Skip to main content
Rhode Island Judiciary Banner  
Supreme Court
Search
Rhode Island Judiciary > Courts > Supreme Court > Opinions  

Opinions

 
  
View: 
David F. Miller et al. v. Metropolitan Property and Casualty Insurance Company et al., No. 13-63 (April 17, 2014)
The defendant appealed from the denial of its motion to dismiss a cross-appeal filed by the plaintiff.  The defendant argued that the plaintiff’s cross-appeal was untimely pursuant to Article I, Rule 4(a) of the Supreme Court Rules of Appellate Procedure and should, therefore, be dismissed.  The plaintiff contended that the cross-appeal was timely.
 
The Supreme Court affirmed the Superior Court’s denial of the defendant’s motion to dismiss the plaintiff’s cross-appeal.  The Supreme Court held that Rule 4(a) must be interpreted in a manner that provides a twenty-day appeal period triggered by an appeal that constitutes the first appeal adverse to a potential cross-appellant’s interests.  In the case at hand, the plaintiff’s cross-appeal was filed in response to an appeal filed by the defendant, which was the first appeal in this multi-party case that was adverse to the plaintiff’s interests.  The Supreme Court accordingly held that Rule 4(a) provided a twenty-day appeal period triggered by the defendant’s appeal, during which the plaintiff was entitled to file a notice of cross-appeal in response. 
Name: 13-63
JPL Livery Services, Inc. d/b/a Ocean State Transfer v. Rhode Island Department of Administration et al.; JPL Livery Services v. State of Rhode Island et al., Nos. 13-119, 13-120 (April 17, 2014)
The plaintiff appealed from a Superior Court judgment in favor of the defendants.  The plaintiff and the defendants were parties to a service contract, in which the plaintiff agreed to provide livery services for the transportation of human remains.  The plaintiff challenged the trial justice’s findings that the contract was not exclusive and that the defendants’ unilateral termination of the contract did not constitute a breach.  The Supreme Court affirmed the judgment of the Superior Court.

The Supreme Court held that the defendants did not breach the contract when they began using their own personnel for livery services in addition to the services provided by the plaintiff, because the contractual language did not form an exclusive agreement.  The Supreme Court further held that the contract’s termination clause allowed the defendants to terminate the agreement upon a finding of unsatisfactory performance.  The Supreme Court also held that this language did not render the agreement illusory because the defendants retained some obligation under the agreement and were statutorily required to exercise good faith in the performance of their contractual relationship with the plaintiff.  Finally, the Supreme Court held that the trial justice did not err in her factual findings and credibility determinations when finding that the defendants had acted in good faith.
Name: 13-119, 13-120
State v. Jose L. Barrientos, No. 13-155 (April 17, 2014)
The defendant, Jose L. Barrientos, appealed from a Superior Court judgment of conviction declaring him to be in violation of the terms of his probation and sentencing him to five years of his previously suspended sentence.  On appeal, the defendant argued that the hearing justice erred because the evidence before him was insufficient to support his findings. In particular, the defendant argued that the state’s failure to provide testimony from a toxicologist regarding the identity of the substance seized from him—a substance that a field test revealed to be an opium derivative—was fatal to the state’s case.  In affirming the judgment of the Superior Court, the Supreme Court noted that the quantum of proof required to support a finding of probation violation is minimal.  Because a hearing justice need only be reasonably satisfied that an alleged violator has failed to keep the peace or be of good behavior, the Supreme Court held that the hearing justice was well warranted in reaching his determination that the defendant violated the terms and conditions of his probation.
Name: 13-155
Wilfredo Nunez et al. v. Merrimack Mutual Fire Insurance Co., No. 13-129 (April 17, 2014)
The plaintiffs, Wilfredo Nunez and Janette Campos, appealed the Superior Court’s grant of summary judgment in favor of the defendant, Merrimack Mutual Fire Insurance Company.  The plaintiffs filed a claim with their insurance company, Merrimack Mutual, for damage sustained when the oil line to their hot water heater corroded, leaking oil and damaging their basement.  Merrimack denied the claim and the plaintiffs filed suit in Superior Court claiming breach of contract.  The trial justice granted Merrimack Mutual’s motion for summary judgment, finding that the clear and unambiguous language of the insurance policy did not cover damage caused by corrosion.  On appeal, the plaintiffs argued that the damage was covered by a pollution exclusion clause in the policy.  The plaintiffs also argued that because the loss was unexpected from their perspective, it was covered under the policy.

The Supreme Court affirmed the judgment of the Superior Court, holding that the clear and unambiguous language of the insurance policy did not provide coverage for the type of loss incurred by the plaintiffs.
Name: 13-129
National Refrigeration, Inc. v. Capital Properties, Inc. et al. No. 11-54 (April 17, 2014)
The plaintiff, National Refrigeration, Inc., appealed from a Superior Court judgment granting the motion of defendants Capital Properties, Inc. and Capitol Cove, LLC for final judgment under Rule 54(b) of the Superior Court Rules of Civil Procedure in a mechanics’ lien action.  The plaintiff, acting as subcontractor to Providence Builders, LLC, performed work on a property that was owned by Capital Properties and leased by Capitol Cove.  When a dispute arose regarding payment, the plaintiff sought to enforce a mechanics’ lien against the owner, the lessee and the builder.  The lien was dismissed after the parties posted a $400,000 bond, pursuant to the provisions of G.L. 1956 § 34-28-17.  Capital Properties and Capital Cove then requested, and were granted, an entry of final judgment pursuant to Rule 54(b).

On appeal, the plaintiff argued that the owner, lessee, and the surety on the bond were all directly liable for the relief sought under the mechanics’ lien statute, and because the plaintiff complied with the requirements of the lien statute, judgment should be awarded in its favor.  The Supreme Court affirmed the judgment of the Superior Court, holding that a mechanics’ lien proceeding is an action in rem and that, once a bond is posted, it stands as security for the plaintiff’s claim and the property is no longer encumbered.  Therefore the claim against the owner and lessee was properly dismissed.
Name: 11-54
State v. Luis Barrios, No. 12-206 (April 17, 2014)
The defendant appealed from a judgment of conviction after a jury found him guilty of two counts of second-degree sexual assault.
  
On appeal, the defendant contended that the trial justice abused his discretion in denying the defendant’s motion for a new trial. The defendant specifically argued that reasonable minds could not differ regarding the evidence and the reasonable inferences drawn therefrom in this case and that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the defendant was the person who sexually assaulted the complainant.
 
The Supreme Court held that there was nothing in the record that would lead it to conclude that the trial justice was clearly wrong or that he overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 12-206
State v. Markus Matthews, No. 11-398 (April 11, 2014)
The defendant, Markus Matthews, appealed from his conviction on a single count of first-degree robbery.  On appeal, the defendant argued that his conviction should be vacated because (1) he was charged with two counts of first-degree robbery in violation of double jeopardy principles; (2) the admission of a recorded statement of a witness violated Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence and the Confrontation Clause; (3) certain testimony should not have been admitted as an adoptive admission of the defendant; and (4) the trial justice erred by denying his motion for a new trial.

The Supreme Court held that the defendant waived his double jeopardy argument by failing to raise the issue by motion prior to trial as required by Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure; nevertheless, even if the argument was not waived, the Court noted that the conviction of a single count of first-degree robbery does not violate double jeopardy.  Additionally, the Court held that the admission of a recorded statement of a witness did not violate Rule 801(d)(1)(A) or the Confrontation Clause, the adoptive admission testimony was properly admitted, and the trial justice did not err by denying the defendant’s motion for a new trial.  Accordingly, the Court affirmed the conviction.
Name: 11-398
State v. Kayborn Brown, No. 11-257 (April 11, 2014)
The defendant, Kayborn Brown, appealed from a judgment of conviction stemming from two incidents on August 4, 2008, in Central Falls and on August 6, 2008, in Providence.  Following these incidents, the defendant was charged with ten offenses.  After a jury trial, the defendant was found guilty for the murder of Jorge Restrepo in violation of G.L. 1956 § 11-23-1, first-degree robbery in violation of G.L. 1956 § 11-39-1, conspiracy to commit robbery in violation of G.L. 1956 § 11-1-6, carrying a pistol without a license in violation of G.L. 1956 § 11-47-8(a), and reckless driving in violation of G.L. 1956 § 31-27-4.  The defendant had been charged with five other counts; three of which were dismissed through Rule 48(a) of the Superior Court Rules of Criminal Procedure, and two were disposed of after the trial justice granted the defendant’s motion to acquit pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure.

On appeal, the defendant pressed five arguments.  First, he contended that the trial justice erred when he refused to sever the counts related to the August 4 incident from the August 6 offenses  because, the defendant alleged, those counts had been misjoined and should have been severed as a matter of law under Rule 8(a) of the Superior Court Rules of Criminal Procedure.  Next, the defendant maintained that, assuming the counts were properly joined under Rule 8(a), the trial justice nevertheless abused his discretion in refusing to sever pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure.  Third, Brown argued that the trial justice impaired the defendant’s right to a fair trial when he excluded a police sketch of the alleged murderer.  Fourth, the defendant claimed that the trial justice erred when he allowed the state to introduce three photographs taken during an autopsy performed on the victim.  Finally, the defendant asserted that the trial justice abused his discretion when he denied the defendant’s motion for a new trial.

The Supreme Court held that the trial justice had not abused his discretion when he found the counts had not been misjoined because Rule 8(a) favors joinder and because the offenses charged in the indictment were of a sufficiently similar character and were connected together to justify joinder.  Secondly, the Court held that the trial justice did not err when he denied the defendant’s motion to sever under Rule 14 because the defendant had not suffered additional prejudice by the admission into evidence of an unusual red firearm recovered after the August 6 incident that would have likely been mutually admissible at separate trials.

Next, the Supreme Court held that the defendant’s right to a fair trial had not been impaired when the trial justice refused to enter into evidence a police sketch and did not allow a police sketch artist to testify.  The Court held that the sketch artist would not have been able to authenticate the sketch because the declarant was not available at the trial.  Fourth, the Court held that the trial justice did not impede the defendant’s right to a fair trial when he allowed into evidence three autopsy photographs, to which the defendant had objected, because the photographs were at least marginally relevant and not enormously prejudicial to the defendant.  Finally, the Court held that the trial justice had not erred when he refused the defendant’s motion for a new trial because the trial justice reviewed the evidence, weighed the credibility of the witnesses, and made plain that he did not disagree with the jury’s verdict.

Accordingly, the Court affirmed the judgment of conviction.
Name: 11-257
Donald Panarello v. State of Rhode Island, Department of Corrections et al., No. 11-105 (April 7, 2014)
The plaintiff, Donald Panarello, appealed from a judgment of the Superior Court following a bench trial.  In her lengthy decision, the trial justice held that the defendant, the State of Rhode Island Department of Corrections (DOC), had not discriminated against the plaintiff due to his military status in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301 through 4335, or the parallel state statute entitled “Employment Rights of Members of Armed Forces,” G.L. 1956 chapter 11 of title 30, when it decided not to promote him on three occasions.  The plaintiff contended: (1) that, while the trial justice had correctly articulated the burden-shifting method of proof applicable in employment discrimination cases under the USERRA, she incorrectly applied it; and (2) that the trial justice overlooked or misconceived evidence that the plaintiff considered to be relevant, material, and supportive of his “prima facie” case of employment discrimination.
For actions under the USERRA and the parallel state statute, the Supreme Court adopted a two-part burden-shifting paradigm, articulated in the 2007 decision of the United States Court of Appeals for the First Circuit in the case of Velázquez-García v. Horizon Lines of Puerto Rico, 473 F.3d 11 (1st Cir. 2007).  The Court further held that the trial justice properly applied that two-part burden-shifting paradigm and did not overlook or misconceive material evidence. 
Accordingly, the Court affirmed the trial justice’s judgment in favor of the DOC.

Name: 11-105
Commerce Park Associates 1, LLC, et al. v. Monique Houle, in her capacity as Tax Collector of the Town of Coventry et al., Nos. 12-207, 12-210 (March 31, 2014)
These consolidated cases came before the Supreme Court on cross-appeals from a judgment of the Superior Court granting the defendants’ motion to dismiss the plaintiffs’ complaint for failure to exhaust their administrative remedies under G.L. 1956 § 44-5-26 and denying the defendants’ request for sanctions against the plaintiffs.  This is one of several cases in which the plaintiffs were challenging sewer assessments levied by the Town of Coventry.  The plaintiffs were also requesting injunctive relief to prevent a tax sale on their properties from proceeding.
  
In the first of these cases, the plaintiffs claimed that the hearing justice erred in granting the defendants’ motion to dismiss because the appeal process in § 44-5-26 was not applicable to sewer assessments.  In their cross-appeal, the defendants contended that their request for sanctions against the plaintiffs should have been granted by the hearing justice because of the plaintiffs’ various duplicative filings.
 
The Supreme Court concluded that the sewer assessments at issue were not taxes and, therefore, were not governed by the appellate procedures of chapter 5 of title 44.  The Supreme Court held that the plaintiffs were required to follow the procedure set forth in § 19 of the Coventry sewer enabling act, P.L. 1997, ch. 330, in order to challenge their sewer assessments.  The Supreme Court further held that the hearing justice had not abused his discretion in denying the defendants’ request for sanctions.  Accordingly, the Supreme Court vacated the judgment of the Superior Court as to the defendants’ motion to dismiss and affirmed the judgment as to sanctions.
Name: 12-207, 210
Kris Ellinwood et al. v. Scott B. Cohen et al., 13-125 (March 28, 2014)
In this automobile negligence action, the plaintiff Kris Ellinwood, his wife, and three children appealed from the Superior Court’s grants of summary judgment in favor of the defendant Scott B. Cohen.  The plaintiff, a patrolman with the East Providence Police Department, was struck by a vehicle driven by a third party while responding to an automobile accident involving the defendant.  The Superior Court concluded that the “public-safety officer’s rule” barred the plaintiff’s negligence claim.  On appeal, the plaintiff argued that the public-safety officer’s rule was inapplicable because the defendant failed to warn him that glare from the morning sun was impairing the vision of approaching motorists.
   
The Supreme Court held that the Superior Court properly applied the public-safety officer’s rule.  The Court reasoned that a police officer responding to a roadside emergency could reasonably anticipate the risk of being struck by another vehicle.  The Court rejected the plaintiff’s assertion that a motorist who has just been in an accident on a public roadway has a legal duty to warn a responding police officer of the possible dangers of sun glare.
   
Accordingly, the Court affirmed the judgment.
Name: 13-125
State of Rhode Island ex rel. Town of Little Compton v. David Simmons, No. 12-251 (March 25, 2014)
The state, through the Town of Little Compton, petitioned the Supreme Court for a writ of certiorari seeking review of a District Court decision that dismissed a charge of driving under the influence against the defendant, David Simmons.  Police officers from Little Compton located Simmons in Tiverton and transported him back to the scene of an automobile accident in which the defendant had been involved in Little Compton.  The defendant subsequently failed field-sobriety tests and was arrested.  The hearing judge dismissed the charges after she found that the police had effectively placed the defendant under arrest in Tiverton, which exceeded their authority because the arrest was outside their jurisdiction.  The Supreme Court granted the petition to consider whether the interaction in Tiverton between the defendant and the Little Compton police officers amounted to an arrest.

After a review of the record, the Supreme Court held that the defendant had not been arrested in Tiverton, after weighing the factors outlined in State v. Bailey, 417 A.2d 915, 917 (R.I. 1980).  Specifically, the Court held that even though the defendant’s freedom of movement had been curtailed, Simmons had not been subjected to any degree of force by law enforcement and had voluntarily accompanied the police back to Little Compton.  The Court concluded that a reasonable person in like circumstances would have felt free to leave.

Accordingly, the Supreme Court quashed the judgment of the District Court and remanded the case with its decision endorsed thereon.
Name: 12-251
Peter W. Russo v. State of Rhode Island, Department of Mental Health, Retardation and Hospitals et al., No. 11-360 (March 24, 2014)
The defendant, the Rhode Island Department of Mental Health, Retardation and Hospitals, appealed from a judgment of the Superior Court that was entered on November 8, 2010, following a bench trial.  The trial justice found in favor of the plaintiff Peter W. Russo holding that the defendant had violated the Rhode Island Whistleblowers’ Protection Act (WPA), G.L. 1956 chapter 50 of title 28, when it placed the plaintiff on administrative leave with pay and required that he undergo an independent medical examination (IME).  The defendant contended on appeal that the trial justice erred in finding: (1) that paid administrative leave and the requirement to undergo an IME constituted a “discharge, threat[], or * * * discriminat[ion]” under the WPA; (2) that the plaintiff had reported violations of a “law or regulation or rule promulgated under the law of [Rhode Island]” (which is one of the preconditions for obtaining relief under the WPA); (3) that there was a causal connection between the plaintiff’s reports at issue in the case and his placement on paid administrative leave; and (4) that the defendant did not have “legitimate nonretaliatory” grounds to place the plaintiff on paid administrative leave and require that he undergo an IME.

The Supreme Court held that placing an employee on paid administrative leave with the requirement that he or she undergo an IME, as happened in this case, did not constitute an action which “discharge[d], threaten[ed], or otherwise discriminate[d]” against the employee in violation of the WPA.  Accordingly, the Court vacated the decision of the Superior Court and held that the defendant did not violate the WPA.
Name: 11-360
State v. Nayquan Gadson, No. 11-97 (March 13, 2014)
The defendant, Nayquan Gadson, appealed the Superior Court’s judgment of conviction for second-degree robbery.  On appeal, the defendant contended that the trial justice erred: (1) in failing to dismiss the second-degree robbery charge in view of what the defendant contends was a “not guilty” finding by the jury on the lesser included offense of larceny from the person; (2) in denying the defendant’s motion to sever Count Six, which charged a codefendant (and him alone) with carrying a handgun without a license; and (3) in denying the defendant’s motion in limine seeking to “preclude the State from submitting or referring to: * * * any alleged connection between Gadson and the firearm used by [another person] to commit the robbery.”

The Supreme Court held that the defendant waived his right to have the Court consider his argument that the trial justice erred in failing to dismiss the second-degree robbery charge against him and his argument that the trial justice erred in denying his motion in limine.  The Supreme Court further held that the codefendant was properly joined in the indictment with the defendant under Rule 8 of the Superior Court Rules of Criminal Procedure and that the trial justice did not abuse his discretion in denying the defendant’s motion pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure to sever Count Six against the codefendant from the trial of both of the defendants on Counts One through Five.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 11-97
Langdon Wilby et al. v. Paul Savoie, Alias, No. 2012-141 (March 12, 2014)
The plaintiff, Paul Savoie, appealed from a judgment in favor of the defendants, Langdon Wilby and Tammy Emmett.  The plaintiff and the defendants were members of the board of directors of a Vermont corporation formed for the purpose of reconstructing and operating a defunct racetrack in the Town of Pownal, Vermont.  The plaintiff invested $350,000 in the venture before the project was ultimately abandoned due to issues surrounding the corporation’s ability to obtain a racetrack license.  The plaintiff brought claims against the defendants for breach of fiduciary duty, breach of contract, and fraud.  After a bench trial in Superior Court, the trial justice entered judgment for the defendants on all counts.

On appeal, the plaintiff presented three arguments.  First, the plaintiff argued that the trial justice erred by failing to address the plaintiff’s claim that the defendants fraudulently induced him to invest in the corporation.  Second, the plaintiff argued that the trial justice erred by failing to hold the defendants accountable for their breach of fiduciary duties.  Third, the plaintiff argued that the trial justice made clear errors of fact, drew unreasonable inferences from the evidence, and overlooked and misconceived material evidence when he concluded that the plaintiff knew of, and was partially responsible for, the defendants’ mismanagement of the corporation.
 
The Supreme Court affirmed the judgment of the Superior Court.  The Supreme Court held that the trial justice did address the plaintiff’s fraud claim, and that the trial justice appropriately found no evidence of an intention to misrepresent or defraud.  The Supreme Court further held that the trial justice did not find that the defendants breached any fiduciary duties owed to the plaintiff, and that the trial justice’s findings on this issue were not clearly erroneous.  Finally, the Supreme Court held that the trial justice did not overlook or misconceive material evidence, nor were his factual findings clearly erroneous, with regard to the plaintiff’s knowledge of and participation in the mismanagement of the corporation.
Name: 12-141
Charles Burns et al. v. Moorland Farm Condominium Association, et al., No. 11-107 (March 10, 2014)
The defendant Moorland Farm Condominium Association (the association) appealed a judgment of the Superior Court that concluded that assessments to pay for repairs to decks attached to certain condominium units were illegal.  Condominium owners sued to avoid paying special assessments allocated to the repairs of decks in the condominium development.  The trial justice concluded that the decks were parts of the individual units rather than common areas and that therefore the repairs must be paid by the individual unit owners.

On appeal, the association first argued that the trial justice erred by allowing the case to proceed despite the absence of the unit owners who would bear the responsibility of paying for the repairs if the decks were not considered common areas.  The association additionally assailed the trial justice’s determination that the decks were not common areas and his decision to exclude an affidavit from an expert witness.  Finally, the defendant contended that the trial justice should have granted its motion for relief from judgment, filed according to Rule 60(b) of the Superior Court Rules of Civil Procedure, and that the motion did not warrant sanctions pursuant to Rule 11 of the Superior Court Rules of Civil Procedure.

The Supreme Court vacated the judgment of the Superior Court.  The declaratory-judgment act requires joinder of all parties who have an interest that may be affected by the declaration.  The plaintiffs did not join as parties to the lawsuit the owners of condominium units who would need to pay the reallocated assessments should the original assessments be declared illegal.  This was fatal to the action.

Accordingly, the Court declined to review the trial justice’s decision regarding whether the decks were common areas, whether to exclude the expert affidavit, or whether to grant the defendant relief from the judgment.  The Supreme Court determined, however, that the issue of the Rule 11 sanctions was reviewable and held that those sanctions were improper.
Name: 11-107
Donna Rose v. Christopher Cariello et al., No. 12-59 (March 4, 2014)
The defendants, Christopher Cariello and James Cariello, appealed from a judgment of the Superior Court granting the plaintiff’s motion for a new trial and/or additur, after a jury trial in this negligence action.  On appeal, the defendants argued that the trial justice erroneously substituted his own judgment for that of the jury in considering the facts of the case and that he erred in granting the motion for a new trial on the basis of the inadequacy of damages.
  
The Supreme Court concluded that the trial justice engaged in the proper analysis in considering the motion for a new trial and that his findings were supported by sufficient evidence in the record.  The Supreme Court also held that the trial justice was not clearly wrong in his determination that the jury’s award of damages was inadequate.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-59
Carmella Bucci v. Hurd Buick Pontiac GMC Truck, LLC et al., No. 11-163 (March 4, 2014)
The plaintiff, Carmella Bucci, appealed entry of summary judgment in favor of the defendant, Hurd Buick Pontiac GMC Truck, LLC, Hurd Buick Pontiac GMC Truck, LLC d/b/a Regine Pontiac GMC, and Hurd Chevrolet, Inc.  The defendant fired the plaintiff at the age of seventy-two after the defendant had employed her three times over a period of five years.  The plaintiff filed claims of age and disability discrimination claiming that the defendant had unlawfully fired her.  In granting the defendant’s motions for summary judgment, the Superior Court declared that there were no genuine issues of material fact and that the defendants had not engaged in unlawful age or disability discrimination.  On appeal, the plaintiff argued that the trial justice erred in applying the three-step framework as outlined in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), which this Court adopted in Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights, 484 A.2d 893, 898 (R.I. 1984).  Specifically, the plaintiff argued that the trial justice erred in finding that the defendant had met its burden of production in providing legitimate nondiscriminatory reasons for discharging her and that the plaintiff had not demonstrated that the reasons given for her termination were pretextual.

The Supreme Court held that the plaintiff’s claim of disability discrimination was not properly before the Court because the plaintiff did not develop this aspect of her appeal in the submitted brief.

The Supreme Court also held that because the defendant’s burden was limited to one of production and not persuasion under the second step of McDonnell-Douglas, the defendant had met this burden by proffering several legitimate reasons for the plaintiff’s discharge that were not discriminatory.  Finally, the Supreme Court held that the plaintiff had not shown that the defendant’s reasons for the plaintiff’s termination were pretextual.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 11-163
Reynalda Weeks v. 735 Putnam Pike Operations, LLC d/b/a Greenville Skilled Nursing and Rehabilitation, No. 12-356 (February 28, 2014)
The plaintiff, Reynalda Weeks, appealed from an order of the Providence County Superior Court entered on January 30, 2012, staying her employment discrimination case (brought pursuant to the Rhode Island Civil Rights Act (RICRA), G.L. 1956 chapter 112 of title 42, and the Rhode Island Fair Employment Practices Act (FEPA), G.L. 1956 chapter 5 of title 28) in that court and ordering that the “matter * * * be resolved through binding arbitration as required by the governing Collective Bargaining Agreement between the parties.” On appeal, plaintiff contended that the hearing justice erred when she granted defendant’s motion to stay because the collective bargaining agreement’s arbitration provision did not preclude the plaintiff from asserting her statutorily created rights (under the RICRA and the FEPA) in a judicial forum.

The Supreme Court held that the right to a judicial forum for claims brought specifically under the RICRA or the FEPA may be waived in a collective bargaining agreement only if that waiver is clear and unmistakable; the Court further held that the collective bargaining agreement in the instant case did not contain such a clear and unmistakable waiver. Consequently, the Court vacated the order of the Superior Court and held that the collective bargaining agreement did not require the plaintiff’s RICRA and FEPA claims to be arbitrated.
Name: 12-356
Alexander Rose v. State of Rhode Island, No. 12-129 (February 24, 2014)
The applicant, Alexander Rose, appealed from a Superior Court judgment denying his application for postconviction relief.  Rose previously pled nolo contendere to one count of first-degree child molestation and received a twenty-year sentence, with eight years to serve and twelve years suspended with probation.  In a post-conviction relief application filed in October 2010, Rose argued that he was no longer subject to the custody of his probation officer because he had successfully completed his period of probation.  The hearing justice denied Rose’s application, reasoning that Rose’s probationary period did not end until March 2014.
 
On appeal, Rose argued that his “good-time” credits and credit for pre-trial confinement should have accelerated the end date of his probationary period.  After careful consideration, the Supreme Court rejected Rose’s arguments.  The Court held that Rose’s credits for good time were properly applied to reduce his term of incarceration but could not be used to reduce the overall length of his sentence below the mandatory minimum sentence of twenty years.  The Court likewise held that the amount of time that Rose spent confined while awaiting trial was correctly credited towards his eight-year term of incarceration but did not make his twenty-year sentence retroactive.  Accordingly, the Court affirmed the Superior Court’s judgment.   
Name: 12-129
Barbara C. Cayer v. Cox Rhode Island Telecom, LLC d/b/a Cox Communications et al., Nos. 12-23, 12-24 (February 21, 2014)
The plaintiff, Barbara C. Cayer, was injured after the car she was driving was rear-ended by a van driven by the defendant Nelson Ovalles.  Cayer filed suit against Ovalles, his wife, and the defendant Cox Rhode Island Telecom, LLC d/b/a Cox Communications (Cox).  At the time of the accident, Ovalles was acting as a cable technician on behalf of Cox and M&M Communications, Inc. (M&M), a contractor for Cox.  Cox obtained summary judgment after a Superior Court justice determined that Ovalles was not an employee of Cox.  The plaintiff then attempted to amend her complaint to add claims against M&M.  A different justice of the Superior Court denied that motion on the basis that the claims against M&M were untimely and did not relate back under Rule 15 of the Superior Court Rules of Civil Procedure.  Cayer appealed both decisions.

The Supreme Court held that summary judgment was proper because it was clear that Ovalles was not an employee of Cox.  The installation agreement between Cox and M&M specifically renounced any employer-employee relationship with M&M’s technicians.  Additionally, the facts indicated that Cox had no control over Ovalles’s method of performance.

The Supreme Court denied and dismissed the appeal of the denial of the plaintiff’s motion to amend.  The order was interlocutory, and none of the statutory or decisional exceptions applied to make review proper at this time.
Name: 12-23, 12-24
NV One, LLC, et al. v. Potomac Realty Capital, LLC, et al., No. 12-262 (February 18, 2014)
The defendant, Potomac Realty Capital, LLC, appealed from the Superior Court’s grant of partial summary judgment in favor of the plaintiffs, NV One, LLC, Nicholas E. Cambio, and Vincent A. Cambio.  The defendant asserted that the trial justice erred when he granted the plaintiffs’ motion for partial summary judgment on liability for violation of the usury statute, G.L. 1956 § 6-26-2, by declaring the usury savings clause of the parties’ loan agreement unenforceable.  Neither party disputed that the interest rate was usurious; thus, the case turned on the enforceability of the usury savings clause.  The defendant argued that the Supreme Court should give effect to the clause and enforce the contract.

The enforceability of usury savings clauses was an issue of first impression in Rhode Island.  The Supreme Court affirmed the judgment of the Superior Court, holding that such clauses are against the state’s well-established policy of preventing usurious transactions.
Name: 12-262
James W. Brown et al. v. Elmer Stanley et al., No. 12-169 (February 18, 2014)
One of the plaintiffs, Bluelinx Corporation, appealed from a Superior Court order granting the renewed motion for judgment as a matter of law and conditionally granting the motion for a new trial brought by the remaining defendants, Project Hope/Projecto Esperanza, Inc. and the Diocesan Bureau of Social Service.  The plaintiff brought this action seeking contribution for payments made to an individual who was struck by a vehicle owned by the plaintiff and operated by its employee, James W. Brown, while participating in a fundraising walk sponsored by the defendants.  On appeal, the plaintiff argued that although the defendants initially did not have a duty to provide for the safety of the participants, the defendants assumed a duty of care after taking steps to control traffic on the street where the participant was struck.  The plaintiff also argued that whether this duty was extinguished or breached was a question for the jury.

The Supreme Court affirmed the judgment of the Superior Court granting the defendants’ motion for judgment as a matter of law.  Because the Court concluded that, as a matter of law, there was no cognizable duty of care owed by the defendants in this case, the Court declined to address the trial justice’s decision conditionally granting a new trial.
Name: 12-169
State v. Jethro Rolle, No. 12-12 (February 18, 2014)
The defendant, Jethro Rolle, appealed from the Superior Court’s denial of his motion to dismiss a charge of second-degree sexual assault on double jeopardy grounds following the granting of a mistrial at the defendant’s behest.  On appeal, the defendant argued that the trial justice erred when he concluded that the prosecutor’s conduct at trial, which amounted to a violation of the rules of discovery, was not done with the intent to provoke a mistrial.
 
The Supreme Court held that the trial justice did not err in concluding that the prosecutor lacked the specific intent to goad the defendant into moving to pass the case.  After thoroughly examining the record, the Court concluded that there was ample support for the trial justice’s finding that the prosecutor was not seeking to abort a rapidly derailing trial.  The Court therefore affirmed the trial justice’s decision.
Name: 12-12
Donna Banville v. Peter Brennan et al., No. 11-384 (February 7, 2014)
The defendants, Peter and Joyce Brennan, appealed from a judgment entered by the Superior Court in favor of the plaintiff, Donna Banville, in this boundary dispute between neighbors. On appeal, the Brennans argued that the trial justice erred in finding that the doctrine of acquiescence applied to establish the dividing line between the two lots.  The Brennans also argued that the trial justice erred in awarding damages to Banville based on the diminution in the fair market value of her real property as a result of the alleged encroachment by the Brennans.
 
The Supreme Court held that the trial justice had not overlooked or misconceived material evidence in determining the location of the boundary line between the parties’ respective lots.  The Supreme Court concluded that the evidence in the record supported the trial justice’s finding as to the establishment of the boundary line and his award of damages to the plaintiff.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment in favor of the plaintiff.
Name: 11-384
William Chhun et al. v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-298 (February 3, 2014)
The plaintiffs, William Chhun and Joli Chhim, appealed from a Superior Court judgment granting the motion to dismiss of the defendants, Mortgage Electronic Registration Systems, Inc., Domestic Bank, Aurora Loan Services, LLC, and Deutsche Bank National Trust Company.  On appeal, the plaintiffs argued that the Superior Court justice erroneously held that they did not have standing to challenge the assignment of their mortgage and that he improperly granted the defendants’ motion to dismiss.

Based on its recent holding in Mruk v. Mortgage Electronic Registration Systems, Inc., No. 2012-282-A., slip op. at 13 (R.I., filed Dec. 19, 2013), the Supreme Court held that the plaintiffs have standing to challenge the assignment of their mortgage.  Additionally, the Court held that the plaintiffs alleged sufficient facts in the complaint to survive a motion to dismiss.  Accordingly, the Court vacated the judgment of the Superior Court and remanded the case for further proceedings.
Name: 12-298
State v. Raymond Clements, No. 11-203 (February 3, 2014)
The defendant, Raymond Clements, appealed from a judgment of conviction for two counts of murder, one count of arson, and one count of conspiracy.  Clements contended that the trial justice erred when he allowed evidence of a robbery committed during the day before the overnight murders, gave the jury a faulty instruction as to the proper use of that evidence, and denied a motion to pass the case.  The Supreme Court held that the evidence’s admission under Rule 404(b) of the Rhode Island Rules of Evidence, if error, was harmless.  The Court additionally held that the admission of the evidence did not violate Rule 403 of the Rhode Island Rules of Evidence.

The Court further held that the defendant’s objections to the jury instructions were not preserved, as he did not object to any of the three instructions that the trial justice gave the jury regarding the use of the robbery evidence.  Finally, the Court held that the denial of the motion to pass the case was not an abuse of discretion.

The Supreme Court affirmed the judgment of conviction.
Name: 11-203
State v. John H. Silva, No. 11-378 (February 3, 2014)
The defendant appealed from a judgment of conviction of the following offenses stemming from a shooting: two counts of assault with a dangerous weapon; two counts of discharging a firearm during a crime of violence; one count of carrying a handgun on his person without a license; and one count of discharging a firearm within a compact area.
 
On appeal, the defendant contended that the trial justice abused his discretion in denying his motion for a new trial. The defendant specifically argued that the trial justice overlooked and misconceived material evidence and failed to draw the appropriate inferences from the evidence presented because the testimony of two of the key witnesses at trial—Ramon Jimenez and John Nazario—was not credible.  The defendant further asserted that the verdict was against the fair preponderance of the evidence and failed to do substantial justice between the parties.

The Supreme Court held that there was nothing in the record that would lead it to conclude that the trial justice was clearly wrong or that he overlooked or misconceived material and relevant evidence in denying the defendant’s motion for a new trial.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction. 
Name: 11-378
State v. Linda A. Diamante, No. 10-50 (January 30, 2014)
The defendant, Linda A. Diamante, appealed from the Superior Court’s denial of a motion to seal her judicial records.  In Superior Court, the defendant moved to seal the record of a charge of felony assault with a dangerous weapon that was dismissed.  The trial justice denied the motion because the defendant opted to plead nolo contendere to a second charge in the same criminal case, and G.L. 1956 § 12-1-12.1(a) requires an individual to be “exonerated of all counts in a criminal case” as a precondition to having his or her record sealed.  The defendant contended that the trial justice’s denial of her motion was in error because, in her view, § 12-1-12(a) and § 12-1-12.1(a) are in conflict and, according to the defendant, § 12-1-12(a) mandates the sealing of her record.

The Supreme Court affirmed the trial justice’s denial, holding that the defendant’s record could not be sealed because the plain language of § 12-1-12.1(a) conditioned the sealing of a court record on a defendant being exonerated on “all counts” in a criminal case.  (Emphasis added.)  The Court further held that no conflict existed between § 12-1-12(a) and § 12-1-12.1(a) because § 12-1-12(a), when addressing the sealing of court records, provided that a court record shall be sealed if doing so is “consistent with § 12-1-12.1.”
Name: 10-50
State v. Mustapha Bojang, No. 10-361 (January 30, 2014)
The defendant, Mustapha Bojang, appealed from two convictions of first-degree child molestation sexual assault.  The defendant argued that the trial justice committed three errors that require this Court to vacate those convictions: (1) the denial of the defendant’s motion to suppress statements made to police during a post-arrest interrogation; (2) the refusal to allow cross-examination of the complainant about a false accusation of physical abuse by the complainant against her mother; and (3) the denial of the defendant’s motion for a new trial.

The Court affirmed the trial justice’s denial of the motion for a new trial and held that the limitation on cross-examination was not error.  However, the Court remanded the case to the Superior Court in order for the trial justice to make additional findings of fact and credibility determinations concerning the voluntariness of the defendant’s confessions.
Name: 10-361
State v. Gabriel Santiago, No. 12-173 (January 15, 2014)
The defendant, Gabriel Santiago, appealed from a conviction for second-degree child molestation sexual assault.  On appeal, the defendant argued that the trial justice erred when she allowed the complaining witness to testify that the defendant’s body part was hard when she touched it.  The witness was able to recall this fact after having her recollection refreshed.  The defendant’s contention was that the state’s supplemental discovery responses indicated that the complaining witness did not remember whether the body part was hard and that her recollection could not be refreshed.

The Supreme Court held that the trial justice did not abuse her discretion in finding that no discovery violation had occurred.  When a witness’s recollection is refreshed, the witness’s in-court testimony, and not the memorandum used to refresh that recollection, is evidence.  Thus, the fact that the witness’s recollection was not refreshed before trial did not mean that the witness’s recollection could not be refreshed at trial.  The Supreme Court, therefore, affirmed the conviction.
Name: 12-173
State v. Paul Fleck, No. 11-305 (January 15, 2014)
The defendant, Paul Fleck, appealed from a judgment of conviction for one count of simple domestic assault in violation of G.L. 1956 § 11-5-3 and G.L. 1956 § 12-29-5.  On appeal, the defendant argued that the trial justice erred when she denied both his motion for judgment of acquittal under Rule 29 of the Superior Court Rules of Criminal Procedure and his motion for new trial under Rule 33 of the Superior Court Rules of Criminal Procedure because the weight of the evidence that Fleck and the complaining witness were in a substantive dating relationship as defined under § 12-29-2 was insufficient to support a conviction.

The Supreme Court held that the trial justice was not clearly wrong when she denied the motion for new trial. The trial justice reviewed all of the evidence presented, weighed the credibility of the witnesses, and said that she agreed with the verdict.  The Court further held that the Rule 29 motion was not preserved for appellate review but that, even if it had been, the Court would not have reached the issue because the Court affirmed the denial of the Rule 33 motion.

Accordingly, the Court affirmed the judgment of conviction.
Name: 11-305
State v. Christian Buchanan, No. 2012-230 (January 14, 2014)
The defendant, Christian Buchanan, appealed from a judgment of conviction of three counts of second-degree and one count of first-degree child molestation sexual assault.  On appeal, the defendant claimed that the trial justice abused her discretion in refusing to exclude all evidence of uncharged acts of molestation in violation of Rule 404(b) of the Rhode Island Rules of Evidence.  The defendant also argued that the trial justice erred in denying the defendant’s motion for judgment of acquittal and motion for a new trial, claiming that the evidence failed to prove that the crimes occurred at the location or within the time frame listed in the bill of particulars.  Finally, the defendant claimed that the trial justice erred in denying his motion for a new trial based on comments made by the prosecutor, which he contended were unduly prejudicial.
      
After careful review, the Supreme Court concluded that the defendant failed to properly preserve the evidentiary issue on appeal by failing to object to the proffered testimony.  The Court also held that the trial justice did not err in denying the defendant’s motion for a new trial or motion for judgment of acquittal.  Lastly, the Supreme Court concluded that because the defendant did not object to the trial justice’s limiting instructions after the inappropriate comments, the defendant failed to properly preserve the issue on appeal.  Accordingly, the Supreme Court affirmed the judgment of conviction.
Name: 12-230
Christopher Reynolds v. First NLC Financial Services, LLC, et al., No. 12-113 (January 10, 2014)
The plaintiff, Christopher Reynolds, appealed the granting of a motion for summary judgment by the Superior Court.  Reynolds defaulted on a mortgage loan.  He twice filed bankruptcy petitions, and each time Deutsche Bank National Trust Company (Deutsche Bank) obtained relief from the automatic stay to pursue foreclosure.  Deutsche Bank filed its second motion for relief from the stay after a foreclosure sale had taken place.  The plaintiff later filed a Superior Court action seeking a declaration that the foreclosure sale was void.  Summary judgment was granted based on res judicata, and the plaintiff appealed.

On appeal, the Supreme Court held that the elements of res judicata were satisfied.  The same parties litigated the issue of the propriety of the assignment of the mortgage when Deutsche Bank filed motions for relief from the stay, the second of which came after the foreclosure sale occurred.  In granting that second motion, the bankruptcy judge said that the completed sale was “valid.”  The bankruptcy concluded without appeal, so the order was final.

The judgment was affirmed.
Name: 12-113
Narragansett Indian Tribe v. State of Rhode Island and UTGR, Inc. d/b/a Twin River and Newport Grand, LLC,Intervenor Defendant, No. 12-323 (January 10, 2014)
The defendant, the State of Rhode Island, appealed from the entry of partial summary judgment in the Superior Court, holding that the plaintiff, the Narragansett Indian Tribe (Tribe), had standing to pursue its constitutional challenge to the 2011 Casino Act, G.L. 1956 § 42-61.2-1, as enacted by P.L. 2011, ch. 151, art. 25, § 2, which proposed the establishment of casino table games at the Twin River gambling facility.  On appeal, the state argued that the Tribe had not suffered an injury in fact from the Casino Act so as to give it standing and, further, that the hearing justice erred in finding that the public interest exception to standing applied.
  
The Supreme Court held that the Tribe had suffered an injury in fact because of the removal of some 200 video lottery terminal (VLT) machines from the Twin River establishment in order to accommodate the new table games as the Tribe is entitled to receive a percentage of the revenue from the VLT machines.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment that the Tribe had standing to pursue its cross-appeal of the judgment of the Superior Court on the merits of its claims challenging the constitutionality of the Casino Act.
Name: 12-323
Steven Iadevaia v. Town of Scituate Zoning Board of Review, No. 11-338 (December 23, 2013)
The petitioner, Steven Iadevaia, appealed from a Superior Court judgment affirming a decision by the respondent, the Town of Scituate Zoning Board of Review, which denied the petitioner’s application for a building permit and dimensional variance.  On appeal, the petitioner argued that the trial justice erred when she affirmed the zoning board’s decision interpreting a frontage requirement in the Scituate Zoning Ordinance.  Further, the petitioner argued that, assuming the Scituate Zoning Ordinance did require frontage, his property had always consisted of two separate lots that had never merged and that, therefore, he was entitled to a dimensional variance for the nonconforming lot.  Finally, the petitioner argued that the trial justice erred when she invoked the doctrine of judicial estoppel to preclude the petitioner from advancing the argument that his property had always existed as two separate, discrete lots.

The Supreme Court vacated the Superior Court judgment, holding that the trial justice overlooked substantial evidence in the record indicating that the petitioner owned two separate lots that never merged.  The Supreme Court also held that the trial justice erred by invoking judicial estoppel to prevent the petitioner from arguing that his property had always consisted of two lots.  Finally, the Court determined that the Scituate Zoning Ordinance did not contain a frontage requirement for the petitioner’s residential district and declined to read such a requirement into the ordinance.  The Court remanded the case to the Superior Court with instructions to remand the case to the respondent, the Scituate Zoning Board of Review, to treat the unimproved lot as a separate lot and not apply a frontage requirement to the petitioner’s application for a building permit.
 
Name: 11-338
Steven T. Burton v. State of Rhode Island et al., Nos. 12-213, 12-268 (December 20, 2013)
The plaintiff, Steven T. Burton, appealed a Superior Court decision in favor of the defendant, State of Rhode Island.  The seventeen-year-old plaintiff was injured while exploring the reputedly haunted site of the former Ladd Center.  Rather than encountering ghosts, the plaintiff and his companions discovered four glass bottles containing a clear liquid that was later revealed to be sulfuric acid.  As the plaintiff was attempting to exit a building on the property, one of the bottles broke, splashing him with its contents and severely burning him.
 
Conceding his status as a trespasser, the plaintiff sought recovery from the State of Rhode Island under the doctrine of attractive nuisance.  The Supreme Court affirmed the judgment of the Superior Court, holding that, because the plaintiff was old enough to appreciate the risk of breaking into an abandoned building and of transporting a substance which he admitted he had reason to believe was hazardous, the doctrine of attractive nuisance was inapplicable to this case.  Therefore, because the plaintiff was a trespasser whom the state did not discover in peril, as is required to establish a duty of care, the state owed him no such duty.
Name: 12-213, 12-268
Walter J. Mruk, Jr. v. Mortgage Electronic Registration Systems, Inc., et al., No. 12-282 (December 19, 2013)
The plaintiff, Walter J. Mruk, Jr., appealed from the entry of summary judgment in the Superior Court in favor of defendants Mortgage Electronic Registration Systems, Inc. (MERS), IndyMac Mortgage Services (IndyMac), OneWest Bank, FSB (OneWest), and Federal National Mortgage Association (FNMA).  On appeal, plaintiff argued that the trial justice erred in holding that no genuine issues of material fact existed and that defendants were entitled to judgment as a matter of law.  The plaintiff also argued that the assignment of his mortgage from MERS to FNMA was not valid and that the foreclosure sale was not proper.
  
The Supreme Court held that homeowners in Rhode Island have standing to challenge an invalid, ineffective, or void assignment of a mortgage on their homes.  The Supreme Court rejected all of plaintiff’s other arguments on the merits based on its holding in Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069 (R.I. 2013), and concluded that the assignment of the mortgage was valid and that FNMA had the authority to foreclose on Mruk’s property.  Accordingly, the Supreme Court vacated the judgment of the Superior Court as to standing but affirmed the judgment of the Superior Court on all other claims.
Name: 12-282
State v. Paul Castriotta, No. 12-201 (December 17, 2013)
The defendant, Paul Castriotta, appealed from an order of the Superior Court that denied his motion to vacate judgment and sentence.  The defendant alleged that his nolo contendere plea to second-degree child-molestation charges should be set aside because his attorney did not inform him that his attorney had a personal conflict in continuing to represent the defendant.  The attorney disclosed to the defendant that someone close to him had been the victim of a sexual assault similar in nature to the charges to which the defendant had admitted.  On appeal, the defendant argues that he was not adequately represented.

The Supreme Court concluded that the defendant’s appeal is not properly before the Court.  Under Rule 32(d) of the Superior Court Rules of Criminal Procedure, once the trial justice has imposed sentence, any issue that relates to the validity of the plea can be addressed only through postconviction relief.  Regardless, the Court noted that the alleged sexual assault that caused the attorney’s conflict did not occur until after the defendant had pleaded.

Accordingly, the Court affirmed the order.
Name: 12-201
Jorge M. DePina v. State of Rhode Island, No. 11-259 (December 6, 2013)
Gelci Reverdes, who testified as an eyewitness in the 1998 murder trial of the applicant Jorge M. DePina, appealed from a Superior Court order denying her motion to quash a subpoena duces tecum seeking discovery of her medical, psychiatric, and psychological health care records.  On appeal, Reverdes argued (1) that the trial justice abused his discretion by denying the motion to quash, because the requesting party failed to show a particularized need for the information or that the information was relevant to the proceedings, and (2) that the trial justice failed to determine that the need for disclosure outweighed Reverdes’ privacy interests.
    
After a careful review of the record, the Supreme Court held that the trial justice erred in denying the motion to quash without first conducting the interest-weighing analysis required by the Rhode Island Confidentiality of Health Care Information Act, G.L. 1956 § 5-37.3-6.1(d), (e).  Accordingly, the Supreme Court vacated the order and remanded the case to the Superior Court to make additional findings consistent with § 5-37.3-6.1(d), (e).
Name: 11-259
State v. Jaylon Baker, No. 12-253 (December 5, 2013)
The defendant, Jaylon Baker, appealed from a Superior Court judgment of conviction of assault with a dangerous weapon, carrying a pistol without a license, and using a firearm while committing a crime of violence.  The trial justice’s denial of the defendant’s motion for a new trial provided the sole predicate of the appeal.  The defendant argued that the trial justice overlooked and misconceived material evidence when denying his motion for a new trial.  Specifically, the defendant asserted that the trial justice erred by accepting the testimony of the complaining witness (a police officer) over that of the defendant, because the complaining witness’s testimony was not credible and was not supported by the physical evidence.  The Supreme Court determined that the trial justice articulated adequate grounds for denying the defendant’s motion and did not overlook or misconceive material evidence when making his decision.  Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 12-253
Joanne Miller v. Henry Saunders et al., No. 12-273 (December 5, 2013)
The plaintiff appealed from a Superior Court order granting summary judgment for the defendants.  The plaintiff challenged the trial justice’s rulings that the plaintiff’s deceased ex-husband created a valid custodial trust with regard to his life insurance proceeds and that this custodial trust did not violate a property settlement agreement executed by the plaintiff and the decedent in conjunction with their divorce.  The plaintiff argued that the decedent did not create a legally cognizable trust because the property settlement agreement required him to maintain his life insurance policy for the benefit of his minor children, and because his written declaration of trust did not comply with the statutory requirements for creating a custodial trust pursuant to the Rhode Island Uniform Custodial Trust Act.

The Supreme Court held that the decedent did create a valid custodial trust and that this trust did not violate the terms of the property settlement agreement.  Specifically, the Supreme Court interpreted the phrase “in substance” in G.L. 1956 §§ 18-13-3(a), 18-13-18(b)(4), and held that this phrase does not require a verbatim recitation of the statute’s suggested language for the creation of a valid custodial trust.  The Supreme Court also held that the property settlement agreement was not ambiguous, and that its terms allowed the decedent to channel the insurance funds to his children by way of a custodial trust.
Name: 12-273
Dennis Martin, in his capacity as Executor of the Estate of Camella L. Martin v. Michael Lawrence, alias, et al., No. 12-297 (December 5, 2013)
The plaintiff, Dennis Martin, as administrator of the estate of his mother, Camella L. Martin, appealed from a judgment entered by the Superior Court in favor of defendant, Michael Coyne, after a jury trial in an automobile accident negligence action.  The plaintiff also appealed from a denial of plaintiff’s motion for judgment as a matter of law or, in the alternative, for a new trial.  On appeal, plaintiff argued that the trial justice erred in granting defendant’s motion in limine to exclude a document entitled “Notice of Injury—Proof of Loss” which Mrs. Martin had filled out and submitted to Allstate Insurance Company in which she gave a brief description of how the accident occurred.  The plaintiff contended that the document should have been admitted pursuant to the business records exception of Rule 803(6) of the Rhode Island Rules of Evidence.  The plaintiff also argued that the trial justice erred in denying his motion for judgment as a matter of law or, in the alternative, for a new trial because the jury verdict was inconsistent with the evidence.
  
The Supreme Court rejected plaintiff’s argument, holding that the trial justice had not abused his discretion in excluding the document because it had not been properly authenticated as required by Rule 803(6).  The Court also held that the trial justice had not erred in denying plaintiff’s motion for judgment as a matter of law or for a new trial.  Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 12-297
State v. Robert Raso, No. 11-364 (December 3, 2013)
The defendant, Robert Raso, appealed from a Superior Court judgment of conviction declaring him to be in violation of the terms of his probation and sentencing him to serve twenty-five years of his previously imposed sentence. The defendant argued that the complaining witnesses’s testimony was inconsistent and not credible and that, therefore, the hearing justice acted arbitrarily and capriciously in finding a violation.

The Supreme Court affirmed the Superior Court’s decision, holding that the hearing justice had adequately explained the reasoning behind her credibility findings.  Further, the Court held that there was more than sufficient evidence adduced at the violation hearing to support the hearing justice’s credibility assessments and findings. 
Name: 11-364
State v. Charles Mitchell, No. 12-161 (November 27, 2013)
The defendant, Charles Mitchell, appealed from a Superior Court judgment of conviction of two counts of first-degree child molestation and five counts of second-degree child molestation.  On appeal, the defendant argued that the trial justice abused his discretion in admitting evidence of the defendant’s other bad acts under Rule 404(b) of the Rhode Island Rules of Evidence.  Second, the defendant challenged the trial justice’s denial of his motion for a new trial.  Finally, he ascribed error to the trial justice’s denial of his request for the appointment of new counsel prior to sentencing.

The Supreme Court held that the trial justice did not abuse his discretion in admitting evidence that the defendant had allegedly molested the complainant’s sister.  In addition, the Court determined that the trial justice followed the proper procedure in ruling on the defendant’s motion for a new trial and did not overlook or misconceive material evidence.  Lastly, the Court concluded that the trial justice appropriately balanced the defendant’s right to counsel of his choice and the public’s interest in the expeditious administration of justice.  Thus, the Court upheld the trial justice’s denial of the defendant’s request for new counsel.
   
Accordingly, the Court affirmed the judgment.
Name: 12-161
Eloisa Gomes and Armando Gomes v. Mario Rosario, No. 2012-2 (November 27, 2013)
In this negligence action, resulting from an automobile collision, the defendant, Mario Rosario, appealed from a Superior Court judgment granting a new trial to the plaintiff, Eloisa Gomes.  After a seven-day trial, a jury found that Gomes had failed to prove, by a preponderance of the evidence, that Rosario was negligent.  The trial justice, however, granted the plaintiff’s motion for a new trial, finding that the jury’s assignment of “no liability to the defendant demonstrates that this court’s instructions were not clear or properly understood or applied by the jury in this case.”

The Supreme Court held that the trial justice did not overlook or misconceive material evidence in granting the plaintiff’s motion for a new trial.  Accordingly, the Court affirmed the judgment. 
Name: 12-2
George E. Morabit v. Dennis Hoag, No. 10-77 (November 26, 2013)
The plaintiff, George E. Morabit, appealed from the Superior Court’s grant of judgments as a matter of law in favor of the defendant, Dennis Hoag.  The plaintiff sought damages for the defendant’s alleged destruction of a stone wall and removal of trees from his property.  On appeal, the plaintiff argued that the trial justice erred in: (1) precluding the testimony of his expert witness on the subject of historic stone walls; and (2) not allowing the jury to consider his evidence of damages for the removed trees.

After a careful review of the record, the Supreme Court held that the trial justice committed reversible error by not allowing the plaintiff’s expert to testify on the subject of stone walls.  The trial justice applied an overly stringent standard for the admission of expert testimony.  Even assuming that historic stone walls are a novel field of study, there were sufficient indicia of reliability to allow the jury to consider the expert’s opinions.

With regard to the plaintiff’s second assignment of error, the Court held that the trial justice had improperly granted the defendant’s motion for judgment as a matter of law.  The trial justice invaded the province of the jury by making findings of fact and weighing the plaintiff’s evidence of damages.  Accordingly, the Supreme Court vacated the judgment of the Superior Court and remanded the matter for further proceedings.
Name: 10-77
State v. Lawrence Clay, Nos. 11-248, 12-321 (November 20, 2013)
The defendant, Lawrence Clay, appealed from a Superior Court judgment of conviction, having been found guilty of kidnapping of a minor and reckless driving, and sentenced to sixty years with thirty years to serve and thirty years suspended, with probation. On appeal, the defendant argued that the trial justice erred in admitting testimony about a prior alleged sexual assault perpetrated by the defendant.  Further, the defendant argued that the trial justice erred in denying the defendant’s motion for a new trial.

The Supreme Court determined that the evidence of the alleged sexual assault presented at trial related to one continuous event and was necessary in order for the jury to hear a complete and coherent rendition of what transpired relative to the kidnapping and reckless driving charges.  The Supreme Court affirmed the Superior Court judgment, holding that the evidence of the alleged sexual assault was not admitted merely to show the defendant’s bad character or propensity and was thus admissible under Rule 404(b) of the Rhode Island Rules of Evidence.

The Supreme Court also affirmed the Superior Court judgment denying the defendant’s motion for a new trial, determining that the trial justice carefully considered all of the consistencies and inconsistencies in the evidence as well as the credibility of the witnesses.
Name: 11-248, 12-321
State v. Harold T. Drew, No. 12-131 (November 19, 2013)
The defendant, Harold T. Drew, appealed from a Superior Court order denying his motion for a new trial based on newly discovered evidence.  The defendant was convicted in 2004 on one count of first-degree murder, one count of discharging a firearm while committing a crime of violence, and three counts of entering a dwelling with the intent to commit a larceny therein.
 
After his conviction, the defendant became aware of a narrative written by a detective from the Swansea Police Department prior to the defendant’s trial.  The narrative was written in connection with an investigation of breaking-and-entering crimes that occurred in Massachusetts.  The defendant filed a motion for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure, arguing that the narrative disclosed new, material evidence concerning a cooperation agreement between the Swansea Police Department, the Rhode Island State Police, and a prominent state’s witness in the defendant’s murder trial.  The defendant also argued that the narrative evidenced the state’s failure to disclose information in violation of his constitutional due-process rights.  The trial justice conducted an evidentiary hearing and found that the narrative did not present new evidence and that the evidence was merely cumulative and impeaching.
 
The Supreme Court affirmed the order of the Superior Court.  The Supreme Court held that the trial justice did not overlook or misconceive relevant and material evidence when ruling on the defendant’s motion.  The Supreme Court further held that the defendant’s constitutional due-process rights were not violated because the state did not fail to disclose information.
Name: 12-131
John C. O’Donnell, III v. Anne A. O’Donnell, No. 12-52 (November 18, 2013)
The plaintiff, John C. O’Donnell, III, appealed from a Family Court order directing him to comply with a provision in a divorce settlement agreement that required him to maintain health insurance for the defendant, Anne A. O’Donnell.  On appeal, the plaintiff claimed that because there was no written marital settlement agreement, there was no meeting of the minds sufficient to form an enforceable agreement.  The plaintiff argued that a stenographic record of an oral agreement reached in open court is not sufficient to form a nonmodifiable marital settlement agreement.

After reviewing the record, the Supreme Court concluded that the Family Court justice did not err or abuse her discretion in finding that the parties recited and assented to the terms of their agreement in open court, and that the parties intended and agreed that the transcript of that agreement would serve as their marital settlement agreement.  Accordingly, the Supreme Court affirmed the Family Court order. 
Name: 12-52
Cynthia Caluori v. Dexter Credit Union, No. 2012-247 (November 18, 2013)
The plaintiff, Cynthia Caluori, appealed from a Superior Court judgment in favor of the defendant, Dexter Credit Union, denying her claim for an easement over Dexter’s property.  Mrs. Caluori had sought a declaratory judgment that an easement by prescription and an easement by implication existed that gave her the right to use a paved driveway on the northern border of her property.  On appeal, the plaintiff argued that the trial justice erred in finding that, because she had previously acknowledged the defendant’s superior title and because her use of the driveway was open but not notorious, she had failed to prove the existence of a prescriptive easement.  Further, the plaintiff argued that the trial justice erred in holding that she had not established an implied easement.

The Supreme Court held that the trial justice erred by relying solely on the original warranty deed, as well as a notice of intent to dispute which was not offered in evidence, to defeat the plaintiff’s claim of hostility and claim of right.  Further, the Supreme Court held that, under the facts of this case, there was no distinction between the requirements of open and notorious use and because the plaintiff had proven her use of the disputed parcel was open, it follows that the use was notorious.  The Supreme Court vacated the portion of the Superior Court judgment that held that Ms. Caluori had not established notorious use, and it directed the Superior Court on remand to make further findings regarding the element of hostility.

Finally, the Supreme Court held that there was no implied easement because Mrs. Caluori had not clearly and convincingly proven that the disputed property was “reasonably necessary for the convenient and comfortable enjoyment of the property” at the time of severance. Vaillancourt v. Motta, 986 A.2d 985, 987 (R.I. 2009) (quoting Wiesel v. Smira, 49 R.I. 246, 250, 142 A. 148, 150 (1928)).
Name: 12-247
State v. Emanuel Baptista, No. 12-11 (November 18, 2013)
The defendant, Emanuel Baptista, appealed from a judgment of conviction after a jury trial declaring him guilty of two counts of first-degree child molestation and two counts of first- degree child abuse on a child under the age of five.  On appeal, the defendant argued that the trial justice erred in denying his motion for a new trial by having overlooked and misconstrued material and relevant evidence.  The defendant also claimed the trial justice erred because the jury verdict failed to do substantial justice between the parties.
  
After a thorough review of the record and the trial justice’s articulated reasoning in refusing to grant a new trial, the Supreme Court concluded that the trial justice independently weighed the testimony, evaluated the credibility of the witnesses, and did not overlook or misconstrue material evidence.  The Supreme Court also held that the trial justice did not need to examine the verdict for substantial justice because she agreed with the jury’s verdict of guilty.  Accordingly, the Supreme Court affirmed the judgment of conviction.
Name: 12-11
State v. Kendall Whitaker, No. 07-145 (November 13, 2013)
The defendant, Kendall Whitaker, appealed from a judgment of conviction for (1) murder, (2) robbery, (3) assault with a dangerous weapon, (4) carrying a handgun without a license, (5) using a firearm in the commission of a crime of violence, (6) discharging a firearm in the commission of a crime of violence, and (7) committing a crime of violence while armed and having available a firearm.  Whitaker argued that the trial justice committed error when she denied his motion for new trial, gave the jury confusing or improper instructions, denied his motion for judgment of acquittal, instructed the jury that the defendant was in custody without alerting the defendant that she was contemplating such an instruction, allowed too many leading questions by the state, and failed to record bench conferences.

The Supreme Court held that the trial justice’s analysis in her denial of the motion for new trial reveals specific factual findings that indicate that she found truth in some witnesses’ testimony despite her stated concern about the credibility of most of the witnesses.  The Court held that the jury instructions were warranted by the evidence, were not confusing, and accurately set forth the state’s burden of proof.  The motion for judgment of acquittal was properly denied because the state’s theory did not require impermissibly pyramiding inferences.

The Court determined that the trial justice should not have informed the jury that the defendant was in custody without following the procedure set forth in State v. Fenner, 503 A.2d 518 (R.I. 1986), but held that, based on the content of the instruction and the lack of an objection or motion to pass, reversible error had not occurred.

Finally, the Supreme Court held that the use of leading questions was not beyond the bounds allowed in a trial justice’s discretion and that the defendant failed to indicate what was said at unrecorded bench conferences, to what he objected, and how he was prejudiced, thereby precluding relief based on that argument.

The Court affirmed the judgment of conviction.
Name: 07-145
State v. Donald Young, No. 11-311 (November 7, 2013)
The defendant, Donald Young, appealed from a judgment of conviction for (1) the murder of Kasean Benton in violation of G.L. 1956 § 11-23-1, (2) conspiring to murder in violation of G.L. 1956 § 11-1-6, (3) discharging a firearm during the commission of a violent crime resulting in the death of another in violation of G.L. 1956 § 11-47-3.2, (4) assault with a dangerous weapon on Dukuly Torell Soko in violation of G.L. 1956 § 11-5-2, (5) conspiring with others to assault Soko with intent to murder in violation of § 11-1-6, (6) discharging a firearm while committing a crime of violence in violation of § 11-47-3.2, and (7) possession of an unlicensed firearm in violation of § 11-47-8(a).  On appeal, the defendant argued that the trial justice erred when he admitted evidence of gang affiliation and the earlier stabbing of one of the victims and testimony about an unsolved homicide.  The defendant further argued that his constitutional right against double jeopardy was violated because count 4, assault with a dangerous weapon with intent to murder, merged with count 6, discharging a firearm while in the commission of a crime of violence.
 
The Supreme Court held that the defendant had failed to preserve the issue about the admission of evidence and had waived that issue on appeal.  The Supreme Court further held that there was no double-jeopardy violation because this Court had previously determined in State v. Marsich, 10 A.3d 435, 442 (R.I. 2010), that the General Assembly clearly intended that consecutive sentences be imposed for certain crimes of violence committed by use of a firearm.

Accordingly, the Court affirmed the judgment of conviction.
Name: 11-311
Option One Mortgage Corporation v. Aurora Loan Services, LLC, as servicer for Mortgage Electronic Registration Systems, Inc., No. 12-229 (November 5, 2013)
The defendant, Aurora Loan Services, LLC, appealed from a grant of summary judgment by the Superior Court in favor of the plaintiff, Option One Mortgage Corporation (Option One), holding that the mortgage held by Option One was superior to the mortgage held by Aurora.  On appeal, Aurora argued that the trial justice was in error in concluding that a reference to a prior deed in the Option One Mortgage description was sufficient to put a subsequent mortgage holder on notice to make further inquiry as to the exact property encumbered by the Option One Mortgage.
 
The Supreme Court rejected Aurora’s argument, relying on its prior decision in In re Barnacle, 623 A.2d 445 (R.I. 1993).  The Court held that the reference to a prior deed in the Option One Mortgage, in addition to the tax assessor’s plat and lot number and street address, were sufficient to put a subsequent mortgage holder on constructive notice of the lot being encumbered by the Option One Mortgage.  Accordingly, the Court affirmed the grant of summary judgment in favor of the plaintiff, Option One.
Name: 12-229
State v. Victor M. Lopez, No. 10-283 (November 5, 2013)
The defendant, Victor M. Lopez, appealed from a Superior Court conviction for breaking and entering and for felony assault with a dangerous weapon.  On appeal, he argued that the trial justice erred in (1) denying his motion for a new trial; (2) not permitting defense counsel to question potential jurors about eyewitness testimony during voir dire; and (3) denying his motion for a judgment of acquittal on the charge of felony assault.
  
The Supreme Court held that the trial justice had not erred and had not overlooked or misconceived material evidence in denying Lopez’s motion for a new trial.  The Court also held that the trial justice did not abuse his discretion in curtailing during voir dire defense counsel’s questioning of potential jurors as to eyewitness testimony.  Finally, the Court held that the trial justice had not erred in denying the motion for a judgment of acquittal because the evidence supported the conviction of felony assault. 
Name: 10-0283
State v. Brian Mlyniec, No. 12-154 (November 5, 2013)
The defendant, Brian Mlyniec, appealed from the order of the Superior Court denying his motion to reduce sentence under Rule 35 of the Superior Court Rules of Criminal Procedure.  The defendant alleged that his sentence of life imprisonment without parole for the first-degree murder of Kelly Anderson, which involved aggravated battery, was inappropriate because he was capable of rehabilitation.  On appeal, the defendant argued that the hearing justice abused his discretion in denying the motion to reduce the sentence.

The Supreme Court concluded that the hearing justice identified several circumstances to justify the defendant’s sentence including the severity and brutality of the crime and the defendant’s persistent refusal to take responsibility for Ms. Anderson’s murder.  The Court held that the sentence was neither without justification nor grossly disparate from other sentences generally imposed for similar offenses.

Accordingly, the Court affirmed the judgment.
Name: 12-154
In re Lauren B. et al., No. 12-232 (November 4, 2013)
The respondent appealed from a Family Court decree terminating his parental rights with respect to his daughters.  On appeal, the respondent argued that the Family Court trial justice erred in finding that: (1) the Department of Children, Youth, and Families (DCYF) made reasonable efforts to reunite his family; (2) there was no substantial possibility that the children could safely return to his care within a reasonable period of time; and (3) he had abandoned his daughters.

The Supreme Court affirmed the Family Court’s decree terminating the respondent’s parental rights.  The Court concluded that the evidence of record showed that DCYF had offered the respondent services aimed at correcting the reasons the children had been placed in care, but the respondent refused to cooperate with DCYF.  Accordingly, the Court held that there was ample evidence to support the trial justice’s finding that there was clear and convincing evidence of DCYF’s reasonable efforts to reunite the respondent with his daughters.  The Court further held that, in light of the respondent’s failure to complete the requirements of his case plans, there was no error in the trial justice’s finding that the children could not safely return to the respondent’s custody within a reasonable period of time. 
           
The Supreme Court declined to pass on the respondent’s additional allegation of error.
Name: 12-232
Anthony Perkins v. State of Rhode Island, No. 12-174 (November 4, 2013)
The applicant, Anthony Perkins, appealed from a judgment of the Superior Court denying his postconviction-relief application.  Perkins had previously pled nolo contendere to two counts of second-degree child molestation, and he applied for postconviction relief based on his assertion that his counsel erroneously advised him that a plea was necessary to prevent the state from attempting to revoke his probation stemming from an earlier robbery conviction.  Perkins argued that the advice was erroneous because the robbery conviction was entered after the acts underlying the molestation charges.  On appeal, Perkins contends that the trial justice erred when he denied the application.

The Supreme Court held that there was no basis to conclude that the trial justice committed error when he found that the applicant had never received the advice that he contended was erroneous.  The Court further held that, even if such advice had been given to him, the applicant could not show the prejudice required to prevail on his claim because the sentence he received pursuant to his plea agreement was more favorable than the sentence he could have received had he been convicted after a trial.

The Supreme Court affirmed the judgment of the Superior Court.
Name: 12-174
Peter Wyso v. Full Moon Tide, LLC., et al., Nos. 12-195, 12-359 (November 1, 2013)
In these consolidated appeals, the plaintiff, Peter Wyso appealed a Superior Court entry of summary judgment in favor of the defendants, Full Moon Tide LLC and Strings & Things, Inc. and Deborah and Frederick Howarth.  While vacationing on Block Island, the plaintiff fell and suffered injuries on a deteriorated sidewalk in front of 104 Water Street.  The plaintiff filed a negligence claim against the tenants and owners of property abutting a public sidewalk at 104 Water Street in New Shoreham claiming that the defendants owed the plaintiff a duty of care.  The plaintiff made no argument that the defendants were in any way responsible for the condition of the sidewalk.  In granting the defendants’ motions for summary judgment, the Superior Court declared that there were no genuine issues of material fact and that the defendants owed the plaintiff no duty of care for the condition of the sidewalk.  The plaintiff argued that this Court can find a duty of care based on the five-factor ad hoc approach we took in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987).  The plaintiff also contended that a New Shoreham municipal ordinance, which establishes that owners, or agents of owners, of property abutting public sidewalks have a duty to maintain sidewalks in good order and repair, creates a duty of care that runs to individual passersby.

The Supreme Court held that the ad hoc duty of care approach in Banks was not applicable to this case because the defendants did not possess or control the sidewalk.  The Supreme Court also held that consistent with previous jurisprudence, the municipal ordinance in question only established a duty of care to the town of New Shoreham, not to individuals.  Accordingly, the Supreme Court affirmed the Superior Court’s grant of summary judgment.
Name: 195,359
Eddie M. Linde v. State of Rhode Island, No. 12-125 (October 31, 2013)
The applicant, Eddie M. Linde, appealed from a judgment of the Superior Court denying his application for postconviction relief.  Linde was convicted of second-degree murder and related firearms offenses.  Before this Court, he contended that (1) the mandatory consecutive life sentence imposed under G.L. 1956 § 11-47-3.2 for discharging a firearm while committing a crime was unconstitutional; (2) the conviction and sentence for second-degree murder and discharging a firearm while committing a crime of violence resulting in death violates the Double Jeopardy Clause of the United States Constitution and article 1, section 7 of the Rhode Island Constitution; and that (3) trial counsel was constitutionally ineffective because (a) he failed to argue that the applicant was so intoxicated that he was incapable of knowingly, intelligently, or voluntarily waiving his right to remain silent; and (b) he failed to present a manslaughter defense based on diminished capacity at the plea-bargaining stage and again, at trial.
  
After careful review of the record, the Supreme Court affirmed the denial of Linde’s application.  The Court held that Linde’s convictions and sentences did not violate either double jeopardy principles or cruel and unusual punishment proscriptions of the state and federal constitutions.  Additionally, the Court held that Linde’s trial counsel was not constitutionally ineffective because a diminished capacity defense would have conflicted with trial strategy and his client’s wishes.
Name: 12-125
Jeanne E. Johnson v. QBAR Associates, No. 12-255 (October 29, 2013)
The plaintiff, Jeanne E. Johnson, appealed from a grant of summary judgment in favor of the defendant, QBAR Associates, concerning an action filed seeking to vacate a final decree foreclosing the plaintiff’s right to redeem property after a tax sale.  On appeal, the plaintiff argued that the notices of the petition to foreclose were inadequate because both referred to a tax sale and tax deed from the tax collector of the Town of Cumberland, rather than the North Cumberland Fire District.  The plaintiff also argued that a final decree barring her right of redemption could not have entered without a default having first entered against her.
      
After a careful review of the record, the Supreme Court concluded that, under the facts of the case, the plaintiff’s challenge to the validity of the final decree was properly limited to the grounds enunciated in G.L. 1956 § 44-9-24.  The Court determined that there was no indication that the plaintiff received inadequate notice of the petition or was otherwise deprived of due process in the foreclosure proceedings.  The Court also held that, pursuant to § 44-9-30, a default need not enter prior to entry of a final decree foreclosing upon the right of redemption.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-255
Dennis D. Bossian v. Paul A. Anderson, No. 12-61 (July 2, 2013)
The plaintiff, Dennis D. Bossian, appealed from the Superior Court’s grant of judgment as a matter of law in favor of the defendant, Paul A. Anderson.  On appeal, the plaintiff argued that the trial justice erred:  (1) in concluding that damages for loss of reputation were not awardable; (2) in finding that the term “smoking gun” was not slanderous per se; and (3) in failing to submit his breach of fiduciary duty claim to the jury.
 
Because the Supreme Court was satisfied that the plaintiff was fully heard—as he conceded several times in open court—on the issue of damages, the Court concluded that the plaintiff’s claims of error were without merit.  As to the plaintiff’s claim for damages for loss of reputation, the Court held that the plaintiff failed to proffer evidence of his damages and that, therefore, the trial justice did not err when she rejected this claim.  With respect to the plaintiff’s claim of slander per se, the Court concluded that the trial justice properly dismissed the claim because, even if the phrase “smoking gun” was used, such term did not rise to the level of slander per se.  As to the plaintiff’s final claim—breach of fiduciary duty—the Court concluded that the plaintiff failed to present sufficient evidence of damages even if the defendant’s alleged breach of fiduciary duty had been established.
  
Accordingly, the Court held that the plaintiff had failed to prove his case and that the trial justice properly granted judgment as a matter of law.  Therefore, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-61
State v. Blake Covington, No. 11-345 (July 2, 2013)
The defendant, Blake Covington, appealed from a judgment of conviction for multiple counts of felony assault and of using a firearm while committing a crime of violence and one count of carrying a pistol or revolver without a license.  There were three facets to the defendant’s appeal.  First, the defendant contended that the trial justice erred in admitting a statement the victim made to police shortly after he was shot by the defendant.  Second, the defendant argued that the trial justice deprived him of his right to present a full defense by precluding him from presenting his third-party-perpetrator evidence.  Lastly, the defendant claimed that the trial justice erred when he denied the defendant’s motion for a new trial.

The Supreme Court held that the trial justice did not abuse his discretion in admitting the victim’s statement to police because the statement was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice.  The Court also determined that the trial justice did not abuse his discretion in excluding the defendant’s proffered third-party-perpetrator evidence because that evidence was either too speculative or constituted improper opinion testimony.  Finally, the Court concluded that the trial justice complied with the new-trial-motion procedure, articulated adequate reasons for denying the motion, and did not overlook or misconceive material evidence or otherwise clearly err.  Accordingly, the Court affirmed the judgment.
Name: 11-345
Karen Lombardi v. City of Providence et al., No. 12-86 (July 2, 2013)
The state appealed from the entry of summary judgment entered on the claim of the plaintiff, Karen Lombardi, in favor of its codefendant, the City of Providence (city).  The state argued that the trial justice erroneously determined that the city had no duty to maintain the sidewalk where the plaintiff fell and was injured.

The Supreme Court held that, because the state had chosen not to assert a cross-claim for contribution or indemnification against the city in accordance with Rule 13(g) of the Superior Court Rules of Civil Procedure, the state was not sufficiently “aggrieved by” the judgment, as required by G.L. 1956 § 9-24-1.  Accordingly, the Court determined that the state lacked standing to prosecute the appeal, and the judgment was affirmed.
Name: 12-86
American States Insurance Company v. Joann LaFlam, No. 12-80 (July 2, 2013)
The plaintiff, American States Insurance Company (ASIC), filed a declaratory judgment action in the United States District Court for the District of Rhode Island against the defendant, Joann LaFlam (LaFlam), seeking a declaration that LaFlam’s claim for uninsured/underinsured motorist (UM/UIM) coverage against ASIC was time-barred under the insurance policy’s limitations period.  The pertinent clause of the policy provided that the insured must initiate legal action against ASIC or make a written demand for arbitration within three years after the date of the accident.  The District Court entered judgment on the pleadings in favor of ASIC, concluding that the clause was not void as against the public policy of this state and operated to bar LaFlam’s claim for UM/UIM coverage.  LaFlam appealed to the United States Court of Appeals for the First Circuit, and the Court of Appeals certified the following question to this Court:
“In light of the UM/UIM statute[, G.L. 1956 § 27-7-2.1,] and Rhode Island public policy, would Rhode Island enforce the two provisions of the contractual limitations clause in this case?”

The Supreme Court held, as a matter of first impression, that an insured’s cause of action against his or her UM/UIM carrier accrues on the date that the UM/UIM contract allegedly is breached, which is the date on which the UM/UIM insurer denies the claim or clearly rejects a demand for payment or arbitration under the UM/UIM policy.  The Court next determined that the clause of the ASIC insurance policy, which both shortened the period in which a UM/UIM claim may be asserted from the ten-year statute of limitations and fixed a date on which that shortened period begins to run that is earlier than the accrual date for the cause of action, was void and unenforceable as against public policy.  Accordingly, the Court answered the certified question in the negative.
Name: 12-80
Wellington Condominium Association et al. v. Wellington Cove Condominium Association et al., No. 10-437 (June 26, 2013)
The plaintiffs, Wellington Condominium Association, Wellington Hotel Association, John Rizzo, Arthur Leonard, and Frederick Howayeck (collectively, the plaintiffs), appealed from a Superior Court judgment denying their claims for an easement across the property of the defendants, Wellington Cove Condominium Association, Wellington On The Harbor Condominium Owners’ Association, and Harrington Court Condominium, LLC (collectively, the defendants).  On appeal, the plaintiffs assigned error to the trial justice’s finding that the plaintiffs had failed to establish the elements of an implied easement.  The plaintiffs also challenged the trial justice’s conclusion that an express easement was not created by the condominium declaration.

After careful review, the Supreme Court affirmed the trial justice’s judgment with respect to the plaintiffs’ claim of express easement.  The Court concluded that the language of the declaration was clear: the declaration granted reasonable rights of way over and across defendants’ property to provide adequate access only with regard to any amenities that are located “in, by, along or adjacent to Narragansett Bay.”  The Court held that the disputed right of way did not fall within the purview of that language. 

As to the plaintiffs’ claim of implied easement, the Court determined that the trial justice’s analysis was incorrect because it proceeded under the framework of an implied easement by reservation and rested on the erroneous conclusion that the plaintiff condominium association conveyed a portion of its land without expressly reserving a right of way to itself.  The Court concluded that the claim of implied easement must turn on a determination of which party was the common owner of the property vested with the right to reserve an easement unto itself.
 
Based on that conclusion, the Court reasoned that the plaintiffs were powerless to prevent the assignment of rights and subsequent withdrawal of the defendants’ premises, and the plaintiffs were likewise unable to reserve anything to themselves.  Therefore, the plaintiffs could not be deemed to be grantors, nor could they be characterized as a common owner who conveyed a portion of the estate.  Instead, the Court concluded that, based on its examination of the condominium documents, that, at all times relevant, the successor declarant was the common owner.  Because the common owner severed a portion of its estate—the servient parcel—and retained it for further development, the Court held that a different analysis must be undertaken.  Rather than framing the claim as an implied easement by reservation, it must be examined as an implied easement by grant, and the plaintiffs’ claim now must be examined under those principles.
 
The plaintiffs’ appeal was sustained in part and denied in part.  The Court vacated the judgment of the Superior Court with respect to its determination of the claim of an implied easement, affirmed the judgment in all other respects, and remanded the case for further proceedings.
Name: 10-437
State v. Kenneth W. Keenan, No. 11-265 (June 26, 2013)
This Court granted the State of Rhode Island’s petition for a writ of certiorari seeking review by this Court of the Superior Court’s grant of the defendant’s motion to reduce sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.
 
After a careful review of the record, the Supreme Court held that the trial justice erred in hearing and deciding the motion on a second date; the Court found that the trial justice had already adjudicated the merits of the first motion.
 
Accordingly, the Supreme Court quashed the judgment of the Superior Court.
Name: 11-265
Lori Noel Meyer v. Patrick W. Meyer, Nos. 11-14, 11-15, 11-17, 11-18 (June 26, 2013)
The defendant, Patrick W. Meyer, filed four appeals, which the Supreme Court Court later consolidated, all relating to a divorce action that was commenced in April of 2009 when the plaintiff, Lori Noel Meyer, filed a complaint for divorce against the defendant.  Patrick Meyer pressed four issues on appeal: (1) whether or not the trial justice erred in denying Patrick’s motion to dismiss for lack of subject matter jurisdiction, which motion contended that Lori was not a resident of Rhode Island in accordance with the pertinent statute; (2) whether or not the trial justice erred in awarding Lori rehabilitative alimony; (3) whether or not the trial justice erred with respect to an award of counsel fees; and (4) whether or not the trial justice erred in adjudging Patrick in contempt of court.
 
The Supreme Court first considered the issue of the Family Court’s subject matter jurisdiction, which required that Lori Noel Meyer was a domiciliary of Rhode Island and had resided within the state for the year prior to the filing of the complaint for divorce.  After a careful review of the record, the Supreme Court held that there was sufficient evidence from which the trial justice could determine that Lori was a resident of the state of Rhode Island at the relevant time and that, therefore, the Family Court had subject matter jurisdiction over the divorce action.  The Supreme Court additionally considered the awards of rehabilitative alimony; it held that the trial justice considered the required statutory factors and did not abuse his discretion in making such award.  The Court was divided as to the award of counsel fees and therefore affirmed the Family Court’s award.  Finally, the Supreme Court reviewed the order and judgment relating to the adjudication of contempt of court.  The Court held that the trial justice did not abuse his discretion in finding that the defendant (who had sought a divorce in France) had violated an explicit order of the Family Court, which order had enjoined and restrained him from proceeding with a divorce action in France or in any other jurisdiction.

Accordingly, the Supreme Court affirmed all orders and judgments of the Family Court from which the defendant had appealed.
Name: 11-14,15,17,18
State v. Derrick R. Oliver, No. 09-340 (June 26, 2013)
The defendant appealed from a judgment of conviction on five criminal counts.  On appeal, the defendant contended that the charges against him should have been dismissed because the state did not bring him to trial within the timeline designated within the Interstate Agreement on Detainers Act, G.L. 1956 chapter 13 of title 13 (the IADA).  He also argued that his convictions for larceny and assault with a dangerous weapon violated the Double Jeopardy Clauses of the United States and Rhode Island Constitutions.

The Supreme Court held that, because the defendant requested numerous continuances and never objected to the continuances requested by the state, the trial court did not err in denying his motion to dismiss based on the IADA deadline.  The Court also held that the larceny and assault convictions did not violate the Double Jeopardy Clauses because the convictions punished two distinct acts of the defendant.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 09-340
State v. Marcus Huffman, No. 11-193 (June 26, 2013)
The defendant, Marcus Huffman, appealed from a judgment of conviction following a jury trial, at the conclusion of which the jury found him guilty of first degree sexual assault stemming from an incident that occurred in March of 2007.  He raised three issues on appeal.

Prior to trial, the defendant moved to dismiss the indictment against him because, he contended, certain gaps in the recording of the grand jury proceedings deprived him of sufficient notice and due process and also violated Rule 6 of the Superior Court Rules of Criminal Procedure; on appeal, he challenged the denial of his motion to dismiss the indictment.  The Supreme Court held that, based upon the totality of the record of the grand jury proceedings, the denial of the motion to dismiss the indictment was not error.

At the defendant’s trial, information surfaced during the redirect examination of the complaining witness that had not been previously disclosed to the defendant.  He asserted on appeal that the prosecution’s failure to have previously disclosed that information violated Rule 16 of the Superior Court Rules of Criminal Procedure and should have resulted in a mistrial.  The Supreme Court held that, because of the nature of the new information, the point in the trial when it was revealed, the absence of a commitment by the defendant to a particular trial strategy or theory, and the availability of a continuance, the trial justice did not err in denying the defendant’s motion to dismiss the case.
  
In addition, an expert witness was allowed to testify as to her opinion with respect to the incident in question; her testimony was permitted over the defendant’s objection.  On appeal, the defendant argued that the expert witness’s testimony improperly vouched for or bolstered the complaining witness’s testimony as well as the testimony of a certified nurse assistant.  The Supreme Court held that the expert witness’s testimony did not improperly vouch for or bolster the testimony of other witnesses.  Therefore, the Court affirmed the trial justice’s decision to permit the testimony of the expert witness.

Accordingly, the Supreme Court affirmed the judgment of conviction. 
Name: 11-193
State v. John J. Eddy, No. 07-236 (June 26, 2013)
The defendant appealed from a judgment of conviction of three counts of first-degree child molestation sexual assault in violation of G.L. 1956 § 11-37-8.1, and two counts of first-degree sexual assault in violation of § 11-37-2.  On appeal, the defendant argued that: (1) the waiver of his right to counsel at trial was not voluntary; (2) even if his waiver was voluntary, he later revoked that waiver; (3) the trial justice was constitutionally required to appoint counsel—at least on a standby basis—to represent defendant after he chose to proceed pro se and then absented himself from the trial; (4) the trial justice should not have permitted the defendant to absent himself from the trial under Rule 43 of the Superior Court Rules of Criminal Procedure, because he was charged with “the Rhode Island equivalent of a capital crime”; (5) his conviction should be overturned because he was tried in Providence County on a criminal offense that allegedly occurred in Kent County, which the defendant alleged was an improper venue; and (6) the cumulative effect of all the purported errors required that his conviction be overturned.

The Supreme Court held that the defendant’s waiver of his right to counsel was voluntary and, furthermore, that the trial justice was within his discretion to deny the defendant’s eleventh-hour request for the appointment of counsel after he had already waived that right. The Court held that neither the United States Constitution, nor article 1, section 10 of the Rhode Island Constitution mandated that counsel be appointed when a pro se defendant voluntarily absents himself from his trial.  Additionally, the Court held that Rule 43 of the Superior Court Rules of Criminal Procedure did not preclude the trial justice from allowing the defendant to voluntarily absent himself from trial.  Finally, the Court held that any alleged error regarding venue was harmless beyond a reasonable doubt, and because all of defendant’s arguments lacked merit, a cumulative error analysis was unnecessary.

Accordingly, the Court affirmed the judgment of conviction against the defendant.
Name: 07-0236
Bennie Sisto, as the Trustee of Goat Island Realty Trust v. America Condominium Association, Inc., et al.; Bennie Sisto, as the Trustee of Goat Island Realty Trust v. Capella South Condominium Association, Inc., et al., Nos. 11-30, 31, 32 (June 26, 2013)
In these consolidated appeals, the plaintiff, Bennie Sisto, appealed from two judgments of the Superior Court: (1) the granting of summary judgment in favor of the defendant, America Condominium Association, Inc. (America); and (2) the granting of summary judgment in favor of the defendants, Capella South Condominium Association, Inc., Harbor Houses Condominium Association, Inc. (Harbor Houses), and Goat Island South Condominium Association, Inc. (GIS).  Additionally, Harbor Houses (a nominal defendant in the second action) appealed from the Superior Court’s grant of summary judgment in that action, arguing that judgment should have been granted in Sisto’s favor.
  
Sisto, who owned one of the nineteen sub-condominium units in Harbor Houses Condominium, contended that the hearing justice erred in concluding that he could not expand his unit without the unanimous consent of the 153 other unit owners in the entire Goat Island South Condominium community, pursuant to Rhode Island’s Condominium Act, G.L. 1956 chapter 36.1 of title 34.  Harbor Houses echoed Sisto’s argument in this regard.  Additionally, Sisto, who had filed an application with the Coastal Resources Management Council (the CRMC) for approval to expand his unit, argued that Rhode Island’s Anti-SLAPP statute, G.L. 1956 chapter 33 of title 9 did not insulate America from liability for its correspondence with the CRMC, in which it stated that Sisto did not own the land over which he sought to expand his unit.  Asserting that this correspondence was erroneous and deceptive, Sisto contended that America should not be entitled to the conditional immunity afforded by the anti-SLAPP statute.

After carefully reviewing the condominium declarations and the Condominium Act, the Supreme Court affirmed the judgment of the Superior Court in the second action, holding that Sisto’s proposed expansion required the unanimous consent of all unit owners in the Goat Island South Condominium community.  Further, the Court held that America’s correspondence with the CRMC fell within the embrace of the anti-SLAPP statute.  In the first action, the Court vacated the Superior Court’s issuance of a declaratory judgment because America had not filed a counterclaim for a declaratory judgment regarding the necessity of unanimous consent among all of the unit owners prior to Sisto’s expansion of his unit.  Accordingly, the Court affirmed in part and vacated in part the judgments of the Superior Court.
Name: 11-30, 31, 32
Hope Billings McCulloch v. James Robert McCulloch, Nos. 11-139, 10-433 (June 25, 2013)
The plaintiff, Hope Billings McCulloch (Hope), appealed from a decision that granted her complaint and the counterclaim of the defendant, James Robert McCulloch (James), for an absolute divorce.  Hope argued that the trial justice erred: (1) in his determination of the percentage of Microfibres Partnership Limited (MPL) that was marital property; (2) by declining to place a value on Microfibres, Inc. (Microfibres) before he divided the marital estate; (3) by disregarding a consent order that set forth the date as of which the marital property was to be valued; (4) by assigning Hope 25 percent of Microfibres, thereby rendering her a minority shareholder in a closely held corporation; (5) by declining to award Hope alimony; (6) by awarding Hope only $1,000 per week in child support; (7) by declining to award Hope fees for her attorneys, experts, and the supervisor of James’s visits with their son Lucas McCulloch (Lucas); and (8) by declining to order the disclosure of certain documents and information concerning James’s will, trusts, and estate plans.  Additionally, in a protective and conditional cross-appeal, James argued that the trial justice erred when he held that Microfibres was a marital asset and not an advance on his inheritance.

The Supreme Court held that the trial justice did not err in determining that the contested portion of MPL was not marital property.  Additionally, the Court held that the trial justice did not err in declining to award fees for attorneys, experts, and supervised visits, nor did he err in declining to order the disclosure of information about James’s will, trusts, and other estate-planning documents.  However, the Court did find that the trial justice was required to value Microfibres and MPL as a whole, and he was required to value the portions of those companies that he assigned to each party, and the Court remanded the matter for a trial to determine those values.  Because the Court could not fully review the distribution of the marital estate without those values, it declined to pass on the alimony and child support issues.

Furthermore, the Court held that the manner in which the trial justice deviated from the terms of the consent order constituted error; however, that error did not require a rehearing.  Finally, the Court addressed James’s conditional cross-appeal and held that the trial justice did not err when he held that Microfibres was marital property.

Accordingly, the Court affirmed in part and vacated in part the Family Court’s decision pending entry of final judgment and remanded the matter to that tribunal. 
Name: 11-139, 10-433
Norman Laurence v. Rhode Island Department of Corrections et al., No. 12-197 (June 20, 2013)
The pro se plaintiff, Norman Laurence, appealed from two orders entered in a civil action:  (1) an order denying his motion to proceed in forma pauperis; and (2) an order restricting the plaintiff from filing any pro se actions in Superior Court. 

In light of the plaintiff’s expressed willingness to pay the fees associated with his lawsuit, the Supreme Court deemed the first issue waived.  As to the second issue raised by the plaintiff, the Court concluded that the order limiting the plaintiff’s access to the courts was overly broad.  The Court held that the order failed to recite any findings of fact and that the plaintiff was not afforded notice or an adequate opportunity to be heard before the order was entered.  In addition, the Court was not persuaded that the record demonstrated the requisite degree of continuous and widespread abuse of the judicial system. 

Accordingly, because the order did not comport with the Court’s precedent and failed to include the protections afforded to the plaintiff, the Supreme Court concluded that the order was improperly entered and impermissibly infringed upon the plaintiff’s right of access to the courts.  For those reasons, the Court vacated the orders restricting the plaintiff from filing any pro se actions in Superior Court and remanded the record to the Superior Court.
Name: 12-197
State v. Christopher S. Thornton, No. 12-5 (June 19, 2013)
The applicant, Christopher S. Thornton, appealed from a judgment of the Superior Court denying his application for postconviction relief.  On appeal, Thornton argued that the hearing justice erred in finding that he was not entitled to postconviction relief based on the prosecution’s failure to disclose certain victim-impact statements.  His argument was premised on both Rule 16 of the Superior Court Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963).  Additionally, he claimed entitlement to a new trial based on newly discovered evidence, pursuant to G.L. 1956 § 10-9.1-1.  In response, the state contended that Thornton’s claims were not only barred by res judicata, but were also meritless.

After reviewing the record, the Supreme Court concluded that Thornton’s claims were indeed barred by res judicata.  The Court further noted that his claims lacked merit because the state had not deliberately withheld the victim-impact statements and because he was not prejudiced by the nondisclosure, especially in light of the fact that they were sent to the clerk of the court and filed with the rest of the documents in his case file.  The Court also held that Thornton was not entitled to a new trial based on newly discovered evidence.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-5
State v. Lewis Kausel, No. 12-74 (June 19, 2013)
The defendant, Lewis Kausel, appealed from a judgment of conviction for simple domestic assault.  On appeal, the defendant alleged four errors: (1) that the trial justice erred by failing to properly instruct the jury as to the elements of the charged conduct, thereby relieving the state of the burden of proving “mens rea”; (2) that the trial justice improperly limited the defendant’s cross-examination of the complaining witness; (3) that the trial justice impermissibly allowed a police witness to vouch for the complaining witness’s credibility; and (4) that the trial justice erred in withholding from the defendant a copy of the complaining witness’s victim impact statement, which the state received after the trial was completed but before the sentencing proceeding.
  
The Supreme Court held that the trial justice’s jury instruction with respect to intent adequately covered the appropriate law, and it therefore affirmed the trial justice’s instruction in that regard.  In addition, the Court held that the trial justice did not err in limiting the defendant’s cross-examination of the complaining witness.  The Court also held that any testimony that might have constituted impermissible vouching did not prejudice the defendant.  Finally, the Court determined that the trial justice did not err in proceeding with the sentencing of the defendant after the admission of the statement of the complaining witness.

Accordingly, the Supreme Court affirmed the judgment of conviction.
Name: 12-74
State v. DeAnthony Allen, No. 12-176 (June 19, 2013)
The defendant appealed from a judgment of conviction for first degree child abuse.  On appeal, the defendant contended that the charge against him should have been dismissed because the child abuse statute (G.L. 1956 § 11-9-5.3) was unconstitutionally vague.  He also argued that the trial justice erred when he admitted a statement that the defendant wrote at a police station; the defendant contended that he did not knowingly and voluntarily waive his Miranda rights before providing that statement.  Finally, the defendant argued that the trial justice erred in denying his motion for a judgment of acquittal and his motion for a new trial.

The Supreme Court held that the first degree child abuse provision in the child abuse statute provided the defendant with sufficient notice that his conduct was unlawful; therefore, the Court held that the statute was constitutional as applied to the defendant.  The Court next held that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights before providing his statement to the police; he was given a form by the police which included those rights, and he read each right out loud in front of the police, market his initials next to each right, and signed the form to indicate that he understood those rights.  Finally, the Court held that the trial justice did not err in denying the defendant’s motions for a judgment of acquittal and for a new trial.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 12-176
The Wampanoag Group, LLC et al. v.James A. Iacoi et al., No. 12-54 (June 19, 2013)
The defendants appealed from the Superior Court’s denial of their motion for leave to file a third-party complaint.  The defendants are attorneys who were retained by the plaintiffs in connection with the purchase of property.  The initial complaint filed by the plaintiffs stated that they paid for the property under the belief that the existing leases on the property were “triple net leases.”  The plaintiffs further alleged that the attorneys were responsible for advising them about the nature of the leases and that the attorneys’ negligent review of those leases led to the plaintiffs’ overpayment for the property.  The defendants filed a motion for leave to file a third-party complaint under Rule 14 of the Superior Court Rules of Civil Procedure.  That proposed complaint alleged that the real estate agents were responsible for reviewing the leases and that the defendants were therefore entitled to contribution or indemnification.

The Superior Court denied the defendants’ motion for leave to file a third-party complaint, stating that the defendants failed to allege a cause of action against the real estate agents.  On appeal, the Supreme Court vacated the Superior Court’s denial, noting that the proposed complaint satisfied the requirements of Rule 14.  The Court recognized that the proposed third-party complaint contained allegations which, if proved, would entitle the defendants to seek contribution or indemnification from the real estate agents.
Name: 12-54
State v. Adrian Hazard, Nos. 11-29, 10-371 (June 19, 2013)
The trial justice found the defendant, Adrian Hazard, to be a probation violator for eluding police officers, carrying a revolver without a license and possession of a pistol after being convicted of a crime of violence, and he ordered that the defendant serve ten years of his previously suspended sentence.  The defendant appealed, contending that his inoperable replica of a Remington 1858 .44-caliber black powder revolver was not a “firearm” or “pistol” under G.L. 1956 chapter 47 of title 11 (the Firearms Act) and that his ten-year sentence was excessive.

In a separate criminal case, the state charged the defendant with recklessly operating a motor vehicle, carrying a pistol or revolver without a license, and possession of a firearm after having been convicted of a crime of violence.  Concerned with the trial justice’s interpretation of the Firearms Act during the defendant’s probation-revocation hearing, the state filed a motion in limine requesting that the trial justice interpret the Firearms Act such that a pistol, or a frame or receiver, need not be capable of expelling a projectile, or be readily converted to do so, in order to fall within the Firearms Act’s reach.  The trial justice denied the motion, and the state appealed.  The two appeals were consolidated.
Name: 11-29, 10-371
Providence School Board v. Providence Teachers Union, Local 958, AFT, AFL-CIO, No. 12-147 (June 19, 2013)
After the Providence School Board (board) changed its formula for calculation of health insurance premium rates for active and retired teachers, which resulted in a higher increase in premium costs for retired teachers, the Providence Teachers Union, Local 958, AFT, AFL-CIO (union) submitted a grievance protesting what it termed the increased cost for health insurance for retired teachers.  The arbitrator ruled in the union’s favor, and the board moved to vacate the award in the Superior Court.  The trial justice vacated the award, concluding that the union did not have standing to pursue a grievance on behalf of retired teachers and that the issue of the calculation of group premium rates was not arbitrable.  The union appealed.

The Supreme Court agreed with the trial justice that the union was attempting to grieve a claim on behalf of the retired teachers—an action that the parties’ collective-bargaining agreement did not authorize and the Court’s precedent foreclosed.  The Court determined that, because the union had no standing to pursue the grievance, the grievance was not arbitrable.  The Court held that the arbitrator had exceeded his powers in adjudicating this dispute and that the trial justice properly granted the board’s motion to vacate the award.  Accordingly, the Court affirmed the order of the Superior Court.
Name: 12-147
State v. Jeffrey Martin, No. 09-381 (June 18, 2013)
The defendant, Jeffrey Martin, appealed from a judgment of conviction for first-degree sexual assault following a jury trial in the Superior Court.  On appeal, the defendant argued that the Superior Court erred in denying his request to instruct the jury on the defense of consent, in admitting certain testimony under the excited-utterance exception to the hearsay rule, and in denying his motion to dismiss the indictment because of irregularities at the grand jury proceedings.

The Supreme Court first held that the trial justice properly instructed the jury as to first-degree sexual assault.  In particular, the Court concluded that a specific instruction on the defense of consent or mistake of fact was unnecessary in this case because the charge pertaining to the “force or coercion” element of the offense adequately covered the concept of consent.  Additionally, the Court determined that no evidence was presented at trial that would have supported the defendant’s proposed instruction.
Name: 09-381
Inland America Retail Management LLC v. Cinemaworld of Florida, Inc., No. 12-151 (June 18, 2013)
The plaintiff, Inland American Retail Management LLC, appealed from a judgment of the Superior Court that concluded, as a matter of law, that the language of a lease between the parties unambiguously provided that the formula to allocate certain real estate tax payments should be based on the square footage of the leased premises of the defendant, Cinemaworld of Florida, Inc.  The trial justice also declined to grant Inland’s request for interest, late charges, expenses, and attorneys’ fees.  On appeal, Inland argued that the trial justice erred by (1) adopting a formula that was not supported by the lease and (2) declining to award interest, late charges, expenses, and attorneys’ fees.

The Supreme Court reversed the judgment of the Superior Court, holding that the language of the lease was ambiguous and presented a genuine issue of material fact as to the parties’ intent.  Based on this holding, the Supreme Court declined to review whether the trial justice erred in declining to award interest, late charges, expenses, and attorneys’ fees to Inland.  Accordingly, the Court vacated the judgment of the Superior Court, holding that these issues should be resolved by a trier of fact and were not suitable for summary disposition.
Name: 12-151
Rhode Island Construction Services, Inc. v. Harris Mill, LLC., Rhode Island Construction Services, Inc. v. Harris Mill, LLC, Thomas Lonardo & Associates, Inc. v. Rhode Island Construction Services, Inc., Nos. 09-374, 10-397, 10-422 (June 18, 2013)
Thomas Lonardo & Associates, Inc. (TLA) filed a petition to enforce a mechanics’ lien related to its architectural work on a renovation project.  Petra Finance, LLC (Petra) held a first priority mortgage on the property.  Petra missed the deadline to file a statement of claim in the mechanics’ lien proceedings; accordingly, TLA’s mechanics’ lien gained priority over Petra’s mortgage.  The Superior Court, however, allowed Petra to file a statement of claim out of time, thus restoring the mortgage’s priority.

In this consolidated appeal, the Supreme Court reversed the Superior Court’s decision to allow Petra to file an answer and statement of claim out of time in the mechanics’ lien action.  The Supreme Court held that Petra’s untimely filing was not the result of “excusable neglect.”
Name: 09-374, 10-397, 10-422
State v. Gerald D. Price, No. 10-128 (June 18, 2013)
The defendant, Gerald D. Price, was convicted by a jury of one count of possession of marijuana and two counts of possession of cocaine with the intent to deliver while armed with or having available a firearm.  On appeal, Price contended that the trial justice committed three errors, each of which, he maintained, entitled him to a new trial.  First, the defendant argued that the trial justice incorrectly interpreted the phrase “having available any firearm” within G.L. 1956 § 11-47-3.  Second, he averred that the trial justice erroneously permitted the state to impeach his credibility with an allegation of previous criminal conduct and with information that was false and prejudicial.  Third, Price argued that the trial justice violated his constitutional right to make an informed decision about whether to plead or proceed to trial and that, therefore, he should only be retried on a single count rather than on three. 

The Court first observed that the defendant had moved for judgment of acquittal at the close of the state’s case but did not renew this motion at the close of his own presentation of evidence and, therefore, the Court concluded that his argument concerning the denial of his Super.R.Crim.P. 29 motion had been waived.  The Court next held that the trial justice erred by allowing the prosecutor for the state to ask questions of the defendant that were not factually correct regarding his past criminal history, and it vacated the judgment of conviction.  The Court additionally concluded that the defendant’s constitutional rights were not violated with regard to the defendant’s decision to proceed to trial and that, therefore, the defendant could be retried on all counts upon remand.
Name: 10-128
In re Evelyn C., No. 2012-1 (June 18, 2013)
The respondent-father appealed from a Family Court termination of parental rights with respect to his daughter.  Specifically, father argued that the trial justice erred in concluding that he has a substance-abuse problem, rendering him unable to care for his daughter.  Further, father asserts that there was insufficient evidence to support the trial justice’s determination that it was unlikely that she could be returned to him within a reasonable amount of time. 

The Supreme Court affirmed the decision below.  First, the Court held that there was a copious amount of evidence in the record to support the trial justice’s finding of father’s chronic substance abuse by clear and convincing evidence.  The Court also found no error in the trial justice’s determination that the department granted father a plethora of opportunities and services to enable him to reunite with his daughter, but that father either did not take advantage of these services or failed to use them to improve his situation adequately and that, therefore, it was unlikely that father’s daughter could be returned to him within a reasonable amount of time.
Name: 12-1
State v. Roger Morin, No. 2010-237 (June 18, 2013)
The defendant, Roger Morin, appealed from a Superior Court judgment of conviction for first-degree child molestation.  On appeal, he argued that the trial justice erred in (1) refusing to suppress a statement that he made to police following his arrest; (2) admitting that statement without first redacting certain portions; and (3) denying his motion for a new trial.

The Supreme Court rejected Morin’s argument that his statement should have been suppressed as the fruit of an unlawful arrest.  The Court held that, although Morin was arrested in his home without a warrant, the arrest was valid because it was made under exigent circumstances.  The Court also held that the trial justice did not abuse his discretion in denying Morin’s request to partially redact his statement before it was admitted into evidence.  Finally, the Court held that the trial justice had not clearly erred and had not misconceived or overlooked material evidence in denying Morin’s motion for a new trial.  Accordingly, the Court affirmed the judgment in all respects.
Name: 10-237
Greensleeves, Inc. v. Philip B. Smiley, Sr. et al., No. 10-230 (June 18, 2013)
The defendant, Eugene Friedrich, appealed from a Superior Court judgment awarding damages, prejudgment interest and costs to the plaintiff, Greensleeves, Inc., on its tortious interference of contract claim.  On appeal, Friedrich contended that the trial justice erred in (1) finding that he had tortiously interfered with Greensleeves’ contract; and (2) denying his motion pursuant to Rule 59(e) of the Superior Court Rules of Civil Procedure to amend the judgment to reduce the award of prejudgment interest.
 
Although the Supreme Court acknowledged that the trial justice erred by referring to and considering matters outside the record in his bench decision, it concluded that those errors were harmless.  Because there was cumulative record evidence upon which the trial justice relied in reaching his ultimate conclusion that Friedrich tortiously interfered with Greensleeves’ contract, the Court held that the trial justice had not committed any reversible error.  Additionally, the Court declined to adopt a fault-based analysis with respect to the award of prejudgment interest.  Friedrich asserted that, because Greensleeves had pursued two unsuccessful appeals during the protracted travel of the case, extending the matter for twenty-nine months, the prejudgment interest should be accordingly reduced.  Mindful of its limited standard of review, the Court reasoned that the trial justice had not committed a manifest error of law in denying Friedrich’s motion to amend the judgment to reduce the award of prejudgment interest.  Accordingly, the Court affirmed the judgment of the Superior Court in all respects.
Name: 10-230
Michael Bell v. State of Rhode Island, No. 11-355 (June 18, 2013)
In July 2009, Michael Bell was convicted of felony assault following a jury-waived trial, and he was sentenced to fifteen years, with four to serve and eleven suspended, with probation.  In February 2010, Bell filed an application for postconviction relief.  The Superior Court rejected Bell’s arguments and denied the requested relief.
 
Bell appealed from the denial of his application for postconviction relief, arguing that his trial counsel had provided ineffective assistance of counsel by giving him “incorrect legal advice” that “ultimately deprived [him] of the opportunity to consider and accept a favorable plea offer.”  The Supreme Court affirmed the judgment of the Superior Court, holding that, because the prosecution made no offer and, further, because even had an offer been made, Bell was unlikely to have accepted it given his stated desire to join the military, Bell failed to prove that the counsel he received was deficient or that he was prejudiced in any way by his counsel’s performance.
Name: 11-355
State v. Alfred Bishop, No. 09-173 (June 18, 2013)
The defendant, Alfred Bishop, appealed from a judgment of conviction for (1) first-degree murder, pursuant to G.L. 1956 § 11-23-1; (2) burglary, pursuant to G.L. 1956 § 11-8-1; (3) three counts of using a firearm while committing a crime of violence, pursuant to G.L. 1956 § 11-47-3.2; and (4) two counts assault with a dangerous weapon, pursuant to G.L. 1956 § 11-5-2.  On appeal, the defendant argued that the trial justice erred in refusing to admit evidence about the alleged intoxication and drug possession of certain witnesses for the state and in allowing what he contended was extremely prejudicial information about his parole status into evidence.

After reviewing the record, the Court held that the trial justice did not err in limiting the introduction of evidence regarding the alleged use of and possession of illicit substances by certain witnesses for the state because, pursuant to Handy v. Geary, 105 R.I. 419, 252 A.2d 435 (1969), defense counsel had not come forward with sufficient evidence to allow a reasonable juror to conclude that the witnesses were, in fact, intoxicated, and the trial justice determined that defense counsel had failed to establish that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice.  In addition, the Court held that the trial justice did not abuse his discretion in concluding that the probative value of references to the defendant’s parole status was not substantially outweighed by the danger of unfair prejudice.

Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 09-173
Patricia Sullo v. David Greenberg, No. 12-69 (June 18, 2013)
The plaintiff, Patricia Sullo, sought review of the Superior Court’s entry of summary judgment in favor of the defendant, David Greenberg, M.D.

After the defendant operated on Sullo’s leg and foot in October 2007, Sullo was returning to his office for a post-operative appointment in November 2007.  On the day of her appointment, there was a storm, but the parties dispute the nature of the precipitation.  The plaintiff was ambulating with the aid of crutches—her left foot was in a soft cast—towards the door of Greenberg’s office when, according to the plaintiff, her crutch slipped on the wet surface and she fell, thereby incurring extensive injury.  In her complaint, Sullo alleged that she fell on accumulated snow; but, in her deposition, she testified that the surface was only wet and not “slushy.”  Sullo then sued, claiming that the defendant was negligent in failing to treat the entranceway to his office.  Greenberg moved for summary judgment, which was granted.  The trial justice held that the case was governed by the Connecticut Rule, which allows a business invitor to wait until a snowstorm has ended to undertake snow removal and surface treatment.

The Supreme Court held that a genuine issue of material fact existed as to the nature of the storm on the day in question.  Because the nature of the storm dictates whether or not the Connecticut Rule applies, this disputed fact was material.  The rationale of the Connecticut Rule is to allow a reasonable time to clear a natural accumulation of snow and ice after a winter storm; thus, the rule is intended to apply to ongoing winter storms resulting in an accumulation of snow, ice, or frozen rain.  Because the parties disputed whether the storm on the day of Sullo’s fall was such a storm, there existed a genuine issue of material fact that made the extreme remedy of summary judgment inappropriate in this case.

Accordingly, the Supreme Court vacated the judgment of the Superior Court and remanded for additional proceedings.
Name: 12-69
Rachel Rafaelian v. Perfecto Iron Works, Inc., et al., No. 12-163 (June 18, 2013)
The petitioner, Rachel Rafaelian, appealed from an order of the Superior Court granting the motion of the respondents, Perfecto Iron Works, Inc., to vacate a default judgment and final decree in a case involving a petition to foreclose the right of redemption arising from a tax sale.  The petitioner argued that the trial justice ignored Rule 81(a)(2) of the Superior Court Rules of Civil Procedure and G.L. 1956 § 44-9-24, which precludes the Superior Court from vacating a final decree foreclosing the right of redemption after a tax sale.  The respondent countered that the decree was erroneous because the respondent had timely answered the petition seeking to foreclose its right of redemption.

The Supreme Court held that the trial justice did not err when she concluded that the default erroneously was entered because the respondent’s answer was, in fact, timely filed.  The Court noted that, with respect to any validly entered decree, § 44-9-24 is controlling.  However, the Court concluded that the judgment in this case was not a valid judgment and that its erroneous entry fell outside the safeguards of § 44-9-24.  Accordingly, the judgment necessarily and properly was vacated.
  
For these reasons, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-163
Gregory H. Andrews et al. v. Beverly Plouff, No. 11-348 (May 29, 2013)
This case arose from a failed real estate transaction.  After the jury returned a verdict in the plaintiffs’ favor, the trial court ordered the defendant to return to the plaintiffs their $49,000 deposit, along with prejudgment interest.  On appeal, the defendant challenged the trial court’s award of prejudgment interest.
 
The Supreme Court recognized that G.L. 1956 § 9-21-10(a) provides for a successful party to collect prejudgment interest when it has been awarded “pecuniary damages.”  The Court noted that it had addressed a similar issue in a previous case, holding that the “return of a deposit is simply a reimbursement rather than an award of pecuniary damages.”  Accordingly, since the plaintiffs’ complaint had simply sought a return of their deposit, the Court vacated the award of prejudgment interest.
Name: 11-348
Elisa M. Catley v. Mark D. Sampson, No. 12-167 (May 28, 2013)
The defendant, Mark D. Sampson, appealed from a Family Court order denying his motion to modify custody.  The defendant argued that, because his conviction for second-degree child abuse was vacated by this Court and the charges were subsequently dismissed, the hearing justice should have awarded him full custody despite his failure to complete required domestic-violence classes and drug testing.
 
The Supreme Court affirmed the order of the Family Court, finding that the existing custody order was not based on the defendant’s conviction but, rather, was entered based on findings of abuse made after the Family Court magistrate heard testimony and reviewed evidence in an earlier proceeding.  Further, the Court cited to G.L. 1956 § 15-5-16(d)(4), which provides that the Family Court “may order a natural parent who has been denied the right of visitation due to physical or sexual abuse of his or her child to engage in counseling” and further provides that the failure to engage in that counseling “shall constitute sufficient cause to deny visitation.”  Because the defendant refused to attend a single domestic-violence class, and because he had not provided any documentation of negative drug or alcohol screens, the Court held that it was not an abuse of discretion for the hearing justice to deny the defendant’s motion to modify custody.
Name: 12-167
Arthur W. Beauregard v. Charles E. (Rex) Gouin et al., No. 10-434 (May 28, 2013)
The plaintiff, Arthur W. Beauregard, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Attorney Paul A. Brule and the law firm of Walsh, Brule & Nault, P.C.  The defendants represented a group of landowners in connection with a real estate dispute between the landowners and the plaintiff.  After learning that the landowners were concerned that the plaintiff might encroach on their property, the defendants filed a notice of intent to disrupt adverse possession pursuant to G.L. 1956 § 34-7-6 on behalf of the landowners.  In due course, the plaintiff sued the landowners and thereafter filed an amended complaint, which included claims against the defendants for slander of title and intentional interference with prospective advantage.  After considering the arguments of the parties, the Superior Court granted summary judgment in favor of the defendants with respect to the just-mentioned claims.

The Supreme Court affirmed the Superior Court’s grant of summary judgment.  The Court recognized that the notice of intent filed by the defendants did not reference the plaintiff’s land; instead, it merely interrupted potential claims for adverse possession that might be accruing against the landowners’ own property.  The Court therefore held that the notice of intent filed by the defendants could not provide the basis for a claim of slander of title or of intentional interference with prospective advantage.
 
Accordingly, the Supreme Court affirmed the Superior Court’s grant of summary judgment.
Name: 10-434
In re Isabella M. et al., Nos. 11-325, 11-326 (May 28, 2013)
The respondents, Cristin B. (mother) and Mark M. (father) appealed from a Family Court decree terminating their parental rights to their children, Isabella M. and James Cody B.  The Family Court justice granted the petition of the Department of Children, Youth and Families (DCYF) to terminate the mother’s parental rights on the bases that she had a chronic substance-abuse problem, that her conduct was seriously detrimental to her children, and that the children had been in state custody for more than twelve months without a substantial probability that they would be able to safely return to her care within a reasonable period of time.  The trial justice granted DCYF’s petition to terminate the father’s parental rights on the bases that the children had been in state custody for more than twelve months without a substantial probability of safe return to his care and that he had abandoned or deserted the children.  Both of the respondents appealed.

On appeal, the mother argued that the trial justice misconceived or overlooked material evidence in finding that the children’s return to her home within a reasonable period was improbable.  The Court concluded that, notwithstanding the mother’s success in a few mental-health and substance-abuse programs, the uncontroverted trial testimony of two DCYF workers demonstrated that the mother only sporadically engaged in the services required by her case plans and that she had been homeless for most of the two-and-a-half-year period that the case was open.  Therefore, the Court affirmed the trial justice’s decree terminating the mother’s parental rights on the basis that it was unlikely that the children would return to her care within a reasonable time period, and it declined to address the mother’s other arguments.

The father argued that, although he had not visited with his children for over six months, the presumptive period for abandonment under G.L. 1956 § 15-7-7(a)(4), he did make efforts to maintain contact during this period but was “[l]egally [p]revented” from doing so.  The Court held that the uncontroverted testimony of the DCYF workers demonstrated that the father had no contact with his children for nearly one year prior to trial and noted that, although the father reached out to DCYF during this period to resume visitation, he canceled or missed several of those appointments.  Therefore, the Court concluded that the trial justice did not err in terminating the father’s parental rights because he had abandoned or deserted the children, and the Court declined to pass on the father’s remaining arguments.
Name: 11-325, 11-326
Jaime Carreiro v. David Tobin, Alias et al., No. 12-72 (May 28, 2013)
The plaintiff, Jaime Carreiro, appealed from the Superior Court’s grant of summary judgment in favor of the defendant, David Tobin.  The plaintiff argued that the trial justice erred in finding that the dog bite at issue occurred within the enclosure of the owner or keeper of the dog. Further, the plaintiff asserted that the apartment in which the incident took place is an entirely separate apartment within the defendant’s building and that, therefore, the presence of the dog outside the defendant’s enclosure is sufficient to impose strict liability on the defendant for injuries resulting from the bite.

The Supreme Court reversed the judgment of the Superior Court, holding that whether the defendant had free access to the second-floor apartment was a disputed question of material fact and that, without answering that question, it was impossible to decide whether the second-floor apartment was a separate enclosure for purposes of G.L. 1956 § 4-13-16.  Further, the Court held that whether the dog was on the premises with the defendant’s knowledge and consent was a disputed question of material fact necessary to the determination of whether the defendant could be held liable as the dog’s keeper.  Accordingly, the Court held that these issues should be resolved by a trier of fact and are not suitable for summary disposition.
Name: 12-72
Joyce Wheeler v. Encompass Insurance Company, 2011-313 (May 24, 2013)
Joyce Wheeler (Wheeler) appealed from a Superior Court order granting in part and denying in part her motion to confirm an arbitration award against Encompass Insurance Company (Encompass).  Wheeler was injured in a motor-vehicle collision with an underinsured driver, who was insured by Progressive Insurance Company (Progressive).  Progressive did not contest liability and paid Wheeler the policy limits.  Wheeler then sought recovery for personal injuries pursuant to the uninsured/underinsured motorist provisions (UM/UIM coverage) of her Encompass policy.  That policy provided UM/UIM coverage up to $100,000.
 
Encompass contested the nature and extent of Wheeler’s injuries, so the parties agreed to submit the dispute to arbitration.  The arbitrators found that Wheeler’s damages amounted to $150,000 and, further, that the underinsured driver had paid $25,000 of those damages and Encompass had paid $5,000 pursuant to the Medical Payment provision of Wheeler’s policy.  The arbitrators concluded that Wheeler was entitled to prejudgment interest on the $25,000 payment until the date it was paid and on the outstanding $120,000 in damages.  Based on those calculations, the arbitrators issued a total award of $172,750.

When Wheeler sought confirmation of the arbitration award in the Superior Court, Encompass objected.  Encompass argued that Wheeler’s UM/UIM policy provided $100,000 maximum coverage and, under Rhode Island law, Wheeler was not entitled to recover any amounts from Encompass in excess of her policy limits.  The trial justice accepted that contention and sustained the objection to the extent that the award exceeded the policy limits, but confirmed the award in all other respects.
  
On appeal, the Supreme Court determined that the trial justice essentially modified the arbitrators’ award based on his belief that the arbitration panel committed an error of law.  The Court held that the trial justice was without statutory grounds to modify the award and, therefore, was required to confirm it.  Accordingly, the Court vacated the order and directed that the arbitration award be reinstated in its entirety.
Name: 11-313
State v. Charles Pona, No. 10-345 (May 23, 2013)
The defendant, Charles Pona, appeals from a judgment of conviction for first-degree murder, conspiracy, obstruction of justice, and numerous firearms counts.  The defendant raised several appellate challenges: (1) the trial justice abused his discretion in admitting various items of evidence, including evidence that the defendant committed a prior murder; (2) the trial justice’s jury instructions on evaluating witness credibility were insufficient because they failed to highlight the danger of the testimony of accomplice witnesses who cooperate with the state; (3) the trial justice erred in rejecting the defendant’s Batson challenge to the state’s use of a peremptory challenge; (4) the trial justice impermissibly permitted the state to vouch for the truthfulness of two of its witnesses; and, finally, (5) the trial justice erred in denying the defendant’s motion for a new trial.

The Supreme Court determined that no evidentiary error had been committed.  Additionally, the Court held that the defendant’s requested jury instruction concerning the credibility of cooperating witnesses was not required and that the trial justice’s instructions on evaluating witness credibility were sufficient.  The Court also determined that the state articulated a legitimate, race-neutral reason for the peremptory challenge: the prosecutor had prosecuted the prospective juror’s cousin fifteen years earlier.  The Court concluded that the defendant had failed to preserve his argument concerning impermissible witness vouching and that, in any event, the state did not inappropriately vouch for any of its witnesses.  Finally, the Court upheld the trial justice’s denial of the defendant’s new-trial motion, as the defendant failed to demonstrate that the trial justice clearly erred or overlooked or misconceived relevant and material evidence.

Accordingly, the Court affirmed the judgment of conviction.
Name: 10-345
Nelson Cruz et al. v. DaimlerChrysler Motors Corp. et al., No. 12-56 (May 20, 2013)
The plaintiffs, Nelson and Elaine Cruz, appealed from the Superior Court’s entry of summary judgment in favor of the defendant, Ricky Smith Pontiac GMC, Inc. (Ricky Smith).  They alleged that Nelson Cruz was injured when the airbags on their vehicle spontaneously deployed, and they sought to recover damages from Ricky Smith, the seller of the vehicle.  On appeal, the plaintiffs argued that the hearing justice erred in finding that Ricky Smith was entitled to summary judgment on their claims of negligence and negligent misrepresentation and on Elaine Cruz’s claim for loss of consortium.

The Supreme Court held that the hearing justice had correctly concluded that the plaintiffs could not make out a claim for negligence through the doctrine of res ipsa loquitur, which can sometimes be used to establish inferential evidence of a defendant’s negligence.  The Court acknowledged that the accident in this case was of a type that did not ordinarily occur in the absence of negligence, but it concluded that the evidence did not establish that Ricky Smith was negligent.  Additionally, the Court held that the hearing justice had correctly granted summary judgment on the claim of negligent misrepresentation because there was no evidence to suggest that Ricky Smith made false statements to the plaintiffs.  Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 12-56
In re Estate of May Manchester, No. 2012-85 (May 20, 2013)
The Estate of May Manchester (the estate) appealed from the Superior Court’s grant of summary judgment in favor of the Rhode Island Department of Human Services (DHS).  Prior to the decedent’s death, DHS had paid the sum of $94,162.70 in medical assistance payments on her behalf.  In an effort to seek reimbursement for those payments, DHS filed a claim in the probate court; however, the claim was not filed within the statutory six-month window following Manchester’s death, pursuant to G.L. 1956 § 33-11-5.  Because DHS did not receive the statutorily-mandated notice that Manchester’s probate estate had been opened, the probate court allowed DHS to file its claim out of time.  In objecting to this claim, the estate asserted that the claim was barred by the two-year statute of limitations provided in § 33-11-50.  DHS maintained that § 33-11-50 was wholly inapplicable; the lower court agreed.

On appeal, the Supreme Court reviewed whether the time limit provided in § 33-11-50 operated to bar DHS’s claim.  Agreeing with the lower court, the Court held that § 33-11-50 did not apply.  That statute, the Court reasoned, thwarts suits brought by a decedent’s creditors—not claims presented to probate, as DHS had done here.  Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 12-85
State v. Keith Harrison, No. 11-183 (May 20, 2013)
The defendant appealed from a judgment of conviction for simple domestic assault.  The conviction was related to a fight in which the defendant head-butted his girlfriend.  On appeal, the defendant contended that the trial justice committed reversible error when she allowed an investigating police officer to testify that the defendant admitted to him that he owned handcuffs.  Specifically, the defendant argued that (1) the statement should have been suppressed because it was given while he was in police custody and before the police read him his Miranda rights and (2) that police obtained the admission during what he considered to be an illegal search and seizure of his apartment in violation of the Fourth Amendment.  The defendant also appealed the trial justice’s denial of his motion for a new trial.

The Supreme Court held that Miranda did not apply because the defendant was not “in custody” when the officer asked him if he owned handcuffs.  The Court also held that the defendant’s Fourth Amendment argument failed because the defendant allowed the police to enter his studio apartment and because the question which prompted the challenged statement was unrelated to anything that the police saw within the apartment.  Finally, the Court ruled that the trial justice did not err in denying the defendant’s motion for a new trial.

Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 11-183
State v. Jeffrey Moten, No. 2008-51 (May 17, 2013)
The defendant appealed from a judgment of conviction of one count of first degree child abuse.  On appeal, the defendant contended that his right to confrontation under both the United States and Rhode Island constitutions was violated when the trial justice allowed a pediatrician to testify regarding out-of-court statements made by a colleague of hers—an ophthalmologist who performed a retinal exam on the injured infant.
 
The Supreme Court held that, under the Court’s “raise or waive” rule, the defendant did not preserve the constitutional issue for appellate review.  Defense counsel did not articulate a basis for his objection when the pediatrician was about to testify regarding the ophthalmologist’s statements.  Further, although the Court acknowledged that there is a narrow exception to the “raise or waive” rule, it held that that exception did not apply.  The exception applies when an intervening decision of the Supreme Court of the United States establishes “a novel constitutional rule.”  The defendant’s argument, however, was based on the holding in an opinion of the United States Supreme Court that was issued over two years before the pediatrician testified in this case.  Therefore, the rule was no longer “novel” at the time of trial.
 
Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 08-51
Paul Oden et al. v. Carl Schwartz, M.D., No. 11-167 (May 16, 2013)
In this medical malpractice action, the defendant, Carl Schwartz, M.D. (Dr. Schwartz), appealed from a Superior Court judgment in favor of the plaintiff, Paul Oden (Oden).  On appeal, Dr. Schwartz, the echocardiologist at Oden’s heart surgery, argued that the trial justice erred in denying his motion for a new trial.  Specifically, he asserted that the trial justice committed reversible error in (1) refusing to instruct the jury on intervening and superseding cause; (2) admitting certain testimony pertaining to Oden’s cardiac arrest following surgery in August 2004; (3) ignoring relevant and material evidence on the issue of damages; and (4) instructing the jury on insurance.  Additionally, Dr. Schwartz contended that G.L. 1956 § 9-21-10(b) (mandating prejudgment interest at a rate of 12 percent on pecuniary damages in medical malpractice actions) was unconstitutional—an issue of first impression for the Supreme Court.
  
The Supreme Court first held that the trial justice correctly refused to instruct on intervening and superseding cause because Dr. Schwartz was part of a surgical team, and, as such, there was no break in the causal connection between his antecedent negligence and the subsequent negligence committed by the surgeon.  Second, the Court concluded that testimony concerning Oden’s post-operative cardiac arrest was properly before the jury.  Third, the Court agreed with the trial justice that there was sufficient evidence to establish Dr. Schwartz’s negligence and that the jury’s award of damages did not shock the conscience.  Fourth, the Court determined that the trial justice’s instruction directing the jury to ignore any assumptions or implications concerning liability insurance did not contravene Rule 411 of the Rhode Island Rules of Evidence.  Reasoning that the members of the jury are presumed to follow a trial justice’s instructions, and examining the context in which that instruction was delivered, the Court held that the trial justice did not err in so instructing the jury.  Lastly, the Court reviewed the constitutionality of § 9-21-10(b).  Likening the statute to economic legislation, the Court examined the statute under a rational basis standard of review.  Ultimately, the Court held that the statute was constitutional because it was rationally related to the legitimate state interest of promoting settlement as well as compensating an injured plaintiff for the loss of the use of money to which he or she is legally entitled.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court in all respects.
Name: 11-167
In re Rita F., No. 11-385 (May 16, 2013)
Rita F. (the respondent) appealed from a Family Court decree terminating her parental rights to her children—Rita, Theresa, and Michael—under G.L. 1956 §§ 15-7-7(a)(2)(ii), 15-7-7(a)(2)(v), and 15-7-7(a)(3).  On appeal, the respondent argued that the trial justice committed reversible error because he permitted witnesses to testify about hearsay statements made by the children.  The respondent also argued that the trial justice erred when he failed to address whether the Department of Children, Youth and Families (DCYF or the department) had met its burden of proving that it made reasonable efforts to achieve reunification between the respondent and her children before DCYF filed a petition to terminate parental rights.

After a review of the record, the Supreme Court affirmed the Family Court’s decree terminating the respondent’s parental rights.  The Court held that even without the children’s hearsay statements, clear and convincing evidence existed to support the trial justice’s findings that the respondent was unfit by reason of conduct or conditions seriously detrimental to her children, in that she allowed conduct to be committed towards her children of a cruel and abusive nature, and she subjected her children to aggravated circumstances of sexual abuse.  The Court also held that because the respondent’s rights were properly terminated for cruel and abusive conduct and aggravated circumstances, DCYF was under no obligation to reunify the family.  Finally, the Court held that there was no error in the trial justice’s “best interests” determination.

Accordingly, the Court affirmed the decree of the Family Court.
Name: 11-385
Cecilia Cigarrilha et al. v. City of Providence, No. 12-9 (May 15, 2013)
The plaintiffs, Cecilia and Manuel Cigarrilha, contended on appeal that the trial justice in the Superior Court erred in declining to declare that their three-family rental property, which is located in an area of the city of Providence that is zoned for no more than two-family dwelling units, was a pre-existing legal nonconforming use.

The Supreme Court held that the trial justice did not abuse his discretion in declining to declare that the property was a legal nonconforming use.  The Court noted that the plaintiffs failed to prove that the property was used as a three-family dwelling unit prior to the enactment of the city’s zoning ordinance in 1923.  The Supreme Court additionally held that the trial justice did not err in declining to apply the equitable doctrines of estoppel or laches to the case as a basis for allowing the plaintiffs to continue to use the property as a three-family dwelling.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-9
Diane Berard v. HCP, Inc., et al., No. 12-164 (May 15, 2013)
In a negligence case arising from a slip and fall, the plaintiff, Diane Berard, appealed from the grant of summary judgment in favor of the defendant, HCP, Inc.  The plaintiff argued that the defendant had been negligent in maintaining its property and that, as a result of that negligence, the plaintiff was injured and suffered lost wages, pain and suffering, emotional distress, and medical expenses.

The Supreme Court held that granting summary judgment was appropriate.  Whether a defendant has a duty of care toward a plaintiff is a question of law for the Court.  The Court concluded that the defendant, a commercial landlord, owed no duty of care to the plaintiff because none of the circumstances in which a commercial establishment has a duty to an invitee of its tenant were present in this case.  Because the plaintiff failed to demonstrate that the defendant owed her a duty, the Court was satisfied that summary judgment was appropriate.
  
For those reasons, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-164
Jose Bustamante et al. v. Hector R. Oshiro, M.D. et al., Nos. 11-242, 11-245 (May 15, 2013)
The plaintiffs appealed from the entry of summary judgment in favor of the defendants, several physicians who treated one of the plaintiffs, Jose Bustamante (Bustamante), and allegedly failed to discover a cancerous tumor in his neck.  The trial justice determined that the statute of limitations had run on the plaintiffs’ medical-malpractice claims and that the action therefore was time-barred, and she granted summary judgment on that ground.  On appeal, the plaintiffs argued that their action was not untimely because the statute of limitations began to run, at the earliest, when the cancerous nature of Bustamante’s tumor was discovered on June 10, 2005 and their action was filed within three years of that date.

The Supreme Court held that the statute of limitations began to run on June 2, 2005, the date the plaintiffs were informed that Bustamante had a previously undiagnosed mass in his neck that was described as a cervical tumor by his Miami doctor.  Although the cancerous nature of the tumor was not verified at that point and there were other diagnostic possibilities for the mass, the Court determined that a reasonable person in similar circumstances would have discovered on June 2, 2005 that the wrongful conduct of the defendants—the failure to discover the tumor earlier—was the principal cause of Bustamante’s injuries.  Because the plaintiffs’ complaint was filed more than three years from that date, the Court concluded that the complaint was time-barred under the applicable statute of limitations.

Accordingly, the Court affirmed the trial justice’s grant of summary judgment on statute-of-limitations grounds.
Name: 11-242, 245
State of Rhode Island v. Lead Industries Association, Inc. et al., No. 10-278, 10-296 (May 10, 2013)
This appeal stemmed from (1) an order mandating that the plaintiff, the State of Rhode Island, reimburse the defendants, Sherwin-Williams Co., NL Industries, Inc., and Millennium Holdings LLC, for the fees, costs, and expenses that the defendants had previously paid to court-appointed co-examiners in the underlying case, and (2) the Superior Court’s dismissal of the defendants’, Sherwin-Williams Co., NL Industries, Inc., Millennium Holdings LLC, ConAgra Grocery Products Co., American Cyanamid Co. and Cytec Industries, Inc., and Atlantic Richfield Co., motion for costs related to the underlying litigation. 

As to co-examiners’ fees, the state argued that sovereign immunity barred it from being held financially responsible for these expenses.  However, the trial judge independently determined that the state was barred by judicial estoppel from making a sovereign-immunity argument because this was a position inconsistent with that which the state first presented to the court. As to costs, the defendants argued that there is a strong presumption in favor of awarding costs to the prevailing party and the trial justice erred by departing from that presumption.
  
The Supreme Court affirmed both orders of the Superior Court.  First, the Court held that the trial justice was justified in his use of judicial estoppel, barring the state from claiming sovereign immunity in this case.  Second, the Court stated that the trial justice had considered what was equitable based on the totality of the circumstances and, further, that he appropriately applied the facts to the factors used in making the determination to hold both parties responsible for their own costs of litigation.
Name: 10-287, 10-296
State of Rhode Island v. Lead Industries Association, Inc., No. 2010-288 (May 10, 2013)
Before this Court is the appeal of Sherwin-Williams Company (Sherwin-Williams) from an order denying its motion for a protective order to prohibit the disclosure of and the use of an internal company document.  Sherwin-Williams argues that the disclosure of that document would offend both the attorney-client privilege and the work-product doctrine.  Not surprisingly, the state maintains that the document is not privileged in any way and, therefore, it is not protected from disclosure.  After reviewing the record, the Court held that Sherwin-Williams met its burden of establishing that the internal company document was factual work product, and that the state failed to meet its burden of establishing that the protected document nevertheless was discoverable because of substantial need and a resulting injustice or undue hardship.  The Court also concluded that Sherwin-Williams did not waive the protection afforded by the work-product doctrine.  Because the Court held that the internal document was shielded from discovery based on the work-product doctrine and that this protection was not waived, it did not reach the claim of attorney-client privilege.

Accordingly, the Court vacated the order of the Superior Court denying Sherwin-Williams’ motion for a protective order and remanded the case to the Superior Court.
Name: 10-288
Elizabeth Morel v. Stephen Napolitano, Alias in His Capacity as Treasurer for the City of Providence, No. 11-312 (May 6, 2013)
The plaintiff, Elizabeth Morel, filed a civil action against the City of Providence (the city) for personal injuries she suffered after a school bus that she was operating fell into a sinkhole on a city roadway.  She won a jury verdict finding that the city was negligent and awarding damages.  On appeal, the city argued that the trial justice erred “in admitting affidavits that failed to conform to the express requirement of [G.L. 1956 § 9-19-27] that they must be sworn to under the penalty of perjury.”  The city additionally argued that the trial justice clearly abused her discretion by preventing it “from pursuing its well disclosed and announced intention to cross-examine the [p]laintiff during trial as to her receipt of workers[’] compensation” benefits.  The plaintiff countered that the affidavits were not void because each was signed and sworn to before a valid notary and that evidence of the benefits was clearly inadmissible under Rule 409 of the Rhode Island Rules of Evidence.

The Supreme Court affirmed the decision of the Superior Court on each issue.  The Court first held that any statement given under oath is sworn to under the penalties of perjury and that, therefore, the trial justice did not err in admitting the affidavits into evidence at the trial.  Next, the Court found no error in the trial justice’s determination that evidence of the plaintiff’s receipt of workers’ compensation benefits was inadmissible.
Name: 11-312
Harold Hazard v. State of Rhode Island, No. 11-303 (May 3, 2013)
The applicant, Harold Hazard, appeals from a judgment of the Superior Court denying his application for postconviction relief.  Hazard previously was convicted of one count of first-degree child molestation sexual assault and four counts of second-degree child molestation sexual assault.  Before this Court, Hazard contended that his application for postconviction relief should have been granted based on what he argued was prejudicial error committed by his trial counsel when he provided Hazard’s confidential psychiatric records to the state without his knowledge or consent, failed to limit the state’s use of the psychiatric records or to object to the state’s use of the records, failed to introduce the psychiatric records to buttress Hazard’s defense, and failed to adequately prepare Hazard for cross-examination on the psychiatric records.  Hazard also contends that his trial counsel was deficient because he pursued an argument at trial about racial animosity that Hazard believed should not have been used and because his trial counsel failed to object to what Hazard argued was improper credibility attacks and improper vouching during the prosecutor’s closing argument.
  
After reviewing the record, the Court held that, because there was such strong and overwhelming evidence incriminating Hazard, including Hazard’s own testimony that was replete with inconsistencies, the Court agreed with the trial justice that the unfortunate errors of counsel, which supported a conclusion of ineffectiveness, did not affect the outcome of the trial and, therefore, were not prejudicial.  Further, the Court held that the postconviction-relief justice did not err in finding that the applicant’s trial counsel’s attack on the complaining witness’ credibility was a reasonable tactical decision.  Finally, the Court held that the postconviction-relief justice did not err in finding that the applicant’s trial counsel was not ineffective for failure to object to what Hazard argues was improper credibility attacks and improper vouching.

Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 11-303
State v. Doris E. Poulin, No. 11-5 (May 2, 2013)
The defendant, Doris E. Poulin, sought review of a decision by a judge of the District Court denying motions to seal records from previous misdemeanor arrests.  The defendant questioned whether a plea of nolo contendere to a felony charge followed by a successfully completed term of probation constitutes a conviction for the purpose of the sealing statutes.

Because the Supreme Court concluded that the remedial purposes of the sealing and expungement statutes are different, it declined to extend the reasoning applied in expungement cases to motions to seal records.  The Court next determined that G.L. 1956 § 12-18-3 clearly and unambiguously directs that, when a person enters a plea of nolo contendere to a felony charge and receives a sentence of probation, “the plea and probation shall not constitute a conviction for any purpose.”  The Court noted that nothing in the sealing statutes directs that a plea of nolo contendere followed by probation should be deemed a conviction.  In this case, the defendant entered a plea of nolo contendere, then successfully completed the terms of her probationary sentence.  Accordingly, the Court concluded that such a plea does not constitute a conviction for “any purpose” that is unrelated to the original disposition.
 
Therefore, the Court held that, for purposes of the sealing statute, the defendant had not been convicted of a felony and, further, that she was entitled to the benefits of the statute.  Because it was error to deny the defendant’s motions to seal all records pertaining to her two dismissed misdemeanor arrests, the Court quashed the judgment of the District Court.
Name: 11-5
State v. Jose Rivera, No. 11-339 (May 2, 2013)
The defendant, Jose Rivera, appealed from the denial of a motion to reduce his sentence in accordance with Rule 35 of the Superior Court Rules of Criminal Procedure, arguing that the sentence of life imprisonment, to be followed by a consecutive sixteen-year incarcerative term, he received upon conviction on multiple counts of first- and second-degree sexual assault and one count of simple assault against three developmentally disabled women was without justification and disproportionate to sentences imposed for similar crimes.

The Supreme Court concluded that the trial justice identified several circumstances—including the nature of the multiple offenses, the vulnerability of the multiple developmentally disabled victims, the extensive and continuing impact of the crimes upon the victims, and the defendant’s persistent refusal to accept responsibility or express remorse—to justify the defendant’s sentence.  The Court held that the sentence was neither without justification nor grossly disparate from other sentences generally imposed for similar offenses.

Accordingly, the Court affirmed the judgment.
Name: 11-339
State v. Anderson Price, No. 10-262; In re Anderson Price, No. 10-262 (May 1, 2013)
The defendant appealed from a judgment of conviction on one count of child enticement in violation of G.L. 1956 § 11-26-1.5, which appeal was consolidated with this Court’s grant of the defendant’s petition for a writ of certiorari seeking review of his contempt adjudication stemming from certain in-court conduct.  On appeal, the defendant contended: (1) that the trial justice erred in denying the defendant’s first motion for a new trial; (2) that the trial justice erred in denying the defendant’s second motion for a new trial, which was based on a claim of newly discovered evidence; and (3) that the trial justice erred in adjudging the defendant in contempt of court.

The Supreme Court held that the defendant was procedurally barred from pursuing on appeal his argument pertaining to insufficiency of the evidence due to the fact that he had not made such an argument in the trial court.  The Supreme Court further held that the purported newly discovered evidence would not have changed the outcome of the trial, and the Court accordingly affirmed the denial of the second motion for a new trial.  Finally, the Supreme Court determined that the defendant had not preserved his right to challenge the contempt adjudication.

For these reasons, the Supreme Court affirmed the judgment of conviction as well as the adjudication of contempt.
Name: 10-70, 10-262
State v. Gary Santos, No.11-153 (April 29, 2013)
Gary Santos appealed from a judgment of conviction for carrying a firearm in a motor vehicle without a license in violation of G.L. 1956 § 11-47-8(a).  Santos’ principal argument on appeal was that the trial justice erred when he denied Santos’ motion to suppress tangible evidence, to wit, a .44-caliber revolver and eleven bullets, which were seized pursuant to what he alleged was an illegal search in violation of article 1, sections 6 and 10 of the Rhode Island Constitution and the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.  Santos also argued that the trial justice erred in denying his motion for a judgment of acquittal, which he alleged was based on insufficient evidence.

After a careful review of the record, the Supreme Court held that the police officer who conducted the search of Santos’ vehicle possessed specific and articulable facts to support a reasonable belief that Santos may have been armed and dangerous and had the present ability to obtain a weapon, thus justifying her decision to search the interior of Santos’ vehicle for weapons.  The Court also concluded that the trial justice did not err when he denied Santos’ motion for a judgment of acquittal, because there was ample evidence to persuade a fact-finder that Santos knowingly possessed the firearm and intentionally exercised control over it.

Accordingly, the Court affirmed judgment of the Superior Court.
Name: 11-153
Piccoli & Sons, Inc. v. E & C Construction Company, Inc., et al., and the State of Rhode Island v. Perini Corporation, No. 12-128 (April 25, 2013)
Piccoli & Sons, Inc. (Piccoli) appealed from a Superior Court judgment denying its motion to substitute party plaintiff and dismissing its case against Perini Corporation (Perini).  On appeal, Piccoli argued that the hearing justice erred in finding that G.L. 1956 § 9-2-8 applied to its lawsuit against Perini.  The Supreme Court held that, because Piccoli’s claim against Perini was a “nonnegotiable chose in action,” § 9-2-8 was applicable.  Next, it considered whether that statute barred Piccoli’s motion to substitute because the claim against Perini had not been assigned in writing.  Although Piccoli had produced certain documents which, in its view, constituted a written assignment of its claim against Perini, the Court observed that those documents did not refer to that claim.  Accordingly, the Court affirmed the Superior Court’s denial of Piccoli’s motion to substitute.  Finally, because the Court found that Piccoli was dissolved in 1993, and therefore could not maintain the action in its own name, it also affirmed the Superior Court’s granting of Perini’s motion to dismiss.
Name: 12-128
State of Rhode Island, Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, No. 11-99 (April 25, 2013)
The Department of Corrections (the DOC) appealed from a Superior Court decision confirming an arbitration award in favor of the Rhode Island Brotherhood of Correctional Officers (the union).  The parties’ dispute stemmed from the DOC’s proposal to modify the weapons qualification component of the training program for correctional officers.  After the General Assembly amended G.L. 1956 § 11-47-17 so that correctional officers were no longer statutorily required to undergo annual weapons qualification, the DOC intended to conduct live, on-range weapons qualification every two years (instead of annually, per the collective bargaining agreement).  It purchased a computer system for simulated weapons training and proposed to the training committee that this system be used every other year in lieu of live, on-range weapons qualification.  The training committee deadlocked on this issue, and the parties proceeded to arbitration.
      
The Court first held that the arbitrator had correctly concluded that the matter was arbitrable.  Reaching the merits of the dispute, it then held that the arbitrator’s interpretation of the collective bargaining agreement was passably plausible, did not reflect a manifest disregard for the law, and was not irrational.  Accordingly, it affirmed the judgment of the Superior Court.
Name: 11-99
State v. Gualter Botas, No. 09-185 (April 23, 2013)
The defendant appealed from a judgment of conviction of seven counts of simple assault.  The defendant was a captain at the Rhode Island Adult Correctional Institutions (ACI), and the convictions were related to the defendant’s treatment of four inmates.  On appeal, the defendant contended that the trial justice committed reversible error when he (1) denied the defendant’s motion to sever his trial from that of Kenneth Viveiros, an ACI officer that was also convicted of related assaults; (2) granted the prosecution’s motion to preclude the testimony of an inmate; (3) denied the defendant’s motion for a new trial; (4) gave improper jury instructions; and (5) admitted evidence that had not been disclosed by the prosecution during discovery.

The Supreme Court noted that the defendant’s first four appellate arguments had been largely considered and rejected in the Court’s opinion issued in connection with Mr. Viveiros’s appeal.  For many of the same reasons, the Court held that the trial justice did not commit reversible error with respect to this case.  Further, the Court upheld the trial justice’s decision to admit into evidence certain photographs that the prosecution had not disclosed during discovery.  The trial justice properly found that the nondisclosure was inadvertent and that the introduction of the photographs did not undermine defense counsel’s strategy of highlighting what it contended was the State Police’s inadequate investigation.
 
Accordingly, the Supreme Court affirmed the Superior Court’s judgment of conviction.
Name: 09-185
State v. James Gaffney, No. 11-346 (April 23, 2013)
The defendant, James Gaffney, was charged with two counts of felony assault in violation of G.L. 1956 § 11-5-2.  The defendant appealed from a judgment of conviction after a jury verdict finding him guilty of the lesser-included offense of simple assault (count 1) and of a “serious bodily injury” felony assault (count 2).  The defendant argued on appeal that the trial justice erred by denying his motion for judgment of acquittal and his motion for a new trial.  The defendant claimed that the state’s evidence was insufficient as a matter of law to sustain a conviction for felony assault (count 2) because the state did not establish either a substantial risk of death or serious permanent disfigurement, as required by § 11-5-2.
  
The Supreme Court determined that the totality of the evidence of the assault—including the multiple blows to the complainant’s head, her lacerated scalp and the resultant profuse bleeding, her bruised “raccoon eyes,” elevated vital signs, and her “critical” condition upon arrival for emergency treatment—was sufficient to serve as a basis for a substantial risk of death finding by the jury.  The Court concluded that the serious physical injury component of the statute satisfactorily was demonstrated and that, accordingly, there was sufficient evidence adduced to convict the defendant of felony assault.
 
Therefore, the Supreme Court held that the trial justice did not err when she denied the defendant’s motions.  Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 11-346
Karen McAninch et al. v. State of Rhode Island Department of Labor and Training et al., No. 11-358 (April 19, 2013)
The plaintiff, Karen McAninch, business agent for United Service and Allied Workers of Rhode Island, sought review of a judgment of the Superior Court that dismissed its complaint for lack of jurisdiction because the plaintiff’s complaint was untimely filed.  The trial justice held that, under the clear and unambiguous language of G.L. 1956 § 42-35-15(b), the plaintiff had exactly thirty days within which to file its complaint in the Superior Court, and that Rule 6(a) of the Superior Court Rules of Civil Procedure—which extends the last day in computing any time period to the next day which is neither a Saturday, Sunday, nor holiday—did not apply to administrative appeals.

The Supreme Court held that the Superior Court had subject matter jurisdiction over administrative appeals, but that the real issue was whether the court should have exercised that jurisdiction.  In answering that question, the Supreme Court held that Rule 6(a) applies to the Superior Court’s review of administrative decisions, and, therefore, the plaintiff’s complaint was timely filed.  Accordingly, the Court quashed the judgment of the Superior Court and remanded the case to be heard on the merits.
Name: 11-358
William Lamont Thomas v. Omar Proctor et al., No. 11-309 (April 17, 2013)
The plaintiff, William Lamont Thomas, sustained injuries when he was shot by the defendant, Omar Proctor, an officer with the Providence Police Department, after fleeing from his attempted arrest.  The plaintiff appealed from a judgment entered after a jury verdict in favor of the defendant in the plaintiff’s civil action seeking damages.  The plaintiff argued that he was unfairly prejudiced when the trial justice allowed the defendant to introduce a redacted police department database report.  The defendant countered that the report was introduced to show the jury information he knew at the time that supported the contention that he believed his life was in jeopardy at the time of the shooting, and that, therefore, his actions in shooting the plaintiff were reasonable.

The Supreme Court affirmed the decision below and held that the trial justice’s decision to admit the redacted report was well within his discretionary authority.  The Court reasoned that the report was relevant and that the trial justice properly considered a balancing test before admitting the report into evidence.  The Court also noted that, in doing so, the trial justice addressed the only objection to the report articulated by the plaintiff at that time.
Name: 11-309
Lucilio P. Furtado et al. v. Maria Goncalves, as Executrix of the Estate of Alfredo D. Goncalves, No. 11-361 (April 15, 2013)
The plaintiffs, Lucilio P. Furtado and Patricia Goncalves, appealed from a Superior Court judgment ordering them to execute certain general releases and awarding attorney’s fees to the defendant, Maria Goncalves.  The parties disagreed on the meaning of certain terms in a settlement agreement they entered into following an appeal from the Providence Probate Court.  The settlement agreement provided that the defendant (the executrix of the decedent’s estate) would convey certain real property to the plaintiffs in exchange for their release of “any and all claims” against the decedent’s estate and other related parties.  However, the general releases prepared by the defendant called for the release of all claims, “whether such [c]laims arise, are brought or have a situs in the United States of America, the Republic of Cape Verde or anywhere else.”  The plaintiffs objected to this provision, contending that they never believed that settlement negotiations covered property located in Cape Verde.  The defendant moved to enforce the settlement agreement, and the Superior Court ordered the plaintiffs to execute the defendant’s proposed general releases and pay the defendant’s attorney’s fees pursuant to G.L. 1956 § 9-1-45.  The plaintiffs appealed, arguing that the defendant’s proposed general releases materially deviated from the terms of the settlement agreement and that the Superior Court’s award of attorney’s fees was improper.

The Supreme Court held that the Superior Court erred in ordering the plaintiffs to execute the proposed general releases.  The Court found the language of the settlement agreement to be clear and unambiguous, and it concluded that the reference in the general releases to specific geographic areas exceeded the terms of the settlement agreement, which employed more general language.  Additionally, the Supreme Court vacated the award of attorney’s fees, concluding that the requirements of § 9-1-45 were not met because the defendant did not prevail in her action to enforce the settlement agreement.
Name: 11-361
Dawn L. Huntley v. State of Rhode Island et al., No. 11-397 (April 12, 2013)
The State of Rhode Island, one of the named defendants, sought review of a Superior Court judgment denying its motion to dismiss the plaintiff Dawn L. Huntley’s employment discrimination claims.  The state argued that the plaintiff’s claims should be barred by the doctrine of res judicata because she had filed a nearly identical suit in the United States District Court for the District of Rhode Island, which suit was dismissed.  The plaintiff argued that her federal claims were dismissed for lack of jurisdiction and that, therefore, the dismissal was not a final judgment on the merits.

The Supreme Court noted that in her federal court case, the plaintiff failed to object to the defendants’ motion to dismiss (as required by a court rule) and, accordingly, that was the ground for dismissing her complaint. The Court stated that res judicata is intended to bar claims that could have been litigated in an earlier case.  After determining that the plaintiff had a full and fair opportunity to litigate her claims in the federal court and failed to do so, the Supreme Court quashed the judgment of the Superior Court and held that the plaintiff’s claims were barred.
Name: 11-397
Cheryl Daniels, Individually and as Mother and Next Friend of Anthony Daniels, a minor v. Zachery Fluette et al., No. 12-53 (April 12, 2013)
Cheryl Daniels, the mother and next friend of Anthony Daniels, appealed a Superior Court decision awarding summary judgment to the defendant, Bishop Hendricken High School.  Anthony Daniels was injured during horseplay with fellow hockey team members after school hours, when he accidentally shattered a bathroom window with his hand.  The plaintiff argued that the school was negligent in failing to adequately supervise the students at the time of the incident and in failing to use safety glass in the boys’ bathroom window.

The Supreme Court assumed without deciding that a duty existed, but stated that schools are not insurers of their students’ safety.  The Court affirmed the judgment of the Superior Court, holding that liability cannot be imposed for injuries resulting from the acts of another student, unless such acts could have been reasonably foreseen by the school. Because there was no evidence of a history of horseplay in the area or any prior complaints regarding the behavior of the students involved, the Court held that the school could not have reasonably foreseen the injury.  Further, because the school had no reason to believe that the glass in the bathroom window might pose a danger, imposing liability for failing to install safety glass where none was required by either the past or present building code would be tantamount to making the school an insurer of its students.
Name: 12-53
David S. Vogel v. Juan G. Catala, No. 12-177 (April 12, 2013)
The defendant, Juan G. Catala (Catala or defendant), appealed from a Superior Court money-damage judgment in favor of the plaintiff, David S. Vogel (Vogel or plaintiff).  On appeal, Catala contended that the trial justice erred in finding Vogel to be a credible witness and failing to find that the transaction between Vogel and Catala was void pursuant to G.L. 1956 § 11-19-17 as a loan for betting.
 
The Supreme Court determined that Catala’s failure to order a transcript of the trial below was fatal to his appeal.  Although Vogel had asserted in his pleadings that he lent the money at issue to Catala so that he might win back part of what he had lost, the Supreme Court explained that this judicial admission did not necessarily fall within the embrace of § 11-19-17.  That statute declares void only those transactions where money was “knowingly lent” for the purpose of, among other things, betting.  (Emphasis added.)  Thus, the Supreme Court reasoned, whether Vogel lent this money “knowingly” under § 11-19-17 was a question of fact for the trial justice—a question that the Court could not conclude the trial justice erred in deciding, without reviewing the transcript.  The Court stated that it could not engage in a meaningful review of the trial justice’s factual finding that Vogel did not knowingly lend the money for gambling purposes, the Court affirmed the judgment of the Superior Court.
Name: 12-177
Paul Ellis v. Verizon New England, Inc., No. 10-431 (April 12, 2013)
In 2007, the petitioner, Paul Ellis, a technician for Verizon New England, Inc. (Verizon), was sent to a job site in the West End of Providence.  Upon returning to his work vehicle, he was randomly assaulted by an apparently mentally unstable stranger and sustained head injuries.  Ellis’s claim for workers’ compensation benefits was denied because the trial judge concluded that Ellis’s injuries were not compensable under the Workers’ Compensation Act because Ellis had not carried his burden of demonstrating that his injuries arose out of and in the course of his employment.  The Workers’ Compensation Court Appellate Division (Appellate Division) affirmed the trial judge’s denial of benefits.  The Supreme Court granted Ellis’s petition for a writ of certiorari and quashed the decree of the Appellate Division.

The Supreme Court held that, under Rhode Island’s actual-risk rule, Ellis’s injuries were compensable because, by requiring Ellis to travel and park on public streets, Verizon exposed its employee to various street perils, including assaults by random strangers.  The Court reasoned that the risk of random assaults is an actual risk associated with working on public roads, analogizing the random assault on Ellis to injuries caused by automobile accidents, which the Court has held were compensable on various other occasions where an employee’s job responsibilities required travel on public roads.  
Name: 10-431
Mortgage Electronic Registration Systems, Inc. et al. v. Verissimo DePina et al., No. 11-324 (April 12, 2013)
In 2008, the defendant, Amy Realty, purchased Assessor’s Plat No. 5, lot No. 486 (Lot 486) in the City of Central Falls at a Pawtucket Water Supply Board (PWSB) tax sale auction.  However, unbeknownst to the defendant at that time, no water bill was due and owing on that property, and the PWSB had in fact intended to auction the neighboring property, Assessor’s Plat No. 5, lot No. 456 (Lot 456).  At no point did the plaintiffs, who held validly recorded mortgages on Lot 456, receive statutorily required notice of the tax sale.  When the defendant sought to foreclose on the property over a year later, it discovered the discrepancy with the lot numbers and obtained a corrective deed from the PWSB purporting to convey Lot 456 instead of Lot 486.  After obtaining the corrective deed, the defendant noticed parties with interests in Lot 456 (including the plaintiffs) of its petition to foreclose, but the plaintiffs failed to respond, and a final decree was entered by the Superior Court foreclosing all rights of redemption.
  
The plaintiffs then initiated a separate action under G.L. 1956 § 44-9-24 seeking to vacate the final decree of foreclosure, arguing that their due-process rights were violated when they were not noticed of the initial tax sale and that no taxes were owed on the property that was sold.  The Superior Court granted partial summary judgment in the plaintiffs’ favor, vacating the final foreclosure decree.  The defendant appealed, arguing that, under §§ 44-9-30 and 44-9-31, the plaintiffs were barred from challenging the final decree because they failed to respond to the petition to foreclose.  Additionally, the defendant asserted that § 44-9-24 did not apply because the plaintiffs received notice of the foreclosure petition and the corrective deed rectified the “typo” in the original deed that had resulted in the PWSB conveying the wrong property.

The Supreme Court held that the purported corrective deed obtained by the defendant in this case was ineffective to correct the fundamental problem with the tax sale—that the wrong property was mistakenly sold.  The Court therefore concluded that, because no taxes were owed on the lot that was sold at the tax sale, § 44-9-24’s “safety valve” provision applied, and the Superior Court did not err in vacating the foreclosure decree.
Name: 11-324
In re Estate of Glenn E. Griggs; Patricia Griggs v. David Heal, the Limited Guardian for the Late Glenn E. Griggs; In re Estate of Glenn E. Griggs, Nos. 2012-19, 2012-20, 2012-21 (April 12, 2013)
These consolidated appeals arose from a guardianship petition in Warwick Probate Court in 2003.  The appellants Nancy Griggs, Patricia Griggs, and Lauren Griggs opposed the co-guardianship of Glenn Griggs (now deceased) by his business partner and son.  The appellants removed Mr. Griggs from his house and refused to disclose his location.  The appellants did not comply with the guardianship order until they were ordered to bring Mr. Griggs before the Warwick Probate Court.  The Probate Court adjudged the appellants to be in contempt; and, for the next five years, the appellants brought successive challenges and appeals in both the Probate Court and the Superior Court.  Finally, in 2010, the Probate Court assessed compensatory contempt sanctions against the appellants totaling approximately $447,000 in the aggregate.

The appellants women appealed the contempt order to the Superior Court, but failed to file any portion of the record, moving instead to extend time to file the record.  The Supreme Court affirmed the Superior Court’s denial of the motion to extend and dismissal of the appeal, holding that the plain language of G.L. 1956 § 33-23-1(c) applies only to transcripts and that the Superior Court does not have authority to extend the deadline to file the record.
Name: 12-19,20,21
Joyce DiPippo, Individually and as Trustee of the Joyce DiPippo Living Trust dated June 10, 1992 et al. v. Louis Sperling et al., No. 12-14 (April 12, 2013)
The plaintiffs, Joyce and Trudy DiPippo, appealed from a Superior Court judgment in favor of the defendants, Louis and Rebecca Sperling.  The plaintiffs argued that the trial justice erred in holding that Joyce DiPippo’s actions in seeking permission to hang a hammock on a disputed parcel of land were a concession to the defendants’ superior title in that land.  Further, the plaintiffs asserted that the trial justice incorrectly relied on an agreement the parties entered into after the dispute over the land had arisen in finding that Joyce DiPippo acknowledged the defendants’ ownership of the parcel.

The Supreme Court referenced its ruling in Cahill v. Morrow, 11 A.3d 82, 93 (R.I. 2011),  that “objective manifestations that another has superior title, made after the statutory period and not made to settle an ongoing dispute, are poignantly relevant” to the determination of claim of right in an adverse possession case.  The Supreme Court affirmed the judgment of the Superior Court, finding that the post-dispute agreement was not entered into to settle an ongoing dispute, as it contained neither a reservation of rights, nor any promise by the plaintiffs to refrain from filing a claim in exchange for permission to use the disputed property.
Name: 12-14
Anthony Bucci et al. v. Lehman Brothers Bank, FSB et al., No. 10-146 (April 12, 2013)
The plaintiffs appealed from a decision of the Superior Court holding that Mortgage Electronic Registration Systems, Inc. (MERS) had both the contractual and the statutory authority to foreclose on the plaintiff’s mortgage.  The plaintiffs argued that both of these holdings were erroneous.

The Supreme Court first held that MERS’s voluntary cessation of foreclosure proceedings did not render the case moot.  Next, the Court held that MERS had the contractual authority to foreclose because the plaintiffs explicitly granted MERS the statutory power of sale.  Additionally, the Court held that the plaintiffs had waived their argument that MERS was not authorized to act on behalf of the note holder, because, at trial, they agreed to the fact that MERS was the note holder’s agent and nominee.  Finally, the Court held that nothing in the Rhode Island General Laws prohibited MERS from foreclosing on the plaintiff’s mortgage and that the structure of the transaction was legally sound.  Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 10-146
State v. Curtis Isom, No. 11-323 (April 11, 2013)
The defendant appealed from an order of a Superior Court magistrate that denied his motion to vacate what he argued was an illegal sentence that was imposed after he admitted to violating the terms and conditions of his probation.  On appeal, the defendant argued that: (1) the magistrate who revoked five years of his suspended sentence exceeded her authority in doing so; (2) the trial justice who subsequently heard the defendant’s motion to vacate that sentence erred when he declined to address the motion and instead returned it to the original sentencing magistrate to decide; (3) G.L. 1956 § 12-19-18 required that the defendant’s sentence be quashed and his imprisonment terminated; and (4) even if the revocation of five years of the defendant’s suspended sentence was proper, the magistrate erroneously calculated the amount of time that remained suspended after those five years.

The Supreme Court held that, because the defendant had been released from prison, the issues that were raised about his admission and the time that he was required to serve for violation of the terms and conditions of his probation were moot.  Additionally, because the parties agreed that the sentencing magistrate erred when she calculated the length of time that remained on the defendant’s suspended sentence and probation, the Court remanded the matter to the Superior Court for a hearing to recalculate that length of time.
Name: 11-323
Lillian Rivera v. Employees’ Retirement System of Rhode Island, No. 11-166 (April 8, 2013)
The petitioner, Lillian Rivera, appealed from a Superior Court decision in favor of the respondent, the Employees’ Retirement System of Rhode Island (ERSRI), which decision upheld the agency’s denial of the petitioner’s application for accidental disability benefits.  The Superior Court justice affirmed ERSRI’s decision based on his conclusion that the Superior Court lacked jurisdiction over the matter due to the late filing of the appeal by the petitioner.  The Superior Court justice additionally found that equitable tolling could not be applied so as to allow the petitioner’s appeal to proceed due to what he viewed as the unreasonable reliance on the agency’s misstatements regarding the deadline for filing an appeal seeking judicial review of the agency’s decisions.
  
On appeal, the Supreme Court held that the deadline set forth in the statute providing for judicial review of agency decisions, G.L. 1956 § 42-35-15(b), is unambiguous and requires the filing of an appeal within thirty days of the mailing of the notice by the agency.  The Supreme Court additionally held that, in certain circumstances, the doctrine of equitable tolling could be invoked and could result in the tolling of that deadline.  And, with respect to this case, the Court held that, in view of prior misstatements by the agency and by appellate courts, equitable tolling would be appropriate.  The Supreme Court therefore quashed the judgment of the Superior Court and remanded the matter to the Superior Court.
Name: 11-166
State v. Dean DeRobbio et al., No. 11-178 (April 8, 2013)
The Supreme Court was called upon for the first time to interpret the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 chapter 28.6 of title 21 (Act).  The State of Rhode Island (state) appealed from a pretrial order dismissing a five-count criminal information, filed against the defendants, Dean DeRobbio and Joseph Joubert.  On appeal, the state contended that the hearing justice committed reversible error in determining that insufficient probable cause existed to believe that the defendants had committed various narcotics-related offenses.  The defendants asserted that their possession of marijuana was legal under the Act.
 
As a result of a warranted search of DeRobbio’s home, the defendants were charged by criminal information with (among other things) possessing marijuana with the intent to deliver it, manufacturing marijuana, and conspiracy to violate Rhode Island’s Controlled Substances Act.  The defendants, both medical marijuana cardholders, raised the affirmative defense and dismissal provision set forth under the Act, which would exempt them from prosecution for those offenses. 

The hearing justice dismissed the information, reasoning that the quantity of marijuana found at DeRobbio’s home did not exceed the amount prescribed under the Act.   After carefully reviewing the Act, the Supreme Court determined that the Superior Court had prematurely dismissed the information.  The Act explicitly states that charges brought in a prosecution involving marijuana “shall be dismissed following an evidentiary hearing,” in which the defendant shows that he or she was in possession of an amount of marijuana that conformed to the limits set forth in the Act.  Therefore, because no evidentiary hearing was held, in contravention of the plain terms of the Act, the Supreme Court held that the hearing justice’s dismissal was improper.  Accordingly, the Supreme Court vacated the judgment of the Superior Court, and instructed the hearing justice to conduct an evidentiary hearing pursuant to the Act.

Moreover, because the parties did not contest the constitutionality of the Act (to wit, whether it was preempted either wholly or partly by federal law), the Supreme Court left for another day the resolution of that looming question.
Name: 11-178
State v. Hiawatha Brown, No. 08-210 (April 5, 2013)
The defendant, Hiawatha Brown, appealed from a Superior Court judgment of conviction for simple assault and disorderly conduct.  On appeal, Brown contended that the trial justice committed reversible error in refusing to (1) hold a posttrial evidentiary hearing to determine if the jury was racially biased or if certain juror misconduct had occurred; (2) permit the entire fifteen-member jury panel to deliberate; and (3) instruct the jury that the aggressive actions of the police could constitute a defense to the charge of disorderly conduct. 
 
The Supreme Court held that the trial justice had not erred in denying Brown’s request for a posttrial evidentiary hearing.  Although evidence of racial bias among members of the jury may sometimes be admissible to protect a defendant’s right to a fair trial, in this case, Brown’s allegations were insufficient to warrant an evidentiary hearing on the matter.  The Court also held that Rule 606(b) of the Rhode Island Rules of Evidence barred the admission of testimony on non-race-related juror misconduct.

Additionally, the Court held that the trial justice had not erred in finding that Rule 24(c) of the Superior Court Rules of Criminal Procedure prevented her from granting Brown’s request that the entire fifteen-member jury panel be permitted to deliberate.  Finally, the Court held that the trial justice had not erred in refusing Brown’s request for an instruction that the aggressive actions of the police could constitute a defense to the charge of disorderly conduct.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court in all respects.
Name: 08-210
In re Irving Briggs, No. 11-281, 12-308 (April 4, 2013)
The Mental Health Advocate—on behalf of Irving Briggs, who is a sentenced inmate at the Adult Correctional Institutions (ACI)—appeals a decision from the Superior Court granting a request by the Department of Mental Health, Retardation and Hospitals for an emergency transfer of Briggs from the Forensic Unit of the Eleanor Slater Hospital, where Briggs was receiving specialized mental-health services as a psychiatric inpatient, to the ACI.  Before this Court, Briggs contends that his emergency transfer to the ACI, in the absence of a full evidentiary hearing, violated his procedural due-process rights.  He further argues that, based on his allegations that the department contrived the emergency precipitating his transfer, the trial justice abused his discretion in denying his motion for sanctions under Rule 11 of the Superior Court Rules of Civil Procedure.

After a careful review of the record, this Court held that the Mental Health Advocate failed to state a claim upon which relief can be granted because his allegation is moot and that he failed to meet the difficult burden of showing that the circumstances in this case are of extreme public importance capable of repetition yet evading review.  This Court also held that the Mental Health Advocate failed to demonstrate that the trial justice abused his discretion when he denied his motion for Rule 11 sanctions.

Accordingly, the judgment of the Superior Court is affirmed.
Name: 11-281, 12-308
Sheila Anolik et al. v. Zoning Board of Review of the City of Newport et al., No. 12-76 (April 2, 2013)
The plaintiffs, Sheila Anolik (individually and in her capacity as general partner of the Anolik Family Limited Partnership), Wendy Anolik, and Jeffrey Anolik appealed from the Superior Court’s grant of summary judgment in favor of the defendants, the Zoning Board of Review of the City of Newport and the members of that board.  The motion justice determined that there were no genuine issues of material fact and then proceeded to hold that a particular agenda item relating to the zoning board’s February 23, 2009 meeting did not violate the Rhode Island Open Meetings Act, G.L. 1956 chapter 46 of title 42.

The Supreme Court held that the February 23, 2009 agenda item at issue did not reasonably inform the public of the nature of the business to be discussed or acted upon and that, therefore, it violated the Rhode Island Open Meetings Act.
  
Accordingly, the Supreme Court vacated the Superior Court’s grant of summary judgment in favor of the defendants. 
Name: 12-76
W. Bart Lloyd et al. v. Zoning Board of Review for the City of Newport et al., No. 09-303 (March 29, 2013)
The petitioners, W. Bart and Elizabeth Lloyd, sought review of a judgment of the Superior Court that affirmed the Newport Zoning Board’s decision to grant a special-use permit to Mark and Diana Bardorf, the petitioners’ abutting landowners.
  
The zoning board unanimously approved the Bardorfs’ application for a special-use permit pursuant to §§ 17.72.030(C) and 17.108.020(G) of the Newport Code of Ordinances.  The trial justice found no error on the part of the zoning board in granting a special-use permit; he also found that the board did not err in finding that the Bardorfs were not required to seek a dimensional variance.  In addition, the trial justice rejected the petitioners’ argument that the Bardorfs were not permitted to alter the building because the addition would increase or intensify the existing nonconformity.  Finally, the trial justice concluded that there was sufficient evidence on the record before the board to support its decision.
  
Before the Court, the petitioners argued that (1) the Bardorfs should have been required to obtain a dimensional variance, not a special-use permit; (2) allowing the Bardorfs to utilize lot coverage that was authorized by a previously-obtained dimensional variance was error; (3) the failure to evaluate whether the addition would constitute an intensification of the nonconformity was erroneous; and (4) the evidence did not support the grant of a special-use permit.

After its careful review of the relevant ordinances, the Court held that a special-use permit was the appropriate relief and the board applied the appropriate criteria for the grant of a special-use permit.  Although the Court determined that the trial justice erred when he concluded that the zoning board allowed the expansion “as a matter of right,” it held that the error was inconsequential because the trial justice also carefully examined the sufficiency of the board’s decision in light of the criteria set forth in the ordinance and concluded that the special-use permit properly was granted.  Next, reading G.L. 1956 §§ 45-24-41 and 45-24-42 together, the Court agreed with the trial justice that the General Assembly intended that a use granted by special-use permit may coexist with a dimensional variance only when a municipality’s zoning ordinance so provides.  The Court therefore rejected the petitioners’ argument that any alteration that was the subject of an earlier dimensional variance could occur only if further dimensional relief was granted.  Further, in response to the petitioners’ argument that the zoning board erred when it allowed the addition to a dimensionally nonconforming structure because it would “increase or intensify” the nonconformity, the Court held that the zoning ordinance does not include a calculation of building mass or three-dimensional spaces in the criteria for alterations of dimensionally nonconforming structures.  Finally, the Court held that the trial justice neither misconceived nor overlooked any material evidence and that legally competent evidence existed to support his findings.
 
Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 09-303
Cheryl D. Mead v. Sanofi-Aventis U.S., Inc. et al., No. 11-142 (March 28, 2013)
The plaintiff, Cheryl D. Mead, appealed from the Superior Court’s denial of a motion for a new trial.  The underlying dispute centered on whether the defendant, Eric J. McNamara, was negligently operating his motor vehicle when he struck Mead while she was crossing Taunton Avenue in East Providence on foot. 

On appeal, Mead argued that the trial justice erred in denying her motion for a new trial because the evidence preponderated against the jury verdict.  In support of this argument, Mead maintained that the trial justice failed to give sufficient weight to the testimony of three eyewitnesses, who all claimed that they saw her trying to cross the street just prior to the accident.  In light of this uncontroverted testimony, Mead asserted that the jury should have concluded that the defendant likewise should have seen her as she attempted to cross the street and that his failure to keep a proper lookout proved that he was negligent in striking her.  Additionally, Mead argued that the trial justice overlooked relevant and material evidence by failing to expound upon the weight of certain photographs, which, according to Mead, demonstrated that the defendant was negligent.

The Supreme Court affirmed the judgment of the Superior Court, agreeing with the trial justice’s conclusion that Mead failed to satisfy by a preponderance of the evidence that the defendant was negligent.  Furthermore, because Mead’s argument regarding the photographs was not raised below, the Court did not reach that issue on appeal.
Name: 11-142
State v. Julie Long, No.2011-154 (March 8, 2013)
The defendant, Julie Long, appealed from a judgment of conviction after a jury verdict finding her guilty of manufacturing or cultivating marijuana in violation of G.L. 1956 § 21-28-4.01(a)(1), (4)(i).  On appeal, the defendant argued that the trial justice erred in denying her Super. R. Crim. P. 29 motion for a judgment of acquittal.  Specifically, the defendant argued that (1) the trial justice erred in denying her motion as to the charge of manufacturing and cultivating marijuana because the evidence was legally insufficient to support a conviction; (2) the trial justice erred in denying her motion as to aiding or abetting the manufacture and cultivation of marijuana because the evidence did not reflect that the defendant was an aider or abettor; and (3) the trial justice erred in providing the jury with an aiding and abetting instruction.
  
As to the defendant’s first assignment of error, the Supreme Court concluded that the trial justice appropriately denied the defendant’s motion for judgment of acquittal because—viewed in the light most favorable to the prosecution, as is required under the standard for a motion for judgment of acquittal—there was sufficient evidence to establish the defendant’s guilt beyond a reasonable doubt.  Again viewing the evidence in the light most favorable to the prosecution, the Court likewise was satisfied that the evidence was sufficient to demonstrate that the defendant’s actions demonstrated a shared unlawful intent to manufacture or cultivate marijuana and, further, that a community of unlawful purpose existed.  Therefore, the trial justice properly denied the motion for judgment of acquittal as to aiding or abetting the manufacture and cultivation of marijuana.  Finally, the Supreme Court found that the trial justice did not err when he instructed the jury that it could convict the defendant of manufacturing or cultivating marijuana as an aider or abettor.  The manner of participation is not an element of the crime, and here, the evidence clearly demonstrated that the defendant was involved in the growing process both before and after the marijuana grow operation commenced.

For these reasons, the Supreme Court affirmed the judgment of conviction.
Name: 11-154
Robert E. Nichols v. R&D Construction Co., Inc., No. 10-336 (March 4, 2013)
Robert E. Nichols petitioned this Court for a writ of certiorari seeking review of a decision and a final decree of the Appellate Division of the Workers’ Compensation Court, which denied him partial incapacity benefits beyond the 312-week period provided by G.L. 1956 § 28-33-18.3.  The Supreme Court granted the petition in order to consider the following issues: (1) whether or not the failure to regain former earning capacity upon the expiration of 312 weeks of receiving benefits constitutes a “material hindrance” to obtaining employment suitable to the employee’s limitations; and (2) whether or not § 28-33-18(d) is constitutional. 

After a thorough review of the record in this case, the Supreme Court held that, based upon the facts of this case, the petitioner’s inability to regain his earning capacity did not constitute a “material hindrance” to obtaining employment suitable to his limitations pursuant to § 28-33-18.3.  In addition, the Court upheld the constitutionality of § 28-33-18(d). 

Accordingly, the Supreme Court affirmed the decision and final decree of the Appellate Division of the Workers’ Compensation Court.
Name: 10-336
State v. Jason Lopes, No. 2010-342 (March 1, 2013)
The defendant, Jason Lopes, appealed from a judgment of conviction in Superior Court declaring him to be in violation of his probation and executing six years of his previously imposed sentence.  On appeal, he challenged the sufficiency of the evidence in support of this judgment.

After reviewing the record, the Supreme Court held that the hearing justice did not act in an arbitrary or capricious manner in determining that Lopes violated the terms and conditions of his probation.   The evidence adduced at the hearing was sufficient for the hearing justice to have been reasonably satisfied that Lopes failed to keep the peace or remain on good behavior by possessing a firearm after having been previously convicted of a crime of violence.  The Court emphasized that the sufficiency of the evidence on the new charge was not the focus of its review, nor was it the focus at the hearing below.  Thus, the hearing justice correctly did not consider whether the state had proved beyond a reasonable doubt that Lopes was actually guilty of the crime of possession of a firearm.  The Supreme Court concluded, as did the hearing justice, that, based on the totality of the circumstances, the evidence was sufficient to support a finding that Lopes failed to keep the peace or remain on good behavior.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 10-342
John A. Zambarano et al. v. The Retirement Board of the Employees’ Retirement System of the State of Rhode Island, No. 2012-155 (March 1, 2013)
The defendant, the Retirement Board of the Employees’ Retirement System of the State of Rhode Island (board), appealed from a judgment in favor of the plaintiffs, John and Kathy Zambarano.  The parties’ dispute centered on whether G.L. 1956 § 36-10.1-4(c) provided the board with a valid basis upon which to withhold from the plaintiffs the contributions that Mr. Zambarano had made to the Employees’ Retirement System during his service as a state employee.  On appeal, the board argued that § 36-10.1-4(c) allowed it to refuse Mr. Zambarano’s demand for reimbursement of those contributions because he remained liable under an order of forfeiture that had entered against him in federal court.  After reviewing the record, the Supreme Court held that the trial justice had not erred in finding that the board was obligated to return those contributions to Mr. Zambarano.  The Court observed that the plain terms of § 36-10.1-4(c) applied only to judgments or orders of restitution and did not apply to judgments or orders of forfeiture.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-155
Joseph Hall v. State of Rhode Island, No. 2011-297 (March 1, 2013)
The applicant, Joseph Hall, appealed from the Superior Court’s denial of his application for postconviction relief.  In his application, Hall claimed that he was denied a fair and impartial trial because the jury was improperly instructed and, further, the trial justice erred when he permitted testimony regarding a witness’s opinion on the truthfulness of a statement that Hall made.  The trial justice found that the application was “devoid of any merit whatsoever” and denied and dismissed it.  On appeal to the Supreme Court, Hall argued that the cautionary instruction did not cure the prejudicial effects of the testimony.

After reviewing the record, the Court held that Hall’s argument that the cautionary instruction was error and that a mistrial was the proper course of action had been waived because it was not raised on direct appeal.  The Court also concluded that the alleged inadequacy of the cautionary instruction was likewise barred and not properly before the Court because Hall failed to raise any objection to it at the time it was given.
 
The Court therefore affirmed the Superior Court judgment.
Name: 11-297
The Law Firm of Thomas A. Tarro, III, et al. v. Maria Checrallah et al., No. 2011-123 (February 21, 2013)
The defendant, Maria Checrallah, appealed from a Superior Court order granting summary judgment in favor of the plaintiffs, Thomas A. Tarro, III, and The Law Firm of Thomas A. Tarro, III (collectively Tarro or plaintiffs) and awarding the plaintiffs $187,500 in attorneys’ fees owed by the defendant under a 1989 retainer agreement, plus prejudgment interest amounting to $113,386.50.  Under the retainer agreement, Tarro had negotiated a settlement on behalf of the defendant in a probate proceeding and for over ten years had collected his 15 percent contingency fee from each installment payment before distributing the balance to the defendant.  However, after the payor later entered receivership and stopped making payments, the defendant discharged Tarro and engaged successor counsel to negotiate a new settlement.  The defendant argued that although the plaintiffs could recover under quantum meruit for services rendered, they were not entitled to the full 15 percent contingency fee specified in the retainer agreement because they did not participate in negotiating the second settlement.

The Supreme Court affirmed the judgment of the Superior Court, holding that, upon reaching the settlement in the probate proceedings, Tarro had fully performed his duties under the 1989 retainer agreement.  Thus, at that time, Tarro’s right to receive 15 percent of all amounts eventually received by the defendant became vested, and subsequent collection efforts taken by successor counsel did not alter his entitlement to the specified fee.
Name: 11-123
State v. Yoneiry Delarosa, No. 11-394 (February 19, 2013)
The defendant, Yoneiry Delarosa, appealed from a Superior Court judgment of conviction. Specifically, the defendant argued that the trial justice erred by admitting into evidence photographs of his tattoos, which also depicted his face “in a ‘scruffy’ and disheveled condition.”  As such, the defendant contended that the photographs should not have been admitted without being redacted because portraying his face in the pictures was not relevant and was unduly prejudicial.  The state countered that the trial justice acted within his discretion in allowing the photographs into evidence. 

The Supreme Court affirmed the decision of the Superior Court, holding that the photographs did not implicate the test laid out in State v. Lemon, 456 A.2d 261, 265 (R.I. 1983), because the photographs were not “mugshots” nor did they depict an image in which a viewer would be able to tell that the defendant currently was incarcerated at the time they were taken.  Further, the trial justice found that the defendant looked similar during his court appearance to how he looked in the picture; and, therefore, the Court held that the trial justice did not abuse his discretion in allowing the unredacted photographs of the defendant’s tattoos.
Name: 11-394
State v. Cory J. Roberts, No. 2011-263 (February 13, 2013)
The defendant, Cory J. Roberts, appeals from a decision arising from a motion to correct a sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure that was executed in connection with a probation-violation determination.  After finding the defendant to be a probation violator in 2004, the trial justice lifted the suspension of a previously imposed fifteen-year suspended sentence, ordered the defendant to serve five years of that sentence, and ordered that the execution of the remaining ten years be “stayed” on condition that, upon his release from prison, the defendant immediately engage in and remain compliant with an approved sex-offender treatment program.  Five years later, the defendant admitted to violating his probation once again, and the trial justice removed the stay of execution on the remaining ten years of the defendant’s sentence and ordered the defendant to serve eight years, with the remaining two years further stayed.

The defendant filed a pro se motion to correct the 2004 sentence, arguing that the trial justice was without authority to impose a “stayed sentence.”  The trial justice agreed with this contention; he vacated the 2004 sentence, and resentenced the defendant on both the 2004 and 2009 probation-violation findings to reflect his original sentencing intention.  The defendant appealed, arguing that the stayed sentence that was executed in 2004 was null and void and that, after serving the five-year prison term, the entire sentence was satisfied.  The defendant further contended that his Rule 35 motion only attacked the illegal portion of his 2004 sentence—the stayed sentence—and that the trial justice, having determined that the stayed sentence was unlawful, erred in resentencing him on the entire 2004 sentence.  Finally, the defendant argued that, because the only sentence remaining in 2009 was the illegal ten-year stayed sentence, the 2009 probation-violation proceeding offended his due process rights.

The Supreme Court held that the trial justice lacked the authority under G.L. 1956 § 12-19-9 to stay the execution of a previously imposed suspended sentence.  However, the Court also held that, because a probation-revocation trial justice cannot reduce the sentence imposed by the original sentencing justice, the trial justice’s error did not render invalid the remaining ten years of the defendant’s sentence.  The Court also concluded that the trial justice properly resentenced the defendant after determining that the “stayed sentence” was unlawful.  Finally, the Court determined that the defendant had failed to preserve his due process contention because he admitted violation and did not move to dismiss the state’s notice of probation violation.
  
Accordingly, the Court affirmed the judgment below.
Name: 11-263
Joseph Jolly v. A.T. Wall, No. 10-213 (February 1, 2013)
The applicant, Joseph Jolly, appealed from a Superior Court judgment dismissing his application for postconviction relief.  On appeal, Jolly argued that, because he was under the influence of prescription medication during his plea hearing, the hearing justice erred in finding that he voluntarily pled nolo contendere to charges of second-degree child molestation.  He also contended that his attorney had rendered ineffective assistance of counsel because, according to Jolly, he had (1) coerced him to plead to the charges and (2) advised him to tell the hearing justice that he was not under the influence of any substance when Jolly was asked this question during the plea colloquy.

The Supreme Court held that the hearing justice had not erred in finding that Jolly had voluntarily pled to the charges.  The Court also concluded that Jolly had failed to satisfy his burden of proof with regard to his allegations of ineffective assistance of counsel.  Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 10-213
Roland DeMaio et al. v. Raymond A. Ciccone et al., No. 2011-211 (February 1, 2013)
The plaintiffs, Roland DeMaio and Linda DeMaio, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Raymond A. Ciccone and Cheryl A. Breggia.

The plaintiffs brought a negligence action against the defendants after an automobile collision between Mr. DeMaio’s motorcycle and Ms. Breggia’s car, which was being driven by Mr. Ciccone at the time of the incident.  In granting summary judgment in favor of the defendants, the motion justice relied on evidence tending to show that Mr. DeMaio’s motorcycle had struck the car from the rear—which, under Rhode Island law, constitutes prima facie evidence of the negligence of the driver of the second vehicle.  On appeal, the plaintiffs contended that they presented evidence to the motion justice tending to show that Mr. Ciccone was negligent and that the collision at issue had not been a rear-end collision.

After reviewing the evidence, the Supreme Court held that there existed genuine issues of material fact in this case and that summary judgment should not have been granted.  In opposing summary judgment, the plaintiffs had presented to the motion justice deposition testimony from Mr. DeMaio, in which he stated that he was riding his motorcycle on a straight road without any vehicles in front of him at the time of the collision.  Mr. DeMaio’s testimony was therefore inconsistent with Mr. Ciccone’s testimony, which stated that Mr. DeMaio was traveling directly behind him before the collision.  Photographs of Ms. Breggia’s vehicle showed damage to both the left side and left rear corner of the vehicle; this evidence called into question whether the incident was in actuality a rear-end collision.  Therefore, it was unclear whether the defendants were entitled to the prima facie evidence of negligence created by a rear-end collision.  Additionally, a police officer testified that it was possible that the damage could have been caused by Mr. Ciccone’s having pulled out in front of Mr. DeMaio.  Therefore, the Supreme Court held that it would be necessary for a fact-finder to assess the credibility of witnesses and weigh the evidence.

Accordingly, the Supreme Court reversed the grant of summary judgment.
Name: 11-211
Rhode Island Mobile Sportfishermen, Inc. v. Nope’s Island Conservation Association, Inc., No. 11-180 (January 31, 2013)
The defendant, Nope’s Island Conservation Association, appealed from a judgment of the Superior Court that recognized a prescriptive easement over its property in Charlestown, Rhode Island.    The trial justice found that the easement ran from a pathway known as the “sand trail,” over the defendant’s land, to a lot owned by the plaintiff, Rhode Island Mobile Sportfishermen, Inc.

The defendant argued (1) that the plaintiff was barred by G.L. 1956 § 34-7-9 from claiming a prescriptive easement over this land because it was held for conservation purposes, (2) that the “relation-back” doctrine founded in Rule 15 of the Superior Court Rules of Civil Procedure does not protect the plaintiff from the strictures of this statute, and (3) that even if the plaintiff was not barred from bringing such a claim, it nonetheless failed to prove the elements for a prescriptive easement.  The defendant also requested that the Court adopt a “higher standard” for proving a claim for adverse possession or a prescriptive easement against an owner of conservation or open land.

The Court held that the plaintiff adequately had pleaded its claim for a prescriptive easement in 2000 and that § 34-7-9 applied prospectively.  Therefore, the statute did not bar the plaintiff’s claim.  The Court also rejected the defendant’s request to adopt a higher standard of proof.  Finally, the Court held that there was insufficient evidence in the record to prove that there had been continuous vehicular use for a ten-year period.  The Court then vacated the judgment and remanded the matter to the Superior Court for additional findings of fact.
Name: 11-180
Nationwide Property & Casualty Insurance Company as subrogee of Dean F. Pepper v. D.F. Pepper Construction, Inc., No. 11-308 (January 28, 2013)
The defendant, D.F. Pepper Construction, Inc., appealed from a Superior Court judgment in favor of the plaintiff, Nationwide Property and Casualty Insurance Company.  The defendant argued that the trial justice erred in finding that Dean Pepper (owner and sole shareholder of D.F. Pepper Construction) was negligent and, further, that Nationwide’s claim as subrogee of Dean Pepper should have been barred by both the antisubrogation rule and the terms of the Nationwide policy.
 
The Supreme Court affirmed the judgment of the Superior Court, holding that despite the Court’s long-standing principle that the fact that a vehicle skidded on a slippery highway is not alone sufficient evidence of negligence, it was reasonable to infer from the extent of the damage that Pepper was driving in excess of the speed appropriate to the conditions.  Because Nationwide is proceeding against D.F. Pepper Construction Inc., a separate entity from its insured, Dean Pepper, the Court held that the antisubrogation rule, even if it were to be recognized by the Court, does not apply to the facts of this case.
Name: 11-308
State v. James Paola, No. 11-118 (January 25, 2013)
The defendant appealed from a judgment of conviction after a jury verdict finding him guilty of one count of first-degree child molestation, one count of third-degree sexual assault, and one count of second-degree child molestation arising from a series of assaults upon his stepdaughters.  On appeal, the defendant argued that the trial justice erred in failing to grant his motion for a new trial because, according to the defendant, the evidence gives rise to serious doubts about the truth of the allegations and that the trial justice overlooked and misconceived evidence. 

After thoroughly reviewing the record and the trial justice’s articulated reasoning in ruling on the motion, the Supreme Court concluded that the trial justice independently evaluated the evidence, weighed the credibility of the witnesses, and did not err in his credibility determinations.  The Supreme Court therefore held that the trial justice did not overlook or misconceive material evidence in denying the defendant’s motion for a new trial. 
Accordingly, the Supreme Court affirmed the judgment of conviction.
Name: 11-118
Allstate Insurance Company v. Jessica Ahlquist, No. 12-16 (January 25, 2013)
The defendant, Jessica Ahlquist (Ahlquist), appealed from a Superior Court grant of summary judgment in favor of the plaintiff, Allstate Insurance Company (Allstate).  Ahlquist argued that the trial justice erred in ruling that an insurance policy issued to Cheryl Crook (Cheryl)—the mother of the underinsured tortfeasor—did not cover the injuries Ahlquist sustained when she was struck from behind by a vehicle operated by Cheryl’s son, Jared Crook (Jared).  Ahlquist further contended that the trial justice erred in holding that an exclusion contained in the Allstate policy was unambiguous.
 
The Supreme Court affirmed the decision of the trial justice.  After examining the policy in its entirety and applying the plain and ordinary meaning to the policy language, the Court concluded that the clear and unambiguous vehicle-exclusion provision clearly applied:  a non-owned automobile would be covered if it was used by the policyholder or a resident relative with the owner’s permission, but that automobile “must not be available or furnished for the regular use of an insured person.”  Jared’s use of the vehicle fell within this exclusion.  As a “resident-relative,” he was considered an insured person per the definition under the policy; however, he used the vehicle on a regular basis.  Thus, the policy language excluding vehicles furnished for the regular use of an insured person applied.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-16
State v. Gerardo E. Martinez, No. 2008-121 (January 23, 2013)
The defendant, Gerardo E. Martinez, appealed from a conviction of murder in the first degree and the imposition by the trial justice of a sentence of life imprisonment without the possibility of parole.  He raised three issues on appeal.  First, he argued that the trial justice committed reversible error in admitting evidence concerning acts of prior misconduct that he allegedly committed against the decedent.  Second, he argued that the trial justice erred in denying his motion for a new trial.  Finally, he argued that the sentence of life imprisonment without the possibility of parole was unwarranted.

The Supreme Court first considered the defendant’s contention that the admission of testimony relating to his alleged prior misconduct was propensity evidence in violation of the Rhode Island Rules of Evidence.  The Court agreed with the trial justice’s conclusion that the prior misconduct testimony was admissible so that the jury could consider the defendant’s intent at the time of the murder.  Next, the Court examined whether the trial justice erred in denying the defendant’s motion for a new trial.  The defendant averred that the evidence adduced at trial established that he had committed second-degree murder, rather than first-degree murder.  The Court concluded that the trial justice did not overlook or misconceive material evidence when, after conducting his own independent review of the record, he agreed with the jury’s verdict in finding the defendant guilty of first-degree murder.

Finally, the Court conducted a de novo review of the trial justice’s sentence of life imprisonment without the possibility of parole.  After independently determining that the murder was committed with both aggravated battery and torture, the Court next considered whether the defendant’s character and propensities warranted the imposition of that sentence.  Although the Court acknowledged certain mitigating factors, on the whole, they did not outweigh the aggravating factors.  Accordingly, the Court held that the sentence was justified and affirmed the judgment of the Superior Court in all respects.
Name: 08-121
State v. Frederick Baillargeron, No. 11-240 (January 22, 2013)
The Attorney General appealed the dismissal for lack of probable cause of a criminal information alleging that the defendant threatened a public official.  On appeal, the Attorney General contended that the motion justice erred in dismissing the criminal information because, allowing the prosecution all reasonable inferences, sufficient probable cause existed within the information package to preclude dismissal.

The Supreme Court held that the motion justice properly dismissed the criminal information for lack of probable cause given the specific charge contained in the information; that charge was limited to a threat relative to the performance of the public official’s duties.  The Supreme Court held that the motion justice did not err because there was insufficient evidence of probable cause in the information and its attachments.
 
Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 11-240
Nellie S. Francis v. Dr. James A. Gallo et al., No. 11-129 (January 22, 2013)
The plaintiff, Nellie S. Francis, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Dr. James A. Gallo and West Bay Psychiatry Associations, Ltd.  Doctor Gallo, a licensed psychiatrist, had treated Ms. Francis at West Bay.  Thereafter, Ms. Francis brought a civil action against Dr. Gallo and West Bay; her complaint included claims for slander based on remarks that Dr. Gallo made in two separate proceedings.  The first alleged slander occurred when Dr. Gallo provided deposition testimony in connection with Ms. Francis’s case before the Workers’ Compensation Court (WCC).  The second alleged slander occurred when Dr. Gallo testified before the Rhode Island Department of Education (RIDE), having been called as a witness by Ms. Francis at a hearing concerning her alleged wrongful termination from her teaching position.

The Supreme Court affirmed the Superior Court’s grant of summary judgment.  Ms. Francis’s claims based on the WCC testimony were time-barred by the statute of limitations for slander, which provides that claims must be filed within one year after the words at issue have been spoken.  Further, Dr. Gallo’s statements made at the WCC deposition were non-actionable because, under Rhode Island law, statements made in judicial proceedings are privileged and thus cannot form the basis for a slander claim.  Likewise, Dr. Gallo’s statements as a witness at the RIDE hearing were also privileged because they were made in the course of a judicial proceeding.

Accordingly, the Supreme Court affirmed the grant of summary judgment in the defendants’ favor.
Name: 11-129
State v. Robert Burnham, No. 10-410 (January 18, 2013)
The defendant, Robert Burnham, appealed from a judgment of conviction after a jury trial found him guilty of two counts of second-degree child molestation.  The defendant filed a motion for a new trial, but the trial justice denied the motion.  On appeal, the defendant contends that the trial justice erred (1) when he denied his motion for new trial, which motion was founded on an assertion that he was deprived of pretrial access to certain relevant hospital records and police reports; (2) when he failed to properly instruct the jury on the issue of the voluntariness of his police statement; and (3) when he improperly limited his cross-examination of the complaining witness.

After reviewing the record, the Court held that the defendant was not deprived of his rights to compulsory process or confrontation because both pretrial counsel and trial counsel were afforded access to the Butler Hospital records.  The Court also held that the trial justice did not err in determining that the police reports were not discoverable under Rule 16 of the Superior Court Rules of Criminal Procedure and that the state did not have an obligation to produce the records under Brady v. Maryland, 373 U.S. 83 (1963).  Further, the Court held that the defendant waived his claim that the jury was not properly instructed on the issue of voluntariness.  Finally, the Court held that the trial justice did not abuse his discretion when he limited the defendant’s cross-examination of Jane about her refusal to undergo a physical examination, because the defendant failed to adhere to the prerequisites of Rule 412 of the Rhode Island Rules of Evidence, as well as the requirements of G.L. 1956 § 11-37-13.

Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 10-0410
State v. Thomas G. Lamoureux, No. 12-120 (January 17, 2013)
The defendant, Thomas G. Lamoureux, appealed from a Superior Court judgment of conviction declaring him to be in violation of his probation and executing seven years of his previously imposed suspended sentence.  On appeal, he challenged the sufficiency of the evidence in support of this judgment.  After reviewing the record, the Supreme Court held that the hearing justice had not acted arbitrarily or capriciously in finding that Lamoureux had violated his probation.  The evidence adduced at the hearing established that Lamoureux had violated his probation by engaging in acts of violence on two consecutive days.  The hearing justice correctly observed that the main issue was not whether the evidence established that Lamoureux had committed new crimes, but whether the evidence established that he had failed to keep the peace and remain on good behavior.  The Supreme Court concluded, as did the hearing justice, that the evidence was sufficient to support a finding that Lamoureux had violated his probation.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 12-120
Miguel Camacho v. State of Rhode Island, No. 11-327 (January 14, 2013)
The applicant, Miguel Camacho, who previously entered an Alford plea to two counts of second-degree child molestation, appealed from a judgment of the Superior Court denying his application for postconviction relief.  Before this Court, the applicant contends that the trial justice erred in denying his application for postconviction relief because the Alford plea colloquy was not a knowing, voluntary, or intelligent waiver of his constitutional rights and, therefore, failed to comply with Rule 11 of the Superior Court Rules of Criminal Procedure.  After reviewing the record, the Court held that the trial justice conducted an appropriate plea colloquy in accordance with Rule 11, and there was no basis to vacate the applicant’s plea based on allegations of constitutional error.

Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 11-327
Tracie Peloquin, as Administratrix of the Estate of Pearl E. Archambault v. Haven Health Center of Greenville, LLC et al., No. 11-130 (January 14, 2013)
In 2006, the plaintiff’s decedent died while in the care of a now-defunct nursing home as a result of an accidental morphine overdose.  The plaintiff filed a wrongful-death action against a variety of defendants and obtained a default judgment against the nursing home.  Both the nursing home and the employee directly responsible for the overdose filed for bankruptcy protection: the nursing home’s Chapter 11 case has been dismissed, and the employee received a Chapter 7 discharge.  Columbia Casualty Company (Columbia), the defendant in the instant appeal, had issued a professional liability insurance policy covering the nursing home and its employees during the relevant time period.  The policy limited coverage to $1 million per claim, but it also contained a Self-Insured Retention (SIR) Endorsement, under which the nursing home would be responsible for the first $2 million of any damages and expenses associated with a claim, and Columbia would be obligated to pay only those amounts in excess of the SIR.  The Superior Court granted summary judgment in favor of Columbia (and denied the plaintiff’s motion for partial summary judgment), concluding that Rhode Island law permits healthcare providers to self-insure and does not require minimum insurance coverage levels for healthcare providers.

On appeal, the plaintiff urged the Supreme Court to reverse the Superior Court and enter summary judgment in her favor, arguing (1) that G.L. 1956 § 42-14.1-2(a) does not permit SIRs in healthcare professional liability insurance policies; (2) that Rhode Island law requires healthcare providers to be minimally insured for $100,000 per claim; (3) that the purported minimum coverage requirements applied separately to both the nursing home and its employee; and (4) that the insurance contract required Columbia to pay prejudgment and postjudgment interest on the full amount of the judgment, rather than on only that portion of the judgment that fell within the purported minimum-coverage requirement.

The Supreme Court held that the SIR Endorsement was invalid under Rhode Island law because, although § 42-14.1-2(a) authorizes the DBR to permit SIRs, that agency has not yet taken that affirmative step of promulgating the requisite rules and regulations.  Additionally, because the plaintiff at all times prior to this appeal had requested relief only in the amount of the purported statutory minimum coverage requirement, the Supreme Court concluded that it was unnecessary to pass on whether Rhode Island law actually requires such minimum coverage levels.  The Supreme Court also held that plaintiff had waived her argument that the nursing home and its employee should be treated as separate insureds by failing to raise that issue below.  Finally, the Court concluded that the insurance policy’s language required Columbia to pay prejudgment and postjudgment interest on only a portion of the judgment.  Accordingly, the Supreme Court vacated the judgment of the Superior Court and remanded for entry of judgment in the plaintiff’s favor for $100,000, plus prejudgment and postjudgment interest calculated on the basis of that amount.
Name: 11-130
Firlando Rivera v. State of Rhode Island, No. 2011-322 (January 14, 2013)
The applicant, Firlando Rivera, appealed from a judgment of the Superior Court denying his application for postconviction relief.  On appeal, Rivera argued that he was deprived of his constitutional right to the effective assistance of counsel because his trial attorneys had (1) represented him while laboring under a conflict of interest; (2) failed to pursue a motion to suppress evidence; and (3) failed to mount a third-party perpetrator defense.

After reviewing the record, the Supreme Court first noted that Rivera had waived certain other grounds underlying his claim of ineffective assistance of counsel.  The Court held that the hearing justice did not err in finding that Rivera had failed to demonstrate that his attorneys were conflicted in representing him.  Additionally, the Court held that the hearing justice did not err in finding that Rivera’s attorneys had made appropriate strategic decisions in abandoning the motion to suppress and in opting not to raise a third-party perpetrator defense.  The Court concluded that Rivera did not satisfy his burden of proof, and was therefore not entitled to postconviction relief.  Accordingly, the Court affirmed the judgment of the Superior Court.  
Name: 11-322
State v. Eileen Morrice, No. 11-52 (January 11, 2013)
The defendant, Eileen Morrice, appeals from the denial of her motion to seal records pursuant to G.L. 1956 § 12-19-19(c) and G.L. 1956 § 12-1-12.  The defendant has completed a deferred sentence, but is ineligible to have her records expunged under G.L. 1956 §§ 12-1.3-2 and 12-1.3-3. The defendant argued that § 12-19-19, as amended in 2010, would allow the sealing of her criminal records, a remedy not previously available to her.  The defendant asserted that the trial judge erred in refusing to apply § 12-19-19(c) retroactively, by finding that the provision violated the separation of powers doctrine, and by declining to sever the “shall be exonerated” portion of the statute from the “shall be sealed” provision.

The Supreme Court affirmed the Superior Court’s decision, holding that the amended statute may not be applied retroactively, either by its plain language or necessary implication.  Further, the Court held that the amended statute created new substantive rights and thus could not be applied retroactively.  Because the amended statute may not be applied retroactively, and because no defendant who entered a deferred sentence agreement subsequent to the 2010 amendments to § 12-19-19 will yet have completed his or her five-year deferment, the Court concluded that the issues relating to the separation-of-powers doctrine were not yet ripe for review.
Name: 11-52
State v. James Briggs.  State v. Anna M. Matthias (Mathias), Nos. 11-47, 11-50 (January 13, 2013)
In these consolidated appeals, the defendants, James Briggs and Anna M. Matthias, appealed from the denial of their motions to seal records pursuant to G.L. 1956 § 12-19-19(c) and G.L. 1956 § 12-1-12.  Both the defendants have completed deferred sentences, but are ineligible to have their records expunged under G.L. 1956 §§ 12-1.3-2 and 12-1.3-3.  The defendants argued that § 12-19-19, as amended in 2010, would allow the sealing of their criminal records, a remedy that was not available in 2007 when they first moved to have their records expunged.  The defendants asserted that the trial judge erred by refusing to apply § 12-19-19(c) retroactively, by finding that the provision violated the separation-of-powers doctrine, and by declining to sever the “shall be exonerated” portion of the statute from the “shall be sealed” provision. 

The Supreme Court affirmed the Superior Court decisions, holding that the amended statute should not be applied retroactively because of the absence of clear language or any necessary implication requiring retroactivity.  Further, the Court held that the amended statute created new substantive rights, and thus should not be applied retroactively.  Because the amended statute should not be applied retroactively, and because no defendant who entered a deferred-sentence agreement subsequent to the 2010 amendments to § 12-19-19 will yet have completed his or her five-year deferment, the Court concluded that the issues relating to the separation-of-powers doctrine were not yet ripe for review.
Name: 11-47, 11-50
In re Application of Floyd Edmond Webb, III., No. 2013-3 (January 11, 2013)
The applicant, Floyd Edmond Webb, III, petitioned the Court for a hearing on the recommendation of the Supreme Court’s Committee on Character and Fitness that he be denied admission to the Rhode Island bar.  The applicant argued that the committee abused its discretion by neither admitting him to the bar outright, nor recommending conditional admission.
 
The Supreme Court adopted the recommendation of the committee, finding that, despite several hearings and multiple opportunities to amend his application, the applicant failed to fully disclose information requested in the application.  Notably, the applicant failed to amend his application to disclose a recent arrest.  The Court found no evidence of abuse of discretion on the part of the committee, and it held that the applicant had failed to meet his burden of proving his character and fitness to practice law as a member of the Rhode Island bar.
Name: 13-3
State v. Gerald Lynch, No. 2011-374 (January 10, 2013)
The defendant, Gerald Lynch, appealed from a decision denying his motion to reduce sentence, under Rule 35 of the Superior Court Rules of Criminal Procedure.  Before this Court, the defendant contends that the trial justice erred in denying his motion because his health problems and age place him in circumstances far different from those of most defendants and because his good behavior is a factor that warrants leniency.  After reviewing the record, the Court held that the defendant has not established to any degree that the trial justice abused his discretion when he denied the motion to reduce his sentence.

Accordingly, the Court affirmed the decision of the Superior Court.
Name: 11-374
Victor R. Perez v. State of Rhode Island, No. 2007-255 (January 10, 2013)
The applicant appealed from a judgment of the Superior Court denying and dismissing his application for postconviction relief.  On appeal, the applicant argued that the hearing justice erred in granting his attorney’s motion to withdraw as counsel by not adhering to the procedural requirements set forth in Shatney v. State, 755 A.2d 130 (R.I. 2000).  He also claimed that he was not given an opportunity to be heard before his application was denied.
 
The Supreme Court ruled that all the requirements of Shatney were complied with and that the applicant was given ample opportunity to be heard on his postconviction-relief application.  Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 07-255
Multi-State Restoration, Inc., et al. v. DWS Properties, LLC., No. 2011-350 (January 10, 2013)
The plaintiffs appealed from a decision of the Superior Court dismissing their claims against the defendant, a limited liability company (LLC), for book account, breach of contract, quasi-contract and unjust enrichment.  The hearing justice reasoned that the contracts that gave rise to the plaintiffs’ claims were signed by the owner of the defendant LLC, but did not refer to the LLC itself.  Therefore, the hearing justice found that the plaintiffs could not pursue these claims against the LLC. 

The Supreme Court held that the defendant’s motion under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure was converted to a motion for summary judgment because the hearing justice considered materials outside the four corners of the complaint.  Furthermore, genuine issues of material fact still existed and, therefore, a grant of summary judgment was inappropriate.  Finally, the Supreme Court held that the plaintiffs were improperly deprived of the opportunity to pursue their equitable claims and that, although generally there must be no adequate remedy at law for a plaintiff to proceed in equity, G.L. 1956 § 34-28-33 allows for the plaintiffs to pursue equitable remedies in this case.
Name: 10-350
Custom Metals Systems, Ltd. v. Tocci Building Corp. et al., No. 11-210 (January 7, 2013)
The plaintiff corporation appealed from a grant of summary judgment in favor of the defendants.  The plaintiff corporation contended that it was not required to maintain a certificate of authority because it was no longer transacting business within Rhode Island as required by G.L. 1956 § 7-1.2-1418.

After a thorough review of the record, the Supreme Court held that, although a certificate of authority would be required before the plaintiff corporation could proceed to final judgment, such a certificate was not required during the pendency of the instant litigation because the plaintiff corporation had the appropriate certificate at the time that it filed suit.

Accordingly, the Supreme Court reversed the Superior Court’s grant of summary judgment.
Name: 11-210
Gilberto Vasquez v. Sportsman’s Inn, Inc. et al., No. 11-26 (December 19, 2012)
The defendants, Sportsman’s Inn, Inc. and DLM Realty, LLC appeal an order from the Superior Court granting Gilberto Vasquez’s motion for a preliminary injunction, which restrained the defendants from encumbering, alienating, or conveying property located at 122 Fountain Street in Providence.  The issues before this Court include whether the trial justice abused his discretion in finding that there was a reasonable likelihood of success on the merits that Sportsman’s Inn was negligent and that the corporate formalities should be disregarded.

After a careful review of the record, this Court vacated the preliminary injunction because there was no evidence in the record that Sportsman’s Inn breached a duty of care owed to Vasquez.  The Court also held that because Vasquez failed to establish a reasonable likelihood of success on the merits of his underlying negligence claim, a “piercing of the corporate veil” analysis was premature at this stage of litigation.

Accordingly, we vacate the order of the Superior Court granting a preliminary injunction.
Name: 11-26
Drago Custom Interiors, LLC v. Carlisle Building Systems, Inc., et al., No. 11-280 (December 19, 2012)
The defendant, International Fidelity Insurance Company (IFIC), appeals from a Superior Court judgment in favor of the plaintiff, Drago Custom Interiors, LLC (Drago).  Drago filed a complaint in the Superior Court against IFIC and Carlisle Building Systems, Inc. (Carlisle), the general contractor for the construction project on which Drago had performed carpentry work, alleging that Drago had performed work for which it had not been paid.  In its answer to Drago’s complaint, IFIC admitted that it was the surety on a labor and material payment bond that had been issued for the project.  The proceedings then were stayed, and the parties submitted their dispute to arbitration in accordance with the Public Works Arbitration Act, G.L. 1956 chapter 16 of title 37.  The arbitrator first found that no evidence had been presented that a bond existed for the project, and he accordingly found IFIC not liable to Drago.  Because Drago was unaware that IFIC was contesting the existence of the bond, it sought to reopen the proceedings so that the bond could be introduced.
   
The arbitrator issued two amended awards; in each, the arbitrator still found IFIC not liable to Drago, but he added that the award was “without prejudice to any rights of Drago as asserted in any pending litigation involving Drago and IFIC.”  Additionally, the arbitrator found in the first amended award that IFIC’s liability was neither asserted nor denied at the arbitration proceedings, but he deleted this finding in the second amended award.  Drago then filed a motion to confirm the second amended award with respect to Carlisle and to modify it with respect to IFIC so that, if Carlisle could not satisfy the award, IFIC would be liable.  The Superior Court trial justice determined that the arbitrator’s findings with respect to whether the existence of the bond was at issue during the arbitration proceedings were unclear, especially when IFIC had conceded in its answer that it was the surety on the bond.  The trial justice exercised what she believed to be her inherent authority to remand the case to the arbitrator for clarification of that issue.  Upon remand, the arbitrator issued an award that found IFIC and Carlisle liable to Drago.  When the trial justice confirmed the award after remand, IFIC appealed, contending that the Superior Court was without authority to remand the case back to the arbitrator for clarification.

The Supreme Court held that the trial justice did not possess the inherent authority to remand the case back to the arbitrator for clarification.  However, the Court determined that, because the phrase “without prejudice to any rights of Drago as asserted in any pending litigation involving Drago and IFIC” deprived the second amended award of the requisite finality and definiteness, the trial justice could have vacated the second amended award and remanded the case to the arbitrator for a rehearing under §§ 37-16-18 and 37-16-19.  Because the trial justice’s actions accomplished the same result that would have been accomplished under §§ 37-16-18 and 37-16-19, the Court affirmed the judgment on other grounds.
 
Name: 11-280
State v. Geronimo Cosme, No. 2010-225 (December 14, 2012)
The defendant, Geronimo Cosme, appealed from a judgment of conviction for possession of cocaine with the intent to deliver and for possession of cocaine in an amount between one ounce and one kilogram.  Specifically, the defendant challenged the denial of his motion to suppress evidence seized from his home, arguing that the affidavit underlying the warrant did not provide the requisite probable cause to support a search of his residence.  To support his argument, he contended not only that the affidavit failed to establish a nexus between the alleged unlawful conduct and his home, but also that the confidential informant, upon whose information the affidavit depended, was not reliable and had neither an established basis of knowledge nor sufficient veracity to justify the issuance of the search warrant for his residence.

The Court affirmed the judgment of the Superior Court, agreeing with the trial justice’s determination that the totality of the circumstances, as described within the affidavit for the search warrant, was sufficient to enable the magistrate to reasonably infer that illegal contraband would be found in the defendant’s residence.  The Court further found no error in the trial justice’s conclusion that the confidential informant’s tip was corroborated properly and satisfied the probable-cause requirement to support the warrant authorizing the search of the defendant’s residence.
Name: 10-255
State v. James LaPierre, No. 2010-341 (December 14, 2012)
The defendant, James LaPierre, appealed from a judgment of conviction for three counts of first-degree child molestation and for three counts of second-degree child molestation.  On appeal, the defendant contended that the trial justice’s denial of his motion for a new trial clearly was erroneous because the jury’s verdict was against the weight of the evidence and failed to do substantial justice.   Specifically, he argued that the testimony of the complaining witness was “so characterized by vagueness, illogic, inconsistency, and lack of recall that she was simply incredible.”  The Supreme Court affirmed the judgment of the Superior Court, holding that the trial justice’s findings and conclusions about credibility determinations were well within his discretion, and therefore, did not err in denying the defendant’s motion for a new trial. 
Name: 10-341
Jennifer Swain et al. v. Estate of Shelley A. Tyre by and through James H. Reilly as Administrator d.b.n, c.t.a., No. 09-297 (December 13, 2012)
This case was before the Supreme Court on appeal from a Newport County Superior Court’s grant of summary judgment in favor of the defendant, Estate of Shelley A. Tyre.  Below, the court held that the plaintiffs (the slayer’s issue) were barred from inheriting as contingent beneficiaries under Tyre’s will, pursuant to the Slayer’s Act, G.L. 1956 chapter 1.1 of title 33.

On appeal, the plaintiffs contended that the plain language of the Slayer’s Act did not preclude them from inheriting as contingent beneficiaries under Tyre’s will.  Additionally, they argued that the Rhode Island General Assembly carefully drafted the Slayer’s Act to strike a balance between two competing interests: the interest in prohibiting a slayer from benefitting from his wrongs, and the interest in carrying out the wishes of testators under the terms of their wills.  According to the plaintiffs, the Slayer’s Act explicitly carves out language to preclude the slayer’s issue from inheriting under the anti-lapse statute or through intestacy, but otherwise allows the slayer’s issue to inherit as named beneficiaries of the testator.

The Supreme Court considered the broad language and intent of the Slayer’s Act, and held that on the facts presented, the Slayer’s Act precluded the plaintiffs from taking as contingent beneficiaries under Tyre’s will.  The plaintiffs vigorously maintained that their father was not involved in Tyre’s tragic death.  Moreover, the plaintiffs had stipulated that they would use any money from their share of the estate to finance their father’s criminal defense, if necessary.  Additionally, of import, there remained a multimillion-dollar judgment against the plaintiffs’ father resulting from Tyre’s wrongful death.  Accordingly, it was foreseeable to conclude that the plaintiffs would use assets obtained from Tyre’s estate to help relieve their father’s burden of satisfying this obligation.

Such a benefit to the plaintiffs’ father, the slayer, would directly contravene both the language and the intent of the Slayer’s Act.  On the facts presented, allowing plaintiffs to inherit under Shelley’s will indeed would allow the slayer to obtain a benefit in direct contravention of the Act.  Therefore, the Court held that the Slayer’s Act barred plaintiffs from inheriting as contingent beneficiaries.
Name: 09-297
State v. John Ford, No. 11-43 (December 12, 2012)
The defendant appealed from a judgment of conviction declaring him to have been in violation of his probation and executing thirty months of his previously imposed suspended sentence.  The defendant contended that the hearing justice erred in excluding from evidence a letter written and sent to him by the state’s complaining witness, testimony about past arguments between him and the complaining witness, and testimony about whether the complaining witness had brought him drugs while he was in a drug-treatment program.  Additionally, the defendant argued that the hearing justice’s credibility determinations were unsupported by the record and amounted to arbitrary and capricious fact-finding.

The Supreme Court affirmed the decision of the Superior Court.  Concerning the letter, the Court concluded that the defendant waived any argument about its substantive admissibility by not clearly asserting it below and held that the hearing justice did not abuse his discretion in excluding the letter for impeachment purposes.  The Court also held that the hearing justice did not abuse his discretion in excluding testimony regarding past events that were not directly relevant to whether the defendant violated the terms of his probation on the evening in question.  Finally, the Court deferred to the hearing justice’s assessment of the witnesses’ credibility and concluded that the record sufficiently supported the hearing justice’s finding that the defendant had violated the terms of his probation by failing to keep the peace and be of good behavior.
Name: 11-43
Christine Richards v. David Fiore, 11-255 (December 12, 2012)
The defendant, David Fiore, appealed from a Family Court order denying and dismissing his motion entitled, “duty of state courts to hear federal question(s)” and dismissing his motion for the return of certain personal property.  The defendant argued that the Family Court clerk’s failure to docket a motion and a letter he had filed constituted a due process violation.  Further, the defendant argued that despite a ruling by a hearing justice that Rhode Island was an inconvenient forum and dismissing his motion for visitation under the Uniform Child Custody Jurisdiction and Enforcement Act, G.L. 1956 chapter 14.1 of title 15, he should be allowed to continue to litigate visitation within this state.  Finally, the defendant argued that his motion for the return of missing property should have been dismissed without prejudice, so he could litigate the matter in state court.

The Supreme Court affirmed the decisions of the Family Court and held that there was no due process violation because the letter filed was not an appeal and the record revealed no attempt by the defendant to schedule a hearing on his motion.  Further, the Court upheld the hearing justice’s finding that Rhode Island was an inconvenient forum because by that time, the plaintiff and the minor child had been living out of state for several years.  The Court noted that, even if it found a due process violation, it would not “turn back the clock” and entitle the defendant to a new divorce trial.  Finally, the Court noted that the defendant had withdrawn his missing property motion at a previous hearing, after having been afforded the opportunity to present his witnesses and evidence; thus, the Court stated that the plaintiff should not be required to defend the motion again in another forum.

Name: 11-255
Kyle Campbell v. State of Rhode Island, No. 2006-98 (December 12, 2012)
The applicant, Kyle Campbell (the applicant), appeals from the Superior Court’s denial of his application for postconviction relief, arguing, inter alia, that the trial justice erred in failing to appoint counsel before he dismissed the applicant’s allegations.  The trial justice summarily dismissed five of the applicant’s allegations before an attorney had been appointed, despite the applicant’s request for counsel.  After the summary dismissal, the trial justice appointed an independent attorney, who did not represent the applicant, to conduct an investigation into the merits of the remaining allegation.  The appointed counsel concluded that the remaining allegation had no merit and, accordingly, was permitted to withdraw from the case.  At a subsequent hearing, the trial justice dismissed the applicant’s remaining allegation.

The Supreme Court held that in order to have a meaningful opportunity to reply before summary dismissal under G.L. 1956 § 10-9.1-6(b), an indigent, first-time applicant for postconviction relief must be afforded counsel upon request.  Because the applicant, who was indigent and had filed only one application for postconviction relief, had not been afforded counsel before the summary dismissal of five of his allegations despite his request for a lawyer, the Court determined that he was deprived of a meaningful opportunity to reply before summary dismissal.
Name: 06-98
Elizabeth Boyer et al. v. Chief Judge Haiganush Bedrosian et al., Nos. 10-369, 10-414 (December 12, 2012)
The defendants—the former Chief Judge of the Family Court, five magistrates of the Family Court, and two Family Court administrators, in their official capacities—petitioned this Court for a writ of certiorari from an order of the Superior Court denying their motions to dismiss under Rule 12(b)(1) and Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, and a motion to strike under Rule 12(f).  The defendants brought the motions to dismiss against the plaintiffs—fifteen minor children and their parents who participated in the Family Court’s Truancy Court Diversion Calendar Program, which was established in 1999 to allow Family Court magistrates to conduct court sessions at public schools where truancy has become an issue.  The plaintiffs contended that their constitutional rights were being violated as a result of procedural errors occurring during the course of the administration of their cases in the Truancy Court, and they sought declaratory and injunctive relief, as well as relief under 42 U.S.C. § 1983.

This Court granted the writ of certiorari, and now before the Court, the defendants raise a number of arguments, including that the Superior Court lacks subject-matter jurisdiction, the plaintiffs lack standing, the plaintiffs’ claims are moot, and the case is barred by the doctrines of judicial immunity, comity, abstention, and res judicata.

After reviewing the record, this Court held that the plaintiffs have failed to state a claim upon which relief can be granted because their allegations are moot.  Further, the plaintiffs have not met the difficult burden of showing that the circumstances in this case are of extreme public importance capable of repetition yet evading review, and, therefore, the exception to the mootness doctrine does not justify this Court deciding this case.  Because this Court held that the plaintiffs’ claims are moot, it need not, and does not, reach the other issues raised in this case.

Accordingly, this Court quashed the Superior Court’s order denying the defendants’ motions to dismiss and remanded the record to that tribunal with directions to enter a final judgment dismissing the plaintiffs’ civil action as moot.
Name: 10-369, 10-414
State v. José Gonzalez, No. 11-194 (December 10, 2012)
The defendant appealed from a judgment of conviction of one count of first degree child molestation and two counts of second degree child molestation. On appeal, the defendant contended that the trial justice erred in denying his motion for a new trial because, in the defendant’s estimation, she misconceived evidence and erred in her evaluation of the credibility of the witnesses.

After a thorough review of the record, the Supreme Court held that the trial justice did not misconceive evidence nor err in denying the defendant’s motion for a new trial. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 11-194
Nelson Bido v. State of Rhode Island, No. 11-77 (December 10, 2012)
The applicant, Nelson Bido, appealed from the denial of his application for postconviction relief, which alleged, principally, the ineffective assistance of his trial counsel based on counsel’s failure to move for dismissal of the indictment on speedy-trial grounds.

The Supreme Court held that, under the four-factor speedy-trial framework of Barker v. Wingo, 407 U.S. 514, 530 (1972), the applicant’s underlying speedy-trial claim was without merit.  Although the length of delay—over fourteen years from the applicant’s July 1991 arrest to the commencement of his trial in May 2006—was “presumptively prejudicial,” thereby triggering the full Barker analysis, the Court determined that the remaining factors weighed against the applicant.  The Court concluded that the trial justice’s finding that the applicant’s pattern of evasive conduct was the primary reason for the delay was correct, even in the face of the state’s negligence in processing this case.  Additionally, the Court determined that, because the applicant had actual knowledge of the charges pending against him and nevertheless remained absent from Rhode Island, the third factor—the assertion of the right to a speedy trial—must also be weighed against the applicant.  Finally, the Court concluded that the applicant’s bald assertions of prejudice were insufficient.
 
Because the applicant’s speedy-trial claim would not have been successful even if it had been raised by his defense counsel at trial, the Court held that the applicant failed to satisfy either prong of the ineffective-assistance-of-counsel standard.  Accordingly, the Court affirmed the trial justice’s denial of the applicant’s postconviction relief application.

Name: 11-77
Maria Carbone v. John Ward, in his capacity as Finance Director for the Town of Lincoln et al., No. 2011-276 (December 7, 2012)
The plaintiff, Maria Carbone (the plaintiff), brought suit against the defendants, John Ward, the finance director for the Town of Lincoln, and the Town of Lincoln (collectively, the defendants) for injuries she sustained in a fall on a public street on March 31, 2008.  The plaintiff’s first notice alleged that the place of injury was a “[s]idewalk and street outside of the Coventry Credit Union at the corner of Railroad Street and Summer Street.”  The plaintiff then sent a second notice, which indicated that she was injured when she fell into a hole “on Winter Street parallel to Railroad Street in the Town of Lincoln/Manville, RI.”  The defendants filed a motion for summary judgment, arguing that the plaintiff’s complaint should be dismissed because the notice of the place of injury was insufficient as a matter of law pursuant to G.L. 1956 §§ 45-15-9 and 45-15-10.  The trial justice granted summary judgment, holding that the plaintiff’s notice of claim “excluded the actual area where the accident occurred” and “did not fix the location in a [reasonably] sufficient manner” and, therefore, the notice failed to comply with the requirements of § 45-15-9.
  
On appeal, the Supreme Court affirmed the trial justice’s decision.  The Court concluded that the General Assembly has made it clear that there must be specificity in the notice of claim, and thus the plaintiff’s notice was insufficient.  The Court noted that, although the statute does not require “complete accuracy,” the notice in this case failed to specify on which of the four corners of the cross-section of streets the injury occurred and omitted any description of how close to the corner, or how far from Winter Street, the incident occurred.  Because the description provided in the notice did not specify the actual area where the injury occurred, the Court affirmed the trial justice’s decision that the plaintiff’s notice did not fix the location in a reasonably sufficient manner.
Name: 11-276
State of Rhode Island Department of Environmental Management v. Administrative Adjudication Division, No. 11-81 (December 6, 2012)
The petitioner sought review of a decision of the Superior Court that reinstated the decision of the Rhode Island Department of Environmental Management (DEM), which found the petitioner ineligible to participate in its 2010 Summer Flounder Sector Allocation Pilot Program (pilot program).  The DEM found the petitioner ineligible to participate because of a consent agreement that he and the agency previously entered into as a settlement of the petitioner’s alleged violation of a state marine fisheries regulation.  The DEM found that this consent agreement constituted an administrative penalty that disqualified the petitioner from participating in the pilot program and a trial justice of the Superior Court agreed.  Before the Supreme Court, the petitioner argued that the consent agreement was not an administrative penalty because the terms of the agreement absolved him from any liability in connection with the alleged violation.

The Court first ruled that although the petitioner conceded that the matter was moot, the case fit within the mootness exception because it raised issues of extreme public importance that are capable of repetition yet evading review.  Second, the Court held that the consent agreement was not an administrative penalty because it absolved the petitioner of any liability.  Accordingly, the Court quashed the judgment of the Superior Court.
Name: 11-81
Kimberly Lomastro v. Margaret Iacovelli et al., No. 2011-379 (December 6, 2012)
The plaintiff appeals from a decision of the Superior Court that granted the defendants’ motion for summary judgment and argues that the trial justice erred when he denied her motion to amend the complaint.  The plaintiff was employed as a bus driver by Durham School Services, a private bus company that provides transportation for the Town of Johnston School Department.  Displeased with the plaintiff’s handling of an incident in which she reported that her bus had been shot at, the town sent a letter to Durham asking that she no longer be assigned to transport Johnston school children.  She later ceased working for the bus company and filed suit against the defendants for wrongful termination.
  
The defendants filed a motion for summary judgment, arguing that the town cannot be held liable for wrongful termination because it was not the plaintiff’s employer.  At the hearing on the motion, the plaintiff’s counsel made a motion for leave to amend the complaint to include a claim for tortious interference with a contractual relationship.  The trial justice denied the motion to amend and granted summary judgment in favor of the defendants.

The Supreme Court held that, under Rule 15(a) of the Superior Court Rules of Civil Procedure, leave to amend pleadings should be freely granted absent extreme prejudice or some other compelling reason.  The Court held that the trial justice did not give sufficient reasoning for denying the motion and did not make any findings regarding what prejudice to the defendants would result if leave was granted.  Accordingly, the Court vacated the grant of summary judgment and remanded the matter for a hearing on the plaintiff’s motion to amend.
Name: 11-379
Ronald R. Fatulli V. Bowen’s Wharf Co., Inc., No.2010-215 (December 5, 2012)
Bowen’s Wharf Company, Inc. (the defendant) sought review of a Superior Court declaratory judgment in favor of Ronald R. Fatulli (Fatulli).  The parties were adjacent landholders whose combined property comprised the entirety of Bowen’s Wharf in Newport.  Their dispute centered on the defendant’s right of first refusal as to a portion of Bowen’s Wharf owned by Fatulli.  Granted to the defendant by Fatulli in an agreement executed in 1969 (Agreement), that right extended to a parcel of real property, a dock, and a lobster business.  Finding that the defendant’s right of first refusal had expired by operation of G.L. 1956 § 34-4-26, the trial justice granted Fatulli’s request for declaratory relief. 

On appeal, the defendant argued that the trial justice had erred in (1) finding that § 34-4-26 applied to extinguish the defendant’s right of first refusal not only as to the real estate described in the Agreement, but also as to the dock and the lobster business; and (2) declining to characterize § 34-4-26 as a notice statute.  The Supreme Court affirmed the trial justice’s finding that the right of first refusal granted in the Agreement fell within the plain terms of the statute.  The Court also held that, since § 34-4-26 applied only to recorded instruments, it was not a notice statute.  Finally, the Court rejected the defendant’s contention that § 34-4-26 discourages recording and noted that it was questionable whether the defendant’s right of first refusal was ever valid to begin with.  Accordingly, the Supreme Court held that the defendant’s right of first refusal had expired by operation of § 34-4-26, and it affirmed the judgment of the Superior Court.
Name: 10-215
State v. Bradley E. Bellem, No. 2011-157 (December 3, 2012)
The defendant, Bradley E. Bellem, appealed from a Superior Court judgment of conviction declaring him to be in violation of his probation and executing four years of his previously imposed suspended sentence.  The defendant argued there was insufficient evidence to support the hearing justice’s conclusion that he had violated the terms of his probation, and, therefore, that the hearing justice’s violation finding was arbitrary and capricious.  The Supreme Court affirmed the decision below, noting that the hearing justice’s findings were supported by the uncontroverted testimony of two witnesses that the defendant violated at least one no-contact order.
Name: 11-157
Argelis Pichardo v. Julie Stevens et al., No. 11-243 (November 27, 2012)
The plaintiff, Argelis Pichardo, appealed from the Superior Court’s grant of summary judgment in favor of defendant Julie Stevens. On appeal, Mr. Pichardo contended that inconsistencies in the evidence presented to the motion justice created genuine issues of material fact as to whether or not Ms. Stevens gave an unidentified driver consent to use her car on the date of a collision between Ms. Stevens’s car and Mr. Pichardo’s car.

After a thorough review of the evidence, the Supreme Court held that there existed genuine issues of material fact in this case and that summary judgment should not have been granted. Mr. Pichardo’s complaint cited G.L. 1956 § 31-33-6, which provides that a vehicle owner may be liable for the acts of another person who operates the owner’s car “with the consent of the owner.” It was uncontested that Ms. Stevens was the registered owner of the vehicle involved in the collision. General Laws 1956 § 31-33-7 makes evidence of ownership “prima facie evidence that [the owner’s car] was being operated with the consent of the [owner].” Ms. Stevens presented an affidavit stating that she had not given the driver her consent and that her car was a stolen vehicle at the time of the collision. However, at the summary judgment stage, Ms. Stevens’s affidavit was insufficient to overcome the prima facie
evidence created by the General Assembly. Further, although Ms. Stevens had filed a stolen vehicle report with the police, there were inconsistencies between that report and other evidence in the record, including Ms. Stevens’s deposition testimony. These inconsistencies were related to the issue of consent; therefore, the Court held that a fact-finder was necessary to assess the credibility of witnesses and weigh the evidence.

Accordingly, the Supreme Court reversed the grant of summary judgment.
Name: 11-243
Hector Jaiman v. State of Rhode Island, No. 09-147 (November 16, 2012)
The applicant, Hector Jaiman, appealed from a judgment of the Superior Court denying his application for postconviction relief.  On appeal, the applicant contended that the hearing justice erred when he (1) dismissed his argument that his right to due process was violated by improper argument by the prosecutor, (2) denied his argument that he was subjected to an illegal sentence, (3) denied his claims of ineffective assistance of counsel occasioned by his trial counsel’s failure to object to what the applicant maintains was improper witness vouching, and (4) dismissed his assertions of ineffective assistance of counsel because his trial counsel failed to object to a first-degree murder instruction, which was a more serious offense than that faced by the principal offender, who was convicted of second-degree murder.

After reviewing the record, the Court held that the applicant waived his claims of due-process violation and ineffective assistance of counsel for failure to object to the first-degree murder instruction.  This Court also held that the applicant’s conviction of a more serious offense than the principal was proper based on the plain and ordinary meaning under G.L. 1956 § 11-1-3.  Finally, the Court held that the applicant’s trial counsel was not ineffective for failure to object to what he argues was improper vouching because he failed to satisfy the requirements of Strickland v. Washington, 466 U.S. 668 (1984). 

Accordingly, the Court affirmed the judgment of the Superior Court.
Name: 09-147
State v. Samnang Tep, No. 2011-70 (November 14, 2012)
The defendant appealed from a judgment of conviction for two counts of assault with a dangerous weapon and one count of discharging a firearm while committing a crime of violence.  On appeal, the defendant contended that the trial justice abused his discretion when he (1) admitted into evidence a hearsay statement as an excited utterance; and (2) allowed a lay witness to testify about the defendant’s mental state at the time of the alleged shooting.

The Supreme Court held that the trial justice did not abuse his discretion when he admitted the excited utterance because the declarant was visibly affected by the stress of the incident and made his statement shortly after it occurred.  The Court also held that the trial justice did not abuse his discretion when he allowed a lay witness to testify regarding his observation of the defendant at the time of the incident.  The Court held that the witness merely testified to his perception of the defendant, rather than the defendant’s mental state, and therefore, the lay-witness testimony was properly admitted.  Accordingly, the Court affirmed the judgment of conviction.
Name: 11-70
City of Newport v. Local 1080, International Association of Firefighters, AFL-CIO, No. 2011-69 (November 8, 2012)
Local 1080, International Association of Firefighters, AFL-CIO (the union) sought review of a Superior Court judgment in favor of the City of Newport (city).  The dispute between the parties stemmed from the city’s decision to modify the health insurance benefits it provided to retired firefighters.  In response to that decision, the union filed grievances and requested arbitration.  Thereafter, the city sought declaratory and injunctive relief in Superior Court.  The hearing justice granted judgment in the city’s favor, having determined that (1) the retired firefighters who would be affected by the city’s decision were not necessary and indispensible parties to the complaint; and (2) the dispute was not arbitrable under the parties’ collective-bargaining agreement (CBA).  The union disagreed and petitioned the Supreme Court for a writ of certiorari, which was granted.

The Supreme Court held that, because only the union itself could submit a dispute to arbitration, the hearing justice did not err in concluding that joinder of individual retired firefighters was unnecessary.  The Court next reviewed de novo the hearing justice’s finding that the dispute was inarbitrable.  After reviewing the CBA in light of the Fire Fighters Arbitration Act (FFAA), G.L. 1956 chapter 9.1 of title 28, the Court held that the hearing justice did not err in concluding that the parties did not intend to arbitrate disputes regarding retiree healthcare.  Accordingly, the Court affirmed the judgment of the Superior Court in all respects and quashed the writ of certiorari previously issued.
Name: 11-69
State v. Luigi Ricci, No.2011-164(November 8, 2012)
The defendant appealed from a Superior Court judgment of conviction.  On appeal, he contended that the trial justice committed reversible error in (1) failing to adequately instruct the jury on how to assess the credibility of the state’s witnesses; (2) failing to instruct the jury that a history of drug abuse might weaken the credibility of a testifying witness; and (3) denying his motion for a new trial. 

The Supreme Court held that the trial justice adequately instructed the jury about its role in assessing witness credibility and in weighing the evidence provided by each witness.  The Court additionally held that the defendant’s proposed instruction indicating that the testimony of a drug user should be weighed more carefully than the testimony of a non-drug user, would operate as an improper commentary on the weight of the evidence, thereby undermining the vital role of the jury.   Therefore, the Court held that the trial justice did not err in refusing to issue the defendant’s proposed instruction on drug-use.  Lastly, the Court agreed with the trial justice’s analysis in ruling on the defendant’s new trial motion.  Thus, the Court held that the trial justice did not err in denying that  motion.   Accordingly, the Court affirmed the judgment of conviction.
Name: 11-164
State v. Gerrit Musterd, No.2011-159 (November 2, 2012)
The defendant, Gerrit Musterd, appealed from a judgment of conviction for first-degree murder and three related crimes.  Musterd raised three issues on appeal.  First, he argued that, because the police lacked sufficient probable cause to arrest him without a warrant, the trial justice should have granted his motion to suppress his confession and any evidence seized as the fruits of illegal arrest.  Second, he argued that, because the Pawtucket police failed to properly present him in court, and because they engaged in “trickery and lying” during his interrogation, the trial justice should have granted his motion to suppress his confession.  Finally, he argued that the trial justice erred in denying his motions for a judgment of acquittal and for a new trial. 
  
The Supreme Court first conducted a de novo review of the trial justice’s determination of whether probable cause existed to support Musterd’s arrest.  After reviewing the record and taking into account all the circumstances surrounding Musterd’s arrest, the Court held that the trial justice did not err in concluding that the police had probable cause to arrest Musterd.  The Court next considered Musterd’s additional arguments supporting his contention that, even if probable cause existed to support his arrest, the trial justice should have granted his motion to suppress evidence.  The Court agreed with the trial justice’s conclusion that any delay in presentment did not affect the voluntariness of Musterd’s statement to police.  Furthermore, it held that the trial justice properly concluded that Musterd had knowingly, intelligently, and voluntarily waived his Miranda rights.  The Court declined to hold that Musterd’s knowing, intelligent, and voluntary waiver of his Miranda rights was later vitiated when the police recorded a portion of his statement without his knowledge.  The Court therefore affirmed the trial justice’s denial of Musterd’s motion to suppress evidence.

Finally, the Court reviewed the evidence adduced at trial and held that the trial justice neither committed clear error nor overlooked or misconceived material or relevant evidence when he denied Musterd’s motions for a judgment of acquittal and for a new trial.  Accordingly, the Court affirmed the judgment of the Superior Court in all respects.
Name: 11-159
State v. Yara Chum, No. 11-254 (October 25, 2012)
The defendant, Yara Chum, was convicted of two felony counts of assault with a dangerous weapon and one count of discharging a firearm while committing a crime of violence.  On appeal, the defendant contends that the trial justice erred by: (1) denying his motion to suppress his statement to police as the fruit of an unlawful arrest; and (2) prohibiting defense counsel from cross-examining two police witnesses in violation of the defendant’s rights to a fair trial and to confront adverse witnesses.

The Supreme Court held that the defendant’s contention that the trial justice erroneously denied the defendant’s motion to suppress had not been properly preserved for appellate review because the defendant’s statement was not introduced at trial and the defendant failed to argue below that his arrest was unlawful.  Additionally, the Court noted that, contrary to the defendant’s assertions, police had ample probable cause to arrest the defendant.

The Court also held that the defendant did not properly preserve any challenge to the trial justice’s limitation of the defendant’s cross-examination of the police witnesses.  The Court further concluded that the trial justice’s ruling was correct on the merits; the defendant’s statement was beyond the scope of direct examination and constituted inadmissible hearsay when introduced through police witnesses.

Accordingly, the Court affirmed the defendant’s conviction.
Name: 11-254
In re Amiah P., Nos. 11-342, 12-22 (October 25, 2012)
The respondents, Harry Harris (Harris) and Caitlin Patenaude (Patenaude) (collectively, the respondents) appealed from a Family Court decree terminating their parental rights to their daughter, Amiah P.  The Family Court justice granted the petition to terminate the respondents’ parental rights on the grounds of unfitness by reason of conduct or conditions seriously detrimental to the child.  The trial justice found that Amiah had been in the custody of the Rhode Island Department of Children, Youth and Families for the statutory twelve-month term.  As to Patenaude, the trial justice declared her unfit to parent the child based on chronic substance abuse, such that the child would not be able to return to her custody within a reasonable period, considering the child’s age and the need for a permanent home.  As to Harris, the trial justice based his finding of unfitness on Harris’s incarceration, which was of a duration that made it improbable for him to care for the child for an extended period of time.  After finding the respondents to be unfit, the trial justice concluded that it was in the child’s best interests to terminate the respondents’ parental rights.

On appeal, the respondents argued that the record before the Family Court justice did not support the justice’s finding of unfitness by clear and convincing evidence or his finding of conduct or conditions seriously detrimental to the child.  Additionally, both of the respondents contended that the trial justice erred when he precluded Patenaude from testifying that her assault complaint against Harris—the offense that led to his incarceration—was false.  The respondents argued that this testimony was relevant and admissible as to Harris’s parental fitness as well as to the determination of Amiah’s best interests.

The Supreme Court affirmed the Family Court’s decree terminating the respondents’ parental rights with respect to their daughter.  The Court, noting that Patenaude did not contest the trial justice’s finding that she was unfit, concluded that the remainder of her contentions were without merit.

Next, the Supreme Court affirmed the trial justice’s termination of Harris’s parental rights.  The Court concluded that the trial justice properly considered Harris’s participation in programs at the ACI.  The Court also held that the trial justice’s finding that Harris was unfit because of his incarceration was correct because the trial justice also considered other factors, such as the duration of his incarceration and the child’s age, development, and the uncertain home environment the child would face upon the father’s release.

The Supreme Court concluded that sufficient evidence supported the trial justice’s conclusion that the respondents were unfit by reason of conduct or conditions seriously detrimental to the child and affirmed the judgment.
Name: 11-342, 12-22
Craig Sacco v. Cranston School Department; Charles Pearson v. Cranston School Department, Nos. 2011-21, 2011-22 (October 17, 2012)
The plaintiffs, Craig Sacco (Sacco) and Charles Pearson (Pearson) (collectively, the plaintiffs), brought suit against the defendant, the Cranston School Department (the school department or the defendant), seeking grievance arbitration of adverse employment action taken against them with respect to their respective sports coaching positions at Cranston West High School (Cranston West or school).  The plaintiffs, who are teachers at Cranston West, each sought to file a grievance against the school department pursuant to the collective bargaining agreement (CBA) in place between the Cranston Teacher’s Alliance (alliance) and the school department.  The defendant refused to submit the matter to arbitration because it contended the CBA did not apply to the plaintiffs in their capacity as coaches.  The plaintiffs then sought a declaratory judgment in the Superior Court that they were entitled to have their grievances resolved by binding arbitration, as guaranteed by the CBA.  On September 30, 2010, the motion justice granted summary judgment to the defendant concluding that the plaintiffs—in their capacity as coaches—were not entitled to avail themselves of the CBA’s grievance procedures.
  
On appeal, the Supreme Court affirmed the trial justice’s decision and held that the plaintiff’s positions were contractually distinct from their teaching positions and did not constitute professional employment.  Notwithstanding the hiring preference afforded to teachers by the CBA, teacher and non-teacher coaches alike are subject to separate, one-year contracts that are not governed by the CBA.  Consequently, the plaintiffs in their coaching capacities have no right to pursue relief based on the rights bargained for by the alliance on behalf of its teacher-members and announced in the CBA.
Name: 11-21, 11-22
State v. John Kluth, No. 09-31 (July 13, 2012)
The defendant appealed from judgments of conviction based on a Superior Court jury’s finding of guilt on thirty counts of obtaining money by false pretenses.  On appeal, the defendant contended (1) that the then presiding justice of the Superior Court exceeded his authority in granting the prosecutor’s request to change venue; (2) that the charges filed against him were improperly joined as a matter of law, in view of the provisions of Rule 8(a) of the Superior Court Rules of Criminal Procedure; and (3) that, even if the charges had been properly joined, the trial justice’s failure to sever the cases infringed upon his right to a fair trial.

The Supreme Court held that, in light of the considerations of judicial economy and the significant resources demanded by the defendant’s trial, the then presiding justice’s ruling with respect to the motion to transfer constituted a sustainable exercise of his discretion. 

With respect to the defendant’s contention as to joinder, the Court stated that the offenses charged were of the same or similar character.  The Court therefore held that joinder was proper as a matter of law.  The Supreme Court further held that, due to the fact that the evidence of the other alleged crimes might well be admitted at separate trials and the fact that the allegations were nearly identical, the trial justice did not abuse her discretion in joining the criminal informations for trial. 

The Supreme Court held that the defendant had waived his contentions with respect to the issue of severance.

Accordingly, the Supreme Court affirmed the judgments of the Superior Court.
Name: 09-31
Mutual Development Corporation v. Ward Fisher & Company, LLP et al., No. 09-168 (July 13, 2012)
The plaintiff, Mutual Development Corporation, appealed from the Superior Court’s grant of summary judgment in favor of the defendants, Ward Fisher & Company, LLP and WF Realty & Investment, LLC.  On appeal, the plaintiff contended that the hearing justice improperly interpreted and applied subsection 6 of the Statute of Frauds, G.L. 1956 § 9-1-4, in deciding that said section could properly be invoked with respect to an alleged oral finder’s fee agreement between the plaintiff and the defendants, thereby barring recovery by the plaintiff.

The Supreme Court first addressed the plaintiff’s contention that the Statute of Frauds did not apply to a finder’s fee because of what the plaintiff contended was a “well-recognized distinction” between a broker and a finder.  After reviewing the cases relied upon by the plaintiff, the Court concluded that it is the nature of the transaction which is determinative as to whether subsection 6 of the Statute of Frauds applies, and not whether the person seeking the fee acted as a finder or a broker.

Next, the Court turned to the use of the word “commission” in the Statute of Frauds to determine whether that term encompassed both flat-sum commissions and percentage-based commissions.  The Court reviewed the definition of “commission” in several recognized dictionaries and determined that that term contemplated both types of payments.  Ultimately, the Court held that, in furtherance of the policy of the Statute of Frauds, any person who seeks to recover a flat-sum commission or a percentage-based commission upon the sale of any interest in real estate is required to comply with subsection 6 of the Statute of Frauds.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 09-168
State v. James S. Richardson, No. 10-216 (July 12, 2012)
On November 14, 2008, a jury convicted the defendant, James S. Richardson, of one count of murder and one count of burglary.  The defendant was sentenced to life imprisonment without the possibility of parole.  The defendant appealed his conviction and asserted that the trial justice erred by: (1) allowing one of the state’s expert witnesses to bolster the credibility of another expert witness; (2) denying the defendant’s motion for judgment of acquittal; and (3) denying the defendant’s motion for a new trial.  The Supreme Court affirmed the judgment of the Superior Court in all respects.

The Court rejected the defendant’s assertion that the second expert witness’ testimony constituted impermissible bolstering.  The Court held that the substance of the second expert witness’ testimony was an opinion that was based on the objective scientific observations, facts, and figures contained in the first expert’s reports.  The second expert’s reliance on the objective measurements contained in the worksheets and reports distinguished his testimony from the kind of “subjective analysis” that the Court previously had held constituted bolstering. 

With respect to the denial of the motion for a new trial, the Court held that the trial justice performed an exhaustive review of the evidence presented at trial, and he conducted a thorough and proper analysis with respect to the defendant’s motion for a new trial in this matter.  Despite the defendant’s contention that the trial justice should not have found the state’s primary witnesses to be credible, the Court noted that it was clear that the trial justice considered the testimony of both witnesses and came to a different conclusion.  Therefore, the Court affirmed the trial justice’s ruling denying the defendant’s motion for a new trial.  Because the Court affirmed the Superior Court’s judgment with respect to the motion for a new trial, the Court did not reach a review of the motion for judgment of acquittal.

Accordingly, the Supreme Court affirmed the judgment of conviction.
Name: 10-216
State v. Julie Robat, No. 10-61 (July 12, 2012)
The defendant appealed from a judgment of conviction on one count of second-degree murder; the victim was the defendant’s newborn daughter.  On appeal, the defendant argued that the trial justice erred in failing to grant her motion for a judgment of acquittal and her later motion for a new trial because, according to the defendant, the state failed to provide legally sufficient evidence for a jury to find that she acted with malice in connection with the death of her baby.  The defendant further contended that the trial justice erred in failing to grant her motion for a new trial on other grounds—viz., what the defendant alleged were improper comments made by the prosecutor during her closing argument.

After thoroughly reviewing the record and the trial justice’s articulated reasoning in ruling on the motion for a new trial, the Supreme Court held that the trial justice did not overlook or misconceive material evidence in denying the defendant’s motion for a new trial.  Specifically, the Court concluded that there was sufficient evidence to support a finding that the defendant acted with malice in connection with the death of her baby.

In view of the fact that it had concluded that the trial justice did not err in denying that motion, the Court found it unnecessary to pass upon the motion for judgment of acquittal—since the latter motion is more demanding from a defendant’s perspective than is a motion for a new trial.

Lastly, the Court reviewed the defendant’s contention concerning the allegedly improper comments made by the prosecutor during her closing arguments.  The Court first stated that, in view of the facts of this case, the challenged statements did not constitute improper comments.  The Court further noted that, in any event, although defense counsel had made objections to the comments at issue, counsel neither moved to pass the case nor requested a cautionary instruction.  The Court reiterated its long-standing rule that such procedural steps must be taken in order to preserve for appeal an issue involving alleged impropriety in a closing argument.

Accordingly, the Supreme Court affirmed the judgment of conviction.
Name: 10-61
State v. Juan Diaz, No. 10-236 (July 12, 2012)
The defendant appealed from a judgment of conviction on one count of second-degree murder and one count of using a firearm while committing a crime of violence.  On appeal, the defendant contended that the trial justice erred in failing to grant his motion for judgment of acquittal on the second-degree murder charge; the basis for that contention was the defendant’s subordinate assertion that the state failed to provide legally sufficient evidence for a jury to find that he acted with malice in connection with the death of the victim.  The defendant additionally contended on appeal that the trial justice erred in omitting the phrase “criminal negligence” from his instruction to the jury concerning involuntary manslaughter and instead used “confusing language,” which made it difficult for the jury to distinguish the crime of involuntary manslaughter from the crime of murder in the second degree.

After thoroughly reviewing the record and viewing the evidence in the light most favorable to the prosecution, the Supreme Court concluded that there was sufficient evidence produced at trial to support a verdict of second-degree murder.  The Court therefore held that the trial justice did not err in denying the defendant’s motion for a judgment of acquittal as to the second-degree murder charge. 

Next, the Court reviewed the defendant’s contention that the trial justice erred in failing to include the term “criminal negligence” in the instruction concerning involuntary manslaughter.  The Court noted that the instructions that were given, when viewed as a whole, could have misled a jury composed of ordinary intelligent lay people to the prejudice of the defendant.  Therefore, the Court held that, in view of the facts of this case, the trial justice was required to instruct the jury as to the concept of criminal negligence.

Accordingly, the Supreme Court vacated the judgment of conviction and remanded the case to the Superior Court.
Name: 10-236
Eddy Guerrero v. State of Rhode Island, No. 10-429 (July 12, 2012)
The applicant appealed from the denial of his application for postconviction relief.  His sole contention on appeal was that the hearing justice erred in holding that his trial counsel provided effective assistance of counsel prior to and during the applicant’s plea.  Specifically, the applicant contended: (1) that his counsel failed to obtain an interpreter for him at the time of the hearing on his motion to suppress certain evidence and at the time of his eventual plea; (2) that, prior to his execution of the plea form, his counsel failed to properly explain to him the essential elements of the offense to which he ultimately pled nolo contendere; (3) that his trial counsel failed to meet with him in a setting conducive to meaningful attorney-client communications; (4) that, by not conducting a sufficient investigation, his counsel failed to properly prepare for the suppression hearing; and (5) that the hearing justice erred in failing to address the prejudice component of the analysis relative to ineffective assistance of counsel claims that is described in Strickland v. Washington, 466 U.S. 668 (1984).

The Supreme Court held that, based on the testimony of the postconviction relief witnesses and the credibility determinations made by the hearing justice, the hearing justice did not err in concluding that trial counsel, in choosing not to utilize the services of an interpreter, did not provide ineffective assistance of counsel.
With respect to the immigration consequences of the applicant’s plea, the Supreme Court further held that the hearing justice did not err in concluding that trial counsel was not ineffective given his finding that trial counsel adequately warned the applicant of the immigration consequences of his plea.  The Court additionally stated that the hearing justice did not err in finding that the applicant’s plea was intelligent.

Concerning the applicant’s contention as to trial counsel’s alleged failure to prepare, the Supreme Court held that, in view of the trial counsel’s thorough questioning and extensive argument at the suppression hearing, the hearing justice did not err in ruling that trial counsel was not ineffective.  The Supreme Court further held that, in light of the record of trial counsel’s substantive and confidential discussions with the applicant, the hearing justice did not err in concluding that trial counsel’s representation of the applicant was not ineffective with respect to the applicant’s “meaningful attorney-client communications” contention.

In view of the determination that trial counsel’s performance was within the range of competence demanded of attorneys in criminal cases, the Court stated that it did not need to address the second component of the Strickland analysis.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court.
Name: 10-429
Sofya M. Zharkova v. Paul D. Gaudreau, No. 11-295 (July 11, 2012)
The plaintiff, Sofya M. Zharkova, appealed from a judgment of the Family Court dismissing her complaint for divorce from the defendant, Paul D. Gaudreau.  In her complaint, the plaintiff alleged that a common-law marriage had existed between the defendant and her.  At trial, after hearing testimony from the parties and from several other witnesses and after considering the exhibits in the record, the trial justice found that the plaintiff had failed to prove the existence of a common-law marriage by clear and convincing evidence; accordingly, he dismissed the plaintiff’s complaint.

On appeal, the plaintiff contended that the trial justice’s decision failed to do “substantial justice” between the parties and that the trial justice overlooked and/or misconceived relevant and material evidence or was otherwise “clearly wrong.”
 
The Supreme Court held that the trial justice did not clearly err in finding that there was no clear and convincing evidence of the intent of the parties to enter into a husband-wife relationship.  The Court further stated that, after considering all of the evidence as well as the trial justice’s credibility determinations, the trial justice did not err in finding that the plaintiff failed to prove by clear and convincing evidence that there was a general reputation in the community that the plaintiff and the defendant were husband and wife.  As a result, the Court held that the trial justice did not misconceive or overlook relevant evidence, nor was he clearly wrong when he found that the plaintiff failed to prove the existence of a common-law marriage between herself and the defendant.

Accordingly, the Supreme Court affirmed the judgment of the Family Court.
Name: 11-295
1 - 200Next
  
Rhode Island Judiciary 2011 Website Use Policy