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State v. Werner6/5/2003
This case comes before us on appeal by Keith Werner (defendant or Werner) from a judgment of conviction entered in the Superior Court on a criminal information, which charged the defendant with six felony counts. Count 1 charged the defendant with assault with intent to murder Loran Stoddard; count 2 charged the defendant with assault with intent to murder Frank Burton; count 3 charged the defendant with assault with a dangerous weapon upon Michael McGonigle; count 4 charged the defendant with possession of a loaded weapon in a vehicle; count 5 charged the defendant with possession of a sawed-off shotgun; and count 6 charged the defendant with possession of a firearm after having been previously convicted of a crime of violence.
Five counts were tried in the Superior Court by a justice sitting with a jury in the County of Kent beginning on May 24, 1994. Count 6 had been severed before trial. At the completion of the trial on June 8, 1994, the jury returned verdicts finding Werner guilty of assault with a dangerous weapon (lesser-included offense) on counts 1 and 2. The jury found defendant guilty on counts 3, 4, and 5. Thereafter, the trial justice denied defendant's motion for a new trial and, on August 4, 1994, sentenced defendant to ten years imprisonment on the three counts of assault with a dangerous weapon (sentences to run concurrently). He sentenced defendant to serve ten years imprisonment on count 4, possession of a loaded weapon in a vehicle, and to serve five years of imprisonment on count 5, possession of a sawed-off shotgun. These latter sentences were to be served concurrently with each other but consecutive to the sentences imposed on the first three counts. All the sentences were to be served consecutively to prison sentences imposed in the Commonwealth of Massachusetts and to sentences previously imposed in Rhode Island. The defendant filed a timely appeal from this judgment. We deny and dismiss defendant's appeal. The facts and procedural history of this case insofar as pertinent to this appeal are as follows.
Facts and Procedural History
On the early morning of May 15, 1988, Michael McGonigle (McGonigle), the manager of Johnny Ray's Beef & Brew (Johnny Ray's or bar) on Crawford Street in West Warwick, stopped at the bar to check on his sister, who was working for the first time as a bartender at the establishment. After a short stay at the bar, he left the premises and encountered a man who drove up to the bar in a silver-blue Ford vehicle, which looked to him "like Grenada or something." McGonigle and the driver had a somewhat heated exchange, after which the man started to pull a black, sawed-off shotgun from a heavy green garbage bag lying on the front passenger seat and pointed it out the car window at McGonigle. Thereupon, McGonigle ran back toward the bar and, on his way, noted that the driver was standing in the street, struggling to take the bag off the gun. When he arrived inside the bar, McGonigle told his sister to call the police.
Loran Stoddard (Stoddard), who lived in an apartment above the bar, had gone down to the bar at about 11:30 p.m. Stoddard, who had been drinking heavily, heard the argument between McGonigle and the driver of the vehicle. When Stoddard attempted to end the argument, the driver (whom he later identified as Keith Werner) told him to mind his own business. When Stoddard did not comply, defendant walked back to his car, reached in through the driver's door, and took out a large garbage bag from which he extracted a shotgun. He pointed the barrel at Stoddard and fired. Stoddard was struck in both knees and fell to the ground. As he pointed the gun, Werner admonished the victim: " aybe this will teach
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