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State v. Werner6/5/2003
he prosecution or the defense." State v. Fenner, 503 A.2d 518, 525 (R.I. 1986). We also agree that determining the reliability of eyewitness testimony and the trustworthiness of eyewitness observations is within the ken of the jurors. State v. Porraro, 121 R.I. 882, 892, 404 A.2d 465, 471 (1979). However, in the context of these acknowledged rules of law, we are unable to perceive that the trial justice's general observations taken from a set of model special instructions on identification adopted for use in the District of Columbia by the United States Court of Appeals for the District of Columbia Circuit in United States v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972), would violate any of these maxims. It is true that there was no out-of-court show-up in this case. It is also true that defendant was free to argue concerning the similarities of the array shown to Stoddard. The trial justice did not purport to comment on the similarity of the photographs or the reliability of the identification by witness Stoddard. He was only expressing some general guidelines that would apply to any consideration of eyewitness identification by a jury. At most, this portion of the instructions might be argued to be lacking in relevance since there was no show-up in the case at bar. Nevertheless, it did not indicate any opinion by the trial justice of the reliability of Stoddard's purported identification of defendant in this case from the photograph array.
It is true that this Court has held that the Telfaire model instruction need not be given by a trial justice in situations in which a defendant has raised the issue of a show-up or cross-racial identification. State v. Payette, 557 A.2d 72, 73 (R.I. 1989); State v. Andrade, 544 A.2d 1140, 1143 (R.I. 1988); State v. Hadrick, 523 A.2d 441, 444 (R.I. 1987). Our criticism of the instruction proposed by Judge Bazelon in respect to cross-racial identification in Hadrick is, of course, not applicable to the case at bar. In none of these cases did we state that giving a portion of this general instruction on a photograph array would constitute reversible error. At most, we said that this model instruction need not be given. The trial justice did not indicate any opinion concerning whether the other persons in the six-photo array bore resemblance to Werner, nor did he express an opinion in respect to Stoddard's ability to observe or recollect defendant's identity at the time of the shooting.
We reject defendant's contention that this instruction in any way constituted prejudicial error on the part of the trial justice.
VII. The Denial of Defendant's Motions for Mistrial
The defendant contends that on four occasions during the course of the trial the jury heard improper reference to other criminal activity by him. He points out that after each impropriety counsel for defendant moved to pass the case and each motion was denied. He further argues that each motion for mistrial should have been granted and that together the improper references had the cumulative effect of denying him a fundamentally fair trial.
The first instance was McGonigle's testimony that upon his initial encounter with Werner outside Johnny Ray's, defendant asked him for drugs. At this point, counsel for defendant moved for a mistrial on the ground that this reference was "highly prejudicial." The trial justice denied the motion and commented as follows:
" his is such an integral part of the testimony of this witness that this was the only way in which the defendant allegedly or the shooter allegedly introduced himself to the witness, I really don't see how a reasonably, truthful sanitized version of that could be made and with the Court's curat
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