Andrea C. Lamarque et al v. Fairbanks Capital Corp. et al, No. 05-231 (July 31, 2007)

The plaintiff, Kathy M. Lamarque, and her ex-husband, Andre C. Lamarque, jointly owned property in West Warwick, Rhode Island (the property).  In June 1995, they executed a note to Conti Mortgage Corp., secured by a mortgage on the property.  One of the defendants, Fairbanks Capital Corp., serviced the loan. 

Sometime in 2001, a dispute arose about whether certain obligations under the loan agreement were in default.  After some unsuccessful negotiations concerning the dispute, Fairbanks began foreclosure proceedings on the property.  A foreclosure sale was conducted on December 18, 2001, and the property was purchased by defendant Ciccarone.

On January 18, 2002, the plaintiff and her ex-husband filed suit in the Superior Court for Kent County against Fairbanks and Ciccarone alleging that Fairbanks had illegally foreclosed on the property, had breached an implied contract not to foreclose, and that Fairbanks’ actions constituted deceptive trade practices.  The complaint requested that the court declare the foreclosure void and award damages to the Lamarques for Fairbanks’ breach of contract and deceptive trade practices.  Fairbanks answered the complaint, and the case proceeded to discovery.  Ciccarone was included as a defendant merely on the basis of his ownership of the property.  

Meanwhile, in early 2003, a consolidated class action, Curry v. Fairbanks Capital Corp., was filed in the United States District Court for the District of Massachusetts (District Court or USDC).  On November 14, 2003, a settlement agreement was presented to the court in that case.  On May 13, 2004, after a fairness hearing was conducted, a final order was entered certifying the settlement class and approving the settlement (final order).  Finally, on May 19, 2004, final judgment was entered in the class action suit (which incorporated the final order) and the underlying claims of any and all class members were dismissed with prejudice on the merits.

The Lamarques’ Superior Court suit was still pending at that time; in September 2004, Fairbanks moved for summary judgment on the grounds that the action was barred by res judicata and release because the Lamarques were, as absent class members who had not opted out of the class action, bound by the judgment in Curry.  Andre Lamarque failed to respond to the motion and judgment was entered against him.  Kathy Lamarque, however, objected to the motion and argued (1) that her claims are not encompassed by the claims covered in the Curry suit, and, therefore, she is not a member who is bound by the judgment in that action; (2) that she was not provided proper notice of either the Curry suit or its settlement and, thus, cannot be bound by its judgment; and (3) that, even if she was covered by the class action, her type of claim against Fairbanks was expressly excepted by the District Court from those claims released by the class action settlement. 

The hearing justice in the Superior Court ruled against Kathy on all fronts.  Thereafter, defendant Ciccarone also moved for summary judgment on the basis of the Curry settlement and judgment.  The hearing justice concluded that because the claims against Ciccarone were necessarily linked to the viability of the claims against Fairbanks, summary judgment must also be entered in favor of Ciccarone.   

On appeal, the Supreme Court affirmed the decision of the Superior Court.  The Court first held that, under the definitional language found in the Curry documents, the plaintiff’s claims were covered by the Curry judgment and that they did not fall within the exception laid out by the District Court.  Second, with respect to the plaintiff’s argument that the Curry judgment could not be enforced against her because she was not given adequate notice of that suit, the Court noted a split in the federal and state courts concerning the appropriate scope of collateral review of class action judgments that are challenged on due process grounds.   

After discussing the two opposing approaches, the Court adopted a limited scope of collateral review, noting the important policies of efficiency and finality that underlie the purpose of the class action suit.  Applying this view to the facts before it, the Court held that adequate safeguards were in place to insure compliance with due process requirements and that those safeguards were appropriately applied. 

State v. Kenneth Day, No. 05-81 (July 2, 2007)

A jury found the defendant, Kenneth Day, guilty of the following felonies: conspiracy to commit robbery, conspiracy to commit carjacking resulting in death, conspiracy to commit murder, two counts of first-degree robbery, two counts of carjacking, and two counts of murder.

On appeal, the defendant contended (1) that the trial justice exceeded his authority in imposing four consecutive sentences of life imprisonment without parole; (2) that the trial justice erred in denying the defendant’s motion for a judgment of acquittal; (3) that the defendant’s conviction for both murder and the underlying carjacking felony violated the double jeopardy clause; (4) that the trial justice violated the defendant’s Sixth Amendment right to confrontation when he admitted the recorded testimony of a witness who had testified at an earlier criminal trial in federal court; (5) that the trial justice erred in allowing the introduction of hearsay evidence of a conversation between that same witness and the defendant while they were in custody; (6) that the trial justice erred in denying the defendant’s motion for a new trial; and (7) that the defendant’s sentence was excessive.

The Supreme Court held that it would not consider at this time the defendant’s argument that the trial justice exceeded his authority in imposing four consecutive sentences of life without the possibility of parole because the defendant failed to pursue this claim through the proper procedural avenue, viz., a Rule 35 motion. 

The Court did not reach the defendant’s argument that he was entitled to a judgment of acquittal on the conspiracy to commit murder count because that issue was not raised at the trial level.  The Supreme Court further held that the trial justice erroneously denied the defendant’s motion for a judgment of acquittal on the conspiracy to carjack count because there was insufficient evidence to prove beyond a reasonable doubt that the conspiracy to commit robbery was separate from the conspiracy to carjack; the Court directed that the sentence on the conspiracy to commit carjacking count be vacated.  With respect to defendant’s argument that the substantive crimes of carjacking and robbery "merge," the Supreme Court held that the trial justice erred in denying the defendant’s motion for a judgment of acquittal in this respect because it was not sufficiently satisfied that each offense required proof of a fact that the other did not and because the statute governing carjacking specifically equates carjacking and robbery; consequently, the Supreme Court directed a motion for a judgment of acquittal with respect to the two robbery counts.  The Court did not consider whether the defendant’s convictions on the two murder counts and the two carjacking resulting in death counts violated the double jeopardy clause because the defendant had failed to file a motion regarding this issue before trial as is required. 

Additionally, the Supreme Court held that the trial justice did not abuse his discretion in admitting the recorded testimony of a witness who had testified at an earlier criminal trial of defendant in federal court.  The Court also upheld the trial justice’s decision to admit as an adoptive admission a conversation between the defendant and another man while they were both in custody, during which conversation the defendant failed to respond to an accusatory statement.  Finally, the Supreme Court upheld the trial justice’s denial of the defendant’s motion for a new trial, and it independently determined that sentences of life imprisonment without the possibility of parole were appropriate.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court in part and reversed it in part.  It remanded the case to the Superior Court with directions to enter a judgment of acquittal with respect to the defendant’s conviction of conspiracy to commit carjacking (count 2) and with respect to the robbery convictions (counts 4 and 5).  In all other respects, the judgment of conviction was affirmed.

In re Adner G. et al, No. 06-166 (June 29, 2007)

On August 11, 2005, Jadnerisse G., a seven-week-old infant suffering from a severely swollen right leg, was admitted by her mother, Ligia Delgado, into the Hasbro Children’s Hospital.  The doctors at Hasbro believed that the infant was a victim of child abuse.

On August 15, DCYF filed abuse and neglect petitions concerning Jadnerisse and her two-year-old brother, Adner, based on the findings of the doctors with respect to Jadnerisse’s injuries, and both were removed from their home and placed in the temporary custody of DCYF, pending a hearing on the matter.  On February 6, 2006, a commitment hearing was held to determine the merits of the petitions.

The evidence presented at the hearing revealed that Jadnerisse was a victim of child abuse, that the injuries were of various ages, that the older injuries were undetectable even to trained medical professionals, and that Jadnerisse had three caretakers who could have inflicted these injuries:  Delgado, Garcia, and Jadnerisse’s daycare provider.

The hearing justice issued a written decision and found that Delgado and Garcia had abused and neglected Jadnerisse, that they had neglected Adner, and that the daycare provider was not the cause of Jadnerisse’s injuries.

On appeal, Delgado and Garcia both argued that the hearing justice erred when she found that they abused Jadnerisse because no direct evidence was produced at trial linking them to the abuse, and because the evidence that was adduced at trial was insufficient to allow a reasonable inference to be drawn that Delgado and Garcia perpetrated the abuse.  The Supreme Court agreed and held that because Jadnerisse’s injuries were not visible to the naked eye, and because the daycare provider had significant access to the child during the time that the injuries were inflicted, there was insufficient evidence from which a reasonable inference could be drawn that Delgado and Garcia perpetrated, or were in any way responsible, for the abuse.  Accordingly, the Court vacated the finding that Delgado and Garcia abused Jadnerisse.

Lynore Horn v. Southern Union Co. et al, No. 06-217 (June 27, 2007)

The United States District Court for the District of Rhode Island certified a question of law to the Rhode Island Supreme Court pursuant to Article I, Rule 6 of the Supreme Court Rules of Appellate Procedure.  The defendants in the underlying federal court civil action had moved for summary judgment, contending that the plaintiff’s employment discrimination claims were time-barred pursuant to the statute of limitations.  Before rendering a decision with respect to the defendants’ motion, the District Court certified the following question to the Supreme Court:

"What is the statute of limitations applicable to an employment discrimination claim asserted under the Rhode Island Civil Rights Act (‘RICRA’), R.I. Gen. Laws § 42-112-1 et seq.?" 

The Supreme Court held that the Rhode Island Fair Employment Practices Act (FEPA) and the Rhode Island Civil Rights Act (RICRA), both of which statutes provide redress to persons alleging that they were subjected to employment discrimination, are "in pari materia" (i.e., are statutes on the same subject). 

In view of the principle that statutes that are in pari materia should be harmonized if possible, the Supreme Court held that the one-year statute of limitations contained in the FEPA is also applicable to the RICRA, which is completely silent as to a limitations period. 

City of East Providence v. United Steelworkers of America, Local 15509; United Steelworkers of America, Local 15509 v. City of East Providence, Nos. 06-145 and 06-162 (June 27, 2007)

The United Steelworkers of America, Local 15509 (the union), appealed from an order of the Superior Court denying its motion to confirm an arbitrator’s ruling on a grievance that the union had filed against the City of East Providence (the city) after the city’s decision to terminate animal control supervisor, John Smith (Mr. Smith).  The order followed a consolidated hearing on the union’s motion to confirm and the city’s motion to vacate, and when the hearing justice denied the motion to confirm he also vacated the arbitrator’s decision insofar as it had ordered the city to reinstate Mr. Smith to the position of police dispatcher instead of terminating him.  

The Supreme Court held that a clause in the collective bargaining agreement in which the parties agreed to waive "all rights of appeal" did not preclude judicial review of the arbitrator’s award under the provisions of G.L. 1956 §§ 28‑9‑17 and 28‑9‑18.  The Supreme Court further held that the arbitrator exceeded his authority by reinstating Mr. Smith to the position of police dispatcher after finding that the city had just cause to discharge Mr. Smith from the position of animal control supervisor.

Ronald A. Manchester, Jr., et al v. Joseph Pereira et al, No. 05-350 (June 27, 2007)

The plaintiffs, Ronald A. Manchester, Jr., Roald Manchester, and Judy Manchester appealed from a judgment largely in favor of the defendants, Joseph Pereira, Monique Medeiros, and Travis Cory, in an action regarding their interests in a certain parcel of real property located in Little Compton, Rhode Island.  The plaintiffs argued (1) that the quitclaim deed in which Ronald Manchester relinquished his life estate was voidable because he had relied on a misrepresentation by a fiduciary in signing it; (2) that the plaintiffs were entitled to a constructive trust on the property because Joseph Pereira had breached his fiduciary duty; (3) that the trial justice exceeded her authority by deciding issues that were not before her; and (4) that the trial justice erred in denying the plaintiffs’ motion for a new trial.

The Supreme Court upheld the trial justice’s decision with respect to the plaintiffs’ misrepresentation claim.  The Court also agreed with the trial justice’s conclusion regarding the plaintiffs’ breach of fiduciary duty claim.  However, the Supreme Court further held that the trial justice erred in ruling that Joseph Pereira has the right to allow Monique Medeiros and Travis Cory to occupy the house on a long-term basis when Joseph’s cotenants, Roald and Judy Manchester, oppose such an arrangement. 

The Supreme Court also considered the plaintiffs’ contention that the trial justice erred in denying their motion for a new trial.  The Court did not reach their contention concerning the trial justice’s ruling that Joseph Pereira had the authority to exclude Roald and Judy Manchester from the house because it had already held that the trial justice had erred in so ruling.  As to the plaintiffs’ other contentions relative to their motion for a new trial, however, the Supreme Court ruled, in accordance with the rest of its opinion, that the trial justice did not commit a manifest error in judgment which would have required the granting of plaintiffs’ motion for a new trial.

For these reasons, the Supreme Court affirmed in part and reversed in part the judgment of the Superior Court.  

Justice Suttell did not participate.   

Town of Smithfield v. Churchill & Banks Companies, LLC, et al, No. 05-0066 (June 22, 2007)

The Supreme Court issued a writ of certiorari to review the State Housing Appeals Board’s (SHAB) decision that the application for a comprehensive permit submitted by Churchill & Banks Companies, LLC (Churchill & Banks) to the Town of Smithfield Zoning Board of Review (zoning board) under the Low and Moderate Income Housing Act (the act) was, as of February 13, 2004, substantially complete by the terms of G.L. 1956 § 45-53-6(f)(1).  While the Churchill & Banks application was pending before the zoning board, the General Assembly imposed a moratorium on the use of comprehensive permit applications by private, for-profit developers.  During the moratorium period, the General Assembly reworked the act to give some relief to local zoning boards, many of which had been deluged with new, complex applications since a 2002 amendment had allowed for-profit developers to take advantage of the "fast track" approval process for qualified projects.  Once the new provisions were in place, only those applications deemed by SHAB to be substantially complete as of February 13, 2004, were allowed to proceed under the pre-moratorium version of the act. 

After the zoning board suspended consideration of Churchill & Banks’s comprehensive permit application until after the moratorium period, Churchill & Banks appealed that decision to SHAB.  After reviewing the criteria set forth in § 45-53-6(f)(1), SHAB determined that (1) Churchill & Banks’s application was substantially complete as of February 13, 2004; and (2) the zoning board had acted in a manner demonstrating that it considered the application substantially complete for the purposes of reviewing the application.  On a petition from the Town of Smithfield, the Supreme Court reviewed SHAB’s ruling and reversed it.  The Supreme Court determined that SHAB’s decision to consider evidence that was not in the record before the moratorium in reaching a verdict of substantial completeness to be error of law, and it also ruled that there was insufficient evidence to support SHAB’s finding that the zoning board had acted in a manner that indicated it viewed Churchill & Banks’s application to be substantially complete. 

Estela V. Rodrigues v. DePasquale Building and Realthy Co. et al v. Spino Brothers, Inc., No. 05-216 (June 22, 2007)

In this wrongful death and negligence action, the third-party defendant, Spino Brothers, Inc. (Spino Bros.), appeals from an order granting the third-party plaintiff’s, DePasquale Building and Realty Company (DePasquale Bldg.), motion for a new trial. DePasquale Bldg. settled the underlying tort suit with the plaintiff, Estela V. Rodrigues (plaintiff), for the death of her husband, Carlos Rodrigues (Carlos), after DePasquale Bldg. sought indemnification from Spino Bros. pursuant to the indemnity clause of a previously executed contract. Central to Spino Bros.’s appeal is its obligation to indemnify DePasquale Bldg. Additionally, DePasquale Bldg. cross-appeals, contending that the trial justice erred in denying its post-verdict motion for entry of judgment with respect to liability and permitting the issue of Spino Bros.’s negligence to be litigated at a new trial. For the reasons set forth herein, we reverse in part and sustain in part the judgment of the Superior Court.In this wrongful death and negligence action, the third-party defendant, Spino Brothers, Inc. (Spino Bros.), appealed from an order granting the third-party plaintiff’s, DePasquale Building and Realty Company (DePasquale Bldg.), motion for a new trial.  Central to Spino Bros.’s appeal was its obligation to indemnify DePasquale Bldg pursuant to a previously executed contract.  Additionally, DePasquale Bldg. cross-appealed, contending that the trial justice erred in denying its post-verdict motion for entry of judgment with respect to liability and in granting Spino Bros. a new trial.

State of Rhode Island (Department of Administration) v. Rhode Island Council 94, A.F.S.C.M.E., AfL-CIO, Local 2409, No. 06-0096 (June 22, 2007)

In this case, Rhode Island Council 94, A.F.S.C.M.E., AFL-CIO, Local 2409 (Council 94) appealed a Superior Court order vacating an arbitration award in Council 94’s favor.  Council 94 argued that the Superior Court erred in finding the dispute between Council 94 and the State of Rhode Island (state) Department of Administration (DOA) non-arbitrable.  The Supreme Court reversed the order of the Superior Court vacating the arbitration award and held that the dispute was arbitrable.

The dispute arose in the aftermath of the merger of the separate divisions of the Rhode Island Sheriffs (sheriffs) and the Rhode Island State Marshals (marshals), based on G.L. 1956 § 42-11-21, under the auspices of the DOA.  The dispute centered on the distribution of overtime assignments arising out of prisoner extradition details—work that, to a large extent, traditionally had been done by the marshals.  Council 94 filed a grievance on behalf of the sheriffs, alleging that these overtime assignments were being only given to sheriffs in the Inmate Transportation Unit (ITU), which was composed of marshals, thus bypassing the sheriffs for these assignments.  Council 94 argued that the terms of the collective bargaining agreement (CBA) dictated that overtime for these assignments must be distributed on a seniority basis, with all qualified members of the newly merged department to be included in the rotation.  The state countered that the CBA was in direct conflict with the statutory authority of the DOA director to appoint sheriffs to do this extradition work based on § 42-11-21(c) and that, therefore, the dispute was non-arbitrable.

The arbitrator issued a long award, finding on behalf of Council 94, and ordering that all qualified members of the newly merged department, whether marshals or sheriffs, must in the future be included in the rotation for extradition overtime shifts.  Additionally, he ordered a make-whole monetary remedy for those sheriffs who would have worked overtime shifts had the proper seniority rotation been used.

The state appealed to the Superior Court to vacate the award; Council 94 objected and filed a motion to affirm the award.  The Superior Court vacated the award, ruling that when "an arbitrator is confronted with a conflict between a statute and a CBA * * * [the] conflict is not subject to the agreement’s arbitration clause" and that "an arbitrator’s stroke of the pen cannot alter * * * the Director of Administration’s statutory power to decide who will perform [these] functions."

The Supreme Court reversed, holding that the dispute was arbitrable because there was no direct conflict between the statutory language of § 42-11-21(c) and the pertinent provisions of the CBA.  The case was remanded with directions to enter an order confirming the arbitration award. 

State v. Mario Monteiro, No. 06-118 (June 22, 2007)

The defendant, Mario Monteiro (defendant or Monteiro), stands convicted of first-degree murder and numerous firearms counts.  He was a seventeen-year-old member of a street gang, the Providence Street Boyz (Boyz), that was engaged in a bloody gang war with a rival street gang, the Oriental Rascals (Rascals), on July 2 and 3, 2001.  The battle, which was conducted with handguns on bicycles, culminated in the murder of an innocent bystander.

After several shootings during the day and night leading up to the murder, the defendant fled, and was not apprehended until October 11, 2001, when his legal guardian alerted the police that the defendant had returned and was asleep in his bed.  During the arrest and ensuing questioning, the defendant was at all times accompanied by his guardian; he was processed at the police station and advised of his rights, both orally and in writing.  During his interrogation, he was allowed to use the restroom, have lunch, smoke cigarettes, and consult with his guardian.  The defendant admitted that he was at the scene of the murder and that he had fired the weapon during the earlier shootings that day, but he said that at the time of the murder, he had given the gun to a fellow gang member.

Because Monteiro was seventeen years old at the time of the crimes, the Family Court entered an order waiving its jurisdiction over the defendant; a grand jury subsequently returned a twenty-eight-count indictment against him.  The jury convicted him of nine counts in the indictment.  After the trial justice denied his motion for a new trial, he was sentenced to two mandatory, consecutive sentences of life imprisonment for first-degree murder and for using a firearm resulting in death.  He was also sentenced to concurrent ten-year prison sentences for the conspiracy count and the weapons charges, plus ten years suspended, with ten years of probation, for using a firearm while committing a felony.

On appeal to the Supreme Court, Monteiro argued that the trial justice erred when he refused to suppress statements he made to the police, and in allowing the prosecutor to make prejudicial remarks during the opening statement.  The defendant also contended that dual convictions for first-degree murder and using a firearm while committing a crime of violence resulting in death violated the Double Jeopardy Clauses of the state and federal constitutions as well as the separation of powers required by Article V of the Rhode Island Constitution, and additionally amounted to cruel and unusual punishment.

After reviewing the trial justice’s factual findings and credibility determinations with the requisite deference, the Supreme Court determined that the trial justice did not err when he found by clear and convincing evidence that the defendant’s statements to the police were the product of a knowing and voluntary waiver of his constitutional rights and were not obtained by threats, promises, or other inducements.  The Court concluded that the defendant’s statements were voluntary and that the trial justice did not err when he refused to suppress them.  The Court determined that the defendant waived his objection to the prosecutor’s opening statement because he did not move for a mistrial, request a cautionary instruction, or show that to do so would be futile.  Additionally, the Court held that, even if the issue was preserved, the defendant’s argument would fail because the remark was not unduly prejudicial so as to warrant a mistrial.  Finally, the Court determined that the defendant’s convictions were constitutional and did not violate principles of double jeopardy or separation of powers and did not amount to cruel and unusual punishment.  The Supreme Court affirmed the judgments of conviction.

State v. Robert M. Bernard, No. 06-15 (June 21, 2007)

The defendant, Robert M. Bernard (defendant), appeals from a Superior Court judgment that he violated the conditions of his probation imposed in conjunction with a suspended sentence.  On appeal, the defendant argued that the hearing justice violated his due process right to confront and cross-examine witnesses by admitting a Rhode Island probation officer’s hearsay testimony about alleged probation violations occurring in Massachusetts while the Massachusetts Probation Department (MPD) was supervising the defendant’s probation. 

The Rhode Island Supreme Court sustained the defendant’s appeal.  The Supreme Court held that the hearing justice erred in failing to conduct an inquiry into whether there was good cause for denying the defendant’s confrontation rights pursuant to State v. DeRoche, 120 R.I. 523, 389 A.2d 1229 (1978), before he admitted the Rhode Island probation officer’s hearsay testimony.  Without that probation officer’s hearsay testimony, the Court was uncertain whether the remaining state’s evidence would have prompted the hearing justice to find the defendant in violation of his probation.  Consequently, the Supreme Court vacated the Superior Court’s judgment and remanded the papers in the case for a new hearing consistent with its holding. 

State v. Timothy Stone, No. 06-24 (June 20, 2007)

In this case, the defendant, Timothy Stone (defendant or Stone), appeals from a Superior Court conviction for numerous felonies, including robbery, assault with intent to murder, commission of a crime of violence while armed with a firearm, carrying a firearm without a license, and four counts of assault with a dangerous weapon.

The defendant argued: (1) that his dual convictions for robbery and the commission of a crime of violence while armed with a firearm violated the double-jeopardy bar; (2) that no evidence was presented to the grand jury about the "taking" element of robbery, and thus his constitutional right to be charged by way of grand jury indictment was violated; (3) there was insufficient evidence adduced at trial to prove the crime of robbery; and (4) the trial justice erred in allowing the emergency room doctor who treated one of the victims to testify about the trajectory of the bullet that caused that victim’s head wound.

The Supreme Court held that Stone’s convictions for both robbery and the commission of a crime of violence while armed did not violate the double-jeopardy bar because each charge required separate evidence of an element not required by the other charge, and thus complied with the  Blockburger "same evidence" test as adopted by the Court.

The Court also rejected Stone’s argument that there was insufficient evidence of a taking  of money or property presented to the grand jury; the Court refused to invade the province of the grand jury, and declared that any potential defect in the grand jury indictment was cured by the trial jury’s finding of guilt beyond a reasonable doubt. 

Additionally, the Court rejected Stone’s argument about the sufficiency of the evidence of first-degree robbery, stating that the trial justice did not err in finding ample circumstantial evidence to support the jury’s conviction on that charge.

 Finally, the Court held that the trial justice did not err in allowing the testimony of the emergency room physician who treated a victim’s gunshot wound, holding that this  witness had ample "education, training, employment, or prior experiences" to qualify as an expert in this area.  State v. Villani, 491 A.2d 976, 979 (R.I. 1985).

For all of the foregoing reasons, the judgment of the Superior Court was affirmed. 

State v. Radames Gonzalez, No. 05-324 (June 20, 2007)

In 2000, a joint Rhode Island State Police and Federal Bureau of Investigation (FBI) task force (Task Force), was set up to combat drug trafficking.  Detective Michael Douglas (Det. Douglas), working as an undercover officer, was notified by a confidential informant (informant) that defendant Radames Gonzalez (defendant or Gonzalez) was selling cocaine in Providence.  Detective Douglas accompanied the informant on several drug buys and learned where the defendant lived and what vehicle he drove.  The reports of these encounters were memorialized on FBI 302s (summaries of interviews and witness statements), which were not provided to the defense during discovery.  At some point in the investigation, the defendant began dealing with Det. Douglas directly; the two met several times at a prearranged place, exchanging money for cocaine. 

After several drug buys had taken place, officers obtained search warrants for the defendant’s person, as well as his home and vehicle, and they set up a sting.  On August 13, 2003, Det. Douglas contacted Gonzalez, purportedly to purchase $400 worth of cocaine, and the two agreed to meet.  Detective Douglas, who was accompanied by several officers who planned to arrest Gonzalez, search his car, and then execute the search warrant at his home, approached the vehicle; Gonzalez then became aware of the other officers and attempted to escape through the vehicle’s window.  He resisted arrest, and was apprehended after a struggle with police.  Searches of the defendant’s vehicle and home produced cash, cocaine, and drug paraphernalia; in total, between five and six ounces of cocaine were seized.

After a jury trial, the defendant was convicted on numerous drug charges, including three counts of delivery of cocaine; possession of one ounce to one kilogram of cocaine; possession of cocaine with intent to deliver; and resisting arrest.  He was sentenced to fifteen years in the Adult Correctional Institutions, with three years to serve and twelve years suspended, with probation for the cocaine offenses and a concurrent sentence of one year to serve for resisting arrest.  The defendant filed a timely notice of appeal, and he argues that three separate discovery violations by the state denied him a fair trial. 

The defendant argued before the Supreme Court that the state failed to produce three of the four toxicology reports for the cocaine and that defense counsel prepared for trial assuming that this evidence did not exist.  The Supreme Court deemed this issue waived; since the defendant failed to object until after the reports were admitted into evidence at trial without objection, the issue was not preserved.

The defendant next contended that that state violated Rule 16 by failing to furnish him with the 302s about uncharged drug purchases.  Defense counsel argued that he would not have opened the door to the issue of uncharged drug offenses if he had known about the 302s and that the defendant’s trial strategy had been adversely affected by the nondisclosure.  The trial justice, although finding a Rule 16 violation, determined that he was not confronted with deliberate nondisclosure by the prosecution, and he declined to pass the case.  The Supreme Court agreed with the finding that the violation was not intentional; but it disagreed with the trial justice about the remedy.  The Court determined that the only appropriate sanction for such a prejudicial discovery violation was a mistrial.  See, e.g., State v. Evans, 668 A.2d at 1256, 1259 (R.I. 1996); State v. Simpson, 595 A.2d 803, 808 (R.I. 1991); State v. Darcy, 442 A.2d 900, 902 (R.I. 1982).

The defendant also argued that he suffered irreparable harm by the state’s failure to turn over evidence of an alleged statement that the defendant made to police about the location of his bedroom.  The Supreme Court held that the statement should have been disclosed to the defendant, but that alone, it was not so prejudicial as to warrant a mistrial.

The Supreme Court vacated the defendant’s conviction and remanded the case to the Superior Court for a new trial.

Kent Trainor v. The Standard Times et al, No. 06-97 (June 20, 2007)

The plaintiff, Kent Trainor, appeals from a Superior Court judgment in favor of the defendant, The Standard Times.  The plaintiff filed a defamation action against that newspaper as a result of an article published by the defendant on March 15, 2001.  On appeal, the plaintiff’s sole contention was that the trial justice erred in dismissing, pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, the plaintiff’s defamation claim on the basis of privilege.

The Supreme Court held that the trial justice properly granted the motion for judgment as a matter of law pursuant to Rule 50 because the publication at issue in this case was privileged under the common law fair report privilege.

For these reasons, the Supreme Court affirmed the judgment of the Superior Court. 

State v. Darcy W. Forbes, No. 06-247 (June 15, 2007)

The defendant, Darcy W. Forbes, appealed from a judgment of conviction adjudging him in violation of probation and sentencing him to serve a previously suspended thirty-three month sentence. The defendant had been presented as a probation violator based upon a criminal complaint alleging that he had committed first-degree sexual assault.  On appeal, the defendant contended that the hearing justice’s findings of fact were insufficient to support his conclusion that the defendant failed to keep the peace or remain on good behavior.

After a review of the record, the Supreme Court concluded that the hearing justice acted arbitrarily in adjudicating the defendant a probation violator based upon the five findings of fact articulated at the probation-revocation proceeding.  Although the Court noted that there was ample evidence in the record that, if credible, would have supported a finding that the defendant violated the conditions of his probation by failing to keep the peace and be of good behavior, the hearing justice failed to make any findings concerning the defendant’s conduct relative to the underlying charge.  Moreover, the Court held that the enumerated findings of bad behavior were insufficient to support an adjudication of a probation violation.  The Court vacated the judgment of conviction and remanded the case to the Superior Court for further proceedings.

Maryann Rachal et al v. Mary O'Neil et al, No. 06-135 (June 15, 2007)

Mary Rachal appealed from a judgment of the Superior Court denying her motion to amend a complaint that she had filed on behalf of her minor child; she also appealed the hearing justice’s grant of summary judgment "in the alternative" to all the defendants.  After reviewing the scope of Rhode Island’s general disability tolling statute (G.L. 1956 § 9-1-19) the Supreme Court held that the hearing justice had erred in denying the motion to amend and vacated that denial.  The Supreme Court also vacated on procedural grounds the alternative grant of summary judgment.

Mary Rachal’s son Joseph fractured his right tibia and fibula when he attempted to "drop in" to a twelve-foot half pipe at Skater’s Island skate park.  Almost two years after Joseph Rachal’s ill-fated foray into the half pipe at Skater’s Island skate park, his parents (the Rachals) filed a complaint seeking redress for his injuries and for their own loss of consortium, as well.  More than a year later, the Rachals sought to amend their complaint and add a defendant, but their motion to amend was rebuffed in Superior Court, notwithstanding § 9-1-19, which tolls the statute of limitations on personal injury actions that accrue to minors until they turn eighteen.  After the hearing justice denied the Rachals’ motion to amend, he went on to grant, in the alternative, the defendants’ motion for summary judgment on the grounds of assumption of the risk.

 The Supreme Court cited Bliven v. Wheeler, 23 R.I. 379, 50 A. 644 (1901), Bishop v. Jaworski, 524 A.2d 1102 (R.I. 1987), and Bakalakis v. Women & Infants Hospital, 619 A.2d 1105 (R.I. 1993), as well as persuasive authority from other jurisdictions to support its holding that the institution of a suit by parents on behalf of their minor child does not remove the child’s personal injury claims from the protection of § 9-1-19.  In vacating the summary judgment awarded to the defendants, to the extent that it was issued in the alternative and predicated on assumption of the risk, the Court reasoned that from a procedural perspective, by the time the hearing justice had  ruled on assumption of the risk, the moving parties themselves no longer were at risk. 

State v. Oliver S. Lyons, No. 05-203 (June 14, 2007)

The defendant, Oliver S. Lyons (defendant), appealed pro se from a judgment of conviction on one count of assaulting a correctional officer with bodily fluids in violation of G.L. 1956 § 11-5-8.1.  The defendant advanced a number of arguments on appeal:  (1) the trial justice erred in denying his motion for a new trial; (2) the trial justice abused his discretion in restricting the defendant’s right to cross-examine witnesses about possible motive and bias; (3) the trial justice erred in failing to find that State Police and ACI officials acted in bad faith when they destroyed Officer Dennett’s uniform, thus preventing the defense from examining or testing it for the presence of bodily fluid; (4) the trial justice exhibited "judicial bias" and "a high degree of antagonism toward the defendant" in the presence of the jury; and (5) the trial justice erred in deeming the defendant a habitual offender pursuant to G.L. 1956 § 12-19-21. 

The Rhode Island Supreme Court denied the defendant’s appeal and affirmed the Superior Court’s judgment, holding that the trial justice did not err in denying the defendant’s motion for a new trial, that the trial justice gave the defendant great leeway in cross-examining witnesses and did not abuse his discretion when he restricted the defendant’s right to cross-examine witnesses on possible bias, that the trial justice did not err by not finding that the State Police and ACI officials acted in bad faith or against policy when they destroyed the ACI officer’s soiled uniform, that the trial justice exhibited no judicial bias, and, finally, that the defendant was correctly deemed a habitual offender. 

State v. Manuel Pablo, No. 06-59 (June 14, 2007)

The defendant, Manuel Pablo (defendant), appealed his conviction for first-degree sexual assault and kidnapping, which stemmed from two violent sexual assaults in the City of Warwick during the summer of 2003.  The defendant argued that (1) his conviction for kidnapping could not stand because the kidnapping was merely incidental to the sexual assault, and (2) the denial of his motion for a new trial was error.  The Rhode Island Supreme Court ruled contrary to the defendant’s assertions on both points.  The Court first held that forcibly seizing a defenseless victim and transporting him or her in the back of a vehicle constitutes the independent crime of kidnapping.  Additionally, the Court afforded deference to the trial justice’s belief of the victims’ testimony, and it perceived no error in the denial of the defendant’s new-trial motion.

For these reasons, the Supreme Court affirmed the judgment of the Superior Court.

William Burke v. State of Rhode Island, No. 06-124 (June 14, 2007)

The applicant, William Burke (Burke or applicant), appealed the denial of his application for postconviction relief in the Superior Court.  He argued that his trial counsel had not afforded him effective assistance of counsel by failing to timely file a motion to reduce the applicant’s sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.  The Rhode Island Supreme Court held that because (1) there was no authority for the proposition that failure to file a timely Rule 35 motion per se amounted to constitutionally deficient representation and (2) there was a tactical reason for the attorney’s omission, the Superior Court did not err in denying Burke’s application for postconviction relief.  The Supreme Court affirmed the judgment of the Superior Court. 

Russell Alessio v. State of Rhode Island, No. 05-269 (June 14, 2007)

Russell Alessio (Alessio or applicant) brought an application for postconviction relief before the Superior Court after he received a twenty-year sentence on a second-degree child-molestation conviction, with fifteen years to serve in the Adult Correctional Institutions (ACI) and the other five years suspended. In his application he alleged both ineffective assistance of counsel and cruel and unusual punishment.

The basis for the claim of ineffective assistance of counsel was that trial counsel did not investigate or call three witnesses that Alessio believed would give testimony to show that the mother of the complaining witness, who testified at trial, was biased against him. The applicant also urged that trial counsel should have introduced medical evidence that showed there was no sexual penetration, as alleged by the complaining witness.

At the hearing, trial counsel testified that he made a tactical decision not to call the witnesses Alessio suggested because, in his experience, it was the credibility of the complaining witness that was of primary importance. Significantly, none of the three witnesses applicant proposed testified at the postconviction-relief hearing about what they would have testified to at trial. Further, it was established at the hearing that trial counsel was able to secure acquittals for Alessio with respect to each of the three first-degree child-molestation charges he faced.

The allegation of cruel and unusual punishment was based on the length of his sentence, and the fact that it exceeded both the benchmark guidelines for the crime and the average sentence imposed upon individuals convicted of the same crime.

The hearing justice rejected Alessio’s arguments. He found that trial counsel made a reasoned tactical decision not to call the witnesses Alessio suggested. He further found that trial counsel used the absence of the medical evidence skillfully to obtain acquittals on the first-degree child-molestation charges, the charges for which that evidence was most relevant. He also denied the argument of cruel and unusual punishment, finding that the sentence imposed was well within the range that the Legislature provided in the applicable criminal statute.

On appeal, the Supreme Court concluded that trial counsel effectively represented Alessio in obtaining acquittals on the most serious charges. The Court also held that the fact that the witnesses were not produced at the hearing rendered any harm to the defense speculative. Finally, the Court held that Alessio’s sentence was not cruel and unusual because even though it exceeded both the benchmarks for the crime and the average sentence, a sentencing judge is bound only by the statutory limits for the crime, and the proper test to determine whether a sentence is cruel and unusual is whether the punishment fits the crime, not whether it is in line with other sentences. Thus, the Court held that the hearing justice did not overlook or misconceive material evidence, nor was he clearly erroneous when he denied Alessio’s application for postconviction relief. 

State v. David LaRoche, No. 05-274 (June 14, 2007)

In 1993, the defendant, David LaRoche, was convicted on two counts of obtaining money by false pretenses and three counts of conspiracy with respect to several transactions in which he defrauded two Rhode Island credit unions out of more than $4 million.  As a result of this conviction the defendant received a ten-year sentence, five to serve and five years suspended, with probation, and was ordered to make restitution for the money he falsely acquired.  A consent order establishing his restitution obligation at $4,452,909.12 was entered in 1998.  Two years later, after executing an affidavit of financial condition containing false material declarations and testifying to the truth of that affidavit at a hearing to determine his ability to pay restitution, the defendant was charged with two counts of perjury and one count of filing a false document.  To avoid further jail time, the defendant negotiated a plea agreement in which he pled nolo contendere to one count of perjury and received a ten-year suspended sentence, with ten years of probation, to run consecutively to the sentence imposed for his first conviction.  The defendant also agreed to execute another consent order (2000 consent order) that established a payment schedule for his outstanding restitution obligation.

About five years later, the defendant filed a motion to correct what he contended was an illegal sentence, arguing that the Superior Court lacked the authority to impose the 2000 consent order as a condition of his sentence for the perjury conviction.  He asserted that G.L. 1956 §§ 12‑28-5 and 12-28-5.1, promulgated as part of the Victim’s Bill of Rights, limited the court’s authority to impose a restitution order to situations in which a victim suffers economic loss directly attributable to the conduct for which a defendant has been convicted.  The defendant contended that no economic loss resulted from his perjurious conduct and that, therefore, the court was not authorized under law to condition his sentence on a previous restitution obligation.  After his motion was denied by the Superior Court, the defendant appealed.

Before the Supreme Court, the defendant renewed his argument that the Superior Court lacked the authority to impose the 2000 consent order as a condition of his perjury sentence because the restitution obligation was not proximately related to the defendant’s perjurious conduct.  Engaging in a de novo review, the Court determined that G.L. 1956 § 12-19-32, which authorizes a sentencing court to impose restitution, offered ample authority for the sentencing justice in this case to condition the defendant’s perjury sentence upon the 2000 consent order.  Moreover, the Court recognized that the defendant explicitly agreed to the consent order and discerned no grounds for relieving the defendant from the conditions for which he bargained and from which he benefited. 

Michael P. Trainor v. Paul Grieder, No. 06-140-Appeal (June 11, 2007)
 

The defendant, Paul Grieder (defendant), appealed from an order of the Superior Court increasing his monthly payment obligation on an outstanding civil judgment entered against him in 1992. The Rhode Island Supreme Court held that the defendant’s ability to pay was not properly before the Superior Court because the plaintiff, Michael P. Trainor, had not shown cause for such action or given the defendant written notice of a hearing concerning that issue pursuant to G.L. 1956 § 9-28-7. The Supreme Court reversed the ruling of the Superior Court and remanded the case for a hearing forthwith on the appropriate sanctions and counsel fees to be assessed against the defendant under an outstanding order adjudging him in willful contempt.

Laureen A. DeAngelis v. Peter E. DeAngelis, No. 05-338 (June 1, 2007)

The defendant, Peter E. DeAngelis (defendant or Peter), appealed from a Family Court judgment that awarded the plaintiff, Laureen A. DeAngelis (plaintiff or Laureen), 80 percent of the marital assets.  The defendant argued (1) that the trial justice erred in ruling that the defendant was not entitled to any portion of the plaintiff’s disability pension and (2) that the trial justice erred in his ultimate division of the marital assets.

The Supreme Court held that the trial justice did not abuse his discretion when he concluded that, since any amounts received under Laureen’s pension before July 28, 2010 constituted nonmarital property, Peter was not entitled to receive any share of them.  The Court also concluded that the trial justice did not err in finding that Peter and Laureen had entered into a valid oral contract, in which Peter waived his right to any interest he may have had in Laureen’s pension even after July 28, 2010.  Additionally, the Supreme Court upheld the trial justice’s division of the marital assets.

For these reasons, the Supreme Court affirmed the judgment of the Family Court.   

State v. Eugene Texter, No. 06-131 (June 1, 2007)

The defendant, Eugene Texter, was charged by information with two counts of second-degree sexual assault, in violation of G.L. 1956 § 11-37-4, and one count of simple assault, in violation of G.L. 1956 § 11-5-3.  Following a hearing that resulted in the denial of the defendant’s pretrial motions to suppress (1) the victim’s identifications of the defendant and (2) certain tangible evidence seized by the police, a trial was held.  At the conclusion of the trial, the jury returned guilty verdicts on all three counts.

On appeal, the defendant contended that the denial of his motion to suppress the complainant’s out-of-court and in-court identifications constituted reversible error because, according to the defendant, said identifications were procured by impermissibly suggestive procedures.  The defendant also contended that the hearing justice erred in denying his motion to suppress certain tangible evidence seized by the police after they stopped him since, according to the defendant, he did not freely and voluntarily consent to a search. 

The Supreme Court held that there was no error with respect to the hearing justice’s conclusion that the show-up procedure that the police used to obtain the out-of-court identification of the defendant was not unnecessarily suggestive.  With respect to the seizure of certain tangible evidence, the Supreme Court held that one of the items that had been seized by the police was in plain view and was properly seized.  The Supreme Court also held that the defendant did not demonstrate that he had given the police consent to search involuntarily as a result of coercion.  Consequently, the police properly seized certain other items from the defendant after he had given them consent to search his property. 

Accordingly, the judgment of conviction was affirmed.

In re Destiny D, et al, No. 06-20 (May 25, 2007)

this case, the respondents, Katherine Bunnell (Bunnell) and Gilbert Delestre (Delestre) (collectively respondents), appeal from a decree of the termination of their parental rights to two daughters, Destiny and Daziya.  After a lengthy trial in which the tragic details of the death of T.J. Wright (T.J.), a child in the foster care of Bunnell and Delestre, unfolded, the trial justice found by clear and convincing evidence that the injuries that T.J. suffered were inflicted by the respondents; as such, the trial justice found Bunnell and Delestre to be unfit parents, under G.L. 1956 § 15-7-7(2)(ii), "by reason of conduct or conditions seriously detrimental to the child * * * of a cruel or abusive nature[.]"  He then found that it was in the best interest of Destiny and Daziya that Bunnell and Delestre’s parental rights be terminated.

The respondents appealed, raising separate points of error.  Bunnell argued that the trial justice erred in admitting her prior statements into evidence after she had invoked her Fifth-Amendment privilege at trial, and, additionally, that he erred in drawing adverse inferences from her refusal to testify.  Delestre argued that the trial justice abused his discretion and violated Delestre’s due process rights when he denied Delestre’s motion to compel T.J.’s older brother to testify.  Delestre also argued that the trial justice was clearly wrong when he found facts sufficient to terminate Delestre’s rights.

The Supreme Court denied respondents’ appeals.  The Court held that the trial justice properly admitted Bunnell’s prior statements under Rule 801(d) of the Rhode Island Rules of Evidence, as admissions of a party opponent which were voluntarily given.  The Court also held that the trial justice did not err in drawing adverse inferences from Bunnell’s refusal to testify.

Concerning Delestre’s claims of error, the Court held that the trial justice acted within his sound discretion in refusing to enforce the subpoena compelling T.J.’s brother to testify, based on the best interests of that child, and the expert opinion of that child’s treating physician, who opined that testifying at the termination proceeding would only further traumatize the child.  The Court also denied Delestre’s argument challenging the trial justice’s findings of fact, holding that the trial justice’s findings were amply supported by the abundance of evidence presented at trial.

As such, the Court affirmed the judgment of the Family Court terminating Bunnell and Delestre’s parental rights to Destiny and Daziya.

State v. Jonathan Oster, No. 04-324 (May 22, 2007)

This is the state’s appeal from an order of the Superior Court that excluded the use of certain wiretap evidence in the prosecution of Jonathan Oster (Oster or defendant), which evidence was obtained in accordance with General Laws 1956 chapter 5.1 of title 12, entitled "Interception of Wire and Oral Communications" (Wiretap Act).  The trial justice found that the state violated the sealing provision of the Wiretap Act and suppressed the evidence.  The state argued that Oster was not an "aggrieved person" as defined by § 12-5.1-1 of the Wiretap Act, and thus did not have standing to move for the suppression of the wiretap evidence, as provided for in § 12-5.1-12(a). 

The state also appealed from a Superior Court order that compelled the state to provide Oster with a comprehensive discovery response, including a narrowly delineated list of witnesses expected to testify at trial and summaries of anticipated testimony.  The state was also directed to provide summaries of defendant’s prior statements, a specification of trial exhibits, and an identification of evidence to be proffered under Rule 404(b) of the Rhode Island Rules of Evidence. 

The Supreme Court affirmed the Superior Court order suppressing the wiretap evidence, holding that Oster need not be an "aggrieved person" as defined by § 12-5.1-1 for the independent remedy of suppression, as provided for in § 12-5.1-8(a), to apply.  Section 12-5.1-8(a) mandates that "[t]he presence of the seal provided for by this section, or a satisfactory explanation for its absence, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic, or oral communication or evidence" and nothing in this provision limits it application to aggrieved persons.  Accordingly, the Supreme Court denied this aspect of the state’s appeal.

Concerning the contested discovery order, the Supreme Court held that the trial justice exceeded the bounds of her discretion in ordering the state to produce material that goes beyond the requirements of Rule 16 of the Superior Court Rules of Criminal Procedure.  The Court vacated the portion of the order requiring the state to clearly specify its witnesses’ testimony beyond what is required by the provisions of Rule 16(a)(7), (8).  The Court also vacated that portion of the order requiring the state to summarize and itemize the statements of defendant that it intended to introduce at trial, holding that the state need only produce all statements and summaries of oral statements for defendant to "inspect or listen to and copy." 

Finally, the Court vacated the portion of the order requiring the state to disclose which evidence it intended to introduce at trial under Rule 404(b), holding that the proper vehicle to determine whether such evidence exists and is admissible at trial would be the judicious use of motions in limine.

Accordingly, the state’s appeal was denied in part and granted in part and the case was remanded to the Superior Court for further proceedings consistent with the opinion.

State v. Sonny Fortes, No. 06-83 (May 22, 2007)

The defendant, Sonny Fortes, appealed to the Supreme Court from a judgment of conviction after a jury found him guilty of two counts of first-degree sexual assault, in violation of G.L. 1956 § 11-37-2, and of one count of burglary, in violation of G.L. 1956 § 11-8-1.  The defendant’s sole argument on appeal was that the trial justice erred in permitting certain comments made by the prosecutor in her closing argument to the jury to stand.  According to the defendant, those comments (1) were neither supported by the evidence nor by the reasonable inferences that could be drawn therefrom and (2) were unfairly prejudicial to the defendant. 

The Supreme Court held that the defendant’s objection to the first allegedly prejudicial remark, upon which the trial justice did not actually rule, was not properly preserved for appellate review because the defendant had failed to request cautionary instructions or move for a mistrial.  With respect to the second objected-to statement, which had been overruled at trial, the Supreme Court chose to reach the merits of the defendant’s objection despite his failure to request cautionary instructions or move for a mistrial.  As to the merits, the Court held that the prosecutor’s comment represented a reasonable inference that could properly be drawn from the evidence in the record and was not unfairly prejudicial to the defendant.

Accordingly, the judgment of conviction was affirmed.

Eleanor T. Jerome v. Probate Court of the Town of Barrington et al, No. 06-123 (May 17, 2007)

The decedent, Lido Jerome (Jerome), died intestate, survived by his wife, Eleanor T. Jerome (plaintiff or life tenant), as well as two sisters and two nieces (remaindermen).  Jerome’s only Rhode Island asset was an office condominium located in Barrington.  When an owner of real property dies intestate in Rhode Island, his or her surviving spouse is entitled to a life estate in the property, and the remainder interest passes to his or her heirs at law.  See G.L. 1956 § 33-1-5 and G.L. 1956 §§ 33-25-2(a) and 33-25-3.  Upon agreement of the parties, the Probate Court ordered the condominium sold and set the present value of the life estate to be paid to the surviving spouse, and the difference to the remaindermen.  In this case, the life estate was worth 68 percent and the remainder interest was worth 32 percent.

The plaintiff, as administratrix of Jerome’s estate, prepared a final accounting, including the expenses of administration, which were allocated in full to the remainder estate.  The remaindermen objected, and the probate judge ordered that the expenses of administration be allocated between the life tenant and remaindermen based on the same ratio as the division of assets.  The Superior Court affirmed the order of the Probate Court, and the Supreme Court reversed. 

Under Rhode Island law, the statutory life estate granted to the surviving spouse takes precedence over most creditors, and is subject to only those encumbrances and liens existing at the time of decedent’s death.  See §§ 33-1-5, 33-25-2(a) and 33-25-3.  On appeal, the remaindermen argued that the expenses of administration were akin to a mortgage lien, and therefore represented an existing obligation that should be treated as an encumbrance, to which the life estate should also be subject.

The Supreme Court determined that there was no authority for the contention that the expenses of administration constitute a lien or an encumbrance on the property, and noted that the language of §§ 33-1-5, 33-25-2(a), and 33-25-3, demonstrates the Legislature’s intention that a life estate takes precedence over most debts and claims against the estate.  Accordingly, the Supreme Court vacated the judgment and remanded the case to the Superior Court with directions to enter a new judgment allocating the expenses of administration solely against the remainder interest.

State v. Craig DiPetrillo, No. 05-88 (May 17, 2007)

After a jury-waived trial, the defendant, Craig DiPetrillo, was convicted of sexually assaulting a young female in the employ of his business.  The defendant did not dispute that sexual contact had occurred, but argued that it was consensual.  He was found guilty of one count of first-degree sexual assault and one count of second-degree sexual assault.  The defendant moved for a new trial based on newly discovered evidence about the complaining witness that had come to light in a presentence report.  The motion was denied, and the defendant was sentenced to twenty years, with six years to serve on the first-degree sexual assault charge, and a concurrent term of ten years, two years to serve on the second-degree sexual assault charge.

Before the Supreme Court, the defendant alleged two points of error: (1) the trial justice erroneously defined the elements of first- and second-degree sexual assault; and (2) the trial justice improperly denied the defendant’s motion for a new trial. 

The Supreme Court held that the trial justice erred when he based his finding of guilt in part on a theory of implied threats and psychological coercion.  Additionally, the Court vacated the judgments of conviction and remanded the case to the trial justice to conduct an independent examination of the evidence to determine whether the state established the defendant’s guilt beyond a reasonable doubt of the crimes charged based solely on the element of physical force as defined in G.L. 1956 § 11-37-1(2)(ii).  Finally, the Supreme Court upheld the denial of the motion for a new trial.  The Supreme Court vacated the judgment of conviction and remanded the case to the Superior Court with directions to enter a new judgment in accordance with its decision.

State v. Christopher Vocatura, No. 06-66 (May 17, 2007)

On September 30, 2005, after a jury trial in the Superior Court, the defendant was convicted of felony domestic assault for kicking the victim, Tammy Frazer, in the stomach, on or about December 23, 2004, causing her serious injuries. 

Before the trial, the state propounded a discovery request on defendant.  In his response, defendant asserted, among other things, that (1) his attorney of record would testify about a phone call that Frazer allegedly made to the attorney, in which Frazer admitted that her injuries were caused by a fall down the stairs and not by an assault, and (2) the couple’s roommate at the time of the incident would testify that he witnessed a confrontation between defendant and Frazer that occurred in the bathroom of their home, but that he observed no physical contact between the two.

The state made a motion in limine to exclude the attorney’s proposed testimony arguing that it was barred by Article V, Rule 3.7 of the Supreme Court Rules of Professional Conduct.  The trial justice agreed and granted the motion.  However, he also said that he would consider further argument on the issue if the attorney believed that his proposed testimony was required to impeach any of Frazer’s contentions after he cross-examined her.

At trial, defendant and the victim told markedly different stories.  The victim contended that she suffered severe injuries after being kicked in the stomach by defendant during an argument in the couple’s bathroom.  Conversely, defendant testified that, although the two were involved in a minor confrontation in the bathroom, no assault occurred, and the victim did not complain of any physical ailments whatsoever after that incident.

On cross-examination of Frazer, defense counsel asked whether she recognized him from prior encounters, and whether she remembered calling him shortly after she suffered her injuries.  Frazer denied knowing him or ever making any calls to him.  Thereafter, the attorney requested that the court allow him to testify about his alleged telephone conversation with Frazer to impeach Frazer’s testimony.  The trial justice denied this request on the ground that defense counsel was unable to lay a proper foundation for the testimony.

The defendant called the roommate to corroborate his version of the facts.  He testified that he witnessed the entire exchange between the couple in the bathroom and that the only contact that he saw occurred when the victim grabbed the leg of defendant as he was attempting to leave the bathroom.  The state objected to this testimony and argued that it was a discovery violation because defendant’s discovery response specifically said that the roommate would testify that he observed "no contact" between defendant and the victim while in the bathroom.  The trial justice agreed and concluded that because the evidence was prejudicial to the state it should be stricken from the record. 

 Ultimately, the jury found defendant guilty of felony domestic assault, and defendant timely appealed.  On appeal defendant argued that the trial justice committed reversible error when he (1) disallowed defense counsel’s proposed testimony, and (2) struck from the record certain portions of the roommate’s testimony. 

The Supreme Court held that although the trial justice erred with respect to his exclusion of defense counsel’s testimony on foundational grounds, the exclusion of the attorney as a witness was justified under Rule 3.7 because the attorney never requested withdrawal as counsel for the defendant.  The Court reasoned that because the attorney knew, before trial, that he was a potential witness in the trial in which he was to act as an advocate, the burden was on him to withdraw from the case when such withdrawal would have caused minimal prejudice to his client.  The Court concluded that in this particular situation, to allow the attorney to testify in the same case in which he had chosen to remain an advocate would violate the specific mandate of Rule 3.7.       

Further, the Court held that the trial justice did not abuse his discretion when he struck the challenged portion of the roommate’s testimony.  The Court concluded that although the trial justice did not specifically enunciate the factors necessary to determine the proper sanction for a discovery violation, analysis of the language of the trial justice’s ruling revealed that the substance of those factors was considered.  Thus, the Court held, the trial justice’s failure to explicitly lay out the necessary factors by name did not constitute reversible error.  Further, after analyzing the language of the trial justice’s ruling, the Court held that the sanction of striking certain portions of the roommate’s testimony was not an abuse of discretion because a review of the trial justice’s findings indicated that he found the nondisclosure of the contents of that testimony was both deliberate and prejudicial.  The defendant’s conviction was affirmed.

State v. Henry Tillery, No. 05-304 (May 16, 2007)

A jury found the defendant, Henry Tillery, guilty of three counts of assault with a dangerous weapon.

On appeal, the defendant contended (1) that the trial justice erred in denying his motion for a judgment of acquittal and (2) that the trial justice erred in his jury instruction regarding assault with a dangerous weapon.

The Supreme Court upheld the trial justice’s denial of the defendant’s motion for a judgment of acquittal because it concluded that the evidence presented was sufficient to sustain a verdict of guilty beyond a reasonable doubt.  The Court did not reach the defendant’s second contention on appeal; it ruled that, because defense counsel opted not to object to the supplemental instruction that the trial justice gave to the jury, there was no adverse ruling to review on appeal.

For these reasons, the Supreme Court affirmed the judgment of the Superior Court.

Unistrut Corporation et al v. State of Rhode Island Department of Labor and Training, through its Director, Adelita S. Orefice, No. 06-115 (May 15, 2007)

When Rhode Island Hospital was building a new emergency room, the general contractor on the project contracted with Capco Steel to do much of the framing work. Capco Steel, in turn, hired Unistrut Corporation (Unistrut) to erect a steel support system upon which certain surgical equipment, including lighting, would be mounted. Scott Waage, Mark Watson, Raymond Parent, and Dean Wheeler (collectively, petitioners) were among the employees performing the construction.

A complaint that the petitioners were doing electrical work without a license led to an investigation by Glenn Dusablon, Chief Electrical Investigator for the Rhode Island Department of Labor and Training (labor department). Dusablon then issued notices to each of the petitioners that they were working in violation of G.L. 1956 § 5-6-2, because, he determined, the steel support system was an apparatus for carrying electricity, the construction of which requires an electrical license. The work continued, and the assistant director of the labor department issued cease-and-desist orders and levied fines against the petitioners. The petitioners appealed those cease-and-desist orders and fines to the director of the labor department.

The Board of Examiners of Electricians’ (the board) conducted a hearing, under § 5-6-32, and, afterward, recommended that the director deny the appeals. The director adopted the recommendation, however, instead of issuing a decision against Waage, issued a decision adverse to Unistrut. Subsequently, all the petitioners, as well as Unistrut, filed a complaint in the Superior Court to appeal the decision of the labor department.

A magistrate of the Superior Court reversed the imposition of the fines on procedural grounds, but affirmed the cease and desist orders, affirming the portion of the labor department’s order that determined that an electrical license was required to construct the steel support structure because it was meant to support electrical equipment. The petitioners and Unistrut petitioned the Supreme Court for a writ of certiorari. The Court granted that petition, assigned this case to the show cause calendar and directed the parties to show cause why the issues should not be summarily decided. After hearing summary argument, the Court held that cause had been shown, and reassigned the case for further briefing and plenary argument.

After full argument, the Supreme Court first noted that the case was moot because the work on the emergency room was completed and the vacation of the fines had not been challenged, but determined that it would review the decision because the short time frame for construction of these structures made it likely that this situation would be repeated while evading review.

The Court then examined the case in juxtaposition to two prominent cases dealing with when deference is given to administrative agencies in the interpretation of statutes: Labor Ready Northeast, Inc. v. McConaghy, 849 A.2d 340 (R.I. 2004), and Rossi v. Employees’ Retirement System, 895 A.2d 106 (R.I. 2006). The Court held that the language of the statute was unambiguous and does not require an electrician to erect the steel support structure at issue. Because the statute is unambiguous, the Court was not required to give deference to the agency interpretation. The Court, therefore, reversed the judgment of the Superior Court.

Maryann Rachal et al v. Mary O'Neil et al, No. 06-135 (June 15, 2007)

Mary Rachal appealed from a judgment of the Superior Court denying her motion to amend a complaint that she had filed on behalf of her minor child; she also appealed the hearing justice’s grant of summary judgment "in the alternative" to all the defendants.  After reviewing the scope of Rhode Island’s general disability tolling statute (G.L. 1956 § 9-1-19) the Supreme Court held that the hearing justice had erred in denying the motion to amend and vacated that denial.  The Supreme Court also vacated on procedural grounds the alternative grant of summary judgment.

 Mary Rachal’s son Joseph fractured his right tibia and fibula when he attempted to "drop in" to a twelve-foot half pipe at Skater’s Island skate park.  Almost two years after Joseph Rachal’s ill-fated foray into the half pipe at Skater’s Island skate park, his parents (the Rachals) filed a complaint seeking redress for his injuries and for their own loss of consortium, as well.  More than a year later, the Rachals sought to amend their complaint and add a defendant, but their motion to amend was rebuffed in Superior Court, notwithstanding § 9-1-19, which tolls the statute of limitations on personal injury actions that accrue to minors until they turn eighteen.  After the hearing justice denied the Rachals’ motion to amend, he went on to grant, in the alternative, the defendants’ motion for summary judgment on the grounds of assumption of the risk.  

 The Supreme Court cited Bliven v. Wheeler, 23 R.I. 379, 50 A. 644 (1901), Bishop v. Jaworski, 524 A.2d 1102 (R.I. 1987), and Bakalakis v. Women & Infants Hospital, 619 A.2d 1105 (R.I. 1993), as well as persuasive authority from other jurisdictions to support its holding that the institution of a suit by parents on behalf of their minor child does not remove the child’s personal injury claims from the protection of § 9-1-19.  In vacating the summary judgment awarded to the defendants, to the extent that it was issued in the alternative and predicated on assumption of the risk, the Court reasoned that from a procedural perspective, by the time the hearing justice had  ruled on assumption of the risk, the moving parties themselves no longer were at risk. 

State v. Derek A. Sivo, No. 04-358 (June 15, 2007)

On October 23, 2002, a jury found the defendant, Derek A. Sivo (defendant), guilty of one count of first-degree child abuse, in violation of G.L. 1956 § 11-9-5.3(b)(1).  The defendant appealed his conviction, alleging that the trial justice erred in:  (1) denying the defendant’s motion for a judgment of acquittal; (2) instructing the jury that the state was not required to prove that the defendant intended to inflict physical injury upon the child; (3) determining that the Family Court had subject-matter jurisdiction over this case; (4) directing a verdict on an element of the offense; and (5) imposing an enhanced sentence based on a factor not specifically found by the jury.  The defendant also contended that defects existed in the trial justice’s appointment and in jury selection, which rendered the proceedings null and void. 

The Rhode Island Supreme Court held that:  (1) the trial justice did not err in denying the defendant’s motion for a judgment of acquittal; (2) the trial justice did not err in his jury instruction on the mens rea required to convict the defendant of first-degree child abuse; (3) the Family Court properly exercised jurisdiction under § 11-9-9, which gives the Family Court exclusive jurisdiction over the offense with which defendant was charged; (4) the trial justice’s instruction on the age element of first-degree child abuse constituted harmless error beyond a reasonable doubt; (5) the chief judge of the District Court was properly assigned to the Family Court under G.L. 1956 § 8-15-3; (6) the defendant’s failure to follow the well-established procedure for challenging the constitutionality of a grand or petit jury constituted a waiver of his argument on appeal; and (7) the trial justice did not err in sentencing the defendant.   Accordingly, the Supreme Court affirmed the Family Court’s judgment.    

State v. Charles Pona, No. 05-95 (June 15, 2007)

The defendant, Charles Pona (defendant), appeals his Superior Court conviction for first-degree murder, carrying a pistol without a license, and attempted arson.  All charges stemmed from the senseless, random killing of Hector Feliciano in August 1999.  On appeal, defendant argued that:  (1) the trial justice committed clear error by overruling his Batson objection to the state’s use of a peremptory challenge to excuse the only black juror from the venire; (2) a detective should not have been permitted to testify about the defendant’s custodial statements during questioning because the state failed to prove that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights; (3) he was entitled to a Franks hearing because there were material misrepresentations made in the affidavit supporting his arrest warrant; and (4) the trial justice erred in denying his motion for a new trial.

The Rhode Island Supreme Court affirmed the defendant’s conviction.  Most significantly, the Court held that the trial justice did not err by overruling the defendant’s Batson objection.  Prospectively, however, the Court held that prosecutors, trial justices, and the Rhode Island Supreme Court must abide by the dictates of Miller-El v. Dretke, 545 U.S. 231 (2005), in scrutinizing the prosecution’s proffered race-neutral reasons for exercising a peremptory strike.  Furthermore, the Court held that, prospectively only, trial justices must address all proffered race-neutral reasons offered by the prosecution, as well as all arguments by a defendant that a purported justification was pretextual, and that these findings must be placed on the record.  As for the defendant’s other arguments, the Court held that:  (1) the defendant’s Miranda argument was without merit because the detective’s testimony was rebuttal evidence; (2) the trial justice did not err by refusing to grant the defendant a Franks hearing; and (3) the trial justice did not err by denying the defendant’s motion for a new trial. 

John M. Park v. Ford Motor Company, No. 05-115 (May 10, 2007)

The plaintiff, John M. Park, appealed from a Superior Court judgment dismissing all but one of his claims due to lack of subject-matter jurisdiction; he contended that the hearing justice misinterpreted the Supreme Court’s earlier opinion in Park v. Ford Motor Co., 844 A.2d 687 (R.I. 2004) (Park I).  In that case, the Supreme Court concluded that the plaintiff’s class claims under the Rhode Island Deceptive Trade Practices Act (DTPA), G.L. 1956 chapter 13.1 of title 6, should have been allowed to proceed in the Superior Court and that the hearing justice had erred in dismissing the plaintiff’s complaint for lack of subject-matter jurisdiction. 

With respect to the proceedings on remand, the plaintiff argued on appeal (1) that the hearing justice erred in concluding that Park I reinstated only the DTPA claim and (2) that the hearing justice erred in not exercising ancillary jurisdiction over the plaintiff’s other claims.

The Supreme Court held that the Superior Court correctly understood Park I as instructing that court on remand to consider only the viability of the plaintiff’s DTPA claims.  Additionally, the Supreme Court held that the Superior Court had subject-matter jurisdiction over all of the plaintiff’s individual claims if he chooses to join them to his DTPA claim pursuant to Rule 18(a) of the Superior Court Rules of Civil Procedure but that it does not have such jurisdiction over the plaintiff’s class claims.  Consequently, the Supreme Court concluded that that part of the Superior Court’s February 23, 2006 order that awarded final judgment in favor of the defendant with respect to the plaintiff’s individual claims under Count I (Violation of the Magnuson Moss Act), Count II (Breach of Implied Warranty), Count III (Breach of Express Warranty), and Count IV (Consumer Fraud pertaining to violations of § 3 of the Michigan Consumer Protection Act) was erroneous.

For these reasons, the Supreme Court vacated the judgment of the Superior Court to the extent that it precluded the plaintiff from pursuing each of his individual claims, but it affirmed that judgment in all other respects.   

Town of Burrillville v. Rhode Island State Labor Relations Board, No. 04-53

The Town of Burrillville (Town) sought review of a Superior Court decision denying the Town’s appeal of a decision by the State Labor Relations Board (SLRB), which held that the Town had committed an unfair labor practice in violation of the Rhode Island Labor Relations Act (Act), G.L. 1956 chapter 7 of title 28.  The dispute centered around a particular order issued by the Town’s chief of police that became effective on or about March 10, 1999 and that is referred to as "General Order No. 1."

Before the Supreme Court, the Town argued (1) that the election-of-remedies doctrine should have precluded Local 369 of the International Brotherhood of Police Officers (Union) from filing an unfair labor practice charge with the SLRB in reference to the dispute; (2) that the Town had no obligation to bargain over the implementation of General Order No. 1; and (3) that the Union waived its right to bargain over the implementation of General Order No. 1.

The Supreme Court declined to address the Town’s election-of-remedies doctrine argument because the Town had failed to raise this argument in the Superior Court and before the SLRB.  The Court then proceeded to hold that there was insufficient competent evidence in the record to support the SLRB’s determination that the

Union had not waived its right to bargain with the Town concerning General Order No. 1.    

For these reasons, the Supreme Court quashed the decision of the Superior Court and remanded the case to that court for entry of an appropriate judgment.

State v. Steven Quinlan, No. 04-36; State v. Frank Sanchez-Collins, No. 04-37 (May 1, 2007)

The defendants, Steven Quinlan (Quinlan) and Frank Sanchez-Collins (Collins) (collectively defendants), were arrested after an automobile stop in Massachusetts that ended in the discovery of human hands in a bloody bag in the vehicle in which the defendants were passengers.  The vehicle was stopped pursuant to Mass. Gen. Laws Ann. ch. 90, § 13 (West 2001), which prohibits any object that obstructs the driver’s view or impedes the operation of the vehicle.  Hanging from the vehicle’s rearview mirror were several air fresheners, beads and a flag that was several square inches in size, with an inch of fringe around it.  Because the occupants were acting suspiciously and repeatedly failed to keep their hands in sight of the officers, the police conducted a protective search for weapons, during the course of which the severed hands were discovered.  An investigation led police to an apartment in Providence, where they found two tortured and mutilated bodies.

After separate jury trials, the defendants were convicted of two counts of murder and two counts of conspiracy to murder Michael Batista and Rafael Edwards Ortega.  Each defendant was sentenced to two concurrent terms of life imprisonment without the possibility of parole for the murders and two ten-year sentences for the conspiracies.  Before the Supreme Court, both of the defendants raised similar constitutional challenges to the stop and subsequent search of the motor vehicle in Massachusetts.  The defendants contended that the trial justice erred when he declined to suppress the evidence obtained as a result of the search because the vehicle stop was lawful and the defendants lacked standing to challenge the search of the Jeep.

The defendants also asserted that the scope of the protective search for weapons was impermissibly broad.  The defendant Collins also asserted that the automobile stop was motivated by race, and the defendant Quinlan argued that the trial justice erred when he refused to pass the case based on juror misconduct and that the imposition of a sentence of life imprisonment without the possibility of parole was unwarranted.

The Supreme Court determined that the stop was proper and that the defendants had no reasonable expectation of privacy in the vehicle—and thus no standing to contest the search.  The Court declined to address the constitutionality of the search.  The Court rejected Collins’s allegation that the prosecution was racially based, and it denied Quinlan’s assignments of error as to the juror misconduct, and it concluded that the sentence of life imprisonment without the possibility of parole was proper.  The Supreme Court affirmed the judgments of conviction.

James Cassidy v. Lonquist Management Co., LLC et al, No. 05-242 (April 27, 2007)

The plaintiff, James Cassidy (Cassidy or plaintiff), filed suit in Rhode Island against Bradley Bush (Bush or defendant), and other defendants alleging that the defendant disseminated false information concerning Cassidy’s sexuality and sexual preferences, in violation of G.L. 1956 § 9-1-28.1.  The plaintiff said that after Bush had viewed a photograph of Cassidy posted at a McDonald’s restaurant in Providence that suggested the plaintiff was gay and a pedophile, he disseminated this information to others.  Cassidy and Bush are both Massachusetts residents who are employed by a Massachusetts company that distributes products to McDonald’s restaurant franchises in New England.

The defendant filed a motion to dismiss for lack of personal jurisdiction.  The trial justice determined that Bush did not have sufficient contacts with Rhode Island to establish general jurisdiction.  She further found that the alleged acts that formed the basis of the complaint occurred in Massachusetts and that therefore there was no basis for a finding of specific jurisdiction in Rhode Island.  The trial justice granted the motion and dismissed the claims for lack of personal jurisdiction.  The defendant appealed.  T he Supreme Court, on de novo review, affirmed the judgment.

To make out a prima facie case of personal jurisdiction, a plaintiff’s allegations must satisfy Rhode Island’s long-arm statute, G.L. 1956 § 9-5-33.  The Supreme Court concluded that Bush’s contacts with Rhode Island were not continuous, purposeful, or systematic, and were insufficient to establish general personal jurisdiction.  See Cerberus Partners, L.P. v. Gadsby & Hannah, LLP, 836 A.2d 1113, 1118 (R.I. 2003. 

Further, to establish specific jurisdiction, there must be evidence that the defendant purposely availed himself of the privileges, benefits, or protections of the forum state.  Rose v. Firstar Bank, 819 A.2d 1247, 1251 (R.I. 2003).  The Court held that there was no specific personal jurisdiction over Bush because his conduct did not amount to the purposeful availment of the privilege of doing business in Rhode Island. 

The Supreme Court noted that Bush was not conducting business on his own behalf, but rather was delivering products in the course of his employment as a truck driver for a Massachusetts company.  The mere fact that Bush made some work-related deliveries in Rhode Island was not sufficient to establish specific jurisdiction.  Furthermore, the cause of action alleged by the plaintiff was the result of alleged tortious acts that occurred in Massachusetts, not Rhode Island.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

Carolyn L. King v. Grand Chapter of Rhode Island Order of the Eastern Star et al, No. 06-133 (April 25, 2007)

Carolyn L. King (plaintiff) brought suit seeking damages for slander and injunctive relief after she was suspended indefinitely from the Order of the Eastern Star (OES) by the Worthy Grand Matron, the organization’s highest elected officer in Rhode Island. In a hearing before a justice of the Superior Court for a preliminary injunction, King argued that the organization had denied her the procedural safeguards guaranteed in the OES constitution and bylaws, and that therefore she should be reinstated. OES countered with the argument that the courts had no place interfering in the internal affairs of a private, voluntary, unincorporated association, and that, moreover, King had not shown the irreparable harm, clear right, and great urgency to warrant a mandatory preliminary injunction. The hearing justice granted the injunction, and OES timely appealed.

The Supreme Court examined the case law concerning judicial intrusion into the affairs of private unincorporated organizations and held that, when such an association makes rules, it creates mutually enforceable obligations on the organization and its members that sometimes will call for a judicial remedy, and that such intrusion was warranted in this case.

However, after the Court analyzed the decision of the hearing justice, it found that, although he properly articulated the onerous standard for granting a mandatory preliminary injunction – namely, a showing of a "very clear" right and "great urgency" – he did not find "great urgency" in this case. Accordingly, the Supreme Court reversed the decision of the hearing justice and vacated the preliminary injunction. 

State v. Russell Wiggins, No. 06-112 (April 20, 2007)

Russell Wiggins appealed a judgment of the Superior Court executing five years of his suspended sentence from a previous conviction.  At his probation hearing, Wiggins admitted to violating the terms of his probation, but on appeal he argued that the hearing justice erred when he vacated that admission and chose to proceed with a full hearing. Wiggins contended that the vacation of his admission occurred after the hearing justice already had sentenced him to serve six months of his suspended sentence. According to Wiggins, the subsequent continuation of the violation hearing effectively placed him in jeopardy a second time for the same offense. In addition to raising double-jeopardy concerns, Wiggins also appealed the hearing justice’s decision on procedural grounds, both criminal and civil, and on the principle of collateral estoppel.  The Supreme Court, however, held that because Wiggins had failed to raise any objections whatsoever at his hearing, none of the allegations of error he sought to press on appeal properly were before the Court. See State v. Hallenbeck, 878 A.2d 992, 1018 (R.I. 2005).  Consequently, the Court affirmed the hearing justice’s decision to revoke Wiggins’s probation and sentence him to five years to serve at the Adult Correctional Institutions.

State v. Harold T. Drew, No. 05-108 (April 18, 2007)

The defendant, Harold T. Drew (defendant), appealed his Superior Court conviction for murder, discharging a firearm while committing a crime of violence, and three counts of entering a dwelling with the intent to commit a larceny therein.  He was sentenced ultimately to two consecutive life terms.  On appeal he argued that the trial justice:  (1) erroneously failed to give both an accident and accomplice instruction in his jury charge; (2) abused his discretion by admitting into evidence three letters the defendant wrote while incarcerated after his arrest; (3) abused his discretion by finding that the defendant’s prior conviction for manslaughter was admissible to impeach his credibility if he testified; (4) improperly limited his cross-examination of the state’s key witness; and (5) erred by not permitting the defendant to refresh a witness’s recollection.

The Rhode Island Supreme Court held that:  (1) the defendant was not entitled to an accident jury instruction because he did not present an accident defense at his trial; (2) Rhode Island law did not afford the defendant a right to an accomplice instruction; (3) the three letters he authored while in prison were relevant and not unduly prejudicial; (4) admission of defendant’s prior conviction for manslaughter was not an abuse of discretion because, despite its similarity to the pending murder charge, it would have been highly relevant to the defendant’s credibility had he testified; (5) the cross-examination of the state’s key witness was properly curtailed because his question was irrelevant and required the witness to comment on the credibility of another witness; and (6) it was appropriate to not allow the defendant to refresh the recollection of a witness who indicated that the document in question would not refresh her recollection.  Accordingly, the Supreme Court affirmed the defendant’s conviction.

John R. Arena et al v. City of Providence et al, No. 05-207 (April 12, 2007)

The defendants, the City of Providence and members of the City Council of the City of Providence (defendants), appealed a bifurcated judgment of the Superior Court in favor of the plaintiffs, retired members of the Providence Fire Department and the Providence Police Department or their widows (plaintiffs).  The defendants first contended that the trial court erred when it determined that the Superior Court had jurisdiction to decide the status of the plaintiffs’ rights to a disputed cost of living adjustment (COLA).  In addition, the defendants argued that the trial justice erred when she found that:  (1) the Firefighters’ Arbitration Act, G.L. 1956 chapter 9.1 of title 28, did not apply in determining the firefighter plaintiffs’ contractual rights or benefits; (2) all the plaintiffs were eligible for COLA benefits as defined in a Providence ordinance; and (3) the defendants were not authorized to change or modify this ordinance to decrease already-retired plaintiffs’ COLA benefits.  The plaintiffs cross-appealed, alleging that the trial justice erred in denying their claim that the terms of the last ratified collective bargaining agreement (CBA) also governs the plaintiffs’ COLA benefits. 

The Rhode Island Supreme Court affirmed in part and reversed in part the trial court’s judgment after conducting a de novo review of the complex issues of first impression presented in this appeal.  First, the Court held that the requirements of the Firefighters’ Arbitration Act (act) did not extend to the plaintiff retirees because the act’s definition of "firefighter" could not be read to include retirees and that the Superior Court had exclusive jurisdiction to determine the plaintiffs’ COLA benefits.  The Court also concluded that it would be inappropriate to hold that the terms of the plaintiffs’ last-ratified CBA governed during the period between the expiration of those CBAs and the ratification of their next CBAs because such a determination would be within the sole purview of the Rhode Island State Labor Relations Board.  Thus, the Court held that City of Providence Ordinance, ch. 1991-5 (Ordinance 1991-5), was the exclusive source of the plaintiffs’ COLA benefit because it was the ordinance in place at the time the plaintiffs retired.  The Court further held that the COLA benefit contained in Ordinance 1991-5 was a bargained-for benefit that vested at the time the plaintiffs retired.  Therefore, the defendants were not authorized to amend the plaintiffs’ COLA benefit in a future ordinance. 

While the Court held that the defendants acted outside of their authority when they decreased the plaintiffs’ COLA benefits, the Court could fathom no satisfactory justification for the plaintiffs’ decision to sit on their rights for approximately five years before seeking a declaratory judgment.  Consequently, the Court fashioned a remedy based on the doctrine of laches to serve the ends of justice, ordering that the plaintiffs be reimbursed for their missed COLA benefit payments as of the date they filed the action only and that they henceforth receive a COLA benefit consistent with the terms of Ordinance 1991-5.  

Joseph A. Pelland et al v. State of Rhode Island et al, No. 05-275 (April 11, 2007)

The Department of Corrections (DOC) promulgated a policy effective January 1, 1996 that required probationers to secure permission from DOC personnel before leaving Rhode Island. On November 28, 2000, the DOC circulated a memorandum that indicated that this policy would be interpreted so as to allow sex offenders on probation to obtain permission to leave the state only in certain narrow circumstances. The plaintiffs filed suit using pseudonyms claiming myriad reasons why this policy aggrieved them, citing, among other things, violations of their constitutional rights, and a failure to follow the process for rulemaking under the Administrative Procedures Act (APA), G.L. 1956 chapter 35 of title 42.

A federal court rejected the claims of constitutional rights violations, and that was not appealed. A hearing justice ruled that the plaintiffs could not proceed using pseudonyms, and he ordered dismissal of the claims of any plaintiff who did not proceed in his true name. Only plaintiff Joseph A. Pelland complied with that order, however, and no final judgment was entered with regard to the other plaintiffs. A different hearing justice granted summary judgment in favor of the DOC with regard to the claim that the DOC was required to follow the strictures of the APA when it circulated the memo at issue. Three days after the decision granting summary judgment, Pelland’s probationary period came to an end. The plaintiffs appealed the grant of summary judgment and the denial of their motion to proceed pseudonymously.

The Supreme Court first addressed the question of whether the plaintiffs should have been permitted to proceed pseudonymously, deciding to reach that issue because no final judgment was entered dismissing the plaintiffs who had not complied with the hearing justice’s order. The Court held that the hearing justice did not abuse his discretion because he properly employed a balancing test, weighing the public interest in disclosure of the identities of litigants against the privacy interest, if any, of these plaintiffs.

The Court then went on to conclude that Pelland’s appeal was moot. It further held that the Court would not address the claim because it did not fall into the category of moot controversies that involved important constitutional rights and were capable of repetition and evading review. In particular, the Court held that repetition of this type of controversy would not evade review because of the varying lengths of the periods of probation for sex offenders.

Accordingly, the Court affirmed the hearing justice’s decision to deny the plaintiffs’ motions to proceed pseudonymously and dismissed Pelland’s appeal of the Superior Court judgment upholding the validity of the out-of-state travel restrictions on the grounds that it was moot.

McCarthy Larngar v. Ashbel T. Wall, Director of Rhode Island Department of Corrections, No. 04-0096 (April 5, 2007)

The applicant, McCarthy Larngar, appealed to this Court from a denial of his application for postconviction relief.  On appeal, Mr. Larngar contended that his application for postconviction relief on the basis of ineffective assistance of counsel should have been granted, and he pointed to several alleged errors and/or omissions for which he blamed his trial counsel.  He argued that those errors and/or omissions constituted ineffective assistance of counsel.  Specifically, Mr. Larngar contended that his trial counsel was ineffective because she (1) failed to request a jury instruction concerning self-defense or accident; (2) failed to conduct a proper pretrial investigation or, in the alternative, failed to make a determination that such an investigation was not necessary; and (3) substantially interfered with Mr. Larngar’s right to testify on his own behalf and thereby violated his constitutional rights.

Mr. Larngar also contended that the trial justice erred by not giving a jury instruction on self-defense or accident sua sponte since, in Mr. Larngar’s view, the evidence warranted such an instruction.  In addition, Mr. Larngar contended that the hearing justice who presided over the postconviction-relief hearing erred in excluding testimony that he said would have shown that trial counsel used illegal drugs during her representation of him—an allegation that Mr. Larngar contended would have bolstered his claim of ineffective assistance of counsel. 

Utilizing the standard for ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the Rhode Island Supreme Court held that Mr. Larngar had not satisfied his burden of proving that his privately retained trial counsel made errors so serious that Mr. Larngar was deprived of the counsel guaranteed by the Sixth Amendment.  Moreover, the Court stated that even if Mr. Larngar had proven that his counsel’s trial performance was deficient under the Strickland standard, he had not demonstrated a reasonable probability that, absent her errors, the result of the trial would have been different. 

The Court also rejected Mr. Larngar’s contention that the trial justice erred by not giving a jury instruction on self-defense or accident sua sponte.  It was the Court’s opinion that the evidence at trial did not warrant such an instruction. 

Finally, the Court rejected Mr. Larngar’s argument with respect to the hearing justice’s exclusion of evidence of alleged drug use by Mr. Larngar’s trial counsel.  After reviewing the record, the Court determined that the hearing justice never expressly precluded said evidence; rather, Mr. Larngar’s postconviction-relief counsel did not pursue the admission of testimony with respect to trial counsel’s alleged drug use.

Accordingly, the Court concluded that Mr. Larngar was afforded effective assistance of counsel to a degree sufficient to satisfy the pertinent constitutional standards. 

In re Amanda D. et al, No. 06-132 (April 3, 2007)

The respondent father, Dennis D. (respondent), appealed a decree of the Family Court terminating his parental rights as to his two minor children, Amanda and Dennis Jr. (collectively children), based on a finding of abandonment.  On appeal, the respondent argued that the trial justice erred in concluding that he abandoned his children by his "actions and incarcerations" because he repeatedly made efforts to contact both his children and the Department of Children Youth and Families while incarcerated and during the short periods between his terms of imprisonment.  The Rhode Island Supreme Court affirmed the Family Court judgment and held that the trial justice did not err in terminating respondent’s parental rights in light of undisputed evidence that the respondent had not seen or communicated with his children in at least twenty months, easily satisfying the six-month statutory period constituting prima facie evidence of abandonment under G.L. 1956 § 15-7-7(a)(4).

Scott S. Lavoie v. North East Knitting, Inc. et al, No. 06-51 (April 3, 2007)

The plaintiff, Scott S. Lavoie (plaintiff), appealed the Superior Court’s grant of summary judgment in favor of the defendants, North East Knitting, Inc. (NEK) and Rosalie DaRosa.  In the underlying dispute, the plaintiff alleged that DaRosa unduly influenced his father to refuse to transfer stock to him during his father’s lifetime and sought compensatory damages for the harm he suffered.

The Supreme Court held that summary judgment was proper because there is no independent tort of undue influence entitling the plaintiff to an award of damages at law.  Rather, the Court noted that undue influence long has been recognized in equity as a defense to or as a means of challenging the validity of a will, deed, or contract.  Because the plaintiff had not alleged that DaRosa unduly influenced his father to execute a will, deed, or contract, there was no operative transaction for equity to set aside. 

Therefore, the Supreme Court affirmed the Superior Court’s summary judgment ruling.

Pleasant Management, LLC v. Maria Carrasco et al, No. 04-307 (March 30, 2007)

Lidia M. Sanchez, former counsel for the defendants Maria Carrasco and Jose Ortega, appealed from an order of a Superior Court magistrate imposing a sanction against her in the amount of $2,000 for conduct in violation of Rule 11 of the Superior Court Rules of Civil Procedure.  The magistrate determined that Ms. Sanchez had filed a pleading accusing Steven A. Murray, attorney for the plaintiff Pleasant Management, LLC, of fraudulent conduct "without proper judgment and necessary regard for the truth or falsity of the statement she was making."  On appeal, Ms. Sanchez argued that it was an abuse of discretion for the magistrate to impose a sanction against her because the plaintiff filed its motion for sanctions in an untimely manner.  Moreover, Ms. Sanchez asserted that the pleading accusing Mr. Murray of fraud was "substantially justified when read in its entirety."

          After a review of the record, however, the Supreme Court found Ms. Sanchez’s arguments unpersuasive and concluded that the magistrate did not abuse his discretion by imposing sanctions on Ms. Sanchez for her conduct.  Concluding that a motion for sanctions must be filed within a "reasonable time" after the discovery of a Rule 11 violation, the Supreme Court held that the magistrate did not err in finding the plaintiff’s motion for sanctions was timely made.  The Court also discerned no reason to disturb the magistrate’s findings that Ms. Sanchez did not engage in a "reasonable inquiry," as required by Rule 11, before characterizing the plaintiff’s conduct as fraudulent.   

Fred Shoucair v. Brown Unversity, No. 05-145 (March 09, 2007)

A Superior Court jury awarded former Brown University professor Fred Shoucair, Ph.D. (Shoucair or Professor Shoucair), back pay, compensatory damages and punitive damages based on its determination that the school’s decision to deny his application for tenure was the product of unlawful retaliation under the Fair Employment Practices Act (FEPA).  Brown University (Brown) appealed from the trial justice’s denial of its motion for judgment as a matter of law under Rule 50 of the Superior Court Rules of Civil Procedure.  Brown argued that the evidence adduced at trial failed to establish that the denial of Shoucair’s bid to become a tenured professor in the university’s division of engineering was the result of any illicit retaliation.  In the alternative, Brown averred that the punitive and compensatory damages awarded Shoucair should be vacated for lack of sufficient evidence.  For his part, Shoucair filed a cross-appeal, contending that the trial justice’s reduction of the jury’s back-pay award was unsupported and unreasonable and that the trial justice should have ordered Brown to reinstate Shoucair with tenure or, in lieu of reinstatement, should have awarded him front pay.  The Supreme Court vacated the award of punitive damages to Shoucair, but affirmed the judgment in all other respects.

After reviewing Brown’s Rule 50 motion, the Court endorsed the trial justice’s conclusion that reasonable minds could differ on the question of whether retaliation was the catalyst for Brown’s refusal to grant Shoucair tenure.  In her consideration of the evidence presented, the trial justice appropriately applied the three-step burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).  Here, Shoucair made out a prima facie case for retaliation, Brown responded by articulating a legitimate reason for denying him tenure, and Shoucair presented evidence sufficient to convince the jury that Brown’s proffered reason amounted to nothing more than pretext. 

The Court found no abuse of discretion in the trial justice’s 30 percent reduction of Shoucair’s back-pay award because of Shoucair’s failure to sustain a concerted effort to seek a new position in academia and his unwillingness to pursue any employment opportunities in commercial engineering.  Brown produced expert testimony indicating that a wide array of lucrative options would have been open to a person with Shoucair’s qualifications during his extended unemployment.

On the issue of compensatory damages, FEPA provides that a plaintiff "shall not be required to prove that he or she has suffered physical harm or physical manifestation of injury in order to be awarded compensatory damages." General Laws 1956 § 28‑5‑24(b). The Court observed that a lack of expert medical testimony is not an absolute bar to recovery in all circumstances. Adams v. Uno Restaurants, Inc., 794 A.2d 489, 493 (R.I. 2002).  The Court also vacated the award of punitive damages, noting that it is well established that punitive damages are considered an "extraordinary sanction" in this state (Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993)) and cannot be awarded vicariously against an employer unless it has participated in, authorized or ratified its employee’s discrimination. Reccko v. Criss Cadillac Co., 610 A.2d 542, 545 (R.I. 1992). 

Finally, in affirming the trial justice’s refusal to grant Shoucair’s requests for reinstatement or front pay, the Court found no abuse of discretion.  The Court endorsed the trial justice’s ruling that Shoucair’s bid for reinstatement was foreclosed by his failure to keep sufficiently current in the field of engineering since he left Brown in 1994 (see Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598, 603 (7th Cir. 1979). 

State v. Marcos Rodriquez, No. 04-190 (March 8, 2007)

The defendant, Marcos Rodriguez, appealed from an order of the Superior Court denying his motion to dismiss one count of an indictment charging him of kidnapping with the intent to extort.  Relying on a number of United States Supreme Court cases, the defendant argued on appeal that the kidnapping indictment impermissibly subjected him to double jeopardy because he previously was prosecuted for this offense by way of his felony-murder conviction in New York.  The defendant also asserted that Rhode Island "waived any claim to a constitutional right of dual sovereignty" by and through the conduct of its law enforcement and prosecutorial officials in cooperating with New York officials to convict the defendant.

Addressing the applicability of the dual sovereignty doctrine, the Supreme Court affirmed, ruling that federal and state constitutional double jeopardy principles did not prohibit multiple prosecutions for the same crime by separate and independent sovereigns.  Moreover, the Court refused to infer from the facts presented that the prosecutorial efforts of Rhode Island and New York officials to convict the defendant somehow merged the two sovereignties to the extent that Rhode Island would be prohibited from successively prosecuting the defendant for  kidnapping.  See, e.g., Bartkus v. Illinois, 359 U.S. 121 (1959).  Rather, the Supreme Court found that the conduct of Rhode Island and New York police and prosecutors amounted to nothing more than the sort of routine cooperation that the courts encourage.  See United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996).

Discerning no exception to the dual sovereignty doctrine, the Court found it unnecessary to address the defendant’s substantive double jeopardy argument, and instead, affirmed the order denying the defendant’s motion to dismiss.

Linda J. Franco et al v. Joseph A. Latina, M.D., No. 06-146 (March 5, 2007)

In this medical malpractice case, Joseph A. Latina, M.D. (defendant or Dr. Latina) appealed from the trial justice’s decision to grant Linda J. Franco’s (plaintiff or Franco) motion for judgment as a matter of law after a jury, for the second time, returned a verdict for the defendant. Doctor Latina performed a laparoscopic cholecystectomy, a procedure to remove the gallbladder, on Franco, but instead of cutting the cystic duct to free the gallbladder, he cut the common bile duct, which caused Franco to require reconstructive surgery. As a result, the plaintiff brought suit alleging that Dr. Latina was negligent when he did the surgery.

At the first trial, the plaintiff presented two experts who testified that the standard of care was that the doctor must conclusively identify the cystic duct before cutting. The defendant did not present an expert, but instead proffered an article by a prominent physician, published after the surgical procedure at issue was done, that suggested that the technique used by Dr. Latina, although accepted at the time, was unreliable and flawed. The jury returned a verdict for defendant, and Franco moved for a new trial. The trial justi

ce granted the new trial motion, and Dr. Latina appealed. The Supreme Court, in Franco v. Latina, 840 A.2d 1110 (R.I. 2004) (Franco I), affirmed the grant of the new trial motion and cautioned against use of the "flawed technique" article in the second trial unless it was tied to expert testimony.

In the second trial, the plaintiff moved in limine to exclude the "flawed technique" article, and that motion was granted by the trial justice with a warning that any testimony tending to show that Dr. Latina had complied with the standard of care because he used an accepted technique would be inadmissible unless it was married to competent expert testimony that described a standard of care that was linked to technique. Franco presented the same experts who offered the same testimony as to standard of care. Doctor Latina presented an expert who also testified that the standard of care required identification of the cystic duct before cutting, but also opined that Dr. Latina was not negligent. Upon motion by the plaintiff, the trial justice struck the opinion testimony of the defendant’s expert because it was not tethered to the standard of care that he articulated. Before the case was submitted to the jury, Franco moved for judgment as a matter of law. The trial justice reserved ruling on that motion and sent the case to the jury. The jury returned a verdict for the defendant, but when the trial justice ruled on the reserved motion, she granted judgment for the plaintiff on liability. She then returned the question of damages to the jury, over the defendant’s objection. The jury subsequently gave a verdict on damages.

On appeal the defendant argued that the trial justice improperly struck his expert’s testimony, that the trial justice improperly weighed the evidence when evaluating the motion for judgment as a matter of law, that the testimony of the plaintiff’s experts was inherently improbable, and that it was error for the trial justice to submit the question of damages to the same jury that she had deemed unreasonable on the issue of liability. The Supreme Court affirmed the decision of the trial justice. The Court found that the trial justice had not abused her discretion when she struck the defense expert’s opinion testimony because his opinion did not mesh with the standard of care that he articulated. The Court also reviewed the evidence on the record and agreed with the trial justice that judgment as a matter of law was warranted because all the testimony concerning the standard of care indicated that a doctor doing the procedure had to correctly identify and cut the cystic duct, and the defendant admitted that he had cut the wrong duct. Furthermore, the Court held that the opinions of the plaintiff’s experts were not inherently improbable and that therefore, because they were uncontradicted, they had to be accepted. Finally, the Court saw no error in the trial justice’s decision to submit the damages question to a jury that had handed down a verdict in favor of the defendant.

In re Commission on Judicial Tenure and Discipline, No. 03-512 (February 28, 2007)

In re Diamond Y, No. 06-119 (February 27, 2007)

Brian Young (Young) appealed from a final decree of the Family Court terminating his parental rights to his daughter, Diamond. The Department of Children, Youth and Families (DCYF) took custody of Diamond immediately after she was born, on February 3, 2004, because Diamond’s mother, Nicole P. (Nicole), had a history of DCYF involvement with her children and because of Young’s criminal history. Diamond was placed in non-relative foster care, and remained with the same family from the time of her birth until the entry of the termination decree.

Caseworker Lawrence Bartley was assigned to Young, and he developed a case plan with the goal of reunifying Young with his daughter. As part of that case plan, Young was told to obtain a substance abuse evaluation at CODAC, to obtain a parental fitness evaluation from doctors recommended to him by DCYF, to establish a home suitable to raise a child, and to regularly attend scheduled visits with Diamond. Young did not successfully accomplish any of these tasks.

In November 2004, Young once again was incarcerated, and around the same time, Bartley retired. Suzan Furtado was then assigned to the case. No visitation took place between the time Young was incarcerated and April 5, 2005. DCYF filed the petition to terminate parental rights on March 30, 2005, on the grounds that Diamond had been in DCYF custody for at least twelve months and that, despite reasonable efforts on the part of DCYF to reunite Young with his daughter, it did not appear that Young would be able to correct, within a reasonable time, the problems that made him an unfit parent. After a three-day hearing, the hearing justice granted the petition, and Young appealed.

Young argued on appeal that, despite Bartley’s efforts to reunite him with Diamond, Furtado failed to undertake reasonable efforts once she assumed Bartley’s role. In particular, Young pointed to the fact that no visits took place at the ACI between the time he was incarcerated and April 5, 2005 – after the termination petition was filed – despite the fact that he had sent a letter to DCYF requesting visitation.

The Supreme Court held that "reasonable efforts" do not require extraordinary efforts on the part of DCYF. Furthermore, the Court pointed out that Bartley undertook great efforts and that even if Furtado’s efforts could have been better, that possibility does not negate the fact that Young failed to avail himself of any of the assistance provided to him by Bartley. Accordingly, the Court affirmed the decree terminating Young’s parental rights to Diamond.

A. Michael Margues, Director of Department of Business Regulation v. Pawtucket Mutual Insurance Company et al, No. 06-52 (February 19, 2007)

The appellants, Rhode Island FAIR plan and Massachusetts FAIR plan (appellants or FAIR Plans), appealed to this Court from a judgment approving a plan of sale for Pawtucket Mutual Insurance Company and its subsidiary, Narragansett Bay Insurance Company, which plan was prepared by the insurance rehabilitator, A. Michael Marques (Marques or the Rehabilitator),  and which provided in part that the Rehabilitator could defer certain payments owed to appellants. 

On appeal, appellants argued that the Superior Court erroneously interpreted the Rehabilitator’s statutory authorization to take action "to reform and revitalize the insurer" as permitting the Rehabilitator to defer statutorily required payments owed to appellants by the insurers. 

The Supreme Court held that deferring payments to the FAIR Plans was within the broad statutory authority granted to the Rehabilitator under G. L. 1956 § 27-14.3-18(d).  The Court stated that G.L. 1956 § 27-33-6 requires only that insurers participate in the FAIR Plans; nowhere does it state that a deferral of the payments required for participation is impermissible.  The Court observed that, using clear and unmistakable language, the General Assembly expressly conferred broad authority upon the Rehabilitator to "take any action that he or she deems necessary or appropriate to reform and revitalize the insurer."  Section 27-14.3-18(d) (emphasis added).  The Court held that the deferral of payments to the FAIR Plans has given effect to the purpose of the statute by preventing an otherwise imminent insolvency, thereby protecting the interests of insured parties, claimants, creditors, and the public.

Accordingly, the Court affirmed the judgment of the Superior Court.

Richard P. Bucki v. Carol Hawkins et al, No. 05-199 (January 31, 2007)

A late-night campout on waterfront property and nighttime swimming on a northern Rhode Island lake ended tragically when the plaintiff, Richard P. Bucki (plaintiff), dove off a dock into the dark water, striking his head on the sandy lake bottom.  The plaintiff’s resulting neck fracture prompted him to file a premises liability action against the defendant landowner, Carol J. Hawkins (defendant).  After a jury trial resulted in an award of $60,300 plus interest for the plaintiff, the trial justice granted the defendant’s renewed motion for judgment as a matter of law on the basis that the defendant did not owe a duty of care to the plaintiff, and ruled further that she was not liable pursuant to the protections of Rhode Island’s Recreational Use Statute, G.L. 1956 chapter 6 of title 32.  The plaintiff appealed.

The plaintiff argued on appeal that the trial justice erred by relying exclusively on the Recreational Use Statute.  Additionally, the plaintiff argued that the defendant owed him a duty of care, which was breached.  The defendant countered that the trial justice did not, in fact, rely exclusively on the Recreational Use Statute but, instead, based his decision on negligence. 

The Rhode Island Supreme Court held that the trial justice clearly erred by applying the Recreational Use Statute because the defendant had not opened her property to the public for recreational use, a prerequisite to immunity under the statute.  Despite the trial justice’s erroneous application of the Recreational Use Statute, however, the Supreme Court affirmed the judgment of the Superior Court after concluding that the defendant did not owe the plaintiff a duty of care.  Accordingly, the Supreme Court affirmed the Superior Court judgment.

George W. Moore, Esq. et al v. Carol C. Ballard et al, No. 05-341 (January 26, 2007)

The plaintiff, George W. Moore, Esq., as trustee of the SVF Foundation, appealed from a Superior Court order denying an award of attorney’s fees incurred in an action to partition real estate.  The motion for attorney’s fees was filed nearly two years after a final judgment partitioning the property was entered, yet at a time when the parties still were involved in litigation.  The motion justice ruled that the two-year lapse in time barred the plaintiff from seeking attorney’s fees. 

The language of G.L. 1956 § 34-15-22 permits "the court before which the [partition] action may be pending" to apportion the costs of partition among the parties when it determines such apportionment to "appear equitable and just."  The Supreme Court long has held that "the costs of partition" include counsel fees.  In this case, the Supreme Court determined that the plain language of § 34-15-22 requires that costs, including attorney’s fees, be apportioned, if at all, before the judgment in a partition action becomes final.  Accordingly, the Court affirmed the ruling of the motion justice denying the plaintiff’s motion for attorney’s fees as untimely.

R.I. Telecommunications Authority v. Glenn F. Russell et al, No. 04-309 (January 26, 2007)

The Rhode Island Public Telecommunications Authority (Channel 36) and the Rhode Island Department of Administration (DOA) appealed from a Superior Court declaratory judgment recognizing Glenn F. Russell’s (Russell) veteran’s status under G.L. 1956 § 36-5-7, directing the DOA to place Russell in state service, and ordering Channel 36 to compensate Russell for lost wages.  Mr. Russell also filed a cross-appeal seeking prejudgment interest and additional damages for the sick days he would have accumulated since the effective date of his layoff from Channel 36. 

The Supreme Court affirmed the judgment insofar as it declared Russell is entitled to veteran’s status and that the DOA was responsible for placing him in a position of similar grade within the state services.  The Court vacated and reversed, however, the trial justice’s holding that the DOA remained under an affirmative obligation to retain Russell in state service in a position of similar grade after he voluntarily retired.  The Court also vacated and reversed the trial justice’s allocation of liability against Channel 36, vacated the award of damages, and remanded the case to the Superior Court with directions to enter a new judgment awarding Russell reduced damages from the DOA alone. 

 All parties stipulated below that Russell is indeed an honorably discharged veteran as described in § 36‑5‑7, and that he had obtained fifteen years of "service credit."  The Court rejected appellants’ contention that the exception found in § 36‑5‑7(a)(3), which excludes from veteran’s status all employees whose method of appointment, salary and term are established by statute, applied to Russell.  The Court agreed with the trial justice’s determination that, based on the factors set out in Donnelly v. Almond, 695 A.2d 1007 (R.I. 1997), Russell’s term of employment was not sufficiently "specified by statute" to trigger the exception. 

Although it confirmed Russell’s veteran’s status, the Supreme Court reasoned that he gave up any right to raise against Channel 36 the protections that status afforded him because just before the effective date of his layoff from the station Russell agreed to waive all grievances and claims regarding the layoff.  The Court found Russell’s attempts to remove his "post-layoff" claim against Channel 36 from the ambit of his comprehensive waiver unavailing. 

The Supreme Court agreed with the trial justice that the DOA was responsible for placing Russell in the state’s employ, but held that the trial justice erred by not imposing liability on the DOA for the award of Russell’s back pay.  The Court, however, reduced said award to the income Russell would have earned from the date he first notified the DOA that he had been laid off to the date of his retirement.  The Court also affirmed the trial justice’s refusal to add prejudgment interest to Russell’s damages, as well as his claim for vacation and sick leave benefits.

George W. Moore, Esq. et al v. Carol C. Ballard et al, No. 05-341 (January 26, 2007)

The plaintiff, George W. Moore, Esq., as trustee of the SVF Foundation, appealed from a Superior Court order denying an award of attorney’s fees incurred in an action to partition real estate.  The motion for attorney’s fees was filed nearly two years after a final judgment partitioning the property was entered, yet at a time when the parties still were involved in litigation.  The motion justice ruled that the two-year lapse in time barred the plaintiff from seeking attorney’s fees. 

 The language of G.L. 1956 § 34-15-22 permits "the court before which the [partition] action may be pending" to apportion the costs of partition among the parties when it determines such apportionment to "appear equitable and just."  The Supreme Court long has held that "the costs of partition" include counsel fees.  In this case, the Supreme Court determined that the plain language of § 34-15-22 requires that costs, including attorney’s fees, be apportioned, if at all, before the judgment in a partition action becomes final.  Accordingly, the Court affirmed the ruling of the motion justice denying the plaintiff’s motion for attorney’s fees as untimely.

Thomas Silva v. Margaret Fitzpatrick, No. 06-125 (January 25, 2007)

In this action for partition, the plaintiff appealed from a judgment ordering that the defendant pay to him $33,895.09 as compensation for his interest in jointly owned real estate, arguing that the trial justice erred in awarding the defendant reimbursement on initial purchase and closing costs, prejudgment interest on that amount, as well as post-purchase expenses, including mortgage, insurance, taxes, repairs and utilities that the defendant paid.

The defendant’s argument that the plaintiff’s initial payment of purchase and closing costs had been transmuted into jointly held property, failed because the parties were not married as in Quinn v. Quinn, 512 A.2d 848 (R.I. 1986).  The Court also held that the plaintiff had failed to introduce any proof of the "requisite donative intent" necessary to establish a gift.  Dellagrotta v. Dellagrotta, 873 A.2d 101, 107 (R.I. 2005).

The Court declined to address the plaintiff’s arguments concerning prejudgment interest.  Because the plaintiff failed to address either the appropriateness or the calculation date for prejudgment interest, those arguments were not properly before the Court.

Lastly, the Court held that the judgment ordering the defendant’s post-purchase costs be setoff against the plaintiff’s equitable interest was proper.  The plaintiff failed to present evidence of the fair rental value of the property, nor was he ousted from the property.  Accordingly, the plaintiff was not entitled to an accounting from the defendant.  Consequently, the judgment was affirmed.

Stephen Reise v. State of Rhode Island, No. 06-49 (January 23, 2007)

April 5, 2000, Stephen Reise pled nolo contendere to two counts of driving while intoxicated, death resulting and three counts of driving while intoxicated, serious bodily injury resulting. 

On appeal, Mr. Reise contended that the trial justice erred in denying his application for postconviction relief based on newly discovered evidence—namely, that he suffered from Obstructive Sleep Apnea at the time of the incident.  The defendant also alleged numerous constitutional violations, including ineffective assistance of counsel.

The Supreme Court held that the trial justice did not err in denying Mr. Reise’s application for postconviction relief or in doing so summarily.  Additionally, this Court held that the trial justice properly denied Mr. Reise’s constitutional challenges in view of the fact that Mr. Reise had waived said rights as part of his nolo contendere plea. 

For these reasons, the Supreme Court affirmed the judgment of the Superior Court.

Paula Kevorkian v. Judith Glass both personally and in her capacity as supervisor of Northeastern Corporation d/b/a Pawtuxet Vilage and/or Northeastern Corporation d/b/a Pawtuxet Village Nursing and Rehabilitation Center, No. 02-152 (January 22, 2007)

The plaintiff is a licensed practical nurse who worked for the Pawtuxet Village Nursing and Rehabilitation Center for approximately five years.  The plaintiff resigned her position there after the defendant, the plaintiff’s supervisor, accused her of not handing out medication to certain patients at Pawtuxet Village.  Two years later, the plaintiff sought employment through a nursing placement agency.  As part of the placement agency’s protocol, a work reference form was sent to the defendant with a request that the form be filled out and returned to the agency.  The defendant filled out the form, but indicated on it that she would not rehire the plaintiff because of "unacceptable work practice habits."  The plaintiff was unaware of the contents of the defendant’s reference.

Subsequently, the plaintiff was interviewed for various nursing positions for which she apparently was qualified.  Perplexed that none of those facilities offered to hire her, the plaintiff began to suspect that she had received a poor reference from her former employer, Pawtuxet Village.  When she discovered the contents of defendant’s reference, her suspicions were confirmed, and she decided to file suit.

The plaintiff sued the defendant for defamation alleging that the defendant’s use of the phrase "unacceptable work practice habits" in the context of a work reference was defamatory.  The defendant moved for summary judgment on the grounds that (1) the statement in question was not defamatory, and (2) even if the statement was defamatory, it was covered by a qualified privilege.  After a hearing on the motion, a motion justice agreed with the defendant and granted summary judgment in her favor.  The Supreme Court affirmed the judgment of the Superior Court.

On appeal, the Supreme Court held that it was unnecessary to decide whether the statement in question was defamatory because the defendant clearly enjoyed a qualified privilege to make the statement under G.L. 1956 § 28-6.4-1(c).  Further, the Court held, although such a privilege may be lost upon a showing that the statement was made for a malicious purpose, to survive a motion for summary judgment the plaintiff had the burden of pointing to specific facts in the record raising a genuine issue of fact with regard to whether the statement was motivated by the ill will of the defendant.  After a review of the record, the Court concluded that the plaintiff had not carried this burden, and the judgment of the Superior Court therefore was affirmed.

Cadillac Lounge, LLC v. The City of Providence, et al, No. 05-224 (January 19, 2007)

This case came before the Supreme Court for oral argument on December 5, 2006, pursuant to a petition for writ of certiorari filed by Cadillac Lounge, LLC.  In its petition, Cadillac Lounge sought review by the Court of a decision of the Providence Board of Licenses dated July 29, 2005, in which Cadillac Lounge was fined a total of $2,500 for having violated on two separate occasions the provisions of Providence Ordinance 14-1, which pertains to closing hours, license fees, and regulations concerning commercial establishments. 

The Court held that, pursuant to G.L. 1956 § 45-2-23, the maximum fine allowed for such violations is $500 per violation.  Accordingly, the Court directed the assessment of a fine in the total amount of $1,000. 

       Justice Flaherty did not participate.

Warwick Housing Authority v. Barbara McLeod, No. 05-323 (January 18, 2007)

Barbara McLeod (McLeod or defendant) appealed from a judgment of the Superior Court in favor of the Warwick Housing Authority (WHA or plaintiff) evicting her from her apartment. At trial, McLeod argued that because WHA accepted rental payments from her after it had knowledge of the breach of her rental agreement and wished to evict her and then did not provide her with written notice of its intent to continue the eviction process, G.L. 1956 § 34-18-41 precluded the eviction action. WHA countered that McLeod had actual notice of the pending eviction action, and, therefore, it was not obligated to send her written notice. The trial justice agreed that McLeod’s actual notice of the pending action abrogated the requirement of written notice under § 34-18-41, citing § 34-18-14, a general notice statute, for authority that actual notice sufficed. Accordingly, she entered judgment for WHA.

On appeal, plaintiff reasserted her position that WHA had waived its right to pursue the eviction action against her by accepting rent without sending written notice of its intent to preserve that right. WHA urged the Supreme Court to affirm the decision of the trial justice.

The Supreme Court held that the carefully crafted language of the Residential Landlord and Tenant Act, chapter 18 of title 34 (act), was designed to balance the rights of landlords and tenants. The Court cited case law that preceded the act to show that § 34-18-41 codified a rule that existed at common law that prohibited landlords from accepting rent with knowledge of a breach of the rental agreement, and then pursuing an eviction for that same breach. The Court also rejected the argument that notice as defined by § 34-18-14 could trump the written notice required by § 34-18-41 because § 34-18-14 is a general statute while § 34-18-41 is specific in nature. Thus, the Court reversed the decision of the Superior Court and directed that court to grant defendant’s motion to dismiss.

State v. Dean A. Imbruglia, No. 05-129 (January 16, 2007)

A jury found the defendant, Dean A. Imbruglia, guilty of first-degree robbery in connection with an incident that occurred on April 26, 2003. 

On appeal, defendant contended (1) that the trial justice erred in denying defendant’s motion for a judgment of acquittal and his motion for a new trial, in both of which motions he argued that the eyewitness evidence was not legally sufficient to support a guilty verdict beyond a reasonable doubt; (2) that the trial justice erred in denying defendant’s motion to suppress the evidence of the identification made by the victim, which motion contended that the procedure used to obtain the identification was unduly suggestive; and (3) that the trial justice’s instruction regarding the "beyond a reasonable doubt" requirement was flawed because it failed to adequately convey to the jury the high degree of certainty that is constitutionally required before a criminal defendant may be found guilty. 

The Supreme Court held that the trial justice did not err in denying the defendant’s motion for a judgment of acquittal or his motion for a new trial.  Additionally, the Court held that the trial justice properly denied the defendant’s motion to suppress the evidence of the identification made by the victim of the robbery.  Finally, the Court held that the trial justice’s instruction regarding the "beyond a reasonable doubt" requirement was not erroneous. 

For these reasons, the Supreme Court affirmed the judgment of the Superior Court.

State v. David Vieira, No. 05-248 (January 16, 2007)

The defendant, David Vieira, appealed to this Court from a judgment of conviction after a jury found him guilty of four counts of first-degree sexual assault, two counts of second-degree sexual assault, and three counts of breaking and entering.  On appeal, the defendant contended that the trial justice erred in denying his motions to suppress his statement to the police and certain tangible evidence seized from him at the police station.  The defendant asserted that his statement and the tangible evidence should have been suppressed since they were the fruit of what the defendant contended was an unlawful arrest. 

The Supreme Court held that there was competent evidence in the record to support the trial justice’s findings that the police officers were allowed into the defendant’s home and that the defendant voluntarily accompanied them to the police station without being subjected to force or coercion.  This Court further held that the trial justice was correct in determining that a reasonable innocent person in the same circumstances would not believe that he or she had been placed under arrest.  Consequently, the Supreme Court held that the trial justice’s conclusion that the defendant was not placed under arrest at the time that he was taken from his home to the police station was correct.  Since the Court decided that the defendant’s arrest was not unlawful, the defendant’s contention with respect to the evidence obtained at the police station ceased to be viable. 

New England Development, LLC v. Noel Berg, No. 06-94 (January 12, 2007)

New England Development, LLC (NED) appealed from a judgment of the Superior Court denying its petition for writ of mandamus. NED argued that the Tiverton Planning Board did not act within the statutorily required time frame to approve or deny its master plan application for a development known as Tiverton Commons because the planning board did not file a written decision with the town clerk by the deadline. Therefore, NED asserted, it was entitled to a certificate of the planning board’s failure to act, and, consequently, approval of the master plan. The planning board argued that it voted to deny the master plan before the statutory deadline, and that, therefore, it had fulfilled its statutory obligations, and that, in any event, NED was required to exhaust its administrative remedies before pursing relief in the Superior Court.

The trial justice determined that G.L. 1956 §§ 45-23-40(e) & (f) along with § 45-23-63 required that a written decision be issued by the deadline prescribed by the statute, and that, if no written decision was issued, the applicant was entitled to a certificate of the planning board’s failure to act, and, consequently, approval of the master plan. However, the trial justice denied the writ of mandamus to NED because he ruled that NED was required to pursue an appeal of the planning board’s decision to deny the application before the Tiverton Board of Appeals.

The Supreme Court, affirming on grounds other than those relied on by the trial justice, held that the statutory scheme governing consideration of such applications did direct the planning board to issue a written decision by the deadline date, but that the sanction of default approval was implicated only when the planning board failed to take any action to approve or deny the application by the deadline. Thus, the Court held, the planning board vote to deny the application before the deadline was an action sufficient to insulate the planning board from the sanction of default approval.

Judith E. Bucklin v. Frances Morelli, in her capacity as executrix of the Estate of Ralph DiConstanzo, No. 05-282 (January 5, 2007)

On May 25, 2004, a justice of the Superior Court issued a bench decision in favor of the plaintiff, Judith E. Bucklin, who had sought the remedy of specific performance in connection with a purchase and sale agreement regarding a certain parcel of real property located in Warwick. 

On appeal, the defendant contended (1) that the trial justice erred in granting the plaintiff’s prayer for specific performance and (2) that the trial justice abused his discretion in admitting the testimony of a particular expert witness.

The Supreme Court held that the trial justice did not err in granting the plaintiff’s request for specific performance.  Additionally, the Court did not rule upon the expert witness issue in this case because even if the trial justice abused his discretion in allowing the realtor to testify as an expert witness, the trial justice did not rely on that testimony when deciding this case.

State V. Edward Vashey, No. 2004-175-C.A. (December 20, 2006)

The defendant, Edward Vashey (defendant), appealed a ruling of the Superior Court denying a motion to vacate his Alford plea to second-degree child molestation. The defendant had argued that his plea should be set aside because he was not informed before entering the plea that he would be required to register as a sex offender for the duration of his fifteen-year probation. The Supreme Court held that the defendant’s appeal was not properly before the Court because the proper procedural vehicle to challenge the voluntariness of a plea after sentencing is by an application for postconviction relief pursuant to G.L. 1956 chapter 9.1 of title 10. The Supreme Court affirmed the Superior Court’s ruling.

State v. Corey Day NO: 2006-8-C.A.  (December 18, 2006)