State v. Christopher S.
Thornton, No. 99-376 (June 27, 2002)
The defendant appealed his conviction on a variety of alleged trial errors.This
Court rejected his constitutional claim and concluded that he voluntarily waived
his right to counsel. Furthermore, there was no abuse of discretion on the part
of the trial justice in permitting a juror to remain on the jury panel. The
trial justice did not err in excluding defendant from six chambers conferences,
from excluding an officer’s testimony, admitting defendant’s prior bad acts, or
concluding that the parole board, rather than the court, should assess the
quality of defendant’s claimed rehabilitation.The appeal was denied and
State v. Milton Aponte,
No. 00-234 (June 20, 2002)
The defendant appealed his conviction on a variety of alleged trial errors.This
Court rejected his constitutional claim and concluded that he voluntarily waived
his right to counsel. Furthermore, there was no abuse of discretion on the part
of the trial justice in permitting a juror to remain on the jury panel. The
trial justice did not err in excluding defendant from six chambers conferences,
from excluding an officer’s testimony, admitting defendant’s prior bad acts, or
concluding that the parole board, rather than the court, should assess the
quality of defendant’s claimed rehabilitation.The appeal was denied and
Richard E. Johnson, Jr. v.
Newport County Chapter for Retarded Citizens, Inc., et al, No. 01-129 (June
This Court concluded that
the 90-day provision in G.L. 1956 § 28-5-24.1 fell under an exception to the
tolling provision in § 9-1-19 and, therefore, the 90-day statute of limitations
was applicable. In appropriate circumstances, equitable tolling could serve as
an exception to the statute of limitations set forth in § 28-5-24.1 for people
of unsound mind. If the employee was found to be of unsound mind, equitable
tolling was available as an exception to the statute of limitations during the
period at issue.
Newport Court Club Associates
d/b/a Newport Athletic Club et al v. Town Council of the Town of Middletown et
al, No. 00-7 (June 19, 2002)
This Court previously
held that the town lacked the authority to include charges for debt service and
capital costs in its sewer bills.
The town then lobbied for corrective legislation, and the general
assembly obliged. The new law gave a town the option of including assessments
for these cost in its sewer charges, or of paying for them through general
taxation. The town’s council adopted the latter course. The ratepayer argued
that § 1 violated R.I. Const. art. 13, § 4, which required that specific
legislation affecting a particular home-rule community be approved by a majority
of the town’s electors. This Court rejected the ratepayer’s argument because the
law was enacted, not under § 4 but under R.I. Const. art. 13, § 5, and was a
proper exercise of the legislature’s power over municipal taxation and
borrowing. The sewer assessment was not a tax, and thus the 5.5 percent cap
imposed on municipal taxes by G.L. 1956 § 44-5-2(c) was inapplicable. Section 1,
did not violate equal protection under the state or federal constitutions, and
was not an unconstitutional delegation of power under R.I. Const. art. 6, §§ 1
State v. Anibal Santiago,
No. 01-428 (June 18, 2002)
A police officer stopped
an unregistered vehicle that defendant was driving and both occupants reached
under the front seat. A subsequent search of the vehicle revealed two loaded
firearms underneath the front seat. At the time of the incident, defendant was
under a suspended sentence of incarceration with probation. The trial justice
found that there was no evidence to suggest that defendant knew the weapons were
under the seat, and it found that defendant had not violated the conditions of
his probation. This Court granted the state’s appeal because: (1) defendant's
knowledge of the existence and location of the weapons could be inferred from
his conduct, and the trial court erred when it found there was no evidence that
established that defendant knew the guns were under the seat; and (2) the trial
court erred by applying a "reasonably satisfied" standard to the narrow question
of whether defendant was guilty of illegally possessing firearms instead of
applying that standard to determine if defendant was lacking in the good
behavior required by his probationary status.
731 Airport Associates, LP et
al v. H & M Realty Associates, LLC by and through its Member, Donald N. Leef,
No. 01-83 (June 18, 2002)
This appeal concerned an
agreement for the purchase of land.
After the seller sold the property to a third party, the buyer filed
suit. This Court concluded that the trial justice did not err by finding that
the seller's attorney lacked apparent authority to bind the seller, that there
was no meeting of the minds, and that the buyer failed to prove the seller
manifested an objective intent to be bound in the absence of an executed written
Joseph T. Wood, Jr. v.
Mary-Ellen Durkin, No. 01-70 (June 14, 2002)
The trial court allowed
the trial to proceed on a counterclaim, which the husband argued was improperly
filed. This Court concluded that, as the husband filed a claim for divorce, and
the wife's counterclaim likewise was for divorce, the husband was adequately
apprised of the issues and should have been prepared to proceed to trial.
Accordingly, had the trial justice granted a motion to amend the pleadings, the
husband would not have been prejudiced. Furthermore, the husband neither
answered nor objected to the counterclaim when it was filed. Thus, he was not
disadvantaged by proceeding in his absence.
State of Rhode Island,
Department of Environmental Management v. State of Rhode Island, Labor Relations
Board et al, No. 00-372 (June 14, 2002)
The union alleged that
the DEM violated the collective bargaining agreement (CBA) by posting a
part-time position. The union sought review by the Office of Labor Relations,
which denied the union's grievance. The union then took the matter to the Labor
Relations Board (Labor Board). This Court concluded that, under the CBA, the
union elected to submit disputes such as this to binding arbitration. Therefore,
the matter was not appropriately before the Labor Board, nor was it ripe for
judicial review. Therefore, the trial justice’s decision upholding the Labor
Board decision was error.
Mary Elizabeth Codd v. Victor
G. Barrett, No. 01-99 (June 14, 2002)
The family court found the father in civil contempt for failure to comply with
the final judgment of divorce. This Court concluded that the motion upon which
the magistrate based his contempt finding was the plaintiff mother's motion to
declare the father in willful contempt and was one relating to a finding of
contempt for failure to pay child support. Therefore, the father's appeal had to
be by way of certiorari. The fact that the order addressed other issues that, if
based in a separate judgment may have been appealable, was of no moment.
Thomas P. Ricci v. Edward
Marandola et al, No. 01-262 (June 13, 2002)
The automobile dealer
sought to have an arbitration award confirmed which appraised business and real
estate that he and his partner sought to divide.
This Court concluded that the arbitration clause in the parties'
agreement was very broad, and therefore, there was no way that the arbitrator
could be said to have exceeded his authority.
Lisa Geremia v. Allstate
Insurance Company, No. 00-355 (June 13, 2002)
The insured pursued a
claim for underinsured/uninsured motorist (UM) benefits against defendant
insurer and demanded binding arbitration. The arbitrators made an award favoring
the insured. The insured filed a petition to confirm the arbitration award and
to alter the calculation of interest made by the arbitrators. This Court
concluded that the trial justice did not err in confirming the award.
State v. Junis Brown, No.
99-325 (June 13, 2002)
The defendant was
convicted of robbing a store proprietor with a gun and with another person. This
Court concluded that the trial justice properly denied defendant’s motion for
new trial based on newly discovered evidence since the evidence was known or
could reasonably have been discovered by defendant by the time of trial.
Furthermore, the trial justice’s jury instructions were proper and its colloquy
with deliberating jurors to answer their questions was harmless error.
Pierre de Bourgknecht v. Thomas
Rossi, in his capacity as Tax Assessor for the City of Providence, No. 01-22
(June 13, 2002)
This Court agreed with
the trial justice that the assessor’s 1994 depreciation adjustment was
arbitrary. The doctrine of res judicata did not apply because there was no
judicial determination of the lower valuation for 1994. Although tax assessment
history could be relevant, each annual assessment of property for taxation was a
separate act and independent of the assessment of the same property for other
years. This Court noted that the landowner did not supported his 1995 claim with
appraisals or expert testimony. The doctrine of administrative finality also did
not apply--for the 1995 valuation to be similar to the 1994 valuation--since the
doctrine did not allow for perpetuation of administrative error.
Marketing Design Source, Inc.
v. Pranda North America, Inc., No. 01-32 (June 12, 2002)
This Court upheld
judgment in the firm’s favor on its breach of contract claim and on the
manufacturer’s counterclaim for breach of the implied warranties of
merchantability and fitness for a particular purpose. The parties' references in
the pleadings to a written agreement satisfied the statute of frauds, and the
manufacturer failed to offer critical evidence in support of its counterclaim
for breach of warranty. Finally, the amount of damages was readily ascertainable
from the invoices and other records submitted by the firm.
State v. David Fritz, No.
01-369 (June 12, 2002)
The defendant was accused
of violating G.L. 1956 § 11-2-1.1, failure to pay child support. The defendant
filed a motion to dismiss the information, claiming that his obligation to pay
child support ended once his parental rights had been terminated and therefore,
he could not be prosecuted under the statute.This Court determined that
termination of parental rights did not terminate parental support obligations.
Because the trial justice improperly found that the amount of defendant's child
support obligation was to be determined from the date that his parental rights
were terminated, the matter was remanded for a determination of whether there
was probable cause that defendant violated §
State v. Roger Goddard,
No. 00-346 (June 12, 2002)
The Court determined that
the trial justice erred in permitting the prosecution to elicit from one of the
State's witnesses the defendant's post-arrest decision to not be questioned
after being given the Miranda warnings. However, the error was harmless beyond a
reasonable doubt because the evidence of defendant's robbing the victim clearly
established that defendant had committed the crime and at the time was not
suffering from any diminished capacity.
Andrew Perry et al v. William
Garey et al, No. 01-37 (June 12, 2002)Also
The trial justice ordered
the corporations to pay royalties per a contract between the parties. This Court
concluded that the consultants were not entitled to royalties pursuant to the
contract, because of the language in a previous contract.
Claire M. Norton et al v.
George A. Courtemanche et al v. SAI Surveying Company et al, No. 01-63 (June
The decedent commenced
litigation against his neighbors alleging that they had built a house on his
land based on the mown-grass line that he believed reflected the true boundary
as represented in an old plat map. This Court affirmed the factual findings and
legal conclusions of the trial justice, rejecting the decedent’s claim. The
trial justice did not hold that a mown-grass line could never be used to prove a
boundary, only that the mown-grass line evidence in the instant case was
inconclusive. Finally, the trial justice’s interpretation of the plat map was
not unreasonable, even though it could have been interpreted differently.
State v. William Holdsworth,
No. 99-468 (June 6, 2002)
The defendant appealed
the denial of his motion to suppress alleging that the arresting officer lacked
reasonable suspicion of criminal activity, and that the trial justice did not
sufficiently inquire about his psychiatric condition before finding him
competent to waive his right to counsel. This Court determined that the
suppression motion was properly denied. However, the trial justice did not
adequately conduct a Chabot inquiry prior to accepting defendant's waiver
of counsel. A competency evaluation and a new trial were needed.
State v. Alfred Silvia, Sr.,
No. 99-438 (June 4, 2002)
The defendant was accused
of molesting his granddaughter in two incidents that allegedly occurred on the
same day. However, the actual date could not be pinpointed. This Court
determined that the evidence was sufficient to support defendant's conviction.
The defendant also challenged the constitutionality of the registration and
notification statute that would eventually apply to him, but this Court
concluded that the defendant had failed to raise it below and therefore, his
challenge was waived.
In re Chaselle S., No.
01-102 (June 4, 2002)
The father appealed the
family court decision terminating his parental rights.This Court noted that DCYF
failed to offer services for a 12-month period, as required by the statute, in
part because father initially questioned his paternity. The Court concluded that
G.L. 1956 § 15-7-7 did not require corrective services during the time that a
putative parent's biological relation to the child was in question. Furthermore,
the father's substantial problems and the best interests of the child favored
the termination of the father's parental rights. Accordingly, the family court
did not err in terminating the father's parental rights.
National Lumber & Building
Materials Co. v. James R. Langevin, in his capacity as Secretary of State et al,
No. 01-113 (June 4, 2002)
The secretary of state's
office approved defendant's use of a fictitious business name after it approved
the plaintiff’s use of the same. The trial justice properly permanently enjoined
defendant from using the name while doing business in Rhode Island.
The Sakonnet Point Marina
Association, Inc. v. Bluff Head Corp. et al v. Harbor Point Properties, Inc.,
No. 01-136 (June 4, 2002)
A corporation purchased
property and received a quitclaim deed which required it to provide 21 parking
spaces for people who belonged to a nearby marina or their guests, either on the
property it purchased or on an adjacent piece of property. The corporation
refused to make 21 parking spaces available on the property it purchased, an
association which subsequently purchased the marina (marina association) sued to
enforce the parking easement. The Court held that the parking easement was
valid, and because the corporation did not purchase the adjacent piece of
property, all 21 spaces had to be provided on the property it purchased.
Robert M. Santucci et al v.
Citizens Bank of RI, No. 01-163 (June 4, 2002)
An elderly woman opened
an 18-month certificate of deposit with a principal balance of approximately $
39,000. She made significant withdrawals from her account and gave the money to
a man who had a history of drug abuse.When her children were appointed guardians
they sued the bank. The Court concluded that the children had no private right
of action against the bank, the bank did not breach its duties or contracts it
had with the elderly woman.
State v. Reynaldo Rodriguez,
No. 00-411 (June 4, 2002)
The defendant was
convicted of drug charges. On appeal
he alleged that the fact that his fingerprints were found on four different
objects associated with a methamphetamine "box lab," was insufficient evidence
to convict him since an innocent explanation was possible. The Court was of the
opinion that the totality of the circumstantial evidence and the fingerprint
evidence against defendant were sufficient for a jury to conclude beyond a
reasonable doubt that defendant possessed drug paraphernalia by dominion and
control and possessed heroin with the intent to deliver.
Rachel F. Kennett et al v.
Richard Marquis et al, No. 01-128 (June 4, 2002)
The Court affirmed the
trial justice’s decision that the agent had not acted outside of her agency
relationship with the sellers and buyers. Therefore,
the defendant-agent was entitled to judgment as a matter of law.
In re Brianna D., No. 01-5
(June 3, 2002)
This Court affirmed the
family court decree terminating the mother’s parental rights.
The mother was a chronic substance abuser, attempted to treat her bipolar
disorder with illegal drugs, and was not motivated toward recovery. Furthremore,
she failed to abide by case plans.
Joao Mello v. Joseph DaLomba
et al, No. 00-375 (June 3, 2002)
A former employee filed
suit alleging that his former employer demanded kickbacks. At the close of a
jury trial, the trial court granted the employer's motion for judgment as a
matter of law. This Court determined that (1) the trial justice did not err by
bifurcating the trial on the issues of liability and damages; (2) the trial
justice erred by relying on the absence of a threat of bodily harm to the
employee as a basis for dismissing the employee's claims under state law,
because G.L. 1956 §§ 11-42-1.2, 11-42-2, contemplated liability for threats of
non-bodily harm; (3) the trial justice erred by assuming that the employer could
not be held civilly liable under G.L. § 9-1-2 for violating federal statutes;
and (4) the trial court also failed to evaluate the employee's claim that the
employer had violated G.L. 1956 §§ 28-14-2, 11-41-4.
State v. Sory Kaba et al,
No. 99-113 (June 3, 2002)
The case concerned the
delivery of a package from Thailand, addressed to what the police decided was
defendants' address. The package contained heroin and defendants were arrested
after picking up the package from a post office. One of the defendant's made
incriminating statements after being confronted by the police. This Court held
the statements were made absent police interrogation and voluntarily after his
arrest. Having concluded that the evidence was sufficient to withstand the more
stringent review applicable to a motion for a new trial, it followed that the
evidence was also sufficient to withstand a motion for a judgment of acquittal.
Steven Biron et al v. Dennis
Falardeau, No. 00-421 (May 31, 2002)
On appeal, the Court
advised that civil contempt was established when it was proved by clear and
convincing evidence that a lawful decree was violated. The Court agreed with the
trial justice that there was sufficient evidence to show that the neighbor
violated the original restraining order by engaging in contact with plaintiff
property owners that amounted to more than mere coincidence. In addition, the
Court concluded that the terms of the order restraining the neighbor from
"interfering, molesting, harassing, or contacting" the property owners was
sufficiently clear for the neighbor to understand that he was to refrain from
contacting the property owners as he did. Accordingly, the Court affirmed the
trial justice’s civil contempt finding.
David Oberlander v. General
Motors Corp., No. 01-109 (May 31, 2002)
The buyer argued on
appeal the trial court improperly granted summary judgment. The Court advised
that, in order to establish liability for breach of the implied warranty of
merchantability, a plaintiff must prove that the product was defective, that it
was in a defective condition at the time it left the hands of the seller, and
that said defect was the proximate cause of the injury. Therefore, since the
buyer did not present any evidence that the truck was defective at the time he
bought it, that the defect was attributed to the manufacturer, or of diminished
value of the truck, summary judgment was properly granted.
State v. David A. Andreozzi,
No. 00-289 (May 31, 2002)
The defendant was charged
with domestic disorderly conduct, which was later modified to simple assault for
allegedly raising his hand to his wife. The Court rejected defendant’s claimed
errors on appeal, concluding that the trial justice did not abuse his discretion
in permitting inquiry into defendant's prior bad conduct. Any error was cured by
the trial justice’s cautionary instruction to the jury that the evidence was
admitted for the limited purpose of showing defendant's motive or intent.
State v. Jonathan P. Quaweay,
No. 00-288 (May 29, 2002)
The defendant filed a
motion to reduce his sentence, arguing that a reconsideration of the severity of
the offense justified a reduction. The Court on appeal noted that, pursuant to
R.I. Super. Ct. R. Crim. P. 35, the motion to reduce the sentence needed to be
filed within 120 days of the final judgment of conviction, which was on or
before July 30, 1996. The motion was not timely. Moreover, even if the motion
was filed in time, the superior court did not err in refusing to reduce the
State v. Marc A. Girard,
No. 01-282 (May 28, 2002)
The defendant appealed
from his murder conviction alleging that his confession was involuntary. The
Court looked to the totality of the circumstances in evaluating the
voluntariness of defendant's confession. It noted that he had not been in
custody when he first spoke with police, and that he received many Miranda
cautions, and that every time he was cautioned, he executed a waiver. The Court
further rejected defendant’s other claimed errors.
Spencer Potter v. Mary
Crawford, in her capacity as Treasurer of the Town of Jamestown, No. 01-94
(May 24, 2002)
The owner negotiated a
settlement of a dispute with the chairman of the town council over a wharf
construction project that allegedly infringed on his riparian rights. The owner
prepared a written agreement. However, the town notified the owner that it would
not sign the agreement. The town contended that the chairman lacked both actual
and apparent authority to bind the town to the oral agreement. The town also
attacked the owner’s substantive complaint. On appeal, the Court rejected the
owner’s allegation that the chairman had the authority to bind the town.Further,
even if the owner's riparian boundary had been infringed upon, there was no
showing that his riparian rights in fact had been adversely affected despite
Liberty Mutual Insurance
Company v. Bartolo Tavarez, Administrator of the Estate of Bartolo A. Tavarez,
No. 00-405 (May 23, 2002)
On appeal, the insurer
sought review of a trial justice’s authority to add prejudgment interest and
cost to an arbitration award. The
Court upheld the award because of the insurer's egregious breach of contract in
refusing coverage for the claim and in failing to arbitrate it in a timely
manner. The award of interest was appropriate "further relief" in the
declaratory-judgment action, under G.L. 1956 § 9-30-8. Nevertheless, the trial
justice’s calculation of interest was erroneous as was its award of certain
litigation costs, such as expert witness fees.
Patricia Lett v. The Providence
Louis Giuliano v. The Providence Journal Company
No. 00-62 (May 23, 2002)
The plaintiffs appealed
from a motion to dismiss granted in the newspaper’s favor. Both also argued that
the trial justice erred in not granting their motions to vacate on the basis of
newly discovered evidence. This Court upheld the trial justice’s finding that
plaintiff’s had committed a fraud on the court. There was also no abuse of
discretion in his determination that plaintiffs misled the trial justice
concerning one plaintiff’s ability to testify. This Court otherwise affirmed the
decision of the trial justice.
Joyce Rezendes v. Daniel
Beaudette et al, No. 2000-365 (May 22, 2002)
The employee brought a
claim of malicious prosecution against the employer after the employee was
charged with larceny. On appeal, the employee argued that the trial justice
erred in his motion for new trial and judgment as a matter of law analyses. The
Court rejected the employee’s claims.
In re McBurney Law Services,
Inc., No. 2001-159 & 2000-11 (May 21, 2002)
A shareholder and the
corporation’s counsel set forth the shareholder’s percentage of owned shares in
writing to settle a dispute.The shareholder later sought to modify the
stipulation and the panel granted the modification. On appeal the Court
determined that the stipulation could not be challenged since it was a
David Butera d/b/a Butera
Building and Design v. Richard N. Boucher et al, No. 99-409 (May 21, 2002)
The buyers terminated the contract to build a house with the builder alleging
failure to accomplish substantial performance. The builder sued and was awarded
lost profits. The Court on appeal concluded that (1) the trial court did not
abuse its discretion by quashing two subpoenas duces tecum that were filed by
the buyers on the eve of trial and were overbroad; (2) the buyers breached the
contract by terminating it without justification before the completion date and,
as a result, the builder was entitled to recover his lost profits even though he
had not substantially performed; (3) the record supported the jury's verdict in
favor of the buyers on the builder's claim for slander and the trial court did
not err by denying the builder's motion for a new trial on that claim; and (4)
the trial court did not err when it granted the buyers' motion for judgment as a
matter of law on the builder's claims for malicious prosecution and abuse of
City of Newport v. Allen Lama et
al, No. 01-1 (May 21, 2002)
The trial justice found
that because the union had initially negotiated the terms of the occupational
injury provision in the collective bargaining agreement (CBA), the city could
not apply an amended city ordinance to the CBA absent further negotiation. On
appeal, the Court concluded the arbitrator's award should not have been
confirmed because she manifestly disregarded the clear and unambiguous language
of the contract. The appellate court noted the arbitrator incorrectly found that
the reference to the ordinance in the CBA was capable of different meanings
because, in the absence of a limitation on the city's authority to amend, the
ordinance implied that the parties accepted such a possibility.
State v. Feole, No. 99-241
(May 21, 2002)
The defendant was charged
with solicitation of murder. On appeal, the defendant contended that the trial
justice infringed on his Sixth Amendment rights.
This Court concluded that (1) the resolution adopted by the trial court
afforded defendant his right to testify and promoted the fair and expeditious
resolution of the case without unduly delaying the trial; (2) defendant was not
deprived of his right to counsel; and (3) the trial court erred by asking
defendant in the jury's presence if he wanted to testify but because defendant
did not object during that exchange or brief or argue the issue on appeal, the
issue was not preserved for review.
Donald Tinney v. Kevin Tinney,
a/d/a Kevin Jacob Koellisch et al, No. 2001-51 (May 20, 2002)
In this declaratory
judgment action, the natural son asked the court to declare that the adopted son
was not entitled to intestate inheritance. The trial court denied the motion and
granted the adopted son’s motion for the same. On appeal, the natural son
maintained the legislature did not intend to give an adopted adult the same
rights as an adopted child. Upon reviewing the statutory history of adoption in
Rhode Island, the appellate court determined it was clear that "child" meant the
son or daughter of a parent, regardless of age.
State v. Derick Hazard, No.
99-127 (May 16, 2002) (corrected)
On appeal, the defendant
challenged several of the trial justice’s rulings.
The Court concluded that the trial justice did not err by admitting the
witness's testimony as a credible and reliable witness and not admitting the
recantation for the reason that the witness's first statements were corroborated
and his recantation could be attributed to fear of repercussions. The other
inconsistencies of the witness's testimony were for the jury to decide. The
superior court was not a credibility gatekeeper. The appeals court further noted
that the evidence of defendant's alibi did not warrant a new trial based on
newly discovered evidence.
Michael Parrella, Donna Ann
Parella, and Michael Anthony Parrella v. Dr. Kathleen Cote Bowling and Women and
Infants Hospital of Rhode Island, No. 00-296 (May 16, 2002)
The parents brought a
malpractice action after their son was born with cerebral palsy, contending that
his condition was caused by oxygen deprivation during a critical pre-delivery
period when the physician could not be reached on her pager. On appeal the Court
sustained the jury verdict.
Colleen Lee v. Rhode Island Council 94,
A.F.S.C.M.C., AFL-CIO, Local 186 v. Town of Burrillville, by and through its
Treasurer, John Manville, No. 00-368 (May 16, 2002) Please note, this
file is in Microsoft Word. Adobe is giving me error messages. As
soon as I can create it in pdf, I will change it. Sorry for any
The employee sued the
union alleging a breach of the duty of fair representation, after the union
failed to file a timely request for arbitration on her behalf. The union filed a
third-party complaint against the town seeking indemnification. On appeal, this
Court was not convinced that the failure to perform the ministerial act of a
timely demand for arbitration amounted to mere negligence. The appellate court
concluded that when the neglect of the union completely extinguished the
employee's right to a determination of the merits of her termination, the
union’s conduct amounted to unfair representation.
State v. Peter Apalakis,
No. 00-439 (May 15, 2002)
The defendant appealed
the trial justice’s denial of his motion to suppress. The defendant argued that
by handcuffing him and isolating him in order to elicit incriminating
statements, the officers conducted an unreasonable seizure in violation of the
Fourth Amendment. This Court rejected defendant’s arguments.
Marie Medeiros et al v. Anthem
Casualty Ins. et al, No. 00-261 (May 13, 2002)
The first and second
decedents were killed in a car accident when they were struck by an uninsured
drunk driver on their way home from a baseball game. At the time of their
deaths, each decedent owned part of two closely held corporations that carried
separate insurance policies providing coverage for two cars, neither of which
was involved in the accident, and uninsured motorist coverage for the
corporation, which was the named insured party. The trial court properly granted
summary judgment in favor of the insurers because the decedent was not entitled
to uninsured motorist coverage - the corporation was the insured party, not the
decedent. There was no direct evidence that the decedents were engaged in any
business-related activity at the time of the accident.
Santina Siena, M.D. et al v.
Microsoft Corporation, No. 00-472 (May 9, 2002)
The doctor and the law
firm alleged that the computer company unlawfully exercised its monopoly power
by licensing its operating system at a price that exceeded that which it could
have charged in a competitive market. Both parties had purchased the computers
with the software already installed, however, neither purchased the computer
from defendant directly.
The Court affirmed the Superior Court finding that neither party had
standing because they were indirect purchasers.
State v. George Raymond,
No. 00-260 (May 9, 2002)
The defendant appealed from the trial justice’s denial of his motion for new
trial. On appeal, this Court
affirmed. The defendant was accused of holding a knife to the taxicab driver’s
neck, and ordering him to drive.
In reviewing the motion for new trial, the trial justice was satisfied
that the driver's testimony was truthful. Furthermore, defendant did not dispute
his position in the taxicab, nor the fact that he was carrying a knife in his
lap, which corroborated the driver's testimony.
David L. Carpentier v. State
of Rhode Island, No. 00-339 (May 9, 2002)
The defendant plead nolo
contendere to charges of rape and kidnapping. He later applied for
post-conviction relief.This Court concluded that his appeal was untimely since
no final judgment had been entered following the post-conviction relief
State v. Dennis Farias, No.
00-38 (May 9, 2002)
The defendant was accused
of sexual assault.At trial, a lifeguard testified for the State that she
confronted defendant and told him that his touching and rubbing other club
members had to stop. The defendant argued on appeal that the trial justice erred
by admitting evidence of prior uncharged acts of sexual touching and that a
limiting instruction regarding such testimony should have been given. This Court
noted that in cases in which prior bad act evidence could be used for a variety
of reasons, a limiting instruction explaining the limited purpose for
considering the evidence was proper and the failure to give a limiting
instruction, in this case, was reversible error.
In re Andrey G., No.
00-406 (May 9, 2002)
The defendant was charged
with first and second-degree child molestation.On appeal, defendant complained
of a variety of errors. The Court affirmed the convictions, determining that the
trial justice did not abuse her discretion in admitting hearsay evidence and did
not consider evidence of other uncharged acts.
JH v. RB, No. 00-359 (May
The mother filed an
action to establish the paternity of her child in Rhode Island.She alleged that
her former boyfriend was the father, and not her ex-husband.However, a Florida
divorce judgment concluded that ex-husband was the father of the
child.Therefore, the mother could not now contest the Florida judgment.The trial
justice properly applied the Full Faith and Credit Clause.
Rhode Island Laborers'
District Council et al v. City of Providence et al, City of Providence et al. v.
Rhode Island Laborers' District Council et al, No. 99-411 (May 8, 2002)
The union claimed that 85
employees were municipal employees and should be parties to the collective
bargaining agreement (CBA). The union reached an agreement with the mayor's
assistant that recognized 27 of the employees. However, the city's council did
not ratify that agreement. Arbitation was resolved in the union’s favor. This
Court found that the grievance was not arbitrable because the addition of the
employees was a substantive amendment ot the CBA which required ratification.
Robert Skaling et al. v. Aetna
Insurance Company and Travelers/Aetna Insurance Company as successor to Aetna
Insurance Company, No. 00-325 (May 8, 2002)
The insured was injured
attempting to rescue a person from an underinsured vehicle and the insurer
denied him UM benefits. This Court concluded that even though insured did not
prevail on judgment as a matter of law on his breach of contract claim, he could
still claim bad faith. Under G.L.
1956 § 9-1-33, the question of the insurer's bad faith in refusing to settle the
insured's claim against it was to be determined by a trier of fact.
Joanne Woodstock v. Everet
Sherman et al, No. 00-274 (May 8, 2002)
The trial justice granted
the motion for new trial filed by the motorist after the jury found in the
driver’s favor.On appeal, the Court determined that the trial justice committed
clear error in granting the motion, as it relied twice on purported evidence
that the driver saw the motorist's vehicle slide before coming to a stop at the
intersection, even though neither party testified to that fact at trial.
David J. Caito v. Mauro Juarez,
alias and General Dry Wall Services, Inc., No. 01-9 (May 3, 2002)
The buyer refused to pay
the seller an additional $10,000 that the seller demanded after the buyer took
ownership of the property. The seller refused to appear at the closing and the
buyer demanded specific performance. The Court affirmed the trial justice’s
Board of Governors for Higher
Education and the State of Rhode Island through its Department of Administration
v. Infinity Construction Services, Inc., No. 00-469 (May 3, 2002)
A contractor entered into
an agreement with the State and the state board to build a university facility.
The contract contained an arbitration clause. The
contractor hired a subcontractor to do the excavation and when the subcontractor
encountered site problems, the contractor assigned its arbitration rights to the
subcontractor. This Court concluded that the trial justice properly awarded
injunctive relief. The contractor could not assign its arbitration rights to the
subcontractor. Furthermore, the subcontractor could not invoke the pass-through
doctrine because it was not in privity with the state.
Small Business Loan Fund
Corporation v. David M. Gallant et al, No. 00-380 (May 3, 2002)
The appeal was dismissed
for failure to order a transcript within the 10-day period set forth in R.I.
Sup. Ct. art. I, R. 10(b)(1). No showing of excusable neglect was made.
Ralph Sweet v. Pace Membership
Warehouse, Inc., No. 00-94 (May 2, 2002)
The contractor alleged that he continued to suffer from effects of the accident
and that his injuries were permanent.
A videotape arguable could have shown that the contractor was engaging in
strenuous activity. The trial
justice excluded the videotape. On
appeal, the Court held that it was an abuse of discretion because the videotape
was impeachment evidence.
Anthony DiCiantis v. Ashbel T.
Wall et al, No. 01-28 (April 25, 2002)
The inmate filed a claim
under 42 U.S.C. § 1983 alleging that the prison warden had infringed on his
constitutional rights by placing him in administrative segregation without a
hearing.The Court determined that the Superior Court had no jurisdiction to
review alleged violations of Morris Rules.Further, the inmate had no liberty
interest in the disciplinary proceedings, and therefore he had no constitutional
right of judicial review of the same.
Aetna Bridge Company v. State
of Rhode Island Department of Transportation, No. 99-391 (April 19, 2002)
The bridge company
contracted with the department to do bridge reconstruction work. The bridge
company underestimated the scope of certain work, and was required to employ an
additional 1,650 work hours to complete the project. The department refused to
pay. An arbitrator gave an award in favor of the bridge company. The department
alleged that the bridge company lacked standing to bring a pass-through claim.
The Court concluded that if the bridge company's claim was a pass-through claim
with no concomitant liability to the bridge company, then it would not be
arbitrable pursuant to the Severin doctrine. The Court remanded for a
determination of the substantive arbitrability of the claim.
Wanda MacTavish v. Rhode
Island Hospital, No. 00-504 (April 19, 2002)
The patient claimed the
trial justice erred in granting the hospital's motion for summary judgment.The
hospital had alleged that the patient’s claim could not survive summary judgment
because she did not plan to introduced medical expert testimony at trial to
support her slip-and-fall claim.This Court ruled that in the absence of any
specific hospital order or existing duty requiring the hospital nurse to provide
ambulatory assistance to the patient, expert opinion was necessary to establish
both the hospital's duty of care and a breach of that duty by the nurse.
Therefore, the appeal was denied and dismissed.
Linda Tucker et al v. Edmund
Kittredge et al, No. 00-473 (April 19, 2002)
The trustees had filed
suit to enjoin the landowner and two neighbors from interfering with an alleged
public right of way. The neighbors moved for a preliminary injunction to enjoin
the trustees from interfering with the right of way. The landowner was not
present at the hearing on this motion, nor had he received notice of it. The
trial justice ordered that all obstacles on the right of way, including a fence
erected by the landowner, had to be removed. This Court reversed because under
R.I. Super. Ct. R. Civ. P. 65(a)(1), it was error to grant the trustees’ motion
without notice to the landowner. Under Rule 7(b)(1) the landowner was entitled
to receive a written motion requesting the relief granted to the trustees and,
under Rule 6(c) he was entitled to at least 10 days’ notice of a hearing on that
State v. Carl J. Thomas,
No. 00-486 (April 19, 2002)
The defendant entered a
plea of nolo contendere in the middle of trial, against the advice of his
counsel. He explained that he wished
to spare his wife further anguish. After thoroughly discussing the consequences
with him, the trial justice accepted his plea. The defendant later sought
post-conviction relief on the grounds that since he was not taking his
anti-psychotic medication at the time he entered his pleas, he was not competent
to enter them. The trial justice rejected the application and this Court
affirmed. On appeal, the Court re-examined the record of the plea proceedings
and found that although applicant mentioned that he was not taking his
medication, the trial justice explicitly inquired into his understanding of the
proceedings, thoroughly explained matters to applicant, and found on the record
that applicant’s actions were knowing and intelligent.
Ann Chiaradio et al v. Francis
Falck, M.D., et al No. 00-199 (April 15, 2002)
The patient filed a
medical malpractice lawsuit against her ophthalmologist alleging that she was
partially blinded because of his negligent performance of eye surgery. In the
middle of trial, the physician’s counsel sought to commence discovery regarding
a theory that a subsequent eye surgery had caused the blindness, based on a
videotape of that surgery.The trial justice ordered the physician to pay the
extra expert witness costs incurred by the patient in complying with these late
discovery requests because the physician was notified of the videotape in an
earlier deposition but did not pursue the theory. The Court reviewed the order
on an interlocutory appeal, since the physician's right to defend himself was at
stake, and held that the order improperly limited the physician's right to
defend himself. However, if the patient succeeded on the merits, the extra costs
caused by an expert witness should be awarded to the patient.
Gerald K. Adams v. Uno
Restaurants, Inc. d/b/a Pizzeria Uno Restaurant and Bar, No. 00-266 (April
The employee sued the
employer alleging that he was retaliated against for reporting a health code
violation.The employer moved to set aside the jury's verdict for lack of medical
testimony on whether the employee's emotional distress and humiliation
ordinarily and naturally followed from the employer's actions.The Court
concluded that it was error for the trial justice to grant the employer’s
State v. Jean Bautista Guzman,
No. 00-478 (April 12, 2002)
The defendant was
convicted of second-degree murder and two weapons offenses and received three
consecutive sentences for shooting a victim who allegedly threatened him. The
trial justice modified the judgment so that the two longer sentences ran
concurrently.The defendant appealed alleging that the trial justice abused his
discretion in not modifying the sentence for illegal firearm possession. This
Court determined that under Rule 35, there was nothing unreasonable about the
decision to make defendant serve an extra five years.
Joseph Roe v. Louis E.
Gelineau et al, No. 00-136 (April 12, 2002)
The victim alleged
personal injury claims against a priest and the catholic church. The
defendants alleged that the statute of limiations had expired. The victim
alleged that under G.L. 1956 § 9-1-14, the statute was tolled because he was
of unsound mind. The Court determined that while repressed recollection
could qualify as an unsound mind disability sufficient, under § 9-1-19, to
toll a limitations statute, the victim did not show enough evidence that his
alleged repressed recollection was sufficiently relevant, reliable, and
scientifically and/or medically established to require a hearing on whether
it constituted unsound mind.
State v. Juan Tilson, No.
00-432 (April 9, 2002)
The defendant alleged
that the state engaged in prosecutorial misconduct because it brought a
two-count information against defendant because he failed to plead guilty. The
State's reasons for bringing the additional charges were not based on improper
considerations, such as race or religion. Furthermore, the defendant was
informed of the state’s intentions during negotiations.The Court concluded that
there was no prosecutorial misconduct but questioned the State's action in
holding defendant in jail for three weeks after failing to notify his attorney
of the new information, and cautioned against such practice, absent
State v. Adrian Bustamante,
No. 01-116 (April 4, 2002)
The defendant was
convicted of murder and conspiracy to commit murder. The jury determined the
murder was committed with torture and aggravated battery. The defendant
subsequently filed a motion to reduce his sentence.
The defendant failed to meet his burden to succeed on a Rule 35 appeal.
Judith J. Oliveira v. Steven A.
Lombardi et al; Michael R. Ayers v. Joseph A. Tiberi et al, No. 2001-27
& 2000-273 (April 3, 2002)
In case for negligent
operation of motor vehicles, lessors of motor vehicles said they could not be
vicariously liable fro a consensual operator’s negligence because they did not
"own" the vehicles under G.L. 1956 §
31-33-6. The Court held the lessors,
as legal titleholders and registered owners, were "owners" under § 31-33-6. It
was irrelevant whether the lessor was a long-term lessor or a short-term rental
agency. G.L. 1956 § 31-34-4, making motor vehicle lessors vicariously liable for
the vehicles' negligent operation, was not limited to entities in the business
of renting motor vehicles, but made any owner liable. The statute's reference to
"rented" rather than "leased" vehicles was of no consequence, and its
application was not limited to short-term rental agencies. Relevant regulations
required the lessors to provide proof of financial responsibility, showing they
were to be an additional surety to satisfy a negligence claim.
Kevin A. Cahill v. William M.
Gagnon, alias, et al No. 2000-371 (April 2, 2002)
A motorist filed a
personal injury action against a state transit authority and one of its bus
drivers after he was injured in a motor vehicle accident. During a jury trial,
the trial justice refused to charge the jury on the doctrine of spoliation.In
addition, the trial justice refused to admit a police report into evidence
because it was based on hearsay. Finally, the trial justice refused to allow the
motorist to impeach the bus driver by showing that his safety record listed a
total of 31 entries but did allow the motorist to ask the bus driver a general
question about deposition testimony he gave where he admitted having only two or
three accidents. The Court affirmed the various decisions of the trial justice.
Louis J. Giuliano v. Louis A.
Pastina, No. 01-88 (March 29, 2002) (Corrected)
A shareholder sued a
person who worked at the racetrack after he learned that the employee had
allegedly participated in illegal betting. The motion justice decided that the
employee did not owe a duty to the shareholder, that his conduct did not cause
an injury to the shareholder, and that the shareholder's claim, if valid,
belonged to the corporation and was a shareholder derivative action. Because the
shareholder failed to comply with Rule 23.1 on derivative actions, the complaint
was dismissed. The Court on appeal concluded that the shareholder's complaint
disclosed no compliance with Rule 23.1, and therefore, was properly dimissed.
Further, the motion justice did not abuse her discretion by denying the
shareholder's motion for letters rogatory or by staying discovery.
Kevin J. Tierney et al v. The
Department of Human Services, No. 01-342 (March 28, 2002)
The applicant for
Medicaid benefits was found financially ineligible based on information from
bank accounts.Accounts were held jointly with son and sister. The applicant died
prior to her appeal from agency’s denial of benefits.The son and sister
proceeded with the appeal. The Court concluded that the relevant issue on appeal
was whether applicant had access to the funds in those accounts to pay the
expenses of her last illness. There was no dispute she had such access. Thus,
the appeal was denied and dismissed.
Eloise Branch v. William
Quattrocchi, Jr., No. 00-518 (March 28, 2002)
The Court concluded that
the best interest of the child standard would be employed when considering
petitions to change the name of minor children. The family court should consider
numerous factors in deciding what was in the child's best interest including the
names of other members of the child's household, what the child's name was on
the birth certificate, and the length of time that the child had used the
surname. In this case, the family court failed to conduct the appropriate
inquiry when granting a petition to change a surname.
Irving A. Strynar v. Jack
Rahill, Treasurer for the City of Pawtucket et al, No. 00-247 (March 28,
The former detective
sought damages for constitutional injuries after municipal officials allegedly
improperly delayed granting him his request for injured on duty benefits. The
Court concluded that the IOD statute was an exclusive remedy that barred
detectives claims against municipal officials for intentional misconduct. The
detective waived constitutional challenge for failure to raise it in his
John Paul Bernier v. Andrew
Lombardi, No. 00-113 (March 27, 2002)
The tenant claimed
retaliatory eviction.The trial justice ruled that the injunctive relief issue
was moot, as the tenant had vacated the apartment. Based on her assessment of
the evidence and witnesses, the trial justice found that the tenant's claim for
damages lacked merit and that sufficient evidence existed to support a judgment
for the landlord. The Court on appeal concluded that the trial justice did not
err in revisiting the district court's decision, since the statute provided for
a de novo review. The Court affirmed the trial justice’s findings.
State v. Gerald Marshall,
No. 99-401 (March 22, 2002)
Defendant made numerous
telephone calls to his estranged wife, seeking to reconcile their marriage,
and, when his proposals were rejected, he became abusive. The Court held the
clear language of the governing statute, G.L. 1956 § 11-35-17(a), required
the State to prove beyond a reasonable doubt that at the time defendant
initiated his telephone call to his wife, he did so for the intended purpose
of threatening her or subjecting her to statutorily proscribed language.
Therefore, the trial justice erred by instructing the jury that defendant's
intent need not have existed when he initiated the telephone call.
State v. Oscar Casas, No.
01-522 (March 18, 2002)
At the beginning of the
trial, defendant moved for a mistrial when an inexperienced prosecutor
referred to evidence that was the subject of an as-yet unruled upon motion
in limine. The trial justice granted the mistrial.
The defendant then moved to dismiss the indictment against him, on
grounds that he had been compelled to move for a mistrial by the
prosecutor's misconduct. The Court declined to further extend the rule under
which it would grant double jeopardy dismissals in cases where the
prosecutor intentionally goaded a defendant into moving for a mistrial.
There was no evidence that the prosecutor's statement was anything other
than a mistake, although she should have known better, so the extreme relief
of dismissal was not warranted.
State v. Jean Valcourt,
No. 00-322 (March 14, 2002)
The Court rejected
defendant’s various claims of error on appeal. The trial justice did not
commit reversible error by refusing to disqualify a juror and declare a
mistrial. The defendant waived the issue of the denial of his motion for
judgment of acquittal, as defense counsel agreed that the time frame for the
offense would be limited. The record disclosed that defendant posed a single
objection to the extensive testimony of other assaults. An appropriate
limiting instruction was immediately given by the trial justice. The trial
justice did not err in admitting evidence about other assaults in the
circumstances. Further, the trial justice appropriately sought to eliminate
any undue prejudicial effects from the evidence by giving a limiting
instruction several times over the course of the trial and during his charge
to the jury.
State v. Leo Belanger, No.
00-419 (March 13, 2002)
The Court rejected
defendant’s various claims of error on appeal. First, the Court determined that
the trial justice did not err in denying a motion for judgment of acquittal
since it would require him to weigh evidence or pass upon the credibility of the
witnesses. The defendant failed to object at the close of instructions and
waived any objections. A medical report was admissible hearsay. The
defendant's statements, in which he sought to justify his criminal behavior,
were probative of defendant's consciousness of guilt and were, therefore,
relevant and admissible testimony. The evidence was more than sufficient to
convince a jury of defendant's guilt beyond a reasonable doubt. A finding of
violation of probation based on a lesser standard of proof, mere reasonable
satisfaction that a violation had occurred, was clearly established.
Wladsylaw Sobanski v. Steven
Donahue et al, No. 99-467 (March 13, 2002)
A police officer was
attacked by a dog when he was investigating a prior dog attack.
He sued the landlords who raised the police officer's rule as a defense
to the complaint. The Court deemed the rule to be dispositive of the appeal and
fatal to the police officer's claim. The police officer clearly was aware that a
dog was kept in the neighboring yard and that the dog had recently escaped and
attacked a neighbor. Although he was neither called to the scene by the
landlords nor injured on their property, both defendants were responsible for
his presence in the neighbor's yard because they permitted a vicious dog to be
housed on the premises.
Neil F. Keenan v. LA. Caroline
Somberg, No. 00-203 (March 11, 2002)
The family court had
subject matter jurisdiction over this paternity suit, even though the
plaintiff was found not to be the father by DNA testing.The plaintiff failed
to establish that the was the child’s de fact parent.The plaintiff and the
mother never agreed that the he would be a parent to the child, nor did the
mother hold him out to be the child's father. The plaintiff never resided
with the mother, and presented no evidence establishing any indicia of
parenthood. The family court justice did not abuse its discretion by
concluding that it was in the child's best interests to deny visitation to
Individually and as Administratrix of the Estate of Michael Malinowski,
a/k/a Michael Anthony Chaffee-Malinowski v. United Parcel Service, Inc.,
et al, No. 00-305 (March 11, 2002)
The mother's brought a
wrongful death action against the driver of a truck that struck and killed
her son, and the parcel service that owned the truck.The jury found in favor
of the truck driver and the UPS. After the first appeal, a new trial was
granted. A second jury found for UPS.The Court upheld the judgment and
rejected the mother's argument that she should have been allowed to present
evidence of the driver's actual speed as recorded on the tachograph in his
truck, despite considerable evidence that it had not been functioning
properly. Furthermore, the evidence simply did not show that the driver had
been negligent as a matter of law.
Dianne Lecours v. Norman E.
Lecours, No. 00-240 (March 8, 2002)
The husband was
required to provide his wife with health insurance and carry enough life
insurance to satisfy the mortgage according to a settlement agreement. The
agreement was incorporated into but not merged into the parties' divorce.
The wife brought a contempt proceeding to enforce the agreement. The husband
argued on appeal that the the family court did not have jurisdiction over
the contempt proceeding. The Court held that a family court's subject matter
jurisdiction under G.L. 1956 § 8-10-3 reached all kinds of agreements in
connection with divorce. Since the husband failed to object in the trial
court to the new consent agreement, he was bound by the modified contract.
Lucinda Morra v. Daniel Harrop,
No. 00-149 (March 6, 2002)
The trial justice struck
the doctor’s expert testimony both on substantive and procedural grounds. On
appeal, the Court concluded that the trial justice erred.
The expert witness testified that the father’s death was a suicide.
The trial justice compounded his error in striking the testimony by
denying the motion for a brief continuance to permit the daughter to recall the
doctor in an attempt to clarify his testimony and avoid the inevitable judgment
as a matter of law.
In re Rule Amendments
to Rules 5.4(a) and 7.2(c) of the Rules of Professional Conduct No.
00-436 (March 4, 20002) (Amended)
The Ethics Advisory
Panel requested the Court to consider proposed amendments to the state rules
of professional conduct and allow attorneys to share their court-awarded
fees with nonprofit entities. The Court declined to do so because it would
be at variance with the legislature's public policy and would condone
criminal conduct by members of the bar, nonprofit corporations, and
State v. Joseph M. Paul,
No. 00-252 (February 28, 2002)
The defendant alleged
on appeal that he did not knowingly and voluntarily waive his rights during
the police interrogation, and that the admission of his confession was
error. In the instant case, the evidence in the record amply supported the
fact that defendant knowingly and voluntarily waived his rights. The trial
justice and the reviewing court found absolutely no credible evidence which
in any way suggested that the police officers mistreated, or otherwise
created a coercive atmosphere at the police station.
Dovenmuehle Mortgage, Inc. v.
Daniel J. Antonelli, No. 00-332 (February 15, 2002)
The debtor purchased a
mortgage from the company.His subsequent failure to pay taxes on the land
permitted the city to sell the property at a tax sale. Both the company and
the debtor received notice of the sale and failed to discharge the debt. The
debtor alleged that the company had a duty to discharge the debt.The
Court rejected the argument, noting that pursuant to the contract, the
company could choose whether to pay the taxes.
Maria Tavares v. Deysi Barbour
et al, No. 00-430 (February 15, 2002)
A child was injured
crossing the street by a passing motor vehicle.The mother sued alleging that the
driver of the vehicle that the child exited was negligent by discharging her
daughter across the street from her destination.The Court rjected the argument,
noting that the mother had duty to assist her daughter, since she exited the
vehicle with her. Furthermore, the dirver had no duty snce she was legally
Richard T. Nassa v.
Hook-SupeRx, Inc., et al, No. 00-171 (February 15, 2002)
The employee sued the
employer and some of his former co-workers for defamation, intentional
infliction of emotional distress, and employment discrimination. The trial
justice determined that his defamation claims were barred by the workers'
compensation exclusivity provision of G.L. 1956 § 28-29-20. On appeal, the Court
held that, even though injuries resulting from intentional torts were not
excluded from the doctrine's coverage, defamation claims fell outside the
exclusivity provision, as they allowed recovery for injury to interests that
were not protected by the statute, which provided compensation for physical and
psychological injuries, but not for injuries to intangibles, such as reputation.
In re Rule Amendments to Rules
5.4(a) and 7.2(c) of the Rules of Professional Conduct No. 00-436
(February 15, 2002) (Corrected)
Amico's Incorporated, d/b/a
Pal's Family Restaurant et al v. Thomas Mattos et al, No. 01-118
(February 15, 2002)
The town of East
Greenwich, enacted an ordinance that placed more stringent limitations on
smoking in bars and restaurants than were provided under state statutes. A group
of restaurant and bar owners challenged the ordinance as beyond the powers of
the municipal body that enacted it. The Court upheld the ordinance as an
authorized exercise of home rule powers pursuant to R.I. Const. art. 13, § 2.
G.L. 1956 §§ 5-24-1, 3-5-5 specifically empowered local governments to license
eating establishments and the sale of alcohol, and the ordinance related to the
underlying purposes of both types of licensing authority. Furthermore, statewide
legislation regulating smoking did not evidence an intent to occupy the entire
field of smoking regulation, but only to set a regulatory floor that local
governments were free to exceed.
State v. Luis Vega, No.
99-398 (February 14, 2002)
The defendant appealed
after the trial justice issued an Allen instruction.
The Court ruled that by failing to object at trial to the instructions,
defendant failed to preserve any inadequacies or errors and was precluded from
raising such arguments for the first time on appeal. Finally, the trial justice
did not err in denying defendant's motion for a new trial. He considered the
evidence in light of his charge to the jury and concluded that defendant did in
fact place his hand on the victim's breast, as alleged.
State v. Christopher
Golembewski, No. 00-423 (February 14, 2002)
The Court reviewed a
motion for new trial and determined that the trial justice erred in denying
the motion by failing to follow the appropriate steps. After stating that he
believed the jury verdict was against the weight of the evidence, the trial
justice declared that a reasonable jury could have reached a guilty verdict.
Furthermore, by instructing the jury that "a knife is a dangerous weapon,"
the trial justice relieved the prosecution of its burden of proving that the
assault occurred with a dangerous weapon and thereby removed that element
from the jury's consideration.
William R. Macera, acting in
his capacity as the Mayor of Johnston v. Mary Cerra et al, No. 00-80
(February 8, 2002)
The mayor had fired the
employee from his position and the employee appealed. The trial justice
found that the employee was the highway director and that the mayor did not
have the authority to fire him. The mayor argued that the employee was the
director of public works, and that the mayor had the authority to fire him
from that position. The Court affirmed the decision of the trial justice.
The mayor also argued that the trial justice erred when it refused to rule
on his claim that the employee held a supervisory position within the town
and was thus not entitled to union membership. The highway director was not
a rank and file employee eligible for inclusion in the collective bargaining
Rudolph Mottola v. Mark E.
Cirello et al; Frank S. Jean et al v. Deana Chirico et al, Nos. 00-278,
00-250 & 00-251 (February 4, 2002)
The employee, while
working for the State and driving a vehicle, had hit a pedestrian. The Court
held that under G.L. 1956 § 9-31-12, upon certification that the
employee-tortfeasor was acting within the scope of his or her employment and
that the claim was not fraudulent, malicious, or the result of willful
misconduct, the suit was to be deemed to be an action against the State. The
trial justice appropriately substituted the State as the party defendant.
However, it was not the province of the trial justice to dictate how
the attorney general elected to carry out the functions of his office and it
was an abuse of discretion to order the attorney general to do anything.
There was also no authority for the trial justice to direct defense counsel
to withdraw his appearance. The trial justice had also ordered that
the injured person was not entitled to prejudgment interest on any award.
The Court held that the issues of the damages cap and of the prejudgment
interest were not before the trial court and it was an abuse of discretion
for the trial justice to enter orders relating to those issues.
State v. William Mendez,
No. 00-459 (February 1, 2002)
The defendant claimed
that the hearing justice should have recused himself from the hearing, because
during the judge's tenure as the public defender, a member of the public
defender's office represented defendant at an event unrelated to his violation
hearing. The defendant also argued that testimony about the victim's
identification at the scene was inadmissible hearsay. The Court rejected the
Richard C. Wilkinson v. The
State Crime Laboratory Commission et al, No. 00-410 (January 31, 2002)
The plaintiff appealed his dismissal from his state job.The Court determined
that when defendants declined to reappoint the employee to a limited-term
position in 1996 and refused to retain him as a classified full-status state
employee, they violated the merit system, which prohibited them from dismissing
the employee from state service without cause to do so.
State v. Joseph Boillard,
No. 99-473 (January 31, 2002)
The defendant appealed
alleging that the trial justice erred in refusing to sustain his objections to
statements that the State made during closing arguments. The Court on appeal
concluded that the State's closing statements were within the array of
reasonable inferences that could have been drawn from the facts presented at
trial, and they were neither extraneous nor inflammatory. The Court rejected
defendant’s other arguments.
Francis Pellegrino et al v. The Rhode Island Ethics Commission et al, No.
00-132 (January 30, 2002)
During a budget crisis, Rhode Island abolished compensation for members of
administrative boards, but reinstated a right to compensation, for a limited
period, as to board members who performed adjudicatory functions. Years later,
several former members of one commission sought to recover unpaid compensation
and the state alleged that the statute of limitations had expired. The Court
concluded that the state had waived sovereign immunity as to the period covered
by the legislation reinstating a right to payment. Since the claim was unlike
anything covered by a specific statute of limitations, the 10-year catchall
statute of limitations applied.
Robert Bailey et al v. Algonquin Gas Transmission Company et al, No. 00-315
(January 30, 2002)
A default judgment was entered against an engineering group after its attorney
failed to respond to a request for production of documents.
Evidence showed that the group's attorney received documents sent by
plaintiffs but he did not respond to them, and he blamed his conduct on problems
with alcohol abuse. The Court concluded that although the engineering group was
not aware that its attorney was mishandling the case, the trial justice did not
abuse his discretion by refusing to vacate the default judgment pursuant to R.I.
Super. Ct. R. Civ. P. 60(b)(6).
In re Joseph S. et al.,
No. 00-357 (January 29, 2002)
The mother’s parental rights were terminated.
She had received psychiatric and counseling services from numerous
institutions and organizations. Despite the plethora of services, the mother
failed to achieve appropriate insight into her illness and refused to recognize
her need for medication, preferring instead to remain in a devastating cycle of
violent behavior followed by institutionalization or hospitalization, as
recognized by the trial justice. The best interests of both children required a
termination of the mother's parental rights and for the children to remain with
their foster family in a pre-adoptive home. Both children had been in the
state's care and custody since birth and had never resided with their mother.
Purvis Systems, Inc. v.
American Systems Corporation, No. 99-290 (January 24, 2002)
The parties had a contract disagreement and submitted the issue to arbitration.
The arbitrator issued an award in favor of the subcontractor which included, per
the subcontract, the fees and expenses of the American Arbitration Association
(AAA) and the fees and expenses of the arbitrator. The arbitrator subsequently
modified the award to provide that expenses of the arbitration include both
reasonable attorney's fees and the costs of the AAA prior to issuing a
supplemental award. The Court held the trial justice erred in vacating the
supplemental award since the subcontract provided that any controversy was to be
settled by binding arbitration in accordance with the rules of the AAA. The
parties agreed that all expenses of the arbitration were to be assessed against
the losing party, and those expense
could be added to any judgment. The AAA rules, the arbitration clause in the
subcontract, and the contractor's own demand for arbitration vested the
arbitrator with broad authority to interpret the terms of the subcontract.
State v. Efrain Otero, No.
00-187 (January 24, 2002)
The defendant appealed after the trial justice denied his motion for new trial.
The trial justice did not err in denying defendant's motion for a
new trial, as the evidence was legally sufficient to convict defendant. There
was ample circumstantial evidence to support a finding that defendant brought a
gun to the bar and carried out a preconceived plan to kill the victim. This
evidence included eyewitness testimony that defendant had what appeared to be a
gun when he approached the victim, and only one of the victim's wounds was from
close range. The State's witnesses were unequivocal in describing defendant as
Rhode Island Employment
Security Alliance, Local 401, S.E.I.U., AFL-CIO et al v. State of Rhode Island,
Department of Employment and Training, et al, No. 2000-302 (January 18,
The state employees and
union alleged that, in violation of Conn. Gen. Stat. § 36-4-9, the state
employees were placed in lower job classifications and pay grades than other
state workers in positions with substantively similar authority, responsibility,
character of work, and working conditions. The Court rejected the appeal because
the state personnel administrator was statutorily mandated to provide the relief
plaintiffs were seeking. The state employees did not exhaust this administrative
remedy. In addition, seeking the administrative remedy would not have been
futile, as eight of the state employees actually received favorable upgrades at
the administrative level.
State v. Keith Nunes, No.
2000-449 (January 14, 2002)
On appeal, defendant argued that the trial justice erred by failing to instruct
the jury on the lesser-included offense of second-degree murder and by failing
to grant his motion for new trial. The case did not invite a second-degree
murder instruction because there was no evidence that the premeditation was
either momentary or less than momentary. The record showed that after
defendant's two altercations with the group at the boardwalk, he drove to the
Silver Lake area to retrieve a gun. Then defendant drove back to the boardwalk
searching for the men. As defendant found the group, he drove near, stopped his
car, raised his torso out of the driver's side window, and fired five rounds
into the crowd. The defendant then fled the scene. In addition, the
trial justice did not err in rejected defendant’s motion for new trial.
In re Jared S. No.
2000-447 (January 11, 2002)
On appeal, the Court affirmed the family court decision to terminate parental
rights. The termination was based on their cruel and abusive treatment of their
first child, coupled with their lack of remorse and their refusal to accept
responsibility for his abuse caused the termination. The family court's capacity
to terminate the parents' parental rights based on those factors was proper.
State v. Ronald L'Heureux,
No. 2000-185 (January 10, 2002)
The defendant argued the
trial justice erred in determining the prosecutor had turned over the police
report as soon as he learned of its existence. Additionally, defendant asserted
that the trial prosecutor knowingly used perjured testimony in violation of
defendant's due process rights, the State violated his due process rights by
failing to disclose photographs of the vandalism to his home, and his motion for
a new trial should have been granted in the interest of justice. The Court on
appeal determined that the hearing justice complied with the applicable standard
employed when ruling on a motion for a new trial based on newly discovered
evidence. The Court also noted that defendant waived his claim based on perjured
testimony, but even it not waived, the claim lacked merit since nothing in the
police report supported his contention. As to the photographs, the supreme court
held that defendant cited no authority to support his contention, and none
existed. Finally, the Court concluded that the hearing justice did not err in
denying defendant's interest of justice motion for a new trial since nothing in
the verdict was inconsistent with the law, evidence, or jury instructions.
Charlene L. Pacheco v. Norman
Bedford, No. 2000-230 (January 10, 2002)
The father was in prison for child sexual molestation convictions. He argued
that, under the Americans with Disabilities Act (ADA), 42 U.S.C.S §§
12101-12213, he should have been provided court-appointed counsel. The trial
magistrate had earlier continued the case and referred the father to the law
school clinic for help. There was no evidence that the father contacted the law
school or any other counsel. A judge in a separate case found that the father
was capable of representing himself in that case. The Court held that an ADA
plaintiff had no absolute right to appointed counsel, and the trial justice
could consider the father's efforts to retain counsel and his ability to
represent himself in determining his request for appointed counsel. Mere
incarceration, alone, did not justify the denial of visitation rights. However,
the trial magistrate found that there was no significant bond between the father
and the child, that the relationship was not harmonious and that the father had
been convicted of a crime victimizing a child. The trial magistrate and the
trial court chief judge did not abuse their discretion in terminating the
father's visitation rights.
State v. Julio Torres, No.
2001-220 (January 10, 2002)
The defendant shot and
wounded his former girlfriend. Prior to the shooting, defendant had threatened
both the victim and her new boyfriend. Defendant argued that R.I. R. Evid.
404(b) precluded admission of evidence of the threats. The Court held that a
threat without more was not a crime, and thus, only when evidence of a prior
threat made by an accused was both prejudicial and irrelevant did it become
inadmissible. Otherwise, evidence of a threat made by an accused to an intended
victim was admissible. The threats were made within two days of the shooting,
and were relevant. Within minutes of the shooting, the victim's young children
said to others that defendant, their father, did it. The defendant argued
that the statements were hearsay and thus inadmissible. The Court found that the
statements were admissible under the excited utterance hearsay exception.
Finally, the trial justice did not err in admitting incriminating statements
made by defendant immediately after his arrest. The Court held that the
trial justice did not err in finding that defendant had been given and waived
his Miranda rights prior to making the statements.
Norman Laurence v. Russell
Sollitto et al, No. 2000-307 (January 9, 2002)
The inmate was represented by several attorneys in the course of his prosecution
and conviction on murder charges, and he subsequently sued several of them. The
attorney in the instant case represented the inmate only briefly, at a
suppression hearing. The Court, after noting that the attorney's motion to
dismiss had become a summary judgment motion when he attached extraneous
materials to it, agreed that the inmate's claims were insufficient. A
court-appointed attorney or public defender did not act under color of state law
for purposes of 42 U.S.C.S. § 1983 liability. Furthermore, the inmate could only
recover money damages, which he was in fact seeking, if his conviction had been
reversed, expunged, or invalidated, which was not the inmate's situation.
Finally, not only was there no showing of negligent representation in fact, but
the inmate failed to allege that the attorney's purported negligence caused his
State v. Paul Calenda, No.
99-565 (January 8, 2002)
The defendant argued the
trial justice abused his discretion by excluding evidence of the victim's drug
use. The supreme court held there was no abuse where the victim testified he had
not used drugs the day of the altercation, and evidence of the victim's drug use
at another time was irrelevant and prejudicial. The defendant also argued the
trial justice abused his discretion by preventing any inquiry into whether
defendant had used physical force in the past to collect rents. The supreme
court held the trial justice did not abuse his discretion in concluding that
defendant's past actions were irrelevant. The defendant next argued the trial
justice erred by admitting a tenant list as a business record because it lacked
adequate foundation. The supreme court found that the trial justice did not err
since the foundational requirements were met by a combination of defendant's and
the property manager's testimony. Finally, defendant argued the trial justice
erred by denying him a continuance and by denying his motion to reopen the case.
The supreme court found that the trial justice appropriately denied defendant's
motion to reopen where defendant had simply made a tactical decision.
State v. William Shinn,
No. 2000-211 (January 7, 2002)
The defendant, a former corrections officer, was charged with assault with a
dangerous weapon and conspiracy after he allegedly beat an inmate. At
defendant's trial, the prosecution offered three photo identification logs which
police had used during their investigation. The defendant did not object
to the admission of the logs and they were admitted into evidence. After all
evidence was admitted and while the jury was deliberating, the jury asked the
trial justice about handwritten notes that appeared in the logs and the court
discovered for the first time that police detectives had made notes in the logs
while interviewing a witness who did not testify. The trial justice told the
jury that the notes were hearsay and asked them if they could disregard the
notes. After the jury responded that they could disregard the notes, the trial
justice denied defendant's motion for a mistrial and allowed the jury to reach a
verdict. The state supreme court held that, although the trial justice had a
long discussion with the jury and attempted to cure any prejudice, the case was
unsalvageable and the trial justice violated defendant's right to a fair trial
by denying his motion for a mistrial.
Associated Builders &
Contractors of Rhode Island, Inc. et al v. Department of Administration, State
of Rhode Island, No. 2001-40 & 2000-514 (January 4, 2002)
In November 2000, the
State of Rhode Island solicited bids for construction of a convocation center
and ice facility. Contractors who chose to bid on the project were required to
accept the terms of a project labor agreement (PLA) which the State had
negotiated with an organization that represented labor unions. Under the terms
of the PLA, successful bidders were required to hire employees through union
hiring halls and to contribute to union benefit funds. Nonunion contractors
filed suit challenging the use of a PLA. The state supreme court held that (1)
nonunion contractors had standing to challenge the State's action even though
they did not bid on the contracts and the issues they raised were not moot; (2)
PLAs were not illegal per se under the State Purchases Chapter (Act), R.I. Gen.
Laws tit. 37, ch. 2 (1956); but (3) under state law, state contracting
authorities could make a PLA a condition of a bid specification in a public
contract only after they had established that the size and complexity of the
project was such that a PLA supported the goals and objectives of the Act and
they had conducted an objective, reasoned study using reviewable criteria.
Mary Ryan et al v. The Roman
Catholic Bishop of Providence, A Corporation Sole et al, No. 2000-102 (January
A woman filed a civil action against a priest, the
church and diocese where he worked, and church officials, alleging that she was
sexually abused by the priest while she was a minor. While the civil action was
pending, the priest was convicted of first-degree sexual assault and a
presentence investigation and report (PSR) was completed. Thereafter, the woman
sought access to the PSR because she believed the priest may have told the
investigator that church officials knew he had sexually abused others and
transferred him because of his behavior. The priest filed a motion for a
protective order, arguing that the contents of the PSR were confidential. While
the case was on appeal to the state supreme court, the priest died and his
estate was substituted as a party. The state supreme court held that, although
its prior holding that PSRs were confidential remained inviolate, the case
presented an extremely narrow factual circumstance which warranted an exception
to that rule and it was appropriate for the trial justice to examine the PSR in
camera to determine if the information sought was
contained in the PSR and, if so, whether the potential harm to the priest
was outweighed by plaintiff’s need for the document in light of her ability to
discover the information from other sources. In this case, the Court
concluded that the trial justice properly permitted the PSR to be discoverable,
since because there was no other way for the plaintiff to discover the
information, especially since the priest was no longer living.
In re DeKarri P., No.
2000-495 (December 28, 2001)
When the child was born,
the father was in prison. The mother relinquished her parental rights. For over
a year, the father refused to have contact with his child. The agency filed a
termination of parental rights on the basis that the child had been in custody
for more than 12 months, his parents had abandoned or deserted him, the father
was unfit by reason of imprisonment, and it was unlikely that the child would be
returned to his care within a reasonable period. On appeal, the father claimed
that the trial justice erred when it found that the father abandoned the child.
The Court found that because the father refused to contact the child for over
six months, the child was abandoned under R.I. Gen. Laws § 15-7-7(a)(4) (1956).
As a result, the agency had no obligation to make reasonable efforts to reunify
the father and child.
Pawtucket Mutual Insurance
Company v. Barry Gay, et al, No. 2000-336 (December 28, 2001)
The vehicle in question
was reported stolen, and when recovered it was determined to be a constructive
total loss. The insurance company offered to pay the insured the actual cash
value of the vehicle at the time it was stolen, but the insured sought to have
the company pay to repair the vehicle. The defendant argued that the trial court
erred in interpreting the policy, and that the company did not have an absolute
right to either repair the vehicle or pay its replacement value. The Court held
the policy language on this issue was clear and unambiguous. The policy provided
that the company had the option to pay its insured for the loss in money, to
repair, or to replace the damaged property, or to return the stolen property to
the insured and pay for any resulting damage. The policy language was clear that
it was the insurer, not the insured, who had the right to elect one of these
options. The insurer's liability for payment of the loss, however, was limited
to the lesser of either the actual cash value of the stolen or damaged property
or the amount necessary to repair or replace the property, neither of which
could exceed $ 35,000.
State v. Walter Truesdale,
No. 99-338 (December 28, 2001)
While ransacking an
apartment for drug money, defendant murdered the occupant, and returned across
the hall to his girlfriend's apartment. The police suspected him almost
immediately and interviewed him extensively in an attempt to obtain a
confession. They also obtained permission from his girlfriend to tape-record
their telephone conversations. Both sides questioned the police about the
interviews. When the police stated that "it was a vicious killing," defendant
finally objected and requested a mistrial. The Court held that defendant
opened the door for the comment by questioning the police about the interviews.
Therefore, there was no mistrial. Given the importance of the uncoerced, candid
confession in the tape recording, the trial justice did not overlook material
evidence when it failed to mention the testimony of defendant's witnesses.
Carla Christine Stone v. Green
Hill Civic Association, Inc., et al, No. 2000-290 (December 28, 2001)
The owner claimed that
members of the association and other defendants had been using the beach without
seeking her permission to do so, and that they were otherwise asserting a right
to use her property. The trial justice found that defendants failed to present
any evidence that they used the beach under a claim of right. The Court found
that defendants indicated that area residents had used the beach as far back as
1928. The defendants contend that, to use the beach, they never asked permission
of the owner or her predecessors in title or their family members. The owner,
however, contended and provided evidence that, if credited, would indicate that
the previous owners of the property had granted permission for the use in
question. A prior owner testified that the association had asked permission to
place a lifeguard chair on the beach in question. The prior owner also testified
that people who used the beach asked permission before doing so. The Court held
that genuine issues of material fact existed, depending largely on credibility,
about whether the use of the beach by the association and its members was
Eugene E. Wigginton v.
Reginald A. Centracchio et al, No. 2000-164 (December 26, 2001)
When a Rhode Island army national guard officer was
forced to retire after 20 years, he sued the adjutant general in federal court,
arguing that under R.I. Gen. Laws § 30-3-13, as a member of a staff corps or
department, he was entitled to retain his position, unless removed for cause,
until age 60. Noting that R.I. Gen. Laws § 30-3-1 required the organization of
the state army national guard to mirror that of the United States Army, the
Court, on certification of the federal appeals court's question, held that the
term "staff corps and departments" had not had any meaning since a
reorganization of the United States Army six decades earlier, and that it had
been carried over into the instant statute by inadvertence. The Court therefore
declined to attribute any modern meaning to the term, as this would have led to
an absurd result
Claude E. Hampton v. State, No. 99-385
(December 24, 2001)
When the probation
violator's probation was revoked, neither the hearing justice nor his own
attorney notified him of his right to appeal that adjudication. The probation
violator asserted that this failure violated his constitutional right to due
process, and that his attorney's failure to so notify him was ineffective
assistance of counsel. The Court held that a probation-revocation hearing did
not call for the full panoply of rights normally guaranteed to criminal
defendants. The rights guaranteed by R.I. Super. Ct. R. Crim. P. 32(a)(2) were
inapplicable to probation-violation hearings. Neither any statute nor the United
States Constitution gave probation violators the right to be notified about the
right to appeal violation adjudication. The defendant was entitled to effective
assistance of counsel at a probation violation hearing, and a defense attorney's
failure to disclose to his or her client of a right to appeal a probation
violation adjudication could not be justified as a strategic decision. However,
the probation violator was still obligated to show prejudice from his counsel's
failure to inform him of his right to appeal, and failed to do so.
Thomas A. English et al v.
Kenneth D. Green et al Bruno Formato v. Kenneth D. Green et al, No. 99-548
(December 21, 2001)
The Court held that the
trial justice's grant of a new trial after determining that the jury's
apportionment of negligence was against the fair weight of the evidence failed
to do substantial justice to the parties, and that the damage awards shocked the
conscience of the court was not error. The trial justice did not misconceive or
overlook material evidence by finding that reasonable minds would agree that the
driver was at least partly negligent. The trial justice also did not err in
concluding that the evidence did not support the jury's assessment of damages.
The jury's award to one injured party was against the fair preponderance of the
evidence in light of his pain and suffering and the restrictions that his
injuries placed on his day-to-day activities. Similarly, reasonable minds could
not have concluded that the other injured party was entitled to less than his
medical expenses for a permanent injury. There was sufficient evidence
suggesting that the trial justice determined that the driver's negligence was a
proximate cause of the accident, and that the injuries proximately resulted
RICO Corporation v. Town of
Exeter et al, No. 2000-86 (December 21, 2001)
The company bought a
piece of property from a third party, believing that there was a nonconforming
earth removal use on the property. When the company attempted to renew its
gravel bank license, the town asked the company to show cause why it should not
issue a cease and desist order or otherwise review, limit, or condition the
company's current operations. The company filed a petition for a declaratory
judgment and for injunctive relief and the town filed a counterclaim, asserting
that the company's use of the property violated various town ordinances and
challenging the existence and validity of the company's alleged nonconforming
use of the property. Because the issue raised by the town challenging the
existence of the alleged nonconforming use constituted a material issue of fact,
the motion hearing justice was precluded from acting upon and deciding the
parties' respective cross-motions for summary judgment. The proper resolution of
that material fact was essential to support the validity of the trial justice
final judgment. Its absence compelled the Court to vacate the final judgment
State v. Irving Briggs,
No. 99-263 (December 19, 2001)
The defendant argued on
appeal he was deprived of his Sixth Amendment right's to counsel and to a fair
trial, and the trial justice erred by failing to instruct the jury on the lesser
included offense of larceny. The Court determined an examination of the totality
of the circumstances demonstrated defendant validly waived his right to counsel.
The Court reasoned the record showed defendant wished to place the outcome of
the trial in his own hands, fully aware of the risks involved. In addition, the
Court found there was an "actual and adequate dispute" concerning the existence
of force and defendant was entitled to the larceny instruction. However, the
record reflected that defendant took the stand and admitted to committing
larceny. Accordingly, the Court concluded there was no dispute about defendant's
guilt on each of the larceny elements. However, the Court also concluded the
tenor of the trial justice's questioning contained prejudicial influences,
and when reviewed together, prevented the jury from engaging in its independent
Michael L. Martinelli v. Frank
L. Hopkins, Jr., et al, No. 99-540 (December 18, 2001) Corrected
The injured party was severely injured when a rotten tree fell on him while he
was attending an outdoor festival hosted by the property owner. The city issued
a license for the party, which provided that the property owner had to provide
adequate portable toilets and private security forces. Unlimited free beer was
provided to the attendants. The property owner underestimated the number of
toilets needed, and failed to hire adequate security. The tree fell on the
injured party when several other people attempted to cross a fence which was
attached to the tree. The Court held the trial court properly denied the city's
motions. The trial justice clearly exercised his independent judgment and denied
the city's motion for a new trial. He found that the city, although acting in a
governmental function when it issued the license, had acted in an egregious
manner. The Court held the trial justice properly determined that the egregious
conduct exception to the public duty doctrine applied to the city. The record
revealed that the city knew that attendance at the festival had risen sharply,
that free beer was provided, and unruly crowds presented safety risks.
Sea Fare's American Cafe, Inc.
et al v. Brick Market Place Associates et al, No. 2000-324 (December 18,
The lessee rented space
for the lessee's restaurant from the lessor. Under the lease, the lessee agreed
to purchase inventory that was already on the premises, and the lessee's share
of the rent was to decrease if the rentable space within the property increased.
Prior to the lessee occupying the rental property, some of the inventory
purchased by the lessee was removed. The lessor said it would compensate the
lessee for the loss and never did so. The lessor began leasing out additional
parking spaces, thereby increasing the property's rentable space, without
reducing the lessee's rent. The Court found that the trial justice erred in
granting summary judgment on the rentable space issue, because the lease was
ambiguous as to whether the parking lot was included within the lease property.
The trial justice did not err in finding for the lessee on the missing
inventory issue and in calculating the damages of the missing inventory. In
calculating the damages for the missing inventory, the trial justice was
permitted to rely on the testimony of the lessee, who had 10 years of experience
in purchasing such equipment.
John Anderson v. Dennis Botelho
et al; Kenneth Longwill v. Donnis Botelho et al; Deborah Botelho et al v. Evelyn
Scire, No. 2000-17 (December 17, 2001)
The 1st driver allegedly turned suddenly in front of the 2nd driver and his
passenger, causing the 2nd driver to stop and causing the 3rd driver, who had
his daughters with him, to rear-end the 2nd driver's vehicle. The 2nd driver,
the passenger, and the two daughters were injured. The 3rd driver filed for
bankruptcy after the accident and became judgment-proof. The trial justice
ordered the parties not to refer to the bankruptcy to prevent prejudice. Despite
the caution, the 1st driver's counsel made several references to the 3rd driver
being immune from suit. The 1st driver's theory was that she was only sued due
to the 3rd driver's judgment-proof status. The trial justice granted the new
trial based on the comments. The 1st driver argued on appeal that the 3rd
driver's bankruptcy was relevant to witness credibility and should not have been
excluded and that the new trial was erroneously granted. The Court held that
references to the bankruptcy were properly excluded as prejudicial to the jury's
ability to assess the parties' comparative negligence. The new trial was
properly granted, as disclosing the 3rd driver's judgment-proof status tainted
Lou Ann Lauro v. Kenneth G.
Knowles, M.D., et al, No. 2000-223 (December 14, 2001)
The doctor performed a procedure on the patient to alleviate carpal tunnel
syndrome in her right wrist. During surgery, an anesthesiologist damaged the
patient's eye. The patient sued the doctor for failure to properly supervise the
anesthesiologist and for failure to warn her of the risks of damage to her eye.
The state supreme court found that the doctor submitted affidavits in support of
his proposition that there was no genuine issue of material fact relative to the
doctor's duty to inform. His affidavits established the extremely low risk of
corneal abrasion and the even lower risk of long-term impact. Because the
patient failed to submit opposing affidavits or other evidence, the grant of
summary judgment was proper.
Gerard T. Ouimette v. State,
No. 2000-131 (December 14, 2001)
The defendant pleaded
nolo contendere to robbery in 1958 and to amended charges of assault with a
dangerous weapon and conspiracy in 1976. His 1981 petition for post conviction
relief was denied. Thereafter, a federal court sentenced him to life
imprisonment without parole. Another petition for post conviction relief was
denied. The state supreme court held that defendant did not overcome the
presumption of regularity in the prior proceedings. He failed to prove that his
1958 plea was not entered willingly and knowingly. Because he could have raised
the challenge in prior proceedings, the issue of voluntariness was barred by res
judicata. Rather than arguing to the trial justice that his counsel's
performance in 1976 was deficient and ineffective, he merely filed a
post-decision affidavit by his attorney, which was insufficient to support a
claim of ineffective assistance of counsel.
State v. Angelo Ramirez,
No. 99-306 (December 14, 2001)
The defendant was
convicted of, inter alia, assault with a deadly weapon and assault with intent
to murder after he shot a child while involved in a high-speed chase with
another vehicle. The Court held that the jury's verdicts on the two charges of
assault with a dangerous weapon were not legally inconsistent since two of the
intended victims were not standing next to each other; rather, one was out in
the open while the other was standing some distance away. Although testimony
varied as to specific facts, the evidence was sufficient to have enabled the
jury to conclude defendant's guilt beyond a reasonable doubt. It was reasonable
to infer that defendant committed an assault with intent to murder when he fired
several successive gunshots on a busy highway from out the window of his
Harvey Realty v. Killingly
Manor Condominium Association et al, No. 2000-157 (December 14, 2001)
The buyer purchased four
condominium units in a tax sale and later sought to foreclose the association's
right of redemption on the units. The association claimed the underlying tax
sale was invalid because it did not receive proper notice. The state supreme
court held that although the tax sale arguably affected the association's due
process rights, it did not meet its burden in showing an allegedly defective
advertisement. The association did not qualify for the statutory notice because
it was not the taxpayer. However, it was entitled to notice as an interested
party. Because it received notice by certified mail, the constitutional
requirement was satisfied.
Delta Airlines, Inc., et al v.
James T. Neary, Jr., in his capacity as Tax Assessor for the City of Warwick,
No. 2000-194 (December 7, 2001) (Corrected)
The airline's lease
provided that any leasehold improvements became the property of the airport
corporation that leased the airport property from the State. The Court found
that the airport corporation was exempt from the municipal taxation at issue in
the instant case, under R.I. Gen. Laws §§ 42-64-20(b), 42-64-7.1(b). The Court
found that the tax-exempt status of leased property was governed by the status
of its owner. Therefore, property owned by a tax-exempt entity was exempt even
when the property was in the possession of a non-exempt lessee. Accordingly, the
airlines, in the instant case, were not liable for municipal taxes from which
the lessor that owned the property was exempt, regardless of whether the owner
was considered to be the airport corporation or the state. The airline's 17-year
lease did not extinguish the property's exempt status and did not produce a
taxable event. The statutory and common law rules regarding the allocation of
the tax burden between a life tenant and a remainderman did not constitute a
source of taxing authority, and, in fact, were not relevant since the property
was exempt from taxation in the first instance.
State v. Steven Eason, No.
2000-242 (December 7, 2001)
The defendant argued on
appeal the trial justice erred in refusing to vacate his plea because: (1) the
plea was not knowing, voluntary, and intelligent; (2) the refusal to vacate the
plea violated defendant's Sixth Amendment right to represent himself; and (3)
the trial court's failure to inquire whether defendant waived his right to
counsel before arguing his pro se motion to vacate his plea violated defendant's
Sixth Amendment right to the assistance of counsel. The Court noted defendant
did not offer any evidence that he did not intelligently and understandingly
waive his rights. In short, the Court found no basis to conclude that the trial
court abused its discretion in denying the withdrawal motion. Further, the Court
noted defendant conceded he was advised on multiple occasions of his right to
represent himself and he declined to do so up until the time he argued his
motion to vacate his plea. Under these circumstances, the Court concluded
defendant's Sixth Amendment right to self-representation was not violated.
Finally, the Court concluded defendant was represented by counsel at the plea
In re Shanelly C., No.
2000-352 (December 7, 2001)
The child was committed
to an agency's custody after she was found to have been abused by the mother.
During the five years prior to the termination, the agency provided the mother
with individual counseling, parenting classes, a psychiatric evaluation,
parent-child assessments, and biweekly visitation. Although the mother
participated in some of the offered services, she failed to complete any of the
three reunification case plans developed by the agency. The mother refused to
continue her visits because the agency insisted on either the use of the English
language during visitation, or, if the mother persisted in speaking only in
Spanish, that the visitation would occur with an interpreter present. The mother
had no further contact with the child in person or through letters or phone
calls after December 1998. R.I. Gen. Laws § 15-7-7(a)(4)
(1956) provided that an abandonment of the parent-child
relationship occurred when there was a lack of communication or contact with the
child for at least six months. The Court held the mother's blatant refusal
to visit her daughter unless she could control the environment supported the
finding of abandonment.
State v. John Nania, No.
99-240 (December 7, 2001)
Upon review, the Court found defendant's arguments to be without merit. The
trial justice heard the testimony of the witnesses, evaluated their demeanor on
the witness stand, and decided which witness was worthy of belief. The
defendant failed to provide the Court with any basis for disturbing the trial
justice's conclusion that the complainant was the more credible witness. The
trial justice did not err in restricting defendant's cross-examination of the
victim. Credibility determinations rested with the trier of fact, and the issue
of the witness's veracity was reserved for the fact-finder. The trial justice
satisfied both R.I. Gen. Laws § 12-19-9 and R.I. Super. Ct. R. Crim. P. 32(f);
defendant's counsel was provided an opportunity to address the hearing justice
before his decision on the ultimate issue, whether defendant had violated the
terms and conditions of his probation. No error was committed, therefore, by
ordering the suspension of sentence to be lifted and the sentence to be served
on a single felony case.
Stanley-Bostitch, Inc. v.
Regenerative Environmental Equipment Co., Inc., et al, No. 2000-284
(December 6, 2001)
On appeal, the equipment
company argued that the motion justice committed an error of law when she
determined that the price-adjustment clause was not part of the parties'
contract. The original proposal and a November 9 purchase order were not
executed at the same time. Because the manufacturer did not sign or return the
equipment company's confirmation, the manufacturer did not assent to the
arbitration clause, and thus the original proposal was not incorporated into the
parties' agreement. That reasoning was also true for the price adjustment clause
at issue. The original proposal was not incorporated by reference into the
contract. The price differential at issue was in excess of $ 99,000. That figure
was approximately 10 percent of the initial purchase order. Consequently, the
price-adjustment was so significant that, as a matter of law, the clause was a
material alteration of the contract under R.I. Gen. Laws § 6A-2-207(2)(b).
Domenic Murino, Jr. v.
Progressive Northern Insurance Company, 2000-219 (December 5, 2001)
The insurance company
contended that its liability was fixed by the insurance contract, which limited
its UM coverage to $ 50,000, that it had paid the policyholder $ 50,000, and
refused to pay the remainder of the arbitrator's award, which included
prejudgment interest over and above the UM limit. The Court held that the facts
of the instant case bore a striking resemblance to the facts of the Sentry
decision. The policyholder, after receiving the limit of the tortfeasor's
insurance policy coverage, made a claim against his own insurance company for UM
benefits. His claim was submitted for arbitration, and the arbitrator was
requested only to determine the amount due to the plaintiff under his UM
coverage. The arbitrator was asked to determine only the amount that the
insurance company was required to pay to the policyholder under his UM policy.
The Court held the Sentry decision controlled, and it remained the law that
prejudgment interest in excess of policy limits could be awarded when an
arbitrator was asked to determine only the amount that a plaintiff was entitled
to recover in UM benefits from an insurance company.
Lamphone Vorgvongsa v. State
of Rhode Island, No. 2000-152 (December 3, 2001)
The defendant and
co-defendant both had guns and chased after the victim, firing their guns at
him. The victim was fatally shot in the back. A test of the co-defendant's gun,
compared with the fatal bullet, confirmed that the bullet that killed the victim
had not been fired from the co-defendant's gun. The defendant claimed that
his private, and prominent, defense counsel provided ineffective assistance of
counsel. The Court disagreed. Defense counsel properly refused to introduce a
ballistics report from a defense witness, because the report of the defense
witness indicated that it was defendant's gun that fired the fatal bullet.
Defense counsel did not err in failing to move for a mistrial based on remarks
made by the prosecutor in closing arguments, because the prosecutor's remarks
constituted fair and vigorous comment upon the evidence. The prosecutor's
decision not to impeach one of the State's witnesses, based upon her testimony
in the co-defendant's trial, was a reasonable tactical decision.
John J. Mcvicker et al v.
Travelers Insurance Company et al, No. 2000-205 (December 3, 2001)
The defendant moved to
dismiss the declaratory judgment action under R.I. Super. Ct. R. Civ. P.
12(b)(6) for failure to state a claim for which relief could be granted. The
motion justice granted defendants' motion because she concluded that R.I. Gen.
Laws § 27-7-2.1 was clear as it related to property damage claims. On appeal,
the insured parties argued that to require an insured to provide the name and
address of an unknown hit-and-run driver constituted a misinterpretation of R.I.
Gen. Laws § 27-7-2.1(e) and violated public policy. The Court held that
identifying data about hit-and-run drivers must be submitted to recover on
uninsured motorist property-damage claims. The Court reasoned that requiring an
insured to present some means of identifying an uninsured or underinsured
hit-and-run driver for purposes of recovering on property-damage claims was a
rational statutory limitation to afford insurers financial protection against
potentially fraudulent claims. In addition, because R.I. Gen. Laws § 27-7-2.1
was clear and unambiguous, the Court found there was no need for judicial
construction to avoid an apparent inconsistency in the statute.
Carmel Absi, D.D.S. et al v.
The State of Rhode Island Department of Administration et al, No. 2000-298
(December 3, 2001)
The dentists and dental
hygienists signed a series of one-year contracts with the corrections department
to provide dental services for inmates. The issue for decision was whether the
dentists and dental hygienists were within the state merit system or whether,
pursuant to R.I. Gen. Laws § 37-2-72, they were contract employees. The Court
found that they were not state employees within the State Merit System Act, R.I.
Gen. Laws § 36-3-1 et seq. The dentists and dental hygienists qualified as
independent contractors, because the agency and officers did not exercise
control over the methods of dental treatment. The conditions for hiring dental
consultants as independent contractors under R.I. Gen. Laws § 37-2-72 were met.
The agency and officers demonstrated a need for the dentists and hygienists'
services and an absence of state personnel to perform the work.
State v. Harold A. Hazard,
No. 98-237 (December 3, 2001)
During trial, defendant
tried to elicit testimony of the victim's bias and state of mind. He also tried
to introduce evidence of his state of mind when he attempted suicide. The Court
held that the evidence was cumulative hearsay, and could not be used to show why
or how the state of mind was induced. The defendant failed to object to
the removal of a juror mid-way through the trial or to show how he was
prejudiced. The juror knew a witness but was unable to say whether it would
affect her decision. He claimed he had a right to be present when the court
questioned the juror in chambers. He failed to preserve the issue. In any event,
his attorney was present during the conference and expressly agreed to the
juror's excusal. The defendant had no right to be present at a stage of
the trial in which his guilt or innocence was not being adjudicated.
State v. Joseph Fillion,
No. 00-456 (November 28, 2001)
The defendant argued on
appeal that the trial justice erred by not allowing cross-examination of the
victim about, inter alia, her plans to write a book about her experiences. The
Court rejected defendant’s argument and held that denial of cross-examination
was not automatically deemed error and found that the jury would not have viewed
the victim's testimony differently had the cross examination been allowed. The
Court similarly rejected defendant’s other arguments and affirmed the
Ernest Barone v. Martha C.
O'Connell, No. 2000-275 (November 28, 2001)
The parties divorced and
their final divorce decree ordered that land owned by them as tenants by the
entirety be sold and the proceeds divided equally. No buyer could be found so
the husband decided to pay off the mortgage, taxes and maintenance expenses. He
sued the wife for equitable contribution of half the maintenance expenses. The
Court on appeal concluded that the husband had sued in the proper court. Once
all judgments directly related to the divorce had been entered, the family court
no longer had jurisdiction. Because the divorce decree entitled each party to
half the proceeds when the property was ultimately sold, the husband established
his right to seek equitable contribution in the amount of half the expenses
required until sale could take place.
Rollins Hudig Hall of Rhode
Island, Inc. v. R. Gary Clark, Tax Administrator Frank B. Hall of Rhode Island
Inc. v. R. Gary Clark, Tax Administrator, No. 99-383 (November 27, 2001)
The taxpayer was a
surplus lines insurance broker. The issue was whether it had procured an
unreported portion of coverage from unauthorized/unapproved carriers, such that
it would be required to pay an insurance tax. The taxpayer contended it did not
procure a large portion of the insurance, and should not have to pay any tax on
the portion it did not procure. The Court on appeal affirmed the lower court
decision, finding legally competent evidence in the record indicated that the
taxpayer did not actively participate in negotiating the coverage with the
unauthorized/unapproved insurers. Therefore, the insurance tax would not have to
be paid. However, the tax administrator could rely upon the sworn statements of
the taxpayer. Therefore, the taxpayer was liable for the taxes it voluntarily
paid for placements with unauthorized/unapproved surplus insurers and for the
interest it was assessed because of the late payment of those taxes.
BHG, Inc. v. F.A.F., Inc.,
No. 2000-269 (November 23, 2001)
The plaintiff brought suit to recover commissions due on sales made before and
after its contract with defendant was terminated. The defendant filed a motion
in limine, asking the trial justice to preclude plaintiff from presenting any
evidence of post-termination sales. On appeal, because the effect of the trial
justice’s decision was to dispose of a substantial portion of plaintiff's case,
the Court concluded the trial justice abused its discretion by ruling on the
motion in limine without explanation and without either receiving any evidence
on disputed issues of material fact or converting the motion into one for
ADP Marshall, Inc. v. Brown
University, No. 2000-422 (November 23, 2001)
At trial, a dispute arose as to the proper measure of damages - either the
project's finished value or the value of the services and materials.
No decision was made in limine, instead the trial justice stated that he
would reconsider the issue if raised at trial. No objection was made at trial to
testimony about the value of the finished project. The appellate court held that
the proper measure of damages was the reasonable value of the work done. But,
issues not preserved by a trial objection were not to be considered on appeal.
As the trial court said that it would reconsider its order at trial, the
university's failure to reassert its objection at trial was fatal. Regardless,
the juror interrogatories showed the error to be harmless.
Town of West Greenwich v. A.
Cardi Realty Associates et al, No. 99-559 (November 21, 2001)
The excavator argued that
the town did not have authority to regulate earth removal activities.
The excavator opined that the authroty had to flow from specific enabling
legislation, otherwise the town could not prohibit the expansion of a
nonconforming use when that use is earth removal. The trial justice's held that
the excavator established a preexisting nonconforming use of earth removal. The
Court concluded that the town's ordinance was valid and enforceable but
disagreed with the trial justice's finding that the extensive commercial earth
removal amounted to a change in the basic nature and character of the
nonconforming use. Accordingly, the Court held that the excavator was entitled
to continue to excavate the land and was not limited to a few truckloads per
year as determined by the trial justice.
State v. Frank Johnson,
No. 99-474 (November 21, 2001)
The defendant contended
on appeal that there was insufficient evidence introduced at trial to show that
he possessed the drugs that were seized or that he intended to sell them. The
Court concluded that the presence of cocaine on the dresser in defendant's
bedroom, together with the other indicia of a drug-delivery operation discovered
on the premises, was sufficient to support a finding that defendant was in
constructive possession of the cocaine and exercised control over it. The Court
otherwise affirmed the conviction.
Norman Laurence v. Gretchen J.
Nelson, No. 00-295 (November 21, 2000)
The father asked for
visitation in the family court. The
father was also being prosecuted criminally. On
appeal, the father alleged that the trial justice delayed the hearing on the
father's motion for visitation so his conviction could be used against him. The
father argued his motion for a new trial based upon newly discovered evidence
was not heard. The family court file, however, did not contain a copy of the
motion. Moreover, the evidence relied upon in support of the motion would not
have justified a new trial. The father also alleged erroneous evidentiary
rulings occurred during trial. After reviewing each, the Court concluded they
did not constitute reversible error. Finally, the father contended he should not
have been handcuffed during trial, the presence of the state police during trial
interfered with his rights, and he was not afforded the same liberties during
the trial as the mother's attorney because he represented himself. The Court
concluded that the trial justice did not rely on any of those factors and since
the case was not tried before a jury, there was no error.
Joan D. Martin v. Evan D.
Howard et al, No. 99-483 (November 13, 2001)
A parishioner sued a minister and church officials for malpractice, breach of
contract, and related claims arising out of her sexual involvement with the
minister. The Court on appeal upheld the trial justice’s determination that to
the extent that the parishioner stated cognizable claims at all, they were
time-barred by the three-year statute of limitations for personal injuries under
State v. Joseph D. Dorsey,
No. 99-165 (November 8, 2001)
The defendant was charged with violating a domestic protection order, sexual
assault, and other offenses. At
trial he sought to attack the credibility of the complainant, his estranged
wife, by examining her on charges of paternity against three men in connection
with her elder child, her statements as a teen-ager that she had been raped as a
small child, and her mental health history generally. The trial justice excluded
all of that evidence. The Court on
appeal concluded that the trial justice’s ecision did not violated defendant’s
Sixth Amendment right of confrontation because none of the proffered evidence
was relevant on the issue of the wife's truthfulness.
Anthony Fiore et al v. Town of
Kingstown et al, No. 99-482 (November 7, 2001)
Property owners challenged a zoning amendment that put an initial 24-month cap
on the number of building permits that could be issued. On appeal, the property
owners presented one issue, which asked the appellate court to enter a
declaration of the validity of the ordinance as it applied in 1997. However,
none of the property owners had applied for or had been denied a building
permit. The appellate court held that the property owners, in light of their
waiver of a takings claim, had no right or claim that they could enforce against
the town despite the requested declaration. The challenged quota had expired,
and was no longer in effect when the trial justice ruled, and therefore, the
property owners were not entitled to the requested relief in either the Superior
or Supreme Court. The issue of the validity of the 1997 building permit limit
had been made moot by time.
Anthony P. DeCarli v. Christine
M. Webber, No. 99-14 (November 6, 2001)
The trial justice failed
to enter summary judgment after granting the relief.
When it was discovered, the court granted a motion to enter a judgment
nunc pro tunc. The Court affirmed.
Louis M. Pucino v. Frederick
K. Uttley, Trustee et al, No. 2000-527 (November 6, 2001)
The truckdriver used his
neighbors land to turn his truck around and the neighbor allowed this practice.
The neighbors successor allowed this use until the truckdriver built a garage on
the land, and at that point they started to build a fence to restrict his use.
The trial justice did not abuse his discretion by issuing preliminary
injunctive relief against the building of the fence, under the Rhode Island
doctrine that precluded a party that had long acquiesced in an altered boundary
from challenging it. The determination that the truckdriver was likely to
succeed on the merits was not clearly erroneous and the other equitable
prerequisites were met.
State v. Domingo Grullon,
No. 99-402 (November 5, 2001)
After conviction, state
instituted forfeiture proceedings against him.
The defendant alleged that department lacked probable cause.
The Court concluded that defendant failed to pursue statutory remedies
under G.L. 1956 § 21-28-5.04.2.
Furthermore, the Court determined that defendant failed to raise his Eight
Amendment claim and therefore, it was not properly before the supreme court.
State v. Lee A. Spencer,
No. 00-88 (November 5, 2001)
The Court on appeal
agreed with the defendant that the trial justice ought to have engaged in a more
detailed colloquy, however, the Court was not persuaded that such an inquiry
would have revealed any factors suggesting that the waiver was not knowing,
voluntary, or the product of a conscious decision. The Court also rejected
defendant’s claim that the state had commited prosecutorial misconduct by
disclosing to the grand jury that he failed a computer voice stress test and
held that the error did not warrant dismissal of the indictment when otherwise
competent evidence to establish probable cause was presented.
UST Corporation v. General
Road Trucking Corp. et al, No. 99-279 (November 5, 2001)
State v. Wesley Hanes, No.
00-168 (November 2, 2001)
The defendant was
convicted of murder. On appeal he
alleged that the trial justice erred in failing to issue a self-defense
instruction. The defendant alleged
that the instruction was supported by evidence that the victim provoked the
ensuing assault by bumping into defendant, and that the brother told him that he
and the victim were carrying guns and threatened to shoot defendant. The Court
determined that the trial court's instructions adequately covered the law of
self-defense. The defendant did not preserve for appeal the issue of whether the
medical examiner could testify whether the bullet trajectory was consistent with
the victim leaning over and reaching for his back pocket.
Peter A. Carnevale et al. Joan
L. Dupee, No. 99-499 (November 2, 2001)
Ten years after the possessor purchased and occupied the disputed land, a
developer surveyed and subdivided the land and sold the disputed parcel to the
purchasers. The trial justice ruled the possessor could not claim ownership of
the land because she didn’t object ot the subdivision.
She alleged she was not notified of the developer’s challenge to her
ownership. The filing of the survey with the planning board and the possessor's
subsequent notice thereof were insufficient, as a matter of law, to interrupt
her possession under G.L. 1956 § 34-7-6. Thus, the trial justice erred in
finding the notice sufficient to interrupt her adverse possession claim.
Western Mass Blasting Corp. v. Metropolitan Property and Casualty Insurance
Company et al, No. 2000-143 (November 1, 2001)
The homeowner's insurer sought, by subrogation, recovery
from the contractor's insurer after it paid homeowner for damages caused by
contractor’s blasting. At the arbitration, contractor did not attend but
provided evidence that it did not cause the homeowner's damage.
The contractor's insurer was ordered to reimburse the homeowner's insurer for
the amount of the settlement. The contractor could not recover for the
homeowner's insurer's alleged tortious interference with the contractor's
insurance contract, since the homeowner's insurer's actions (1) to get
subrogation reimbursement were justified, and also, the contractor did not
establish a prima facie tortious interference case, let alone plead it, and (2)
violated no duty owed to the contractor. The contractor could not recover under
a defamation theory for its subsequent impaired insurability, since the
contractor was in privity with its insurer and the homeowner's disclosure at
arbitration were as privileged as in a court proceeding.
In re Shaylon J., No.
2000-220 (November 1, 2001)
The father appealed from his termination of parental
rights. On appeal, the family court decree was affirmed because there was clear
and convincing evidence that there was no substantial probability that the child
could be returned to her father's care within a reasonable period and, taking
into consideration that the father's incarceration prevented the department from
providing him with various services, the department fulfilled its obligations in
State v. Keith Burke, No.
2001-358 (October 31, 2001)
The defendant was charged with assaulting hi wife and
alleged that the Superior Court did not have jurisdiction.The Court disagreed,
finding the family court was not vested with jurisdiction to hear and decide
criminal cases of witness intimidation by an adult, but was authorized to take
appropriate steps to prevent witness or victim intimidation with respect to
cases over which it had jurisdiction. Therefore, the trial court had
State v. Armand C. Fernandes,
No. 98-466 (October 31, 2001)
The defendant argued that the trial justice issued an erroneous instruction on
breaking and entering. The defendant alleged that the trial court did not state
that force was a required element of the crime. The Court on appeal observed
that in both the original instruction and the clarification, the trial court
properly indicated that force was a required element of the offense.
In the Matter of Aurendina G.
Veiga, No. 01-407 (October 29, 2001)
An attorney agreed to
pursue a police officer's claim that he was endangered by disclosures made in a
newspaper story. She failed to pursue the claim and was unresponsive when the
client attempted to retrieve his documents from her. The Court agreed with the
disciplinary board that she should be sanctioned for her failure to conduct
herself consistently with the Rules of Professional Conduct.
Her conduct was also reported to the Commission on Judicial Tenure &
Discipline since she was now a traffic judge.
Anthony Perkins v. City of
Providence et al, No. 99-414 (October 26, 2001)
The injured party
appealed from the trial justice’s grant of a new trial in favor of the city.
The trial justice granted the motion because he found
that injured party was so lacking in credibility as to be totally
unworthy of belief. Furthermore, the trial justice determined that the injured
party had failed to disclose evidence of a previous accident which precluded the
jury from making an informed decision. The Court affirmed the trial justice’s
In re Michael C. et al, No.
2001-47 (October 26, 2001)
The mother’s parental rights were terminated but no
final decree was signed. The mother
argued that the trial justice overlooked or misconceived material evidence. The
supreme court could not say that the trial justice, who heard testimony for
several days, was wrong in granting the termination petitions.
State v. Andrew P. Cook,
No. 2000-58 (October 26, 2001)
The defendant had left
messages on the victim’s answering machine which were excluded at trial. The
Court found that there was no evidence that the trial court abused its
discretion in excluding the answering machine tape given that the tape did not
include any threats or evidence of a plan to assault the victim.
Richard Krajewski et al v.
George Bourque et al, No. 2000-98 (October 25, 2001)
The Court agreed that the
police officer's rule limited the general duty of care in negligence arising
from the presumption that officers were deemed to have assumed all normal risks
inherent in their duties. The officer had gone to the home of a child suspected
to have damaged mailboxes, and slipped and fell in the driveway.
There was a sufficient nexus between the alleged tortfeasors and the event that
brought the officer to the premises
In re Olivia C. et al, No.
2000-464 (October 24, 2001)
The decision to terminate
the mother’s parental rights was affirmed.
DCYF had proved by clear and convincing evidence that termination was in
the child’s best interests. The
mother had permitted a boyfriend to sexually abuse the child.