Antone Viveiros et al v. Town of Middletown, et al, No. 08-166 (July 2, 2009)

The plaintiffs appealed from an entry of summary judgment in favor of the Town of Middletown (the town) in which the plaintiffs were prevented from seeking to replace the town’s existing charter with a new charter through a petition process.  The plaintiffs asserted that they could use the procedure provided for the adoption of a charter under the provisions of the home-rule amendments to the Rhode Island Constitution, sections 6 and 7 of article 13.  The town argued that those provisions are available only when a municipality initially adopts a home-rule charter and that any subsequent changes to the charter, even substantial changes, must be accomplished through the amendment process outlined in section 8 of article 13.

          The Supreme Court affirmed the Superior Court judgment holding that the state constitution contemplates only one way of altering a charter once adopted, i.e., through the amendment process of section 8.  The Court reasoned that sections 6 and 7 of article 13 create a procedure for establishing home rule in a city or town, and that this monumental break from the exclusive authority of the General Assembly is a one-time occurrence.  Noting that the home-rule provisions of the constitution do not mention revision, repeal, or replacement of a charter, the Court interpreted " amendment" to encompass all changes, both minimal and significant.  The Court further grounded its conclusion in the intent of the framers and Supreme Court precedent.

City of Providence v. Estate of Stpehen A Tarro, et al, NO. 08-91 (July 2, 2009)

The plaintiff, City of Providence (city), appealed from a Superior Court judgment granting a writ of mandamus compelling the city’s building official to issue a demolition permit to the defendants, Estate of Stephen A. Tarro, Richard M. Tarro, Michael A. Tarro, and Patricia A. Tarro (defendants or Tarros).  The trial justice found that the Grove Street School was unsafe according to G.L. 1956 § 23-27.3-124.1 and hazardous under § 23-27.3-125.5.  While acknowledging that the building official ordinarily retains discretion to either order the rehabilitation or demolition of an unsafe or hazardous structure, the trial justice found that the building official’s inattention to the condition of the Grove Street School was an abuse of discretion requiring the court to order demolition.  The city contended on appeal that mandamus was not appropriate in this case because the defendants failed to establish any one of the three criteria necessary for such a writ to be issued.  The Supreme Court agreed that there was sufficient evidence to support the trial justice’s finding that the Grove Street School met the criteria for designation as unsafe, but held that the building official retained the discretion to order that the building either be made safe or demolished.  Accordingly, the Court quashed the writ of mandamus and vacated that portion of the judgment granting said writ.  It further directed the Superior Court to enter an order requiring the City of Providence to declare the building unsafe under § 23-27.3-124.2 and to take whatever action may be appropriate with respect to the Grove Street School in light of its responsibility to safeguard the public’s health, safety, and welfare.

James P. Valkoun v. Kimberly M. Frizzle, No. 07-202 (July 1, 2009)

The plaintiff, James P. Valkoun, appealed from a Family Court order granting the motion of the defendant, Kimberly M. Frizzle, whereby she sought leave to relocate from Rhode Island to North Carolina with the parties’ two minor children.  The defendant has appealed from the Family Court’s denial of her motion to dismiss the plaintiff’s appeal. 

A hearing was held on Ms. Frizzle’s motion to relocate, and the trial justice awarded physical placement of the children to Ms. Frizzle and granted her motion to relocate to North Carolina.  Mr. Valkoun filed a timely appeal from this decision.  On appeal, the plaintiff argued that the trial justice erred when he (1) failed to reconsider the Pettinato factors with respect to the issue of relocation and discussed those factors only as they applied to the determination of custody, (2) found that Ms. Frizzle’s reasons for relocating were valid, and (3) overlooked evidence with respect to Ms. Frizzle’s relationship with her son (from a previous relationship) in determining her fitness as a parent and her ability to provide a stable home for the children. 

The Court affirmed the order of the Family Court recognizing that, in his decision, the trial justice thoroughly reviewed the testimony and exhibits presented by each party and discussed the applicable law.  Although the trial justice did not repeat his analysis of each of the Pettinato factors in deciding the motion to relocate, the Court held that it was clear from the record that the trial justice took into consideration the pertinent factors in Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990), in deciding the motion to relocate.  The Court also held that the trial justice did not commit reversible error in finding that the defendant’s reasons for relocating were valid and that the defendant could provide a stable home for the children.

Mr. Valkoun did not order the transcript to perfect his appeal until August 6, 2007, which was after the twenty-day time period within which a transcript is to be ordered (as required by Article I, Rule 10(b)(1) of the Supreme Court Rules of Appellate Procedure).  However, on that same day, Mr. Valkoun also filed a motion for an extension of time within which to transmit the record.  This motion was timely pursuant to Article I, Rule 11(a) of the Supreme Court Rules of Appellate Procedure.  Ms. Frizzle objected to this motion.  Following a hearing on these motions, defendant filed a motion to dismiss Mr. Valkoun’s appeal.  The hearing justice granted Mr. Valkoun’s motion for an extension of time within which to transmit the record and denied Ms. Frizzle’s motion to dismiss the plaintiff’s appeal.  The defendant has appealed this decision.  This Court held that the trial justice did not commit reversible error in granting the plaintiff’s motion for an extension of time within which to transmit the record and in denying the defendant’s motion to dismiss. 

Justice Flaherty did not participate.

Kenneth J. Gianquitti, et al., No. 06-99 (July 1, 2009)

This case was an appeal by the plaintiffs, Kenneth J. Gianquitti and Denise Gianquitti, from judgments entered in favor of the defendants Atwood Medical Associates, Ltd. (Atwood) and Roger Williams Medical Center (Roger Williams), after a jury trial in the Superior Court.  In their appeal, the plaintiffs argued that the trial justice erred by (1) granting Atwood’s motion for judgment as a matter of law on its theory of direct liability against Atwood; and (2) refusing to give the jury a requested instruction on the duty of the interns and residents at Roger Williams.

In their first claim of error, the plaintiffs argued that they presented sufficient evidence to present their negligence theory against Atwood to the jury.  They asserted that Atwood deviated from the applicable standard of care by failing to have a formal backup system in place so that its on-call physician could call for backup if the physician could not handle all of his on-call duties alone.  Further, the plaintiffs argued that they had presented sufficient evidence that this breach was the proximate cause of Mr. Gianquitti’s injuries.  Mr. Gianquitti had developed a priapism after being admitted by an Atwood physician to Roger Williams for intravenous heparin therapy to treat the patient’s deep-vein thrombosis.  There was evidence that because of the attending physician’s duties as an on-call physician for Atwood over the Christmas weekend, the physician did not examine the patient until permanent damage already had occurred. 

The Supreme Court held that the plaintiffs presented sufficient evidence at trial on their theory of Atwood’s direct liability and that the trial justice erred when she granted Atwood’s motion for judgment as a matter of law.   However, the Court did not reach the issue whether, as a matter of law, Atwood owed the plaintiff a duty of care under the facts and circumstances of the case because the parties failed to properly articulate the issue below and did not argue or brief the issue to the Court.  As a matter of proof, the Court reasoned that the plaintiffs had presented sufficient evidence of the standard of care applicable to Atwood through the expert testimony of a physician having knowledge of physician backup coverage for group practices.  The expert testified that Atwood deviated from the standard of care by failing to have backup for its on-call physician during the Christmas weekend of December 2000.  The Court further reasoned that the evidence was sufficient for a reasonable jury to conclude that Atwood deviated from the standard of care and that its breach was the proximate cause of the patient’s injury because a reasonable jury could infer that if backup had been available to the on-call physician, the physician would have treated the patient before the condition caused permanent tissue damage.

In their second claim of error, the plaintiffs argued that the trial justice erred when she refused to instruct the jury on its theory of negligence of Roger Williams based on the alleged acts or omissions of its interns and residents.  Specifically, the plaintiffs argued that the trial justice should have instructed the jury that if interns and residents of Roger Williams observed the patient’s priapism, then they had a duty under the circumstances to report his condition, and if they failed to report the condition and that failure prevented the patient from receiving proper treatment that would have prevented the injury, then the jury must find that Roger Williams was negligent.

The Supreme Court held that the trial justice did not err when she refused to give the proposed instruction.  The Court reasoned that the plaintiffs failed to present expert testimony to establish the standard of care for the interns under the circumstances or to establish that the interns deviated from any such standard.  The Court reasoned that the plaintiffs were required to present expert testimony to prove the interns’ negligence because the plaintiffs’ theory of negligence was not the type that would be obvious to a lay person.  The Court also refused to consider testimony given by the nurses and physicians that set forth the standard of care applicable to a nurse, an attending physician, and a urologist because they did not set forth the standard of care for the interns, who were acting under different circumstances.

Accordingly, the Supreme Court affirmed the judgment of the Superior Court in favor of Roger Williams and vacated the judgment entered as a matter of law in favor of Atwood.

State v. Arun Ros, No. 06-87; State v. Veasna Sin, No. 07-98 (July 1, 2009)

The defendants, Arun Ros and Veasna Sin, appealed from Superior Court judgments of conviction on nine criminal counts relating to gun shootings that resulted in the death of one person and the permanent paralysis of another.  The defendants raised four arguments on appeal.  First, they argued that the trial justice committed reversible error in denying their motions for judgment of acquittal.  Next, they asserted that the trial justice erred in his instructions to the jury.  Third, they alleged error in the extent of witness testimony the trial justice had the stenographer reread to the jury in response to the jurors’ request.  Finally, they argue that they were denied the right to an impartial jury.  The Supreme Court affirmed the convictions of both the defendants on all counts. 

First, the Court held that there was legally sufficient evidence to sustain the convictions under a motion for judgment of acquittal.  In this regard, the Court specifically held that prior inconsistent statements were sufficiently corroborated by in-court witness testimony to support the defendants’ criminal convictions and that vicarious coconspirator liability applies to crimes charged under the state firearm statute. 

Second, the Court held that the jury instructions adequately informed the jurors of the applicable law and the trial justice did not err in omitting a separate definition of the term " deliberation" in the jury instructions on first-degree murder.  The Court also concluded that the trial justice did not have to include an instruction on the lesser-included offense of second-degree murder because there was no actual dispute as to the elements distinguishing first- and second-degree murder.  Additionally, the Court held that, although it was improper for the trial justice to delegate the rule of consistency to the jury when instructing them on the law of conspiracy, the instructions, as a whole, properly explained the elements of the crime of conspiracy and cured any error.

Third, the Court concluded that the trial justice did not abuse his discretion nor were the defendants prejudiced by the read-back of both the direct and cross-examination testimony of one of the state’s witnesses. 

Finally, the Court declined to address the defendants’ argument that they were denied the right to an impartial jury because the method utilized by the parties of presenting this issue on appeal was improper.  Specifically, the Court explained that the parties could not incorporate the arguments and Superior Court decision on the same issue in a different case for a decision on this appeal.

Theresa Young v. Warwick Rollermagic Skating Center, Inc., et al, No.08-111 (June 30, 2009

Theresa Young, the plaintiff, appealed from the entry of summary judgment in favor of the defendants, Warwick Rollermagic Skating Center, Inc. and John Durnye.  The Supreme Court determined that summary judgment was properly granted and dismissed the plaintiff’s appeal.

The plaintiff sustained a work-related injury in July of 1996 and subsequently filed a workers’ compensation claim with the Rhode Island Workers’ Compensation Court.  This claim was still pending when her employment was terminated in June of 2000.  After her termination, she filed a charge with the Rhode Island Commission for Human Rights claiming that the termination of her employment was the result of discrimination against her on the basis of disability.  

On March 27, 2002, the plaintiff settled her workers’ compensation claim and, as part of that settlement, signed a release and resignation from employment.  Several months later, on October 8, 2002, the plaintiff commenced an action against the defendants in the Superior Court alleging violations of several anti-discrimination statutes.  The ultimate basis for these claims was the disability that she had incurred as a result of the work-related injury that she sustained in July of 1996. 

On appeal, the plaintiff argued that summary judgment was improperly granted in favor of the defendants because, in her view, the release that she signed in March of 2002 did not apply to her employment discrimination claims.  She argued that, because her workers’ compensation claim was separate and distinct from those claims, the language in the release applies only to her workers’ compensation claim and does not serve to bar her discrimination claims.  The plaintiff further argued that the release is ambiguous because it does not explicitly refer to her discrimination claim despite the fact that the discrimination claim was pending at the time that the release was signed. 

The Supreme Court held that the language in the March 2002 release was not ambiguous and that it constituted a waiver of all claims which arose as a result of the plaintiff’s work-related injury.  Accordingly, the Court denied the plaintiff’s appeal.        

State v. Abdel Fettah Taoussi, No. 07-17 (June 30, 2009)

The defendant, Abdel Fettah Taoussi, appeared before this Court pursuant to the grant of his petition for writ of certiorari.  He alleged that the trial justice at his criminal trial committed reversible error in denying his motion to suppress certain statements that he made to the police.  The defendant was convicted of one count of second-degree child molestation and one count of second-degree sexual assault.  He was sentenced to concurrent sentences of twenty years, with six years to serve on the child molestation count and fifteen years, with six years to serve on the sexual assault count.

After the jury was impaneled, the defendant moved to suppress certain statements he had made to the police during their investigation.  A hearing was held on the just-referenced motion.  At the end of the suppression hearing, the trial justice found that, based upon the totality of the evidence and testimony presented, the state had established by clear and convincing evidence that the police had repeatedly advised the defendant of his Miranda rights, that he understood those rights, and that he had voluntarily waived those rights.  Accordingly, the trial justice denied the defendant’s motion to suppress.

In his petition, the defendant contended that the state failed to prove that his interrogation was legally conducted and that he did not invoke his right to counsel.  The defendant further contended that the prosecution failed to meet its burden of proving by clear and convincing evidence that the defendant knowingly and intelligently waived his Miranda rights and voluntarily made statements to the police.

The Supreme Court held that the trial justice’s findings of historical fact with respect to the defendant’s voluntary waiver of his Miranda rights were not clearly erroneous.  The Court further held that, considering the totality of the circumstances, there was sufficient evidence presented at the hearing before the trial justice for the Court to be able to conclude that the defendant’s oral and written statements to the police were voluntary.  Accordingly, the judgment of conviction was affirmed. 

In re Tamika R., No. 08-215 (June 30, 2009)

The respondent, Jackie Robinson, appealed from a Family Court decree finding his daughter, Tameka, to be dependent and committing her to the care, custody, and control of the Department of Children, Youth and Families (DCYF).  He argued on appeal, inter alia, that DCYF failed to present the testimony of a " qualified expert witness" as required by the federal Indian Child Welfare Act (ICWA).  The ICWA requires that the DCYF establish by clear and convincing evidence, including qualified expert witness testimony, that continued custody would likely result in serious emotional or physical damage to the child.  DCYF conceded that it did not adhere to the mandatory requirements of 25 U.S.C. § 1912(e), but it argued that this error was harmless beyond a reasonable doubt.  The Court held that it was not harmless error to disregard the requirements of the ICWA, and it vacated the decree of the Family Court.  The Court ordered that the case be retried or resolved as expeditiously as possible, but no later than within ninety days from the date of its opinion.  

Thomas Adams v. RI Department of Correction, No. 08-125 (June 30, 2009)

The plaintiff appealed from an order and judgment of the Superior Court granting summary judgment in favor of the defendant.  The plaintiff alleged that he became ill after ingesting a box of raisins distributed by the defendant as part of a federal food program administered by the state for the benefit of needy citizens.  The defendant argued that the public duty doctrine precluded its liability for any alleged tortious conduct and that no exception to that doctrine obtained in the instant case.

The Court concluded that the government action at issue in this case—namely, the storage and distribution of food—is an activity that private persons and corporations perform regularly.  As a result, the public duty doctrine does not serve to shield the defendant from liability in this case.  The Court vacated the Superior Court judgment granting summary judgment in favor of the defendant.

William V. Irons v. Ethics Commission et al, No. 08-335 (June 29, 2009)

State v. Jeffrey Clark, No. 07-6 (June 29, 2009)

On the morning of September 5, 2004, William Skwirz, Jr. (complainant) was arrested by Officer Robert Costantino of the South Kingstown Police Department for assaulting the defendant, Jeffrey Clark (defendant), an off-duty trooper with the Rhode Island State Police.  Thereafter, while the complainant was handcuffed in the back seat of Officer Costantino’s police cruiser, the defendant repeatedly punched him in the head, causing two head wounds that required eight staples and resulted in two permanent scars.  A jury convicted the defendant of felony assault, simple assault, and filing a false report of a crime.  The defendant appealed.

Before the Supreme Court, the defendant argued that the state’s evidence was insufficient as a matter of law to sustain a conviction for felony assault.  Specifically, he asserted that the evidence did not support a finding that the complainant’s injuries were serious and disfiguring as required by G.L. 1956 § 11-5-2(c)(3).  Furthermore, the defendant contended that his constitutional right of confrontation was violated on three separate instances during the trial.

At the outset, the Court set forth the proper standard of review for challenges to the sufficiency of the evidence by way of a motion for a new trial.  After the Court employed the proper legal analysis and engaged in statutory construction of § 11-5-2, it held that the evidence was sufficient for a jury reasonably to conclude that the complainant’s head injuries constituted a " serious permanent disfigurement" as defined by the Court. 

The Court also concluded that the defendant’s constitutional right to confront the witnesses against him was violated when the trial justice precluded the defendant from cross-examining the complainant, the state’s prime witness, about the fact that the complaining witness had retained an attorney after the incident to pursue a civil action against the Town of South Kingstown (town).  During the complainant’s dispute with the town he was interviewed by the state police in the presence of his attorney; the state police subsequently transcribed the interview and released the transcript to the witness, who then made handwritten changes with the assistance of counsel.  The Court declared that this evidence was relevant to the complainant’s potential motive to fabricate his story to the state police for a financial gain and, therefore, the trial justice should have permitted the defendant to cross-examine the witness about it, notwithstanding the fact that complainant had settled his dispute with the town before trial.  The Court rejected the defendant’s remaining contentions in which he argued that his right of confrontation was violated. 

Accordingly, because the Court was of the opinion that the trial justice committed an error that was not harmless beyond a reasonable doubt, it vacated the judgment of conviction and remanded the case to the Superior Court for a new trial.

Air Distribution Corp. v. Airpro Mechanical Company, Inc., et al, No. 08-113 (June 29, 2009)

One of two codefendants, Hartford Accident and Indemnity Company, appealed from the Superior Court’s grant of summary judgment in favor of the plaintiff, Air Distribution Corp., in a case concerning the plaintiff’s allegation that it was never paid for certain goods that it supplied to a subcontractor for a public building project.  On appeal, Hartford’s sole argument was that the Supreme Court should overturn its long-standing precedent construing the meaning of several sections of the General Laws concerning the legal recourse available to unpaid subcontractors with respect to the sureties of general contractors engaged in public building projects.  The Court declined to do so, and it therefore affirmed the judgment of the Superior Court. 

State v. Vincent Manning, No. 07-19 (June 26, 2009)

The defendant, Vincent       Manning, appealed from a judgment of conviction on one count of first-degree child molestation.  The defendant’s sole issue on appeal was whether the trial justice erroneously barred defense counsel from inquiring into the complaining witness’s previous accusation of sexual abuse against another individual.  Before the trial began, the defendant filed a Notice of Intent to Offer Prior Sexual History of Complaining Witness, and the state filed a motion in limine seeking to exclude such evidence.  At the pretrial hearing, the trial justice denied the state’s motion, but reserved judgment on the defendant’s motion until after the " young lady" testified.  At trial, the defendant sought to impeach the general credibility of the complaining witness by eliciting testimony from her on cross-examination that she had made prior allegations of sexual abuse.  He argued that barring such an inquiry violated his Sixth Amendment right to confrontation and, alternatively, that the proposed inquiry was relevant to show that the witness had another source of knowledge of the sexual acts alleged.

The Court found no error in the trial justice’s preclusion of cross-examination regarding the witness’s purported prior allegation of sexual abuse.  It rejected the defendant’s contention that the Court’s decision in State v. Oliveira, 576 A.2d 111 (R.I. 1990), required cross-examination of prior unresolved sexual abuse allegations to impeach the witness’s general credibility.  The Court distinguished a criminal defendant’s heightened Confrontation Clause interest in cross-examination on the basis of motive or bias from the instant case, in which the defendant sought cross-examination on the basis of general credibility.

The Court held that although Oliveira stated that prior sexual-abuse accusations may be relevant even if not proven false or recanted, such testimony would have little probative value without a minimal showing of falsity if offered for the purpose of impeaching the witness’s general credibility.  The Court emphasized the trial justice’s broad discretion in weighing the probative value of the proposed cross-examination against the risk of unfair prejudice, jury confusion, and testimony that is needlessly cumulative.  The Court held that the defendant failed to make more than a minimal showing that the purported prior allegation was false and, accordingly, the trial justice did not err in exercising his broad discretion in precluding this line of cross-examination.  Moreover, the Court held that the trial justice also did not err in ruling that evidence showing that the complaining witness had an alternate source of knowledge for the sexual acts alleged was not an issue in this case.

Accordingly, the Court affirmed the judgment of conviction and remanded the case to the Superior Court.

Joseph P. Muschiano v. Ronald F. Travers et al, No. 07-47 (June 26, 2009)

The City of Pawtucket appealed from a Superior Court judgment that granted a writ of mandamus directing appropriate city officials to issue a building permit to Joseph P. Muschiano, as well as declaratory and injunctive relief.  Mr. Muschiano had entered into a purchase-and-sale agreement with Carlos Andrade, under the terms of which a coffee and doughnut shop located on the property would be converted into a Dunkin’ Donuts franchise.  The agreement was subject to Mr. Andrade’s ability to obtain all necessary permits.  Mr. Andrade terminated the agreement, however, after the city rejected a landscaping plan that he had submitted.  Mr. Muschiano subsequently filed a complaint seeking a writ of mandamus compelling the city building official to issue a building permit, and also seeking a declaratory judgment, injunctive relief, and damages.

The Court set forth the requirements for a writ of mandamus: (1) " a clear legal right to the relief sought," (2) " a ministerial duty to perform the requested act without discretion to refuse," and (3) " no adequate remedy at law." New England Development, LLC v. Berg, 913 A.2d 363, 368 (R.I. 2007).  The Court then concluded that the plaintiff had failed to exhaust his administrative remedies by failing to appeal the denial of his landscaping plan to the zoning board of review.  The Court held that the trial justice erred in granting a writ of mandamus, as well as declaratory and injunctive relief.  The Court quashed the writ of mandamus and vacated the judgment in its entirety.

John M. Thompson v. Giselda M. Thompson, No. 06-292 (June 25, 2009)

The plaintiff, John M. Thompson (plaintiff), appealed from a Family Court amended decision pending entry of final judgment that awarded him an absolute divorce from the defendant, Giselda M. Thompson (defendant), based on irreconcilable differences that caused the irremediable breakdown of the marriage.   On appeal, the plaintiff assigned error to several aspects of the trial justice’s decision as it related to the equitable distribution of the marital estate.  The plaintiff also filed a petition for the issuance of a writ of certiorari seeking review of an order of a second justice of the Family Court that was issued after the appeal had been docketed in the Supreme Court.  The plaintiff challenged both the jurisdiction of the Family Court to issue the order because the appeal had been docketed in the Supreme Court, as well as the substance of that decision.  The Supreme Court granted the petition for certiorari, and it was consolidated with the appeal.

The Supreme Court first addressed the plaintiff’s appeal and affirmed in part and vacated in part the judgment of the Family Court.  The Supreme Court affirmed the trial justice’s decisions (1) to exclude from the marital estate a bank account in the defendant’s name, (2) to divide the marital estate equally between the parties, (3) to assign to each party his and her individual credit-card debt, and (4) to defer the sale of the marital domicile, although the Court noted that this decision did not properly consider whether the deferral was economically feasible.  The Supreme Court vacated the trial justice’s decisions (1) to include one of the plaintiff’s bank accounts in the marital estate because the money was gifted to the plaintiff individually by the defendant’s parents and (2) to fail to hold the defendant responsible for money she withdrew from an equity line of credit in violation of an automatic stay.  The Supreme Court also noted that, although the trial justice found that alimony was appropriate, no such order was entered, and, therefore, the window for such an award was closed. 

With respect to the plaintiff’s petition for certiorari, the Supreme Court cited the well-settled law that when an appeal has been docketed in the Supreme Court, the lower court is divested of jurisdiction.  To avoid the harsh consequences of this rule, when a conflict requiring judicial intervention arises while an appeal is pending, a party may seek to remand the case temporarily for the resolution of motions for relief that are necessary and appropriate.  The Supreme Court explained that it will entertain a motion to remand with a view toward protecting the rights of litigants while an appeal is pending. 

Therefore, even if a trial court is empowered to rule on a motion after an appeal has been docketed in the Supreme Court, the parties are not excused from first seeking a remand.  Because the second justice of the Family Court issued an order after the original appeal in this case was docketed in the Supreme Court, and because there was no remand, the Supreme Court held that the Family Court was without jurisdiction and quashed the order in its entirety.

Russell L. Houde, Sr. v. State of Rhode Island, et al, No. 08-55 (June 24, 2009)

The plaintiff, Russell L. Houde, Sr., appealed from a Superior Court judgment in favor of the defendant, State of Rhode Island.  Mr. Houde had sought a judgment declaring that he retained his status of " classified employee" and his concomitant entitlement to benefits, after his employer, the Blackstone Valley District Commission (BVDC), merged with the Narragansett Bay Commission (NBC).  Mr. Houde renewed his argument, on appeal, that NBC employment was not inconsistent with classified status and that the trial justice erred in finding that he waived such status by accepting his increase in salary and failing to exercise his right to transfer at the time of the merger.  The Court disagreed and held that the NBC’s enabling statute expressly prohibited technical experts such as Mr. Houde from designation as classified employees.  The Court also held that by choosing to accept the increased compensation and ancillary benefits of the nonclassified position, Mr. Houde voluntarily had relinquished his right to transfer to a comparable position within the system and remain in a classified position.  Accordingly, the Court affirmed the judgment of the Superior Court.

State v. Daniel DeOliveira, No. 04-149 (June 22, 2009)

The defendant appealed from a conviction for driving while intoxicated, death resulting.  Following a full jury trial and conviction, the defendant was sentenced to fifteen years imprisonment, with five years to serve and ten years suspended, and a five-year license suspension upon release from state custody.  On appeal, the defendant challenged the admissibility of his Breathalyzer test results, the denial of his motion for judgment of acquittal, and the denial of his motion for a new trial.

The Court upheld the trial justice’s denial of the motion to suppress the defendant’s Breathalyzer test results.  First, the Court held that the defendant had waived his constitutional arguments relative to his suppression motion.  Second, the Court, employing the clearly erroneous standard of review, upheld the trial justice’s finding that the defendant knowingly, intelligently, and voluntarily waived his statutory right to refuse the Breathalyzer test. 

The Court further affirmed the trial justice’s denial of the defendant’s motion for judgment of acquittal and motion for a new trial.  In both cases, the Court agreed with the trial justice that there was sufficient evidence adduced at trial to allow the jury to conclude that the defendant’s driving was a proximate cause of the victim’s death. 

For these reasons, the defendant’s conviction was therefore affirmed.   

State v. Thomas P. Byrne, No. 08-27 (June 19, 2009)

On September 18, 2005, Roxanne and Simon Smith reported an incident to Det. Joel Camara (Det. Camara) of the Warren Police Department that involved the defendant and their daughter.  Roxanne informed the detective that on the previous day, Roxanne, Simon, and their ten-year-old daughter went to the Off Center Coffee House (coffee house) in Warren, an establishment that was owned by the defendant, Thomas P. Byrne (defendant), with whom the family apparently was acquainted.  Although Roxanne and Simon left the coffee house two hours later, their daughter asked to stay behind to assist the staff in preparing food and serving customers.  During the child’s visit, the defendant allegedly used a camera to photograph her undergarments.         

Detective Camara included the allegations in an affidavit in support of two search warrants—one for the coffee house, and the second for the defendant’s residence in Barrington.  Three days after the alleged incident, the chief judge of the District Court authorized the search warrants.  At the defendant’s home, the police discovered marijuana and other drug paraphernalia; they also found two cameras, one of which was digital.  By examining the information stored on the digital camera, the police were able to extract photos depicting undergarments that matched the description of the child’s clothing.

Prior to trial, the defendant moved to suppress the evidence obtained from the search of his home.  The trial justice issued a written decision granting the motion to suppress, concluding that Det. Camara’s affidavit failed to provide a nexus between the items to be seized—cameras and photographic images—and the location to be searched, the defendant’s home.  The state timely appealed.

On appeal, the Supreme Court held that a reasonable inference could be drawn from the allegations contained in Det. Camara’s affidavit that the camera could be found at the defendant’s residence.  The Court reasoned that the nexus between the items to be seized and the location to be searched may be based on factors such as the nature of the alleged crime and the nature of the instrumentality used in its commission.  The Court noted that direct observation of the suspect with the contraband at or near the place to be searched is not a prerequisite for a finding of probable cause.  In short, the Court determined that, based on the nature of the criminal conduct at issue and the instrumentality of the crime—a small, easily transportable camera—a reasonable inference could be made that the defendant took the camera carrying the illicit images home for his perusal.  Accordingly, the Court vacated the order suppressing the evidence and remanded the case to the Superior Court.

In re Peter S. et al, No. 08-32 (June 19, 2009)

The respondent father, Peter S., appeals from a Family Court decree terminating his parental rights with respect to his three children, Peter William S., Michele S., and Joshua S., pursuant to G.L. 1956 § 15-7-7(a)(2)(ii).  The respondent pled nolo contendere to felony assault for injuries inflicted upon his infant son, Joshua; the trial justice found these injuries to be consistent with " shaken baby syndrome."  

The Department of Children, Youth and Families (DCYF) filed a petition to terminate the respondent’s parental rights with respect to all three of his children following Joshua’s emergency admission to Hasbro Children’s Hospital and his diagnosis of abusive head trauma. 

After a hearing on the petition, the trial justice found that the respondent was an unfit parent with respect to Joshua by reason of conduct toward the child of a cruel and abusive nature.  He further found the respondent unfit as to his other two children for the reason that injuries inflicted upon one child can be an evidentiary factor with respect to the other children.  The trial justice terminated the respondent’s parental rights with respect to his three children.

On appeal, the respondent argued that the trial justice committed reversible error by terminating his parental rights based upon one isolated incident of abusive behavior.  He further argued that because he no longer has custody of his children or visitation rights pursuant to a divorce decree, there was no reason to terminate his parental rights.  He also argued that parental rights may not be terminated based upon incarceration alone and that there was no evidence submitted that he is a danger to his children.  The respondent also argued that DCYF was required to offer him services and make reasonable efforts to reunite him with his children.  Finally, the respondent argued that he has accepted responsibility for Joshua’s injuries and, on that basis, his parental rights should not have been terminated. 

The Supreme Court held that the Family Court’s finding of unfitness was supported by the evidence presented at the respondent’s trial.  The Court also noted that a divorce decree and a decree terminating parental rights are the result of separate and distinct proceedings.  The Court further noted that the protection afforded children by the termination of parental rights procedure cannot be substituted with a divorce decree.  The Court also held that the trial justice did not terminate the respondent’s parental rights based solely on his incarceration, but noted that incarceration is an appropriate factor for the court to consider in a termination proceeding. 

Further, the Supreme Court noted that, pursuant to G.L. 1956 § 15-7-7(a)(2)(ii), DCYF was under no obligation to attempt reunification.  Finally, the Court held that there was no clear error in the trial justice’s determination that it was in the best interests of the children to terminate the respondent’s parental rights.  Accordingly, the decree of the Family Court was affirmed.      

Jessica Beauregard v. Grady Samuel White, No. 04-242 (June 19, 2009)

The Supreme Court issued a writ of certiorari to review Family Court orders relating to the custody of the parties’ two minor children, in which the Family Court exercised emergency jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), G.L. 1956 § 14-14-4(a)(3)(ii), and the later adopted Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), G.L. 1956 § 15-14.1-16.

After she filed for divorce in the state of North Carolina, where she lived with her husband and two children, the plaintiff, Jessica Beauregard, returned to her native state of Rhode Island.  In a custody determination, the North Carolina judge ordered her to move back to that state with her children or surrender physical custody of her children to her husband.  The plaintiff then filed a complaint in the Rhode Island Family Court seeking to modify the North Carolina custody decision, and further seeking emergency relief from the visitation and relocation provisions of the North Carolina order. 

In her complaint, the plaintiff alleged that her children had been subject to mistreatment and abuse by their father and submitted a report by a psychologist who had expressed concerns that transitioning the children to North Carolina would be detrimental to them.   In response, the Family Court issued an ex parte order asserting jurisdiction over the children under the UCCJA.  The court enjoined the parties from removing the children from Rhode Island, and it ordered that a hearing be held within twenty days.  Because of delays effecting service, it was not until several months later that the defendant filed a special appearance to contest jurisdiction of the Family Court and filed a motion to dismiss. 

A hearing was not held until about a year after the court’s first order.  At the hearing, the plaintiff and the psychologist testified that the older son had reported that his father had shaken his baby brother.  The plaintiff testified that before the divorce, she had found pornographic pictures on the defendant’s computer and that the North Carolina court had evidence that the defendant had viewed child pornography.  The hearing magistrate of the Family Court held that the situation was of an emergency nature for two reasons:  " The alleged abuse of the child" and " the apparent pedophilia of the defendant as to the safety of the children."  The court then exercised emergency jurisdiction under the UCCJEA, and it ordered the defendant to submit to various tests and take parenting classes, and it allowed the defendant only supervised visits with his children until the crisis resolved.  

The Supreme Court ruled that its analysis of the issues presented was governed by the UCCJA, the former statute that was in effect at the time that the plaintiff filed her complaint in the Family Court.  Considering the report submitted by the psychologist and considering the allegations of the complaint that there was an outstanding order for protection from abuse, the Supreme Court held that the Family Court’s invocation of emergency jurisdiction was proper initially.  The Court further held, however, that thereafter, based on the fact that North Carolina had made an initial child-custody determination and based on the testimony presented at the hearing, the allegations were insufficient for the court to continue to exercise emergency jurisdiction.  The Court reasoned that all the allegations of abuse, including the alleged shaking and the circumstances surrounding the protection order already had been considered and discounted by the judge in North Carolina.  It was significant that the Department of Children, Youth and Families previously had found that the allegations of abuse by the father had not been substantiated.  With respect to the allegations about the defendant’s use of the Internet for male pornography, the North Carolina judge had expressly considered that when he made his custody determination, and there was nothing in the record to substantiate the allegations regarding child pornography or pedophilia.  Further, the psychologist’s concern that relocating the children would cause irreparable harm did not rise to the level of a real emergency creating substantial harm from actual or threatened mistreatment or abuse as required by the statute.  Therefore, absent a real emergency, the Family Court could not assert emergency jurisdiction under the UCCJA.  The Court also held that the court’s order exceeded the scope of emergency jurisdiction by issuing an indeterminate order. 

The Court further held that without emergency jurisdiction, the Family Court could not otherwise exercise jurisdiction because North Carolina had issued a child-custody determination.  The Court explained that the Family Court should have stayed the proceedings, pursuant to the UCCJA, and communicated with the court in North Carolina.  After recognizing North Carolina’s continuing jurisdiction over the subject matter of the plaintiff’s complaint and owing full faith and credit to that state’s custody determination, the Supreme Court ordered that the Family Court dismiss the plaintiff’s complaint.  The Court further ordered the court to order the plaintiff to comply with the orders of the North Carolina court or obtain relief therefrom within thirty days.     

William A. Hilley, et al v. Stephen T. Lawrence, No. 07-320 (June 19, 2009

The defendant, Stephen T. Lawrence, and the plaintiffs, William A. Hilley and Toni Lynn Hilley, own adjacent undeveloped lots located in a subdivision in Tiverton.  The subdivision’s plan sets out twelve lots and a right-of-way (Sunderland Drive) that is demarcated on the plan by dashed lines; it passes through the plaintiffs’ land, but does not abut the defendant’s lot.  The defendant’s property also has frontage on Riverside Drive, a public street. 

The plaintiffs sought to enjoin the defendant from passing over their land.  The defendant claimed that he was entitled to use Sunderland Drive for vehicular access to his property through and across the Hilley land because his deed expressly granted an easement to use Sunderland Drive.  Alternatively, he claimed that he was entitled to an easement by implication, prescription, acquiescence, or necessity.  A trial justice of the Superior Court, sitting without a jury, ruled in favor of the plaintiffs, and the defendant appealed. 

The Supreme Court held that the defendant’s deed did not grant him an express easement to reach his property from Sunderland Drive because it limited the right-of-way to the land within the boundaries shown on the Sunderland Plan, which do not abut the defendant’s property.  The Court also rejected the defendant’s claim that he was entitled to an easement by implication because he failed to produce clear and convincing evidence that, at the time the land was subdivided, there was access to his property from Sunderland Drive, nor was there any evidence that the grantors intended to convey an easement.  Furthermore, because the evidence revealed that previous access from Sunderland Drive was permissive, the Supreme Court held that the defendant could not establish entitlement to an easement by prescription or acquiescence.  Finally, the Supreme Court held that the defendant was not entitled to an easement by necessity because it was reasonable, albeit more expensive, to establish access to his property directly from Riverside Drive.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court that enjoined the defendant from passing over the plaintiffs’ land to access his lot from Sunderland Drive.    

State v. Michael Tetreault, No. 06-290 (June 17, 2009)

The defendant, Michael Tetreault (defendant), appealed from a finding of a probation violation.  After the Cumberland Farms store located on South Main Street in Woonsocket had closed for the night on July 21, 2005, an intruder gained entry.  The store’s surveillance cameras recorded a white male falling through the ceiling and walking behind the checkout counter, where he proceeded to empty the contents of a trash bag and load it with cartons of cigarettes.  The Woonsocket police suspected that the defendant was the perpetrator.  Later, when Det. Todd Fernandez (Det. Fernandez) questioned the defendant about the night of the break-in and showed the defendant several still photographs of the footage taken from the surveillance cameras, the defendant admitted that he was depicted in those photographs.

The testimony at the violation hearing suggested that no fingerprint evidence was recovered from the store.  The hearing justice was reasonably satisfied that the defendant violated the terms and conditions of his release and ordered the defendant to serve four years at the Adult Correctional Institutions.  The defendant timely appealed to the Supreme Court.  While the appeal was pending, the defendant was acquitted of the underlying offense of breaking and entering.

It was disclosed at trial that a fingerprint was in fact recovered from the top of a refrigeration unit located near the intruder’s point of entry, but it did not match the defendant’s fingerprints.  The Supreme Court granted the defendant’s motion to remand the case to the Superior Court so that the hearing justice could reconsider her finding that the defendant was a violator.  On remand to the Superior Court, the hearing justice, even after considering the fingerprint, remained reasonably satisfied that the defendant had violated the terms and conditions of his probation.  The defendant appealed.

The Supreme Court held that the hearing justice did not act arbitrarily or capriciously when she determined that the defendant was a violator, nor did she err in reaffirming her decision.  The hearing justice remained reasonably satisfied that the defendant was the intruder based on the surveillance photographs and the defendant’s admissions to the police.  Therefore, the Supreme Court affirmed the judgment of the Superior Court.

Robert Shappy v. Downcity Capital Partners, Ltd. et al, No. 08-175 (June 16, 2009)

The plaintiff, Robert Shappy, appealed to the Supreme Court from the Superior Court’s grant of motions for summary judgment entered in favor of the defendants, Downcity Capital Partners, Ltd. and RESOL, LLC (collectively defendants).  On December 9, 2005, the plaintiff signed a quitclaim deed that conveyed real property at 87 Belfield Drive in Johnston to his son-in-law, Douglas P. Cataldo.  The plaintiff contends that Cataldo, who was a mortgage broker, fraudulently induced him into signing the instrument.  On January 24, 2006, after Cataldo recorded the quitclaim deed in the Land Evidence Records, he entered into a term mortgage loan with Downcity, borrowing $110,000 and executing a promissory note that was secured by the property.  There was no dispute that Downcity believed that the quitclaim deed was genuine, that it had been properly executed, and that Cataldo owned the property.  On February 1, 2007, Cataldo defaulted on the terms of the promissory note with Downcity.  Just over a month later, Cataldo granted a second mortgage on the property to RESOL to secure a loan in the amount of $50,000.  RESOL also relied on the validity of the deed, properly recorded in the Land Evidence Records, and, like Down city, it did not have any knowledge of Cataldo’s purported fraud against his father-in-law.  As a consequence of Cataldo’s default on the loan, Downcity scheduled a foreclosure sale for June 20, 2007. 

On June 15, 2007, after he learned of the pending foreclosure sale, the plaintiff commenced an action in the Superior Court against Down city and Cataldo.  The plaintiff asserted that Cataldo fraudulently induced him into signing the quitclaim deed and he requested punitive damages for this malicious conduct.  The plaintiff also sought to enjoin Down city's pending foreclosure sale and he requested that the court vacate and declare both the quitclaim deed and the mortgage deed to be void.  Downcity answered the verified complaint, and it also filed a cross-claim against Cataldo for the amount owed under the loan.     

On January 15, 2008, Downcity filed a motion for summary judgment with respect to the plaintiff’s claims against it as well as its cross-claim against Cataldo.  Subsequently, RESOL, which had intervened in the case, joined in Downcity’s motion.  The plaintiff filed an objection to Downcity’s motion for summary judgment.  In an accompanying affidavit, the plaintiff said that he did not intend to convey the property to Cataldo and that he believed that his signature on the quitclaim deed was merely part of the process to secure a loan for the property that he had agreed to purchase.  The plaintiff also asserted, for the first time, that the language of conveyance was not present in the document when he signed it. 

During the summary judgment hearing, the defendants conceded that Cataldo fraudulently secured the plaintiff’s signature on the quitclaim deed; however, they argued that the plaintiff was negligent by signing the deed without completely reading it or, alternatively, by signing a blank deed.  The defendants contended that such conduct demonstrated that the plaintiff was negligent as a matter of law, thus making summary judgment appropriate.  The hearing justice granted summary judgment in favor of Downcity and RESOL and the plaintiff timely appealed. 

Before the Supreme Court, the plaintiff argued that the issue of whether he was negligent when he signed the quitclaim deed was a question of fact that should have been submitted to a jury.  Therefore, he asserted that the hearing justice erred when he granted summary judgment in favor of the defendants.  The Supreme Court disagreed.  The Court said that when the facts suggest only one reasonable inference, a trial justice properly may treat a question as a matter of law.  In this case, it was inescapable that the words " Quit-Claim Deed" were printed clearly on the top of the document and that it also contained a notary clause.  The Court said that these facts were sufficient to give the plaintiff notice of the document’s significance.  However, the only question the plaintiff asked of Cataldo was whether his signature required notarization.  The plaintiff, despite his trust in his son-in-law, failed to ask for any explanation of the quitclaim deed.  Further, he either signed the deed without reading it first, or he signed a blank deed.  Therefore, the Court concluded that the plaintiff failed to establish a genuine issue of material fact and that he was negligent as a matter of law.  The Court held that the defendants were entitled to judgment as a matter of law, and the hearing justice appropriately granted summary judgment.

State v. Paul Pereira, No. 07-194 (June 15, 2009)

This case came before the Supreme Court on appeal by the defendant, Paul Pereira, from judgments of conviction entered in the Providence County Superior Court after a jury trial.  The defendant was charged with and convicted of sexual offenses against both his daughter and his niece, ensuing from separate incidents that occurred some sixteen to twenty-one years apart.

On appeal to the Supreme Court, the defendant argued that the state’s charges against him pertaining to the sexual abuse of his niece, alleged to have occurred between 1982 and 1984, were misjoined with the sexual-molestation charges against him with regard to his daughter that allegedly occurred between 2000 and 2003.  The defendant also argued that the trial justice erred when he denied the defendant’s motion to sever the charges, resulting in real and substantial prejudice against him and creating a considerable doubt about whether he received a fair trial.  The defendant also argued that one of the counts of the indictment should have been dismissed because of a violation of the ex post facto clauses of the state and federal constitutions.  Lastly, the defendant argued that the trial justice erred when he allowed a witness to testify about a prior consistent statement that his daughter made when she reported the abuse. 

The indictment charged the defendant with committing one count of first-degree child molestation by digital penetration against his daughter when she was between the ages of three and six years old.  The state also charged the defendant with two counts of sexual misconduct against his niece by hand-penile contact, in violation of the statute proscribing second-degree sexual assault, when she was between the ages of seven and a half and nine and a half years old, and in violation of the law against second-degree child molestation, when she was almost ten years old. 

The Supreme Court held that the charges in the indictment pertaining to his niece were properly joined with the charge concerning his daughter under Rule 8(a) of the Superior Court Rules of Criminal Procedure as offenses " of the same or similar character."   The Court reasoned that the indictment contained similar statutory offenses pertaining to sexual contact with a minor that only varied in degree.  The offenses were also similar because they both occurred in a bedroom of a family home, the victims both were young girls who were blood relatives of the defendant, the defendant used his position of trust as a family member to control both victims, and hand-to-genital contact was engaged in with respect to both victims.  The Court concluded that the temporal remoteness between the offenses, ranging between sixteen and twenty-one years, was overcome by the other acute similarities of the charged offenses.

The Court also held that the trial justice did not abuse his discretion when he denied the defendant’s motion to sever the charges under Rule 14 of the Superior Court Rules of Criminal Procedure.  The defendant had argued that he was prejudiced by the joinder and confounded in presenting a defense because he was forced to exercise his right not to testify at trial.  He maintained that he had wanted to testify to deny the charges pertaining to his daughter, but he did not want to testify on the charges pertaining to his niece.  The Court held that the defendant failed to offer any particularized showing of prejudice because he failed to indicate what testimony he would have wanted to give had the charges been severed.   Even considering the defendant’s assertion that he wanted to testify as to his wife’s motives and hostility, the Court observed that the defendant had ample opportunity to present this defense during the cross-examination of his wife, and therefore was not denied an opportunity to present important and vital testimony to his defense. 

The Court also concluded that the evidence at trial was straightforward, simple, and distinct and the trial justice gave appropriate instructions to limit the jury’s cumulation of evidence.   The state brought only three charges, each victim testified about the assault that she had experienced, and the testimony was uncomplicated.  The jury also acquitted the defendant of one of the charges.   As a result, the Court held that the defendant had failed to show that he suffered any real or substantial prejudice that would justify disturbing the decision of the trial justice.

After considering the defendant’s ex post facto arguments, the Court held that the state charged the defendant with the statute that was in effect at the time he committed the crime; therefore, he was not subject to any increase in penalty that would violate the ex post facto clauses of either the state or federal constitutions.  The Court also held that the state properly charged the defendant with the repealed statute under the simultaneous-repeal-and-reenactment exception to the common-law abatement doctrine because the new statute was the same as the old statute.  The Court reasoned that neither an increase in penalty for the conduct in question nor the removal of the statute of limitations substantially changed the elements of the crime.   Agreeing with the state, the Court observed that the reenacted statute supported the presumption that the General Assembly did not intend to pardon a defendant’s conduct that occurred prior to the repeal and reenactment. 

In addressing the defendant’s last argument under Rule 801(d)(1)(B) of the Rhode Island Rules of Evidence, the Court concluded that the defendant had not preserved the issue for appeal.  When the state sought to admit the testimony of a family friend to whom the defendant’s daughter revealed her abuse, the defendant objected, but then requested that the evidence be used only to rehabilitate the credibility of the defendant’s daughter.  The Court held that because the defendant requested the instruction given by the trial justice and because the evidence was not admitted for its truth, the defendant’s argument that the prior consistent statement was wrongfully admitted had no merit.

In light of the foregoing, the Supreme Court affirmed the judgments of conviction. 

In re Alexis L., No. 06-57 (June 12, 2009)

Rosalia Lopez-Navor appealed from a Family Court judgment terminating her parental rights to her son, Alexis L.  The trial justice based his decision to terminate Lopez-Navor’s parental rights on the mother’s failure to protect Alexis from physical abuse inflicted by his father.  On appeal, Lopez-Navor made three arguments.  First, she claimed that the trial justice impermissibly allowed Alexis’s foster mother to testify to hearsay statements allegedly made by the child three months after being placed in foster care.  Second, she contended that the trial justice abused his discretion in not permitting expert testimony about whether she was a victim of domestic violence.  Finally, she maintained that the trial justice erred in determining that it was in Alexis’s best interest to terminate his mother’s parental rights.

The Supreme Court affirmed the judgment of the Family Court in terminating the parental rights of Lopez-Navor.  First, the Court decided that, under G.L. 1956 § 14-1-69, the trial justice abused his discretion in admitting into evidence statements Alexis made to his foster mother because the statements were not made spontaneously within a reasonable time after the alleged act of abuse occurred.  Despite this conclusion, the Court held that this error did not demand reversal because these statements had no influence on the trial justice’s decision to terminate parental rights.  Second, the Court ruled that, under Rule 702 of the Rhode Island Rules of Evidence, the trial justice did not abuse his discretion in determining that expert-opinion testimony would not be of assistance to him as the trier of fact.  Finally, the Court decided that legally competent evidence in the record supported the trial justice’s conclusion that termination was in Alexis’s best interests.

In re Michael Derderian, No. 07-41 (June 12, 2009)

The Providence Journal Company (the Journal) appealed from a Superior Court judgment denying its petition for press access to completed juror questionnaires used in the criminal case arising out of The Station nightclub fire.  The Journal argued that it has a constitutional right of access to the jury selection process, including completed juror questionnaires, and that the trial court’s blanket denial of access to completed questionnaires violated its First Amendment rights.

The Supreme Court declined to address the merits of the case on grounds of mootness.  The Court held that the case was moot because the criminal case concluded when Michael Derderian pleaded nolo contendere to the charges, obviating the necessity of empaneling a jury.  Although the Court noted a limited exception to the mootness doctrine for questions of extreme public importance that are capable of repetition while evading review, it decided that this case did not fall within that exception.  Recognizing that this case did raise social and constitutional concerns of great public importance, the Court nonetheless held that the unique factual and procedural posture of this case made it incapable of repetition while evading review.         

State v. David Robinson, No. 07-197, State v. Robert Palmer, Jr., 07-198, State v. Christine Cabral, No. 07-204, State v. Marcos Garden, No. 07-296, State v. John Barboza, No. 08-28, State v. Armando Furlano, No. 08-116 (June 11, 2009)

These companion cases were before the Supreme Court on writs of certiorari.  The petitioners are six motorists who sought review of a District Court order. That order reversed a decision of the appeals panel of the Traffic Tribunal that had affirmed a magistrate judge’s dismissal of charges of refusing to submit to a chemical test.  The Supreme Court issued the writs, and consolidated the cases for briefing and argument because of the parallel issues presented.  All six petitioners were suspected of operating motor vehicles while under the influence of alcohol or a controlled substance, all six were advised of the penalties for refusing to submit to a chemical test save one—a $200 assessment fee to support the Department of Health’s chemical testing programs—and all six declined to have the test administered to them. 

A magistrate judge of the Traffic Tribunal dismissed the charges against the petitioners because he found that they had not been fully apprised of the penalties they would incur as a consequence of refusing to submit to the chemical test.  The state appealed the magistrate judge’s decision to the appeals panel of the Traffic Tribunal.  On January 29, 2007, the panel affirmed the magistrate’s decision to dismiss the charges against the motorists.  It found that the $200 assessment was a penalty within the meaning of the refusal statute and that the imposition of this penalty was mandatory.  The panel said that it lacked the statutory authority to impose some of the mandatory penalties, but not others, and that if it decided " to avoid the $200 statutory penalty and impose the other sanctions, [its] action would be void ab initio."   The state sought review of the appeals panel’s decision in the District Court.  In a consolidated decision issued on May 23, 2007, a District Court judge reversed the decision of the appeals panel.  He concluded that the motorists’ " statutory right to be notified of all refusal penalties was violated."   The judge, however, did not agree with the appeals panel’s decision that the violation must be dismissed.  Instead, he said that if the charges were sustained by the Traffic Tribunal, then the $200 assessment could not be imposed, but the other penalties could be.

Before the Supreme Court, the petitioners asserted that because the state conceded that the $200 assessment is a penalty about which the petitioners were required to be informed, the state’s inability to prove that each of these motorists was so informed mandated that the charges be dismissed.  The petitioners also contended that the District Court did not have subject-matter jurisdiction over the state’s appeal because G.L. 1956 § 31-41.1-9 only authorizes " [a] person who is aggrieved" by a decision of the appeals panel to appeal to the District Court.  They asserted that the state is not a " person" within the definition of the statute.  The state countered by pointing out that the General Assembly has provided the chief magistrate of the Traffic Tribunal with " the power to make rules for regulating practice, procedure and business within the [T]raffic [T]ribunal," G.L. 1956 § 8-8.2-1, and that Rule 21(b) of the Traffic Tribunal Rules of Procedure provides the District Court with subject-matter jurisdiction to entertain the state’s appeal because it provides that " [a]ny party aggrieved by a decision of the appeals panel may appeal therefrom to the [S]ixth [D]ivision [D]istrict [C]ourt."

The Supreme Court concluded that the District Court did not have subject-matter jurisdiction over the state’s appeal.  After ruling that such jurisdiction did not spring from the language of § 31-41.1-9, the Court turned its attention to Rule 21.  The Court acknowledged that there was a conflict between the rule and the statute; however, the Court said that it could not overlook the well-established principle that procedural rule-making authority cannot be used to expand a court’s jurisdiction. The Court said that under the state constitution, the General Assembly has the power to enact legislation establishing the jurisdiction of the lower courts.  Therefore, the chief magistrate of the Traffic Tribunal did not have the authority to promulgate a rule that expands the jurisdiction of the District Court because that is a right that lies solely within the province of the General Assembly.  Because the Supreme Court held that the District Court did not have subject-matter jurisdiction to hear the state’s appeal, it quashed the order entered by the District Court.

Justice Robinson did not participate. 

Town of Barrington v. Martin J. Williams et al, No. 07-319 (June 10, 2009)

This case came before the Supreme Court on December 2, 2008, on an appeal by some, but not all, of the defendants from a Superior Court decision and judgment that adopted the findings and recommendations of a court-appointed special master in an action seeking declaratory and injunctive relief over the disputed location of a platted but undeveloped forty-foot-wide right-of-way in the Town of Barrington known as Bogman Street.  The Supreme Court affirmed the judgment of the Superior Court.

This dispute arose from conflicting surveys of a plat of land located in Barrington and the sale of lots with reference to two differing plats.  The parties agreed that the trial justice should appoint a special master pursuant to Rule 53 of the Superior Court Rules of Civil Procedure to conduct an investigation and hearings and to submit a report with his findings of fact, conclusions of law, and recommendations.  The master submitted his report and it was accepted by the trial justice, without objection from any party.  The trial justice then ordered the master to propose a replat that included " the suggested revised street widths, lot layouts and monumentation," as recommended in the master’s first report.  The master complied and provided a replat that depicted Bogman Street as a right-of-way with a width of twenty-four feet.  The trial justice adopted the recommended replat as the judgment of the Superior Court and several land owners appealed. 

On appeal, the appellants argued that the master exceeded his authority by proposing a compromise with respect to the width and location of Bogman Street.  The Supreme Court held that the order properly vested the master with the authority to conduct an investigation and to submit recommendations and that the master did exactly that.  The appellants also contended that the trial justice exceeded his authority by adopting the recommendations of the master because changing the size of Bogman Street would require legislative action by the town to abandon portions of Bogman Street.  The Supreme Court found that Bogman Street had not been accepted by the town or by public use and therefore no legislative action was required to abandon any part of it.  The Supreme Court also held that the trial justice had the authority to accept the master’s recommendations and appropriately determined that the interests of all parties and the principles of equity required that he adopt the replat recommended by the master.

The Supreme Court noted that this litigation was pending for nearly fifteen years and that the case had consumed significant resources of the parties and the courts.  The parties agreed to use a special master and the trial justice properly ordered the master to perform certain tasks.  The master ably complied with the Rule 53 order and the trial justice appropriately adopted the master’s findings.  Based on these findings, the trial justice declared the location of Bogman Street and the surrounding property boundaries.  The Supreme Court noted that it was unlikely that any resolution would satisfy everyone, and held that the trial justice’s decision reflected a thoughtful, careful, and appropriate result.  The judgment of the Superior Court was affirmed. 

Jason Ferrell v. A.T. Wall, Warden of the Adult Correctional Institutions, No. 07-92 (June 8, 2009)

After the motion justice granted the applicant, Jason Ferrell’s (applicant or Ferrell) application for postconviction relief as well as his motion to reduce his sentence, the State of Rhode Island appealed to the Supreme Court, seeking a reversal of both judgments.  The applicant filed a cross-appeal, in which he asserted several errors alleged to have occurred during the trial on the merits.

In his application for postconviction relief, the applicant asserted that he had received ineffective assistance of counsel because his trial attorney had a conflict of interest arising from his simultaneous representation of the applicant’s codefendant, albeit in an unrelated matter.  The Supreme Court cited the doctrine of res judicata as an insurmountable procedural bar because the applicant failed to raise the conflict-of-interest issue in his prior postconviction-relief proceeding.  The Court noted that it had not heard from the applicant, nor could it glean from the record, a valid reason why that issue had not been raised in the first application for postconviction relief, and accordingly reversed the judgment of the Superior Court.

Turning to the sentence-reduction motion, the Court concluded that it was improper for the motion justice to consider the applicant’s motion for a sentence reduction under Rule 35 of the Superior Court Rules of Criminal Procedure after already having granted Ferrell’s application for postconviction relief.  Accordingly, in light of its reversal of the postconviction-relief judgment, the Court remanded the case to the Superior Court for a hearing on the sentence-reduction motion. 

With respect to the applicant’s cross-appeal, the Supreme Court rejected each of the assertions of error, holding that they all were properly denied by the motion justice, either on their merits or because they already had been considered and rejected by the motion justice or by the Supreme Court on review in a previous appeal.   

Woon Kam Youngsaye, et al v. Jacques G. Susset, M.D., et al, No. 08-09 (June 8, 2009)

The defendants, Jacques G. Susset, M.D., and Jacques G. Susset, M.D., Inc. (defendants), appealed from a judgment of the Superior Court holding them liable for injuries suffered by the plaintiff, Woon Kam Youngsaye (plaintiff), as a result of their negligent medical care.  The defendants argued that the trial justice committed reversible error by improperly expressing factual conclusions during her instructions to the jury on the issue of spoliation and thereafter by declining to pass the case or grant a new trial.

The Supreme Court denied and dismissed the defendants’ appeal based on their refusal to accept the offer of curative instructions from the trial justice.  The Court reasoned that without the benefit of such instructions, it was unable to conduct a fair and reasonable review of the original charge.  Notwithstanding the above, the Court further held that the instructions, taken as a whole, did not so prejudice the jury as to warrant reversal.  The Court cited the trial justice’s statements—both before and after the spoliation instructions—emphasizing the jury’s role as sole fact-finder and cautioning it to disregard anything that she happened to say that suggested her opinion on the evidence.

State v. Thurston R. Horton, No. 08-200 (June 5, 2009)

The defendant, Thurston R. Horton, appealed from a Superior Court adjudication of probation violation following a combined probation violation and bail hearing that took place on May 20 and 21, 2008.  At the conclusion of that hearing, the defendant was found to have violated the terms and conditions of his probation, and he was sentenced to serve five years of a sentence that had been a previously imposed pursuant to his conviction on one count of assault with intent to commit robbery.  A timely notice of appeal was filed on June 6, 2008.

On appeal, the defendant argued that the hearing justice " acted arbitrarily and capriciously" in basing his probation violation finding on what the defendant characterized as the " highly questionable evidence" presented at the hearing.

The Supreme Court held that the hearing justice did not act arbitrarily and capriciously when he determined that the defendant violated the terms and conditions of his probation.  The Court also held that the hearing justice properly weighed the evidence and assessed the credibility of each of the witnesses.  Accordingly, the Court affirmed the judgment of the Superior Court. 

State v. Christopher J. Gaylor, No. 08-187 (June 5, 2009)

The defendant, Christopher J. Gaylor, appeals from a Superior Court order denying a motion whereby he sought credit for time served while awaiting trial and sentencing.  The defendant was convicted of second-degree sexual assault and sentenced to seven years imprisonment, with one year to serve and six years suspended, with probation.  The defendant’s judgment of conviction and commitment noted that he was given credit for time served while awaiting trial (404 days).  As a result, he was released from prison following his sentencing since he had already served the one year sentence while awaiting trial. 

Subsequently, the defendant was presented as a violator of his probation for failing to properly register his address as required by the sex offender notification act.  He was found to be in violation of the terms of his probation and was ordered to serve eighteen months of his suspended sentence.  The defendant filed a motion requesting that he receive credit for the thirty-nine days that he spent in prison awaiting trial and sentencing on the underlying sexual assault charge and that this credit be applied to his eighteen-month probation violation sentence.  The Superior Court denied this motion.

On appeal, the defendant argued that (1) his appeal was not moot, in spite of the fact that he has completed his eighteen month sentence, because he remains on probation until January 12, 2012 and there is the possibility that he could again be presented as a probation violator and face an additional term of imprisonment; and (2) that he should be credited for the thirty-nine days that he served in addition to the one year term of his original sentence and that this time should be preserved for any future application during his probationary period. 

The Supreme Court held that the defendant’s appeal was not moot because, since he remains on probation until January 12, 2012, he does have a continuing stake in the outcome of his appeal.  Although holding that the appeal was not moot, the Court further held that the issue of whether or not defendant was entitled to receive credit for the thirty-nine " excess days" was not ripe for review since he is not presently faced with the immediate possibility of incarceration.  With  respect to defendant’s argument that, should he in the future be adjudged a violator of his probation then the thirty-nine " excess days" should be applied to reduce his sentence, the Court noted that the argument was non-frivolous; but it then stated that, until such a circumstance occurs, the issue was not ripe for review. 

Irene Realty Corp et al v. Travelers Property Casualty Company of America, No. 08-147 (June 5, 2009)

The plaintiffs, Irene Realty Corporation and American Empire Surplus Lines Insurance Company, appealed from the Superior Court’s entry of summary judgment in favor of the defendant, Travelers Property Casualty Company of America. 

 On appeal, the plaintiffs argued that the hearing justice erred in deciding that Travelers was Irene Realty’s sole primary insurer and that, if the hearing justice did commit reversible error, then she should have held that Travelers and American Empire shared primary coverage (under the pro rata rule) or, in the alternative, should have held that Travelers was the sole primary insurer.        

The Supreme Court held that the language of the insurance policies at issue was not ambiguous and that the specific " other insurance" clauses in the insurance policies did not actually conflict with each other.  Accordingly, the Court held that it was unnecessary to resort to the pro rata rule regarding apportionment of liability.  The Court affirmed the judgment of the Superior Court.

In re Pricillion R. No. 08-176 (June 5, 2009)

The respondent, Daryl Renfro, appealed from a Family Court decree terminating his parental rights to his son Pricillion.  Mr. Renfro argued on appeal that the trial justice’s finding of unfitness was clearly erroneous, contending that he had achieved sustained sobriety by the time of trial.  The Court found no error in the trial justice’s determination that Mr. Renfro met the statutory definition of unfitness both because of his " chronic substance abuse problem" and because Pricillion had been " placed in the legal custody or care of the department for children, youth, and families for at least twelve months" and there was no substantial likelihood of his return within a reasonable time.  Having established parental unfitness, the Court also found no error in the trial justice’s finding that the Department of Children, Youth and Families made reasonable efforts at reunification and that termination was in Pricillion’s best interests.   Accordingly, the Court affirmed the decree of the Family Court.

William Napier, et al v. Epoch Corporation, et al, No. 08-148 (June 5, 2009)

The plaintiffs, William Napier and Christine Napier, appealed from an order awarding attorneys’ fees and costs to the defendant Quality Builders Warranty Corporation.  The award appealed from was based on the plaintiffs’ decision to utilize litigation instead of arbitration for a limited warranty dispute.  On appeal, the plaintiffs argued that the award of attorneys’ fees was inappropriate because they did not bargain for or voluntarily agree to arbitration.

The Supreme Court concluded that the award of attorneys’ fees and costs was premature because the Superior Court previously had ordered a stay of litigation pending arbitration.  The Court explained that the hearing justice abused her discretion in failing to adhere to the stay when she ruled on the matter of the defendant’s entitlement to reimbursement under the limited-warranty agreement.  The Court declined to determine the enforceability of the arbitration clause because the plaintiffs did not appeal the order for stay.  Accordingly, the Court vacated the award without prejudice.

State v. Thomas Germane, No. 06-169 (June 2, 2009)

The appellant, Thomas Germane, appealed from an October 3, 2005 decision of the Superior Court upholding the determination of the Sex Offender Board of Review (board of review) that he should be classified as a Risk Level III offender for purposes of community notification pursuant to G.L. 1956 chapter 37.1 of title 11 (entitled " Sexual Offender Registration and Community Notification Act" ). 

On appeal, Mr. Germane contended that his classification pursuant to the Sex Offender Registration statute was improper because, in his view, the statute (both on its face and as applied) violated his right to procedural due process, which right is guaranteed by both the United States and Rhode Island Constitutions.  Mr. Germane further argued that, as applied to the facts of his case, the statute violated his right to substantive due process.  He also contended that the statute is inconsistent with the principle of separation of powers that is set forth in article 5 of the Rhode Island Constitution. Mr. Germane further argued that application of the statute to his case constitutes a violation of the state constitutional prohibition against ex post facto laws. 

In addition to appellant’s constitutional contentions, Mr. Germane also argued that the reviewing magistrate in the Superior Court clearly erred when he found that he had failed to show, by a preponderance of the evidence, that his classification as a Risk Level III offender by the board of review was not in compliance with the law.

The Supreme Court observed that § 11-37.1-15(a)(2) may be unconstitutional under some circumstances, insofar as it grants the Superior Court discretion to deny a sexual offender the right to a meaningful hearing as a part of the judicial review of the board of review’s risk level classification that an offender has opted to challenge.  Nevertheless, in view of what actually transpired in this case (viz., this offender was in fact granted notice and a meaningful hearing before the Superior Court), the Court held that Mr. Germane was not deprived of his right to procedural due process.  The Court then went on to hold that no other constitutional provision was violated.  The Court further held that the Superior Court did not commit clear error in upholding the board of review’s risk-level classification of Mr. Germane. 

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

State v. Joanne Albanese, No. 07-327 (May 29, 2009)

The defendant, Joanne Albanese, was charged with simple assault and/or battery in violation of G.L. 1956 § 11-5-3.  The charges stemmed from an altercation with Thomas Arrico, a maintenance worker employed by a property management company that maintained a number of apartment complexes, including the Driftwood Apartment Complex in Narragansett, where the defendant was a tenant.  The defendant appealed to the Supreme Court from a judgment of conviction after a Superior Court trial justice, sitting without a jury, found her guilty of battery.

The defendant raised three issues on appeal.  She argued: (1) that the trial justice erred when he denied her motion to dismiss; (2) that the Supreme Court should abandon its common-law definition of criminal battery and adopt that of the Model Penal Code, which requires proof of harm; and (3) that the trial justice erred: (a) when he restricted the defendant’s cross-examination of Arrico on issues that would have demonstrated his bias and motive to lie, and (b) when he  refused to allow testimony about a temporary restraining order and judgment entered in the District Court against the property management company. 

The Supreme Court affirmed the judgment of conviction.  First, the Court held that the trial justice did not err when he denied the defendant’s motion to dismiss, both at the close of the state’s case and when it was renewed at the close of all the evidence, because there was sufficient evidence presented to establish the defendant’s guilt beyond a reasonable doubt.

Second, the Court held that the defendant’s argument—that criminal battery should require an element of harm as opposed to a mere uncontested touching or offensive contact—was not made to the trial justice until the hearing on the defendant’s motion for a new trial.  Because this argument was not made during trial, the Court held that it could not belatedly be asserted during the motion for a new trial.  Therefore, because the issue was not properly preserved, the Court declined to address it at this time.

Third, the Court held that the trial justice did not err when he limited defense counsel’s cross-examination of Arrico about mold issues at Driftwood.   Defense counsel attempted to introduce into evidence photographs that indicated remediation for mold contamination to impeach Arrico’s general credibility in light of his earlier testimony during cross-examination about mold at the complex.  The Court held that whether Arrico was aware of mold in the apartment complex was a collateral matter that was not aimed at eliciting a specific bias, interest, or motive.  Instead, this was an attempt to impeach his general credibility by demonstrating that he was being untruthful about his lack of knowledge about mold in the complex.  Therefore, because the excluded questioning involved a collateral matter concerning the witness’s general credibility, the Court held that it was within the trial justice’s discretion to limit it, and that he did not err when he did so.  Finally, the Court held that the trial justice did not abuse his discretion when he precluded the defendant from introducing testimony about a prior temporary restraining order and judgment entered against the property management company.  The Court held that this evidence was cumulative and had minimal probative value. 

Chief Justice Williams (ret.) did not participate.

Hallsmith-Sysco Food Services, LLC v. James D. Marques, alias, in his capacity as the Town Clerk for the Town of North Kingstown, No. 08-203 (May 22, 2009)

The plaintiff, Hallsmith-Sysco Food Services, LLC, appealed from a judgment of the Superior Court denying its application for a writ of mandamus.  The plaintiff had requested that the Superior Court compel the defendant, Mr. Marques, in his capacity as town clerk for the Town of North Kingstown, to file its notice of objection to the possible future transfer of a liquor license issued to Intus, LLC d/b/a Wickford Gourmet Foods (Wickford Gourmet) and Ugur Yilmaz, alias.  The defendant had declined to file the objection, averring that G.L. 1956 § 3-5-19, a statute governing the transfer of liquor licenses, does not require the town to file such an objection unless a transfer application is pending.  After the plaintiff filed a notice of appeal, the North Kingstown Town Council voted to extinguish the liquor license at issue.

The Supreme Court concluded that the town’s elimination of the liquor license rendered this case moot, precluding review.  The Court explained that because the plaintiff could not object to the transfer of a liquor license that no longer existed, the plaintiff did not have a continuing stake in an actual controversy.  The Court held that the issue was non-justiciable because a decision on the merits would have no practical effect on the actual litigants.  Although the Court acknowledged a narrow exception to the mootness doctrine for cases of extreme public importance that are capable of repetition while evading review, the Court concluded that the issues presented by this appeal did not warrant review. 

Jon E. Cohen v. Charles Ducan, et al, No. 04-335 (May 22, 2009)

The Supreme Court issued a writ of certiorari on the petition of the Inn at Cliff Walk, Inc., d/b/a The Chanler to review a Superior Court judgment that reversed a decision of the Zoning Board of Review for the City of Newport (board).  The Superior Court found that a series of improvements made to the Chanler hotel that reconstructed decks, added stairs and courtyards, and relocated parking, violated a zoning ordinance that prohibited certain alterations to nonconforming uses.  Specifically, the trial justice concluded that the ordinance did not expressly permit alterations to nonconforming uses and that, therefore, Cliff Walk’s proposed renovations were illegal without a variance.  She further held that the improvements amounted to substantial alterations beyond that which was allowed by the ordinance.  Therefore, the Superior Court ruled that the board erred when it upheld the city official’s approval of the hotel’s proposed renovations because they violated the provisions of the zoning ordinance regulating alterations to nonconforming uses.   

Cliff Walk operated a hotel that existed since 1945, when it was granted approval by the zoning board in accordance with the zoning ordinance then in effect.  The hotel was in a residential area that subsequently was rezoned so that the city no longer permitted hotels.  The trial justice held that the hotel had attained the status of a nonconforming use and therefore was subject to certain restrictions against alterations to its use.  A review of the record revealed that the challenged improvements consisted of the reconstruction of poorly designed decking that was in disrepair, the addition of private stairways to certain guest facilities, the installation of garden walls that created open-aired courtyards around the staircases, and the installation of a more formal parking lot, with fewer spaces, in an area that had been used by the facility for parking since 1945.   

The Supreme Court held that the trial justice failed to give meaning and effect to the words of the ordinance.  The Court ruled that the ordinance allowed some alterations to nonconforming uses, as long as the alterations would not change the use, extend the use, or move the use or the building in the manner proscribed by the ordinance. 

The Supreme Court further determined that the challenged improvements did not violate the prohibitions of the ordinance.  The Court reasoned that the renovations did not (1) move the building or extend the hotel use to another part of the land or to another part of the building not previously designed for such use at the time the use became nonconforming; or (2) change the use of the land or structure from that of a hotel.  More specifically, the stairs, courtyards, garden walls, and reconstructed decks were not significant physical changes to the structure, they did not increase the area of the premises devoted to the nonconforming use, and they did not make the hotel substantially different from its prior use. 

The Court further noted that the relocation and improvements to the parking area did not amount to an extension, movement, or change of use because the area had been used for parking vehicles since 1945 and the improvements to the layout did not change the nature or purpose of the use, but rather, merely made the use available to the owners in accordance with Newport’s current parking standards.

The Court also held that Cliff Walk’s proposed renovations did not implicate G.L. 1956 § 45-24-40(c) of the Zoning Enabling Act, which provided that " [a] use established by variance or special use permit shall not acquire the rights of this section."   More specifically, the Court held that the plain language of the statute provided that the rights enabled by the statute, were the rights to alter a nonconforming use by way of an " addition and enlargement, expansion, intensification, or change in use" by permit or by right.  The Court held that record did not provide foundation for the conclusion that the city impermissibly authorized Cliff Walk to alter its use from that of a hotel or make an " addition and enlargement, expansion, intensification, or change in use."  

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

Michael Botelho v. Caster's Inc. d/b/a Caster's Bicycles and Fitness, No. 07-270 (May 15, 2009)

This case deals with an appeal from a civil trial for negligence in which the jury ruled in favor of the defendant.  The plaintiff appealed from the Superior Court’s denial of (1) his motion for judgment as a matter of law on the issue of his alleged comparative negligence in causing the accident at issue and (2) his motion for a new trial.  Appellant further contended that the trial justice committed prejudicial error by giving multiple improper instructions to the jury; the plaintiff argued that the jury instructions were biased in structure and in presentation in favor of the defendant because, in his view, they suggested that the plaintiff had the burden of proving his own non-negligent operation of a bicycle at the time of the accident. 

The Court concluded that the trial justice properly denied the plaintiff’s motion for judgment as a matter of law.  Considering the evidence adduced at trial in the light most favorable to the nonmoving party (the defendant), without considering its weight or credibility, the Court was satisfied that reasonable minds could differ on the issue of the plaintiff’s comparative negligence in causing the accident.  The Court also affirmed the trial justice’s denial of the plaintiff’s motion for a new trial on the grounds that reasonable minds might differ as to the cause of the accident and relative responsibility of the parties.  Finally, the Court ruled that the plaintiff had waived his argument concerning the jury instructions because he failed to raise that argument with sufficient particularity before the trial court. 

Carlo P. Berardis v. Bounthinh Louangxay, et al, No. 08-184 (May 12, 2009)

The plaintiff, Carlo P. Berardis, appealed to the Supreme Court from the Superior Court’s grant of motions for summary judgment in favor of the defendants, Bounthinh Louangxay and Oudone Louangxay (the Louangxays) and Louangxay, Inc., d/b/a Warwick Banquet Hall a/k/a Lei’s Bar & Grill (Lei’s Bar & Grill).  The plaintiff slipped and fell on ice covering the exterior entranceway to Lei’s Bar & Grill during a winter snowstorm.  The plaintiff filed suit against the business owner, Lei’s Bar & Grill, and the property owners, the Louangxays, alleging that the defendants owed the plaintiff the duty of maintaining the premises in a reasonably safe condition, that the defendants had negligently caused a dangerous and excessive amount of ice to accumulate on the entranceway to the premises, and that the defendants knew or should have known of the dangerous condition and failed to remove it or warn the plaintiff.  The plaintiff further alleged that as a direct and proximate result of the defendants’ negligence, he suffered injuries to his left elbow, knee, and ankle.

The defendants filed motions for summary judgment in the Superior Court, arguing that they owed no duty to the plaintiff during a continuing snowstorm, to clear the entranceway of ice and snow.  After a hearing, a justice of the Superior Court granted the defendants’ motions.  The plaintiff appealed to the Supreme Court, and argued that the motion justice improperly granted summary judgment because he had shown that the accident occurred at the entranceway and the defendants had increased his risk of harm by periodically inspecting, but not shoveling, the entranceway. 

The Supreme Court affirmed the judgment of the Superior Court.  The Court applied the " Connecticut Rule" as set forth in prior cases; it provides that absent unusual circumstances, a landlord or business owner has a reasonable time after a winter storm has ceased to clear a natural accumulation of ice and snow from its premises.  The Court held that the fact that the incident occurred at the entranceway to the premises did not justify departure from this rule.  The Court also concluded that the plaintiff failed to demonstrate that any unusual circumstances existed in the case that would have required the defendants to clear the entranceway of ice and snow before the end of the storm.  The Court reasoned that the plaintiff failed to point to any conduct by the defendants that exacerbated or increased the risk naturally occurring during a winter snowstorm, which the plaintiff voluntarily undertook when he patronized the restaurant and bar.

State v. Roy Diefenderfer, No. 06-189 (May 8, 2009)

The defendant, Roy Diefenderfer, appealed from a jury conviction on two counts of first-degree robbery, three counts of conspiracy to commit robbery, two counts of kidnapping, and one count of assault on a person over sixty years of age.  On appeal, he argued that the trial justice committed reversible error with respect to (1) his denial of the defendant’s request for a copy of a particular witness’s immunity order or a transcript of the underlying immunity proceedings; (2) his placing limitations on defense counsel’s cross-examination of an alleged co-conspirator; (3) his permitting a witness to testify that he had pled guilty to having committed various crimes with the defendant; (4) his admitting evidence of certain events that occurred after the robberies at issue had taken place; (5) his admitting into evidence the cooperation agreement of another witness; and (6) his denial of the defendant’s motion for judgment of acquittal on the kidnapping counts.  After considering each alleged error, the Supreme Court affirmed the defendant’s judgment of conviction in its entirety.

The Court held that the trial justice did not commit reversible error in denying defense counsel’s request for a copy of a particular witness immunity order or a copy of the transcript of the underlying immunity proceedings.  The prosecutor and the witness’s attorney summarized the immunity proceedings on the record at the defendant’s trial.  The prosecutor stated in open court that nothing was promised the witness in exchange for his testimony at the defendant’s trial, and the witness also confirmed this during his testimony.  Accordingly, the Supreme Court held that the trial justice did not clearly err in determining that there had not been a violation of Rule 16 of the Superior Court Rules of Criminal Procedure.  The Court further held that it was clear from the record that the prosecutor’s summary of the immunity hearing was sufficient to provide defense counsel with the information that he would need to be able to conduct a meaningful cross-examination of the witness.

The Court also held that the trial justice did not impermissibly restrict defense counsel’s cross-examination of an alleged co-conspirator.  Although the trial justice did restrict defense counsel’s cross-examination of that alleged co-conspirator to some extent, the trial justice did permit sufficient cross-examination of the witness as to his alleged criminal activity in other states. 

The defendant argued that the trial justice committed reversible error by permitting a witness to testify that he had pled guilty to having committed certain crimes with the defendant.  The defendant further argued that the trial justice committed reversible error by admitting evidence about the post-robbery flight of two alleged co-conspirators.  The Court held that the defendant had not properly preserved these issues for appellate review.

Next, the defendant argued that the trial justice erred by admitting into evidence the cooperation agreement of a witness for the prosecution because, in the defendant’s view, (1) the agreement constituted inadmissible hearsay and (2) admitting the agreement constituted improper vouching for the witness’s credibility.  The Court held (1) that the immunity agreement did not fall within the definition of hearsay and (2) that the statements contained in the immunity agreement did not rise to the level of improper vouching. 

Finally the defendant argued that the trial justice erred when he denied his motion for judgment of acquittal on the kidnapping charges.  Specifically, the defendant argued that the confinement and rather minimal asportation of the victims were merely incidental to the robbery and did not have the independent significance necessary to warrant a separate kidnapping charge.  The Court held that the testimony of the various witnesses at the defendant’s trial was more than sufficient for the jury to find that the actions at issue in actuality did have sufficient independent significance so that the conviction of the defendant for kidnapping as a separate crime should be upheld. 

State v. Ernest Jones, No. 07-82 (May 7, 2009)

The defendant, Ernest Jones, appealed to the Supreme Court from a Superior Court adjudication of probation violation pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure.  The hearing justice found that the defendant violated the terms and conditions of his probation; therefore, he removed the defendant’s suspended sentence for vandalism and ordered that he serve one year at the Adult Correctional Institutions.  On appeal, the defendant contended:  (1) that the hearing justice acted arbitrarily and capriciously in finding that he violated the terms and conditions of his probation, and (2) that the hearing justice did not afford him his right of allocution.

The Supreme Court first determined that the hearing justice acted neither arbitrarily nor capriciously when he made credibility determinations with respect to the state’s witnesses.  The Court next held that there is not a constitutional right of allocution during a probation-revocation hearing.  Therefore, because allocution is not required during a probation-revocation hearing, the hearing justice did not err when, after finding the defendant a violator, he sentenced the defendant before providing him an opportunity to address the court about the sentence to be imposed.

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

Martin Malinou, Individually and as Executor of the Estate of Etta E. Malinou v. Seattle Savings Bank, No. 08-137 (May 7, 2009)

The plaintiff, Martin Malinou (plaintiff), instituted this action in the Superior Court to enjoin the defendant, Seattle Savings Bank (defendant), from foreclosing on a mortgage secured by property that he owns.  The plaintiff alleged that a mortgage assignment that permitted the defendant to demand immediate payment of all outstanding principal and accrued interest was void.  On April 5, 2006, the trial justice dismissed the plaintiff’s complaint in its entirety and judgment was entered on all counts in favor of the defendant.  Rather than file a timely appeal, on March 29, 2007, the plaintiff moved to depose the author of a letter from Fannie Mae under Rule 27(b) of the Superior Court Rules of Civil Procedure and also filed a motion under Rule 60(b)(2) of the Superior Court Rules of Civil Procedure seeking to set aside the judgment and for a new trial.  The plaintiff contended that the author of the letter purportedly could provide evidence that the mortgage in question was not assigned to the defendant.  The trial justice denied both motions and directed that the judgment of April 5, 2006 be entered as the final judgment.  The plaintiff appealed.

On appeal, the plaintiff argued that the trial justice abused her discretion by refusing to vacate the judgment.  At the outset, the Supreme Court held that because the judgment of April 5, 2006 was a valid judgment of the Superior Court and because the plaintiff did not file a notice of appeal within twenty days, the appeal was untimely and not properly before the Court.  Second, the Court held that the plaintiff’s motion to vacate the judgment was properly denied because the plaintiff had failed to demonstrate that the evidence at issue was either material to the case or not discoverable at the time of trial. 

Finally, the Court held that the trial justice did not abuse her discretion when she denied the plaintiff’s posttrial Rule 27(b) motion to depose a representative of Fannie Mae because, as clearly implied in the trial justice’s ruling, the witness’s proposed testimony was speculative and not in accordance with Rule 27(b).  Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

State v. Gerardo Cardona, No. 07-31 (May 6, 2009)

The defendant, Gerardo Cardona (defendant), was convicted by a jury in the Superior Court of two counts of domestic assault in violation of G.L. 1956 § 11-5-3 (simple assault or battery) and § 12-29-5 (disposition of domestic violence cases), against his wife, Catherine Cardona (Catherine), and Catherine’s son, Bernard Baton (Bernard). 

This case arose from an incident of domestic abuse that took place at the home where the defendant resided with Catherine and Bernard.  The South Kingstown Police Department received a report of a domestic disturbance and dispatched several officers to the home.  When the police arrived, Catherine reported that she saw her husband strike her son and that when she went into the house to call the police, her husband followed her while swearing at her and slapping her arm to prevent her from calling the police.  Bernard was unable to answer any questions verbally, but when asked whether the defendant had struck him, Bernard nodded, lifted his shirt to show his lower torso, and pointed to his reddened left cheek.  Catherine subsequently obtained a no-contact order to prevent the defendant from contacting her and her son.  At trial, however, Catherine provided a different account of the events at issue.  She testified that she saw the arms of both her husband and her son flailing, but admitted that it looked as if the defendant was hitting her son.  She also stated that the defendant was " tapping" her arm when he followed her into the house, but denied telling the police that he was " slapping" her arm. 

On appeal, the defendant made three arguments.  First, he contended that the trial justice erred by denying his motion for judgment of acquittal and his motion for a new trial because the verdict rested on Catherine’s prior inconsistent statement, which was insufficient evidence as a matter of law.  The Supreme Court held that in addition to Catherine’s prior statement, the state presented other evidence that was sufficient to support the conviction, and therefore it was proper for the trial justice to deny the defendant’s motions.  Second, the defendant argued that the trial justice erroneously omitted a jury instruction that surmise, suspicion, or a hunch is insufficient to support a finding of guilt beyond a reasonable doubt.  The Supreme Court held that the jury instructions adequately explained the law on reasonable doubt and it was not error to refuse to give the additional instruction that was requested after the jury had been charged.  Third, the defendant argued that the trial justice erred by instructing the jury on assault and battery because the criminal information only charged him with assault.  The Supreme Court held that because both assault and battery are chargeable under the provision of the General Laws cited in the criminal information, it was proper to instruct the jury on both.  Ultimately, the defendant was convicted of the two counts charged in the criminal information and sentenced accordingly; the defendant was neither convicted of nor sentenced for a criminal battery.  The Supreme Court affirmed the judgment of the Superior Court. 

Estate of Kathleen M. Mitchell v. Daniel W. Gorman, No. 08-73 (May 1, 2009)

The defendant, Daniel W. Gorman, appealed from a Family Court order that dismissed his appeal to this Court from a decision pending entry of final judgment.  The trial justice dismissed the defendant’s appeal on the ground that he had failed to take the steps necessary to ensure the timely transmission of the record to the Supreme Court.  The defendant contended that the trial justice erred in dismissing his appeal when there was one day remaining within the sixty-day period that the pertinent Supreme Court Rule of Appellate Procedure indicates is the period within which the record is to be perfected.

The Supreme Court found that, under the specific circumstances of the case, the trial justice did not abuse her discretion in dismissing the defendant’s appeal.  

Zaida Santana et al v. Rainbow Cleaners, Inc., et al, No. 07-268 (April 30, 2009)

The plaintiff, Zaida Santana, individually, and as parent and next friend of her two minor children, appealed to the Supreme Court from the Superior Court’s grant of a motion for summary judgment in favor of the defendant, The Providence Center, Inc.  Ms. Santana had filed suit in the Providence County Superior Court against the defendant, alleging that because of its negligence, she was severely beaten by David L. Kelly, a man who had been treated for a number of years as an outpatient at the behavioral-health facility owned and operated by the defendant.  Ms. Santana also brought a claim of loss of consortium against the defendant on behalf of her two children.  She alleged that the defendant had a duty to supervise and restrain Mr. Kelly, essentially to exercise control over his conduct to prevent the attack.  The plaintiff said that the defendant should have initiated certification proceedings under Rhode Island’s Mental Health Law, G.L. 1956 chapter 5 of title 40.1.  A Superior Court justice found that there were no factors in this case that would trigger the imposition of a duty upon the defendant, and therefore, she granted the defendant’s motion for summary judgment. 

The plaintiff appealed to the Supreme Court.  On appeal, she asserted that the defendant owed her a duty because: (1) a special relationship existed between the defendant and Mr. Kelly, (2) the scope of the burden imposed on the defendant as a result of this duty is reasonable and consistent with valid public policy concerns, and (3) the attack on her was foreseeable. 

In this case of first impression, the Supreme Court addressed whether to impose a duty on a community mental health center to exercise control over the conduct of an outpatient by initiating certification proceedings.  After reviewing cases from other jurisdictions that have addressed similar issues, the Court applied an ad hoc approach to the determination of whether to impose a duty.  It held that the factors in this case did not warrant the imposition of a duty on The Providence Center.  The Court said that to impose a duty to exercise control over a third party, there must be a special relationship between the defendant and the third party that vests the defendant with the opportunity and ability to exercise such control.  The Court said that the plaintiff failed to come forward with any evidence that demonstrated that Mr. Kelly could have been committed under the appropriate statutory provisions.  As a result, the Court said that the defendant did not have the ability to exercise control over Mr. Kelly’s conduct.  Therefore, a special relationship that would trigger a duty to control was not present in this case.  The Court also considered whether the attack on Ms. Santana was foreseeable, the extent of the burden to the defendant and the consequences for imposing a duty with resulting liability for breach, and public policy concerns.   After reviewing these factors, the Court held that the defendant did not owe the plaintiff a legal duty.  Consequently, the plaintiff could not prevail in her negligence action against The Providence Center, and summary judgment was appropriately granted.  Finally, the Court held that the plaintiff’s claim of loss of consortium on behalf of her two minor children also failed because such a claim depends on the success of the underlying tort claim. 

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

State v. Robert Dominick, No. 07-289 (April 23, 2009)

The defendant, Robert Dominick (defendant), appealed to the Supreme Court after a jury found him guilty of assault and battery upon a person over the age of sixty, in violation of G.L. 1956 § 11-5-10.  On appeal, the defendant asserted that the trial justice committed four errors: (1) prohibiting the use of a model during trial as demonstrative evidence; (2) precluding testimony of both the defendant’s wife and daughter; (3) precluding a videotape of the complaining witness during a previous incident; and (4) denying his motion for a new trial.

The Supreme Court affirmed the judgment of the Superior Court.  With respect to the preclusion of the model, the Court concluded that the trial justice did not err because he had examined the evidence and stated his reasons for prohibiting the model marker, which the Court accepted as reasonable.  As to the preclusion of witness testimony, the Court concluded that because Rule 608(b) of the Rhode Island Rules of Evidence forbids attacking a witness’s credibility by proving specific instances of that witness’s conduct through extrinsic evidence—precisely why the defendant sought to introduce the testimony at issue—the trial justice did not err in precluding the same.  Thirdly, because the proffer of the videotape had not been transcribed, the Court could not review this particular assertion of error, there being nothing in the lower court record to review.  Finally, the Supreme Court affirmed the trial justice’s decision to deny the defendant’s motion for a new trial, reasoning that he properly had assessed the credibility of the witnesses and articulated his reasons for denying the defendant’s motion for a new trial.

United Services and Allied Workers of Rhode Island v. Rhode Island State Labor Relations Board, et al, No. 06-252 (April 23, 2009)

In April 2005, United Service and Allied Workers of Rhode Island (United Service) filed with the Rhode Island State Labor Relations Board (board) a petition to conduct an election to determine whether a majority of Rhode Island Turnpike and Bridge Authority (RITBA) employees desired representation by a new union.  RITBA and the incumbent union, however, filed an objection to the petition, which the board granted based upon its interpretation of the contract-bar doctrine, codified in G.L. 1956 § 28-7-9(b)(2).  United Service appealed, and the Superior Court reversed, basing its decision upon a different interpretation of the contract-bar doctrine.  The board petitioned the Supreme Court for a writ of certiorari, which was granted.

Three years after its original petition, and while this case was pending, United Service filed with the board a second petition to conduct an election for representation of RITBA employees.  The board granted the petition, RITBA employees elected United Service, and the board officially certified its representation.  As such, the Supreme Court determined that the underlying controversy, whether United Service was entitled to an election in 2005, was moot, and it declined to opine on the merits.

Derick Hazard v. State of Rhode Island, No. 06-325 (April 20, 2009)

On July 17, 1998, a jury found the applicant, Derick Hazard (Hazard or applicant), guilty of first-degree murder, conspiracy to commit murder, and assault with intent to murder.  The applicant subsequently appealed to this Court, and we affirmed the judgment of conviction.  State v. Hazard, 797 A.2d 448 (R.I. 2002). 

On June 6, 2006, Hazard filed an application for post-conviction relief based on the alleged ineffective assistance of his trial counsel, Vincent Oddo (Oddo), and claimed that Oddo failed to investigate whether the New Jersey state police possessed records that would have supported his alibi defense that he was not in Rhode Island at the time of the murder.  Specifically, the applicant alleged that shortly after he had retained Oddo as his trial counsel, he informed Oddo that on the morning of the murder he was driving to Ohio with his family, and at some point, he was stopped on the highway by a New Jersey state trooper.  Notably, not a single member of the applicant’s family had testified during the bail hearing or trial about the traffic stop, and furthermore, although the applicant had maintained since the end of his trial that he was driving, the actual warning that was issued by the New Jersey state trooper identified the applicant’s brother, Kyle Hazard, as the driver.   After three days of testimony, the hearing justice issued a written decision in which he denied Hazard’s application for post-conviction relief. 

On appeal, the Supreme Court held that the applicant had failed to satisfy his burden of proving that Oddo’s representation fell below the objective standard of reasonableness.  The Court noted that the ever-shifting nature of the applicant’s story served to confirm the hearing justice’s conclusion that the information about the traffic stop was withheld and subsequently disclosed only when the applicant thought he could safely do so.  In view of the totality of the circumstances, the Court agreed with the hearing justice’s conclusion that Oddo was not provided with enough details to investigate the stop before trial or to allow him to make a good faith request for a continuance pending the outcome thereof.  The Court also was satisfied that the hearing justice properly rejected the testimony of Hazard and his family, which was riddled with inconsistencies, and instead appropriately gave credence to Oddo’s recollection of what transpired. 

Furthermore, the Court noted that it would not fault Oddo for his client’s deliberate attempt to withhold potential exculpatory information, and that Strickland does not require counsel to figure out why the client is not forthcoming.  In short, the Court held that Oddo’s failure to develop the lead that the applicant may or may not have provided about the traffic stop did not rise to the level of constitutionally deficient assistance of counsel.  Accordingly, the Court affirmed the denial of Hazard’s application for post-conviction relief.   

Dennis P. Holley et al v. Argonaut Holdings, Inc., et al, No. 07-314 (April 20, 2009)

The plaintiffs, Dennis P. Holley and his wife, Brenda J. Holley, appealed to the Supreme Court from the Superior Court’s grant of a motion for summary judgment in favor of the defendant, Argonaut Holdings, Inc.  Mr. Holley was employed as an automobile salesman when he allegedly slipped and twisted his back at work.  The plaintiffs filed suit against the defendant commercial landlord alleging that its negligence was the proximate cause of the injuries sustained by Mr. Holley and the subsequent loss of consortium suffered by Mrs. Holley, pursuant to G.L. 1956 § 9-1-41.  The defendant filed a motion for summary judgment in the Superior Court.  It argued that, as a commercial landlord, it did not owe a duty of care to the plaintiffs, that the lease insulated it from any liability for the plaintiffs’ injuries, and that even if a duty were to be found, the plaintiffs had failed to advance any evidence to support their allegations of negligence.  A Superior Court justice granted the defendant’s motion for summary judgment on June 18, 2007.

The plaintiffs appealed to the Supreme Court and argued that the motion justice improperly granted summary judgment because the defendant owed the plaintiffs a duty of care, and a question of fact existed about whether the defendant negligently breached that duty.  The plaintiffs also submitted that the motion justice erred when he denied their request for a continuance to obtain additional discovery.

The Supreme Court affirmed the judgment of the Superior Court.  It held that a commercial landlord owes a duty of care to an invitee of its tenant only under the narrowest of circumstances.  Therefore, such a landowner is not liable for injuries that the tenant’s invitee suffers on the leased premises, " unless the injury results from the landlord’s breach of a covenant to repair in the lease, or from a latent defect known to the landlord but not known to the tenant or guest, or because the landlord subsequently has assumed the duty to repair."  Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 640 (R.I. 2005).  The Court concluded that the plaintiffs failed to demonstrate that any of the three exceptions to the well-settled general rule applied.  The Supreme Court also held that the Superior Court justice did not err when he denied the plaintiffs’ request for a continuance to obtain additional discovery before he granted the defendant’s motion for summary judgment.  Noting that the plaintiffs did not file any affidavits in opposition to the defendant’s motion for summary judgment and that two and a half years had elapsed between the date the complaint was filed and the filing of the summary judgment motion, the Court held that the motion justice was within the bounds of his considerable discretion when he denied the plaintiffs’ request for a continuance.

Finally, the Court held that Mrs. Holley’s claim for loss of consortium failed because it wholly depended upon the success of the underlying tort claim that her husband brought.

In re Jose Luis R.H, No. 08-25 (April 16, 2009)

Jose Luis Rivera (Rivera) appealed from a Family Court decree terminating his parental rights to his son, Jose Luis R.H., under G.L. 1956 § 15-7-7(a)(2)(i) and (a)(3).  When Jose Luis was born, the attending physician noted the presence of cocaine in his blood.  As a result, on April 19, 2005, Jose Luis was placed in the temporary custody of the Department of Children, Youth and Families (DCYF).  At the time of his child’s birth, Rivera was incarcerated at the Adult Correctional Institutions (ACI), serving a term of five years, and scheduled for release in February 2010. 

The Family Court ordered a paternity test to determine whether Rivera was the father.  In September 2005, soon after the results affirmed that he was Jose Luis’s father, DCYF began to provide visitation to Rivera at the ACI.  The schedule provided one-hour visits on a biweekly basis.  As a result of several disciplinary infractions, Rivera lost his visitation privileges, including the right to visit with his infant son, for a number of days.  In December 2005, the department developed a case plan for reunification that included as objectives that Rivera should complete certain programs offered at the ACI for parenting, child development, and substance-free living, and the social worker discussed these objectives with Rivera several times.

On May 4, 2006, the department filed a petition to terminate Rivera’s parental rights.  After a hearing on the petition, the trial justice found by clear and convincing evidence that the department had made reasonable efforts to encourage and strengthen the parental relationship and reunify the family.  The trial justice found that Jose Luis had been in the legal custody of the department for the statutory twelve-month term, and because Rivera’s sentence extended until 2010, there was no substantial probability that Jose Luis could return safely to his care within a reasonable period.  The trial justice also found that Rivera was unfit as a parent because of the duration of his incarceration.  Finally, after finding Rivera to be unfit, the trial justice concluded that it was in the child’s best interest to terminate his parental rights.

Rivera appealed the Family Court decree, arguing that the trial justice erred when she found that the department complied with its statutory requirement to expend reasonable efforts to reunify him with his son.  He also argued that the trial justice erred when she made the factual finding and improperly considered that Rivera only began to get involved in the certificate programs around the time that the TPR petition was filed.  In his last argument, Rivera asserted that the trial justice erred by terminating his parental rights solely because of his imprisonment.

After a review of the record, the Supreme Court affirmed the Family Court’s decree terminating Rivera’s parental rights.  The record reflected that the department provided visitation soon after Rivera’s paternity was established, it developed and implemented a case plan for reunification, and it informed Rivera of his son’s development, and suggested programs at the ACI for Rivera to learn about parenting and substance abuse.  The Supreme Court held that in light of the circumstances of the particular case, specifically, the department’s difficulty in providing services while the father was incarcerated, as well as the father’s own actions leading to his loss of visitation rights on several occasions, these efforts met the statutory requirement that reasonable efforts be made. 

The Supreme Court also concluded that the trial justice properly considered Rivera’s participation in programs at the ACI and that she did not err when she found that Rivera began participating in the programs around the time the department filed the TPR petition.  The Court also held that the trial justice made a proper finding that Rivera was unfit because of his incarceration because the Family Court also considered other factors, such as the duration of his incarceration and the child’s age, development, and uncertain home environment pending the father’s release. 

William Felkner v. Chariho Regional School Committee, No. 09-23 (April 7, 2009)

The petitioner, William Felkner (Felkner or petitioner), brought a petition in equity in the nature of quo warranto, asking the Supreme Court to declare that he retained rightful title to the office of member of the Chariho Regional School Committee despite having taken the oath of office as councilman for the Town of Hopkinton.  In ruling on the legality of holding these two positions simultaneously, the Supreme Court examined the charter for the Town of Hopkinton, and utilized the common-law doctrine of incompatibility.

          Turning first to the town charter, the Court examined the plain language set forth therein, which specifically prohibits dual officeholding with respect to positions in town government.  The Court determined that the offices of school committee member and town councilman were positions in town government.  After applying a canon of statutory construction, the Court concluded that the charter clearly prohibited Felkner from assuming title to both offices, and therefore, Felkner’s position on the Chariho Regional School Committee terminated by operation of law when he took the oath of office as a member of the Hopkinton Town Council. 

          The Court went on to address the doctrine of incompatibility, which divests an individual of his or her public office if the offices are incompatible.  After analyzing the particular offices at issue in this case, the Court ruled that the offices of school committee member and town councilman indeed were incompatible because: (1) the Town of Hopkinton and the Chariho Regional School Committee enter into lease agreements with each other; (2) the two entities contract with one another for water usage and distribution; (3) the Hopkinton Town Council fills vacancies on the Chariho Regional School Committee; and (4) the Town of Hopkinton is the appropriating and taxing authority for the town’s share of the Chariho Regional School District budget.

          Because the simultaneous holding of these offices violated both the Hopkinton Town Charter and the common-law doctrine of incompatibility, the Supreme Court concluded that, by accepting the office of member of the Hopkinton Town Council, Felkner ipso facto resigned his office as member of the Chariho Regional School Committee.

State v. Hasan Abdullah, No. 07-3 (April 6, 2009)

On the night of September 24, 2004, two armed men—one armed with a firearm and the other with a knife—invaded a multiunit dwelling.  The assailants raided the first-floor apartment, in which Juana Rivera (Rivera) resided, and the second-floor apartment, which was owned and occupied by Gertrudis Quiles (Quiles).  One of the assailants was the defendant, Hasan Abdullah (defendant), who was convicted of committing eleven criminal offenses, including conspiracy to commit burglary and burglary of the first-floor dwelling.

Because the defendant failed to timely appeal, the Supreme Court granted his petition for writ of certiorari.  Before the Court, the defendant argued: (1) the trial justice erred in denying the motion for judgment of acquittal on count 2, conspiracy to commit burglary of Rivera’s dwelling; (2) the denial of his motion for judgment of acquittal on count 1, burglary of Rivera’s dwelling, was erroneous; (3) the trial justice erred in permitting Det. Patricia Cornell (Det. Cornell) to opine that the gun used in the commission of the crimes was operable; and (4) the trial justice erred in denying the defendant’s motion for a new trial.    

The Court rejected all of the defendant’s arguments.  First, the Court held that a reasonable juror could have found beyond a reasonable doubt that the defendant and his cohort entered into an unlawful agreement to commit a burglary of Rivera’s dwelling.  Second, in a case of first impression, the Court held that the " breaking" element to the crime of burglary may be satisfied by evidence that the defendant unlawfully gained entrance by way of fraud, trick, or threat of force.  Therefore, the trial justice did not err when he denied the defendant’s motion for judgment of acquittal on the basis that the prosecution presented sufficient proof of a constructive break-in.  Third, the Court was of the opinion that the trial justice did not err in permitting Det. Cornell to testify as an expert on the operability of the firearm, even though she did not actually test fire the weapon (which was recovered from the crime scene).  The Court noted that the deficiencies in her testimony, if any, went to the weight of her opinion and not its admissibility.  Nevertheless, even without Det. Cornell’s opinion, the Court noted that the state produced ample circumstantial evidence, by way of lay testimony from the victims, that supported a finding that the firearm was operable.  Finally, in upholding the trial justice’s ruling that denied the defendant’s motion for a new trial, the Court was satisfied that the trial justice did not overlook or misconceive material evidence and otherwise was not clearly wrong.  Accordingly, the Court affirmed the judgment of conviction of the Superior Court. 

State v. Dora M. Paiva, No. 07-33 (April 3, 2009)

The defendant, Dora M. Paiva (defendant), was convicted of one count of possession of cocaine after she waived her right to a jury trial and stipulated to the evidence on record at the hearing on her suppression motion.  She appealed the hearing justice’s decision to deny her suppression motion, arguing that the arresting officer’s initial investigatory stop was devoid of reasonable suspicion.

The Supreme Court remanded the case, holding that the record evinced a strong indication both that the proceedings below were insufficiently adversarial to preserve for appeal the trial justice’s denial of the defendant’s pretrial motion to suppress, and that the defendant’s decision to waive her right to a jury and stipulate to the record evidence was an attempt to circumvent the rule against conditional pleas subject to an appeal of pretrial motions.  Accordingly, the Court ordered the Superior Court, upon remand, to determine whether there was indeed an agreed-upon disposition in exchange for a waiver of a jury trial.  If so, the defendant could elect to reopen the evidence for a sufficiently adversarial trial; if not, the record would be returned to the Supreme Court.    

State v. Robert Collazo, No. 07-108 (April 3, 2009)

The defendant, Robert Collazo (defendant), appealed his conviction for first-degree murder after a jury-waived trial, contending that the trial justice erred in finding that he was not legally insane when he stabbed and beat to death his friend.  The defendant argued that he was not criminally responsible for the murder because, as he maintained, his capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of law had been substantially impaired due to a mental illness. 

The evidence at trial indicated that the defendant killed his victim in a Central Falls park after luring him there under the pretense of smoking marijuana.  The defendant, who remained at the crime scene, apparently then staged the area to make it look as if his friend had been the victim of a botched robbery.  In a subsequent interview with police detectives, the defendant provided an alibi and denied his involvement in the murder for over an hour.  However, after being confronted by detectives with the overwhelming evidence against him, the defendant confessed to the murder, explaining that he had killed the victim because the victim was " evil" and " Satan’s incarnate."

The state and the defendant each produced one psychiatrist as expert witnesses.  Both psychiatrists concurred that the defendant had a well-documented history of acute mental illness.  The experts disagreed, however, as to whether the mental illness had substantially impaired the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.  Believing the testimony of the state’s psychiatrist to be consistent with the other evidence in the case and more reliable and credible than that of the defense expert, the trial justice rejected the defendant’s insanity defense.

The Supreme Court affirmed the defendant’s conviction, citing the considerable deference that it gives to the fact-finder in determining whether a defendant is legally insane.  The Court held that the trial justice’s finding was supported by the testimony of the state’s expert witness and the defendant’s actions and statements immediately before, during, and after the crime.  Accordingly, the Court concluded that the trial justice did not overlook or misconceive evidence in finding that the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was not so substantially impaired that he could not justly be held responsible for the murder. 

Credit Union Central Falls v. Lawrence S. Groff, No. 06-255 (March 27, 2009)

Doris Riendeau appealed from the entry of summary judgment in favor of Credit Union Central Falls (CUCF) and against Lawrence S. Groff. The Supreme Court allowed Ms. Riendeau to intervene in this case to protect a separate judgment against Mr. Groff in Credit Union Central Falls v. Groff, 871 A.2d 364, 366, 368 (R.I. 2005). This case arose from the embezzlement of funds entrusted to former attorney Groff during the course of two mortgage refinancing closings. CUCF, the lender involved in these transactions, filed a civil action against Mr. Groff, alleging malpractice/negligence, breach of contract, breach of fiduciary duty and conversion. Mortgage Guarantee & Title Insurance Company (Mortgage Guarantee) paid off the outstanding mortgages to fulfill its contractual obligations to CUCF to preserve the priority of its mortgages, and pursued CUCF’s claims against Mr. Groff via subrogation in accordance with the terms of the title insurance policies. The court granted summary judgment on every claim but conversion, finding that Mr. Groff dually represented both the borrowers and CUCF and also that, at the least, CUCF was a third party to whom Mr. Groff owed a duty.

On appeal, Ms. Riendeau argued that summary judgment was inappropriate because a genuine issue of material fact existed about the scope of Mr. Groff’s representation.  Ms. Riendeau also argued that because a closing attorney is an agent of the title insurer and, therefore, vicariously liable for Mr. Groff’s misdeeds, Mortgage Guarantee was not entitled to recover as subrogee of the lender.

The Supreme Court concluded that determining the existence of an attorney-client relationship was a particularly fact-intensive inquiry, and that genuine issues of material fact existed concerning Mr. Groff’s representation of CUCF.  However, the Court held that CUCF, if not a client, was at the very least an intended third-party beneficiary of the contractual obligations between Mr. Groff and his client-borrowers. Additionally, the Court held that Mortgage Guarantee was a contractual subrogee and, therefore, entitled to recover whatever money CUCF could have recovered from Mr. Groff had it not been insured by Mortgage Guarantee. Accordingly, the Court affirmed the judgment of the Superior Court.

State of Rhode Island v. James Perkins, No. 07-161

The defendant, James Perkins (defendant), was tried before a jury on charges of having committed the crimes of robbery in the first degree and conspiracy to commit robbery; he was convicted of conspiracy to commit robbery.

During a jury trial in the Superior Court, Carlos Villamil (Villamil) testified that the defendant was in a van that struck Villamil’s vehicle from behind.  The defendant approached Villamil’s vehicle and struck Villamil in the head, rendering him unconscious.  Villamil was then driven several blocks away, where he was beaten by a group of people and robbed of his wallet and several documents.  The defendant was found guilty of conspiracy to commit robbery, and moved for a new trial, which the trial justice denied.  The Supreme Court subsequently granted the defendant’s petition for writ of certiorari.

Before the Supreme Court, the defendant argued that the trial justice should have granted him a new trial because the evidence was insufficient to support a conviction for conspiracy to commit robbery.  Specifically, the defendant argued that there was not enough evidence to prove that he entered into an agreement to commit a crime. 

The Supreme Court affirmed the judgment and concluded that the trial justice performed the analysis required for a new-trial motion and provided an adequate rationale for denying the defendant’s motion.  The trial justice reviewed the evidence and found that the circumstances surrounding the attack on Villamil, including the conduct of the defendant, provided a sufficient basis for the jury to reasonably conclude, beyond a reasonable doubt, that the defendant entered into an agreement with others to commit the crime of robbery.  Accordingly, the Supreme Court affirmed the judgment, and the case was remanded to the Superior Court. 

Louisa  Resendes, et al v. Nicole Brown, No. 07-316 (March 24, 2009)

This case arose in the Family Court upon a miscellaneous complaint by the plaintiffs, Louisa Resendes and Charles Smith (plaintiffs), for custody and guardianship of Cameron Brown (Cameron), the minor son of the defendant, Nicole Brown (Brown).  The plaintiffs alleged that they had maintained physical possession of Cameron since shortly after his birth and were his de facto parents.  When Brown sought physical possession of Cameron, the plaintiffs turned to the Family Court.  In lieu of a hearing, the parties entered into a stipulation, in which they agreed that the plaintiffs " shall be adjudged as de facto parents of Cameron" with, inter alia, reasonable rights of visitation.  Additionally, the parties agreed that Rhode Island shall remain the child’s home state.

Subsequently, Brown sought relief from the stipulation.  After the Family Court suspended their visitation, the plaintiffs filed a motion to reinstate visitation with the child.  A justice of the Family Court issued an order that vacated the stipulation because the unidentified biological father was not a party to the proceeding.  In vacating the stipulation and dismissing the case, the trial justice applied the due-process standards required in an action to terminate parental rights. 

The Supreme Court vacated the order.  The Court held that, in the context of this case, the due-process standards required in an action to terminate one’s parental rights do not apply.  Moreover, because the unidentified biological father was not a party to the proceeding, he was not entitled to notice and the case could proceed without him.

Additionally, the Court held that the parties were bound by the stipulation entered into by the parties, who had been represented by counsel; the Court noted that there was no showing that the stipulation was induced by fraud or mistake.  Furthermore, the Court criticized the Family Court (a court of record) for its practice of holding chamber conferences in lieu of hearings, placed on the record, that establish the facts.  The Court remanded the case to the Family Court with directions to reinstate the stipulation and to conduct a hearing to determine whether visitation with the plaintiffs would be in the best interests of the child. 

Douglas J. Pelletier v. State, No. 06-214 (March 20, 2009)

After the applicant, Douglas J. Pelletier (applicant), pled nolo contendere to eight felony counts, he filed a pro se application for postconviction relief thirteen years later, alleging that his attorney had provided ineffective assistance of counsel when he advised him to plea nolo contendere.  The applicant also argued that the length of his sentence was excessive; however, the Supreme Court summarily dismissed the latter allegation, because it already had been decided in a previous decision, Pelletier v. State, 882 A.2d 567, 569 (R.I. 2005).   

With respect to the applicant’s assertion of ineffective assistance of counsel, the Supreme Court determined that the applicant’s attorney had reviewed the facts of the case, including police and witness statements; he had conferred with the applicant’s previous attorneys; and, based on his more than twenty years of experience defending criminal cases, he made a reasoned decision to suggest that the applicant enter nolo contendere pleas rather than go to trial and risk a far longer prison sentence.  The Court therefore concluded that the applicant had failed to show that his counsel’s performance was deficient, as required by the first part of the Strickland v. Washington, 466 U.S. 688 (1984), test governing ineffective assistance of counsel.  Accordingly, the Supreme Court affirmed the judgment of the Superior Court. 

State v. Phillip Jackson, No. 07-123 (March 20, 2009)

The defendant, Phillip Jackson (defendant), appeals an adjudication of a probation violation ordering him to serve seven years of a ten-year suspended sentence.  The defendant, while serving his suspended sentence—imposed after a plea of nolo contendere to one count of possession of a firearm by a person previously convicted of a crime of violence and to one count of obstructing a police officer—was presented with a notice of violation of his probationary status under Rule 32(f) of the Superior Court Rules of Criminal Procedure.  The state alleged that the defendant twice had struck his seventeen-year-old neighbor; an evidentiary hearing was held, a justice of the Superior Court presiding.

The evidence presented at the hearing consisted of eyewitness testimony.  At the hearing’s close, the hearing justice found the state’s witnesses credible and found incredible any contrasting aspects of the defense witnesses’ testimony.  The hearing justice therefore ruled that the defendant indeed had attacked his neighbor and thus had violated the terms of his probation.  After reviewing the defendant’s criminal history, and noting that the defendant presented little mitigating information, the hearing justice sentenced him to seven years and continued three years of probation.  Upon a motion for reconsideration, in which the defendant did present mitigating information, the hearing justice refused to reduce the sentence, again citing the defendant’s criminal history.

On appeal, the defendant contended that the hearing justice’s credibility determinations were both unreasonable and arbitrary and that the sentence imposed was excessive.  The Supreme Court affirmed, holding that, after a review of the entire record, the hearing justice’s view of the evidence was reasonable.  Further, the Court did not disturb the defendant’s sentence, holding that it was not excessive and that the hearing justice properly weighed the relevant sentencing factors.

Ruth Henderson et al v. Newport County Regional Young Men's Christian Association, No. 07-308 (March 20, 2009)

When the defendant, the Newport County Regional Young Men’s Christian Association (defendant or YMCA), learned that one of its employees, James W. Bell, had been accused of inappropriately touching several young girls during his tenure as their gymnastics coach, the defendant’s general counsel recommended that the YMCA Board of Directors conduct a review of its staff policies and procedures.  The defendant hired the Praesidium Group to prepare a written report (Praesidium report) after the plaintiffs, Ruth Henderson, Margaret Lama, and Taylor Lama Henderson (collectively plaintiffs), filed suit against the defendant, alleging that it negligently had hired and supervised Bell.  When the plaintiffs sought to compel production of the Praesidium report, the defendant refused, asserting that the document was protected by the work-product privilege.

          In examining the record, the Supreme Court concluded that the Praesidium report indeed was work product as defined by and protected under Rule 26(b)(3) of the Superior Court Rules of Civil Procedure.  The Court cited to the following facts to support its conclusion: (1) the defendant’s general counsel advised the YMCA Board of Directors to have an outside agency review YMCA staff polices and procedures promptly after learning of the alleged act of molestation; (2) the defendant hired the Praesidium Group only after this recommendation; (3) the review was done after the plaintiffs had filed suit; and (4) the Praesidium report and any relevant correspondence concerning the report bore statements indicating that they were privileged documents.  After concluding that the Praesidium report undoubtedly was prepared in anticipation of litigation and thus fell within the protective ambit of Rule 26(b)(3), the Court further ruled that the plaintiffs had failed to demonstrate a substantial need for the report that would have overcome the privilege.  Accordingly, the Court reversed the ruling of the Superior Court, thereby shielding the Praesidium report from discovery.    

Cathy Lee Barrette v. Vincent John Yakavonis, M.D., No. 07-310 (March 20, 2009)

On June 9, 2006, the plaintiff, Cathy Lee Barrette (plaintiff), filed a complaint in Superior Court against the defendant, Dr. Vincent John Yakavonis (defendant), alleging that on October 2, 2000, the defendant was negligent in diagnosing and treating her injuries.  The complaint, however, failed to set forth any allegations concerning the five-and-a-half-year interregnum from the time the defendant treated the plaintiff to the filing of the complaint. 

The defendant moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, arguing that it was time-barred by the limitations set forth in G.L. 1956 § 9-1-14.1.  Because the complaint failed to set forth any allegations relating to the plaintiff’s discovery of her alleged injuries that would have extended the period of limitations as permitted by § 9-1-14.1(2), the hearing justice granted the motion and an order was entered dismissing the complaint.  Subsequently, the plaintiff moved to amend the complaint to allege that " the injury was not discoverable until September of 2003."   The hearing justice denied the motion to amend and a final judgment dismissing the case was entered.  The plaintiff timely appealed.

On appeal, the plaintiff argued that she was not required to plead the discovery rule by either Rule 8(a) of the Superior Court Rules of Civil Procedure or by § 9-1-14.1(2).  Alternatively, she averred that the hearing justice abused her discretion in denying the motion to amend the complaint. 

The Supreme Court held that, because a party may move to dismiss a time-barred complaint, and because Rule 9(f) of the Superior Court Rules of Civil Procedure provides that allegations of time are material " [f]or the purpose of testing the sufficiency of a pleading," the hearing justice did not err when she dismissed the complaint.  Furthermore, the Supreme Court held that the hearing justice did not err when she denied the plaintiff’s motion to amend because the plaintiff had failed to provide the justice with an adequate ground for invoking the discovery rule. 

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

Planned Environment Management Corp. v. David Robert, et al, No. 06-327 (March 18, 2009)

The Court granted defendant’s petition for writ of certiorari seeking review of a Superior Court decision granting the motion of the plaintiff class for summary judgment, pursuant to which the defendants (officials of the Town of Lincoln) were required to return to the members of the plaintiff class money in an amount reflective of certain allegedly excessive motor vehicle taxes levied by Lincoln in the 2004 tax year.  Before this Court, the defendants argued that the Superior Court erred in interpreting the statutes at issue and in granting the plaintiff’s motion for summary judgment.

This case concerns the interpretation of and the relationship between two statutes:  G.L. 1956 § 44-5-11.8 and G.L. 1956 § 44-34.1-1(c).  Section 44-5-11.8 addresses the assessment of taxes by cities and towns, and it places limitations upon the amount of taxes that may be levied by municipalities on certain classes of property, including motor vehicles.  Further, § 44-5-11.8 (a)(5), at the time this case came before the Superior Court, provided that " notwithstanding subdivisions (2) and (3) of this subsection, the tax rates applicable to motor vehicles * * * are governed by § 44-34.1-1."   Section 44-34.1-1, as it was worded at the time this case came before the Superior Court, was part of the " Motor Vehicle and Trailer Excise Tax Elimination Act of 1998."   This section prohibited municipalities from charging excise tax rates at greater than the 1998 tax levels.  In granting plaintiff’s motion for summary judgment, the hearing justice interpreted these statutes to require that the motor vehicle tax rates must comply with the limitations in both § 44-34.1-1(c)(4) and § 44-5-11.8(a)(2). 

In light of the " [n]otwithstanding" provision contained in § 44-5-11.8(a)(5), the Supreme Court concluded that the motor vehicle tax rates are to be governed solely by § 44-34.1-1, without being affected by the limitations on tax rates imposed by § 44-5-11.8(a)(2).

Accordingly, the Supreme Court granted the petition for writ of certiori.  For the reasons set forth in the opinion, the judgment of the Superior Court was quashed, and the papers in the case were remanded to the Superior Court for further proceedings consistent with the decision.   

State v. Samuel Adewumi, No. 07-334 (March 17, 2009)

This case came before the Supreme Court on appeal by the defendant, Samuel Adewumi, from a judgment of conviction entered in the Washington County Superior Court after a jury-waived trial with respect to a single count of patient abuse in violation of G.L. 1956 § 23-17.8-1(a)(1)(i).   The defendant raised three issues before the Supreme Court on appeal.  He argued that the trial justice erred by: (1) employing an incorrect standard to deny the defendant’s motion to dismiss the state’s case after the state rested; (2) improperly failing to credit the testimony of a defense witness that she did not hear or see the abuse; and (3) impermissibly shifting the burden of proof by requiring the defendant to provide evidence to explain (a) why the victim had no signs of injury and (b) factual gaps in his testimony.

The Supreme Court held that the trial justice did, in fact, apply the wrong standard for evaluating a motion to dismiss in a jury-waived trial.  The Court reiterated the rule set forth in State v. McKone, 673 A.2d 1068 (R.I. 1996), that in a motion to dismiss in a jury-waived trial, the trial justice acts as the fact-finder and must weigh and evaluate the trial evidence, pass upon the credibility of the trial witnesses, and engage in the inferential process impartially.  The record revealed that, instead, the trial justice found that all the elements of the charge were satisfied, but he viewed the evidence and made inferences in favor of the state as the nonmoving party and he declined to assess the credibility of the state’s witness.  Nevertheless, the Court held that the error was harmless considering that when the trial justice acted as fact-finder at the close of the evidence, he found that the state’s witness was credible both after the state rested and after the close of the evidence, and he properly found that the state had proven its case beyond a reasonable doubt. 

The Supreme Court further held that the trial justice did not misconceive the evidence pertaining to the defendant’s witness.  The record revealed that the trial justice was warranted in giving less weight to a defense witness’s testimony that she did not see or hear the assault because he found that she was not present in the room at the precise moment that it was alleged to have occurred.  The Court also held that the trial justice did not impermissibly shift the burden of proof to the defendant.  The Court reasoned that the trial justice correctly and expressly recognized that the statute did not require proof of an injury.  Further, the trial justice did not require the defendant to submit evidence at trial; rather, as the fact-finder, he considered factual gaps in the defendant’s testimony when he weighed the defendant’s credibility. 

In light of the foregoing, the Supreme Court affirmed the judgment of conviction. 

Jean H. Tondreault v. Jeannie A. Tondreault, No. 07-207 (March 13, 2009)

The plaintiff, Jean H. Tondreault, appealed and the defendant, Jeannie A. Tondreault, cross-appealed from a Family Court decision pending entry of final judgment of divorce distributing the parties’ marital assets.  The plaintiff first argued that the trial justice erred in several of his findings of fact and credibility.  He also argued that the trial justice abused his discretion with respect to his distribution of most of the parties’ marital assets.  The defendant challenged the trial justice’s determination that two parcels of real property and a related bank account held exclusively in her name were marital property. 

The Supreme Court affirmed in part and reversed in part the judgment of the trial justice.  First, it held that the trial justice did not overlook or misconceive evidence in making his findings of fact and credibility.  It also held that that the trial justice did not abuse his discretion with respect to most of the assignments of assets.  The Court did correct, however, three assignments of assets that were not consistent with the trial justice’s findings of fact and which appeared to be scrivener’s errors.  Finally, the Court held that any errors that the trial justice had made in characterizing the defendant’s two parcels of real estate and the related bank account as marital were harmless because the trial justice had assigned 100 percent of the value of these assets to the defendant.

Paulette Andrews Smith v. Todd Martin Smith, No. 08-67 (March 9, 2009)

This case came before the Supreme Court on appeal by the plaintiff, Paulette Andrews Smith, from a Family Court judgment dismissing her complaint for divorce.   In her complaint, the plaintiff alleged that she had entered into a common-law marriage with the defendant, Todd Martin Smith, with whom she cohabitated for a period exceeding ten years.  After a hearing, a justice of the Family Court held that the plaintiff failed to establish the existence of a common-law marriage by clear and convincing evidence. 

On appeal, the plaintiff asserted that the trial justice erred when she held that a common-law marriage had not been established.  The plaintiff argued that the evidence proved that the parties held themselves out as husband and wife during their fifteen-year cohabitation, that they did everything as a married couple, and that defendant acted as if he was her husband within a family unit.  She also asserted that the trial justice erred in concluding that defendant did not give her an engagement ring, when, in fact, the defendant did give her a ring.  

The Supreme Court reviewed the testimony elicited at the hearing and held that the trial justice did not misconceive or overlook relevant evidence and that her decision that the parties did not enter into a common-law marriage was not clearly wrong.  The Court reiterated that to establish a common-law marriage the plaintiff carries the burden to demonstrate that the parties shared a serious present intent to be husband and wife and that there was a belief in the community that the parties were married.   The testimony revealed that soon after the parties met, the defendant asked the plaintiff to marry him, and she accepted.  A year later, they began cohabitating; eight years after that, at Christmas, the defendant gave the plaintiff a ring, and then about four years later, the plaintiff began using the defendant’s last name in her business relations.  The parties lived together for over fifteen years, but never went through a formal marriage ceremony.  The defendant testified that he was never engaged or married to the plaintiff.  Although the plaintiff submitted evidence of her belief that she was the defendant’s wife, she designated herself as single on her tax returns and on a bankruptcy petition.   The Court held that because of the conflicting testimony, and given the incongruous timing of these events, there was no clear and convincing evidence of a mutual present intent to enter into a husband-wife relationship. 

The Court also concluded that the plaintiff failed to meet her burden to demonstrate that there was a belief in the community that the parties were married.  The testimony revealed that in certain limited settings, the parties may have held themselves out as married, but their family and friends believed that they were not married, and the couple did not hold joint title to any property or accounts.  The Court held that that there was no clear and convincing evidence of a general and uniform reputation in the community that the parties were married.  As a result, the Supreme Court affirmed the Family Court judgment dismissing the complaint. 

Karyn Mumma v. Cumberland Farms, Inc., No. 07-112 (March 9, 2009)

We issued a writ of certiorari to review a decision by the Appellate Division of the Workers’ Compensation Court (Appellate Division) denying Ms. Mumma’s petition for reinstatement of the benefits she had been receiving as a result of her suitable alternative employment with her employer, Cumberland Farms, Inc. Cumberland Farms modified the terms of Ms. Mumma’s employment from full to part time after 312 weeks, thus terminating her suitable alternative employment. 

Ms. Mumma contended that the Workers’ Compensation Court erred in applying the G.L. 1956 § 28-33-18(d) 312-week limitation of compensation for partial disability to the " suitable alternative employment" provisions of § 28‑33‑18.2.

The Court affirmed the judgment of the Appellate Division, holding that an employer properly could terminate the " suitable-alternative-employment" position after the 312-week period had expired. The Court reasoned that it would be contrary to the intention of the General Assembly to read § 28-33-18.2 as granting an employee whose suitable alternative employment is terminated after receiving 312 weeks of compensation for partial disability more rights than she would have if either the employer had never offered suitable alternative employment or if it had terminated her employment before the 312-week period had expired.  Accordingly, the Court affirmed the final decree of the Appellate Division.

Now Courier, LLC v. Better Carrier Corp., et al, No. 08-13 (March 6, 2009)

The defendants, Better Carrier Corporation and Dean S. Cambio (collectively defendants), appeal from a Superior Court judgment finding the defendants in contempt for violating a consent order.  The defendants assert that the hearing justice erroneously disregarded material evidence, relied upon inadmissible evidence, failed to apply certain key provisions of the consent order, and failed to make sufficient findings of fact.  The defendants also assert on appeal that the sanctions imposed upon them were in excess of the Superior Court’s authority and constituted an abuse of discretion. 

Dean S. Cambio, one of the defendants, formerly was an employee of Now Courier, LLC (plaintiff), and both parties had executed a noncompetition agreement which remained in effect when Mr. Cambio left the plaintiff’s employ.  Thereafter, Mr. Cambio started his own business, Better Carrier Corpation.  The plaintiff thereafter filed suit, alleging that the defendants had violated the noncompetition agreement.

After negotiations, the parties executed a consent order that precluded the defendants from soliciting the plaintiff’s customers for a specified period and from competing with them in certain specified areas.  After suspecting the defendants of violating the order on several occasions, the plaintiffs filed a motion to adjudge the defendants in contempt.  The hearing justice found that the defendants willfully had violated the consent order.  To sanction the defendants, he ordered an extension of the consent order by seven months, and he awarded the plaintiff attorney’s fees and expenses incurred in prosecuting the motion.

The Supreme Court held that the hearing justice made sufficient findings of fact, did not overlook material evidence, and properly had applied the relevant provisions of the consent order.  It also concluded that any reliance on inadmissible evidence was harmless.  Moreover, the sanctions imposed were done so in accordance with the law.  Holding that there was no abuse of discretion, the Supreme Court affirmed the judgment of the Superior Court.          

State of Rhode Island v. Eddie M. Linde, No. 07-0049 (March 6, 2009) AMENDED

This case came before the Supreme Court on December 8, 2008, on an appeal by the defendant, Eddie M. Linde (Linde or defendant), from a Superior Court order denying his motion to correct an illegal sentence under Rule 35 of the Superior Court Rules of Criminal Procedure.  On May 29, 2002, the defendant was convicted on nine counts of a criminal indictment, including second-degree murder and discharging a firearm while committing a crime of violence resulting in death.  This Court subsequently affirmed the judgment of conviction.  State v. Linde, 876 A.2d 1115 (R.I. 2005).  The defendant later filed a Rule 35 motion in the Superior Court alleging that the mandatory and consecutive life sentence imposed under G.L. 1956 § 11-47-3.2—discharging a firearm while committing a crime of violence (second-degree murder)—was illegal because the statute violated the constitutional right to due process and the separation of powers doctrine, constituted cruel and unusual punishment, and amounted to double jeopardy.  The trial justice denied the motion, ruling that the defendant’s constitutional averments could not be pursued under Rule 35.  The defendant appealed to this Court. 

On appeal, the defendant argued that he could challenge the constitutionality of a penal statute pursuant to a Rule 35 motion because, he asserted, a sentence imposed under an unconstitutional statute was illegal as contemplated by the rule.  The Supreme Court rejected the defendant’s argument and held that a motion to correct an illegal sentence pursuant to Rule 35 is an improper vehicle for attacking the constitutionality of a statute.  Accordingly, the Supreme Court affirmed the order of the Superior Court.

James C. Lynch, Jr., et al v. Spirit Rent-A-Car, Inc., et al, No. 07-247 (March 6, 2009

On October 2, 2001, Kevin Lynch (Lynch or decedent) was driving on West Shore Road in a motor vehicle owned by Spirit Rent-A-Car, Inc. (Spirit), and rented from Alamo Rent-A-Car, LLC (Alamo).  While driving beside an automobile driven by Kenneth Germani, Lynch’s vehicle collided with a tree and he died shortly afterward. 

The plaintiffs, James C. Lynch, Jr. and Patricia Lynch (collectively plaintiffs), co-administrators of the decedent’s estate, filed suit against Spirit and Alamo (collectively defendants) in Superior Court after the defendants denied the plaintiffs’ claims for uninsured motorist (UM) coverage.  After denying the defendants’ first motion for summary judgment, the trial justice granted the defendants’ second motion on the basis that there was no genuine issue of material fact with respect to the UM coverage provided to the decedent.  The trial justice concluded (1) that the defendants’ insurance policies did not provide Lynch with UM coverage and (2) that Lynch did not purchase insurance in the rental agreement with the defendants.  The plaintiffs timely appealed.     

On appeal, the plaintiffs argued (1) that the trial justice violated the law of the case doctrine by granting the defendants’ second motion for summary judgment after she had denied the first motion, (2) that the defendants’ insurance policies (the National Union policy and the umbrella policy) provided the decedent with UM coverage, and (3) that there was a genuine issue of material fact as to whether the decedent initialed those portions of the rental agreement expressly declining to purchase insurance coverage.  Accordingly, they contended that the trial justice erred in granting summary judgment in favor of the defendants.

The Supreme Court rejected the plaintiffs’ arguments.  The Supreme Court first held that the trial justice did not violate the law of the case doctrine because she was confronted with new evidence and arguments in the defendants’ second motion for summary judgment.  Second, the Supreme Court held that the defendants’ insurance policies did not afford the decedent UM coverage because the original named insured in the National Union policy lawfully had reduced such coverage to zero pursuant to G.L. 1956 § 27-7-2.1(a), and the umbrella policy did not otherwise provide broader coverage.  Finally, the Supreme Court concluded that, in accordance with the clear and unambiguous language of the rental agreement, Lynch elected to forgo UM coverage because (1) he did not purchase additional insurance and (2) because the agreement itself contained a clause in which Alamo expressly declined to provide UM coverage and in which the renter expressly waived it.

Accordingly, the Supreme Court affirmed the grant of summary judgment.    

Tucker Estates Charlestown, LLC v. The Town of Charlestown et al, No. 08-108

The plaintiff, Tucker Estates Charlestown, LLC (plaintiff), appealed from a Superior Court judgment dismissing its complaint based on Rule 12(b)(6) of the Superior Court Rules of Civil Procedure.  The plaintiff, a property owner, filed suit under the Uniform Declaratory Judgments Act (UDJA), G.L. 1956 chapter 30 of title 9, seeking a declaration from the Superior Court that the certain zoning ordinance amendments affecting its property were invalid because they did not comply with the procedural and notice requirements of the Town of Charlestown Charter and the Rhode Island Zoning Enabling Act. 

The Town of Charlestown filed a motion to dismiss, arguing that the plaintiff’s challenge to the zoning ordinance was, in effect, an appeal of the enactment of the ordinance, and therefore an action governed by G.L. 1956 § 45-24-71(a) of the Zoning Enabling Act.  The motion justice agreed that the action indeed should be construed as an appeal and therefore ruled that, under § 45-24-71(a), the plaintiff had a thirty-day time period within which to appeal the amendment after its effective date.  Because this action was filed nearly eight years after the amendment became effective, the justice granted the town’s motion, dismissing the plaintiff’s action as time-barred.

The Supreme Court vacated the judgment of the motion justice, holding that a declaratory-judgment action is separate and distinct from an appeal and that therefore the instant action should have been considered under the UDJA—not under § 45-24-71(a).  Thus, the Supreme Court held that the action no longer was time-barred and, moreover, that the plaintiff’s complaint had set out a proper cause of action.  Therefore, the Court held, the motion justice improperly granted the town’s motion because a dismissal under Rule 12(b)(6) is warranted only when the pleadings demonstrate that beyond a reasonable doubt the declaration prayed for is an impossibility. 

N & M Properties v. Town of West Warwick, No. 08-17 (February 27, 2009)

After the motion justice dismissed the complaint of N & M Properties, LLC (plaintiff), for want of a distinct, personal legal interest in the property at issue, the plaintiff appealed the judgment in favor of the Town of West Warwick (town or defendant) to this Court.  Previously, the plaintiff had entered into a lease agreement with the State of Rhode Island in which the state would use property located at 1237 Main Street, West Warwick as a Motor Vehicle Registry (Registry) for the state’s Division of Motor Vehicles.  More recently, the state had declined to renew the lease for a full five-year term, instead opting to enter into a month-to-month rental agreement.  The underlying dispute concerned the relationship between the Main Street property and two nearby municipal parking lots that the Registry’s patrons had used for parking.  When the town authorized the sale of the two municipal parking lots, the plaintiff filed the underlying declaratory judgment action against the town pursuant to the Uniform Declaratory Judgments Act.

Upon review, the Supreme Court affirmed the judgment of the motion justice, ruling that the plaintiff had failed to demonstrate an injury in fact.  The Court explained that the plaintiff did not enjoy any special ownership rights or privileges with respect to the municipal parking lots, nor had the plaintiff entered into an agreement with the town with respect to the availability of public parking.  In fact, the Court noted that the only reference to parking contained in the rental agreement between the plaintiff and the state was a provision requiring a minimum of three handicapped parking spaces. 

The plaintiff also asserted that the sale of the municipal parking lots was in contravention to the town’s comprehensive plan.  After examining the comprehensive plan in its entirety, however, the Supreme Court concluded that the sale was in fact in accord with the tenets of the comprehensive plan.        

Danny L. Brown v. State of Rhode Island, No. 04-212 (February 11, 2009)

The applicant, Danny L. Brown, was convicted of three counts of first-degree sexual assault and three counts of first-degree child molestation.  The trial justice sentenced Brown to forty years imprisonment on each count, with twenty years to serve and the remainder suspended for a twenty-year probationary period.  All terms were to be served concurrently.  In 1998, the Supreme Court affirmed his convictions.  Two years later, Brown filed an application for postconviction relief under G.L. 1956 § 10-9.1-1.  He alleged, inter alia, that his constitutional rights were violated because his defense counsel provided ineffective assistance of counsel.  After multiple hearings in the Superior Court, the hearing justice granted Brown’s application for postconviction relief.  The hearing justice concluded that the fairness of Brown’s trial was compromised by the lack of effective representation and that his convictions were the product of an infirm process that resulted in the extinguishment of his core constitutional rights. 

On appeal, the state argued that the hearing justice erred when she impermissibly inserted herself into the adversarial process and granted Brown’s application based on issues:  (1) that the Supreme Court had previously rejected in Brown’s direct appeal; (2) that Brown did not raise in either his initial or amended application; (3) that were not supported by facts in the record; and (4) that the parties never litigated.  Brown filed a cross-appeal, in which he raised a number of issues that fit into one of two categories.  They were: (1) issues that Brown argued may have contributed to the hearing justice’s finding of ineffective assistance; and (2) issues that Brown raised in his application but that the hearing justice did not address in her decision, which he argued was error.  He asked the Court to grant his cross-appeal on either of these two alternate grounds. 

The Supreme Court vacated the order that granted Brown’s application for postconviction relief and the Court reinstated the judgments of conviction.  The Court agreed that the hearing justice based her finding of ineffective assistance on a number of grounds that were not included in Brown’s application nor discussed during the postconviction-relief proceedings.  However, the Court held that even when considering these issues, Brown still presented insufficient evidence to obtain postconviction relief based on a claim of ineffective assistance of counsel.  After reviewing defense counsel’s missteps during the trial, the Court concluded that Brown failed to demonstrate the requisite prejudice to his defense.

The Supreme Court also denied Brown’s cross-appeal.  The Court agreed that defense counsel erred by not objecting during trial to the admission of certain conversations between Brown and his pastor.  The Court concluded again, however, that despite this error, there still was insufficient evidence that this deficiency prejudiced Brown’s defense because there was other compelling evidence of his guilt that was more than sufficient for the jury to convict Brown beyond a reasonable doubt.  Therefore, there was not a reasonable probability that, but for defense counsel’s errors, the result of Brown’s trial would have been different.   

For the foregoing reasons, the Supreme Court vacated the order that granted Brown’s application for postconviction relief and the Court reinstated the judgments of conviction.

State v. Thomas Flori, No. 07-167 (February 6, 2009) 

The defendant, Thomas Flori, appealed from a Superior Court judgment of conviction for conspiracy to commit larceny.  First, he contended that that the trial justice erred in denying his motion for a new trial based on improper jury instructions.  Second, he argued that the trial justice erred in granting a motion to amend the criminal information.  Finally, he asserted that the trial justice improperly admitted into evidence irrelevant and prejudicial testimony.

The defendant’s motion for a new trial was based upon the fact that the trial justice, in instructing the jury on the charge of conspiracy to commit larceny, did not specifically state that a guilty verdict required a finding that the defendant conspired to commit larceny for a monetary amount exceeding $500.  The Court held that because the defendant failed to timely object to the jury instructions as required by Rule 30 of the Superior Court Rules of Criminal Procedure, he waived his right to appeal an error on these grounds.  The Court explained that, although it will review an improperly preserved error in jury instructions when a basic constitutional right is at issue, the jury instructions in this case did not implicate issues of constitutional dimension.  The defendant alternatively argued that his sentence should be reduced to the maximum penalty allowed for larceny of less than $500.  The Court rejected this argument on the grounds that, absent extraordinary circumstances, which were lacking in this case, the appropriate procedure for challenging a criminal sentence must begin with filing a motion in the Superior Court under Rule 35 of the Superior Court Rules of Criminal Procedure.

The Court also rejected the defendant’s argument that amending the criminal information was improper.  Before trial began, the prosecution sought an amendment to the criminal information to correct the dates of the offenses charged.  The Court held that substantial rights of the defendant were not prejudiced by this amendment because various documents appended to the original criminal information referred to the correct dates and, thus, the defendant could not have been surprised by the correction.

Finally, the Court held that the trial justice did not abuse his discretion by admitting into evidence testimony about payment of restitution by the defendant’s coconspirator, concluding that it was relevant.  Accordingly, the Court affirmed the judgment of conviction and remanded the case to the Superior Court.

Deborah Holden v. Guido R. Salvadore, No. 08-69

The plaintiff, Deborah Holden, appealed to the Supreme Court from a Superior Court judgment that denied her request for equitable relief against the defendant, Guido R. Salvadore.  The conflict stemmed from the circumstances surrounding an agreement between the plaintiff and defendant that the plaintiff alleged was, in substance, a usurious loan.  The plaintiff had attended the foreclosure sale of her residence, bid on her home in the amount of $265,000, signed a memorandum of terms and conditions of sale as the highest bidder, and placed a deposit of $5,000.  Thereafter, she contacted the defendant for help because she did not have the financial ability to obtain the remainder of the purchase price.  The defendant agreed to purchase her former residence from the lender and give her an option to buy it back for $310,000, or in the alternative, secure a third-party buyer to whom he could sell the property for $310,000.   According to the agreement, both parties had the potential to make a profit, because if the plaintiff secured a purchase price of more than $310,000, she was entitled to the excess.  To achieve this arrangement, the plaintiff assigned the defendant her rights as purchaser under the memorandum of terms and conditions of sale. 

Holden filed a complaint against the defendant alleging, inter alia, that he violated the Rhode Island usury statute, G.L. 1956 § 6-26-2, and the Mortgage Foreclosure Consultant Regulation Act, G.L. 1956 chapter 79 of title 5.  After a hearing, the Superior Court denied the plaintiff’s request for equitable relief and held that the transaction between the parties was not a loan subject to the usury laws, and that the defendant was not a mortgage foreclosure consultant subject to regulation under the Mortgage Foreclosure Consultant Regulation Act.  The Supreme Court affirmed the Superior Court judgment and held that the transaction was not, in substance, a loan because it was not the intent of the parties and there was no evidence of a debtor-creditor relationship created by the arrangement.  The Supreme Court also held that the defendant was not a mortgage foreclosure consultant because his conduct did not fall within the ambit of the statute.  Specifically, he did not solicit, offer, or represent that he would help Holden save her property from foreclosure or stop or postpone the foreclosure sale.

Monica Ouch, as Beneficiary of Heang Say, deceased et al v. Khan Kea, Alias, No. 07-333 (January 30, 2009)

On New Year’s Eve in 2001, the defendant, Khan Khea (Khea or defendant), a member of the Asian Boys gang, attended a party on Wendell Street in Providence with his associates Heang Say (Say), Thanaroeuth Ngim (Ngim), Peary Bun (Bun), and Angel Alvarez (Alvarez).  The defendant decided to leave shortly after arriving and walked back to his car with his companions.  Within seconds after the defendant started to drive away, however, someone armed with a rifle ran out of the driveway across the street and unleashed an onslaught of bullets on the defendant’s automobile.  The ensuing carnage resulted in Say’s death and in injuries that rendered Ngim a paraplegic. 

On March 19, 2002, Say’s beneficiary, Monica Ouch (Ouch), joined by Ngim, Bun, and Alvarez, filed a complaint in Superior Court seeking compensatory damages, alleging that the defendant’s negligent operation of his automobile was the proximate cause of their injuries.  The defendant moved for partial summary judgment against Ouch, arguing that he did not owe Say a legal duty of care to protect him from the intentional criminal acts of third parties.  The hearing justice agreed and granted the defendant’s motion.  The defendant subsequently filed a second motion for partial summary judgment with respect to Ngim’s claims before a second hearing justice who concluded that she was required to adopt her predecessor’s decision pursuant to the law of the case doctrine.  Thus, the second hearing justice granted the defendant’s second motion for partial summary judgment. 

The plaintiffs timely appealed to the Supreme Court, where the parties disputed whether the defendant owed the plaintiffs a legally cognizable duty of care—a duty that the plaintiffs argued the defendant breached when he drove toward and past a known danger (viz., " rival gang members" ).  Ngim additionally argued that the second hearing justice erred in basing her decision on the law of the case doctrine. 

The Supreme Court held that the defendant did not owe the plaintiffs a duty of care to protect them from intentional shootings by rival gang members.  The Supreme Court reasoned that the attack was unforeseeable and wholly unrelated to the operation of the defendant’s automobile, and it refused to permit the plaintiffs to bootstrap the general duty of care owed by a driver to his or her passengers into responsibility for injuries that in no way were connected to the vehicle or the driver’s conduct.  Because the Supreme Court held that the defendant did not owe a duty of care as a matter of law, it did not address Ngim’s arguments concerning the law of the case doctrine.

Accordingly, the Supreme Court affirmed the grant of summary judgment by the respective hearing justices.

State v. Chhoy Hak, No. 06-156 (January 28, 2009)

The defendant, Chhoy Hak, was convicted of four counts of first-degree child molestation in violation of G.L. 1956 § 11-37-8.1 and two counts of second-degree child molestation in violation of § 11-37-8.3. The defendant was sentenced to a total of forty years imprisonment at the Adult Correctional Institutions, with twenty years to serve, and twenty years suspended with probation.  In March 2007, the Supreme Court granted the defendant’s petition for a writ of certiorari to review his judgments of conviction for child molestation. 

The defendant raised three issues before the Supreme Court.  He argued that the trial justice erred by:  (1) allowing the jury to hear irrelevant and highly prejudicial testimony (2) denying the motion to pass the case after he criticized defense counsel during closing argument, thereby prejudicing him, and (3) including a flight instruction in the jury charge.  Consequently, the defendant asked the Court to vacate the judgments of conviction and remand the matter to the Superior Court.

The Supreme Court held that the trial justice did not abuse his discretion when he allowed testimony from one of the complainants about what the defendant said to her as he was abusing her.  The Court concluded that the testimony was both relevant and that its probative value substantially outweighed any potential unfair prejudice. 

The Court then turned to the defendant’s second argument and held that the trial justice did not err when he denied the defendant’s motion for a mistrial.  During the defendant’s closing argument, the trial justice warned defense counsel not to comment on the grand jury’s actions and not to inject his personal beliefs into the matter.  The Supreme Court said that although improper remarks by a trial justice may be grounds for a new trial, it believed that in this instance, the trial justice’s remarks did not warrant a mistrial. 

Lastly, the Supreme Court reviewed the trial justice’s decision to include a flight instruction in the charge to the jury.  The Court held that based upon the totality of evidence at trial, a reasonable jury could infer consciousness of guilt from the defendant’s decision to move to the State of Washington.  Therefore, the Court said that the trial justice did not err when he included the flight instruction.

For the foregoing reasons, the Supreme Court denied the petition for certiorari and affirmed the judgments of conviction. 

Frederick Carrozza, Sr., et al v. Michael Voccola, in his capacity as Executor for the Estate of Frederick Carrozza, Jr., et al, No. 07-359 (January 15, 2009)

The plaintiffs, Frederick Carrozza, Sr. (Frederick, Sr.), Phillip Carrozza, Freida Carrozza, and Laurie Carrozza-Conn (collectively plaintiffs) filed suit against the estate of the late Frederick Carrozza, Jr. (Frederick, Jr.) and his heirs alleging that four separate properties, titled in the name of Frederick, Jr., were held in trust for the benefit of the Carrozza family.  Specifically, the plaintiffs asserted that, despite there being no express trust agreement, Frederick, Sr. contributed in various ways to the purchase price of each property, with the intent that his son, Frederick, Jr., act as trustee of the properties.  The father and son became estranged before the death, in 2002, of the son, who bequeathed the four properties to his wife and her daughter upon his death.

The defendants filed a motion for summary judgment, arguing that there was no genuine issue of material fact that could establish a resulting trust in the plaintiffs’ favor, a motion the Superior Court granted.  Frederick, Sr., however, also had filed a second lawsuit against the same defendants, again alleging, inter alia, the establishment of a trust arrangement on the four properties.  A second motion justice granted the defendants’ motion for partial summary judgment on the grounds of res judicata.

On appeal, the plaintiffs argued that: (1) there exists a genuine issue of material fact about whether a resulting trust can be imposed by law; and (2) the second motion justice improperly applied the doctrine of res judicata because a judgment had not yet been entered encompassing the first motion justice’s decision.

The Supreme Court affirmed the Superior Court on both issues.  First, it held that no trust could result on the four properties based on the evidence presented and viewed in the light most favorable to the plaintiffs.  Second, the Supreme Court held that the second action was barred by the doctrine of res judicata, and required that the judgment entered on the first motion justice’s decision be vacated, with a new judgment entered nunc pro tunc to a date before the decision of the second motion justice.

 State v. Jason Palmer, No. 06-226 (January 15, 2008)

 The defendant, Jason Palmer, appealed from a jury conviction on one count of conspiracy to commit first-degree robbery, four counts of first-degree robbery, one count of attempted robbery, two counts of carrying a pistol without a license, five counts of committing a crime of violence while armed with a firearm, and three counts of assault with a dangerous weapon.  On appeal, he argued that the trial justice committed reversible error (1) when he gave the jury a flight instruction that allegedly imputed consciousness of guilt to the defendant and (2) when he failed to find that the defendant had made a prima facie showing of purposeful discrimination and when he concluded that the prosecutor’s stated reasons for the peremptory challenge of a juror were race-neutral.  The Supreme Court affirmed the defendant’s judgment of conviction.

The Court noted that the defendant had failed to properly preserve the argument that no flight instruction should have been given; but it went on to state that, in any event, the record supported the giving of such an instruction.  The defendant also argued that, by including the term " concealment" and the phrases " concealed himself" and " hides after a crime has been committed" in the flight instruction, the trial justice committed reversible error.  However, the Supreme Court ruled that the trial justice’s flight instruction, considered as a whole, properly instructed the jury on the law to be used in considering the evidence of flight.  Further, the Court held that the flight instruction did not reduce or shift the state’s burden of proof. 

 The defendant also argued that the trial justice committed reversible error when he (1) failed to find that the defendant had made a prima facie showing of purposeful discrimination and when he (2) concluded that the prosecutor’s stated reasons for the peremptory challenge of a juror were race-neutral.  During the morning session of jury selection, the prosecutor exercised a peremptory challenge to strike a particular juror of apparent Asian heritage.  The defendant, who is an African American, did not object to this peremptory challenge until the afternoon session.  However, in spite of the belated nature of the objection, the trial justice considered the defendant’s objection and also allowed the prosecutor to present race-neutral reasons for challenging the juror.  Specifically, the prosecutor stated that the juror in question (1) was unkempt in his attire and appearance; (2) displayed a lack of attentiveness during the proceedings; and (3) failed to respond to the questions posed to the group of potential jurors. 

The trial justice found that the defendant had not met his burden of establishing a prima facie case of purposeful discrimination on the part of the prosecutor and, therefore, the defendant’s motion was denied.  This Court held that, under the deferential standard of review applied by this Court, the trial justice was not clearly wrong in accepting the explanation of the prosecutor and finding that the defendant failed to prove the peremptory challenge was racially motivated.

Grasso Service Center, Inc., et al v. Alan Sepe, in his capacity as Acting Director of the City of Providence Department of Public Property et al, No. 07-76 (January 15, 2009) 

This case came before the Supreme Court on November 3, 2008, on appeal by the plaintiffs, eight automobile tow operators authorized to do business in the State of Rhode Island and the Rhode Island Public Towing Association, Inc. (collectively plaintiffs).  The plaintiffs appealed from the decision of the Superior Court denying their request for declaratory and injunctive relief and dismissing their complaint against the defendants, Alan Sepe (Sepe), in his capacity as acting director of the City of Providence Department of Public Property, the City of Providence Board of Contract and Supply (Board of Contract and Supply), Colonel Dean M. Esserman, in his capacity as chief of police of the City of Providence, and David N. Cicilline, in his capacity as mayor of the City of Providence (collectively defendants).  A proposed modification to the police-instigated towing program in the City of Providence (city or Providence) constituted the genesis of this dispute.

In 2006, the Board of Contract and Supply issued a Request for Proposals (2006 RFP) to modify the city’s police-instigated towing program.  The 2006 RFP proposed dividing the city into four zones and assigning two tow operators for each zone, with said operators to be selected after competitive bidding.  Those selected would be the exclusive providers for their respective zones for a period of three years.  To be considered for the program, a tow operator was required to submit a bid proposal that included " a referral fee of no less than 20 [percent] per tow and 10 [percent] per storage," although higher bids were anticipated.

The plaintiffs applied to the Superior Court for declaratory and injunctive relief and alleged that (1) the 2006 RFP unlawfully infringed on the regulatory authority of the Public Utilities Commission (PUC), (2) the referral fee constituted an illegal tax, (3) the 2006 RFP created an illegal franchise, and (4) the process by which the city sought to implement the 2006 RFP was an abuse of discretion.  The trial justice found that the city’s administration of the towing program did not infringe on the PUC’s authority, that the statutory prohibition against rebates was limited to refunding money to a customer whose vehicle was towed, that the 2006 RFP did not create a franchise, and that the plaintiffs had failed to prove that the referral fee was an illegal tax.  Finally, the trial justice rejected the plaintiffs’ argument about irregularities in the bid process. 

The Supreme Court held that the General Assembly had not delegated to municipalities the power to enter into contracts with tow operators in exchange for payment of a referral fee.  Additionally, the Supreme Court held that state law prohibits a tow operator from refunding or remitting any portion of its fee to any other party, including a municipality.  Accordingly, Providence may not require a tow operator to pay a referral fee to the city in exchange for business related to police-instigated towing and storage.  Because Providence cannot implement the 2006 RFP, the Supreme Court was not required to reach the plaintiffs’ arguments that the resulting scheme would constitute an illegal franchise and impose an illegal tax. 

State v. Barry A. Farley, No. 06-349 (January 14, 2009)

The defendant, Barry A. Farley, convicted by jury of first-degree sexual assault, second-degree sexual assault, and four counts of second-degree child molestation, appealed from the judgment on three grounds.  He contended that the Superior Court trial justice erred by: (1) allowing the introduction of testimony not disclosed in discovery in violation of Rule 16 of the Superior Court Rules of Criminal Procedure, (2) allowing a lay witness to testify about another’s cognitive ability, and (3) not giving a cautionary instruction to the jury about comments the prosecutor made about defense counsel’s use of leading questions during cross-examination at trial.  The Court affirmed the judgment of the Superior Court.

First, the Court held that the trial justice did not abuse his discretion in finding that a Rule 16 discovery violation had not occurred when the witness alluded to physical abuse.  The Court explained that it was not clear that the prosecutor intended to elicit undiscovered testimony from the witness, that in the context of the case and the questioning the testimony had not compromised the fairness or objectivity of the jury, and that the testimony at issue could not be considered a " principal aspect" of the witness’ testimony.         Second, the Court held that introduction of a lay witness’ testimony about her son’s cognitive limitations was a sustainable exercise of the trial justice’s discretionary authority because the boy’s cognitive ability was not an issue in the case and the jury already knew about his limitations.          Third, the Court noted that it was deeply troubled by the state’s comments during closing argument about defense counsel’s use of leading questions on cross-examination because that form of questioning is expressly permissible under the Rhode Island Rules of Evidence.  However, the Court concluded that the trial justice was not clearly wrong in finding that these remarks were not prejudicial to the defendant.          

State v. Susan LaPlante, No. 07-32 (January 13, 2009) 

This case came before the Supreme Court on appeal by the defendant, Susan LaPlante, from judgments of conviction entered in the Providence County Superior Court upon a jury verdict finding defendant guilty of welfare fraud in violation of G.L. 1956 § 40-6-15 and giving a false document to a public official in violation of G.L. 1956 § 11-18-1.  The defendant asserted that the trial justice erred when he denied the defendant’s motion to pass the case after a witness’s unelicited testimony about the defendant’s ownership of vacation time-shares.  The Supreme Court held that the trial justice did not abuse his discretion when he determined that the jurors were not prejudiced by the time-share comment.  The Court reasoned that the record revealed that the trial justice gave appropriate curative instructions within moments of the offending comment and conducted a voir dire that effectively probed the jury and revealed that it was not influenced by the time-share remark.  The Court concluded that the trial justice’s curative instructions and subsequent efforts were sufficient and effective to counteract whatever prejudice that may have arisen as a result of the witness’s statement.  In light of the foregoing, the Supreme Court affirmed the judgments of conviction. 

Michael Accetta v. Doris Provencal; Michael Norato v. Doris Provencal, No. 08-31 (January 12, 2009)

Michael Accetta and Michael Norato (collectively the plaintiffs) were involved in a motor vehicle accident with Doris Provencal (the defendant).  At trial, the defendant admitted that she was liable, but contested whether her negligence was the proximate cause of the plaintiffs’ injuries and disputed the amount of damages the plaintiffs suffered, if any.  When the jury opted not to award any damages to the plaintiffs, the plaintiffs appealed, contending that the trial justice erred in admitting into evidence photographs of the vehicles that depicted little, if any, damage because they lacked relevance and because they should not have been admitted absent accompanying expert testimony.  The plaintiffs further maintained that the trial justice erred in denying the plaintiffs’ motion for a new trial.

On appeal, the Supreme Court affirmed the judgment of the Superior Court, upholding the trial justice’s rulings.  The Court explained that the photographs of the vehicles indeed were relevant when determining the force of the collision’s impact.  Furthermore, the Court accepted the trial justice’s conclusion that these photographs " were part of the story" and that they " complemented and supplemented the testimony."   In response to the plaintiffs’ contention that these photographs should not have been admitted into evidence absent expert testimony, the Court referred to its recent decision in Boscia v. Sharples, 860 A.2d 674, 678 (R.I. 2004), in which the Court had explained that expert testimony was not necessary to introduce into evidence photographs of vehicles damaged in a collision to prove causation of passengers’ injuries.

Finally, with respect to the plaintiffs’ motion for a new trial, the Court held that the trial justice did not abuse her discretion in denying the plaintiffs’ motion: she conducted the appropriate analysis of the evidence and articulated an adequate rationale for denying the motion. 

Roy C. McDonough v. Kelly M. McDonough, No. 07-262 (January 12, 2009)

The plaintiff, Roy McDonough, appealed from a Family Court order granting the request of the defendant, Kelly McDonough, to relocate the parties’ two minor children to Indiana after their divorce.  In addition, the plaintiff contended that the Family Court exceeded the scope of its authority by granting interim relief allowing the defendant to relocate the children while this appeal was pending. 

The Court affirmed the judgment of the Family Court, recognizing that the Court will not disturb findings of fact made by the Family Court on the issue of custody and the best interests of the child unless the trial justice abused her discretion in making a particular award.  The Court held that there was substantial evidence to support the Family Court’s determination that relocation from Rhode Island to Indiana was in the best interests of the children under the factors enumerated in Dupré v. Dupré, 857 A.2d 242 (R.I. 2004).  Specifically, the Court relied on findings that the children had been exposed to dysfunctional behavior in Rhode Island, largely because of the plaintiff’s alcoholism and temper, that the presence of the defendant’s parents in Indiana offered the children more structure and stability, and that there were better housing and employment opportunities in Indiana.

Additionally, the Court held that the Family Court did not exceed its authority in granting interim relief that allowed the defendant’s request to relocate with the children while the plaintiff’s appeal was pending.  Although Rule 62 of the

Family Court Rules of Procedure for Domestic Relations provides for an automatic stay of proceedings during an appeal, the Court reiterated that Article I, Rule 7 of the Supreme Court Rules of Appellate Procedure is one of various exceptions to the stay.  The Court held that Rule 7 grants the Family Court the discretionary authority to issue those orders necessary for the protection of the rights of the parties in a case pending appeal, including a suspension of the automatic stay in child relocation cases.  The Court explained that to hold otherwise might frustrate the paramount concern of the Court in child custody cases — the best interests of the child.

Cathay Cathay, Inc., et al v. Vindalu, LLC d/b/a Gourmet India et al, No. 07-183 (January 9, 2009)

This case came before the Supreme Court for oral argument based on an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. The plaintiffs, Cathay Cathay, Inc., and Surf & Turf Grille, Inc. (plaintiffs), appealed from a judgment on partial findings entered in favor of the defendant Vindalu, LLC d/b/a Gourmet India (Gourmet India).

The plaintiffs contended on appeal that the trial justice erred in entering judgment in favor of Gourmet India on their third-party contractual claims because the trial justice considered the intention of the parties when Gourmet India’s lease unambiguously prohibited it from selling any form of white rice.  The plaintiffs also argued that the trial justice did not adequately address their allegation of intentional interference with contractual relations in his findings and that he failed to provide adequate notice that their intentional-interference claim would be included in the consolidated trial on the merits. 

The Court affirmed the judgment of the trial justice on the third-party beneficiary claims, though on different grounds, concluding that Gourmet India’s lease unambiguously granted it the right to sell basmati rice. The Court, however, held that the trial justice made insufficient factual findings to support his judgment for Gourmet India on the plaintiffs’ intentional-interference claim.

Accordingly, the Court vacated the judgment and remanded the record to the Superior Court with instructions to enter a new judgment in favor of Gourmet India on the plaintiffs’ contractual claims for injunctive relief and damages and further instructed the Superior Court to conduct a new trial on the plaintiffs’ claims of tortious interference by Gourmet India.

Edward F. Grady, III v. The Narragansett Electric Company d/b/a National Grid, No. 07-329 (January 9, 2009)

The plaintiff, Edward F. Grady, III, appealed from a Superior Court judgment in favor of the defendant, The Narragansett Electric Company, with respect to a declaratory judgment action concerning the company’s claimed easement over a portion of the plaintiff’s North Kingstown property.  The trial justice denied the plaintiff’s request for declaratory relief and determined that the plaintiff’s development plans for his property would unreasonably interfere with the defendant’s easement rights. 

The easement over the plaintiff’s land originated as a corridor used by Sea View Railroad, a trolley railroad which many years ago ran between the town of East Greenwich and the village of Wakefield in South Kingstown.  A portion of this sixty-six-foot wide easement is on the plaintiff’s property.  At the time of the Railroad’s dissolution, an easement was granted to Narragansett Electric Lighting Company, the predecessor in interest of the defendant, The Narragansett Electric Company.  Pursuant to the easement, Narragansett Electric Lighting Company and its successors and assigns were granted the right to erect, maintain, and operate single or double lines of poles, towers, or both and also the right to install underground conduits within the easement.  This easement was assigned to the defendant, Narragansett Electric when all of the property interests of Narragansett Electric Lighting Company were conveyed pursuant to an amendment to its legislative charter.

On appeal, the plaintiff argued that the trial justice erred as a matter of law in determining that the easement was assignable by Narragansett Electric Lighting Company to the defendant.  Further, the plaintiff argued that the trial justice committed clear error when he (1) found that the plaintiff had actual notice of the assignment despite the fact that the document reflecting the assignment from Narragansett Electric Lighting Company to the defendant incorrectly listed the page number in the land evidence records where the easement could be located; (2) found that the defendant’s use of the easement was not limited to the currently installed single electrical line and utility pole; (3) found that the defendant had not abandoned the easement; and (4) found that the plaintiff’s proposed car wash would unreasonably interfere with Narragansett Electric’s easement rights. 

The Supreme Court determined that the easement was assignable because the express language of the grant permitted Narragansett Electric Company to assign its rights.  Further, the Supreme Court held that the plaintiff had actual notice of the easement on the property prior to purchasing the land and, therefore, was subject to the easement despite the one page recording error in the assignment.  The Supreme Court also held that, because of the express language of the easement, Narragansett Electric was not limited to its current use of the easement and that its easement rights extended over the entire easement area.  Additionally, the Supreme Court held that the trial justice did not commit clear error in finding that there was insufficient evidence to support the plaintiff’s argument that Narragansett Electric had abandoned its easement rights.  Finally, the Supreme Court held that the plaintiff’s proposed car wash would unreasonably interfere with Narragansett Electric’s easement rights on the property.     

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

New England Stone, LLC v. Donald C. Conte, et al, No. 08-46 (January 8, 2009)

This case came before the Supreme Court on October 28, 2008, on appeal by the defendant, Donald C. Conte (Conte or defendant), from a Superior Court order granting injunctive relief to the plaintiff, New England Stone, LLC (NES or plaintiff).

The plaintiff is a Delaware corporation located in Rhode Island that provides granite products and related services to customers across the United States, and the defendant was its chief operating officer.  In 2005, the parties entered into an employment agreement that specified that Conte was to report exclusively to the president of NES, Craig Reynolds (Reynolds).  The agreement also provided that NES could terminate Conte only for cause, which was defined as, inter alia, " Conte’s failure to follow any directive of the [p]resident with regard to the conduct of the [c]ompany’s business."   The agreement further provided that cause " shall be determined by the [c]ompany in good faith."   If Conte was terminated for cause, the contract prohibited him from: (1) competing with NES in and around the New England area for two years; (2) soliciting NES customers for two years; and (3) disseminating confidential information for five years.   

During the course of the employment relationship between the parties, Reynolds had instructed NES employees that all future transactions with Stony Creek Quarry Corporation (Stony Creek) must be for cash on delivery only.  Nevertheless, Conte ordered a subordinate to release materials to Stony Creek without payment.  Consequently, Reynolds fired Conte during a meeting held the following week. 

Shortly after his termination, Conte acquired ownership in AC Stone, LLC (AC Stone), a business entity that competed with NES.  In response, NES sought a preliminary injunction prohibiting Conte and AC Stone from competing with the company and soliciting its customers for two years.  The hearing justice granted the plaintiff’s request for injunctive relief, and the defendant appealed.

Before the Supreme Court, the defendant argued that because Conte could be terminated only for cause, NES was required to conduct an adequate investigation prior to termination and provide the defendant with notice of the alleged misconduct and an opportunity to be heard.  The defendant requested that the Supreme Court adopt an objective good-faith standard that is used in other jurisdictions in wrongful termination suits. 

The Supreme Court declined to adopt the standard proposed by the defendant, noting that it would not read such implied terms into the employment agreement.  The Supreme Court further held that the hearing justice’s finding that NES established cause for termination in good faith, in accordance with the employment agreement, was proper.  Accordingly, the Supreme Court affirmed the Superior Court order granting the preliminary injunction.

State v. James Oliveira, No. 07-0030 (December 19, 2008)

The defendant, James Oliveira, convicted by jury of first-degree child molestation, appealed from the judgment on three grounds.  He contended (1) that the Superior Court erred by allowing into evidence a statement the defendant made in jail to a child protective investigator in violation of his right against self-incrimination and right to counsel, (2) that the Superior Court erred by not excluding at trial hearsay statements that the alleged victim made to his mother, and (3) that he was denied the right to a speedy trial.

The Court vacated the judgment of conviction, and remanded the case for the Superior Court for a new trial, on the grounds that a jailhouse interview by a child protective investigator (CPI) concerning an allegation of child molestation implicates the right to counsel of a defendant who has been charged with committing the same act of molestation.  Therefore, the Court held that statements the defendant made during the interview were improperly admitted into evidence at his trial.  The Court reasoned that the defendant’s right to counsel had attached no later than his initial presentation before the District Court, when he was referred to the Public Defender’s Office and held without bail.  The CPI subsequently interviewed the defendant in jail, without notifying his attorney.  Although the CPI did not interview defendant at the direction of the police or prosecution, the Court found persuasive that she had met and exchanged information with them on the previous day, that she was required to work cooperatively with law enforcement personnel and forward any information she obtained to them, and that one of her admitted purposes was to add to the evidence in the case.  

The Court proceeded to hold that, although harmless-error analysis applies to erroneously admitted confessions, the introduction of the defendant’s statements to the CPI in this case was not harmless, as the statements were much more graphic and inflammatory than any other evidence offered at trial. As the conviction was vacated because defendant’s right to counsel had been violated, the Court declined to address any alleged violation of the right against self-incrimination.

To provide guidance to the trial court at the defendant’s new trial, the Court went on to hold that the Superior Court did not err by admitting hearsay statements the alleged victim made to his mother.  The Court reasoned that the evidence at trial reasonably could support a conclusion that the alleged victim still was laboring under the stress of nervous excitement engendered by the alleged abuse when he spoke to his mother, and thus it was not an abuse of discretion for the trial justice to find that his responses qualified under the excited-utterance exception to the exclusionary hearsay rule. 

Finally, the Court decided, after balancing the Barker factors, that the defendant’s right to a speedy trial had not been violated.  The Court concluded that, although the reasons for the twenty-five-month delay between the filing of a criminal complaint and the commencement of trial weighed against the state, the defendant’s failure to explicitly assert his right to a speedy trial until the eve of trial and the lack of discernible prejudice to the defendant in this case did not amount to the denial of a speedy trial.

Alpha Omega Construction, Inc. v. Proprietors of Swan Point Cemetery, No. 07-339

This case came before the Supreme Court on October 31, 2008, on appeal by Alpha Omega Construction, Inc. (Alpha), from a Superior Court order dismissing Alpha’s complaint to enforce a mechanic’s lien.  Alpha filed the mechanic’s lien against Swan Point Cemetery and alleged that it performed masonry work as a sub-subcontractor and did not receive payment from the subcontractor.  The trial justice dismissed the mechanic’s lien with prejudice after a hearing held under G.L. 1956 § 34-28-17.1, which grants an owner or contractor an expedited show-cause hearing to determine whether there is a probability of judgment in favor of the party who filed the mechanic’s lien. 

On appeal, Alpha challenged the trial justice’s finding that Alpha did not perform work on the project in the capacity of a sub-subcontractor and that Alpha was not entitled to a mechanic’s lien against the property.  The Supreme Court held that the trial justice did not overlook or misconceive any material evidence with respect to his determination that Alpha failed to establish that it performed work as a sub-subcontractor.  Rather, the evidence demonstrated that those who said they worked on behalf of Alpha were employees of Greenwich, Inc. (Greenwich), a subcontractor on the project, which was paid in full by E.W. Burman, Inc., the project’s general contractor.  Accordingly, Alpha was not entitled to file a mechanic’s lien against the Swan Point property and was limited to possibly seeking redress from Greenwich.  For these reasons, the Supreme Court affirmed the judgment of the Superior Court.   

In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council) No. 07-370 (December 18, 2008)

At the request of the Honorable House of Representatives of the State of Rhode Island and Providence Plantations, four of the justices of the Supreme Court rendered an advisory opinion on pending legislation concerning the reenactment of the organic statute of the Coastal Resources Management Council (CRMC).  The pending legislation would allow sitting legislators to serve on the CRMC, as well as allow members of the General Assembly to appoint other public members to the CRMC.  The request made by the House of Representatives asked:

" (1)  Would the proposed act, if duly enacted into law, which permits members of the General Assembly to sit as members of the Coastal Resources Management Council (CRMC) as set forth in R.I.G.L. 46-23-2(a)(1), violate the constitutional amendment to Article IX, Section 5, so called Separation of Powers Amendment, passed by the electorate on November 2, 2004, which calls into question the constitutionality of the appointing authority?

" (2)  Would the proposed act, if duly enacted into law, permit the Speaker of the House to appoint public members to the Coastal Resources Management Council (CRMC) as set forth in R.I.G.L. 46-23-2(a)(1)?

" (3)  Is the Constitutional Amendment to Article ix, section 5, so-called Separation of Powers Amendment, passed by the electorate on November 2, 2004, which calls into question the constitutionality of the appointing authority, self executing or does it require legislative enactment for its implementation?

" (4) Is the Coastal Resources Management Council (CRMC) by its nature, purpose, and operation a legislative function * * *[?]"

The four justices answered question (1) and the first clause of question (3) in the affirmative and questions (2) and (4) in the negative.  The four justices noted that the so-called separation of powers amendments adopted by the Rhode Island electorate in 2004 constituted an important recalibration of the system of checks and balances within our state government.  The justices opined that two of the separation of powers amendments, article 3, section 6 and article 9, section 5 of the Rhode Island Constitution, are both self-executing.  As a result, the power to appoint members of administrative bodies exercising executive power is now vested in the Governor subject to the advice and consent of the Senate.  Furthermore, sitting legislators are barred from serving on administrative bodies that exercise executive power under the plain language of article 3, section 6.  Finally, the four justices concluded that the CRMC exercises executive power in addition to quasi-legislative and quasi-judicial power. 

The  Rhode Island Republican Party et al v. John A. Daluz, in his official capacity as Chair of the State Board of Elections et al, No. 07-220 (December 18, 2008)

This case came before the Supreme Court on appeal by the State Board of Elections (board) from a Superior Court order that permanently enjoined the board from investigating alleged violations of Rhode Island’s campaign finance law by the Rhode Island Republican Party (Republican Party) and the Donald L. Carcieri Campaign for Governor (campaign and collectively plaintiffs) with regard to a television advertisement that was broadcast in October 2002.  The plaintiffs applied to the Superior Court for declaratory and injunctive relief to prevent an investigation by the board into whether there was a coordinated effort to produce the advertisement by the plaintiffs in this case.  The Superior Court determined that the proposed investigation would violate the plaintiffs’ due-process rights and permanently enjoined the board from proceeding.

On appeal, the board argued that it was exempt from the Administrative Procedures Act (APA).  The board also argued that the trial justice erred in finding that the board was required to promulgate rules governing its procedures for investigations and adjudications and that its failure to adopt such rules violated the plaintiffs’ due- process rights.  Finally, the board assigned error to the holding that the due-process rights of the Republican Party and the campaign would be violated if the investigation proceeded because there was insufficient notice of the requirements of the law.   

The Supreme Court held that the Superior Court was vested with jurisdiction to consider the dispute, despite the fact that the board is textually exempt from the APA.  However, the Supreme Court held that the trial justice clearly was wrong to find that the board was required to adopt investigatory rules before conducting an investigation and that the board failed to give notice of the substantive requirements of law.  Nevertheless, because of the age of the dispute and the de minimis remedy that survived the passage of time, the Supreme Court dismissed the case.

Ann M. Castelli et al. v. Donald L. Carcieri et al. No. 2008-196-Appeal (December 17, 2008)

The Supreme Court heard the appeal of five sheriffs, Chief Deputy Sheriff James M. Grant, Chief Deputy Sheriff Daniel E. Silva, Chief Deputy Sheriff Jo-Ann J. Macari, Sheriff Joseph K. Ford, and Sheriff Ann M. Castelli (collectively plaintiffs), who contended that their layoffs (or in Castelli’s case her potential layoff) were improper. The director of the Department of Administration (DOA) sent layoff notices to the plaintiffs after Governor Donald L. Carcieri had instructed the heads of departments to eliminate employees in the face of a severe budget deficit. The trial justice ruled in favor of the governor and the director of the DOA (collectively defendants). She concluded that the governor had the inherent authority to place the plaintiffs on layoff status and, further, that the state’s economic distress constituted just cause under the controlling statute, G.L. 1956 § 42-29-1. The Supreme Court reversed the judgment of the Superior Court.
Upon reviewing § 42-29-1(a), which provides that " [t]he director of the department of administration shall also appoint to each of the counties with the consent of the governor the sheriffs and the chief deputy sheriffs to ten (10) year terms," the Supreme Court ruled that, based on the plain language of the statute, the plaintiffs were entitled to employment for the duration of their ten-year term. Concluding that there was no ambiguity in the use of the phrase " ten-year term," the Court reasoned that to probe further into the meaning of the phrase " ten-year term" would be to violate well-established tenets of statutory construction.
The Court further articulated that it was not necessary to determine whether fiscal exigency constituted just cause in the context of § 42-29-1(b). It explained that, although a fixed term does not create a contractual relationship between the plaintiffs and the state it clearly provides the plaintiffs with an expectation of continued employment during the period of the fixed term, an expectation which could not be defeated by the unilateral action of a governor seeking to impose a layoff for economic reasons. The Court held, therefore, that in the context of removal for just cause of people who hold office pursuant to § 42-29-1, economic distress cannot be considered because there is a fixed statutory term of employment. Accordingly, the Court concluded that just cause, as used in that statute, must be understood as relating to personal deficiencies in the officeholder, such as shortcomings in job performance, inappropriate activities, conduct worthy of discipline, and other similar usually punishable activities on the part of the employee as an individual.
 

City of Pawtucket v. Michael Pimental, No. 07-106 (December 15, 2008)

We issued a writ of certiorari to review a decision by the Appellate Division of the Workers’ Compensation Court (Appellate Division) upholding the 30 percent reduction of Michael Pimental’s workers’ compensation benefits under G.L. 1956 § 28‑33‑18(b).

Mr. Pimental contended that, because he was a candidate for further surgery, he did not meet the definition of having reached " maximum medical improvement," and also that his due- process rights were violated when the trial judge reduced his benefits in a pretrial order before he was afforded a full hearing on the merits of the initial MMI determination.

The Court affirmed the judgment of the Appellate Division, holding that an employee’s refusal to have the recommended surgery, when his recovery had reached a plateau in the absence of undergoing the procedure, may not be used to forestall a determination that the employee has reached " maximum medical improvement." The Court reasoned that the statutory definition of " maximum medical improvement" allowed the determination to be made when an employee’s refusal to undergo surgery ensured that, in all reasonable likelihood, his condition would not improve. It further noted that Mr. Pimental’s interpretation was inconsistent with the General Assembly’s intent to deter waste and abuse and would frustrate the purpose of the Workers’ Compensation Act.   Furthermore, the Court rejected Mr. Pimental’s due-process argument, holding that he was not entitled to a pre-reduction hearing under the three-part test established by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976).

Accordingly, the Court affirmed the final decree of the Appellate Division.

Public Service Employees’ Union, Local 1033, LIUNA, AFL-CIO et al.v. The City of Cranston et al. No: 2003-574-Appeal.(December 8, 2008)

This case came before the Supreme Court on September 22, 2008, on an appeal by the defendant, the City of Cranston (city), from a Superior Court order entered in favor of the plaintiff, Public Service Employees’ Local Union 1033, LIIUNA, AFL-CIO (union or Local 1033), permanently enjoining the city from imposing layoffs of crossing guards until the issuance of a final and binding arbitration award.
The dispute stemmed from a collective-bargaining agreement (CBA) between the parties, effective July 1, 2002, through June 30, 2005. Under the terms of this contract, the city agreed " not to layoff or furlough any bargaining unit member and * * * to maintain not less than thirty-nine (39) crossing posts staffed by [thirty-nine] bargaining unit employees." Nonetheless, on July 22, 2003, a year into the CBA, the city laid off the crossing guards.
In response, Local 1033 filed a grievance against the city alleging that the layoffs violated the CBA. The city denied the grievance and the dispute proceeded to arbitration. Additionally, the union filed a verified complaint in Superior Court against the city, Mayor Laffey, and members of the Cranston City Council, seeking injunctive relief against the layoffs and an order directing the city to comply with the provisions of the CBA.
The hearing justice granted a permanent injunction in favor of Local 1033, enjoining the city from imposing layoffs of the crossing guards " until such time as an [a]rbitrator issues a final and binding award regarding the underlying collective bargaining controversy." The city filed a timely notice of appeal. In the meantime, the grievance proceeded to arbitration. The arbitrator issued an award in favor of Local 1033, concluding that the city had violated the CBA when it attempted to lay off the crossing guards.
The Supreme Court held that the case was moot because the injunction had expired in accordance with its own terms when the arbitration award was issued. For these reasons, the Supreme Court denied and dismissed the appeal.

State v. Sengly Huy, No 2005-307-C.A. (December 8, 2008)

In February 2004, Providence police patrolman Angelo A’Vant (A’Vant) allegedly received information from a known, reliable confidential informant that Sengly Huy (Huy or defendant) carried a large caliber pistol with an attached laser site. Acting upon this information, A’Vant, with the assistance of other officers, stopped Huy on Hartford Avenue in Providence. With their guns drawn, the officers approached the vehicle, removed the three occupants, and placed Huy in the back seat of a marked police cruiser. A’Vant immediately searched the trunk of Huy’s vehicle and discovered the incriminating pistol, which had an obliterated serial number. Huy subsequently was driven to the police station, where he waived his rights and, in a statement to the police, admitted possession of the firearm.
Huy was charged with carrying a pistol without a license in violation of G.L. 1956 § 11-47-8(a), and with altering the marks of identification on a firearm under § 11-47-24. The defendant filed several pretrial motions seeking to suppress both the firearm and his statements to the police. He alleged (1) that the firearm was seized in violation of the Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution and (2) that his subsequent statement to the police was involuntary and was obtained as the result of an unlawful arrest. These motions were denied by the trial justice, who found that the informant’s tip justified both the arrest and subsequent search of defendant’s vehicle.
After the defendant’s pretrial motions failed, the defendant waived his right to a jury trial and the parties filed an agreed stipulation of facts. Based on these stipulated facts, the trial justice found Huy guilty beyond a reasonable doubt of both counts in the criminal information. The defendant appealed his convictions.
On appeal, Huy contended that the officers did not have probable cause to search the trunk of his vehicle and did so in violation of his constitutional right against unreasonable searches and seizures. Huy further asserted that his later confession was the fruit of the illegal search and arrest. However, the Supreme Court declined to reach the merits of this case because the parties entered into an agreed stipulation of facts.
The Supreme Court held that the defendant failed to preserve those issues for appeal because neither the weapon nor the confession was introduced at trial. Accordingly, the Supreme Court denied and dismissed the appeal and affirmed the judgment of conviction.

City of Cranston v. Rhode Island Laborers’ District Council, Local 1033 et al.  No: 2005-328-Appeal (December 8, 2008)

Rhode Island Laborers’ District Council, on behalf of Public Service Employees’ Local Union 1033 (Local 1033), appealed from a Superior Court order in favor of the City of Cranston (city), which vacated an arbitration award. Local 1033 contended that the arbitrator’s decision was proper in finding that the city’s termination of thirty-nine crossing guards violated a provision in the parties’ collective-bargaining agreement. The city had agreed " not to layoff or furlough any bargaining unit member and further agree[d] to maintain not less than thirty-nine (39) crossing posts staffed by 39 bargaining unit employees" (no-restructuring clause). The no-restructuring clause was scheduled to " sunset" on June 30, 2005. One year after the parties agreed to the no-restructuring clause, the city failed to provide funding for the crossing guards and eliminated their positions. The motion justice’s decision to vacate the arbitration award occurred in January 2005, only a few months before to the end of the 2004-2005 school year. As such, the city allowed the crossing guards to continue in their employment until the end of the school year (June 2005), the same time the no-restructuring clause was scheduled to sunset.
On appeal, the Supreme Court determined that the appeal was moot. The Court explained that although a live case or controversy existed at the time of the motion justice’s decision, one very important event occurred while the appeal was pending that significantly affected how the Court dealt with the case: on June 30, 2005, more than three years before the Court heard the oral arguments, the no-restructuring clause in the parties’ collective-bargaining agreement expired. The Court concluded that the parties would not be affected by a decision about the validity vel non of the no-restructuring clause because the crossing guards remained employed by the city for as long as the city was required to retain them. Accordingly, the Court ruled that Local 1033 rightfully could not contend that its members suffered a loss as a result of the motion justice’s vacation of the arbitration award. These later-occurring events, namely the effect of the sunset provision in the no-restructuring clause, deprived the litigants of a continuing stake in the controversy and rendered the case moot. The Court therefore denied and dismissed the appeal, because the issue had become moot.
 

John J. Cullen v. Lincoln Town Council, et al, No. 08-14 (December 5, 2008)

This case came before the Supreme Court on October 31, 2008, on appeal by the plaintiff, John Cullen (Cullen or plaintiff), from a Superior Court judgment in favor of the defendant, the Lincoln Town Council (town council or defendant).  This conflict arose from the sale of a parcel of land in the Town of Lincoln (town) by the town council.  The plaintiff alleged that the town council violated the Rhode Island Open Meetings Act (act) when it held a duly-noticed public meeting, but failed to disclose all the appraisals for the property and failed to approve the party that ultimately purchased the parcel. 

The trial justice granted the defendant’s motion for summary judgment and found that even if the facts Cullen alleged were true, the conduct would not constitute a violation of the act.  Under the act, the town council was required to publish notice of its meetings, and the undisputed evidence was that the town did so. 

On appeal, the plaintiff argued that the Supreme Court should adopt a broad interpretation of the term " open meeting" that would require a public body to disclose all relevant information during its meetings.  Nevertheless, the Supreme Court held that the act was a notice statute and that the town council complied with its requirements.  The Supreme Court noted that, although the decision to sell the property for not less than $67,000, in light of a missing appraisal of $161,700, may reflect negligence, bad government, or worse, it did not violate the Open Meetings Act.  A citizen who disagreed with the decision made by the town council to sell the property or with the process by which that decision was reached, may have sought recourse at the next election and also may have asked the Attorney General to investigate the transaction.  It is not the function of the judicial branch to regulate the substantive decisions of a governing body based on a statute that is narrowly designed to ensure public notice of its meetings and nothing more.  Accordingly, the Supreme Court held that the conduct alleged by the plaintiff could not constitute a violation of the act and affirmed the judgment of the Superior Court. 

Jan C. Hagopian v. Erin L. Hagopian, No. 07-216 (December 5, 2008)

This contentious litigation began three years ago when the plaintiff, Jan C. Hagopian (Jan or plaintiff), and the defendant, Erin L. Hagopian (Erin or defendant), were divorced after fourteen years of marriage.  For the second time since then, the plaintiff asked the Supreme Court to vacate the trial justice’s order concerning when he shall begin paying to the defendant her portion of his unvested and noncontributory pension. 

The Supreme Court initially discussed the facts underlying this case in an order entered on January 25, 2007.  See Hagopian v. Hagopian, 916 A.2d 761, 761-62 (R.I. 2007) (mem.) (Hagopian I). In sum, the parties were divorced on the grounds of irreconcilable differences that caused the irremediable breakdown of the marriage.  One of several disputes surrounding the divorce was the distribution of Jan’s pension from the state police.  In deciding the equitable distribution of the marital estate, the trial justice found that, in accordance with the Supreme Court’s decision in Furia v. Furia, 638 A.2d 548 (R.I. 1994), Jan was required to distribute the value of Erin’s marital share of his pension benefits when he became eligible to retire, rather than when he actually retired.  On appeal, the Supreme Court held that a trial justice’s decision ordering the equitable distribution of the marital estate is an exercise of discretion that must be based upon the unique circumstances of the case.  The Supreme Court vacated that portion of the trial justice’s decision pending entry of final judgment and remanded the case to the Family Court " with directions to determine the appropriate method for distributing the plaintiff’s pension."

On remand, the trial justice reaffirmed her earlier ruling that Erin was to receive monthly payments representing the value of her marital portion of Jan’s pension starting on the date that Jan was eligible to retire,  and entitled Erin to receive the actual pension benefits only when Jan retired.  The trial justice noted that, in view of the totality of the circumstances, " the level of animus between [the] parties was palpable," such that " if either party were allowed to exert any control over the date of distribution of any of the marital assets, a grave injustice could occur."  

Jan appealed the trial justice’s decision, arguing that she once again failed to exercise her discretion in distributing his pension benefits.  Additionally, in the event that the Supreme Court concluded that the trial justice exercised her discretion, the plaintiff asserted that she abused it. 

The Supreme Court held that the trial justice adhered to the mandate it issued in Hagopian I, in which it ordered the trial justice to exercise her discretion based on the circumstances of the case.  The Supreme Court further held that the trial justice did not abuse her discretion and properly based her decision on the evidence.  Accordingly, the Supreme Court affirmed the order of the Family Court.

State v. Kenneth Wayne Pitts, No. 07-366 (December 3, 2008)

The defendant, Kenneth Wayne Pitts, appealed to the Supreme Court from a Superior Court adjudication of probation violation pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure.  The hearing justice found that the defendant violated the terms and conditions of his probation and sentenced him to serve five years of his previously suspended sentence for child molestation.  On appeal, the defendant contended that (1) the hearing justice abused his discretion and came to arbitrary and capricious conclusions when he found the state’s witnesses credible and (2) even if the Supreme Court agreed with the hearing justice’s finding that the defendant committed a sexual act in his van, this act did not amount to disorderly conduct or a violation of the terms and conditions of his probation.

The Supreme Court first determined that the hearing justice acted neither arbitrarily nor capriciously when he made credibility determinations with respect to the state’s witnesses.  The Court next held that irrespective of whether or not the defendant could be found guilty of disorderly conduct, there was sufficient evidence for the hearing justice to conclude that the defendant violated the terms and conditions of his probation by failing to keep the peace and remain on good behavior. 

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

State v. Clyde Gillespie, No. 06-337 (December 3, 2008)

The defendant, Clyde Gillespie, appealed from a judgment of conviction on one count of second-degree murder and one count of failing to report a death with the intention of concealing a crime.  On appeal, the defendant argued that the trial justice erred in instructing the jury that premeditation is not an element of second-degree murder.  The defendant also contended that there was insufficient evidence upon which to instruct the jury on second-degree murder.  He argued that because the cause of death was manual strangulation, which requires several minutes to accomplish, the only possible charge would have been first-degree murder.  Finally, the defendant alleged that the trial justice abused her discretion in excluding evidence of the prior conviction of one of the state’s witnesses. 

The Supreme Court affirmed the judgment of conviction.  The Court held that premeditation is not an element of second-degree murder.  The Court distinguished between premeditation, which is a required element of first-degree murder, and the momentary intent formed contemporaneous with a killing, which establishes a theory of second-degree murder.

The Court also held that the defendant’s conviction for second-degree murder was supported by the evidence.  The Court held that the fact that the cause of death was manual strangulation alone was insufficient to establish the premeditation required for first-degree murder.  Although the duration of the killing offered the defendant the opportunity to premeditate, the record lacked additional evidence to prove beyond a reasonable doubt that the defendant had acted with premeditation.

Finally, the Court held that the trial justice did not abuse her discretion in excluding the evidence of a witness’s prior conviction because she properly had evaluated the conviction under Rule 609 of the Rhode Island Rules of Evidence.

State v. Javier Merida, No. 06-317 (November 25. 2008)

The defendant, Javier Merida, appealed from a jury conviction on one count of second-degree child molestation, in violation of G.L. 1956 § 11-37-8.3, and two counts of first-degree child molestation, in violation of § 11-37-8.1.  On appeal, he argued that the trial justice (1) violated his confrontation rights when the trial court prevented him from cross-examining two important witnesses for the prosecution with respect to their motives, possible bias, and general credibility and (2) erred in allowing into evidence allegations concerning uncharged sexual misconduct by the defendant against the complaining witness and the defendant’s niece.  The Supreme Court affirmed the defendant’s judgment of conviction.

The Court rejected defendant’s argument that his confrontation rights were violated when the trial court limited the scope of his cross-examination of two prosecution witnesses because the defendant failed to properly preserve the argument for appeal.  The defendant further argued that the trial justice erred in limiting the scope of his cross-examination of the defendant’s niece, one of the witnesses for the prosecution, with respect to information indicating that she had stolen money from her aunt; the trial justice permitted that witness to testify only as to her own involvement in the theft.  The Supreme Court found that the trial justice did not abuse her discretion in limiting the scope of the cross-examination of this witness, whose credibility the defendant sought to impeach. 

The defendant also argued that the trial justice abused her discretion when she permitted the prosecution to offer the testimony of the above-referenced niece of the defendant, who alleged that the defendant had engaged in uncharged sexual misconduct against her.  Additionally the defendant argued that the trial justice abused her discretion by allowing the defendant’s niece to testify as the first witness at trial, even before the complaining witness testified.  The record being devoid of any indication that the defendant objected to the order of the prosecution’s witnesses at trial, the Court found that this issue was not properly preserved for appellate review.  Further, since the allegations of prior sexual misconduct were sufficiently similar and necessary to explain why the complaining witness disclosed the abuse allegations when she did, the Court found that the trial justice did not abuse her discretion in permitting the defendant’s niece to testify concerning the defendant’s uncharged sexual misconduct. 

Finally, the defendant argued that the trial justice abused her discretion when she permitted the complaining witness (the defendant’s granddaughter) to testify about an incident of uncharged sexual misconduct that the defendant allegedly committed against her.  The Supreme Court noted that the defendant did not raise an objection to the introduction of this evidence at trial, and it therefore held that he did not properly preserve this issue for appellate review.  In any event, since in both her oral instructions prior to deliberations and in the written instructions with which the jury was provided, the trial justice gave a limiting instruction informing the jury how it should deal with this testimony, the Court stated that the trial justice did not abuse her discretion in admitting this testimony pursuant to one of the recognized exceptions to Rule 404(b) of the Rhode Island Rules of Evidence.     

Pleasant Management, LLC v. Maria Carrasco, et al, No. 06-0301 (November 24, 2008)                                                                 

This case came before the Supreme Court on September 22, 2008, on appeal by the plaintiff, Pleasant Management, LLC, from a judgment granting a motion to vacate a default decree entered against Maria Carrasco and her husband, Jose Ortega (collectively the defendants), that foreclosed the defendants’ right to redeem their property that the plaintiff purchased at a tax sale. 

In Pleasant Management, LLC, v. Carrasco, 870 A.2d 443 (R.I. 2005) (Pleasant Management I) the Supreme Court held that the plaintiff’s attorney violated the anti-contact rule of Article V, Rule 4.2 of the Supreme Court Rules of Professional Conduct when he had a substantive phone conversation with Carrasco that preceded an entry of default in the Superior Court against the defendants.  Since the record contained few details of the substance of the phone communications between the plaintiff’s attorney and Carrasco, the Court remanded the case to the Superior Court to determine whether the plaintiff’s counsel’s violation of the anti-contact rule led to excusable neglect on the defendants’ part under G.L. 1956 § 9-21-2 sufficient to vacate the default decree. 

On remand, the hearing justice ruled that the plaintiff’s attorney did not violate the anti-contact rule, but that because of the " ineffectiveness" of the defendants’ own counsel, the default nonetheless still should be vacated and the defendants should be allowed to redeem their property.  The hearing justice set a redemption fee of $4,371 and awarded the plaintiff $1,000 in attorneys’ fees.  The plaintiff conveyed the property to the defendants by quitclaim deed after receiving payment from the defendants.  A judgment then was entered, from which the plaintiff timely appealed.   

On appeal, the plaintiff contended that the Superior Court (1) exceeded the scope of the Supreme Court’s mandate (2) improperly relieved the defendants of their own attorney’s negligence (3) improperly vacated the default decree on equitable principles and (4) erred in calculating the redemption fee.

The Supreme Court held that the hearing justice exceeded the scope of the mandate in Pleasant Management I and incorrectly applied the concept of excusable neglect.  However, affirming on different grounds, the Court held that the confusion that resulted from the plaintiff’s attorney’s violation of the anti-contact rule justified a conclusion that that there was excusable neglect on the defendants’ part sufficient to vacate the default decree.  The Court then found that the hearing justice did not abuse his discretion when he allowed the defendants to redeem the property.  Lastly, the Court concluded that the hearing justice did not err or abuse his discretion when he set the redemption amount. 

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

Joseph T. Murphy et al v. The Zoning Board of Review of the Town of South Kingstown et al, No. 07-51 (November 18, 2008)

The petitioners, Edward and Teresa Timpson, sought review of a Superior Court judgment that reversed a decision of the Zoning Board of Review of the Town of South Kingstown.  The Superior Court found that a particular lot in South Kingstown owned by the Timpsons is an illegal nonconforming lot under the zoning ordinance and subdivision regulations of the town. 

The Timpsons’ lot was created in 1992 by the subdivision of a larger lot into two smaller lots and the recording of the two new deeds.  The lot is zoned R-80 under the South Kingstown zoning ordinance, meaning that it must contain at least 80,000 square feet.  The Timpsons’ lot contains more than 80,000 square feet. 

The Timpsons purchased the lot in June 2004.  In October 2004, their neighbors, Joseph T. and Jacqueline A. Murphy, asserted to the town building official that the Timpsons’ lot did not meet the dimensional requirements for development.  The building official researched the applicable ordinances and statutes and concluded that the Timpsons’ lot was an illegal nonconforming lot and was not buildable.  He relied on the South Kingstown Planning Board’s subdivision regulations, which require the exclusion of wetlands from any calculation of land suitable for development.  A substantial portion of the Timpsons’ lot contained wetlands, and the building official estimated that only 30,000-40,000 square feet were dry and buildable.  He informed the Timpsons of his conclusions by letter.  The Timpsons appealed his decision to the Zoning Board of Review of the Town of South Kingstown (board).  The board heard testimony from the building official and an environmental scientist hired by the Murphys.  The building official explained his conclusions to the board.  The expert discussed an investigation that he had conducted, in which he relied upon a number of government studies as well as his own recent visual inspection of the Timpsons’ lot.  It was his opinion that most of the Timpsons’ lot had been covered with wetlands since 1992. 

Upon hearing evidence and the arguments of counsel for both the Timpsons and the Murphys, the board opined that lot No. 64 was a legal nonconforming lot of record because, at the time of lot No. 64’s creation in 1992, the zoning ordinance did not expressly state that a lot had to conform to the subdivision regulations.  The board noted that the lot met the literal requirements of the zoning ordinance by virtue of the fact that it contained more than 80,000 square feet.  The board further indicated that it could not conclusively determine whether or not lot No. 64 had contained 80,000 square feet of land suitable for development in 1992.

The Murphys appealed the board’s decision to the Superior Court.  The Superior Court held that the board should have considered the requirements of the subdivision regulations in reaching its decision.  Applying the subdivision regulations, the Superior Court concluded that the Timpsons’ lot was illegal and nonconforming.  The Superior Court also held that the board should not have disregarded the testimony of the Murphys’ expert witness.  The Timpsons then filed a petition for writ of certiorari to the Supreme Court. 

The Supreme Court held that the Superior Court properly considered the requirements of the South Kingstown subdivision regulations in determining whether or not the Timpsons’ lot was buildable.  The Supreme Court also agreed that it was an abuse of the board’s discretion to disregard expert testimony that was competent, uncontradicted, and unimpeached.  Finally, the Supreme Court held that no exceptions to the zoning ordinance would be applicable so as to allow for residential development on the Timpsons’ lot. 

The judgment of the Superior Court was therefore affirmed. 

State v. Michael Mendoza, No. 05-308 (November 5, 2008)

 This case came before the Supreme Court on September 22, 2008, on appeal by the defendant, Michael Mendoza, of the denial of his motion to reduce sentence to a term of years pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure.  The defendant was convicted of second-degree murder, and the trial justice sentenced him to life in prison.  The Supreme Court affirmed his conviction.  State v. Mendoza, 709 A.2d 1030 (R.I. 1998).  After his direct appeal was denied, he filed a motion in the Superior Court to reduce sentence, but that motion was denied by the trial justice. 

On appeal, the defendant argued that his sentence was (1) without justification and (2) grossly disparate from other sentences for similar offenses.  He also argued that the trial justice erred because he failed to consider the nature and circumstances of the offense and the quality and sufficiency of evidence at his underlying trial.

The Supreme Court held that the defendant failed to meet his burden of showing that the sentence should be reduced or that the trial justice abused his discretion when he denied the motion.  A motion to reduce sentence is addressed to the sound discretion of the trial justice.  The Court concluded that the trial justice had sufficient justification for the sentence of life imprisonment.  Because the defendant failed to meet his burden on the " justification" issue, it was not necessary for the Court to reach the claim of disparity.

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

State of Rhode Island v. Roger Forand, No. 07-0109 (October 23, 2008)

This case came before the Supreme Court on the appeal of the defendant, Roger Forand, who appealed from a judgment of conviction entered in the Superior Court after a jury-waived trial on one count of felony assault and one count of interference with the use of a telephone in an emergency.  On appeal, the defendant argued that the trial justice clearly erred when he determined that an approximately fourteen-pound, hard-plastic boom box thrown at the head of an eight-year-old girl from about six feet away could be considered a dangerous weapon.  The defendant also contended that, when considering his motion to dismiss at the close of the prosecution’s case, the trial justice erroneously applied standards that govern analysis of a motion for judgment of acquittal rather than the standards that are pertinent to a motion to dismiss.  Finally, the defendant argued that there was insufficient evidence produced at trial to prove that he was guilty of obstructing or damaging a telephone needed for an emergency call. 

The Supreme Court affirmed the judgments of conviction.  The Court held that an object may be considered a dangerous weapon when it is employed in such a manner that serious bodily harm could have resulted, even if the object cannot be properly considered inherently dangerous.  Furthermore, the Court stated that the fact that the boom box was thrown at the victim would not cause a change in its classification as a dangerous weapon under the circumstances. 

The defendant conceded at oral argument that the trial justice’s application of the incorrect standard for a motion to dismiss did not constitute a viable ground for appeal.  The Supreme Court, therefore, declined to address the merits of that issue.  However, the Court did take the opportunity to clarify the standards that govern analysis of a motion for judgment of acquittal as opposed to the standards that are pertinent to a motion to dismiss.

The Supreme Court further held that the defendant had waived his third ground for appeal (lack of evidence to prove obstruction of the telephone needed in an emergency situation), and it declined to discuss the merits of that contention.

Joseph Sansone v. Morton Machine Works, Inc., et al; Morton Machine Works, Inc. v. Bristol Yarn Corp., et al, No. 05-72 (October 21, 2008)

Morton Machine Works, Inc. (Morton), appeals from two orders of the Superior Court: (1) the denial of its motion for summary judgment on its third-party contractual indemnification claim, and the granting of the third-party defendants, Robin Rug, Inc. (Robin), and Bristol Yarn Corp.’s (Bristol Yarn), cross-motion for the same; and (2) the denial of Morton’s motion to vacate the final judgment entered based on Rule 60(b) of the Superior Court Rules of Civil Procedure.

The underlying action involves the personal injury of Joseph Sansone (plaintiff), who, when under the employ of Robin, suffered injury while operating a raw stock dyeing machine.  The plaintiff brought suit against the machine’s manufacturer, Morton, alleging negligence, breach of warranty, and strict liability.  Morton thereafter filed a third-party complaint against Robin and Bristol Yarn, seeking contribution and contractual indemnification.  The Superior Court, under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, dismissed Morton’s contribution claim (Morton having conceded it should be dismissed) while refusing to dismiss the contractual indemnification claim.

The third-party defendants thereafter moved for summary judgment on the contractual indemnification count, with Morton objecting and cross-moving.  The motion justice granted the third-party defendants’ motion and denied Morton’s, holding that the indemnification provision covered only the equipment purchased in connection with that provision—not the entire machine—and that there was no dispute of material fact that the plaintiff was not injured by that piece of equipment.  Final judgment was entered based on Rule 54(b) of the Superior Court Rules of Civil Procedure.  Morton appealed.

While an appeal was pending in the Supreme Court, Morton moved to vacate the entry of final judgment based on Rule 60(b) and to reinstate the contribution claim against Bristol Yarn.  Morton argued that it had conceded dismissal of the contribution claim against Bristol Yarn because it had relied upon the inaccuracies about that company’s relationship to the instant dispute presented in the third-party defendants’ memorandum of law to support their Rule 12(b)(6) motion.  However, Morton subsequently had learned through the third-party defendants’ responses to interrogatories, filed after the Rule 12(b)(6) order, but nearly nineteen months before Morton filed its motion to vacate, that Bristol Yarn was, in fact, the owner of the dyeing machine.  The Supreme Court remanded the case for the specific purpose of a hearing on the motion to vacate.

Morton’s motion to vacate was denied on the grounds that it was not filed within a reasonable time.  Morton appealed.

The Supreme Court held that the Superior Court properly granted summary judgment on the contractual indemnification claim because the indemnification provision, which must be construed strictly against the party claiming a right of indemnification, covered only one component of the entire machine.  Moreover, there was no genuine issue of material fact that the plaintiff was injured by a part of the machine not covered by the indemnification provision.  Furthermore, the Supreme Court held that the Superior Court did not abuse its discretion in holding that Morton did not timely file its motion to vacate because Morton had at its disposal, for a considerable period, the third-party defendants’ accurate responses to interrogatories and its own internal documents indicating that it had done business with Bristol Yarn.

In addition, after this case had been remanded to the Superior Court for the specific purpose of a hearing on Morton’s motion to vacate, Morton filed a second third-party complaint against Bristol Yarn.  The Supreme Court held that the Superior Court’s order granting leave to file this second complaint was outside the scope of the remand and therefore vacated the order.

State of Rhode Island v. Danillo A. Cerda, No. 07-133 (October 20, 2008)

The defendant, Danilo A. Cerda, appealed from a judgment of conviction on one count of felony assault. 

The defendant contended that the trial justice was clearly wrong in denying his motion for new trial because the jury’s verdict was against the fair preponderance of the evidence and failed to do substantial justice.  He asserted that the witnesses’ testimony was so contradictory and unreliable as to create reasonable doubt about his guilt.  Moreover, the defendant asserted that the autopsy report and photographs did not substantiate the witnesses’ account that the victim was kicked repeatedly in the face and head.

The Court affirmed the judgment of conviction, recognizing that a trial justice’s ruling on a motion for new trial is entitled to great deference, provided that the trial justice has articulated an adequate rationale for denying the motion.  Although the trial justice acknowledged that all three of the prosecution’s witnesses initially lied to the police about what they observed regarding the assault, the trial justice could not say that the jury was unwarranted in accepting their testimony.  He found that reasonable minds could differ about whether to accept or reject the witnesses’ testimony.  The Court concluded that the trial justice was not clearly wrong in choosing which testimony to accept and reject, nor did he overlook or misconceive material and relevant evidence.  Thus, the trial justice did not err in denying the motion for new trial. 

Accordingly, the Court affirmed the judgment of conviction and remanded the case to the Superior Court.

Merrimack Mutual Fire Insurance Co. v. Ronald H. Dufault, No. 07-196 (October 17, 2008)

This case arose as a result of an insurance coverage dispute between the defendant, Frank Beauparlant (Beauparlant or defendant), who allegedly was injured in an automobile collision, and the plaintiff, Merrimack Mutual Fire Insurance Company (Merrimack or plaintiff), an insurance company that issued a homeowner’s policy to Ronald H. Dufault, Sr. (Ronald Sr.) and his wife, Pauline Dufault (collectively Dufaults).  Merrimack’s policy, which commenced on May 27, 1990, included a personal umbrella liability policy (policy) that extended coverage to relatives of the named insured who lived in the same household and owned a car, motorcycle, motor home, or recreational vehicle.

On February 4, 1999, Beauparlant was involved in a motor vehicle accident with the Dufaults’ son, Ronald H. Dufault, Jr. (Ronald Jr.).  At the time, Ronald Jr. was living with his parents, and the policy that is the subject of this case was in effect.  After the collision, Beauparlant filed a complaint against Ronald Jr., Travelers Property Casualty, and Quincy Mutual Fire Insurance Company.  The plaintiff subsequently instituted this action against Beauparlant, the Dufaults, and Ronald Jr., seeking a declaratory judgment reforming the policy to exclude coverage for Ronald Jr. for the applicable policy period, or in the alternative, rescinding the policy as to him. 

The trial justice issued a written decision based on an agreed statement of facts and found a mutual mistake between the parties concerning whether the policy’s coverage extended to Ronald Jr.  The trial justice granted Merrimack’s request to reform the policy and a judgment entered directing plaintiff to issue a restricted endorsement excluding Ronald Jr. from the policy that was retroactive to the time of the accident.  Beauparlant timely appealed.

On appeal, defendant asserted that the trial justice erred in finding a mutual mistake of fact, arguing that because Ronald Jr. was insured according to the clear and unambiguous terms of the policy, the trial justice should not have referred to extraneous evidence in finding a mutual mistake.  Next, Beauparlant contended that even if the trial justice properly considered extrinsic evidence, she nonetheless erred in finding a mutual mistake.

The Supreme Court held that the trial justice erred in referring to extrinsic evidence because, by the clear and unambiguous language in the policy, Ronald Jr. was covered.  The Court also concluded that the trial justice was clearly wrong in finding a mutual mistake of fact between the parties to the insurance contract.  For these reasons, the Court vacated the judgment of the Superior Court.