GUILTY VERDICTS
Jury verdicts below tried by lead prosecutor Assistant Attorney General David Morowitz.
A jury found each defendant guilty and they then appealed to the RI Supreme Court.
Supreme Court of Rhode Island
STATE v. Enid DIAZ
654 A.2d 1195
Feb. 20, 1995
Defendant was convicted of two counts of first-degree murder, for execution-style shooting deaths, following jury trial in the Superior Court, Providence County, Krause, J. Defendant appealed. The Supreme Court, Lederberg, J., held that: (1) circumstantial evidence supported convictions, and (2) defendant was not in custody when she gave statement falsely reporting that her handgun had been stolen.
Affirmed and remanded.
OPINION
LEDERBERG, Justice.
This case came before the Supreme Court on the appeal of Enid Diaz (defendant) from judgments of conviction on two counts of first-degree murder. After a jury trial in Superior Court, the defendant was sentenced to two consecutive life sentences. On appeal the defendant argued that the evidence presented by the state was legally insufficient to sustain first-degree murder verdicts and that a statement she gave to police falsely implicating others as the killers should have been suppressed as the product of an illegal detention. We affirm the judgments for the reasons stated below. The facts insofar as pertinent to this appeal follow.
FACTS AND PROCEDURAL HISTORY
Israel Sajche (Israel) owned a three-story building at 112 Eastwood Avenue in Providence, Rhode Island, and shared its first floor with Rafael Melo-Pena (Melo) and Jorge Luna-Ayala (Luna). On the second floor of the building, Israel’s brother, Eduardo Sajche (Eduardo) and Eduardo’s wife Isabel Sajche (Isabel) lived with her four children. The third story was unoccupied. Isabel was the only adult female living in the building at the time.
On November 23, 1990, Israel, who worked a night shift, retired at approximately 5 p.m. while his two roommates chatted in the living room. Sometime later he was awakened by loud banging on the door of the apartment. As he tried to go back to sleep, he heard a man and a woman “arguing heatedly” inside the apartment. Although he did not recognize the voices, he testified that the man’s voice was neither Melo’s nor Luna’s.
Immediately after the argument, however, Israel heard Melo clearly say in Spanish, “Por favor no hagas eso.” (“Please don’t do that.”) Israel testified that in Guatemala and Mexico, the use of the verb “hagas” suggested that Melo was familiar with the person to whom he was speaking, although Israel also testified that Melo was Dominican, and usage of that verb form was more common there. Israel next heard three shots fired from within the apartment, then heard people leaving quickly through the rear door. He heard no cars leaving the area. Shortly after, he discovered Luna’s body in the kitchen, blood streaming from his *1197 head. Israel called his brother Eduardo on the phone and said, “Please phone the police. Someone has been killed-Jorge.” Upon arrival, police also found that Melo was lying on the bed in his room with two gunshot wounds to his head. The time was approximately 7 p.m.
Isabel testified that sometime after 6 p.m. that evening, from the second floor, she heard three quick hammering noises, then a young woman’s voice say “shut the door” in Spanish (“sierra la puerta”). She testified that the voice had come from “very near by [ sic ]” and sounded “strong,” “like when someone is very scared.” Isabel did not hear any cars leaving the area. Eduardo testified that he had heard “three bangs” at about 6:40 p.m. but had not heard any voices.
Francis Garrity, M. D., a forensic pathologist in the Rhode Island Medical Examiner’s office established the cause of Luna’s and Melo’s deaths as gunshot wounds to the head. Melo’s blood contained cocaine metabolites, and unmetabolized cocaine was found in his nasal passages and urine, apparently consistent with a moderate ingestion of cocaine by snorting on the previous evening.
Initially the police had no leads in the killings. Eventually, however, the police learned from Melo’s sister that Melo on the day before his death, had told her that he was warned of a threat upon his life. According to his sister, Melo had a Puerto Rican girlfriend whose Dominican husband or boyfriend was looking for Melo in order to kill him. Melo had met the girlfriend at the factory where he formerly worked.
On Monday, November 26, 1990, police proceeded to the factory where they learned that Melo apparently had a relationship with a woman known as Zoraida Salgado, who no longer worked at the factory. The police obtained a photocopy of Zoraida Salgado’s Rhode Island identification card with an attached photograph and an address on Merino Street.
On Tuesday, November 27, while reviewing reports from the 24th and 25th of November, police found a report that a “nine millimeter automatic handgun” had been stolen from an apartment about four blocks from the murder scene. The police knew that a 9 millimeter automatic handgun was the weapon used in the two homicides, and noted the unusual coincidence that the telephone number of the person who had reported the gun stolen was the same as the number that had been written on a piece of paper, with no name next to it, found in Melo’s bedroom. The name of the person who had made the report was not Zoraida Salgado, but Enid Diaz.
When the police officers went to the address where the handgun had been reported stolen, defendant answered the door. Although the police concluded that she was Zoraida Salgado from the employer’s photograph, defendant introduced herself as Enid Diaz. The officers told her that they wanted to questions her about the stolen gun, and defendant invited them inside. The defendant told the officers that she had a party on Saturday, November 17 and had noticed later that the gun had been stolen from her bedroom closet. While inquiring about the party, one of the officers mentioned the names of Jorge Luna and Rafael Melo. The defendant asserted that she knew neither person, even after an officer produced photographs of the two men. When pressed, however, defendant took Melo’s photograph and said, “He kind of looks familiar. I may have met him when I was working.”
The officers then asked that she accompany them to the police station to give a statement regarding the stolen gun. Besides a commitment to drive her home, the officers made no promises or threats to defendant, who voluntarily accompanied them to the station. During the trip to the station, the officers mentioned the name Zoraida Salgado; defendant responded that she had lived with a Zoraida Salgado on Merino Street.
At the station, defendant gave a formal statement at 12:15 p.m. on November 27, 1990, reiterating her story of how the gun was stolen, and adding that $125 in cash lying beside the gun was also taken. The defendant reviewed and signed the statement. No threats or promises had been made by the police. At the time of trial, the gun reported stolen by defendant had not been found.
*1198 After taking defendant’s statement, the officer in charge of the investigation, Detective Frank Altomari (Altomari), asked her to wait for him, told her he would come right back, and went to confer with other officers. The defendant remained alone in the room for approximately one and one-half hours. Altomari testified that defendant was neither handcuffed nor under arrest.
At about 2:30 p.m., Altomari returned with a standard State of Rhode Island Rights form to the room where defendant waited. Altomari testified that at that point defendant was not in custody and was free to leave if she wished. The defendant filled out the form, which stated, “I, Enid A[.] Diaz, am a suspect in the crime(s) of murder (two)[.]” Altomari had defendant read to him the five rights printed on the form, asking after each whether she understood everything contained in the description of the rights. After she indicated that she did, Altomari asked her to place her initials next to each right. Altomari next asked defendant to read aloud to him the sentence immediately following the rights: “The police have made no threats or promises to me.” She did so and initialed the sentence. Altomari asked defendant, “Do you understand your rights?” The defendant indicated that she did understand, and she signed the form.
Altomari then asked defendant whether she would agree to speak with police. When she agreed, Altomari questioned her for about two and one-half hours about the double murder at Eastwood Avenue. The witness statement that resulted was six pages long and was signed by defendant. In the statement, defendant said that her estranged husband, Edwin Diaz (Edwin), and his brother, Sixto Diaz (Sixto), had come to her apartment on Friday, November 23. Edwin had taken her gun and ordered her to bring him to Melo’s home, ostensibly because Edwin was jealous of what he perceived was a relationship between Melo and defendant. The three drove to Melo’s home where Edwin instructed defendant to knock on the door. She did so, and someone she did not recognize answered. When the Diaz brothers ran into the apartment, defendant stated that she panicked and ran home before she could witness what finally occurred.
During the course of questioning and again after she reviewed her statement, defendant requested that the Providence Police protect her from Edwin and Sixto. Because the police believed her story, they agreed. The police moved defendant and her children to a local Holiday Inn hotel room where an armed policewoman was stationed to protect defendant. The defendant appeared grateful and comfortable with this arrangement, and was considered a protected witness, not a potential defendant.
Altomari returned to the police station that night and prepared an affidavit for arrest warrants for Edwin and Sixto.
The next morning, Wednesday, November 28, 1990, Altomari, his partner, his superior officer, and defendant met with Assistant Attorney General Gerard Sullivan (Sullivan) to discuss long-term protection for defendant. She was not informed of her rights at this meeting because she was not, at that point, considered a suspect in a crime. Sullivan and defendant discussed her present and future living conditions, her continued protection, and her expected testimony before the grand jury. Sullivan also spoke with her concerning possible relocation sites safe from Edwin and Sixto.
At approximately 5:30 p.m. that evening, Altomari learned that the Diaz brothers had been apprehended by Connecticut authorities who knew Sixto and Edwin as dangerous men. Altomari immediately traveled to New Haven to speak with the brothers concerning the homicides.
The case was not to be so neatly resolved, however. Sixto, luckily it turned out, had been the victim of a car theft, and at the very date and time that defendant alleged Sixto was in Rhode Island about to kill Melo and Luna, Sixto actually was filling out a police statement in the Orange, Connecticut police station. Edwin also had an alibi for the time of the murders. Altomari called Providence, vacated the warrants, and returned to Providence just before 1 a.m., November 29.
Altomari had defendant awakened at the hotel and brought to the police department, *1199 where she was told the Diaz brothers were in custody. The defendant seemed relieved, stating, “Thank God.” However, when told that the Diaz brothers did not commit the crimes defendant became very quiet. When asked why she would implicate two innocent men in a double murder, defendant replied that it was her word against that of the Diaz brothers, and that the jury would believe her because she was a woman. The police continued to question her, initially without response. When defendant was shown morgue photographs of Melo and Luna and asked if she had cared for Melo, she stated that she had wanted to date him. When shown pictures of Luna’s body and asked why he was killed, she replied, “He got in the way.”
The defendant then stated that it was her boyfriend Juan Munoz (Munoz) who committed the murders and that his motive for the killings was jealousy. The nature of defendant’s story remained the same as her earlier version, basically substituting Munoz for the Diaz brothers.
In her initial statement concerning the stolen gun, defendant had reported that when she had found the gun missing on Tuesday, November 20, she called D & L Guns (D & L), where she had purchased it, to obtain the serial number. When asked by Altomari why she had done this because she now claimed that the gun was not taken by Munoz until Friday morning, defendant said she had intended to sell the gun on the street and had phoned D & L to get the sales receipt to demonstrate the gun’s worth to potential buyers. The serial number was reported to her as 245RN12686. The interview with the police concluded at 4 a.m.
Altomari testified at trial that he had advised defendant that she was free to leave at that point. The defendant replied that she did not want to return home but wanted to remain with the police.
Sullivan testified that even after discovering that defendant had been “lying wholesale” about the Diaz brothers’ involvement, his office still considered her a protected witness. The police believed that she had lied to protect Munoz.
Later that day, defendant approached Detective Donna Carroll (Carroll), the policewoman assigned to protect her, and intimated that the murders were actually drug-related and that Melo had owed money to Munoz for drugs. She refused to speak further, however, until she had the opportunity to speak with Munoz.
That afternoon Sullivan visited defendant in her hotel room. The defendant repeated her account of the murder, adding that Munoz was not only jealous of Melo, but also that the two were involved in a drug dispute. She stated that she feared Munoz, with whom she had a pact that precluded her from making any further statements until she talked with him, under penalty of her family’s death. After defendant admitted that her actions so far were designed to protect Munoz, Sullivan assured her that police would attempt to locate Munoz. Again, defendant requested that she remain in protective custody.
The focus of the investigation then shifted to Munoz. At 7:45 a.m. the following day, Friday, November 30, 1990, Altomari learned that Munoz had been located in New York City. The suspect, however, was dead, having committed suicide the night before. The Browning automatic weapon that Munoz had used to kill himself had a different serial number from the one defendant had reported stolen and which was believed to be the murder weapon. Later that afternoon, Sullivan and two police officials went to the hotel to speak with defendant. They informed her that Munoz had been located in New York but did not reveal his death. The police again asked for information about the murders and defendant again refused. Sullivan then informed defendant that officials were becoming more suspicious of her role in the murders.
Sullivan returned to the police station and instructed the police to inform defendant of Munoz’s death. Sullivan further instructed that before taking any further statements from defendant, the officers should advise her of “her Miranda warnings.” The defendant at that point was orally advised of her rights because, Sullivan testified, the tenor of the investigation had changed to an accusatory*1200 one, and defendant may have believed at that point that she was no longer free to leave.
At the station, defendant reviewed a printed rights form with police, and Carroll took a statement from defendant at 4 p.m. At about 5 p.m. Friday, November 30, 1990, Sullivan decided to charge defendant with the murders.
In the second statement, again captioned “Witness Statement,” defendant stated that Munoz had been a heroin dealer, and that Melo had sold drugs for him. The defendant acted as a courier between the two, leaving heroin in a cement block in front of Melo’s apartment house while he left money there for her after picking up the heroin. Her story that she was not present at the killings remained consistent, though she stated that it was her gun, which she had reported stolen, that she saw in Munoz’s possession when he burst into Melo and Luna’s apartment.
Sullivan explained at trial that the factor that changed the focus of the investigation was that the weapon Munoz used to kill himself did not have the same serial number as the one defendant had reported stolen. According to Sullivan, had Munoz been found with the gun believed to be the murder weapon, “it would have been a different story.”
That same day, other incriminating evidence concerning defendant emerged. Joseph Izzo (Izzo), the previous owner of the Browning 9 millimeter automatic handgun, had sold the weapon to D & L from whom defendant purchased it. After receiving a call from the police, Izzo brought spent shells from that gun to the police. At trial, the state’s expert witness in firearm identification testified that to a reasonable degree of scientific certainty, five of the shells delivered to the police by Izzo matched the four shells which were taken from the kitchen and bedroom of the murder site. He further testified that test shells fired from Munoz’s gun found in New York and the shells from the murder site had not been fired from the same gun.
In addition, a clerk at D & L testified that at 11 a.m. on Monday, November 19, 1990, he received a telephone call at the store from a female who identified herself as Enid Diaz. The woman told him that her Browning 9 millimeter automatic handgun had been stolen and that the Providence Police had instructed her to consult its place of purchase to obtain its serial number. After locating the serial number in his books and papers, the clerk telephoned the woman and read the serial number to her. At trial the clerk identified a purchase slip of a Browning firearm with the serial number 245RN12686, the same as the serial number on the weapon defendant later reported missing.
The defendant’s brother testified that, in the past, defendant had carried a gun, and a Providence patrolman testified that on November 23, 1990, while investigating the murders, he had discovered a brown paper bag full of heroin in a cinder block under the front stairs of 112 Eastwood Avenue. Despite the fact that the area surrounding the bag was damp, the bag itself was dry, the patrolman testified.
* * *
Accordingly, the defendant’s appeal is denied and dismissed, the judgment appealed from is affirmed, and the papers in the case may be remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Tyrone SCHOLL
661 A.2d 55
June 23, 1995
Defendant was convicted in the Superior Court, Providence County, Bourcier, J., of robbery and felony murder. Defendant appealed. The Supreme Court, Weisberger, C.J., held that victim’s statements of identification were admissible under dying-declaration and good faith exceptions to hearsay rule, and were sufficiently reliable.
Affirmed.
OPINION
WEISBERGER, Chief Justice.
This case comes before us on appeal by the defendant, Tyrone Scholl (defendant or Scholl), from a judgment of conviction on two charges, the robbery of Clive Browne and the felony murder of Clive Browne. A jury found Scholl guilty of both crimes. The trial justice denied the defendant’s motion for a new trial and sentenced him to life imprisonment for the felony-murder conviction.FN1
FN1. As both sides indicate in their briefs, the trial justice refused to dismiss the robbery charge (although it merged with the felony-murder conviction) prior to the defendant’s appeal. The trial justice reasoned that in the event the felony-murder conviction was overturned on appeal, the defendant could still be retried for both robbery and felony murder. No sentence was imposed for the robbery conviction, however.
We affirm the judgment of the Superior Court. The facts of the case insofar as pertinent to this appeal are as follows. Additional facts will be furnished as needed to deal with specific issues raised in support of the defendant’s appeal.
On March 12, 1991, at approximately 7 p.m. Clive Browne (Browne) was attacked and robbed in an elevator at Parenti Villa, a public apartment building for the elderly, handicapped, and disabled. Browne was seventy-three years old at the time, confined to a wheelchair, and a resident of Parenti Villa. Browne did not report the incident to anyone on the night it happened. When his home-health care provider arrived the next morning at approximately 9 a.m., she summoned Judith Petronio (Petronio), the management aide at the complex. As soon as Petronio saw Browne “stumbling over in pain in his bed,” she went to her office (Browne did not have a telephone) and called the rescue service.
Two rescue technicians from the Providence fire department, Timothy Printer (Printer) and Lieutenant Louis Courtermache (Courtermache), responded to the call. Printer testified that when he first arrived at the apartment, Browne was sitting on his bed and appeared to be in pain. After failing to find Browne’s blood pressure and realizing that he was in extreme pain, Printer and Courtermache radioed the Roger Williams Medical Center and, using the rescue sirens, transported Browne to that hospital.
Courtermache testified during voir dire that when he asked Browne what had happened to him, Browne stated that he had been attacked the night before and was beaten and punched in the stomach. When asked why he had not reported the incident to anyone the night before, Browne stated that he had not wanted to bother anyone. Because they could not determine Browne’s blood pressure and because his stomach was very hard, both technicians suspected internal bleeding.
Detective John Corley (Corley) of the Providence police department spoke with Browne shortly after he had been transported to the Roger Williams emergency room. Corley testified that Browne told him that the previous evening when he was riding the elevator, another man got in. As soon as the doors closed, the man proceeded to punch Browne in the stomach several times and took twelve dollars from him. Browne described his attacker to Corley as a white male, five feet eight inches tall or taller, having a husky build and reddish-blond hair, and not cleanly shaven. Corley testified that Browne told him that he would be able to identify his attacker.
After meeting with Browne, Corley met two fellow officers, Sergeant Bathgate and Detective McGehearty (McGehearty) at Parenti Villa and checked the visitors sign-in log. McGehearty, who had been assigned to the case, recognized two names in the visitors log, Luigi Ricci’s and defendant’s, and knew defendant fit the description given by Browne. McGehearty went directly to the *58 police station and assembled two photo packs, one pack containing a picture of Luigi Ricci and the second pack containing a picture of defendant.
At approximately noon McGehearty returned to Roger Williams hospital with the two photo packs. After obtaining permission to meet with Browne, McGehearty asked him if he would be able to identify his attacker. McGehearty testified that Browne said yes because “he had seen [his attacker] in the building on prior occasions.” Since Browne had intravenous lines in both his arms, McGehearty held the pictures for Browne and showed him each picture individually. Browne did not recognize or identify anyone from the first photo pack, which contained the picture of Luigi Ricci and five other photographs. McGehearty showed Browne the second photo pack, which had five pictures including one of defendant. When Browne saw defendant’s picture, he “reached up and grabbed the photo, said ‘Yes, yes, that’s the face, those are the eyes.’ ” McGehearty then asked Browne if he recognized the man in the picture (defendant) to be the same person who had assaulted him. Browne replied, “I want to say yes. The hair is different so I can’t swear to it.” Browne said he would be able to make a positive identification if he saw a more recent photograph or the actual person.
Although McGehearty obtained a more recent photograph and returned to the hospital the next day, he was not permitted to speak to Browne. Browne underwent surgery the day after the attack and never regained consciousness. He was pronounced dead four days later on March 17, 1991.
At trial the state introduced the testimony of Gwendalyn Fuller, who was working as a security guard at Parenti Villa the night that Browne was attacked. She testified that on March 12, 1991, at 7 p.m. she saw Luigi Ricci and defendant sign the visitors log book on their way into the building. She further testified that she saw them sign the same log book at 7:10 p.m. on their way out of the building. In addition, the state presented the testimony of Clarissa DeAngelis, a professional document examiner, who testified that in her opinion Scholl was the person who signed his name in the log book on the night in issue. The state also offered the testimony of Dr. William Sturner (Sturner), who was the chief medical examiner for the state of Rhode Island from 1974 through 1991 and had performed the autopsy on Browne. He testified that in his opinion the cause of death was peritonitis caused by a rupture in the intestinal wall. Sturner further testified that the injuries found during the autopsy were all consistent with Browne’s recently having been struck in the abdomen. He testified that the blows to Browne’s abdomen administered with a moderate degree of force would have been enough to cause the injuries, and that in his opinion the manner of death was homicidal.
* * *
For the reasons stated, the judgment of the Superior Court is affirmed and the defendant’s appeal is denied. The papers in the case may be remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Edwin RIVERA
640 A.2d 524
April 15, 1994
Defendant was convicted in the Superior Court, Providence County, Israel, J., of first-degree murder, and he appealed. The Supreme Court, Shea, J., held that: (1) trial court was within its discretion in admitting photograph of murder victim depicting incision made by emergency medical personnel, and (2) review of trial court’s failure to pass case based on state’s failure to disclose statement made by defendant was procedurally barred.
Affirmed.
OPINION
SHEA, Justice.
This matter is before the Supreme Court on the defendant’s appeal from his conviction of murder in the first degree, for which he received the mandatory sentence of life imprisonment. We affirm.
The defendant, Edwin Rivera, was charged by criminal indictment No. P1/91-2942A on one count of first-degree murder. He was convicted after a jury trial and moved for a new trial. The motion for new trial was denied, and defendant then filed this appeal.
The defendant first asserts that the trial court erroneously admitted an unduly inflammatory photograph of the victim. He also argues that the trial court erred by failing to pass the case after a police officer testified about a statement made by defendant at the time of his arrest. The statement was not disclosed to defendant pursuant to Rule 16 of the Superior Court Rules of Criminal Procedure.
At trial the state’s expert in forensic pathology testified that he had performed the autopsy of the victim. He found that the cause of death was a single stab wound that had penetrated the heart. His examination of the victim’s body also revealed a neatly sutured seven-inch thoracotomy incision, evidence of resuscitative measures taken by emergency medical personnel. During the medical examiner’s testimony, two color Polaroid photographs taken during the external examination of the victim were admitted as full exhibits without objection by defendant. The photographs revealed the stab wound to the left upper chest and a defense wound on the right hand. The state also moved to admit an eight-by-ten-inch, black-and-white glossy photograph of the victim’s upper body depicting both the thoracotomy incision and the stab wound. The defendant objected, arguing that the photograph was cumulative, lacked probative value and was unduly inflammatory. The trial court overruled the objection and admitted the photograph.FN1
FN1. The trial court refused to admit two additional photographs offered by the state. The first showed the victim’s excised heart with a knife, thought to be the murder weapon, lying against a ruler in front of it. The second showed the knife penetrating the heart.
Another witness for the state, Officer James Mendonca (Mendonca) of the Central Falls police department, testified that on March 31, 1991, he and two other officers were summoned to 107 Sylvian Street, Central Falls, Rhode Island. Upon their arrival they saw a man, later identified as the victim, lying in the driveway and bleeding profusely. After calling for medical rescue, the officers proceeded to 91 Sylvian Street. They were let into the apartment and found defendant sitting in the kitchen. Mendonca testified that as the officers entered the kitchen, defendant rose and said something to the effect of “I didn’t do it, you can’t prove I did it, I’ve been here all day.”
* * *
For all these reasons the defendant’s appeal is denied and dismissed, the judgment appealed from is affirmed, and the papers of the case are remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Chantha LEUTHAVONE
640 A.2d 515
April 14, 1994
Defendant was convicted in the Superior Court, Providence County, Krause, J., of first-degree murder and other offenses. Defendant appealed. The Supreme Court, Lederberg, J., held that: (1) defendant’s waiver of Miranda rights was voluntary, knowing, and intelligent; (2) jury charge properly outlined elements of aiding and abetting; and (3) evidence was sufficient to support finding that defendant aided and abetted second person in murdering victim.
Affirmed.
OPINION
LEDERBERG, Justice.
This case came before the Supreme Court on the appeal of Chantha Leuthavone (defendant) from a judgment of conviction of first-degree murder, two counts of assault with a dangerous weapon, and illegal possession of a firearm. The primary issue on appeal is whether the defendant’s statement to the Providence police should have been admitted into evidence. After considering the defendant’s arguments, we deny his appeal and affirm the judgment of the Superior Court. A summary of the facts follows.
I
FACTS AND PROCEDURAL HISTORY
At approximately 9:45 p.m. on March 2, 1990, about twelve adults, including defendant, attended a going-away party in a second-floor apartment at 29 Moy Street in Providence, Rhode Island (Moy Street party). After consuming two alcoholic beverages, defendant apparently decided that it would be unwise to continue drinking on an empty stomach. It was at this point that a guest, Sonexay Phommachanh (Phommachanh), offered defendant a third drink. The defendant refused the drink, causing Phommachanh to call him “chicken.” This angered defendant, and a confrontation ensued. *517 Phommachanh allegedly proclaimed himself the “toughest guy in Boston,” whereupon defendant apparently warned that, because he (defendant) was a “big shot,” anybody who confronted him would “not * * * leave town.” Nonetheless a fight was avoided, and defendant and guest Lamphone Vorgvongsa (Vorgvongsa) left the party together. Upset and hoping to avoid trouble, the remaining party goers decided to relocate. As they left the apartment, went downstairs and prepared to depart, defendant’s silver Toyota Supra (Supra) suddenly appeared.
The car had three occupants: defendant, Vorgvongsa, and Phommachanh Daranikone (Daranikone). Although conflicting testimony was presented at trial, it appears that after leaving the Moy Street party, defendant and Vorgvongsa drove to Vorgvongsa’s house where Vorgvongsa took possession of a gun. They then drove to pick up Daranikone at 20 Inkerman Street where defendant smuggled a gun from Daranikone’s bedroom. The trio returned to the Moy Street party.
Upon arriving, they alighted from the Supra and encountered the other party goers. The defendant apologized to the group, whose members then decided to reconvene the party. There were no indications that defendant and Vorgvongsa were angry. Unbeknownst to the other guests, however, Vorgvongsa and defendant had armed themselves, defendant, in particular, with a handgun owned by his friend Daranikone.
After returning to the second-floor apartment, defendant and Vorgvongsa-who remained by each other’s side-entered the kitchen while the other guests gathered in the living room and tried to regain their partying spirit. At some point Phommachanh walked toward the kitchen, apparently in an effort to apologize to defendant. Suddenly, defendant sprang from the kitchen and pushed Phommachanh back into the living room. The defendant then pulled a handgun out of his jacket, and Vorgvongsa, who had followed defendant from the kitchen, drew a gun from the area of his ankle. Pointing at the party goers, defendant and Vorgvongsa each pulled the trigger of his gun. When defendant pulled his trigger, his gun was aimed directly at Phommachanh.
Fortunately, the guns did not fire, though the party goers scrambled for cover. The defendant removed the bullets from his gun and reloaded it. By this time, Phommachanh had run out the back door of the apartment and toward the street below. Screaming, “Let’s get him,” defendant and Vorgvongsa immediately pursued him through the back door and down the back steps of the apartment building. The trio disappeared from the other party goers’ view. Suddenly, three gunshots were heard.
The police were summoned. About two houses down the street from the apartment’s back steps, Phommachanh, still alive, was discovered. He later died of a single gunshot wound to the back.
Less than two hours later, Sergeant Timothy Patterson of the Providence police department spotted defendant’s parked Supra. He immediately summoned another police officer and placed the automobile under surveillance. About twenty minutes later, defendant and Daranikone left Vorgvongsa’s house and climbed into the Supra. As they began to drive away, the police blockaded the Supra and, with guns drawn, approached the vehicle and ordered its occupants to raise their hands. The defendant, sitting on the passenger’s side, bent over and placed his hands in the floor area of the car before both suspects were taken into custody. A gun and a pair of ski gloves were later discovered under defendant’s car seat.
Both defendant and Daranikone were jailed in Providence, and later-with the assistance of Officer Bounhevang Khamsyvoravong (Khamsyvoravong)-each issued a statement to the Providence police department. On August 29, 1990, indictment No. P1/90-2966B was filed, and it charged, inter alia, that defendant and Vorgvongsa, on March 2, 1990, had murdered Phommachanh in violation of G.L.1956 (1981 Reenactment) § 11-23-1. A jury trial was held in Superior Court, and on July 10, 1992, defendant was found guilty of murder in the first degree, two counts of assault with a dangerous weapon, and illegal possession of a firearm. On September 23, 1992, defendant was given a mandatory life sentence on the conviction of *518 murder in the first degree. In response, defendant, on September 23, 1992, filed the instant appeal pursuant to G.L.1956 (1985 Reenactment) § 9-24-32.
* * *
Accordingly, the defendant’s appeal is denied and dismissed, and the judgment of the Superior Court is affirmed.
Supreme Court of Rhode Island
STATE v. Richard HOUDE
596 A.2d 330
July 29, 1991
Defendant was convicted of second-degree murder after jury trial in the Superior Court, Providence County, Gemma, J. Defendant appealed. The Supreme Court, Weisberger, J., held that: (1) defendant’s inquiry to police whether there were any warrants outstanding for his arrest was relevant to issue of consciousness of guilt and was admissible despite existence of another possible explanation for inquiry; (2) witness’ verbal contacts with defendant over two-year time period established adequate foundation for her testimony identifying defendant’s voice as voice she heard over telephone; (3) trial court was not required to assign weight to absence of evidence of motive; (4) even if defendant was in custody from beginning of interview by police officers, defendant had been given his Miranda rights and voluntarily waived such rights so as to make incriminating statements admissible; and (5) any error in allowing testimony by detective that defendant’s account of altercation with victim given initially was different from that which he later gave to police sergeant was harmless.
Affirmed.
OPINION
WEISBERGER, Justice.
This case comes before us on the appeal of the defendant from a judgment of conviction of murder in the second degree entered in the Superior Court after a trial by jury. We affirm. The facts of the case insofar as pertinent to this appeal are as follows.
On October 5, 1987 at about 11:40 p.m. Patrolman Andrew Scanlon of the Providence police department discovered the body of a person later identified as Robert Smith (Smith) hanging from a public telephone near the corner of Eddy Street and Westminster Mall. A telephone cord was wrapped around Smith’s neck, and his knees were slightly elevated above the ground. The right side of the body leaned against the right-hand post of the phone booth. The cord had been looped one and one-half times around Smith’s neck and was still attached to the telephone.
At about 11:50 p.m. Patrolman Scanlon was joined by Sergeant Steven H. Hall. Sergeant Hall believed that Smith was dead when he first encountered the body.
Earlier that evening Smith had been in the Safari Lounge and had been told to leave after a heated verbal exchange with Nancy Duffy (Duffy), who served as a bartender at the lounge. Although Smith had been barred from the lounge some years before, he had made it his custom to enter the lounge almost every night for about three years. On each of these occasions Duffy would tell him to get out. Smith would curse at her and then leave. On the night of October 5, 1987 Duffy ordered him out of the lounge, and after about five minutes of directing verbal abuse toward her, Smith left. Duffy thought that this was merely a normal encounter.
During the exchange defendant Richard Houde (Houde), was in the bar. Duffy had known Houde for about two years. During that time he came into the bar about three or four times a week. Duffy had bought jewelry from Houde quite a few times. On this particular night Houde asked Duffy if Smith was bothering her. She had answered in the negative and said that he would leave “on his own.” Smith did leave at about 9:30 p.m. Somewhat later, at about 11:15 p.m., Houde left the bar also.
Approximately one-half hour after Houde left, an unidentified person “stuck [his] head in the door” and said that someone had hanged himself on the mall. Duffy ran outside and saw a man hanging from the phone by his neck. At the time she did not identify the body but went back inside and called the police. About 12:30 a.m. Duffy picked up the telephone and recognized the voice of the caller as that of Houde. Houde stated, “[Y]ou know the *332 ‘moulon yam’ that was bothering you? I beat him up” or “I took care of him” or “I did it,” Duffy recalled. She also testified that Houde may have said that “he won’t bother you again” or something to that effect. Duffy explained that “moulon yam” means a black person.
At about 3 a.m. Houde entered the Dunkin Donuts shop on Weybosset Street. This shop was located about one block from the Safari Lounge and Westminster Mall. Houde often patronized the Dunkin Donuts shop and was said by the night manager to be a regular customer. While Houde was in the shop, Patrolman John Carchia of the Providence police department came in and ordered coffee. Houde inquired of Carchia whether he was “wanted” for anything or if there were any warrants outstanding for him. Carchia, who knew Houde, obliged him by making an inquiry by radio. While Carchia waited for a response, Houde asked him about the incident on the mall. Although at the time the general assumption, according to Carchia, was that the death was a suicide, defendant asked whether it was murder.
Carchia left the Dunkin Donuts shop, and defendant followed him outside. Houde stated that he had been in a fight earlier in the evening with a black male and expressed concern whether in the scuffle the man had been hurt or even fatally injured. Carchia responded that he had not heard anything about such an incident. Houde reentered the Dunkin Donuts shop, and Carchia radioed Sergeant Steven Hall, his superior officer.
When Houde entered the shop, the night manager, James Silverthorn, asked Houde if he had heard what happened on the mall, referring to the body that had been discovered. Houde replied, “[A]re you kidding? I had a fight with a black guy over there tonight and I left a telephone cord around his neck.”
Patrolman Carchia and Sergeant Hall came to the Dunkin Donuts shop and asked Houde to step outside. One of them advised Houde of his Miranda rights. Houde stated in response to their inquiry that he had a fight on the mall near a telephone booth with a black male. Houde said that he had hit the man and wondered if he had hurt him. Houde stated that the man “got up and walked away” after the fight. Houde explained that he had been on the telephone attempting to contact his girlfriend when a black male about 35 to 40 years of age came up to him and asked him for money “to buy a drink.” Houde said that he refused to give the man money. In response to the refusal the man became belligerent and Houde got into a fist fight with him. Houde consented to go with Sergeant Hall in order to show him where the fight had taken place. As Hall drove down Westminster Mall, Houde pointed out the group of phones in front of 204 Westminster Mall where the victim was found. Houde told Hall that the fight had taken place at around 11 p.m. Shortly thereafter Houde was placed under arrest. He was later indicted for the murder of Robert Smith.
At trial Dr. Kristin Sweeney, deputy chief medical examiner, testified that the cause of Smith’s death was asphyxia due to ligature strangulation. She stated that the sternocleidomastoid muscle (a large muscle on the side of the neck) was torn in two in the front portion and extensively bruised in the back portion.
After deliberation the jury found defendant to be guilty of murder in the second degree. The trial justice denied defendant’s motion for a new trial, and on October 30, 1989, the trial justice sentenced Houde to forty years imprisonment at the Adult Correctional Institutions, of which twenty-five years were to be served and the remaining fifteen years suspended.
In support of his appeal defendant raises six issues. We shall consider these issues in the order in which they are raised in defendant’s brief. Further facts will be supplied as may be necessary in order to deal with these issues.
* * *
For the reasons stated, the defendant’s appeal is denied and dismissed. The judgment of conviction is affirmed. The papers in the case may be remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Carol TAYLOR
State v. Taylor
626 A.2d 201
June 15, 1993
Defendant was convicted of administering methadone to her five-year-old daughter and of murder of that child in the second degree. Motion for new trial was denied by the Superior Court, Providence County, Famiglietti, J., defendant appealed. The Supreme Court held that: (1) testimony of administrator of drug treatment program where defendant had been treated, concerning training clients generally receive about dangers of methadone, was admissible; (2) delivery of controlled substance to child, not under direction of physician in regard to dosage, is inherently dangerous for purposes of establishing guilt of second-degree felony-murder; (3) conviction of felony-murder was not precluded on theory that underlying felony must have been something other than lethal act itself; and (4) statute establishes strict liability standard of guilt for administering or giving methadone.
Affirmed.
REVISED OPINION
PER CURIAM.
This matter was before the Supreme Court pursuant to an order issued to the state and to the defendant, Carol Taylor, to appear and show cause why the issues raised in this appeal should not be summarily decided. After reviewing the extensive memoranda submitted by the state and by the defendant and after hearing their counsel in oral argument, this court concludes that cause has not been shown.
In this case defendant appeals from a Superior Court denial of a motion for a new trial. She had been indicted by a grand jury and was convicted, following a jury trial, of administering methadone, a controlled substance, to her daughter, aged five, and of murder of that child in the second degree. On appeal defendant raises several issues.
* * *
For these reasons the defendant’s appeal is denied and dismissed, the judgment of conviction appealed from is affirmed, and the papers of the case are remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. William MANIATIS
657 A.2d 149
April 18, 1995
Defendant was convicted after jury trial in the Superior Court, Providence County, Darigan, J., of first-degree sexual assault and five counts of second-degree sexual assault. Defendant appealed. The Supreme Court, Shea, J., held that: (1) trial court properly refused to allow impeachment of state’s witness through use of his juvenile record; (2) trooper’s report was inadmissible either as business record or as evidence of inconsistent prior statement; (3) defendant was not entitled to requested instruction that victims’ failure to report crimes could be considered in evaluating their credibility; and (4) sentence imposed on defendant was not excessive.
Affirmed.
OPINION
SHEA, Justice.
This matter came before the Supreme Court on the appeal of the defendant, William Maniatis (Maniatis), from a conviction following a jury trial in Superior Court of first-degree sexual assault and five counts of second-degree sexual assault. For the reasons that follow we affirm.
The victims in this case were teenaged girls who worked at Kitchen 44, a restaurant defendant and his wife owned and had operated since 1987, located on Route 44 in Glocester, Rhode Island. In addition to operating his own glass installation business, prior to trial, defendant was a constant fixture at Kitchen 44, where his wife managed the restaurant and defendant himself pitched in as a maintenance worker, Friday-night cook, and general all-around helper. Many of defendant’s relatives worked at the family restaurant as well as defendant’s three children. It was here at Kitchen 44 that all the second-degree sexual assaults occurred. The first-degree sexual assault took place inside the premises of a second restaurant, the Rocking Horse Tavern, also located in Glocester on Route 44, that defendant and his wife purchased in 1990.
The defendant was charged with committing various forms of sexual assault upon six young girls employed at Kitchen 44 and was convicted of sexually assaulting four of the girls who worked at this restaurant between 1988 and 1990. The record reveals a similar pattern or scheme was employed by defendant in all the assaults. At the outset, defendant would tickle the girls. Then, when he was alone with them, he would forcibly touch them on the outside of their clothing on their breasts or in their vaginal areas. The more isolated the victim, the more forceful and physical defendant became. Some of the girls were assaulted in a shed on the premises, others in the kitchen, another in the restaurant’s parking lot. All victims were employees of Kitchen 44 at the time as either waitresses or kitchen personnel. All assaults at Kitchen 44 occurred when other employees were present and sometimes able to witness some of the assaults.
Barbara was sixteen years old when she started working at Kitchen 44 in the summer of 1988.FN1 This witness testified that she was never alone with defendant until one particular evening in December of that year when she was getting ready to leave work. Because her car had been giving her trouble, Barbara attempted to start it and let it warm up before she left the parking lot. She left her apron, her coat and her pocketbook in the restaurant when she went outside to start the car, which then would not start. She then got out of her car and lifted up the hood to attempt to solve the problem. At this point, defendant suddenly appeared behind her and began “tickling underneath [her] arms,” then “started to move his hands.” Barbara had not seen Maniatis before he came up behind her while she was peering under the hood of her car. Obviously not in a position to defend herself, the *152 victim tried to back away but “[h]e was holding [her] forcefully” and she “couldn’t move.”
FN1. We have used fictitious names for all of the victims and witnesses in this case because at the time of the incidents these people were minors.
Barbara testified that “at first when he started tickling me, I was laughing because I was nervous. I was, like, why is he doing this to me? I tried to back away, and he had me, then he grabbed my chest, and then I-you know, was trying to move away more, then he grabbed my vagina.” He gripped her with his left hand while his right hand “[g]roped, squeezed, touched” her breast. She was “getting really scared” and struggled with defendant in an effort to break free, but he gripped her tightly and “moved his hand down and started grabbing” at her genital area. She testified that she felt he was pulling her away from the restaurant toward the shed or perhaps the nearby woods. Fortunately, she was able finally to break free and run into the restaurant whereupon she retrieved her coat and pocketbook and immediately left. She never went back to work there.
Barbara told defendant’s wife that her reason for not returning to Kitchen 44 was only that “the hours were too much.” She came forward to testify at defendant’s trial on her own initiative because when she heard that defendant had been arrested for first-degree sexual assault, she “felt guilty * * * because [she] felt [she] should have said something to somebody earlier and maybe it wouldn’t have happened.”
The next incident involved a second-degree sexual assault upon a fifteen-year-old waitress who was employed at defendant’s restaurant and whom we shall call Penelope. This incident occurred sometime between August 1988 and August 1990. A male employee who worked in the kitchen at Kitchen 44 in 1988 testified that he was walking to his car behind the restaurant at dusk when he saw Penelope “up against a freezer in the food shed” “trying her best to get away” as defendant held her and “was attempting to put his hand underneath her apron front and down her pants.” When defendant saw this male employee “he stopped doing what he was doing” and Penelope “got away instantly.”
Once they were both back inside the restaurant, this employee asked Penelope if she was all right and Penelope responded that “[s]he felt she could control it. It wouldn’t happen again.” Neither Penelope nor this employee reported the incident.
This particular male employee testified that there were “a lot of occasions where [Maniatis] would make contact with [Penelope] and other waitresses. It was * * * common practice. After a while, you didn’t notice it anymore, it was so common.” He testified that “[h]e would put his arm around the girls, you know, acting like he would be their friend, and he would grab them.” It was so common, this witness testified, that “[t]here was one every night that he had touched in some way.” This witness culminated his testimony by declaring that he had once heard defendant’s son, who was also working at the restaurant, say, “[K]eep it up, Dad, I’m going to tell Mom.” The defendant’s son denied this statement at trial. However, Penelope testified that she was the one whom defendant “grabbed” when his son “told him if he didn’t knock it off he was going to tell mom.”
The next prosecution witness was a fifteen-year-old male employee at Kitchen 44 who started working there under the previous ownership and was the only help there when the Maniatis’s bought the place in May of 1987. He was kept on and worked at Kitchen 44 continuously as a short-order cook until November 1990 when defendant learned that the young man had testified before the grand jury. This young man was the only prosecution witness who knew all the victims and was able to confirm a number of incidents involving defendant.
He testified that on one evening after the restaurant had closed, he and Maniatis and another waitress, Hope, were the only persons there. As his testimony recounted, he was cleaning up in another part of the restaurant when he heard Hope call his name from the restroom. It was a “frantic call,” and as he went toward the restroom, he found Hope against the wall “with a weird look on her face like something had happened.”
Hope testified that she was cleaning the restroom that evening when Maniatis came *153 in and began to talk to her. She finished her chores and as they “both walked out together,” Maniatis suddenly “pinned [her] up against the door and put one hand on [her] breast and one on [her] vagina and was just moving it around.” Hope was fifteen years old at the time of this incident. She immediately attempted “to move away and [was] screaming for [her co-worker],” but apparently he did not hear her right away. Hope testified that it “[m]ust have been three minutes” before he responded to her cries for help. When the young man went to the restroom in response to her plea for help, he saw Hope backed up against a wall with defendant just standing there. As Hope testified, “[I]t stopped when [he] got there.” Hope just walked away from the restroom and defendant but told her co-worker “never to leave [her] alone with him again.” She never told her parents or anybody else. She was too afraid.
Leslie, the next victim, was fifteen years old when she started working at Kitchen 44 in April of 1989. She testified that one night she went by herself to the food shed, a building located about thirty feet from the restaurant where food supplies were kept, to retrieve some supplies and suddenly discovered Maniatis behind her. The defendant asked her if she was “ticklish,” to which she replied she was not. The defendant “proceeded to tickle” her without her permission. Leslie testified that “he was behind me with his arms around me, and he was tickling me around my stomach area and, also, he went up towards my breasts and touched them.” Leslie “commanded him to stop” and attempted to “move his hands away,” but Maniatis continued to tickle her and “tried to go down towards” her vaginal area. Leslie further testified that she “crouched over and just told him to stop and then [she] just somehow pulled away and just walked out of the shed.” This incident, like the previous ones, also went unreported. Leslie testified that she was too scared to tell anyone.
The first-degree sexual assault upon Penelope occurred on August 10, 1990, and was the only assault that did not take place at Kitchen 44. This assault occurred at the Rocking Horse Tavern, a building located nearby, which defendant and his wife had recently purchased and were in the process of converting into a second restaurant. The only people present at this location when the sexual assault took place were defendant and the victim, who was seventeen years old at the time of this assault. As indicated, defendant had sexually assaulted Penelope two years earlier at the Kitchen 44 location. Here, at the Rocking Horse Tavern, defendant lured Penelope to this isolated location and proceeded forcibly to perform digital and penile vaginal intercourse upon her.
Penelope was now seventeen years old and had been working at Kitchen 44 for approximately two years when on the night of August 10, 1990, according to her testimony, Maniatis ¿raped¿ her. She testified to continual sexual harassment and assault all the time she had worked for the Maniatis’s. Recounting Maniatis’s sexual advances toward her during her two-year employment at his restaurant, Penelope testified that he “would make passes at me, sexual advances”; “[h]e would grab my butt, bump into me, accidentally hit my breast or he’d say things.” Maniatis would tell her that “we could go out, we should have an affair.” The defendant even offered to pay her $300 “to sleep with him.” He would follow Penelope to the supply shed quite often and, once inside, he “would grab at [her] and paw at [her].” Maniatis was relentless in making these sexual overtures to her.
Penelope “would push him away and tell him to stop” or would tell him that she “would quit if he didn’t knock it off and usually that would do it for then.” Penelope’s exhortations would often lead to a brief cessation and the sexual propositions would stop for a while. But the harassment always resumed.
Penelope had told a few coworkers “that he [Maniatis] would make me feel uncomfortable, that he was making passes at me, and they said they’d look out for me if I had to go into the shed”; “[t]hey would kind of rescue me if he followed me out there.” Penelope did not quit her job at Kitchen 44 because she and her family were in dire financial straits and her income from the restaurant amounted to a family necessity. When she *154 finally did tell her parents that her boss “was hitting on her,” her mother later acknowledged, they did not encourage her to quit her job, but took their daughter’s word that she “could deal with it.”
On the night of August 10, 1990, at the end of her work shift, Penelope testified that Maniatis asked her if she “wanted to go up and see the progress on the new restaurant [the Rocking Horse Tavern] because it should be opening soon.” Penelope was “interested in seeing how it was coming along,” but specifically asked “if anyone else was going to be up there” “because [she] didn’t want to stay with him alone.” Maniatis assured her that his wife and children would be there. Penelope walked in through a back door and found Maniatis there alone. She asked if his wife and children “were coming, and he said, yeah, that they were coming.” Maniatis began to show her around the new place. It had only been a few minutes since Penelope had arrived, and once she took a quick look around, she told Maniatis that it “looked nice” but “that [she] had to go.”
At this point Maniatis asked Penelope to “just come over here and look at this last thing.” Penelope obliged and followed him as he walked down a small hallway. They reached an open door in the hallway that was the entry to a small, unlighted utility room. As Penelope looked in, Maniatis pushed her into the room and trapped her in a corner with her face against the wall and unzipped her pants. Penelope was “crying, telling him to stop, trying to get away” but Maniatis pushed her to the floor and pulled her pants down. He first masturbated over her, then penetrated her vagina with his fingers, and finally used his penis. After ejaculating, Maniatis left the room and Penelope dressed, got into her car, and left. She never went back to the restaurant.
Penelope drove directly to her boyfriend Peter’s apartment after leaving the Rocking Horse Tavern. Peter was only a few weeks older than Penelope. They had known each other since they were ten years old. Peter testified that on the night of August 10, 1990, Penelope drove into the driveway where his apartment was located “[a]round tenish,” “very upset” and “crying.” He further testified that she “seemed zoned out and in her [own] little world,” “[s]he wasn’t the same.”
Peter was living with a friend, Paul at the time, and, when Penelope arrived, Peter and Paul realized that something had happened to her. Peter inquired as to what happened and Penelope told him that Maniatis “had bothered her at work and had hit on her.” Eventually Penelope told Peter she had been raped by Maniatis. She was obviously still very emotional and made Peter promise not to tell anyone. About fifteen minutes after arriving, Penelope drove home, leaving Peter alone.
Testimony was offered about interaction the next day among Penelope, her sister, and Peter, and eventually Penelope’s sister told their mother that Penelope had been raped. The disclosure came on the morning of August 12, 1990.
After trial Maniatis was found guilty of the first-degree sexual assault upon Penelope and of five counts of second-degree sexual assault, two upon Penelope, and one each upon Leslie, Hope, and Barbara. A verdict of not guilty was returned on a sixth count of second-degree sexual assault upon another teenaged girl who had also waitressed at Kitchen 44. The defendant received concurrent sentences of thirty years’ imprisonment for the first-degree sexual assault, fifteen to be served and fifteen suspended, with fifteen years’ probation to commence upon release. In addition, defendant received fifteen years’ imprisonment for each second-degree conviction, seven years to be served and eight suspended, with eight years’ probation to commence upon release.
* * *
For all these reasons the defendant’s appeal is denied and dismissed, the judgment of the conviction is affirmed, and the papers of the case are remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Roger T. LAMOUREUX
623 A.2d 9
April 6, 1993
Defendant was convicted of first-degree sexual assault, in the Superior Court, Providence County, Pederzani, J. Appeal was taken. The Supreme Court, Weisberger, J., held that: (1) evidence regarding prior uncharged case of sexual abuse, involving different victim, was admissible; (2) limitations on cross-examination did not constitute abuse of discretion; and (3) evidence supported conviction.
Affirmed.
OPINION
WEISBERGER Justice.
This case comes before us on the defendant’s appeal from his conviction in the Superior Court on one count of first-degree sexual assault. We affirm the conviction. The facts of the case insofar as pertinent to this appeal are as follows.
The complaining witness, Cynthia,FN1 testified that on the evening of April 10, 1987, she went alone to Sh-Booms, a Providence nightclub, at around ten o’clock. Cynthia sat at the bar and drank two glasses of wine, while looking around for her boyfriend. At about a quarter to twelve defendant, Roger T. Lamoureux, approached Cynthia and introduced himself as Roger. The two conversed. During this conversation defendant told Cynthia that he was married but separated from his wife, and that he had a child. Cynthia mentioned to defendant that she too had a child but was not married. Cynthia told defendant that she was looking for her boyfriend and that she was out of work. When defendant responded that he knew someone who was looking for a secretary, Cynthia wrote her telephone number on a napkin and gave it to defendant. The defendant asked Cynthia to dance; she agreed. After the dance defendant purchased Cynthia a drink.
FN1. This is not her real name.
At closing time defendant asked Cynthia for a ride home because, he said, his friends had left him behind. Cynthia agreed. They left the club together and shared a brief kiss outside Cynthia’s car. She then drove with defendant toward North Providence, stopping first at an Xtra Mart so that defendant could buy cigarettes. The defendant eventually directed Cynthia into the parking lot of an apartment complex in North Providence that defendant said was his residence. According to Cynthia, defendant up to this point had been acting like “a gentleman.”
When Cynthia stopped the car, however, defendant’s behavior changed radically. The defendant grabbed Cynthia, who is slightly built, by the shoulders and pulled her down on the seat. The defendant kissed Cynthia, who began to cry. The defendant told her to stop crying before he got “real mad.” Cynthia recalled at trial that defendant was at that time “very demanding” and “harsh.” The “tone of [defendant’s] voice, his eyes,” she said, put her in fear for her life.
The defendant demanded that Cynthia hold him because, he said, he had not been with a woman in six months. Cynthia complied, crying hysterically and asking defendant to let her go. The defendant then told Cynthia that she was “going to do one or the other,” that she would either “lick it or leg it.” The defendant ordered Cynthia to take off her clothes. Cynthia did so. The defendant removed his lower garments *11 while still on top of her, then inserted his penis into her vagina. After a time defendant removed himself. Cynthia did not remember defendant’s ejaculating.
The defendant then put his clothes back on and commanded Cynthia to do the same. Cynthia dressed and told defendant that she wanted to go home. The defendant got out of the car. He asked Cynthia if she was going to call the police or her boyfriend. Cynthia responded no, that she just wanted to go home. Cynthia then drove to the house of her mother, who lived nearby. When Cynthia told her mother what had happened, her mother called the police. Cynthia was taken to the hospital that night.
The defendant did not testify at trial. During his bail hearing defendant admitted to having had intercourse with Cynthia but claimed that it was by consent, not by force or coercion.
The state called as its first witness Lucille.FN2 Lucille, also a divorced mother, encountered defendant at Sh-Booms on the evening of April 1, 1987, nine days before complaining witness Cynthia. Lucille had driven to the nightclub at about nine thirty that night to meet a girlfriend. Before entering the club Lucille had “two puffs” of a marijuana cigarette. Once inside Lucille ordered a drink and waited. Sometime thereafter defendant approached Lucille at the bar and introduced himself as Roger. The defendant and Lucille conversed, speaking among other things of each other’s children, marital status, and church-going habits. During this conversation Lucille wrote her telephone number on a cocktail napkin for defendant but told him that she was not promiscuous. According to Lucille, defendant was acting in a “very gentlemanly” manner.
FN2. This is not her real name.
At closing time defendant said that his friends had left him behind and asked Lucille for a ride home. Lucille told defendant that she did not usually do such things, but would do so if defendant agreed to behave himself. The defendant agreed, and the two left the club together.
In the car Lucille drove north on Mineral Spring Avenue toward North Providence. As the car neared where defendant said that he lived, defendant gestured and said that Lucille could let him off “anywhere to the right.” Lucille, however, refused and drove on to the driveway of what defendant said was his home. In the driveway Lucille and defendant discussed going on a date. The defendant then leaned over and kissed Lucille, who pushed him away after a short time. The defendant then asked Lucille to “hug him.” Lucille complied with a brief embrace but quickly pulled away. The defendant then grabbed Lucille’s left breast. Lucille pushed defendant away and told him to get out of the car. The defendant responded by grabbing Lucille’s hand and directing it toward his penis. Lucille pulled her hand away and yelled at defendant to get out of the car.
The defendant then “went crazy,” according to Lucille; he began screaming at her and using obscenities. The defendant repeatedly told Lucille to touch him while Lucille screamed at defendant to get out of her car. The defendant had Lucille pinned between the two front bucket seats. Lucille managed nevertheless to get her left foot out the door and her hand on the horn. Soon thereafter a woman in a nightgown appeared at the side of the car. The woman said something to defendant, who got out of the car, swearing at the woman. Lucille thanked the woman, locked her doors, and drove away.
Lucille drove to her parents’ house where she and her daughter were living. Lucille testified at trial that she did not tell her parents of the incident right away because her father had just returned from the hospital and she was worried that he would have another heart attack. A few days after the event she went to the police. Lucille also testified that she had received a swollen lip and a bruised wrist from her encounter with defendant.
Counsel for the state focused on Lucille throughout the trial, spending more time with her than with complaining witness Cynthia. Although defendant objected repeatedly*12 to her testimony and made extensive offers of proof, the trial justice nevertheless allowed Lucille’s complete testimony into evidence. The defendant was not charged with the Lucille assault in the indictment before the court. The trial justice gave the following instruction to the jury on the admissibility of prior-crimes evidence:
“You have heard evidence of other criminal activity in the form of [Lucille] when she took the stand and indicated to you what happened to her. I instruct you that this evidence, if accepted by you, has only been introduced and may only be used for the limited purpose to establish the defendant’s intent, preparation, design, plan, scheme, system and absence of mistake or accident. It is not to be used to prove the character of a person in order to show he acted in conformity therewith.”
* * *
For the foregoing reasons the defendant’s appeal is denied and dismissed, the judgment of conviction appealed from is affirmed, and the case is remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Craig CARDOZA
649 A.2d 745
Nov. 15, 1994
Defendant was convicted after jury trial in the Superior Court, Providence County, Darigan, J., of first-degree child molestation, and he appealed. The Supreme Court, Shea, J., held that: (1) trial justice did not err in failing to give limiting instruction sua sponte immediately after victim testified to act of defendant which occurred outside time frame stated in indictment; (2) trial justice did not err in admitting evidence of uncharged bad act with attendant limiting instruction for purpose of showing scheme, plan, or design; and (3) trial justice properly considered motion for new trial.
Affirmed.
OPINION
SHEA, Justice.
This matter is before the Supreme Court on appeal by the defendant, Craig Cardoza, from a conviction, following a jury trial in Superior Court, of four counts of first-degree child molestation. The defendant alleges that his right to a fair trial was violated as a result of other-crimes evidence admitted and that the trial justice erred in denying his motion for a new trial. For the reasons set forth below, we affirm the conviction.
On October 11, 1990, defendant was charged by criminal indictment No. P1/90-3536A on four counts of first-degree child molestation upon the person of seven-year-old Albert FN1 (Albert or victim) in violation of G.L.1956 (1981 Reenactment) § 11-37-8.1, as amended by P.L.1988, ch. 219, § 1. In addition to the four counts of first-degree child molestation, defendant was also charged by indictment with two counts of second-degree child molestation on the person of Albert’s sister, Abigail FN2, in violation of G.L.1956 (1981 Reenactment) § 11-37-8.3, as amended by P.L.1988, ch. 219, § 1. This statement of the facts will be limited to the circumstances that relate only to the convictions of first-degree child molestation as defendant was acquitted by a jury of the two second-degree child-molestation charges.
FN1. Albert is a fictitious name.
FN2. Abigail is a fictitious name.
In 1985 defendant and his family moved into a home in Pawtucket directly across the street from the victim and his family.
Albert’s sordid experience began on his seventh birthday, December 10, 1988. On that day defendant, who was then seventeen years old, invited Albert over to his house under the guise of viewing picture books of coyotes, Albert’s favorite animal. Once they were alone in the house, defendant retrieved a pornographic magazine from under his bedroom mattress and displayed the pictures of naked men and women to Albert. On this same occasion defendant had Albert pull down his pants to his knees, at which point defendant pressed his penis against Albert’s buttocks. This initial incident was the prelude to a number of sexual assaults to be perpetrated by defendant on Albert over a considerable period of time, until close to the time of defendant’s arrest in March of 1990.
Albert was able to describe vividly many instances of both anal and oral sexual assault committed against his person in the isolation of defendant’s home. The acts were described in graphic detail by Albert and included a second instance of penetration of Albert’s anus by defendant’s penis and penetration of defendant’s anus by Albert at defendant’s direction; on another occasion defendant had Albert touch his groin, and on a fifth occasion, defendant with his pants removed ejaculated into Albert’s mouth. *747 Also, defendant once touched Albert’s penis with his hands and buttocks, and at another time defendant touched Albert’s buttocks with his penis when Albert was fully clothed.
Albert further testified about the time when he was directed by defendant to put his penis to defendant’s buttocks during which episode defendant wore a purple, heart-covered pair of women’s bikini under-wear. Another sexual assault occurred during an incident in which Albert put his mouth on defendant’s genitalia. Also, defendant directed Albert to put his mouth on defendant’s buttocks and anus because “it felt good.” The defendant also performed fellatio on the victim on three occasions.
Albert was able to recall specific aspects of these incidents in graphic detail. Albert never informed anyone about these acts of molestation because he was afraid and feared that defendant would carry out his threat to punch him. However, in March of 1990, Albert confided in a neighbor about defendant’s acts of molestation, “[b]ecause, first, I was sick of it, and, second, I didn’t like it.” The police were immediately notified.
Albert’s pediatrician since birth examined him on March 26, 1990, and testified that the examination revealed a dilated anal sphincter that was consistent with the victim’s claims of anal penetration by defendant. At the conclusion of the trial the jury returned a verdict of guilty on the four counts of first-degree child molestation. On April 14, 1992, defendant was sentenced to fifty years at the Adult Correctional Institutions, twenty-five years to serve, twenty-five years suspended, with twenty-five years of supervised probation to commence upon his release. Judgment of conviction was entered on May 1, 1992, and defendant filed a timely notice of appeal.
The defendant raises four issues on appeal. Additional facts pertaining to these issues will be discussed as necessary.
For the foregoing reasons the defendant’s appeal is denied and dismissed, the judgment of conviction is affirmed, and the papers of the case are remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Roger BRYANT
670 A.2d 776
Jan. 31, 1996
Defendant was convicted in the Superior Court, Providence County, Israel, J., of child molestation sexual assault and defendant appealed. The Supreme Court, Weisberger, C.J., held that: (1) conviction for first-degree child molestation sexual assault was not supported by evidence; (2) defendant voluntarily, knowingly, and intelligently waived his right to remain silent and right to counsel; (3) trial court did not abuse its discretion in permitting nurse to testify as expert witness; (4) court did not abuse its discretion in denying motion for mistrial; and (5) failure to instruct jury that they must find that defendant digitally penetrated child with intent of sexual arousal to convict him of first-degree child molestation sexual assault was reversible error.
Affirmed in part and reversed and remanded in part.
Bourcier, J., filed opinion concurring in part and dissenting in part with which Lederberg, J., joined.
OPINION
WEISBERGER, Chief Justice.
This case comes before us on the appeal of the defendant, Roger Bryant, from a judgment of conviction entered in the Superior Court on three counts of first-degree child-molestation sexual assault and one count of second-degree child-molestation sexual assault upon a five-year-old child to whom for purposes of this opinion we shall refer as Susan (not her true name). We sustain the appeal in part and deny it in part. The facts of the case insofar as pertinent to this appeal are as follows.
The defendant at the time of the incident in question was residing in the city of Pawtucket with his wife, Sharon, and her three children, Susan, Thomas, and John (not their true names). Susan and Thomas were born to Sharon in a former marriage. The defendant’s adopted daughter, Jean, learned from Susan that defendant may have sexually molested her. She confronted him with this information, and ultimately he admitted to Jean that he had shown Susan the difference between a good and a bad touch.
At trial, the evidence in support of the indictment tended to show that defendant had at some time between October 1991 and January 20, 1992, persuaded Susan to penetrate her own vaginal area with her finger (count 1). The evidence also tended to show that defendant had digitally penetrated Susan’s vaginal area between October 31, 1991, and January 20, 1992 (count 2). The evidence also tended to show that defendant engaged in sexual penetration, to wit, anal intercourse with Susan between October 31, 1991, and January 20, 1992 (count 3). The evidence further tended to show that defendant on the same dates engaged in sexual contact with Susan in violation of G.L.1956 (1981 Reenactment) § 11-37-8.3, as amended by P.L.1988, ch. 219, § 1 and § 11-37-8.4, as amended by P.L.1984, ch. 59, § 2, second-degree sexual assault (count 4).
Susan testified concerning these events, and the state also presented several witnesses, including Susan’s mother, who authenticated a letter written by defendant to one Thomas Hill. The state presented Detective Michael Malloy of the Pawtucket police department who interrogated defendant at the police station to which he was transported from Rhode Island Hospital after defendant had attempted suicide by slashing his wrists in a motel room. Further facts will be supplied in respect to this interrogation in the discussion of evidence submitted on a motion to suppress.
In support of his appeal, defendant raises five issues. These issues will be considered in the order in which they were raised in defendant’s principal brief and in a supplemental brief later filed. Further facts will be supplied as necessary to deal with these issues.
* * *
When defendant learned that criminal charges against him were imminent for child molestation, he went to a motel in Seekonk, Massachusetts, on the night of February 15, 1992. He testified in support of his motion to suppress that he drank a large quantity of vodka and slashed his wrists. Other evidence indicates that he wrote a farewell note to his family. He was transported by the Seekonk rescue personnel to Rhode Island Hospital where he was treated and his condition stabilized. Shortly after midnight on February 16, 1992, Officer James Forrestal of the Pawtucket police department came to the hospital and found defendant awake in bed with his wrists bandaged. At about 3:20 a.m., three Pawtucket officers including Forrestal transported defendant from the hospital to the Pawtucket police station. The defendant was not interrogated until 10 a.m. on the morning of February 16. Thus his interrogation began approximately fifteen hours after his consumption of vodka and his attempt at suicide.
The interrogation was tape-recorded and memorialized the fact that defendant had been given his Miranda admonitions and that he had executed a written waiver of his right to remain silent and his right to counsel. The defendant acknowledged on the tape that he had signed the written waiver. Police Detective Michael Malloy spoke on the tape, read the waiver provision, and asked defendant if he understood his rights as they were read to him. The defendant answered that he did. The defendant further agreed to speak to Detective Malloy. He acknowledged that he had been allowed to communicate with his wife by telephone. He also acknowledged that no threats or promises had been made to him by the Pawtucket police. The conduct of the police incident to this interrogation was impeccable, and the officers observed all defendant’s constitutional rights. Nevertheless, defendant argues that he was not mentally or emotionally equipped to care about his legal rights and that, therefore, his waiver was not voluntary, knowing, and intelligent. The trial justice who listened to the tape found that the conversation on defendant’s part was “in natural tones and as unemotional as people’s voices could sound.” During the suppression hearing the trial justice noted that defendant conceded that he understood each of the Miranda warnings.
* * *
For the reasons stated, the defendant’s appeal is sustained in respect to count 1 wherein he was entitled to a judgment of acquittal; his appeal is sustained in regard to count 2 by reason of his entitlement to a new trial with a jury instruction on the issue of sexual arousal or gratification; the other grounds of appeal are denied and dismissed, and his conviction in respect to counts 3 and 4 is affirmed. The papers in the case may be remanded to the Superior Court for further proceedings consistent with this opinion.
Supreme Court of Rhode Island
STATE v. Edmond A. BRISSON
619 A.2d 1099
Feb. 4, 1993
Defendant was convicted in the Superior Court, Providence County, Grande, J., of first-degree sexual assault, and he appealed. The Supreme Court, Fay, C.J., held that: (1) prosecutor’s loss of redacted portions of Department for Children and Their Families records requested by defendant did not require dismissal of indictment, and (2) trial judge properly allowed cross-examination of defense witness concerning his failure to inform law enforcement authorities of potentially exculpatory information.
Affirmed.
OPINION
FAY, Chief Justice.
The defendant, Edmond A. Brisson, appeals from a Superior Court conviction whereby he was found guilty of first-degree sexual assault. The defendant was sentenced to sixteen years’ imprisonment with eight years to serve, eight years suspended, and eight years’ probation. The defendant contends the trial justice erred (1) by denying the defendant’s motion to dismiss the indictment because of prosecutorial misconduct and (2) by improperly allowing impeachment of a defense witness.
* * *
*1101 John D. (John) testified to the following at trial: defendant married his mother, Helen Brisson (Helen), when John was eight years old. FN2 Approximately one year after the marriage, defendant began touching John in the area of his buttocks and penis. These incidents of touching occurred when John was fully clothed. The defendant explained to John that these incidents were mistakes or “accidents.” The defendant’s conduct progressed to a point where defendant would remove his own clothes and masturbate in John’s presence. The defendant, at times, would remove John’s clothes in order to touch John’s penis and would ask John to touch defendant’s penis. John testified that defendant would place John’s penis in defendant’s mouth. According to John, this behavior continued “like every other day” for approximately “a couple of years.” The defendant directed John “not to tell anybody” and would reward John’s silence with money or toys.
FN2. The fictional name John D. has been adopted to protect the victim.
During the summer of 1986, Helen and her two children left defendant and moved in with a friend, Nancy Cattles (Cattles). While staying at Cattles’s home, John received a telephone call from defendant inquiring if he had informed his mother of the activities that had taken place between him and defendant. John testified that at the conclusion of the telephone conversation he “was upset” and subsequently informed his mother and Cattles of defendant’s behavior. In an earlier statement to the Providence police and in testimony to the grand jury, John asserted he first informed Cattles and not both his mother and Cattles together. After learning of defendant’s behavior, Helen contacted DCF, and on July 8, 1986, a DCF social worker interviewed both John and Helen concerning the accusations.
Roger Boutin (Boutin), a cousin of defendant, testified that after the allegations were made against defendant, Boutin asked John if defendant had fondled him. Boutin asserted, “I asked John if he [defendant] fondled and you know touched his private spots, and John told me no; and then I asked John if he told his mother it was a lie, and he said yes, and then he said no.” Boutin neglected to report this conversation to police. The defendant was subsequently found guilty of first-degree sexual assault.
* * *
The defendant’s appeal is denied and dismissed. The judgment of the Superior Court is affirmed, and the papers of this case are remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Gerald BROWN
626 A.2d 228
June 22, 1993
Defendant was convicted in the Superior Court, Newport County, Needham, J., of sexual assault and child molestation. Defendant appealed. The Supreme Court, Murray, J., held that: (1) failure to give limiting instruction for ¿other acts¿ evidence of rectal penetration was harmless; (2) ¿other acts¿ evidence of rectal penetration was admissible to show lewd intent; and (3) evidence supported conviction for second-degree sexual assault of stepdaughter.
Affirmed.
OPINION
MURRAY, Justice.
The State of Rhode Island indicted the defendant, Gerald Brown, with four counts of sexual assault and child molestation. Count 1 charged the defendant with violating G.L.1956 (1981 Reenactment) §§ 11-37-8.1 and 11-37-8.2, as amended by P.L.1984, ch. 59, § 2, by digitally penetrating his daughter, Karen,FN1 a person under the age of thirteen. Count 2 charged the defendant with violating the same statutory provisions by engaging in vaginal intercourse with his daughter, Karen. Count 3 charged the defendant with violating § 11-37-4, as amended by P.L.1986, ch. 191, § 1, and § 11-37-5 by engaging in sexual contact with his stepdaughter, Monique. Count 4 charged the defendant with violating §§ 11-37-8.3 and 11-37-8.4, as amended by P.L.1984, ch. 59, § 2, by engaging in sexual contact with his son, Steven, a person under the age of thirteen. The state dismissed the fourth count of the indictment pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure.
FN1. We have changed the names of the children in this case.
After deliberation a jury convicted defendant on the first three counts of the indictment. The trial justice denied defendant’s motion for a new trial and sentenced defendant to serve thirty years at the Adult Correctional Institutions. The defendant appeals.
The testimony at trial disclosed the following facts. Doctor Maureen Ryall of Rhode Island Hospital and Women and Infants Hospital testified that she had examined defendant’s daughter for signs of physical or sexual abuse. Karen was eight years old at the time of trial. Doctor Ryall testified that Karen had scarring of the perineum, which is the skin in the area around the vaginal opening and the anus. Doctor Ryall stated that the piece of tissue partly covering Karen’s vagina, the hymen, was scarred and “stretched * * * [to] at *230 least a centimeter in diameter,” twice the size that the doctor would have expected in a child Karen’s age. Doctor Ryall also testified that she had performed a rectal exam of Karen and had found a “reflexed relaxation of the anal sphincter,” which indicated to the doctor that “there’s been some sort of pressure or fixture against the area on numerous occasions.” Doctor Ryall concluded that her examination of Karen revealed findings that were “consistent with sexual abuse.”
Following Dr. Ryall’s testimony, Karen testified concerning the sexual abuse. Karen said that defendant would ask her if she wanted to play a game and then defendant would “put his private into my private.” Karen also testified that defendant would “be taking his fingers and pushing it into me, my private.” Karen said that this activity continued for about two years. Although Karen stated that she did not know how many times defendant abused her, she testified that it happened a lot. Karen also testified that defendant warned her, “Don’t tell anybody or I’ll hurt you real bad.”
The defendant’s stepdaughter, Monique, testified concerning the count-3 charge that defendant had engaged in sexual contact with her. Monique said that at some point between January and June of 1986, when she was twelve or thirteen years old, she stayed home from school because she was sick. Monique stated that defendant told her on that day that he had heard that there was a virus “going around” and that he needed to examine Monique’s body. Monique testified that defendant had her lie on her bed, felt her upper body, including her breasts, and then felt and opened her vagina.
The defendant took the stand and denied these charges. The defendant denied ever having sexually assaulted Karen. Concerning the incident with Monique, defendant stated that the nurse at Monique’s school had told him that there was an outbreak of measles and chicken pox and that the nurse had instructed defendant to check for red blotches under Monique’s arms, on her chest, and behind her knees. The defendant denied ever having touched Monique’s vagina.
In defense, counsel questioned defendant and Sandra Furlong (Furlong), the ex-wife of defendant and the mother of Karen, Steven, and Monique, concerning their stormy marital relationship. The defendant testified that he and Furlong had filed for divorce on three separate occasions. The defendant also said that although a Family Court justice had granted defendant supervised visitation rights pertaining to Karen and Steven, Furlong refused to allow him to see his children. The defendant stated that Furlong told him that he would never see his children again.
Furlong also testified concerning these matters. She stated that she was extremely upset on November 4, 1988, the date that a Family Court justice granted defendant the right to visit with Karen and Steven in a supervised environment because “my children were scared to see [defendant].” Furlong stated that it was not until the day after the Family Court justice granted defendant visitation rights that Karen told her that defendant had been abusing her sexually.
Defense counsel used this evidence in closing argument and argued to the jury that defendant had been falsely accused. Defense counsel asserted that Furlong had manipulated Karen and Monique into falsely accusing defendant after Furlong learned that defendant would have the right to visit with the children. Notwithstanding this argument and the other points raised by defense counsel in closing argument, the jury convicted defendant on three counts of sexual assault and child molestation.
* * *
For these reasons we deny and dismiss the defendant’s appeal and affirm the judgment of conviction.
Supreme Court of Rhode Island
STATE v. Dennis EVANS
725 A.2d 283
Feb. 1, 1999
After defendant was convicted of bank robbery, defendant moved for new trial. The Superior Court, Providence County, Bourcier, J., denied motion. Defendant appealed. The Supreme Court, 687 A.2d 457, vacated and remanded. On remand, the Superior Court denied motion for new trial. Papers were returned to Supreme Court. The Supreme Court, Goldberg, J., held that newly discovered evidence including state’s failure to disclose agreement to write favorable letter to parole board on behalf of witness and to place witness in protective custody was merely cumulative and impeaching, and therefore did not warrant new trial.
Appeal denied and dismissed, judgment affirmed, and papers remanded.
OPINION
GOLDBERG, Justice.
This case represents what the trial justice described as the defendant’s obvious attempt to parlay his good fortune in one robbery case, which we overturned due to the state’s negligent failure to comply with discovery obligations, into the present case “by misleading the Supreme Court into believing that both cases had the same discovery failure and defect.” Having already remanded this case twice to the trial justice for his further consideration, we now conclude that the third time is not a charm for this defendant, and affirm his conviction. Because the posture of the instant appeal is so inextricably linked to this Court’s reversal of the previous robbery case, a complete discussion of both cases is required. We do so below.
Factual and Procedural History
On August 19, 1988, a lone masked gunman entered the East Providence Hospital Trust Bank carrying a white plastic shopping bag. The gunman quickly approached the bank’s tellers and after failing on his first attempt to vault over the counter, the undeterred gunman once again attempted to leap the counter, this time successfully. The gunman immediately ordered the bank’s tellers to open “both drawers” and “not to push the *285 [alarm] buttons.” Thereafter, the gunman approached four of the bank’s tellers, made a cash withdrawal at each of their stations, and deposited the contents into his shopping bag. After completing these transactions, the gunman hurdled the tellers’ counter once again and walked out of the bank.
Throughout the bank robbery, one of the bank’s tellers, Maria Quintanilha (Quintanilha), had been concentrating on the perpetrator’s face. Moreover, after the gunman exited the bank, Quintanilha was given an additional four to five seconds with which to view the robber’s unobstructed face when he passed by a large window and removed his mask. Quintanilha later explained that the gunman had distinctive eyes, “the kind of eyes that you can pick from a crowd,” and she explained to the police that if given the opportunity to view the perpetrator again, she could identify him.
Police transported Quintanilha to their East Providence station where she assisted in the composite drawing of the gunman, a drawing that was so accurate that the trial justice later would comment “that the trial jury must certainly have viewed [the drawing] as if they were actually watching [defendant] looking at himself into a mirror.” However, when shown a photographic array, Quintanilha was unable to identify the bank robber, and the August 19, 1988 crime remained unsolved.
Nearly six months later, on February 10, 1989, police again converged on the East Providence Hospital Trust Bank to investigate another robbery, this time by two masked men in their early twenties. Quintanilha informed the police that the mask of one of the perpetrators was so transparent that it did not conceal his facial features, and she subsequently described an olive-complected man with a thin mustache and black hair. In an attempt to identify the two February 10, 1989 perpetrators, Quintanilha again agreed to visit the East Providence police station, although unlike her previous attempt to identify the August 19, 1988 bank robber, this visit proved more fruitful. Quintanilha positively identified a photograph of Dennis Evans (Evans), defendant in this case, not as one of the February 10, 1989 bank robbers, but as the lone August 19, 1988 gunman. The following day, Quintanilha was shown another photographic array and identified David DiLibero (DiLibero), who was the boyfriend of Evans’ daughter, Dawn Evans, as one of the February 10, 1989 bank robbers.
Armed with this latest information and a warrant, police conducted a search of the apartment where DiLibero and Dawn Evans resided, and discovered incriminating evidence. In particular, the search revealed a handgun and a letter written by defendant Evans (while he was incarcerated at the Adult Correctional Institutions) to his daughter Dawn. Evans’ letter, which was written one day after the February 10, 1989 bank robbery, advised his daughter on avoiding detection by “[m]ak[ing] sure the wrappers are gone.” Evans also provided sound fatherly advice not to spend the stolen money too freely, and “to put some [money] aside for a lawyer [and] bail [in case] anything ever goes wrong.”
On May 24, 1991, something did go wrong, a Providence County grand jury returned a three-count indictment against Evans, charging him with the August 19, 1988 bank robbery, aiding and abetting the February 10, 1989 bank robbery, and conspiracy to commit robbery.FN1 A six-day jury trial was held during which the evidence against Evans was, as the trial justice would later term, “overwhelming.”
FN1. The grand jury also returned a two-count indictment against Dawn Evans for conspiracy to commit robbery and aiding and abetting the February 10, 1989 bank robbery; a five-count indictment against DiLibero for two-counts of conspiracy to commit robbery and three-counts of robbery (one of which was the February 10, 1989 bank robbery); and a two-count indictment against another individual.
Quintanilha testified regarding the accuracy of security camera photographs taken during the August 19, 1988 bank robbery. These photographs depicted the bank robber holding his left arm at a ninety-degree angle. Later, Doctor Thomas Bliss, an orthopedic surgeon, testified that one-month prior to the August 19, 1988 bank robbery, he had treated*286 Evans for two broken arms, and that Evans’ left arm had been placed in a nonremovable fiberglass cast and set at a ninety-degree angle. Doctor Bliss was also shown a security camera photograph in which he stated that “a whiteness that covers the back of the [robber’s] hand and goes over the wrist” was consistent with the placement of the nonremovable fiberglass cast on Evans’ left arm during his last examination on August 17, 1988. Furthermore, the state introduced the eyewitness testimony of Quintanilha, and the testimony of Darrell Kroll (Kroll), who stated that one day as he and Evans drove past the East Providence Hospital Trust Bank, Evans boasted of having robbed that bank.
Evans and his defense counsel were unable to overcome the onslaught of incriminating evidence. As a result, a Providence County Superior Court jury convicted Evans of the August 19, 1988 bank robbery, although it was unable to reach a verdict on charges that he aided and abetted the February 10, 1989 bank robbery.FN2 After denying defense counsel’s motion for a new trial, the trial justice sentenced Evans to serve fifty years at the Adult Correctional Institutions. Evans promptly appealed.
* * *
Conclusion
For the foregoing reasons, the defendant’s appeal is denied and dismissed. The judgment appealed from is affirmed and the papers in this case are remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Dennis EVANS
742 A.2d 715
Nov. 24, 1999
Defendant was convicted after jury trial in the Superior Court, Providence County, Bourcier, J., of bank robbery, and his motion for new trial was denied. Denial of motion was affirmed on initial appeal, 725 A.2d 283. On subsequent appeal, the Supreme Court, Weisberger, C.J., held that: (1) motion to sever charges was properly denied; (2) handgun was relevant and admissible; and (3) jury questions were presented as to knowledge and intent.
Affirmed.
O P I N I O N
WEISBERGER, Chief Justice.
This case comes before us on a second appeal by the defendant, Dennis Evans (defendant), from a judgment of conviction for bank robbery entered after a jury trial in Superior Court. The defendant was sentenced to serve fifty years at the Adult Correctional Institutions (ACI). In State v. Evans, 725 A.2d 283 (R.I.1999) ( Evans II ),FN1 this Court held that the defendant was not entitled to a new trial based upon newly discovered evidence. The defendant now raises other errors on appeal that were not decided in Evans II. We again affirm the defendant’s conviction. Only a brief rendition of the facts is necessary to our discussion. A well-documented recitation of the facts and travel of this case is contained in Evans II, 725 A.2d at 284-88.
FN1. The defendant was also convicted of another bank robbery unrelated to the instant appeal which occurred in Warwick, Rhode Island. See State v. Evans, 668 A.2d 1256 (R.I.1996) ( Evans I ).
On August 19, 1988, a masked gunman entered the Hospital Trust Bank in East Providence, Rhode Island (1988 robbery). He vaulted over the counter and demanded that the bank tellers at four stations deposit the cash at each station into his shopping bag. The gunman then vaulted over the counter and walked out of the bank. One of the bank tellers, Maria Quintanilha (Quintanilha), testified at trial that she concentrated on the gunman’s face while he emptied the cash registers. After he walked outside, she watched him remove his mask. For five seconds she could see his face unobstructed. Despite her observation, she was not able to identify the robber from photographs that the police showed her.
On February 10, 1989 (1989 robbery), the same bank was robbed, and again Quintanilha witnessed it. This time two masked men in their early twenties robbed the bank. Quintanilha testified that one robber’s mask was so transparent that it did not conceal his face. One of the robbers leaped over the counter, told Quintanilha and another cashier to open their bottom cash drawers, took the money, leaped back over the counter, and left. After the robbery, Quintanilha went to the East Providence police station. This time, when she was shown photographs by the police she was able to identify defendant, not as the gunman of the 1989 robbery but as the gunman from the 1988 robbery.
The next day Quintanilha was shown another photographic array. She identified David DiLibero (DiLibero) as one of the robbers from the 1989 robbery. DiLibero was the boyfriend of defendant’s daughter, Dawn Evans (Dawn). Both lived at 150 Harold Street in Providence, Rhode Island. The police conducted a search of this address after obtaining a warrant. The search uncovered a handgun and a letter written by defendant when he was incarcerated at the ACI. The letter was written on February 11, 1989, one day after the 1989 robbery. In it defendant tells his daughter that someone has accused him of planning the robbery that DiLibero had committed on the *718 previous day. The defendant cautions his daughter not to say anything about the robbery. He also writes, “[t]ell [DiLibero] to put some of his [money] aside for a lawyer + bail, if anything ever goes wrong * * *.” The defendant advises, “[d]on’t be stupid like I was and blow it all away.”
At trial Darrell Kroll (Kroll) testified for the state. He stated that while he was driving with defendant past the Hospital Trust Bank in East Providence, defendant told him that he had robbed the bank of about $40,000. Kroll stated that defendant told him that his method of robbing a bank was to wear a mask, leap over the counter, and take money only from the bottom of the cashier drawers because there were no dye packs in that money.
A grand jury returned an indictment charging defendant with committing the 1988 robbery, aiding and abetting the 1989 robbery, and conspiring to commit the 1989 robbery. The trial justice granted defendant’s motion for judgment of acquittal on the conspiracy charge. A jury convicted defendant of the 1988 robbery and acquitted him of the aiding and abetting charge. The trial justice sentenced defendant to serve fifty years at the ACI. The trial justice denied defendant’s motion for a new trial, a ruling which we affirmed. State v. Evans, 725 A.2d 283 (R.I.1999). The defendant now raises three issues on appeal that were not decided in his previous appeal. The issues will be discussed in the order in which they were presented in defendant’s brief.
* * *
For the reasons stated the defendant’s appeal is denied. The judgment of conviction is affirmed, and the papers in this case are remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Gerald ELLIS
656 A.2d 191
March 27, 1995
Defendant was convicted in the Superior Court, Providence County, Sheehan, J., of four counts of assault with intent to commit murder, one count of larceny, and one count of resisting arrest. Defendant appealed. The Supreme Court held that: (1) trial court properly declined to give defendant opportunity to substitute counsel; (2) defendant was not prejudiced by fact that juror saw him enter courthouse in handcuffs; and (3) defendant was not entitled to severance of one count from remaining counts.
Appeal denied and dismissed, conviction affirmed.
OPINION
PER CURIAM.
This case came before the court for oral argument February 24, 1995, pursuant to an order that had directed the defendant to appear in order to show cause why his appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by the appeal should be summarily decided. The defendant, Gerald Ellis, has appealed from his conviction of four counts of assault with intent to murder, one count of larceny, and one count of resisting arrest.
[1] The defendant does not challenge the evidence presented at his trial but does challenge orders of the trial justice declining to give him an opportunity to substitute other counsel for the member of the public defender’s trial staff who had been appointed to defend him and denying a continuance to defendant for the purpose of attempting to *192 find new counsel. The trial justice gave defendant a choice between going forward pro se or accepting the services of the public defender. At first defendant elected to go forward pro se in impaneling the jury but thereafter chose to be represented by the public defender.
* * *
For the reasons stated, the defendant’s appeal is denied and dismissed. The judgment of conviction is affirmed. The papers in the case may be remanded to the Superior Court.
Supreme Court of Rhode Island
STATE v. Frank GROSSI
588 A.2d 607
March 28, 1991
Defendant was convicted in the Superior Court, Providence County, Pederzani, J., of conspiring to deliver LSD into a prison, and he appealed. The Supreme Court held that: (1) an informant who implicated himself in the alleged drug-smuggling scheme and who gave verified information was sufficiently reliable, even though the informant had never before given information to the police, and (2) an alleged coconspirator who was called to the stand, who invoked his Fifth Amendment privilege, and who continued to refuse to testify even after he was granted immunity was ¿unavailable¿ and, therefore, it was appropriate to allow a detective to testify about statements made to the defendant by the alleged coconspirator at the time of arrest.
Appeal denied and dismissed; judgment affirmed.
OPINION
PER CURIAM.
On March 4, 1991, the defendant, Frank Grossi (Grossi), by his attorney, appeared before this court to show cause why his appeal from his conviction on a variety of offenses and from the trial justice’s denial of his motion for a new trial should not be summarily decided. The scene of the alleged crime was the Adult Correctional Institutions (ACI). In late February 1990 a Superior Court jury found Grossi guilty on four counts of an indictment that charged him with conspiring with another individual to deliver LSD into the ACI and conspiring with the same individual to deliver LSD to a third inmate who was part of the conspiracy. Another count charged Grossi with illegal possession of a hypodermic needle and syringe. Grossi was acquitted of the charge of possessing LSD.
* * *
Accordingly the defendant’s appeal is denied and dismissed, and the judgment appealed from is affirmed.
Supreme Court of Rhode Island
STATE v. Robert A. EVANS
618 A.2d 1283
Jan. 14, 1993.
Defendant was convicted in the Superior Court, Providence County, Famiglietti, J., of assault with intent to murder and he appealed. The Supreme Court held that: (1) the trial justice’s questioning of the defendant about his prior experience with guns did not serve to clarify any confusing matter and, therefore, was improper after the defendant admitted that he had fired a gun at the victim and explained that he feared a ricochet if he fired too low and hit the concrete sidewalk, and (2) a cautionary instruction was insufficient to cure the error.
Appeal sustained, judgment reversed, and case remanded for new trial.
OPINION
PER CURIAM.
This case came before the court on December 8, 1992, pursuant to an order directed to both the defendant and the state to appear and show cause why the defendant’s appeal from a conviction of assault with intent to murder should not be summarily decided. After considering the arguments and memoranda of counsel, we are of the opinion that cause has been shown and we sustain the appeal.
This matter arose out of an altercation between defendant, Robert A. Evans, and the victim, William Musco. Although both men parted ways for a few moments, there was a later confrontation between the two, at which time defendant admittedly fired a gun at the victim in an effort to scare him off. On cross-examination defendant testified that he was afraid that if he shot too low, the bullet would hit the concrete sidewalk and ricochet. After further cross-examination and over defendant’s objection, the trial justice questioned defendant about his prior experience with guns. The defendant responded that he had shot a .25-caliber automatic “a couple of times” before. Shortly thereafter, defendant made a motion to pass.
The trial justice denied defendant’s motion to pass. However, the trial justice offered a cautionary instruction to the jury upon defendant’s request. In her instruction the trial justice warned that,
“there are many legitimate circumstances under which a person is permitted to fire a weapon. The fact that he has done that is in no way to be recorded by you as evidence that he’s guilty, obviously, of this crime. That question had nothing to do with his guilt or innocence of this particular offense.”
* * *
Accordingly the defendant’s appeal is sustained. The judgment of conviction appealed from is reversed, and the case is remanded to the Superior Court for a new trial.
