Supreme Court

Published Opinions 2005-2006 Term

In re Matthew A. Brown, in his capacity as Secretary of State of the State of Rhode Island. No. 2006-199-Appeal (August 9, 2006)

In this expedited appeal stemming from the Secretary of State’s (Secretary) petition for a declaratory judgment in the Superior Court, Governor Donald L. Carcieri (Governor) and both houses of the Rhode Island General Assembly (General Assembly) appealed separate portions of the same judgment regarding the Governor’s authority to order nonbinding referendum questions to be placed on the general election ballot for November 2006. That judgment declared that the General Assembly’s repeal of G.L. 1956 § 17-5-2 extinguished the Governor’s statutory authority to compel the Secretary to place those questions on the November 2006 ballot, but that the Governor had an inherent constitution-based authority to place such questions on the ballot irrespective of the statute or its repeal. The Rhode Island Supreme Court affirmed in part, and reversed in part: (1) The repeal did eliminate the Governor’s statutory authority; and (2) the trial justice erred in reaching the issue of whether the Governor had an inherent constitution-based authority because the Governor explicitly argued before the trial justice that no such authority existed.

State v. Anthony Feliciano, No. 02-624 (July 14, 2006)

A jury convicted the defendant, Anthony Feliciano, of several offenses in connection with the shooting death of Walter Sol and the wounding of Juan Palomo. The defendant appealed from the five-count conviction in Superior Court of conspiracy to commit murder, first-degree murder, assault with intent to murder, discharging a firearm while committing a crime of violence resulting in death, and discharging a firearm while committing a crime of violence causing injury. The defendant was sentenced to two mandatory consecutive life sentences with concurrent sentences of ten years to serve and twenty years suspended, with probation.

On appeal, the defendant advanced four arguments that he said warranted the reversal of his conviction. The first three assignments of error were evidentiary. First, he argued that the admission under Rule 804(c) of the Rhode Island Rules of Evidence of a statement that the decedent made days before his death violated the defendant’s constitutional right to confrontation. He contended that an opinion of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), compelled the Supreme Court to reevaluate its past precedents maintaining the admissibility of hearsay evidence under certain circumstances against criminal defendants pursuant to Rule 804(c). Next, the defendant argued that the trial justice abused his discretion by allowing the state’s expert medical examiner to answer a series of hypothetical questions, when the record allegedly lacked adequate foundation to support them and when the expert’s answers served only to mislead the jury. As the last of his evidentiary challenges, the defendant asserted that the trial justice further abused his discretion by failing to exclude the hearsay testimony of a detective who, aided by a Spanish-speaking police officer serving as a translator, obtained the photo identification of a coconspirator not involved in this appeal. As his final argument, the defendant urged the Court to overturn its holding in State v. Rodriguez, 822 A.2d 894 (R.I. 2003), and hold that his simultaneous convictions for murder and discharging a firearm in connection with that murder violated the Rhode Island Constitution’s protection against double jeopardy. 

The Supreme Court systematically rejected the defendant’s arguments. First, the Court held that the decedent’s statement was not "testimonial" and thus did not violate the principles addressed in Crawford, and was otherwise properly admissible under Rule 804(c). Second, the Court held that the trial justice did not abuse his discretion in allowing the state’s medical examiner to respond to the hypothetical questions at issue because the record disclosed facts essential to the expert’s opinion and the questions themselves were not framed in such a way as to mislead the jury. Third, the Court held that the defendant did not preserve properly the argument that the detective’s testimony was hearsay and, pursuant to Rule 103(a)(1) of the Rhode Island Rules of Evidence, the argument was deemed waived. Fourth, the Court declined to revisit its Rodriguez decision because the defendant failed to preserve the double-jeopardy argument for appellate review under Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure. Accordingly, the Supreme Court affirmed the judgment of conviction. 

In re Kayla N., No. 03-400 (June 30, 2006)

This case involved an appeal from a Family Court judgment terminating the parental rights of respondents Irving and Dawn N. with respect to their child, Kayla N., and denying a petition for an open adoption of the child by respondent Sandra N., who is the child’s paternal aunt. On appeal, the respondents contended: (1) that DCYF was required to abide by the Americans with Disabilities Act (the ADA) when seeking to terminate the parental rights of natural parents; (2) that DCYF failed to make reasonable efforts towards the reunification of the respondents and their daughter; (3) that the hearing justice erred in finding that the respondent parents were unfit to parent Kayla; (4) that terminating their parental rights was not in Kayla’s best interests; and (5) that the hearing justice "short-circuited" the parents’ right to consent to an open adoption of Kayla by her paternal aunt.

The Supreme Court held that a termination-of-parental-rights proceeding does not constitute the sort of service, program, or activity that would be governed by the dictates of the ADA, and it therefore ruled that the ADA has no application in that context. 

After carefully reviewing the record, the Supreme Court then affirmed the hearing justice’s determination that DCYF’s efforts towards reunification were reasonable. In addition, the Court held that reunification between the respondents and Kayla could never be achieved and that it was not error for the hearing justice to terminate their parental rights. The Supreme Court further held that the hearing justice was correct in determining that termination of the respondents’ parental rights was in Kayla’s best interests. Finally, this Court held that the Family Court’s denial of the petition for adoption and the accompanying decree of open adoption filed by Sandra and consented to by Dawn and Irving did not constitute error, since DCYF had not recommended to the Family Court that said petition be granted as required by statute. Absent such a recommendation by DCYF, the Family Court was statutorily barred from considering the petition for open adoption. 

State v. Jeffrey Alston a/k/a Kam Ausar, No. 04-97 (June 30, 2006)

The defendant, Jeffrey Alston, a/k/a Kam Ausar, appealed from a jury verdict finding him guilty of felony conspiracy, breaking and entering a dwelling, and felony assault. On appeal, the defendant argued (1) that his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and under article 1, sections 2 and 10 of the Rhode Island Constitution were violated when the trial justice allowed the state to have Detective Johnson of the Warwick Police Department read to the jury a written statement made by Jerry Coleman, a former codefendant whose case had been severed from defendant’s; (2) that the trial justice erred in permitting the state to question Detective Gillis of the Warwick Police Department as to whether or not anyone had come forward to retrieve the belongings which had been found in the vehicle that was left by the side of the road in front of the victims’ home by the two perpetrators; and (3) that it was error for the trial justice not to have provided the jury with statements made by the victims with respect to the physical description of the two perpetrators when the jury requested said statements.

The Supreme Court held that the trial justice erred in allowing Detective Johnson to read to the jury the written statement that Mr. Coleman had provided to the police. The Court held that the admission of Mr. Coleman’s statement could not be reconciled with the principles set forth by the United States Supreme Court in the seminal case of Bruton v. United States, 391 U.S. 123 (1968). 

By contrast, the Court held that the trial justice correctly allowed Detective Gillis of the Warwick Police Department to be questioned as to whether or not anyone had come forward to retrieve the belongings that had been found in the vehicle that was parked on the side of the road in front of the home of the victims because the Fifth Amendment privilege against self-incrimination was inapplicable in such a situation.

The Court did not comment upon the defendant’s third appellate contention (namely, that the trial justice erred in not granting the jury’s request to review the statements made by the Lavens to the police), because there was no reasonable likelihood that the same scenario would be repeated upon retrial.

Because it considered the trial court’s error with respect to the Bruton issue to constitute more than harmless error, the Supreme Court sustained the defendant’s appeal, vacated the judgment of conviction, and remanded the case to the Superior Court for retria.

East Bay Community Development Corporation v. The Zoning Board of Review of the Town of Barrington, No. 04-330 (June 30, 2006)

 The Town of Barrington (town) appealed from a decision of the State Housing Appeals Board (SHAB) that would allow for the construction of a fifty-unit low and moderate income housing development for people with low or moderate incomes. Reversing a decision of the local zoning board, SHAB declared the project to be consistent with local needs under the provisions of the Low and Moderate Income Housing Act (act), G.L. 1956 chapter 53 of title 45. On appeal to the Supreme Court, the town advanced several arguments: (1) that divergent standard of review under the act violated due-process and equal-protection guarantees of the federal and state constitutions; (2) that provisions of the town’s comprehensive plan (plan) were not susceptible to attack as an unreasonable "local zoning or land use ordinance[], requirement[], [or] regulation[]"; (3) that, alternatively, SHAB could not consider whether applicable provisions of the plan were unreasonable because the applicant, East Bay Community Development Corporation (East Bay), failed to raise the argument before the zoning board; and (4) that SHAB erred in finding that the components of East Bay’s proposal addressing traffic and fire safety, density, and granite curbing were consistent with local needs.

The Supreme Court, after examining the applicable version of the act, held that the standard of review SHAB employed was required under the act and did not contravene the constitutional provisions that the town invoked. Next, the Court held that SHAB properly considered whether the applicable provisions of the town’s plan were unreasonable restraints on affordable housing. Also, under the appropriate and deferential standard of review, the Court held that SHAB did not exceed statutory authority in determining that EastBay’s proposal was consistent with local needs; the Court further held that the determination was not clearly erroneous or otherwise arbitrary or capricious. Consequently, the Supreme Court affirmed the decision of SHAB and directed the zoning board to issue all necessary permits and approvals, subject, however, to the zoning board’s authority to impose such conditions and requirements as are consistent with the act, the decision of SHAB, and the Court’s opinion.

DeSimone Electric, Inc. v. CMG, Inc. et al, No. 04-268 (June 29, 2006)

This dispute arose over two oral contracts between the plaintiff, DeSimone Electric, Inc., and the defendants, CMG, Inc., Ashford Homes, LLC, and James Colucci. The parties orally agreed that the plaintiff, an electrical contractor, would do electrical work on two different project sites for the defendants. The plaintiff did not complete either project and maintained that it did not finish because it was not being paid for the work already completed. The defendants alleged that the plaintiff was not paid in full because the work performed was incomplete or done in an unworkmanlike manner.

The plaintiff filed a petition to enforce a mechanic’s lien pursuant to Rhode Island’s mechanics’ lien statute, G.L. 1956 chapter 28 of title 34, in an attempt to receive payment for its work. In response, the defendants filed counterclaims against the plaintiff for breach of contract and negligence on each contract. Thereafter, the plaintiff amended its petition to add a claim for breach of contract against defendant James Colucci on one of the two contracts. A trial justice of the Superior Court denied the plaintiff’s petition to enforce a mechanic’s lien and awarded the defendants damages on their counterclaims. On appeal, the plaintiff contended that the trial justice erred in finding the mechanics’ lien statute unconstitutional and in denying its petition to enforce. The plaintiff also argued that the trial justice was clearly wrong and overlooked or misconceived evidence in her findings concerning the defendants’ counterclaims.

The Supreme Court held that the trial justice’s ruling that the mechanics’ lien statute was unconstitutional was inconsistent with the Court’s holding in Gem Plumbing & Heating Co. v. Rossi, 867 A.2d 796 (R.I. 2005), which was not issued until after the trial justice’s decision in this case. The Court, however, did not remand the case for further findings because the trial justice’s findings on the parties’ other claims were sufficient to support the Superior Court judgment. Ruling that the lower court was correct in finding that the plaintiff had breached both contracts and had performed on each project in an unworkmanlike and negligent manner, the Court affirmed the judgment of the Superior Court.

State v. Robert Hesford, No. 02-621 (June 29, 2006)

The defendant appealed from a judgment of conviction after a jury found him guilty of disorderly conduct and refusing to relinquish a telephone when he knew or should have known that it was needed for an emergency call. Because the defendant’s disorderly conduct conviction was his third domestic violence violation, he was sentenced under the sentencing enhancement provisions of the Domestic Violence Prevention Act (DVPA). The defendant argued on appeal that: (1) his enhanced sentence for disorderly conduct as a third-time offender was illegal in light of the Supreme Court’s opinion in State v. Martini, 860 A.2d 689 (R.I. 2004), which was given after the trial in his case; (2) the trial justice erred in denying his motion for judgment of acquittal on the disorderly conduct charge because there was no evidence that his conduct happened in public or that members of the public were disturbed by his conduct; and (3) the trial justice erred in denying his motion for a new trial on the disorderly conduct charge because the state did not prove the elements of that crime beyond a reasonable doubt.

The Supreme Court held that the issue of whether the defendant’s sentence should be reduced was not properly before it at that time. The Court further held that the trial justice did not err in denying the defendant’s motion for judgment of acquittal and motion for a new trial on the disorderly conduct charge because the state did not have to prove that the defendant’s conduct occurred in public or disturbed members of the public and otherwise had proven all other elements of the crime beyond a reasonable doubt. Accordingly, the judgment of conviction was affirmed. 

Kathleen C. Vicario v. Paul M. Vicario, No. 05-244 (June 29, 2006)

The defendant, Paul Michael Vicario, appealed from a Family Court order granting an absolute divorce to him and the plaintiff, Kathleen C. Vicario, and distributing their assets. The defendant contended that the general magistrate erred in: (1) rejecting the opinion of his expert witness concerning the value of one of his businesses; (2) awarding the plaintiff 60 percent of the marital estate; (3) awarding the plaintiff rehabilitative alimony; and (4) sanctioning him $10,000 for failing to comply with court orders concerning the discovery of certain financial documents.

The Supreme Court held that the general magistrate did not err in choosing to rely on the testimony of the plaintiff’s expert over the testimony of the defendant’s expert concerning the valuation of the defendant’s business. In addition, the Court held that the general magistrate did not err in awarding the plaintiff 60 percent of the marital estate and rehabilitative alimony because he had considered adequately all the relevant statutory factors concerning equitable distribution and alimony. Finally, the Court held that the general magistrate did not abuse his discretion or violate the defendant’s due-process rights in imposing a monetary sanction on the defendant for failing to comply with court orders concerning the discovery of financial documents because the defendant had ample notice that sanctions would be assessed and continuously failed to produce the documents or give an explanation about why the documents could not be produced. Accordingly, the Court affirmed the order of the Family Court.

Daniel J. Shramek v. Gina Schramek, No. 05-83

The plaintiff, Daniel J. Shramek, appealed from a Family Court decree distributing the parties’ martial assets and awarding a lump-sum alimony payment to the defendant, Gina M. Shramek. The trial justice awarded the defendant 35 percent of the value of the marital domicile, 35 percent of a commercial condominium that housed her yoga studio, and two vehicles that the couple purchased during the marriage for the defendant’s use. The trial justice awarded the remainder of the marital estate to the plaintiff. Emphasizing the brevity of the marriage and his wife’s "negligible" contributions, the plaintiff argued that the trial justice awarded the defendant an excessive share of the marital estate. He also asserted that the trial justice erroneously awarded the defendant a lump-sum alimony payment of $60,000.

The Supreme Court held that the trial justice did not err in distributing the marital estate because she adequately considered the proper statutory factors in making the distribution. In addition, the Court held that the trial justice did not err in awarding alimony to the defendant because she had considered the relevant statutory factors and had determined the defendant’s need for rehabilitative alimony in light of the overall distribution of the marital assets. Accordingly, the decree of the Family Court was affirmed.

Rosemarie Ruffel v. Lance Ruffel, No. 04-6 (June 28, 2006)

The plaintiff appealed from a Family Court order resolving all financial aspects of her divorce with the defendant. The plaintiff contested the Family Court’s rulings concerning the equitable distribution of the marital estate, valuation of the marital assets, certain evidentiary issues, and its failure to award rehabilitative alimony and counsel fees. The Supreme Court held that the Family Court improperly relied upon an alleged agreement between the parties to value the assets as of December 31, 2001. Because the alleged agreement had not been reduced to writing or placed on the record, it was not valid. Accordingly, the Court vacated the Family Court order and remanded the case for a revaluation of the marital assets. The Court also held that certain premarital gifts that the defendant gave to the plaintiff should have been excluded from the marital estate, but upheld the Family Court’s classification of jointly held real estate as marital property. The Court also upheld several evidentiary rulings by the Family Court that the plaintiff had challenged on appeal.

Jennifer M. Richard v. Gregory J. Richard v. Norman Richard, No. 04-258 (June 26, 2006)

The respondent, Jennifer M. Richard (Jennifer), and Gregory Richard (Gregory) filed for divorce. The appellant, Norman Richard (Norman), Gregory’s father, was joined in the action as owner of certain real property claimed to be an asset of the marital estate. Although an agreement to sell the property to Gregory and Jennifer had never been reduced to writing, the Family Court ordered Norman to convey the property to the couple pursuant to the doctrine of part performance. Norman appealed.

The Rhode Island Supreme Court held that the oral agreement was enforceable pursuant to the doctrine of part performance. Specifically, the Court held (1) that the nature of the possession had changed sufficiently to indicate reliance upon the oral agreement, and (2) that improvements made to the property would have been improvident in the absence of a contract for the sale of the property. The Supreme Court affirmed the judgment of the Family Court.

David Calise et al v. William Curtin et al, No. 04-375 (June 23, 2006)

The plaintiffs, Barbara Calise (Calise) and her husband, David Calise (collectively plaintiffs), appealed the Superior Court entry of judgment as a matter of law in favor of the defendants, William Curtin and the State of Rhode Island (collectively defendants). In granting that motion for judgment as a matter of law, the trial justice found that no legally sufficient evidence was presented to allow a reasonable jury to find in favor of the plaintiffs on their negligence claim. The trial justice denied a separate motion for judgment as a matter of law by the defendants based on Amica Mutual Insurance Company’s lack of standing to bring the claim under the principle of subrogation. The defendants submitted a cross-appeal alleging error in this denial.

The Rhode Island Supreme Court reversed the judgment of the Superior Court, holding that because legally sufficient evidence was presented to allow a reasonable jury to find in favor of the plaintiffs concerning the issue of negligence, the trial justice erred in entering judgment as a matter of law. The Court also affirmed the trial justice’s denial of the defendants’ motion for judgment as a matter of law on the question of standing because the defendants timely did not supply the Court with a sufficient transcript of the proceedings. 

State v. Scott Brown, No. 04-263 (June 23, 2006)

The defendant, Scott Brown (defendant) appealed his conviction of felony assault in violation of G.L. 1956 § 11-5-2and G.L. 1956 § 12-29-2 and two counts of simple assault in violation of § 11-5-3 and § 12-29-2. On appeal, the defendant alleged that the trial justice erred when he permitted the state to present evidence of prior uncharged acts of domestic violence that the defendant perpetrated against the same complaining witness, Lorene Quaranta (Quaranta). The state argued alternately that (1) the Supreme Court should adopt a contextual exception to Rule 404(b) of the Rhode Island Rules of Evidence, permitting the admission of evidence of the history of a defendant’s relationship with a complaining witness to show the context in which the charged violence occurred, and (2) the Supreme Court should affirm the defendant’s conviction based on any of the recognized exceptions to Rule 404(b). The Supreme Court affirmed the defendant’s convictions, holding that the trial justice properly admitted evidence of prior uncharged acts of domestic violence pursuant to the intent and lack of mistake exception to Rule 404(b), and that the admission of this evidence was not more prejudicial than probative under Rule 403 of the Rhode Island Rules of Evidence, and declined to address or adopt the contextual exception.

Charles Lennon v. Dacomed Corporation and National Union Fire Insurance, No. 04-292 (June 23, 2006)

After being implanted with a Dura-II penile prosthesis, the plaintiff, Charles Lennon, complained about discomfort, noise, and keeping the prosthesis in a concealed position. He initially sued Urohealth Systems, Inc., on a theory of products liability in the United States District Court of Rhode Island. After a contentious discovery process and two trips to the First Circuit Court of Appeals, the parties stipulated to a dismissal with prejudice of the federal court suit. 

The plaintiff also had sued Urohealth, Dacomed Corporation (Urohealth’s wholly owned subsidiary) and its insurer, National Union Fire Insurance, in Rhode Island Superior Court, alleging similar claims as those raised in the federal court suit. After the dismissal was entered in federal court, all three defendants in state court moved for summary judgment, arguing that the doctrine of res judicata precluded plaintiff’s state court action. 

The hearing justice granted summary judgment with respect to only Urohealth and indicated that although Dacomed was in privity with Urohealth, the doctrine of res judicata did not apply because the defendants were separate and distinct entities. 

A trial ensued and a jury returned a $750,000 verdict for plaintiff. The defendants moved for a new trial, and, alternatively, to modify the judgment. The trial justice denied their motion for a new trial, but granted a remittitur; he directed the plaintiff to decide whether to accept a modified judgment of $400,000 or face a new trial on damages. The plaintiff rejected the modified judgment and consequently, the trial justice ordered a new trial on damages. The parties cross-appealed. The plaintiff appealed the trial justice’s granting of a new trial on damages based upon his rejection of the remittitur. The defendants appealed the denial of their motion for judgment as a matter of law again contending that the doctrines of res judicata and collateral estoppel should have barred the plaintiff’s state court action. 

The Supreme Court first concluded that National Union was not a proper appellant because it was not specifically named in the notice of appeal as required by Rule 3(c) of the Supreme Court Rules of Appellate Procedure. The judgment against National Union was remanded to the Superior Court. The Court then concluded that the plaintiff’s state court action against Dacomed was barred by res judicata because: (1) Dacomed and Urohealth were in privity; (2) both lawsuits had an identity of issues; and (3) the dismissal in federal court was an adjudication on the merits. Consequently, the plaintiff’s appeal was dismissed.

State v. Oscar W. Casas, No. 03-641 (June 22, 2006)

The defendant, Oscar W. Casas, appealed from a Superior Court conviction for possession of one ounce to one kilogram of cocaine and possession with the intent to deliver cocaine. The defendant argued that the trial justice erred by denying his motion to suppress evidence. The state contended and the trial justice found that the defendant had consented to the search of his home and a building owned by his wife.

The Supreme Court held that the continued detention of the defendant after his vehicle was stopped and searched was unlawful and constituted a de facto arrest that was not based on probable cause. The Supreme Court held that the defendant’s consents to the searches were tainted by the illegal police misconduct and that there was no intervening act of significance to break the connection between the illegal arrest and the defendant’s consent to the searches. For these reasons, the Supreme Court reversed the defendant’s conviction. 

State v. Stacey Brumfield, No. 05-279 (June 22, 2006)

The defendant, Stacey Brumfield (defendant), appealed from a Superior Court judgment finding that he violated the terms of his probation. On appeal, the Rhode Island Supreme Court vacated that judgment, holding that, because the defendant never expressed a willingness to represent himself, the defendant did not knowingly and intelligently waive his right to counsel.

Benjamin Carpenter et al v. Paul W. Hanslin et al, No. 05-15 (June 22, 2006)

The defendants, Paul W. and Mirja Hanslin, appealed from a judgment in favor of the plaintiffs, Benjamin and Linda Carpenter, and the third-party defendant, Lynn Labossiere, in this dispute over rights-of-way across certain property owned by the defendants in Charlestown, Rhode Island. The trial justice granted the plaintiffs’ request for declaratory and injunctive relief, and determined the location of the rights-of way and the extent of their permissible use. 

On appeal, the defendants contended that the trial justice overlooked or misconceived material evidence in finding that the original grantor of the rights-of-way intended to permit vehicular traffic in the location that the trial justice determined was the location of the rights-of-way. The defendants further contended that the trial justice’s decision to permit vehicles to park and to turn around constituted clear error. Finally, defendants contended that the trial justice’s ruling allowing the construction of a boardwalk was clearly erroneous and that he exceeded his authority when he prohibited them from objecting to any administrative application that the plaintiffs might file in order to obtain a permit to construct such a boardwalk. 

The Supreme Court fully agreed with the trial justice’s conclusion that the plaintiffs’ fifteen-foot rights-of-way are properly located immediately adjacent to the boundary of the property owned by the Rhode Island Boy Scouts. With respect to the point at which the rights-of-way begin, however, this Court held that further clarification was necessary. After studying the record and considering the grantor’s intent, the Supreme Court held that plaintiffs’ fifteen-foot-wide rights-of-way begin not at the terminus of Pioneer Road, but rather include Pioneer Road.

Because the Supreme Court agreed with the trial justice’s well-reasoned decision in all other respects, it adopted that decision as its own.

Justice Goldberg did not participate.

State v. Auston L. Forbes; State v. Nicholas D. Lockhart, No. 05-77 (June 21, 2006)

The state initiated an interlocutory appeal challenging the ruling of a motion justice of the Superior Court suppressing the alleged confessions of the defendants, Auston L. Forbes (Forbes) and Nicholas D. Lockhart (Lockhart) (collectively defendants). The Rhode Island Supreme Court reversed the ruling of the motion justice, holding that the defendants’ gave their custodial statements voluntarily. The Court reasoned that the only issue at a pretrial hearing on a motion to suppress a criminal defendant’s custodial statement is the voluntariness of that statement. The Court held that the evidentiary admissibility of the statement at trial was an issue to be determined at a later time.

Radiation Oncology Associates, Inc. v. Roger Williams Hospital, No. 05-218 (June 21, 2006)

The plaintiff, Radiation Oncology Associates, Inc., appealed from an order of the Superior Court denying its motion to appoint an arbitrator. Before the Supreme Court on appeal was the narrow issue of whether the parties intended to submit a dispute concerning the duration of their "RADIATION ONCOLOGY SERVICES AGREEMENT" to arbitration. The plaintiff argued that the motion justice erred by failing to recognize and apply the principle that, when presented with a contract containing a broadly worded arbitration clause, the law imposes a "presumption" in favor of arbitration. Also, the plaintiff argued that the court erred by engaging in a "circular" analysis. Conversely, the hospital maintained that the motion justice properly reserved the duration dispute for judicial resolution (1) because the services agreement did not exhibit an intent to submit the particular dispute to arbitration, and (2) because, in any event, the agreement’s expiration on December 31, 2004, rendered the arbitration clause inoperative.

The Supreme Court held that an intent to submit the parties’ dispute over the duration of the services agreement to arbitration could not be inferred from the plain language of the services agreement. In so holding, the Court relied on general principles of contract construction, and referred to analogous cases from the federal circuit courts for the proposition that the policy in favor of arbitration holds less sway in resolving the arbitrability of duration disputes when the contract at issue contains a date certain for expiration. Further, the Court rejected the argument that the question of arbitrability turned on whether the services agreement itself had expired, reserving the merits of the dispute for adjudication on remand. Accordingly, the Superior Court judgment was affirmed. 

Barbara B. Haydon v. Leon G. Stamas et al, No. 05-173 (June 21, 2006)

The defendants, Leon G. Stamas and his son, Leon Stamas, appealed from a judgment of the Superior Court striking their notice of lis pendens on real estate owned by the plaintiff, Barbara B. Haydon, and rejecting their counterclaims for specific performance and breach of contract. On appeal, the defendants advanced three allegations of error: (1) that an agreement into which the parties entered was an enforceable contract for the sale of the plaintiff’s land; (2) that the agreement, which included an undisputed fixed expiration date, nevertheless failed to explicitly provide that time was of the essence; and (3) that, in any event, the plaintiff orally agreed to extend the deadline set forth in the agreement and thus waived any assertion that time was of the essence. 

The Supreme Court, as a preliminary holding, first affirmed the motion justice’s denial of the defendants’ counterclaim for specific performance because the parties entered into an option contract that contemplated the sale of the plaintiff’s property, and not a contract for its sale. However, the Court rejected the motion justice’s ruling that the option contract did not comply with the statute of frauds because the record revealed that the plaintiff drafted the option contract. Further, although the Court agreed that time generally is of the essence in option contracts, the Court rejected, as a matter of law, the motion justice’s sweeping conclusion that "an oral extension of an option deadline in a written option to purchase real estate is not enforceable." The Court also held that the motion justice misconceived material evidence when she found that the plaintiff never expressly stated that she would extend the deadline set forth in the option contract because, in a colloquy with the defendants’ attorney, the plaintiff admittedly responded "okay" to a proposed timeline, which extended beyond the option deadline, for the exercise of the defendants’ option.

Consequently, the Court vacated the judgment striking the lis pendens and ordering the defendants to execute all documents necessary to remove the cloud on title, and remanded the case to the Superior Court for further findings of fact upon the precise boundaries of the agreed-upon extension of the option deadline, and whether the defendants performed within that time. 

David N. Riley v. William Stone, M.D., et al, No. 04-224 (June 16, 2006)

This is an appeal by the plaintiff, David N. Riley (plaintiff), from a judgment entered in favor of the defendants, William M. Stone, M.D. (Dr. Stone), and University Physicians Foundation, Inc. in this medical malpractice action. Specifically, plaintiff assigned error to: (1) the denial of his motion for a new trial based on erroneous jury instructions and (2) the exclusion from evidence of portions of videotaped depositions and doctors’ notes of treating and consulting physicians. 

The Supreme Court held that the trial justice’s jury instructions concerning the applicable standard of care were a proper statement of the law. A physician is under a duty to use the same degree of care as a reasonably competent physician in the same class to which he belongs, acting in similar circumstances. 

The Court also held that plaintiff did not provide a sufficient record to enable the Court to address certain appellate contentions or to evaluate the trial justice’s reasons for excluding portions of depositions and medical records. It is the responsibility of the appellant to furnish the Court with so much of the record, including the transcript, depositions (if any), and relevant exhibits introduced during the proceeding as will enable the Court to decide the issues raised on appeal. The plaintiff’s failure to provide the Court with this record prevented the Court from performing any meaningful review of the evidentiary rulings.

State v. Amarilis Urena, No. 04-199 (June 16, 2006)

The defendant, Amarilis Urena, appealed from a conviction for manslaughter in the stabbing death of Hector Tavares after a trial in which she presented evidence concerning battered woman’s syndrome. The defendant contended that the trial justice erred in (1) denying her motion for a new trial because the state did not prove beyond a reasonable doubt that she did not act in self-defense, and (2) denying her motion to suppress statements she made to the police. Finding no error in the trial justice’s rulings, the Supreme Court affirmed the judgment of conviction. 

The Court held that the trial justice was warranted in denying the defendant’s motion for a new trial because the evidence that was presented on both self-defense and the battered woman’s syndrome justified the jury’s conclusion that the state had proven that the defendant did not act in self-defense and thus was guilty of manslaughter beyond a reasonable doubt. The Court further held that the defendant failed to preserve for appellate review her challenge to the admission of a tape-recorded statement she made to the police and a written transcript of that statement because (1) at trial her counsel affirmatively stated he had no objection to their admission, and (2) her counsel expressly advised the trial justice during an in-chambers conference that he was waiving any Mirandaissue.

Margaret Pastore, in her capacity as Administratrix of the Estate of Fred V. Pastore v. Charles Samson, M.D. et, No. 05-110 (June 16, 2006)

On this writ of certiorari, Kent County Memorial Hospital (hospital) requested that the Supreme Court review a decision of a motion justice granting the motion of the plaintiff, Margaret Pastore (plaintiff), administratrix of the estate of Fred V. Pastore (Pastore), whereby the hospital would be required to produce in the course of discovery in this medical malpractice civil suit some 750 pages of documents pertaining to one of its doctors, Charles Samson, M.D. The hospital argued that the documents were protected by four different privileges: peer-review, confidential health-care information, board of medical licensure and discipline, and attorney-client. The Rhode Island Supreme Court affirmed in part, and reversed in part: The Court affirmed the decision with respect to the board of medical licensure and discipline and the peer-review privilege, save document numbered 138, at least portions of which were privileged; and the Court remanded for further consideration the hospital’s assertion of the attorney-client and confidential health-care information privileges. In doing so, the Court held that our recognition of a corporate negligence cause of action was reconcilable with the peer-review privilege, and that patient complaints were not protected by the peer-review privilege.

Virginia P. Foley v. St. Joseph Health Services of Rhode Island et al, No. 05-90 (June 14, 2006)

The plaintiff, Virginia P. Foley, instituted a medical malpractice action against St. Joseph Health Services of Rhode Island, John R. Sullivan, M.D., Bernard Cieniawa, D.O., St. Joseph Hospital Radiology Associates, Inc., A. Hamid Shahinfar, M.D., and Angelo DiCenso, M.D. Eventually, and for various reasons, the claims against all the defendants were dismissed.

Doctor DiCenso’s motion to dismiss, asserting that the action against him was time-barred by the applicable statute of limitations, was granted first. Then, summary judgment was entered in favor of Dr. Shahinfar and St. Joseph Hospital Radiology Associates, Inc. when the hearing justice found that Ms. Foley failed to present sufficient evidence regarding the standard of care applicable to a radiologist. Finally, a justice of the Superior Court ruled favorably on a motion in limine that the remaining defendants filed. She found that Ms. Foley’s expert was not qualified to testify about causation and she therefore entered judgment as a matter of law in favor of St. Joseph Health Services of Rhode Island, Dr. Sullivan, and Dr. Cieniawa. Ms. Foley appealed each of these decisions to the Supreme Court.

The Supreme Court affirmed the motion justice’s decision to dismiss Dr. DiCenso because it held that Ms. Foley did not exercise reasonable diligence in discovering his involvement in her treatment. The Court also agreed that the alleged negligence on the part of Dr. Shahinfar and St. Joseph Hospital Radiology Associates, Inc. was not patently obvious and, therefore, Ms. Foley had the burden, in opposing the defendants’ motion for summary judgment, to present evidence from an expert regarding the applicable standard of care and deviation from that standard of care. Accordingly, the Court affirmed the entry of summary judgment in favor of Dr. Shahinfar and St. Joseph Hospital Radiology Associates, Inc. Finally, the Court held that the trial justice did not abuse her discretion, but exercised it soundly and judicially, when she ruled that the plaintiff’s expert witness was not qualified to testify on the issue of causation. Therefore, the Court upheld the entry of judgment as a matter of law in favor of Dr. Cieniawa, Dr. Sullivan, and St. Joseph Health Services of Rhode Island.

John Doe, a minor, by and through his Parents and Natural Guardians v. East Greewich School department et al, No. 05-172 (June 13, 2006)

The plaintiff, a seven-year-old diagnosed with Asperger’s Syndrome, appeals from a judgment dismissing, on the ground of failure to state a claim upon which relief could be granted, his civil suit against the defendants, East Greenwich School Department, Rhode Island Department of Elementary and Secondary Education, Peter McWalters in his capacity as Commissioner of Elementary and Secondary Education, and the Rhode Island Board of Regents for Elementary and Secondary Education. The Rhode Island Supreme Court affirmed that judgment, holding that the plaintiff had failed to plead facts in his complaint that could support a conclusion that he need not exhaust his administrative remedies before filing his civil suit in Superior Court.

Dennis H. McGinity v. Pawtucket Mutual Insurance Company, No. 05-32 (June 13, 2006)

Pawtucket Mutual Insurance Co. (defendant) appealed a Superior Court judgment vacating an arbitration award to Dennis H. McGinity (plaintiff) on the ground that one of the arbitrators involved in the proceeding was evidently partial under G.L. 1956 § 10-3-12(2) because while the arbitration was ongoing, the arbitrator also served as the defendant’s attorney, a fact neither the arbitrator nor the defendant disclosed to the plaintiff or the other arbitrators.

The Rhode Island Supreme Court affirmed the judgment of the Superior Court, holding that the attorney-client relationship in this case, coupled with the fact that only two of the arbitrators voted for the arbitration award, indicated that the arbitrator was evidently partial under § 10-3-12(2), which mandates the vacating of an award granted under those circumstances.

Cara Benaski v. Carl Weinberg, in his capacity as President of the Summit at Warwick Executive Park Condominium Association et al, No. 05-232 (June 12, 2006)

 In this slip-and-fall action, the plaintiff, Cara Benaski, appealed from a grant of summary judgment in favor of certain defendants associated with the Warwick Executive Office Park On appeal, the plaintiff argued that unusual circumstances existed that warranted a departure from the general rule that permits a business invitor a reasonable time after a storm to clear snow and ice. The Supreme Court, applying the principles addressed in Terry v. Central Auto Radiators, Inc., 732 A.2d 713 (R.I. 1999), held that the plaintiff failed to establish any unusual circumstances and that, therefore, that the defendants were under no duty to remove accumulated snow and ice before a reasonable time after the storm ended. Consequently, the Supreme Court held that no genuine issue of material fact existed and that the defendants were entitled to judgment as a matter of law.

Virginia Hanson et al v. Edwin Singsen, M.D., No. 04-301 (June 12, 2006)

Virginia Hanson (Hanson) and her husband (collectively plaintiffs) appealed a Superior Court ruling granting judgment as a matter of law in favor of Edwin Singsen, (defendant) on the following grounds: (1) that the plaintiffs failed to prove proximate causation in their medical malpractice claim; (2) that the plaintiffs failed to prove their informed consent claim; and (3) that the statute of limitations barred the plaintiffs’ claim. The Supreme Court affirmed the judgment of the trial justice, holding that the statute of limitations barred the plaintiffs’ claim because during the eight years between Hanson’s surgery and the filing of her lawsuit, the discovery rule did not serve to toll the three-year statute of limitations for medical malpractice. Having held that the statute of limitations barred the plaintiffs’ claim, the Court did not reach the other issues presented on appeal.

State v. Jodi Johnson, No. 05-98 (June 12, 2006)

The defendant, Jodi Johnson, appealed from the determination by a Superior Court justice that he violated the terms of his probation. The defendant argued that the hearing justice improperly discontinued exposition during cross-examination into a witness’s history of cooperating with law enforcement officials and that the hearing justice acted "arbitrarily and capriciously" in determining that he violated his probation. The Supreme Court held that the hearing justice was well within her wide discretion to limit the scope of defense counsel’s cross-examination of the state’s witness. Also, because the state presented "reasonably satisfactory evidence" necessary to revoke the defendant’s probation, the Court held that the hearing justice did not act arbitrarily or capriciously in her determination. Accordingly, the Supreme Court affirmed the revocation of the defendant’s probation.

State v. Rafael Cotty, No. 02-691 (June 12, 2006)

The defendant, Rafael Cotty, appealed to this Court from his conviction by a jury of second-degree murder. The defendant contended that the trial justice made four specific legal errors that prevented him from fully presenting evidence in support of his defense of self-defense and prevented the jury from considering that defense under proper jury instructions. 

Specifically, the defendant argued that it was reversible error for the trial justice to exclude evidence of the victim’s prior violent acts, which acts, according to the defendant, reflected the victim’s habit of becoming combative when intoxicated. The defendant argued that his defense of self-defense also warranted the admission of evidence of the victim’s reputation for becoming intoxicated and combative. 

As an additional basis for his appeal, the defendant contended that the trial justice’s refusal to instruct the jury on the relevance of the evidence of the victim’s combative character was error and that the jury instructions that the trial justice actually gave improperly shifted the burden of proving self-defense to the defendant. 

This Court held that the proffered evidence of certain prior specific acts of violence exhibited by the victim was properly excluded because the defendant was unaware of those acts at the time of his encounter with the victim. Moreover, the trial justice’s exclusion of certain evidence pertaining to the victim’s reputation as being combative when intoxicated was not an abuse of discretion because the proffered evidence was cumulative. This Court also held that the trial justice’s instructions to the jury clearly articulated where the burden of proof lay and were appropriate. The defendant’s remaining argument with respect to the jury instructions was not properly preserved for appellate review and, therefore, this Court did not address it.

For these reasons, the Supreme Court affirmed the defendant’s conviction.

State v. Paula Abreu, No. 04-219 (June 9, 2006)

The defendant, Paula Abreu, appealed from a jury verdict finding her guilty of one count of assault with a dangerous weapon. As a result of the conviction, she was sentenced to a term of ten years at the Adult Correctional Institutions (one year to serve and the balance suspended, with probation). 

On appeal, the defendant contended that, because she had raised the defense of self-defense, the trial justice erred in excluding evidence of prior specific acts of violence committed by the victim of which the defendant was allegedly aware at the time of the incident. The defendant also contended (1) that her motion in limine was improperly denied as untimely and (2) that the trial justice abused his discretion in denying her motion for a new trial, in which she claimed that the verdict was against the weight of the evidence. 

The Supreme Court held that because the defendant never actually filed in the trial court a motion in limine seeking to introduce evidence of the victim’s alleged prior acts of violence, nor did the defendant ever attempt to elicit testimony on the record at trial with respect to same, the issue was not properly preserved for appellate review. The Supreme Court also held that, because the trial justice correctly applied the appropriate standard in ruling on the defendant’s motion for a new trial and did not overlook or misconceive material evidence, his decision to deny that motion would not be overturned.

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

Marguerite Andreoni et al v. Aaron Ainsworth et al, No. 05-255 (June 9, 2006)

In this negligence suit stemming from an automobile accident, the plaintiffs, Marguerite Andreoni, Lauren Andreoni, and Candace Dufresne (collectively plaintiffs), appealed from an entry of summary judgment in the Superior Court in favor of two of the defendants, Carolyn Ainsworth (Carolyn) and Volvo Finance North America (collectively defendants). On the determinative issue of whether the driver of the automobile had consent to operate that automobile, the Rhode Island Supreme Court held that, pursuant to G.L. 1956 § 31-33-7 and the fact that the automobile was registered in Carolyn’s name, the plaintiffs had set forth prima facie evidence that the driver operated the automobile with Carolyn’s consent. Accordingly, the Court reversed the entry of summary judgment because the plaintiff had created a genuine issue of material fact on the issue of consent.

Joseph F. Parella et al v. Joseph A. Montalbano, in his official capacity as President of the Rhode Island Senate et al, NO. 03-595 (June 9, 2006)

In this appeal the Supreme Court was confronted with a challenge to the constitutionality of G.L. 1956 § 22-1-2, the Senate redistricting statute, and called upon to determine whether the enactment violated the Compactness Clause of the Rhode Island Constitution. Article 8, section 1, of the Rhode Island Constitution requires that Senate districts be as territorially compact as possible; this compactness requirement is violated only when a reapportionment plan creates districts solely for political considerations, in such a manner that the plan demonstrates a complete abandonment of any attempt to draw equal, compact and contiguous districts.

The Court held that every statute enacted by the Legislature is presumed constitutional and will not be invalidated by the Supreme Court unless the party challenging the statute proves beyond a reasonable doubt that the enactment violates the state or federal constitution. The Court held that legislative judgments in the redistricting area are entitled to deference and that review of the compactness requirement is limited to ensuring that the General Assembly did not act without a rational or legitimate basis. Therefore, the Court concluded that the trial justice was correct in her reluctance to invade the judgment of a coequal branch of government and appropriately allocated the burden of proof beyond a reasonable doubt to a constitutional challenge to an act of the General Assembly.

The Court adopted the trial justice’s decision as its own and also decided the issues raised on appeal.

State v. John Lough, No. 05-93 (June 8, 2006)

The defendant, John Lough, appealed his conviction after a jury found him guilty of embezzlement and fraudulent conversion in violation of G.L. 1956 § 11-41-3. As grounds for appeal, Lough argued that the trial justice incorrectly interpreted § 11-41-3 when he instructed the jury that a person who disposes of the property of another may be convicted of conversion. Lough argued that this was in error because it permitted the jury to convict him without evidence that he derived a benefit from using the property in question. Because of this alleged misinterpretation of the law, Lough also contended that the justice improperly denied his motions for judgment of acquittal and his motion for new trial.

The Supreme Court held that a conviction under § 11-41-3 does not require proof that a person derived a benefit from using the property. Therefore, the Court held that the jury instructions were correct and that the trial justice properly denied Lough’s motions for judgment of acquittal and his motion for new trial. 

Raymond Lacey et al v. Jan Reitsma, in his capacity as Director of State of Rhode Island Department of Environmental Management et al, No. 05-226 (June 6, 2006)

The plaintiffs in this personal injury action, who are the parents of a minor child who was injured while riding his bicycle at

Fort Adams State Park in Newport, Rhode Island, on July 6, 2000, brought suit against the State of Rhode Island and the State of Rhode Island Department of Environmental Management. The plaintiffs appealed from the Superior Court’s grant of summary judgment in favor of the defendants, contending that the trial justice erroneously applied the Recreational Use Statute, G.L. 1956 chapter 6 of title 32. 

The plaintiffs further argued that even if that statute applied to the state, the immunity from liability that it provided was not absolute and contained an exception for "willful or malicious" conduct that should have operated to expose the state to liability in this case. 

The Supreme Court affirmed the Superior Court’s grant of summary judgment pursuant to the unambiguous language of the Recreational Use Statute, which had been amended to include the state and municipalities within its purview, and pursuant to the equally unambiguous nature of the relevant precedent. The Supreme Court also held that the "willful or malicious" exception to the Recreational Use Statute did not apply, since the defendants had pointed to no evidence that these defendants had discovered young R.J. in a position of peril and then failed to warn him against the potentially dangerous condition.

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

Anita Acampora v. Thomas R. Pearson et al, No. 05-299 (June 6, 2006)

In this conflict between neighbors over the location of a common boundary, defendants, Thomas and Linda Pearson, appealed the entry of judgment by a trial justice of the Superior Court in favor of plaintiff, Anita Acampora, and against the counterclaims of the Pearsons. On appeal, the Pearsons advanced a number of challenges to the trial justice’s decision. They argued that it was error to apply a theory of acquiescence to resolve this boundary dispute in light of the credible testimony their expert witness offered with respect to the actual boundary lines described in the parties’ deeds. They also claimed that the trial justice erred when he allowed Ms. Acampora to give hearsay testimony with regard to certain statements that Mr. Card, her predecessor in title, made to her. Finally, the Pearsons contended that Acampora failed to prove acquiescence by clear and convincing evidence because the alleged boundary was not obvious and the parties did not intend for the bushes or trees to serve as a boundary.

The Supreme Court rejected the Pearsons’ contention that the expert testimony about the boundary line described in the deeds trumped the trial justice’s finding of acquiescence because this argument was contrary to the Court’s established law. The Court also held that the trial justice properly admitted Ms. Acampora’s testimony concerning statements that her predecessor in title made to her. Finally, the Supreme Court agreed with the trial justice that Acampora and the Pearsons’ predecessors in title acquiesced in the boundary line created by a row of arborvitae bushes. The Court also upheld the trial justice’s decision that an area two feet beyond the row of evergreen trees belonged to Acampora, but affirmed that finding on adverse possession grounds.

State of Rhode Island v. Lead Industries Association, Inc., et al, No. 04-63 (June 2, 2006)

The Supreme Court issued a writ of certiorari to review the propriety of a contingent fee agreement engaging two private law firms to provide legal representation for the Attorney General of the State of Rhode Island in the prosecution of a public nuisance action against certain manufacturers of lead paint pigments, as well as their trade association, Lead Industries Association, Inc. (collectively defendants). The petitioners argued that the agreement violated both their due process rights under the Fourteenth Amendment to the United States Constitution and Rhode Island law. The Supreme Court held that since both claims implicated novel questions of constitutional law, and since the Court’s review of the claims at this time is not unavoidable, the matter was not presently justiciable. The Court quashed the writ for want of present justiciability.

Virginia Mead et al v. Papa Razzi et al, No. 04-317 (June 2, 2006)

After this Court issued its opinion in Mead v. Papa Razzi Restaurant, 840 A.2d 1103 (R.I. 2004) (Mead I), reversing a trial justice’s grant of judgment as a matter of law in favor of the defendants, a second jury trial was held. That second trial resulted in a judgment of the Superior Court in the plaintiff’s favor pursuant to a jury verdict of negligence on the part of the defendants. 

On appeal, defendants argued that the trial justice’s instruction to the jury with respect to the issue of spoliation contained three separate legal errors, each constituting reversible error. Specifically, defendants argued that the spoliation instruction improperly permitted the jury (1) to determine that defendants’ failure to create an accident report constituted spoliation; (2) to conclude that there had been spoliation of evidence without first finding that there had been a deliberate or negligent destruction or loss of evidence; and (3) to "pyramid" inferences in arriving at its finding of negligence.

The defendants also argued on appeal that the trial justice erred in denying their motion for judgment as a matter of law and that the trial justice abused her discretion by refusing to allow defendants to call one of their former employees as a witness.

This Court held that the trial justice’s instruction allowing the jury to conclude that there had been spoliation of evidence was appropriate in light of its earlier holding in Mead I. The Court further held that the trial justice was correct in denying defendants’ motion for judgment as a matter of law because there were issues of fact raised at trial upon which reasonable minds could differ. The Court did not address those of the defendants’ arguments which had not been properly preserved at trial. 

Pablo Urena v. Theta Products, Inc., d/b/a Sprague Industries, No. 04-291 (June 2, 2006)

The plaintiff, Pablo Urena, appealed after a Superior Court magistrate granted summary judgment in favor of Theta Products, Inc., d/b/a Sprague Industries (Theta). In October 1998, Urena was working for a temporary employment agency and injured his finger during a work assignment at Theta. He later filed suit, alleging that his injury was the result of Theta’s negligence. The Superior Court held that Theta was immune from suit under G.L. 1956 § 28-29-20 of the Workers’ Compensation Act.

As grounds for his appeal, Urena argued that Theta was not immune from suit and that the Superior Court erred in denying his motion to default and his motion to compel a more responsive answer to an interrogatory. The Supreme Court held that Theta was immune from suit because it was a special employer under the Workers’ Compensation Act, and its immunity was not affected by the fact that Urena’s injury had occurred shortly after he returned from a coffee break. The Court further held that Urena’s motion to default was properly denied because it was filed after Theta had filed its answer. Finally, the Court held that Urena’s discovery motion was without merit and ultimately was rendered moot by its holding that Theta was entitled to summary judgment in its favor. 

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

Richard Hassett v. State of Rhode Island, No. 04-77 (June 2, 2006)

Richard Hassett appealed after a justice of the Superior Court denied his application for postconviction relief. In 1997, Hassett pleaded guilty to criminal charges arising from an alcohol-related automobile accident that resulted in the death of one person and injuries to two others. On appeal, he argued that the Superior Court should have granted his application and set aside his plea. He argues that he would not have entered into the plea agreement were it not for the allegedly deficient performance of his attorney.

The Supreme Court affirmed the judgment of the Superior Court and held that Hassett was not entitled to postconviction relief because: (1) he failed to establish that his attorney provided ineffective assistance by advising him to enter a plea agreement; and (2) he failed to show that he was prejudiced as a result of his attorney’s alleged deficiencies because the evidence and charges against him may have resulted in a more severe sentence if had proceeded to trial.

Russell Kraczkowski et al v. Quincy Mutual Fire Insurance Company, No. 05-165 (June 2, 2006)

The plaintiffs, Russell Kraczkowski and Rose Kraczkowski, on behalf of their minor child, Heather Kraczkowski, appealed from an order denying their motion to vacate an arbitration award. The plaintiffs contended that they should not have been made to proceed with arbitration on Heather’s claim for underinsured motorist benefits from the defendant, Quincy Mutual Fire Insurance Company, because they did not unequivocally elect to proceed with arbitration. The Court disagreed, concluding that the plaintiffs unequivocally demanded arbitration in a letter written to the defendant in November 2001. Moreover, the plaintiffs selected an arbitrator and, but for numerous continuances spanning six months, the arbitration would have concluded. Consequently, the plaintiffs were barred by G.L. 1956 § 10-3-2 from opting out of arbitration and pursuing Heather’s claim in Superior Court.

State v. Robert Silvia, No. 04-142 (May 31, 2006)

The defendant, Robert Silvia, appealed from a jury verdict finding him guilty of the second-degree murder of Joseph Lima, who died after being stabbed in Central Falls in November of 2001. As a result of this conviction, the defendant was sentenced to a term of sixty years—forty years to be served at the Adult Correctional Institutions and twenty years suspended, with probation. 

On appeal, the defendant argued that the trial justice erred in (1) restricting defense counsel’s cross-examination of a particular witness who had observed the stabbing of Mr. Lima; (2) admitting into evidence Mr. Lima’s bloody and cut clothing and also admitting testimony by a member of the Central Falls rescue squad which had responded to the scene of the stabbing as to resuscitative efforts undertaken on Mr. Lima while en route to the hospital; and (3) denying defendant’s motion inliminewhereby he sought an order barring the prosecution from using his prior convictions as grounds for impeachment under Rule 609 of the Rhode Island Rules of Evidence if he chose to testify.

The Supreme Court held that the trial justice in this case did not abuse his discretion in restricting defense counsel’s cross-examination of a particular witness. The Court also held that the trial justice did not err in admitting into evidence the bloody and cut clothing that Mr. Lima had been wearing at the time of the stabbing or in admitting the testimony of the rescue squad member as to resuscitative efforts undertaken on Mr. Lima. The Court further held that the trial justice did not abuse his discretion in denying defendant’s motion inlimineconcerning Rule 609. Finally, the Court, adopting the holding of the United States Supreme Court in Luce v. United States, 469 U.S. 38 (1984), stated that henceforth a defendant must testify at trial in order to preserve for appeal a claim that a trial justice abused his discretion in admitting evidence under Rule 609.

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

State v. Kenneth Day, No. 03-143 (May 25, 2006)

The defendant, Kenneth Day (defendant), appeals from his conviction in the Superior Court of two counts of conspiracy to commit robbery, two counts of first-degree robbery, one count of assault with intent to commit robbery, one count of committing a crime of violence with a firearm, and one count of carrying a pistol without a license. The Rhode Island Supreme Court held: (1) The defendant did not preserve for appeal the issue of whether joinder of the two indictments was proper under Rule 13 of the Superior Court Rules of Criminal Procedure; (2) the motion justice appropriately exercised his discretion in refusing to sever those indictments pursuant to Rule 14 of the Superior Court Rules of Criminal Procedure; and (3) the motion justice did not abuse his discretion in denying defendant’s motion for the funding of an expert witness. Accordingly, the Court affirmed the convictions.

State v. Jose A. Andujar, No. 04-343 (May 24, 2006)

The defendant, Jose A. Andujar (defendant), appealed his conviction in the Superior Court for criminal solicitation of murder, in violation of G.L. 1956 § 11-1-9. The defendant argued that the trial justice erred in denying various motions premised upon the legal theory that the state could not and did not prove the crime of solicitation because the intended solicitee never received the soliciting instrument. In addition, the defendant maintained that he was denied due process of law when the trial justice refused to let him present the jury with evidence of his acquittal of certain criminal charges, even though the jury was apprised of the existence of those charges. Finally, the defendant claimed that the trial justice erred by not granting his motion to suppress personal papers and a legal pad seized from his prison cell in violation of article 1, section 6, of the Rhode Island Constitution and the Fourth Amendment of the United States Constitution, as well as the results of additional scientific testing performed upon those items.

The Supreme Court held: (1) that receipt of a solicitation communication by the intended solicitee is, in fact, an element of the crime of solicitation, and the defendant, therefore, was entitled to a new trial for attempted solicitation pursuant to § 11-1-9 and G.L. 1956 § 12-17-14; (2) that the defendant was denied due process of law when the trial justice forbade him from presenting to the jury evidence of his acquittal for charges of burglary and first-degree sexual assault, while allowing the state to present the jury with evidence of those charges; and (3) that a pretrial detainee does not have a reasonable expectation of privacy in his or her prison cell under article 1, section 6, of the Rhode Island Constitution or the Fourth Amendment. 

The Supreme Court vacated the defendant’s judgment of conviction for criminal solicitation, ordered entry for judgment of acquittal for criminal solicitation, and remanded the case to the Superior Court for a new trial for the crime of attempted solicitation.

Narragansett Electric Company v. Bernard J. Carbone et al, No. 04-195 (May 17, 2006)

The defendants, Bernard J. and Marsha Carbone, appealed from a judgment of the Superior Court in favor of the plaintiff, Narragansett Electric Company, on its claims for conversion and unjust enrichment. An underground aluminum bypass conductor leading from the front yard of the defendants’ home to an "unmetered" electrical panel in the garage allowed the defendants to receive a substantial amount of electrical service for which they were not billed over a fourteen-year period. The Supreme Court affirmed, holding that the trial justice did not err in admitting testimony of an employee of the plaintiff concerning loss revenue calculations notwithstanding the plaintiff’s failure to disclose during discovery any information concerning "expert witnesses." The Court also held that the trial justice did not err in finding that electricity may be the subject of a cause of action for conversion. The Court further upheld the recovery for unjust enrichment against both of the defendants. Finally, the Court held that the plaintiff’s action was not time-barred by the applicable statute of limitations.

In re Shawn M., No. 04-350 (May 17, 2006)

This was an appeal from a Family Court judgment terminating the parental rights of the respondent-mother, Catherine, to her son Shawn. For many years, Catherine suffered from drug addiction and mental problems; she also lacked stable housing. On November 15, 2000, Shawn, was found to be neglected, and was committed to the care, custody and control of the Department of Children, Youth and Families (DCYF). Over the course of the next several years, numerous efforts were made to reunify Catherine with Shawn. However, these efforts proved unsuccessful, and, on January 9, 2004, DCYF filed a petition seeking to terminate Catherine’s parental rights.

The trial court found that Catherine was unfit to parent Shawn because of her chronic substance abuse problem and the fact that Shawn was in DCYF custody for more than twelve months without a substantial probability of his safe return within a reasonable period. The trial justice then concluded that the termination of Catherine’s parental rights was in Shawn’s best interests. Catherine appealed. On appeal, the Supreme Court concluded that the trial justice’s findings were supported by legally competent and clear and convincing evidence, and the decree of the Family Court was affirmed.

Dorothy Neri v. Ross-Simons, Inc., No. 04-230 (May 12, 2006)

The plaintiff, Dorothy Neri (plaintiff), appeals from the entry of summary judgment in favor of the defendant, Ross-Simons, Inc. (defendant), dismissing the plaintiff’s suit alleging: (1) unlawful discrimination based upon her age and gender; and (2) breach of an employment contract. This Court affirmed that judgment. On the discrimination claims, this Court held that a reasonable factfinder could not infer discriminatory animus, because the plaintiff had failed to cast any meaningful doubt on the defendant’s reason for terminating the plaintiff. On the breach of contract claim, this Court held that the plaintiff did not have a contractual right to displace less senior employees because the defendant unilaterally could change its policy regarding staff reduction.

State v. James L. Brown, No. 01-539 (May 9, 2006)

The defendant, James L. Brown, was convicted of first-degree murder, first-degree sexual assault, larceny under $500, and selling leased property over $500. The trial justice sentenced Brown to life imprisonment without parole on the murder count, life imprisonment for sexual assault, one year’s imprisonment for larceny, and ten years for selling leased property. All sentences were to be served consecutively.

Brown filed a timely notice of appeal and he challenged the judgment of conviction on four grounds. First, Brown alleged that the trial justice erred when he denied his motion to suppress certain statements Brown made to the Woonsocket police, as well as a DNA sample he provided. Brown also contended that the trial justice erred when he declined to instruct the jury that the defense did not have the burden of proving beyond a reasonable doubt its theory that someone else committed the murder. In addition, Brown argued that the trial justice made a reversible error when he denied his request to instruct the jury about the lesser-included offense of second-degree murder. Finally, Brown maintained that it was error for the trial justice to impose a life sentence without the possibility of parole in the face of substantial mitigating circumstances.

As to the motion to suppress, the Supreme Court ruled that the only obligation that the Woonsocket police had after lawfully arresting Brown, pursuant to an active capias, was to present him to a judge or bail commissioner promptly. The delay of less than a half hour, which included the time it took to transport him to the police station, was not a violation of that obligation. The Court also rejected Brown’s assertion that there was an affirmative duty on the police to inform him that he might obtain his immediate release by simply posting the preset bail. Accordingly, the Court affirmed the trial justice’s decision to deny Brown’s motion to suppress.

The Court also rejected Brown’s argument that the trial justice erred when he declined to instruct the jury that the defense did not have the burden of proving beyond a reasonable doubt its theory that someone else committed the murder. The Supreme Court held that the instructions that were given, when viewed as a whole from the perspective of a jury composed of ordinary, intelligent lay people, made it clear that the state had the burden of proving Brown’s guilt beyond a reasonable doubt as to each and every element of the crimes charged and that the burden of proof never shifted to Brown to prove his own innocence. The instructions given accurately reflected the law and adequately covered the requested instruction. Therefore, the trial justice did not commit error.

The Supreme Court also decided that although Brown had not waived his right to appeal the trial justice’s decision to deny Brown’s request to instruct the jury on the lesser-included offense of second-degree murder, Brown was not entitled to such an instruction. The Supreme Court held that a defendant in a murder trial is not entitled to a jury charge on second-degree murder unless during trial there was minimal evidence produced tending to show that the defendant did not act with premeditation. Because the evidence in this case did not meet that minimal standard, Brown was not entitled to a jury instruction on second-degree murder.

Finally, the Court carefully considered Brown’s argument that it was error for the trial justice to impose a life sentence without the possibility of parole in the face of what Brown contended were substantial mitigating circumstances. After it conducted an independent review of the record, the Court held that the trial justice was justified in imposing the harshest possible sentence on this defendant, and expressly ratified that sentence.

James O. Opella v. Ilan I. Opella, No. 04-380 (May 5, 2006)

The plaintiff, James O. Opella, appealed from a judgment in favor of his father, the defendant, Ilan I. Opella, in this dispute over money. On appeal, the plaintiff challenged the following rulings of the trial justice: (1) that the plaintiff must repay all the sums that the defendant and his late wife paid to him because they were loans, and not gifts; (2) that a $100,000 promissory note the plaintiff executed in favor of his parents was valid; (3) that a mortgage securing said note was valid; and (4) that the parties had not entered into a valid contract to execute a mutual release for a discharge of the mortgage indebtedness. The Supreme Court held that the trial justice did not err in his rulings, and affirmed the judgment of the Superior Court. 

Joaquim A. Dossantos v. State, No. 05-186 (May 4, 2006)

The applicant, Joaquim A. Dossantos, appealed from a Superior Court judgment denying his application for post-conviction relief. On appeal, the applicant, who is not a citizen of the United States, argued that the court erred in denying his application because (1) the plea forms did not contain the statutory warnings concerning the potential immigration consequences of a plea as prescribed by G.L. 1956 § 12-12-22(b), and (2) the hearing justice did not advise Dossantos that he could have additional time to consider his plea. The Supreme Court, relying upon the clear and unambiguous language of § 12-12-22(b) and our opinion in Machado v. State, 839 A.2d 509 (R.I. 2003), affirmed the denial of post-conviction relief. The Court reasoned that, although a hearing court must inform the applicant orally and substantially of the possibility of deportation, exclusion, and denial of naturalization, these warnings need not be written on a defendant’s plea forms. Further, the Court held that the phrase "[u]pon request" placed the onus of requesting additional time upon a defendant, and, correspondingly, that the hearing justice had no duty to advise a defendant of this right on the court’s own initiative.

John Trant v. Lucent Technologies, No. 05-18 (May 4, 2006)

In this dispute between an employer and former employee, the Court was confronted with a single issue: Must an employee be totally incapacitated for more than fifty-two consecutiveweeks to qualify for a cost of living adjustment (COLA) provided by G.L. 1956 § 28-33-17(f)(1)? Although the petitioner-plaintiff, John Trant, was totally incapacitated for more than fifty-two weeks as of May 10, 2002, the period of incapacity was not consecutive, having been interrupted by a term of partial incapacity. The respondent, Lucent Technologies, did not dispute Trant’s workers’ compensation claim or the COLAs he received for the years after 2002. However, because Trant’s period of total incapacity as of May 10, 2002, did not exceed fifty-two consecutive weeks, Lucent contended that he was not entitled to a COLA under the provisions of § 28-33-17(f)(1) (COLA statute). The trial judge and the Appellate Division of the Workers’ Compensation Court agreed with Lucent, and this Court granted Trant’s petition for writ of certiorari.

The Court concluded that, because the COLA statute was remedial, the Appellate Division should have construed the statute in favor of the employee and that its failure to do so constituted reversible error.

Julie Bowers Schwab v. Walter B. Schwab, No. 05-38 (May 3, 2006)

The defendant, Walter B. Schwab, appealed the decision of a motion justice that the Rhode Island Family Court did not have jurisdiction to set aside a Connecticut Family Court divorce judgment and marital settlement agreement entered into in Connecticut for lack of enforceability. The Supreme Court held that based on G.L. 1956 § 8-10-3(a) and its decision in Scheuerman v. Woronoff, 459 A.2d 957 (R.I. 1983), the Family Court had jurisdiction to decide the defendant’s motion to set aside the Connecticut judgment and settlement agreement on the merits, and that the hearing justice committed error when he denied that motion as well as the motion to reconsider.

Roger D. Bryant v. Ashbel T. Wall, in his capacity as Director of the Department of Corrections of the State of Rhode Island et al, No. 02-699 (May 1, 2006)

Roger Bryant appealed the Superior Court’s denial of his application for postconviction relief arising from his conviction for sexual assault upon his five-year-old stepdaughter. On appeal, Bryant argued that the court should have granted his application based on the allegedly ineffective assistance of counsel before and during his criminal trial. He also contended that he was improperly denied his right to counsel during the postconviction proceedings because the justice allowed him to argue prose. Finally, he claimed that because he was prose litigant, the hearing justice should have afforded him greater latitude in presenting his case.

The Supreme Court denied Bryant’s appeal because the record did not support his argument of ineffective assistance of counsel, and the hearing justice was not "clearly wrong" in finding that Bryant’s attorneys had effectively represented him related to the criminal trial. The Court also held that Bryant was not denied his right to counsel during the postconviction proceedings because the record clearly established that Bryant "voluntarily, knowingly, and intelligently" waived his right to counsel. Finally, the Court rejected Bryant’s argument that the hearing justice should have afforded him greater deference because it would have been improper for the justice to disregard the rules of procedure and evidence. For these reasons, the Court affirmed the judgment of the Superior Court.

George C. Bitting et al v. David A. Gray et al, No. 04-275 (May 1, 2006)

In this case the Supreme Court affirmed in part and reversed in part summary judgment entered in several of the claims and counterclaims in this dispute concerning ownership and a right-of-way over Bayberry Lane, a private road in Middletown.

 In 2000, the plaintiff, George C. Bitting and the George C. Bitting Revocable Trust, by deed with warranty covenants, purchased a parcel of real estate from the defendant, Beverley Robinson. The lot was bounded on the south by Bayberry Lane, a private road that the defendants, David and Alexandra Gray and Joana Battaglia claim to own to the exclusion of plaintiff. 

The plaintiff brought suit to quiet title, alleging that he owned to the centerline of the roadway and has an easement in the remainder of the lane. The defendants counterclaimed, asserting exclusive ownership and seeking injunctive relief restraining plaintiff’s use of the roadway. 

The plaintiff also alleged that Robinson breached his contract, breached the warranty covenants in the deed, committed common law fraud, and failed to disclose a deficient condition in violation of G.L. §§ 5-20.8-1 and 5-20.8-2.

 On motion and cross-motions for summary judgment, the hearing justice granted partial summary judgment in favor of the defendants on plaintiff’s claim of ownership to the centerline of Bayberry Lane. The hearing justice concluded that the presumption that the buyer of land adjacent to a road owns to the centerline is a rebuttable presumption that does not arise in every instance. Here, because the grantors subsequently conveyed the road in fee to the defendants’ predecessor in title, reserving a right-of-way for plaintiff’s predecessor in title, plaintiff obtained only a right-of-way over the lane. 

 The hearing justice also found that based on the Marketable Record Title Act, G.L. 1956 chapter 13.1 of title 34, § 34-13.1-1, the plaintiff’s right-of-way in Bayberry Lane was extinguished because the reservation of the right-of-way did not appear in the plaintiff’s chain of title. The Supreme Court reversed and concluded that the plaintiff’s right-of-way did not depend upon a grant in the defendant’s chain of title because there was an incipient dedication of the road when the lot was sold with reference to a plat.

The Court affirmed summary judgment in favor of Robinson on the fraud claim and the failure to disclose a deficient condition because there is no private right of action for violations of § 5-20.8-2. With respect to the claims for breach of contract and breach of warranty covenants, the Supreme Court vacated summary judgment on the ground that a finding of adverse possession could result in a judgment against Robinson for breach of contract and breach of his obligations under the warranty deed.

East Providence School Committee v. Charles M. Smith, III et al, No. 05-137 (April 28, 2006)

Charles M. Smith III and Maria Casimiro, appealed after the Superior Court granted a motion for summary judgment in favor of the East Providence School Committee. The school committee filed suit against Smith and Casimiro to recover money damages after determining that the defendants’ two children were residing in another school district while attending school in East Providence. Smith and Casimiro argued that the school committee lacked standing to bring suit for damages because it is a department of the city, not a separate entity. They further claimed that it was improper for the motion justice to award damages based on the average cost of educating students because the average cost may greatly exceed the actual cost of educating their two children. 

The Supreme Court held that the school committee did not have standing because it is a department of the city and lacked statutory authority to bring a suit for damages in its own name. Relying on G.L. 1956 § 45-15-2, the Court explained that civil actions by a municipality must be brought in the name of the municipality, unless otherwise directed by law. Therefore, the judgment of the Superior Court was reversed. Because the school committee did not have standing, the Court did not address the issue of damages. 

Roxanna Morales a/k/a Roxanna Vinagre v. Town of Johnston et al v. Ronald Rotondo d/b/a A Cut Above Landscaping Service, No. 04-310 (April 26, 2006)

The plaintiff, Roxanna Morales a/k/a Roxanna Vinagre (plaintiff), filed suit against the City of Central Falls and the Central Falls School District (Central Falls), the Town of Johnston and the Johnston School Committee (Johnston), and Ronald Rotondo, doing business as A Cut Above Landscaping Service (Rotondo), for an injury she suffered while playing in a high school soccer game. After the plaintiff presented her case, the trial justice granted Johnston’s and Rotondo’s motions for judgment as a matter of law. The jury returned a verdict against Central Falls. Central Falls appealed from several of the trial justice’s rulings. The plaintiff appealed from the trial justice’s grant of judgment as a matter of law in favor of Johnston and Rotondo.

Central Falls argued that, because the coaches were immune from suit pursuant to G.L. 1956 § 9-1-48, the plaintiff’s derivative claim against their employer was also barred. The Supreme Court agreed and vacated the judgment against Central Falls. 

Concerning the claim against Johnston, the Court concluded that the trial justice erred by granting judgment because G.L. 1956 § 32-6-3, the recreational use statute, does not apply to the town’s soccer field when the field is used for high school soccer games and is not open to the public at that time, as anticipated by chapter 6 of title 32. Based on the declared purpose of § 32-6-3, the Supreme Court held that plaintiff was not a member of the public as contemplated by the statute. In addition, the Court held that the public duty doctrine did not shield Johnston from liability because Johnston owed a special duty to the plaintiff. Therefore, the Court vacated the judgment as a matter of law in favor of Johnstonand remanded the case for a new trial.

The Supreme Court held that the trial justice properly granted judgment in favor of Rotondo because plaintiff failed to produce any evidence tending to show a deviation from the proper standard of care. Thus, plaintiff did not prove negligence, and her claim against Rotondo must fail. 

State v. Lionel R. Gardiner, No. 04-128 (April 25, 2006)

The defendant, Lionel R. Gardiner, appealed conviction after a jury found him guilty for the first-degree sexual assault of a developmentally disabled woman. As grounds for his appeal, Gardiner argued that the trial justice improperly vouched for the testimony of the complaining witness. He further contended that the state failed to offer expert testimony establishing that the victim’s mental disability rendered her incapable of consent. Additionally, he argued that the trial justice erred by excluding certain evidence and incorrectly instructing the jury. 

The Supreme Court held that even if the trial justice’s comment to the witness was improper, the trial justice adequately remedied the effect of the comment with a corrective instruction to the jury. The Court also rejected his contention that the state had failed to provide expert testimony about the victim’s capacity to consent. In considering the defendant’s other arguments, the Court held that the trial justice did not err in excluding evidence and that the jury instructions did not warrant reversal. For these reasons, the Court affirmed the defendant’s conviction.

Fred A. Parker v. Toni J. Williams, No. 05-136 (April 24, 2006)

The respondent, Toni J. Williams, appealed from a Family Court order awarding physical placement of the parties’ minor child, Dakota, to the petitioner, Fred A. Parker. On appeal, Ms. Williams argued that the hearing justice misapplied the factors set forth in Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990), and that he thereby abused his discretion and was clearly wrong in finding that it was in the best interests of Dakota to reside with Mr. Parker. Ms. Williams also argued that the hearing justice erred in exercising jurisdiction because he failed to first make a finding that a change in circumstances had taken place subsequent to the time when the parties reached an agreement regarding custody.

The Supreme Court held that the hearing justice in this case appropriately applied the factors set forth in Pettinato in determining the best interests of Dakota and did not overlook or misconceive any relevant evidence in making his placement determination. The Court did not address the merits of the other argument raised by Ms. Williams on appeal because she failed to raise that argument at the hearing in Family Court or in her pretrial memorandum to that court. 

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

State v. Eugene C. Texter, No. 04-131 (April 19, 2006)

The defendant, Eugene C. Texter (defendant), appealed from a Superior Court adjudication of probation violation. The defendant argued that the hearing justice erred by relying on evidence that was illegally seized and that the hearing justice’s findings were arbitrary and capricious. The Supreme Court held that defendant did not raise the search-and-seizure issue before the hearing justice and that the issue therefore was not properly before the Court. In addition, the Court noted that the exclusionary rule does not extend to probation-violation proceedings. The Court also held that the hearing justice was neither arbitrary nor capricious in finding that defendant had been lacking in the good behavior required by his probationary status. The judgment of the Superior Court is affirmed.

State v. Angel Morales, No. 05-70 (April 18, 2006)

The defendant, Angel Morales, appealed from a jury verdict finding him guilty of second-degree child molestation. As a result of this conviction, the defendant was sentenced to a term of fifteen years—two years to be served at the Adult Correctional Institutions and thirteen years suspended, with probation. Additionally, the defendant was ordered to register as a sex offender, to attend sex offender counseling, and to have no contact with the victim. On appeal, the defendant argued (1) that the trial justice was clearly wrong in admitting certain hearsay evidence under the excited utterance exception and (2) that the trial justice was clearly wrong in denying the defendant’s motion for a new trial. 

This Court held that the trial justice did not abuse his discretion in ruling that certain statements which the complaining witness made to her mother following the alleged incident were admissible under the excited utterance exception to the hearsay rule. The Court also held that the trial justice did not overlook or misconceive material evidence and was not otherwise clearly wrong in denying the defendant’s motion for a new trial.

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

Robert M. Duffy et al v. Larry Milder et al, No. 04-256 (April 14, 2006)

The Duffys, Herberts, (the intervenors) and the East Greenwich Preserve Condominium Association (the Association) appealed the Superior Court’s denial of their joint motion for summary judgment. They also appealed the court’s entry of judgment on the motion for summary judgment by the cross-appellants, the Milders. The intervenors contended that the Superior Court erred when it gave res judicata effect to a municipal court decision, and ruled that the Milders may continue their extensive equestrian activities on their property (lot No. 24), except for the 2.7 acres that are burdened by an open space easement. They also argued that the court wrongfully dismissed their appeal of the East Greenwich Zoning Board of Appeals’ ruling that a zoning certificate pertaining to the Milders’ property was properly issued. The Association joined in most of the intervenors’ arguments. It further urged that the Superior Court erred when it determined that the terms of the open space easement subordinate use of the corral area by Association members to the Milders’ discretion. On cross-appeal, the Milders argued that the Superior Court erred when it ruled that the open space easement does not allow them to engage in horseback riding or other equestrian activities within the easement area.

The Supreme Court held that it was error for the hearing justice to give res judicata effect to the judgment of the municipal court. The Court ruled that although a prior nonconforming use to conduct equestrian activities on lot No. 24 may have arisen in the 1960’s, when the Town of East Greenwich enacted various zoning ordinances with respect to lot No. 24, this lawful nonconforming use status was abandoned by the Milders’ predecessors in title, who petitioned the town to rezone lot No. 24, and adjoining lot No. 28, to accommodate their plans to develop the property into condominiums. The Milders, as successors in title to lot No. 24 did not, therefore, acquire any nonconforming use to keep horses on the property because any such rights were terminated before the property was conveyed to them.

The Supreme Court also held that the open space easement, on its face, did not grant the Association members the unconditional right to participate in recreational activities in the corral area. The Court upheld the Superior Court’s judgment that the Association’s access to the corral area was subject to the Milders’ discretion. In addition, the Court held that the plain terms of the open space easement limited the use of animals in the corral to the grazing of horses and/or similar animals. Therefore, the Court affirmed the Superior Court’s judgment that the Milders may not conduct equestrian activities, such as keeping, stabling, riding, and/or boarding horses upon that portion of lot No. 24 that is burdened by the open space easement.

Jeanne Rossi v. Employee's Retirement System of the State of Rhode Island et al, No. 04-364 (April 13, 2006)

The petitioner, Jeanne Rossi, sought review of a Superior Court judgment affirming the denial of her application for an accidental disability pension. Rossi claimed that she was entitled to accidental disability benefits in accordance with G.L. 1956 § 36-10-14 after she aggravated a work-related injury. The respondent, Employees’ Retirement System Board, denied her application because she was unable to identify a specific incident causing aggravation of the injury. 

The Supreme Court held that § 36-10-14 does not require a claimant to identify a specific incident causing aggravation of a work-related injury, and therefore it quashed the judgment of the Superior Court and remanded the case to the retirement board.

State v. Christopher Swindell, No. 03-425 (April 12, 2006)

The defendant, Christopher Swindell (defendant), appealed from a Superior Court judgment of conviction for driving under the influence of alcohol. The defendant argued that the trial justice erred by admitting breath test results into evidence because, according to defendant, the state failed to prove that the breath test machine, used to measure the level of alcohol in his blood, had been properly tested for accuracy in accordance with G.L. 1956 § 31-27-2. Because the test solution used to certify the machine’s accuracy had a margin of error of 0.03, which was not factored in to the Department of Health’s (DOH) calculation of the margin of error for the breath test machine, defendant contended that the breath test machine failed to pass inspection and his results should have been suppressed.

The Supreme Court held that defendant did not comply with the strict condition precedent of challenging the validity of the breath test results introduced against him and therefore, his contention that the DOH failed to comply with its own regulations is immaterial. In addition, the Supreme Court concluded that the trial justice properly deferred to DOH’s interpretation of its own regulation and correctly rejected defendant’s argument that evidence of his blood alcohol should be suppressed. 

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

State v. Albertino Baptista, No. 05-71 (April 6, 2006)

The defendant, Albertino Baptista (defendant) appealed a Superior Court conviction on three counts of first-degree sexual assault. At issue on appeal was whether the trial justice erred when he permitted the state to introduce evidence of assaults by the defendant, both sexual and physical in nature, with which he was not charged. The Supreme Court held: (1) that the trial justice did not err when he permitted the state to introduce evidence of uncharged sexual assaults because other sexual assaults against the same victim are admissible to show the defendant’s lewd disposition toward the victim; and (2) that the trial justice did not err when he permitted the state to introduce evidence of uncharged physical assaults because they were relevant and necessary to proving the force and coercion element of the charged sexual assaults, and were interwoven with the sexual assaults.

New Harbor Village, LLC v. Town of New Shoreham Zoning Board of Review, No. 05-20 (April 3, 2006)

In this case the Supreme Court held that a party aggrieved from a decision of the State Housing Appeals Board (SHAB) concerning a determination that an application for a comprehensive permit was not substantially complete as of February 13, 2004, does not have a right of appeal to the Supreme Court.

 The plaintiff, New Harbor Village, LLC (New Harbor), filed an application for a comprehensive permit for the construction of affordable housing in accordance with the Rhode Island Low and Moderate Income Housing Act (act), with the Town of New Shoreham Zoning Board of Review. The General Assembly imposed a moratorium on all pending applications while it considered several amendments to the act. On July 2, 2004, G.L. § 45-53-6 was adopted and set forth a post-moratorium procedure for all pending comprehensive permit applications. Those applications found to meet the statutory test of substantial completeness would be remanded to the appropriate board for review pursuant to the prior act. Pursuant to § 45-53-6(f)(2), the local boards of review "shall not be obligated to hear, and may deny, any application affected by the moratorium" that was not deemed to be substantially complete as of

The defendant found New Harbor’s application to be lacking and, by a four to three, SHAB denied New Harbor’s appeal. The plaintiff filed an appeal with the Supreme Court. The Court held that there was no right of appeal from a SHAB decision made in accordance with § 45-53-6 and that review by the Supreme Court is discretionary. A party seeking review of a determination of substantial completeness must file a petition for the discretionary writ of certiorari. The appeal was dismissed.

Jane Sylvia Barrett v. Mark H. Barrett, alias, et al, No. 04-232 (March 23, 2006)

The plaintiff, Jane Sylvia Barrett, contended that when her late husband, Horace M. Barrett, died he owned in fee simple certain real property on Prudence Island in the Town of Portsmouth. In accordance with G.L. 1956 § 33-25-2(a), Jane further contended that she was entitled to a life estate in the Prudence Island property upon Horace’s death. The hearing justice ruled that, pursuant to § 33-25-2(b), Jane’s statutory right to a life estate in the property had been defeated when Horace conveyed the real property to a revocable trust and the conveyance subsequently was recorded in the town’s land evidence records. The hearing justice granted summary judgment in favor of the defendants, Mark H. Barrett and Karen M. Monahan, Horace’s children from a previous marriage and cotrustees of the aforementioned revocable trust. 

Jane appealed, arguing that summary judgment improperly was granted because there were triable issues of fact: (1) whether the transfer ran afoul of the illusory transfer test annunciated in Pezza v. Pezza, 690 A.2d 345 (R.I. 1997) and (2) whether Horace retained the rights incident to fee simple ownership in the property. Conversely, the defendants contended that the illusory transfer test was legislatively repealed by § 33-25-2(b) and thus, summary judgment was proper.

The Supreme Court concluded that the illusory transfer test had been repealed by § 33-25-2(b). Consequently, Jane’s statutory right to a life estate in the Prudence Island property was defeated when Horace’s inter vivos conveyance of the property to a trust was recorded pursuant to § 33-25-2(b).

State v. Jeremy M. Motyka, No. 02-403 (March 21, 2006)

The defendant, Jeremy M. Motyka, was convicted by a jury of the first-degree murder of and first-degree sexual assault upon Angela Spence-Shaw. The defendant was sentenced to life imprisonment without the possibility of parole on the murder charge and to a concurrent life sentence on the sexual assault charge. On appeal, the defendant argued (1) that the trial justice erred when she made pretrial discovery rulings that precluded the defendant from obtaining certain information related to the DNA testing which had been conducted by a private laboratory and that conditioned the prosecution’s duty to disclose other DNA-related information on a reciprocal duty that would require the defendant to disclose the identity of the DNA expert with whom the defense was consulting; (2) that the trial justice abused her discretion when she refused to allow the defense to explore certain areas during cross-examination of a particular witness on the grounds that such inquiry would go beyond the scope of the direct examination of the witness; (3) that the trial justice erred in refusing to instruct the jury on the lesser-included offense of voluntary manslaughter due to diminished capacity; and (4) that a sentence of life imprisonment without the possibility of parole was not warranted in this case. 

This Court held that, under Rule 16(a)(5) of the Superior Court Rules of Criminal Procedure, the defendant was not entitled to discovery of the information that he sought relating to the DNA testing that had been conducted by the private laboratory in this case. The Court also held that the trial justice did not abuse her discretion when she limited the cross-examination of a State Police detective to the scope of the direct examination of the witness. In addition, the Court held that the defendant was not entitled to an instruction on the lesser-included offense of voluntary manslaughter due to diminished capacity. Finally, the Court found that a sentence of life imprisonment without the possibility of parole was appropriate in this case.

For these reasons, this Court affirmed both the judgment of conviction and the sentence of life imprisonment without the possibility of parole.

State v. Brian Dennis, No. 03-58 (March 17, 2006)

The defendant, Brian Dennis, appealed to this Court from his conviction by a jury of first-degree sexual assault. The defendant contended that the denial of his motion to suppress his videotaped statement to the police constituted reversible error that warranted vacation of the judgment of conviction. As an additional basis for his appeal, defendant argued that the trial justice’s failure to instruct the jury on its duty to make its own determination about the voluntariness of the defendant’s statement constituted a violation of Rhode Island’s "Humane Practice Rule." The defendant further contended that the trial justice committed reversible error by improperly excluding certain evidence from consideration by the jury. 

The Court held that the trial justice erred when he failed to adhere to the Humane Practice Rule. Accordingly, the Court sustained the defendant’s appeal, vacated the judgment of conviction and remanded the case to the Superior Court for retrial.

John J. Cullen et al v. Town Council of the Town of Lincoln, No. 01-212 (March 15, 2005)

The petitioners, John J. Cullen and Roland Montigny (petitioners), sought further review of their case in the Supreme Court following an initial remand in Cullen v. Town Council of Lincoln, 850 A.2d 900 (R.I. 2004) (Cullen I), to the respondent, Town Council of the Town of Lincoln (council), for adequate findings of fact and conclusions of law. The initial writ of certiorari concerned the council’s denial of the petitioners’ application to tie into the Town of Lincoln’s (town) sewer system in connection with a proposed subdivision, Whipple Cullen Farm. The Supreme Court held: (1) that the discretionary language found within the town’s sewer ordinance granted the council the authority to request from a tie-in applicant information additional to that expressly required in the sewer ordinance; (2) that Cullen I permitted the council to require proof that no alternate feasible sewerage routes existed because the council was presented with competent evidence undermining the health, safety and welfare of the community, and that alternate routes may have existed due to the petitioners’ failure to prove application to DEM was futile; and (3) that the petitioners’ constitutional claim was not properly before the Court. The Supreme Court denied the writ of certiorari and quashed it as improvidently granted.

In re Mariah M., No. 04-193 (March 14, 2006)

The respondent, Tarrah M., appealed a decree of the Family Court terminating her rights concerning her daughter, Mariah. On appeal, the respondent argued: (1) that the trial justice erred when he found that there was no reasonable likelihood that Mariah could be returned to the respondent’s care in a reasonable amount of time, considering her age and her need for a permanent home; (2) that the trial justice erred when he found that the respondent was unfit because she was not unfit at the time of trial; and (3) that the trial justice erred by making a finding that the respondent had failed to comply with any of the objectives of the case plans drawn up with her by DCYF. We held: (1) that the trial justice did not err because competent evidence existed to show that there was no reasonable likelihood that Mariah could be returned to the respondent in a reasonable period of time; (2) that the trial justice did not err because the law requires a trial justice at a termination hearing to consider evidence of a respondent parent’s current situation, but not to rule solely based on the current situation; and (3) that the trial justice’s single-sentence misstatement concerning the respondent’s history of cooperation with her case plans did not affect her rights and therefore, if error at all, was harmless.

State v. James Carvalho, No. 04-363 (March 7, 2006)

The defendant, James Carvalho (defendant), appealed a Superior Court conviction for felony assault and eluding a police officer. The defendant asserted two errors on appeal. First, the defendant argued that the trial justice erred when he permitted the state to introduce rebuttal testimony about the defendant’s intoxication, which had been conditionally ruled inadmissible prior to trial. Second, the defendant argued that the trial justice improperly admitted a photograph of the defendant’s car as evidence that marks were left on the car during the defendant’s assault. We held: (1) that the trial justice did not err by permitting the rebuttal testimony because the defendant opened the door, first on direct examination and then on cross-examination, and therefore the state did not manufacture the issue; and (2) that the trial justice properly admitted the photograph.

Metropolitan Property and Casualty Company v. Colin Barry, No. 03-478 (March 3, 2006)

This case concerns the appropriate calculation of prejudgment interest in uninsured and underinsured motorist (UM) arbitration cases. The Supreme Court adopted a uniform formula for the computation of prejudgment interest in arbitration cases in the uninsured and underinsured motorist context and declared that the imposition of prejudgment interest in accordance with the computation formula set forth in this case is mandatory in all pending and future cases of this kind.

Prejudgment interest shall begin to accrue on the date of the injury. Under this methodology, any total damages ascertained in a UM arbitration case will accrue prejudgment interest from the date of the injury until the date of any payment by the tortfeasor, or medical payment by the UM carrier or other payment. The amount of this payment shall be deducted from this sum and after that calculation is made by the arbitrators, prejudgment interest shall accrue until the judgment is paid. 

Although the Supreme Court recognized the juxtaposition of tort principles and contract law in the framework of uninsured motorist insurance, Rhode Island’s uninsured motorist statute, § 27-7-2.1(a), requires that a UM policy provide "for the protection of persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * *." The insurance policy in effect in this case provided that Metropolitan would pay damages for bodily injuries arising out of the ownership, maintenance, or use of an uninsured vehicle that the insured is "legally entitled to collect from the owner or driver of an uninsured highway vehicle." (Emphasis added). In this state, an injured plaintiff who recovers damages in any civil action, is legally entitled to collect, both pecuniary damages, and "interest at the rate of twelve percent (12%) per annum thereon from the date the cause of action accrued[.]" G.L. 1956 § 9-21-10. 

The judgment of the Superior Court confirming the arbitration award with respect to prejudgment interest was vacated and the case remanded for a new judgment in accordance with this opinion.

Town of Johnston v. David J. Santilli et al, No. 04-320 (March 3, 2006)

The plaintiff (Town of Johnston) and defendants (members of the Johnston School Committee and the school superintendent) appealed the Superior Court’s ruling on their cross-motions for summary judgment. As grounds for appeal, the town maintains that the Johnston town charter requires the school committee to be represented by the town solicitor, and that the motion justice erred in holding that the school committee had a right to retain independent legal counsel. In its cross-appeal, the school committee states that the motion justice was correct in ruling that the charter did not prohibit it from hiring outside counsel. It nevertheless seeks appellate review to determine whether the solicitor’s dual representation of the town and the school committee would create an impermissible conflict of interest.

The Supreme Court reversed the judgment of the Superior Court, and held that the Johnston School Committee was not entitled to hire independent legal counsel because the town charter had been ratified by the legislature and required the solicitor to represent all "departments, offices, and agencies of the town." Notwithstanding the directive of the charter, the Court noted that situations may arise in which a conflict of interest would prevent the solicitor from representing the school committee. The Court held, however, that such instances must be analyzed on a case-by-case basis. 

Camille Ruggiero v. City of Providence et al, No. 04-376 (March 3, 2006)

Appellant, Camille Ruggiero, appealed from a judgment of the Superior Court denying her motion for summary judgment and granting the cross-motion for summary judgment of the appellee, the City of Providence. On appeal, Ruggiero contended that that the hearing justice erred when he determined that there are benefits "payable" to her under the Workers’ Compensation Act. Ruggiero claimed that the workers’ compensation benefits to which she would have been entitled are no longer "payable" to her because the city suspended those benefits pursuant to G.L. 1956 § 28-35-58(a). Therefore, she argued, the city improperly relied on § 17-191 of the Providence Code of Ordinances to offset her disability retirement pension. On the other hand, the city argued that the hearing justice’s interpretation of the word "payable" in § 17-191 was correct.

The Supreme Court interpreted the word "payable" in § 17-191 as referring to an obligation to pay that is not immediately due. Therefore, the Court held that § 17-191 applies to a situation, such as Ruggiero’s, in which workers’ compensation is payable, even though the city has suspended payment of such benefits pursuant to § 28-35-58.

State v. Curley Snell, No. 03-219 (February 27, 2006)

The defendant, Curley Snell, appealed from convictions of one count of felony domestic assault, two counts of assault with a dangerous weapon, and one count of simple domestic assault after previously having been convicted twice of domestic assault, all in connection with a January 12, 2001 encounter between the defendant and his ex-girlfriend. The defendant was sentenced to a total of forty-five years at the Adult Correctional Institutions, with thirty years to serve and the rest suspended, with probation. The defendant’s appeal called into question the prejudicial effect that a jury’s knowledge of a defendant’s incarceration may have on the presumption of innocence. Specifically, Snell argued that the trial justice erred in compelling him to stand trial in prison clothing and handcuffs. The defendant also asserted that the trial justice committed reversible error by not permitting him to select his own attorney, in allowing the jury to hear that he had two prior convictions for domestic assault, and in excluding certain medical records.

The Supreme Court held that because the defendant had not objected to his appearance in prison garb until after a jury had been selected and preliminary instructions given, he was not "compelled" to be tried in prison clothing in violation of his constitutional rights. With respect to shackles, the Supreme Court held that the defendant had not preserved the objection, raising the issue for the first time in a motion for a new trial. Moreover, the Court found that the trial justice gave adequate reasons for restraining the defendant during the trial. In addition, the Court found that the trial justice did not abuse his discretion in refusing to grant a continuance for the defendant to secure alternative counsel, admitting evidence of the defendant’s prior convictions, and excluding irrelevant and prejudicial medical records. Accordingly, the Court affirmed the defendant’s convictions and remanded the record to the Superior Court. 

Joseph K. Horton v. Duane M. Horton, No. 04-353 (February 27, 2006)

The defendant, Duane M. Horton, appealed from a Family Court decision pending entry of final judgment of divorce. Specifically, the defendant challenged the trial justice’s assignment and distribution of marital property and the award of alimony and custody of the parties’ two children to Mrs. Horton. The defendant also contended that the trial justice’s decree ordering him to maintain Mrs. Horton as a beneficiary of his health insurance policy as long as she is unmarried was contrary to § 27-20.4-1 of the General Laws.

This Court held that the trial justice did not abuse his discretion in determining which assets constituted marital property, nor did he abuse his discretion in equitably distributing the marital estate. In addition, this Court held that the award of alimony and sole custody of the parties’ children to Mrs. Horton was proper. Finally, this Court vacated the trial justice’s decree with respect to health insurance and ordered that it be modified in a manner consistent with § 27-20.4-1. Specifically, this Court vacated the Family Court decision insofar as it required respondent to maintain Mrs. Horton as a beneficiary of his medical insurance policy, even if he remarries, for a period of three years. This Court remanded the matter to the Family Court with instructions to modify its decision in a manner consistent with its opinion.

State v. Camillo Lorenzo, No. 04-302 (February 24, 2006)

The defendant, Camillo Lorenzo, appeals from a conviction in Superior Court on four counts, including felony assault with a dangerous weapon in a dwelling, assault with intent to murder, assault with a dangerous weapon, and possession of a knife with a blade in excess of three inches. The trial justice sentenced the defendant to twenty years at the Adult Correctional Institutions, with ten years to serve, ten years suspended, and ten years probation, with the lesser- included sentences running concurrently. 

On appeal, the defendant argued that the trial justice committed reversible error by refusing to admit testimony concerning the mental health of the complaining witness at the time of the incident. The defendant assigned error in this regard to the trial justice’s ruling in favor of the state’s motion inlimineand its objection to defense counsel’s sought-after line of inquiry during the cross-examination of the complaining witness, Delphine Garnetto. In addition, the defendant argued that the trial justice erred by disallowing inquiry, also during the defendant’s cross-examination of Ms. Garnetto, into the defendant’s motive for stabbing Ms. Garnetto. 

The Supreme Court affirmed the conviction of the Superior Court, holding that the trial justice had not abused his discretion by excluding further inquiry into the mental status of Ms. Garnetto. After an extensive voirdire, the trial justice found that the defendant’s repeated attempts to impeach the credibility of Ms. Garnetto were inadmissible by virtue of Rule 403 of the Rhode Island Rules of Evidence, which determination the Supreme Court held not to be erroneous. Further, the Supreme Court held that Ms. Garnetto did not possess the requisite personal knowledge under Rule 602 of the Rhode Island Rules of Evidence to testify to the defendant’s motive, rendering defense counsel’s "follow up question" improper.

In re Serenity K., No. 04-297 (February 24, 2006)

The respondent, Hongamath Virasak, the biological father of Serenity K., appeals from a Family Court decree terminating his parental rights on the ground of abandonment. The Family Court found that the Department of Children, Youth and Families (DCYF) showed that the respondent, incarcerated at various times and at different facilities, failed to contact or otherwise communicate with his daughter for at least the statutory six-month period, constituting primafacie evidence of abandonment under G.L. 1956 § 15-7-7(a)(4). On appeal, the respondent argued that he successfully rebutted DCYF’s primafacie evidence because of a brief visit with Serenity and four or five calls he allegedly placed to the social worker that DCYF assigned to Serenity’s case. The Supreme Court affirmed the decree of the Family Court, holding that the respondent’s near-complete lack of contact with his daughter over a period exceeding nineteen months was inexcusable in light of the respondent’s knowledge of Serenity’s whereabouts, and his ability and opportunity to contact her despite his incarceration.

Angelo DeSantis et al v. Wallace Prelle et al, No. 04-269 (February 24, 2006)

Angelo and Vicki DeSantis (plaintiffs) appealed the dismissal of their suit against MetLife Auto & Home Insurance Co., alias, and/or Metropolitan Property and Casualty Co. (insurer), for Wallace Prelle’s (insured) alleged negligent operation of a motor vehicle. The Superior Court dismissed the plaintiffs’ claim against the insurer, which had been brought under G.L. 1956 § 27-7-2, because the plaintiffs did not file suit against the insurer directly until after the statute of limitations had expired pursuant to G.L. 1956 § 9-1-14(b). In this case, the plaintiffs filed a negligence action against the insured shortly before the limitations period expired. Unbeknownst to them, the insured had died approximately twenty-one months previously. The plaintiffs were allowed to substitute the insurer in place of the defendant, but their complaint subsequently was dismissed under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure as being time-barred. The Supreme Court affirmed the judgment of the Superior Court. Specifically, the Supreme Court held that the three-year limitations period provided in § 9-1-14(b) barred a direct action against the insurance carrier; that the 120-day period for service of process under Rule 4(l) of the Superior Court Rules of Civil Procedure did not toll the limitations period; and that Rule 15(c) of the Superior Court Rules of Civil Procedure, which permits an amended pleading to relate back to the date of the original pleading, did not apply because § 27‑7‑2 provides for a direct action against the insurer, not a substitution action.

Rhode Island Economic Development Corporation v. The Parking Company, L.P., et al, No. 04-357 (February 23, 2006)

This case concerned the contentious struggle for control of a multimillion-dollar parking facility, known as Garage B, at Theodore Francis Green Airport. The respondent-appellants, The Parking Company, L.P., Fleet National Bank and Fleet Real Estate, Inc., appealed from an order of the Superior Court granting a so-called quick-take condemnation of a temporary easement in Garage B, based on an exparte petition by the petitioner-appellee, the Rhode Island Economic Development Corporation. The Superior Court approved the condemnation in accordance with the quick-take provisions of G.L. 1956 § 42-64-9. On appeal, the respondent-appellants raised several challenges to the constitutionality of § 42-64-9 and also questioned whether, in fact, the taking was for a public use. 

The Supreme Court held that § 42-64-9, EDC’s quick-take condemnation statute, was constitutional on its face. The Court concluded that the absence of a statutorily prescribed pre-deprivation hearing on the issue of public use was not unconstitutional, but rather was consistent with earlier pronouncements by the Court on the requirements of the Takings Clause. The Court did conclude, however, that the manner in which the statute was applied failed to pass constitutional scrutiny. 

The state’s exercise of its power of eminent domain did not meet the legitimate public purposes identified in the EDC Act and was not a public use under the Takings Clause of the United States Constitution. Specifically, the Court concluded that the condemnation statute was inappropriately utilized by EDC to serve its own economic advantage and to avoid certain contractual provisions governing the parties’ relationship. Consequently, the judgment appealed from was vacated, the condemnation was declared void and the case was remanded to Superior Court for further proceedings consistent with the Court’s opinion.

State v. Jeffrey Mondesir, No. 04-300 (February 20, 2006)

The defendant, Jeffrey Mondesir, appealed conviction after a jury found him guilty for felony assault and possession of marijuana. As grounds for appeal, Mondesir argued that the trial justice improperly denied his motion for judgment of acquittal and motion for a new trial. He also alleged that the trial justice erred by denying his motion to suppress physical evidence seized after he consented to a search of his home. He maintained that his consent was the product of an unlawful police interrogation, and therefore the evidence should have been suppressed. Finally, Mondesir contended that he was prejudiced by the trial justice’s denial of his motion to sever the possession charge from the assault charge. 

The Court held that the trial justice properly adhered to the standards concerning motions for acquittal and motions for new trial, and thus rejected the defendant’s argument that these motions were improperly denied. The Court further held Mondesir’s motion to suppress was properly denied because the motion was untimely. Finally, the Court rejected the defendant’s argument concerning his motion to sever because the possession charge and the assault charge arose from the same incident, and he failed to establish that trying the two offenses together resulted in substantial prejudice. For these reasons, the Court affirmed the judgment of conviction.

State v. Feliciano E. Castro, No. 03-438 (February 6, 2006)

The defendant, Feliciano E. Castro, was convicted of delivering a controlled substance, to wit, cocaine, as set forth in Schedule II of G.L. 1956 § 21-28-2.08, in violation of § 21‑28‑4.01(A)(2)(a), and sentenced to ten years at the Adult Correctional Institutions, with six months to serve and the balance suspended, with probation. He did not timely file a notice of appeal; however, the Supreme Court granted the defendant’s petition for writ of certiorari to review (1) the trial justice’s denial of his motion to suppress certain statements he made to a police officer (which statements he alleges were the fruits of an illegal arrest) and (2) the trial justice’s denial of his motion for a new trial for the state’s failure to prove the charge beyond a reasonable doubt. 

After a de novo review, the Supreme Court held that the arresting officer had sufficient probable cause to arrest the defendant, and therefore incriminating statements made to the arresting officer by the defendant properly were admitted at trial. In addition, the Supreme Court held that the trial justice’s denial of the defendant’s Super.R.Crim.P. 33 motion for a new trial was not an abuse of discretion because there were ample facts of record to lead to the inference by both the jury and the trial justice that the defendant delivered a controlled substance beyond a reasonable doubt. 

Rose Perry v. Joseph Alessi, M.D. et al, No. 04-18 (February 3, 2006)

The defendants, Joseph Alessi, M.D., and East Providence Medical Center/East Providence Medical Center, Inc., appealed from a judgment in favor of the plaintiff, Rose Perry, in this action for medical malpractice. The plaintiff alleged that Dr. Alessi’s failure to diagnose her condition properly as a bowel obstruction caused her to experience excruciating pain, created a life-threatening situation, and resulted in emergency surgery for bowel perforation. The defendants argued that the trial justice committed three errors of law warranting reversal of the judgment and remand for a new trial: (1) failure to enter judgment as a matter of law in the defendants’ favor because the plaintiff failed to establish the requisite element of causation; (2) failure to instruct the jury properly on the burden of proof; and (3) failure to allow Dr. Alessi to testify about the opinion of a consulting physician. Additionally, the defendants contended that the jury verdict was excessive.

The Supreme Court held that there was sufficient evidence from which the jury could infer that the plaintiff’s injuries were caused by the defendants’ negligence, and that the trial justice had properly submitted the issue of causation to the jury. Secondly, the Supreme Court held that the defendants had not properly preserved their objection to the jury instructions for appellate review. Thirdly, the Court held that a statement made by a consulting physician did not qualify as an exception to the hearsay rule under Rule 803(4) of the Rhode Island Rules of Evidence. Finally, the Court upheld the jury’s award of damages. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

Children's Friend & Service v. St. Paul Fire & Marine Insurance Company, NO. 04-35 (February 2, 2006)

This appeal arose out of an action for declaratory judgment that Children’s Friend and Service (plaintiff) brought, concerning an "umbrella excess liability [insurance] policy" St. Paul Fire & Marine Insurance Company (defendant) issued to the plaintiff in 1982. After certain issues concerning indemnity coverage were severed, the question about the applicability of an endorsement that the defendant asserted was part of the plaintiff’s policy was tried before a jury. After a verdict in the plaintiff’s favor, the defendant filed a motion for judgment as a matter of law and a motion for a new trial, both of which the trial justice denied. 

In assigning error to the denials of both post-verdict motions, the defendant argued on appeal that the trial justice erroneously instructed the jury on the substantive law concerning the construction of insurance contracts. Specifically, the defendant argued that the trial justice improperly charged the jury that it must conclude "that a professional services endorsement was attached to the original policy when it was issued" for the terms of the endorsement to apply. Addressing the defendant’s judgment as a matter of law argument, the Supreme Court held that the evidence presented to the jury, and reasonable inferences drawn therefrom, supported the jury’s findings. Also, the Supreme Court held that the trial justice adequately covered the substantive law in charging the jury, and applied the appropriate legal standard. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

Crowe Countryside Realty Associates, Co., LLC v. Novare Engineers, Inc., No. 04-204 (February 1, 2006)

The Supreme Court issued a writ of certiorari in this case to address an important issue under Rule 26(b) of the Superior Court Rules of Civil Procedure concerning the extent to which a party may obtain discovery of written communications between an opposing party’s attorney and its testifying expert witness.

The Supreme Court held that not all communications and information shared with testifying expert witnesses are discoverable. The Supreme Court interpreted subdivisions (b)(3) and (b)(4) of Rule 26 to mean that factual work product shared with testifying experts was fully discoverable, whereas opinion work product, that is, the mental impressions, conclusions, opinions, or legal theories of an attorney, was protected from discovery. The Supreme Court remanded the case to the Superior Court with instructions to review the requested documents incamera so that any opinion work product contained in the documents may be redacted.

In re Ariel N., et al, No. 2005-43 (February 1, 2005)

The respondent mother (respondent) appealed a Family Court decree terminating her parental rights to her three minor children. On appeal, the respondent argued that the trial justice had erred in finding that the respondent defaulted, in proceeding with the hearing in the respondent’s absence, and in finding that the Department of Children, Youth and Families (DCYF) met its burden for proving two allegations pursuant to the termination.

We affirmed the trial justice’s findings, holding: (1) The trial justice’s finding that the respondent defaulted was incorrect, but amounted to harmless error because it did not affect the respondent’s rights; (2) the trial justice did not err in proceeding in the respondent’s absence because the respondent was represented by counsel at the hearing, and said counsel actively represented the respondent’s rights; and (3) the trial justice properly found that DCYF had met its burden with respect to the allegation of abandonment, as defined statutorily in Rhode Island. Because only one allegation must be proven before a termination may be entered, we declined to review the trial justice’s finding of the second allegation.

State v. David Russell, No. 03-353 (January 30, 2006)

In this case, the state appealed from a Superior Court judgment that dismissed a complaint charging the defendant with domestic disorderly conduct in violation of G.L. 1956 § 11-45-1(a)(1) and G.L. 1956 § 12-29-2, the Domestic Violence Prevention Act. The state argued that the hearing justice erred by dismissing the complaint and by construing § 11-45-1(a)(1) as unconstitutionally void for vagueness when applied to disorderly conduct occurring in the home. The Supreme Court held that § 11-45-1(a)(1) survives a vagueness challenge because it provides adequate notice to ordinary people that fighting, threatening, violent or tumultuous conduct is unlawful and the statute sets forth sufficient standards to guide police and the court to avoid arbitrary enforcement. The Court also held that, based on the plain meaning of the statute and because it is an enumerated crime of domestic violence, the statute applies to conduct occurring in private as well as public places. Finally, the defendant’s substantive due process challenge was neither raised nor argued in the Superior Court below and thus, was not properly before the Court. 

John M. Park v. Rizzo Ford Inc., No. 04-264 (January 24, 2006)

The plaintiffs, John M. Park as well as Sandra Mendoza and Charles E. Williams (collectively plaintiffs), appeal two Superior Court judgments in favor of Rizzo Ford, Inc. and Midland Hyundai, Inc. d/b/a Midland Mazda-Hyundai (collectively defendants), respectively, which dismissed the plaintiffs’ causes of action. The motion justice determined that the legal basis for the plaintiffs’ suits, a Department of Transportation regulation (DOT regulation) that placed a $20 limit on all "title preparation fee[s]" charged by licensed motor vehicle dealers, had expired by operation of law. As a matter of statutory interpretation, the Rhode Island Supreme Court affirmed that ruling based on a literal reading of G.L. 1956 § 42-35-3(b)(c) and held that a challenge to a regulation on the ground that it is an emergency regulation that expired pursuant to § 42-35-3(b) need not be made within the two-year window prescribed by § 42-35-3(c).

In the Matter of Dissolution of Anderson, Zangari & Bossian, No. 04-187 (January 13, 2006)

The appellant, Attorney Dennis Bossian, appealed from a judgment of the Superior Court concerning a dissolution petition filed with respect to the law partnership of Anderson, Zangari & Bossian. The case was heard before a justice of the Superior Court, sitting without a jury. After considering a great volume of testimonial and documentary evidence, as well as the arguments of counsel, the trial justice issued a written decision, in which he made various findings of fact regarding the terms of the partnership agreement that had existed among the three partners.

 In accordance with established appellate procedure, this Court applied a deferential standard of review to the trial justice’s factual findings and credibility assessments. After considering the record evidence upon which the trial justice’s findings were based, the Court concluded that there was no error. The Court held that the factual findings made by the trial justice were well supported by the evidence before him and, therefore, certainly could not be labeled as "clearly wrong.

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

Housing Opportunities Corporation et al v. The Zoning Board of Review of the Town of Johnston, et al, No. 04-75

Housing Opportunities Corporation (HOC) appealed from a decision of the State Housing Appeals Board (SHAB) that affirmed the Town of Johnston Zoning Board of Review’s denial of an application for a comprehensive permit for low and moderate income housing. On appeal, HOC argued that SHAB erred when it found that the zoning board’s denial of HOC’s application for a comprehensive permit was consistent with the Town of Johnston’s Comprehensive Plan. HOC also contended that SHAB’s decision to uphold the zoning board’s ruling clearly was erroneous in view of the evidence.

The Supreme Court said that SHAB’s decision was based on substantial evidence that the size, density, and intensity of use proposed for the parcel in controversy was not consistent with the Comprehensive Plan, even though the development would further the town’s goal of providing more low and moderate income housing. Accordingly, the Court held that SHAB did not err in finding that the zoning board’s decision was consistent with the Town of Johnston’s Comprehensive Plan.

With respect to the sufficiency of the evidence, the Supreme Court stated that the Low and Moderate Income Housing Act permits SHAB to affirm a zoning board’s denial of a comprehensive permit based on the project’s potentially deleterious effects on the character of the surrounding area, if that impact is considered in light of the entire statutory definition of "consistent with local needs" as well as the standards delineated in G.L. 1956 § 45-53-6(c). The Court held that there was ample evidence in the record that the proposed development would require a multitude of variances from local zoning ordinances and subdivision regulations, and would differ substantially from and dominate the surrounding neighborhood in terms of density, intensity of use, and overall size. Therefore, the Court concluded that the evidence was sufficient to support SHAB’s determination that the zoning board’s decision to deny HOC’s application for a comprehensive permit was consistent with local needs.

State v. Antonio Bryant, No. 04-163 (January 10, 2006)

The defendant, Antonio Bryant, was convicted by a jury of simple domestic assault -- his third conviction of a domestic offense. On appeal, the defendant argued (1) that the trial justice erred in refusing to allow defense counsel the opportunity to make an opening statement prior to the introduction of evidence by the state; (2) that the trial justice abused his discretion in refusing to strike the testimony of a young witness pursuant to Rule 602 of the Rules of Evidence for lack of personal knowledge on her part; and (3) that his constitutional right to due process was violated when the trial justice refused to pass the case and declare a mistrial after the state attempted to elicit certain testimony from Officer Nichole Leboeuf.

This Court held that the trial justice did not err in refusing to allow defense counsel the opportunity to make an opening statement prior to the introduction of evidence by the state, because defendant failed to clearly indicate to the trial justice that he would present any affirmative evidence. The Court also held that the trial justice did not abuse his discretion in refusing to strike the testimony of the witness for lack of personal knowledge, since it is clear from the record that the witness could have perceived the events and statements about which she testified. Furthermore, the Court held that the trial justice did not abuse his discretion in refusing to pass the case and declare a mistrial because the curative instruction given by the trial justice was sufficient to eliminate any prejudice that may have arisen from the question posed by the prosecution.

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

In re Rosalie H. et al, No. 04-1 (January 9, 2006)

The respondents appealed from a Family Court decree terminating their parental rights to their son, Gregory, and daughter, Rosalie. To support their appeal, the respondents argued (1) that the Family Court erred when it failed to make a finding of unfitness, (2) that the trial justice’s finding of unfitness based upon the respondents’ refusals to accept DCYF services was unconstitutional because it violated the Fifth Amendment to the United States Constitution, (3) that DCYF did not make reasonable efforts to reunify the family, and (4) that the state violated the respondents’ constitutional due process rights by first denying them visitation and then claiming that they abandoned their children.

The Supreme Court affirmed the decree terminating the respondents’ parental rights. The Court held that, after reviewing the record, it was clear that the trial justice did make a finding of unfitness and that such finding was supported by ample evidence. The Court also concluded that the trial justice did not infringe upon the respondents’ constitutional rights to be free from self-incrimination. Even though the Fifth Amendment properly may be invoked in a civil proceeding, it did not provide the respondents with the right to refuse all services aimed at reuniting them with their children. The Court also found that DCYF fulfilled its obligation to make reasonable efforts at reunification considering the respondents’ wholesale refusal to cooperate with the department. Finally, the Court rejected the respondents’ contention that a finding of abandonment constituted a denial of their due process rights. The Court explained that although the respondents were not permitted to visit their children, it was their own conduct that precluded such contact.

Joanne T. Cardinale v. Norman A. Cardinale, No. 04-58 (January 9, 2006)

This case involved a bitterly contested, so-called bifurcated divorce proceeding that spanned more than four years. Although the parties were granted an absolute divorce on January 2, 2003, claims concerning alimony, child support and equitable distribution were left for another day. After several trips to the Supreme Court, a final judgment entered on June 1, 2004. The plaintiff, Joanne T. Cardinale, subsequently appealed, alleging that the trial justice, in considering the contested issues (alimony, child support, equitable distribution), committed manifest error at several stages of the trial. These assignments of error also included allegations of bias and partiality on the part of the trial justice.

The Court held that the trial justice abused his discretion with respect to virtually every contested issue. The Court concluded that the trial justice failed to adequately consider statutory guidelines, failed to make sufficient findings of fact, overlooked or misconceived relevant evidence, reached conclusions that were unsupported by the evidence, and neglected to address asset dissipation on the part of the defendant, Norman A. Cardinale. The Court modified the final judgment in accordance with its decision. The Court also addressed the ill-conceived practice of bifurcation. After noting that bifurcation is not specifically provided for in the Rules of Procedure and that it runs afoul of Rule 54 of the Family Court Rules of Procedure for Domestic Relations, the Court held that (except in extraordinary cases, and then only with respect to issues of child support, custody, visitation and relocation), all of the issues between the parties shall be adjudicated in a single proceeding. Thus, the Family Court practice of bifurcation was strictly limited.

In re Manuel P. et al, No. 02-679 (January 9, 2006)

Paulette Milner appealed from a Family Court judgment terminating her parental rights to her daughter, Anne Marie. The Department of Children, Youth and Families (DCYF or department) appealed from the Family Court’s decision not to terminate Milner’s parental rights to her sons, Manuel and Stephen. To support her appeal, Milner argued that the trial justice erred in finding that DCYF made reasonable efforts to reunite her with Anne Marie because his finding contravened the Supreme Court’s holding in In re Christopher B., 823 A.2d 301 (R.I. 2003). With regard to its appeal, DCYF contended that reasonable efforts were made to reunite Milner with her sons, Stephen and Manuel, and that in ruling to the contrary, the trial justice overlooked services that were offered during the first twelve months in which the children were in state custody. DCYF also argued that its efforts were reasonable in light of Milner’s noncompliance with the case plan and her limited mental capabilities.

The Supreme Court affirmed the decision of the trial justice and denied both appeals. With regard to DCYF’s appeal, the Court held that the trial justice did in fact consider the services provided, but found them to be insufficient in relation to the sons. The Court also upheld the trial justice’s finding that Milner’s noncompliance did not obviate the need for DCYF to provide appropriate services in the first place. Finally, the Court held that DCYF’s argument that its efforts were reasonable because it was unlikely that any services would help reunite the family, contravened the court’s well-established case law. Therefore, the Court affirmed the Family Court’s decision not to terminate Milner’s parental rights to Manuel and Stephen. With regard to Milner’s appeal, the Court was evenly divided; therefore, it affirmed the judgment terminating her parental rights to Anne Marie.

Sturbridge Home Builders, Inc., a nominee of Seaport Home Builders, Inc. v. Downing Seaport, Inc., et al, No. 04-351 (December 29, 2005)

In this case, the plaintiff, Sturbridge Home Builders, Inc., as nominee of Seaport Home Builders, Inc., appealed from partial summary judgment entered in favor of the defendants. The plaintiff argued that it retained an option to purchase real estate under the terms of a purchase and sales agreement that the parties entered into in 1993. This Court affirmed the hearing justice’s decision concluding that the contract was not ambiguous and that there were no genuine issues of material fact. Alternatively, the plaintiff argued that if the purchase and sales agreement was not ambiguous, defendant either waived the requirement for extension of the contract or the doctrine of equitable estoppel applied to preserve the plaintiff’s option. The plaintiff failed, however, to produce sufficient evidence to substantiate either a waiver or equitable estoppel argument.

State v. Thomas Menard, No. 04-169 (December 27, 2005)

The state appealed a Superior Court order dismissing for lack of probable cause to prosecute a charge that the defendant, Thomas Menard (defendant), was found in possession of a firearm after he previously had been convicted of a crime of violence in contravention of G.L. 1956 § 11-47-5. The Supreme Court held that it was clear and unambiguous that Rhode Island law should determine whether an out-of-state conviction could qualify as a permissible predicate offense under § 11-47-5. In addition, the Court held that class 4 felony arson in Arizona—the defendant’s predicate conviction—contained the same elements as second-degree arson in Rhode Island, thereby qualifying as a permissible predicate offense under § 11-47-5. The judgment of the Superior Court was reversed and the record remanded.

Jason Ferrell v. A.T. Wall, Warden of the Adult Correctional Institutions, No. 05-54

The state appealed a Superior Court grant of post-conviction relief vacating the several convictions of the defendant, Jason Ferrell (defendant), for conspiracy to commit first-degree murder, conspiracy to assault with intent to murder, and assault with intent to murder in connection with the 1995 killing of John Carpenter. The Supreme Court held (1) that the hearing justice committed clear error in finding credible a videotaped recantation that was made out of court and not under oath and where the recanting witness invoked his Fifth Amendment privilege against self-incrimination at the post-conviction relief hearing; (2) that the hearing justice abused his discretion by admitting an unsworn out-of-court videotaped recantation into evidence because it was inadmissible hearsay; and (3) that the defendant did not suffer constitutionally significant prejudice to satisfy the elements of a claim for ineffective assistance of counsel. The order of the Superior Court was reversed and the defendant’s convictions and sentence were reinstated.

JCM, LLC v. Town of Cumberland Zoning Board of Review et al, No. 04-238 (December 27, 2005)

The Town of Cumberland, by and through its finance director, Thomas M. Bruce, III (town) appeals an order of the State Housing Appeals Board (SHAB) remanding for further factual findings the denial of a comprehensive permit application, submitted pursuant to the Low and Moderate Income Housing Act (housing act), G.L. 1956 chapter 53 of title 45, by JCM by the Town of Cumberland Zoning Board of Review (board). The Supreme Court held that: (1) the pre-amendment housing act applied under its holding in Kaveny v. Town of Cumberland Zoning Board of Review, 875 A.2d 1 (R.I. 2005); (2) the holding in Town of Coventry Zoning Board of Review v. Omni Development Corp., 814 A.2d 889, 898-99 (R.I. 2003), continues to require that SHAB review a comprehensive permit application denial for "consistency with local needs" if the involved community has not yet attained the 10 percent low and moderate income housing quota; and (3) a zoning board’s duty to produce a competent factual record is without exception. The Court affirmed SHAB’s decision and remanded the case to the board.

Imperial Casualty and Indemnity Co. v. Amitie Bellini et al. Michael DeSantis v. Imperial Casualty and Indemnity Co. et al. No. 2003-480-A and 2003-481-A (December 22, 2005)

Michael DeSantis (DeSantis), Amitie Bellini (Bellini), and Norbell Realty Corporation (Norbell) (collectively the plaintiffs) appealed a Superior Court judgment finding Imperial Casualty and Indemnity Company (Imperial) was not liable for a personal injury award owed to DeSantis by the now-defunct Norbell. On appeal, the plaintiffs contended that they had been denied the right to trial by jury, and that the trial justice had committed clear error by refusing to hold Norbell liable on the theories of waiver and estoppel, by not applying the doctrine of spoliation against Norbell, and by declining to reform to the insurance contract to reflect the parties’ intent.

 The trial justice did not err when he denied the plaintiffs’ last-minute motion for a trial by jury on issues not triable by jury. We held that Imperial waived its right to deny coverage by demanding payment under the contract with knowledge of the possibility that Norbell was not the named insured. We declined to rule on the issues of estoppel, reformation, and spoliation, and remanded the case to the Superior Court for trial on the issues of debt on judgment and bad faith.

1800 Smith Street Associates, LP v. Louis A. Gencarelli, Sr. 1500 Mineral Spring Associates, LP, by and through its partner Jason’s Realty Corp. v. Louis A. Gencarelli, Sr. No. 2004-286-A (December 22, 2005

The defendant, Louis A. Gencarelli (defendant), former CEO of Bess Eaton Donuts, appealed three separate judgments of the Superior Court awarding the plaintiffs back rent and associated expenses under two lease agreements, the validity of which were contested in three consolidated cases. The Supreme Court affirmed the trial justice’s ruling, holding that: (1) without express contrary indication, or at least evidence to suggest otherwise, time was not of the essence in the leases; (2) the defendant waived all time limits in the lease agreements by his conduct; and (3) the defendant acted in bad faith with respect to his conditional obligations under the leases.

Providence Teachers' Union Local 958, Afl-cio, AFT et al v. The City Council of Providence et al, No. 03-541 (December 21, 2005)

In 1999, the Providence Teachers’ Union and five teachers filed a complaint challenging the application of § 1210 of the Providence Home Rule Charter of 1980, which required all Providence municipal employees, including those of the Providence School Department, to reside within the city limits of Providence. The five individual teachers sought the equitable relief of reinstatement to their former positions as teachers in the Providencepublic school system. After a hearing on the plaintiffs’ request for preliminary and permanent injunction, the trial justice rejected their claim that the residency provision had been selectively enforced against them, and subsequently entered judgment for the defendants. The only teacher-plaintiff to appeal from judgment, Oscar Tassone argued that defendants selectively enforced § 1210 in violation of section 1 of the Fourteenth Amendment to the United States Constitution and article 1, section 2, of the Rhode Island Constitution. The Supreme Court held that Mr. Tassone failed to prove that defendants acted with malice or in a bad-faith attempt to injure him, and thus affirmed the judgment of the Superior Court.

State v. Norberto Caba, No. 04-337 (December 21, 2005)

A jury found the defendant guilty on one count of assault with a dangerous weapon. On November 7, 2003, the trial justice sentenced him to ten years, with five to serve, to run concurrently with a sentence the defendant then was serving as a probation violator. On appeal, the defendant claimed that the trial justice erred in denying the motion for judgment of acquittal made after the close of the state’s case and later renewed at the close of evidence. The Supreme Court held that evidence concerning the defendant’s "present ability" to carry out his threat to do corporal injury was insufficient to survive a motion for judgment of acquittal. Because here the state failed to provide sufficient evidence by which the jury could infer the existence of an operable weapon beyond a reasonable doubt, the Supreme Court vacated the judgment of conviction. The Court distinguished the case at bar from State v. Clifton, 777 A.2d 1272 (R.I. 2001); State v. Jackson, 752 A.2d 5 (R.I. 2000); State v. Andrade, 657 A.2d 538 (R.I. 1995); and State v. Boillard, 789 A.2d 881 (R.I. 2002); in each of which cases the evidence was held to be sufficient for the fact-finder to infer that defendant possessed an operable firearm, and thus had the "present ability" to carry out a threat.

Camille Ruggiero v. City of Providence, No. 04-88 (December 19, 2005)

The petitioner, Camille Ruggiero, sought review of a decree of the Appellate Division of the Workers’ Compensation Court affirming the trial court’s denial of her request to discontinue her workers’ compensation benefits. The petitioner argued that the Appellate Division erred as a matter of law when it ruled that her workers’ compensation benefits could not be discontinued absent evidence establishing that her incapacity to work had ended. Ms. Ruggiero also argued that the provisions of article 1, section 2, and article 1, section 5, of the Rhode Island Constitution, as well as principles of equity, require the granting of her request that her own benefits be discontinued. This Court granted Ms. Ruggiero’s petition for certiorari to review the Appellate Division’s denial and dismissal of her appeal.

This Court held that the Appellate Division properly construed and applied the relevant language of the Workers’ Compensation Act and committed no error of law in holding that it did not have the authority to discontinue the petitioner’s workers’ compensation benefits absent evidence that she had regained her earning capacity. Moreover, the Court ruled that there was no evidence in the record indicating that the provisions of the Rhode Island Constitution cited by the petitioner were offended by the statutory scheme governing her workers’ compensation benefits. Finally, the Court also held that no principle of equity supported the petitioner’s contention that she should be allowed to discontinue her workers’ compensation benefits.

Accordingly, this Court affirmed the decree of the Appellate Division of the Workers’ Compensation Court. 

Maria Esposito, as executrix of the Estate of Marion T. Thomson v. James P. O'Hair et al, No. 04-186 (December 19, 2005)

The defendants, who include both medical care providers and the Medical Malpractice Joint Underwriting Association (MMJUA), appealed a Superior Court holding that Medicaid benefits are inadmissible as evidence to reduce their liability to an injured party in a medical malpractice case. This action began in March 2001, after the plaintiff’s decedent filed suit alleging that the defendants negligently failed to diagnose her with Hodgkins Lymphoma. Esposito and the defendants reached a settlement agreement in which all claims were dismissed, with the exception of a $381,689.26 claim for medical expenses. The Superior Court entered judgment for this amount, plus interest, in Esposito’s favor. 

As grounds for appeal, the defendants argued that Esposito’s recovery should have been reduced by the amount of Thompson’s Medicaid benefits because Medicaid is a "state income disability act," within the meaning of the collateral source statute, G.L. 1956 § 9-19-34.1. According to the defendants, § 9-19-34.1 is a remedial statute aimed at controlling the cost of medical malpractice insurance premiums, and therefore it should be liberally construed to effectuate this goal. The Court held that, regardless of whether the statute was liberally or strictly construed, Medicaid was not a state income disability act because recipients of Medicaid do not receive income and they need not be disabled to receive benefits. Therefore, the judgment of the Superior Court was affirmed. 

State v. Edward Mann, No. 04-362 (December 9, 2005)

A jury convicted the defendant, Edward Mann, of one count of receiving stolen goods valued over $500, specifically a dirt compactor that had been stolen from Home Depot. The trial justice sentenced the defendant to two years to serve in home confinement, and five years suspended, with five years probation. On appeal, the defendant argued that the trial justice committed reversible error in permitting the prosecution to elicit (1) inadmissible hearsay evidence and (2) inadmissible lay-witness opinion testimony. The Supreme Court held that the alleged hearsay statement had not been offered to prove the truth of the matter asserted. Rather, the statement was offered to show what prompted the witness to conduct an equipment inventory, which resulted in the matching of the serial number of a compactor missing from Home Depot with that of the compactor discovered in the defendant’s truck. Accordingly, the statement was not hearsay. Secondly, the Supreme Court held that a police officer’s use of the word "story" in testifying about a statement made to him by the defendant did not constitute impermissible opinion testimony. The trial justice, therefore, did not abuse his discretion in denying the defendant’s motion to strike the word "story." The judgment of conviction was affirmed.

State v. Chester R. Briggs, No. 03-404 (December 6, 2005)

The defendant, Chester R. Briggs (defendant), appealed from his conviction of first-degree murder of Patricia Jacques. The defendant contended that his right to confront various witnesses was improperly curtailed and that the trial justice incorrectly ruled against him on a number of evidentiary issues. The defendant further advanced other arguments related to alleged jury misconduct, discovery violations, the state’s vouching for a witness, and newly discovered evidence. The Rhode Island Supreme Court, in affirming the judgment of the Superior Court, held that none of the defendant’s arguments on appeal warranted a new trial.

State v. Antonio Mendoza, No. 00-409 (November 30, 2005)

The defendant, Antonio Mendoza (defendant), appealed his Superior Court conviction for delivery of a controlled substance, conspiracy to violate the Rhode Island Uniform Controlled Substances Act, possession of marijuana, and resisting arrest. The Supreme Court first held that the state did not violate Rule 16 of the Superior Court Rules of Criminal Procedure by failing to produce a non-inculpatory statement at discovery, and that the state’s question at trial attempting to elicit this statement was not unfairly prejudicial to the defendant. Second, the Court declined to adopt Wharton’s Rule, yet noted that the doctrine would not preclude the defendant’s prosecution and subsequent conviction for conspiracy. Third, the state’s evidence was sufficient to support a finding that the defendant reasonably believed he was being arrested by police officers. Fourth, the trial justice properly gave a flight instruction to the jury. Finally, a coconspirator’s guilty plea to the same conspiracy was properly admitted as impeachment evidence. Accordingly, the judgment of conviction was affirmed.

Douglas Stewart v. Sue P. Sheppard, in her capacity as Town Administrator of the Town of Lincoln, Rhode Island, No. 05-14 (November 15, 2005)

In this case, the plaintiff, the former Town of Lincoln Finance Director Douglas Stewart, appealed from the grant of partial summary judgment in favor of the defendant, Sue P. Sheppard, in her capacity as town administrator of the Town of Lincoln, on the issue of wrongful termination of employment. In seeking compensatory and punitive damages, the plaintiff alleged that his removal from office by the defendant, without cause, was not in accordance with the removal procedures contained in section 14-10 of the town charter. The hearing justice found that the position of finance director was vacated, by operation of law, upon the swearing in of the new town administrator, and thus the removal protections did not apply to the plaintiff. The Supreme Court vacated the judgment, holding that the finance director was an officer of the town and consequently, in accordance with section 14-10, the defendant had a duty to ask for the plaintiff’s resignation or prefer charges against him before the town council seeking his removal. Since neither was pursued, the plaintiff’s removal from office was wrongful. The Court further held that recent charter amendments were convincing evidence that the drafters intended for the finance director to be covered by the removal procedures set forth in section 14-10.

In re Anthony Tavares, No. 02-604 (November 14, 2005)

The Department of Mental Health, Retardation and Hospitals (MHRH) petitioned the Court for certiorari after a justice of the Superior Court ordered the defendant, Anthony Tavares, to remain committed at MHRH’s forensic unit after his competency to stand trial had been restored. Before he was committed, Tavares had been arrested and held without bail for murdering his social worker. After a competency evaluation, Tavares was adjudicated incompetent to stand trial and committed to MHRH’s forensic unit for the purpose of restoring his competency. Tavares’ competency was ultimately restored; however, the hearing justice ordered him to remain at the forensic unit to ensure that he retained his competency during trial.

MHRH argued that the hearing justice erred in ordering Tavares’ extended commitment because, according to the petitioner, G.L. 1956 § 40.1-5.3-3 mandates that forensic commitment "shall terminate" once a person is restored to competency and that the statute does not permit judicial discretion to consider a defendant’s future competency. The Court held that § 40.1-5.3-3 was remedial in nature, and therefore it was proper for the hearing justice to order Tavares’ continued commitment because mandatory termination of forensic commitment could, in some cases, thwart the legislative intent of ensuring that criminal defendants are competent to stand trial. Therefore, the order of the Superior Court was affirmed. 

State v. Mark D. Sampson, No. 04-314 (October 31, 2005)

The Supreme Court affirmed a hearing justice’s decision to revoke the defendant’s probation and sentence him to serve three years of a previously-suspended sentence. On appeal, the defendant, Mark D. Sampson, asserted three arguments: (1) that the hearing justice erred in refusing to allow him a continuance to secure new counsel; (2) that the hearing justice should have recused because he had recently presided over a trial of the defendant’s brother; and (3) that the hearing justice improperly had factored in a belief that the defendant testified untruthfully when he sentenced him.

The Court held that Sampson failed to establish that the hearing justice abused his discretion in denying the request for a continuance, that the hearing justice was not required to recuse because Sampson failed to establish any real or apparent bias on the part of the justice, and finally that the three-year sentence was not improper because the justice had wide latitude in sentencing Sampson. For these reasons, the judgment of the Superior Court was affirmed. 

John H. Petrarca v. Fidelity and Casualty Insurance Company, No. 05-2 (October 31, 2005)

The plaintiff, John H. Petrarca, appealed summary judgment in favor of the defendant, Fidelity and Casualty Insurance Company (Fidelity). The Superior Court held that Fidelity was not required to indemnify Petrarca for damages to a car that he borrowed from an automobile dealer while his car was being repaired. The court reasoned that when Petrarca borrowed the car, he failed to provide the automobile dealer with adequate proof of insurance, and therefore, under G.L. 1956 § 31-3-20(c), the automobile dealer, and not Petrarca, was liable for the cost of repairs. The court also held that Petrarca did not personally suffer damages as a result of Fidelity’s denial of coverage because he did not own the car and any claim against him by the owner for the cost of repairs had lapsed under the applicable statute of limitations. 

The judgment of the Superior Court was affirmed by the Court. The Court agreed that Petrarca failed to offer any evidence of damages to support his claim against Fidelity. In the absence of such evidence, it was not necessary for the Court to address whether Petrarca complied with § 31-3-20(c). 

State v. David LaRoche, No. 03-327 (October 28, 2005)

The defendant appealed from a probation revocation hearing in which he was deemed a violator of his probation and sentenced to serve in prison four of the five years remaining on his suspended sentence. The hearing justice found that the defendant had willfully failed to pay restitution in violation of the terms and conditions of his probation. On appeal, the defendant argued: (1) that the lower court erroneously shifted the burden of proof to the defendant to demonstrate his inability to pay restitution, (2) that the court failed to make sufficient findings of fact to support its ruling, and (3) that the imposed four-year sentence of incarceration was disproportionate to an extent that rendered it constitutionally defective.

The Court affirmed the Superior Court, holding that the trial justice did not err in requiring the defendant to satisfy the court that he made sufficient bona fide efforts to pay restitution. This Court also held that the evidence produced at the hearing was satisfactory to support the trial justice’s findings and that he acted neither arbitrarily nor capriciously. Finally, the Court held that because the excessive punishment objection was not raised in the trial court, it could not be raised on appeal. Moreover, the constitutionality of a sentence imposed for violating a condition of probation must be weighed in the context of the original offense. The appellant should have objected to the prison sentence within 120 days of the time when the sentence was imposed, pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, and therefore his objection could not be properly maintained on appeal.

State v. Frank C. Vieira, No. 02-254 (October 25, 2005)

The defendant, Frank C. Vieira (defendant), appealed from a Superior Court judgment, finding that he violated the conditions of a suspended sentence with probation. On appeal, this Court held that the evidence set forward at the probation violation hearing proved within a reasonable probability that the defendant breached the peace and did not remain on good behavior. The hearing justice also did not err when he removed the entire suspension of the nine-year, six-month sentence for the 1995 conviction of possession of stolen motor vehicle. Finally, the defendant’s attempt to compare his sentence for his violation of his probation to the sentence imposed upon a coconspirator was unavailing in this instance.

State v. David Ferrara, No. 05-51 (October 21, 2005)

The defendant, David Ferrara, appealed from the Superior Court’s finding that he had violated the terms and conditions of his probation by committing an attempted breaking and entering. The defendant argued (1) that the photo array used by the Providence police violated his constitutional right to due process because it was unduly suggestive and (2) that the hearing justice abused his discretion by refusing to admit two documents discussing protocols for conducting photo arrays that are used in certain other jurisdictions. 

This Court held that the hearing justice did not abuse his discretion in finding that there was reasonably satisfactory evidence that defendant had violated the terms and conditions of his probation. Moreover, the Court ruled that the hearing justice was also well within his discretion in excluding the two foreign documents. The Court also held that the proffered documents, as well as the photo array used by the Providence police, were irrelevant to the ultimate determination that the hearing justice was required to make in this case -- namely, whether defendant was on good behavior on the day in question.

Accordingly, this Court affirmed the decision of the Superior Court. 

State v. Michelle Garcia, No. 02-678 (October 21, 2005)

In this appeal from a conviction for first-degree murder, the Supreme Court rejected the defendant’s assignments of error that the trial justice abused his discretion in refusing to allow evidence of the decedent’s prior bad acts in the absence of evidence that the defendant had actual knowledge of the decedent’s violent tendencies. Pursuant to Rule 404(b) of the Rhode Island Rules of Evidence, evidence of a decedent’s prior violent behavior or reputation for violence is never admissible to show that the decedent was the aggressor, and is admissible only to prove that the defendant feared imminent bodily harm and that the fear was reasonable. 

The Court also rejected the defendant’s argument that she was entitled to a manslaughter instruction to mitigate the crime of murder to the lesser-included offense of voluntary manslaughter. Rhode Island does not recognize imperfect self-defense. The Court agreed with the trial justice that there was not sufficient evidence to establish an actual and adequate dispute of any mitigating factors sufficient to submit manslaughter to the jury. Finally, any error that arose from the introduction of the results of ballistics tests done by an out-of-state police laboratory was harmless error – the Court concluded that this evidence was cumulative evidence in the face of overwhelming evidence of defendant’s guilt.