. Waite. 5
At trial, the state elicited some testimony from Mr. Waite
concerning his observations at the birthday party, without objection by defendant.
defendant did object to a question on hearsay grounds, however, the trial justice ruled that Mr.
Waite’s testimony would be limited to authentication, which was the trial justice’s understanding
of why Mr. Waite had been called to testify.
Additionally, before trial, the trial justice viewed the DVD in chambers with counsel and
overruled defendant’s objection based on the clarity of the DVD, explaining that she “certainly
was able to follow [the DVD] particularly with the [still photographs] to supplement it.”
Following Mr. Waite’s testimony authenticating the DVD, the trial justice allowed its admission
at trial. 6 The DVD was played for the jury and the still photographs also were shown to the jury.
Mr. Thimes testified that the woman in the video and the photographs was Ms. Kelly, that the
We note that this Court was not provided with transcripts from a hearing on this issue; rather,
we glean these facts simply from remarks made, during trial, by the trial justice.
Before the jury viewed the DVD, the trial justice issued a jury instruction, explaining:
“As I understand it, this DVD will be a video that this
witness has indicated came from * * * cameras appended to his
property. One or more people may be depicted in that video.
Ladies and Gentlemen, it is for you to determine as finders of the
fact, ultimately, the identity of one or more of those individuals if
that identity became pertinent to this case. In other words, that’s
your call here and not [the witness’s]. * * *
“* * *
“And in determining the identity of the defendant as the
perpetrator of the crime, in other words, whether the [s]tate has
proven identity beyond a reasonable doubt, as in determining every
other issue of the case, you consider all of the facts and
circumstances proven at trial, reasonable inferences you draw from
that evidence, but ultimately you determine whether the [s]tate has
proven identity to you.”
second woman was Ms. Kelly’s female friend who had attended the birthday party, and that the
car in the video was the same green Saturn wagon in which the two women had left the party.
On October 15, 2008, the jury found Ms. Kelly guilty of entering a dwelling with the
intent to commit larceny, but not guilty of committing larceny over $500.
The defendant proceeded to file a motion for a new trial under Rule 33 of the Superior
Court Rules of Criminal Procedure. A hearing on the motion was held on October 30, 2008, at
which defendant argued that the motion should be granted because: (1) the state had only one
person from the birthday party testify about when and how defendant left the party; (2) Mr.
Thimes was “not a disinterested witness” and he “jumped to the conclusion that it was Ms.
Kelly”; (3) Mr. Thimes’s testimony failed to establish beyond a reasonable doubt that the person
in the DVD was Ms. Kelly; (4) Mr. Waite was not forthright and did not adequately authenticate
the surveillance DVD; and (5) the police did not do sufficient work in developing useful
evidence, such as obtaining fingerprints.
The trial justice denied the motion for a new trial, and on December 11, 2008, she
sentenced defendant to seven years, with two years to serve and five years suspended, with
probation. The defendant filed a notice of appeal. 7
Standard of Review
“When deciding a motion for a new trial, ‘the trial justice acts as a thirteenth juror and
exercises independent judgment on the credibility of witnesses and on the weight of the
evidence.’” State v. Prout, 996 A.2d 641, 645 (R.I. 2010) (quoting State v. Bergevine, 942 A.2d
Although defendant filed her notice of appeal before judgment was entered in this case, this
Court will treat the premature appeal as timely filed. See Otero v. State, 996 A.2d 667, 670 & n.3
(R.I. 2010); State v. Sylvia, 871 A.2d 954, 957 & n.2 (R.I. 2005).
974, 981 (R.I. 2008)). “If, after conducting this independent review, the trial justice agrees with
the jury’s verdict or if the evidence is such that reasonable minds could differ as to the outcome,
the motion for a new trial should be denied.” Bergevine, 942 A.2d at 981 (quoting State v.
Gomez, 848 A.2d 221, 234 (R.I. 2004)). “If, however, ‘the trial justice finds that the state has
failed to sustain its burden of proof, a new trial must be ordered.’” Id. (quoting Gomez, 848 A.2d
at 234). “This Court’s review of a trial justice’s decision on a motion for a new trial is
deferential.” Prout, 996 A.2d at 645. If the trial justice has articulated adequate grounds for
denying the motion, his or her decision is entitled to great weight and will not be overturned by
this Court unless he or she has overlooked or misconceived material evidence or was otherwise
clearly wrong. Id. at 646; Gomez, 848 A.2d at 234.
On appeal, defendant argues that the trial justice erred in denying her motion for a new
trial “because the evidence was neither credible nor reliable[,] and the jury’s verdict was against
the evidence and failed to do substantial justice.” More specifically, defendant contends that
“the trial justice[’s] findings do not sufficiently articulate an exercise of independent judgment
on the credibility of witnesses, nor do her findings support an adequate rationale for denying the
motion,” and that furthermore, “[t]he complete lack of corroborating evidence, including the
[videotape] that was not authenticated properly[,] * * * amounted to the introduction of legally
insufficient evidence, all of which the trial justice clearly overlooked.”
Upon review of the record, we are satisfied that the trial justice performed the correct
analysis in deciding defendant’s motion for a new trial.
She recited the proper standard,
acknowledging that she was to conduct an independent assessment of the weight of the evidence
and the credibility of the witnesses. She then explained that, although the state could well have
called other witnesses, one witness worthy of belief was sufficient: she stated that she found Mr.
Thimes to be a credible witness and discussed her rationale for this finding, noting Mr. Thimes’s
“appearance on the stand” and his “manner of testimony.” She also stated that Mr. Waite’s
relationship with Mr. Thimes did not make Mr. Waite an incompetent witness nor a witness
unworthy of belief. The fact that defendant disagrees with these credibility determinations is not
a sufficient basis to warrant the granting of a motion for a new trial. See State v. Rivera, 987
A.2d 887, 903 (R.I. 2010). The trial justice found that Mr. Waite’s testimony was sufficient to
authenticate the surveillance DVD, and she acknowledged that the jury had been appropriately
instructed concerning the DVD.
Finally, the trial justice explained that the state was not
obligated to provide the jury with scientific evidence such as fingerprints.
The trial justice proceeded to thoroughly summarize all of the essential evidence
presented at trial and articulate an explicit and adequate rationale for denying defendant’s motion
for a new trial. She found that the evidence in this case was “overwhelming.” She emphasized
that “[d]efendant was caught on tape,” and she asserted that no mistake should be made, “[t]he
woman on the tape was the defendant.” The trial justice concluded that, had she been deciding
this case without a jury, she would have found defendant guilty “in a heartbeat,” explaining that
the evidence revealed that defendant was guilty “beyond all doubt.” Upon review, we are
satisfied that the trial justice was not clearly wrong in denying the motion and that she did not
overlook or misconceive any material evidence.
The defendant further contends on appeal that “the state’s pattern of Rule 16 discovery
violations * * * compounded with the trial justice’s errors in denying the defendant’s motions in
limine, also warrant a new trial.” Although defendant’s argument is not entirely clear from her
brief, we deduce that she believes these matters constitute additional reasons that the denial of
her motion for a new trial was improper.
The defendant specifically takes issue with the trial justice’s allowance of testimony by
Mr. Waite after a Rule 16 discovery violation. The trial justice allowed Mr. Waite to testify for
purposes of authenticating the DVD and the photographs after finding that the state’s
nondisclosure was inadvertent; however, she also allowed defendant to have a brief continuance,
as requested. At trial, when defendant objected to testimony by Mr. Waite concerning certain of
his observations at the birthday party, the trial justice limited Mr. Waite’s testimony to
authentication matters, referencing the late disclosure. At no point during trial did defendant
move to pass the case based on this issue; nor has defendant properly articulated in what manner
the trial justice allegedly abused her discretion. We therefore are of the opinion that the trial
justice did not err in refusing to grant a new trial on this basis.
The defendant also takes issue with the admission of the surveillance DVD and the
photographs, as well as Mr. Thimes’s testimony identifying the defendant’s image therein. The
trial justice watched the DVD in chambers with counsel, before trial, and she found that it was
Accordingly, she allowed the admission of both the DVD and the
photographs, after Mr. Waite’s authentication testimony. When the DVD and the photographs
were admitted at trial, the defendant posed no objection. Nor did the defendant object when Mr.
Thimes proceeded to positively identify her, her friend, and her car, as being depicted in the
DVD and the photographs. We are satisfied, therefore, that this issue has not been properly
preserved for appellate review. See State v. McManus, 990 A.2d 1229, 1237 (R.I. 2010)
(“According to our well settled ‘raise or waive’ rule, if an issue was not preserved by specific
objection at trial, then it may not be considered on appeal.”). We are fully satisfied that the trial
justice did not err in declining to grant a new trial on this basis.
For the reasons stated in this opinion, we affirm the judgment of the Superior Court. The
record shall be remanded to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:
State v. Shianna Kelly.
DATE OPINION FILED: June 10, 2011
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Chief Justice Paul A. Suttell
SOURCE OF APPEAL:
Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Netti C. Vogel
ATTORNEYS ON APPEAL:
Christopher R. Bush
Department of Attorney General
For Defendant: Marie T. Roebuck
Office of the Public Defender