*1 cate expenses of administration be- parties.
tween the The cases cited
remaindermen are of no assistance to the
Court, and we decline to address them.
There is no merit to the remaindermen’s allocating
contention that attorneys’ fees to
the estate is an abuse of a trustee’s fidu-
ciary duty or otherwise constitutes waste
of the remainder interest.
Accordingly, we vacate the judgment of Court, Superior and remand this case
with instructions to enter allo-
cating $22,931.68 in expenses of admin- solely
istration against the in- remainder
terest, in accordance with this decision.
STATE
Craig DiPETRILLO.
No. 2005-88-C.A.
Supreme Court of Rhode Island.
May 2007.
twenty years at the Adult Correctional Institutions, serve, years with six on the first-degree charge sexual assault *3 years, concurrent term of ten with two serve, years to on the second-degree sexu- al charge. assault The defendant moved for a newly new trial based on discovered evidence. After an evidentiary hearing, denied new trial mo- appeal tion and this ensued. Court, Supreme
Before the defendant (1) assigns two errors law: justice erroneously defined the elements second-degree first-and sexual assault as it trial; applied to the evidence adduced at (2) and denying erred in defendant’s motion for a new trial. The requests defendant that the convictions be and that vacated the case be remanded to Superior Court for a new trial. For opinion, the reasons stated in this we af- part firm in and in part vacate and remand Superior the case Court for addi- findings, record, tional based on the and entry of new in accordance Weisman, L. Providence, Aaron Esq., opinion. with this for Plaintiff. Facts and Travel III, MacFadyen, John A. Esq., Provi- dence, for Defendant. The gave incident that rise to these con- victions occurred in early evening WILLIAMS, C.J., Present: and March leading up 2002. The facts GOLDBERG, FLAHERTY, SUTTELL, alleged assault and the events ROBINSON, JJ.
evening question largely are not in dis- pute. OPINION GOLDBERG,
Justice for the Court. The complainant, whom we shall refer to Jane, years was nineteen old when she This case came Supreme before the began working for DiPetrillo as a draft- 3, 2006, Court on October appeal of sperson business, at his North Providence defendant, (DiPetrillo Craig DiPetrillo time, Designs. Aeriel At that Jane was defendant), Superior from a judg- building architectural studying engi- first-degree ment of conviction of sexual assault, neering at England the New Institute of digital penetration, and second- (New Tech). assault, degree Technology England sexual breast contact. She DiPetrillo, defendant was found on both was thirty counts hired then years in a jury-waived old, trial and was sentenced to draftsperson as a on projects work it; boss, my he “stop clien- both commercial and residential told we couldn’t this.” She also tried to tele. do him stop touching from her breast tell- Wednesday, On March DiPe- “no, ing him we ha[ve] several times late, purportedly trillo asked Jane to work stop” pushing away. his hand then setting up design library assist unavailing. This DiPetrillo resistance was company’s basement. other Because by pulling continued assault Jane’s employees stayed pitch had late to in the to her knees pants underwear down before, obliged week forgo Jane felt her penetrating vagina and then digitally England evening class New Tech so *4 right his fingers with one hand stay help that she and could defendant. approximately a minute. Scared and day p.m., The work ended at 4:80 but shock, again in told DiPetrillo “we Jane rather begin project than work stop;” up, have to she stood restored her immediately, suggested DiPetrillo that he clothing, attempted away. to walk and and run “errands” Jane some first. DiPe- grabbed The her around defendant trillo then drove the two of them waist, forcibly and there held her while he pick Chinese restaurant up takeout ejacula- masturbated, of his spilling some food, liquor buy to a store to then Although tion on her stomach. Jane tried beer, twelve-pack finally and to his away, push he would not him release house, where defendant changed his masturbating. her until he had finished pair clothes. The returned to the at office p.m. food, 5:30 and away, stopped consumed and two Jane in the then walked each, beers up, before work bathroom and then commencing to clean carried around p.m. magazines 6:15 box of basement. Ac- Jane, cording to “Mr. DiPetrillo [then] The defendant offered Jane another came the basement [ ] downstairs to to see beer, consumed, which she and he then him doing, what and I told I was [I was] asked his her to come into office to sort done, get I going going, and he was magazines. DiPetrillo offered her a fourth pushed up against me and he kissed me.” beer, which drank she while sat defendant said, The “we defendant then shouldn’t tell behind his DiPetrillo desk. then asked anybody happened.” ap- about what At Jane to come over to his desk. When she proximately Jane left the p.m., 7:30 build- so, grabbed wrist, did pulled he her ing. her lap, began kissing onto his and her. Jane, According to she had Jane initially day, bring did not The next react and she kissed him back. lunch repeated “[they] But then him and protested, she telling anybody can’t shouldn’t about what had hap- DiPetrillo “we tell pened.” day, do this” and that was her Ac- in the he boss. Later that context of cording testimony, expressing traveling Jane’s DiPetrillo her discomfort about physically moved her from his with an lap upcoming onto the DiPetrillo on business supervisor placed trip, seat of the chair. With his Jane hands confided arms, previous on each he eve- chair’s stood over disclosed the events her; kissing put ning. her and continued he also hand under her shirt touched her spoke to a night, Later Jane also
breast. the assault. She employer former about police
At spoke testified that then with a offi- point Jane Woonsocket fear, cer, put she with kissing was in tried to avoid the who contact North following away, Monday, by moving repeatedly police. her face Providence Jane gave called sick and a statement to ered presented, all of the evidence I am police. North quit Providence She her well satisfied a reasonable doubt job day. course, the next grand In due that the defendant is as charged of jury indictment, returned both counts in the two-count and a indictment ver- guilt dict of shall against defendant. be recorded as to those charges.” two The trial noted that The defense was consent. DiPetrillo alleged the sexual activity the charges testified at trial essentially recounted against contested; defendant was not what events, the same series of but insisted dispute was in activity was whether he had performed also cunnilingus on “procured by was force or coercion” or was Jane, who, said, he a willing partici- consensual, as defendant claimed. pant. Indeed, evidence, at the close of the light of the issues raised on appeal, the trial justice and defense counsel en- we shall portion set forth that of the trial gaged in the following colloquy: justice’s pertains decision that ele- “The only Court: The issue is whether jus- ments force or coercion. The trial or not alleged well, these alleged, *5 — tice held as follows: encounters, there were sexual as has “Generally force or speaking, coercion described, been by as has been indicated overcoming means the victim of sexual the defendant himself on the stand. through assault application physi- the only The issue is whether or not [the violence, will, against cal or prevail s]tate can on its claim that these and without her consent. sexual encounters occurred as a result “It compelling also includes victim force and coercion? threatening to submit by to use force or “[Defense correct, That Counsel]: violence, reasonably victim be- Your Honor. lieved that the defendant had the pres- claim, “The Court: opposed your As ability carry ent out such threats. that is say, your client’s claim whatev- prove not that a [s]tate need defen- er sexual encounter occurred was con- actually, by dant spoken, or words ex- sensual? victim, pressly threatened his because a “[Defense Exactly.” Counsel]: may implied threat as well ex- as Significantly, point at no did defendant words, press. In other the victim need challenge evidence, sufficiency not actually any threatening have heard during trial, either or in posttrial motions. words in for her to order have reason- Nor did request specific find- ably of her been fear assailant. ings by based on Rule may “Force coercion also consist of 23(c) of Superior Court Rules of Crimi- imposition psychological pressure nal Procedure.1 who, upon a person under all of the circumstances, September suscep- On is vulnerable and a four-day after pressure. tible to such issued a bench deci- sion and found defendant on both “The recognizes law command counts. He declared that “[h]aving by position consid- someone has a who of au- 23(c) 1. The text of Superior Rule specially find the facts separately and state Rules Criminal Procedure reads: opin- its conclusions of law an thereon. If filed, Jury: "Trial Without a ion or case tried memorandum of decision is it jury without gener- court shall make a will be sufficient if the of fact and finding al request and shall in addition on appear conclusions of law therein.” lap, that he continued brought her to his forcibly able to back thority, and who is her, she told him accompa- kiss and that up authority, try need not be to, in an in order for moved her head explicit nied an threat not that she effectively such a to be efforts to kiss her command to avoid his effort ** inherently mouth, kept telling coercive. she and that boss, was her wrong, it that he mind that in him was “One must also bear in boyfriend. She she had a of criminal sex offenses and that prosecution tried, to no expressly that the testimo- at his chest pushed the law holds avail, away grasp ny of victim from his push need not be corroborat- words, testimony of ed. In other while he masturbated. around her waist [Jane], credible, if sufficient itself how Indeed, one she described point finding guilt. No addi- as she support a hovered over her the defendant chair, confirming supplementary evi- with tional and fearful in his trapped sat required. dence is on each arm of of his hands both chair. case, “In this the defendant contends consented to the sexual conduct
[Jane] “I find from the credible evidence upon not forced her. and that force or hallmarks of all of the relevant The defendant does have burden earlier, both coercion that I outlined If, proving the defense of consent. psychological, as were well however, a defendant raises such a de- mis- of the defendant’s part parcel fense, it to negate is the burden [s]tate’s conduct. *6 it beyond a reasonable doubt. other words, prove must that the [s]tate in that office was occurred “[W]hat occurred, activity sexual not as a result unwanted, tried and she disagreeable, consent, as a result of the [Jane’s] but unsuccessfully, to avoid reasonably, but force defendant’s or coercion.” was unable finally what occurred. She justice, having spread upon The trial the defendant over- to avoid because coercion, of force record the elements force and coercion.” came will then that satisfied two found the evidence justice addressed Finally, the categories distinct and coercion: found He credibility of the witnesses. short, ingredients “In all of the were who testified supervisor, Jane and the present 20th evening on the of March state, “trustworthy to be behalf of the will defendant overbear witnesses, especially juxtaposed when young girl, this and attractive diminutive testimony defendant, is without whose very authority by the that he either justice found that credibility.” The trial represented, physi- or a modicum of testimony was “unem- particular in Jane’s out, as I cal force. As it turned so word, unvarnished, and, in a bellished before find from the credible evidence credible.” me, oc- both of those circumstances
curred. a [**] motion On November for a new 20, 2003, DiPetrillo filed a trial, arguing that newly in light that, evidence had come
“So, too, testimony discovered I credit her proba- to a outset, statement the form of Jane’s single from a kiss at the apart prepar- in the course of to con- tion officer made want the defendant she did not According to report. ing presentence said that tinue his advances. She officer, had disclosed probation and the Jane grabbed her wrist defendant that since attack she had seeing been As to the purported newly consensual^]” therapist, was taking prescription evidence, several justice discovered the trial said medications, and, using was alcohol on oc- “[n]othing at all that was presented to casion, marijuana. argued DiPetrillo today any way in [c]ourt would disturb marijuana evidence Jane’s alcohol and my finding as to the credibility of the consumption newly was discovered and in witnesses this case.” In reaffirming the warranted new trial. verdict, previous justice again re- jected the of consent: defense In accordance with Rule 33 of the Supe- rior Procedure,2 Court Rules of Criminal lied, “It’s not as if somehow [Jane] testimony allowed on the embellished, or blocked out what oc- motion. He ruled that in curred that office. There is no dis- case, a motion for a trial actually new pute, large part, about what happened reopen motion to the trial and he en- dispute really that office. The gaged in a colloquy with defense counsel any whether sex was consensual. about to proceed. how The trial then, certainly I found and I would reaf- to treat offered the motion for a new now, firm the finding it was not “any way you’d like.” He suggested to consensual, again relying upon my earli- counsel that he would “look at it in the incorporate er that I today.” motion, context of a new trial or in the Court, Before argues verdict[,] context of revisiting the ultimate committed reversible error I substance, think is] form over [it isn’t when he defined the elements of first-and it?” responded, Defense counsel “I agree, assault, second-degree sexual as applied to Your Honor.” the evidence adduced and when he During hearing, Jane testified that denied defendant’s motion for a new trial. assault, after the there was time which intoxicated, she drank get alcohol to which Standard of Review she attributed *7 upcom- stress of the longWe have held that our stan ing trial and to pressure. school-related findings dard of “of the by review of fact a She sleeping prescribed by took pills, as justice non-jury trial case deferen family physician, her and admitted that on tial. We shall not disturb such findings occasion marijuana. she smoked She also they clearly are wrong unless or unless the testified, however, that there was never a justice trial has overlooked or miscon time when she did not specific, remember ceived relevant and material evidence.” significant events in life. The defen- Cotroneo, 648, Barone v. 711 A.2d 649 argued dant that this evidence raised seri- (R.I.1998) (mem.). However, equally it is ous memory issues about Jane’s and her questions well statutory established that credibility and requested that the court interpretation are reviewed de novo. Web either enter a verdict of or guilty grant not Perrotta, (R.I.2001). 68, v. ster 774 A.2d 76 a new trial. The trial A jury- denied the motion for a motion for a new trial in a new trial previous and reaffirmed his waived criminal find- case is of “limited effec ing that the sexual encounter merely was “not tiveness” because it a “affords de- Superior 2. Rule 33 of the jury, Court Rules of "If trial was the court without a Procedure, a court on motion of a defendant for a Criminal entitled "New new Trial” * ®* may testimony take trial additional pertinent part: reads in
131 Howard, 114 v. (citing Id. State wrong.” tri to convince opportunity an fendant (1975)). 259, 738, 263 A.2d R.I. wrong in his she was justice that he or al v. Cham findings.” State or her factual Analysis (R.L1995). A.2d pagne, 668 that when asserts The defendant (R.I. Dunn, State elements justice defined the Rule does not 1999), recognized we assault, he second-degree sexual first-and jury-waived trial after authorize new coer “force or the element of interpreted justice func in which the proceeding § 11-37-2 G.L.1956 cion” as found Instead, as the fact-finder. tions § 11-37-4 sexual assault4 first-degree ** * justice “may vacate assault,5 by refer second-degree sexual testimony and direct the additional take inapplicable stan improper or ence entry judgment.” (quoting Id. new argues Specifically, DiPetrillo dards. 33). sug precise route Rule This is the or the ‘force “conflated case, to justice in this gested the Gener adopted by coercion’ standard” acquiesced. defendant which theories, such as: Assembly al with other standard; psychologi “the non-consent reviews the denial When Court standard; cal-coercion-of-susceptible-victim of a 33 motion in the context of Rule encounter disagreeable sexual and the defer apply we same standard.” ap as would be standard of review ential However, point proceedings in the at no Superior justice’s factu plied to the Court sufficiency of challenge the did defendant Champagne, merits. al state presented by evidence at 313. determinations are 668 A.2d “Such justice. Clear- by the trial factual great and will weight entitled to ly, the close of the evidence 29(b) over unless the trial has disturbed moved, Rule pursuant to could have and mate looked or misconceived relevant Rules of Criminal Superior We dismiss the indictment.6 clearly Procedure to or was otherwise rial evidence 3.General 4.Section tinent used violence. meanings: victim threatening to application that the ner to it to be execute accused does “The "(2) "(i) "(ii) "(iii) any part: in this following Uses lead the victim 'Force Overcomes the and the victim article used or fashioned Coerces these threats.” Laws 1956 11-37-1 states in 11-37-2 accused has the weapon. or threatens to use any of or coercion' means when chapter, use words and provides force or violence on § victim to have the victim believes reasonably following: reasonably force present phrases, pertinent through the submit in a man- following ability to weapon, physical believe when part: per- the 5. 6. Criminal Procedure Rule Section etration assault if contact with al assault (Emphasis filed (Emphasis "A without a "A "(b) *8 “(2) “ "(2) person following person is following circumstances exist: Motion to at the close of 29(b) [*] The The ^ 11-37-4 with another he jury, a motion is if he or she added.) added.) accused uses accused uses of the circumstances another she dismiss. provides states: Superior of second the state’s engages in sexual of first person person, force engages in sexual to dismiss In exist: pertinent degree and if and if or coercion.” or coercion.” a case tried case to chai- degree Rules of may be any any sexual sexu- part: pen- 132 (R.I.1994).
have previously
jury-waived
1043,
held that in a
1046
proof
Because
proceeding
criminal
such as this case:
that the encounter was nonconsensual de-
pended entirely on the competing credibili-
may
defendant
“[A]
move to dismiss in
ty of the complaining witness and defen-
challenge
legal
order to
sufficiency
* *
*
dant,
mandatory
it was
for the trial
ruling
evidence.
on such
credibility findings
make
about the non-
motion,
acts as the
**
*
consensual nature of the encounter.
fact-finder.
In carrying out that
task,
‘required
Furthermore,
crimi
weigh
evidence,
and evaluate the trial
cases,
nal
may request
accused
pass upon the credibility of the trial
the court make special findings of fact or
witnesses,
engage
in the inferential
special rulings
questions
of law in ac
process, impartially,
being
required
cordance with
§
G.L.1966
12-17-37 and
to view the inferences in favor of the
23(c).
Rule
applied
“As
to criminal trials
nonmoving party, and against the mov-
* * *
23(c)
a jury,
without
Rule
provides:
Harris,
ing party.’”
v.
State
871 A.2d
general
‘[that]
court shall make a
find
341,
(R.I.2005).
ing and shall in addition on request find
reiterate,
”
however,
We
that defendant
specially.’
the facts
Cesario v. United
failed to challenge the sufficiency of the States,
(1st
232,
Cir.1952)
200 F.2d
evidence adduced at trial.
23(c)).8
23(c)
(quoting Fed.R.Crim.P.
Rule
In his
Court,
brief to this
sets forth “the proper procedure by which
* *
makes much of the fact
jus-
that the trial
preserve a question
[to]
of law for
repeatedly
tice
referred to
purposes
Cesario,
the sexual en-
of appeal.”
200 F.2d at
counter between
Indeed,
DiPetrillo
Jane
“[s]pecial
233.
findings are
ato
being nonconsensual and defendant at- bench trial as instructions are
ato
tempts to attach error to these references
before
jury].
members
proce
[of
Such
by arguing that
is not
“non-consent
‘force dure
designed
preserve
appeal
for
* * *
11-37-1(2).”
§
or coercion’ under
ar-
questions
This
of law.
remedy
It is the
gument is without merit.
designed
judicial
DiPetrillo him-
rectify
misconceptions
* * *
consent;
self raised the defense of
in so regarding
the appropriate legal
doing he shifted the
of proof
burden
Falin,
standard[.]” United States v.
establish,
state
702,
(U.S.
704,
reasonable C.M.R.
133
appel
33,
permit
to
specificity
with sufficient
note that Rule
request. We also
such
trial,
have
this issue. Courts
review of
for a new
was
late
pertaining to motions
23(c)
a trial
permits
Rule
2002,
grant
recognized
a
that
permit the
of
amended
conclu
of fact and
findings
at
to enter
of law committed
trial for errors
new
These
sponte.11
“[f]ind-
for
*10
they
be
and directed
need for
understanding
of the trial
of the basis
clear
unnecessary
counsel to
prepared,
it was
decision”).
court’s
request.”)
amake
(R.I.1987),
properly
was
found
and subsequently
limited
(R.I.1988).
a reasonable
In
v. Jacques,
doubt.
his deci- State
“Generally speaking, force or coercion
picked
up
police
cruiser while she
means overcoming the victim of sexual
hitchhiking.
was
After reviewing the record findings of fact based on the state of the us, before we are of the opinion that not- record. See Valley Connecticut Homes justice’s withstanding the trial proper ar- Lyme, Bardsley, East Inc. v. 867 A.2d physical ticulation of force as set forth in (R.I.2005) that, (holding after a trial ll-37-l(2)(ii), § we are not convinced that without sitting jury allowed addi justice’s finding guilt based on tional evidence defendant’s affirmative physical force was not so in- inextricably defense, but refused to allow the affirma tertwined with the finding erroneous tive perceived defense based on a irregu force and by implied coercion threats that larity, judgment was vacated and the it can constitute separate indepen- case was remanded for a new dent finding guilt beyond a reasonable light rendered the affirmative de doubt. fense). The trial justice’s finding “all of the ingredients present” were in order “for the urges The defendant to grant this Court to overbear the will” of this him a new trial on his based contention victim, “either by very authority trial justice applied incorrect legal represented, he physi- a modicum of standards non-jury to the evidence in a cal force” and his all conclusion that argument ease. This is without merit. “relevant hallmarks of force or coercion This is a criminal * * * both well as psychologi- which the fact-finding function has been cal, part parcel were of the defen- experienced entrusted to an respected misconduct,” (Em- dant’s gives pause. justice. Notarantonio, us See State added.) phasis (R.I.1993) Viewed in its entirety, 457, 458, and 622 A.2d (holding light that, finding the erroneous of force in jury-waived threats, by implied and coercion we facts, are is the arbiter of both the law and the by ap demonstrates “rendering the state trial court presumed capable of and is *13 ninety swayed by rendered within impartial findings fair decision” not propriate and valid”); be inadmis- “later determined to days petitioner’s evidence conviction “separate who can the evidentia- Livingston, sible” and 459 F.2d v. States United chaff’). suggestion ry Cir.1972) wheat from the The (3d finding that trial (upon 798 by the that this case cannot revisited of a conditioning in a waiver court erred untenable and simply trial same relinquishing his trial on defendant’s jury by jurisprudence. not borne out our trial findings by of fact the right specific to was vacated and the the conviction judge, Furthermore, a for additional remand judge trial to make remanded to the case findings by justice, guided the trial our 23(c) of herein, in Rule findings and ac- accordance with appropriate decision is the See, remedy jury-waived case. of Criminal Proced cepted the Federal Rules Hogue, (holding ure).14 F.3d at 1091 e.g., 132 findings the court’s in trial a judgment Accordingly, we vacate to more inadequate, susceptible case were to the trial and remand this case doubt interpretation, than one and created conducting an purpose the limited con- about whether the defendants were examination of the trial rec- independent finding every a victed without on essential ord to determine whether the evidence offense, vacating element of the and beyond a rea- finding guilt a supports to
judgment
remanding
and
the trial
doubt,
solely
based
on the element
sonable
fact);
judge
findings
for additional
§by
11-37-
force as defined
Brown,
v.
462
United States
F.2d
l(2)(ii).
finding,
a
In the absence of such
(7th Cir.1983) (holding that the court was
the indictment shall be dismissed.
not
on
state of the record
satisfied
had been
before it
defendant
for a New Trial Based
Motion
doubt,
guilty
found
reasonable
Newly
Evidence
Discovered
vacating
judgment
remanding
defendant also contends
judge
trial
for specific
case
he
de
justice erred when
denied
solely on the record creat-
“based
ar
a new trial. He
motion for
fendant’s
”)
added);
(emphasis
ed at
defendant’s
newly
evidence
gues that
discovered
(2d
Harris,
F.2d
Rivera v.
alcohol
post-assault
pertaining to Jane’s
Cir.1981) (after facially
ver-
inconsistent
goes not
marijuana consumption
in
dicts were rendered
a multi-defendant
the heart of
credibility,
her
but rather to
appellate court
state court bench
reliability
According
as witness.
and remanded to the district
reversed
defendant,
even
judge
did not
“[t]he
court
directions to enter an order
“with
new material on
impact
conditionally
petitioner’s
consider
vacating
convic-
reliability.” He
complaining
witness’s
awarding
tion
him a
trial unless
new
new trial based
ings and
failure to seek a
reply
his
brief to this
his
14. We note that
in
Court,
However,
States v.
of those
defendant cites United
Ho
law.
each
on errors of
(5th Cir.1998);
cases,
gue,
United
The defendant based his motion for a
presented
that was
to the
today
[c]ourt
new
on newly
discovered evidence
any way
my finding
would disturb
toas
that
light
first came to
during
post-
the credibility of the
witnesses
this
preparation
verdict
presentence
re-
Again,
case.”
addressed
(Frenier)
port by Christopher Frenier
defendant’s claim that the sexual encoun-
Department
the Rhode Island
of Proba-
ter was
rejected
consensual. He
this con-
In keeping
tion.
practice
with the
of pre-
tention and declared that “[t]he defendant
paring
reports,
these
Frenier interviewed
remains wholly
a guilty
incredible and
de-
Jane and solicited her statement about the
fendant. The verdict is reaffirmed to the
impact of the criminal offenses on her life.
extent
the record needs to indicate so.”
According
Frenier,
Jane disclosed
case,
In a
that
criminal
began
after the assault
motion for a
she
to con
new
newly
trial based on
greater
sume
discovered evi
amounts of alcohol and
dence
not
marijuana,
granted
should
be
unless the
using
that she was
prescrip
medications,
produced
evidence
to support
tion
the motion
and had been
seeing
two-part,
satisfies a
test. See
multifaceted
therapist.
argued
DiPetrillo
these
Firth,
State v.
(R.I.1998).
526,
708 A.2d
disclosures warranted a
trial.
new
He
Firth,
explained
we
that test
contended that
as:
records of Jane’s counsel
sessions,
ing
if available at
could
“The first prong
four-part
is a
inquiry
have
(1)
been used
requires
cross-examination “and
evidence
potentially could have
exculpa
newly
trial, (2)
contained
discovered since
not dis-
tory evidence.” Additionally, defendant
prior
coverable
to trial with the exercise
(3)
said that
Jane’s use
diligence,
alcohol and mari
of due
merely
cumula-
juana
[ajffected
“could clearly have
impeaching
tive or
but rather material
ability
20,
to recall the events of March
upon
admissible,
to the issue
which it is
2002,
(4)
in a clear manner.”15 Both Jane
type
which
probably
would
* * *
evidentiary
Frenier
testified at
change
the verdict at trial.
Once
hearing.
argued
satisfied,
The defendant
prong
this first
the second
15. The
Maryland,
defendant also asserted that
if the
373 U.S.
83 S.Ct.
state knew of this
However,
information and failed to
(1963).
L.Ed.2d 215
it,
disclose
it would constitute a violation of
conceded that the state had not been aware of
obligation
the state’s
to alert defendant of
this evidence
at
time of trial.
required
exculpatory
by Brady
evidence as
“misrecollect-
cies,”
a witness
and whether
hearing justice to
calls for the
prong
indeed, he even used
exaggerated;”
presented
ed
if
evidence
determine
tri-
the word “reliable.”
enough to warrant a new
‘credible
”
Gomes,
(quoting
Id.
State v.
al.’
jury-waived,
Because the trial
(R.I.1997)).
probative
assessed
same trial
testimony
proffered
strenuously argues
value
appeal, DiPetrillo
On
hear-
as at the later
newly original trial
well
to which the
that the critical issue
all of his
ing. By reincorporating
re-
applied was Jane’s
discovered evidence
decision, he reaffirmed
witness,
original
rather
from the
liability
complaining
aas
testimony.
credibility,
jus-
reliability
Jane’s
and that the trial
than her
probative
thrust”
“misconceive[d]
tice
the con
separated
This
has not
by focusing on the credi-
of this evidence
reliability as defen
cepts
credibility
*15
ar-
bility of the witnesses. The defendant
we have
argues. Specifically,
dant now
**
reliability goes
question
to the
gues that
“[c]redibility
does not sim
held that
the court could have confidence
“whether
Rather, credibility
veracity.
ply refer
complaining
testimony
that
the
witness’s
quality
properly
more
understood as ‘that
‘force or
requirements
established the
his [or her]
in a witness which renders
”
law,” he im-
under Rhode Island
coercion’
worthy
Luan
evidence
of belief.’ State
plies
newly
that
the
evidence
discovered
(R.I.2000)
(quoting
glath, 749 A.2d
5
experienced
might
indicates Jane
have
(6th ed.1990));
Dictionary 366
Black’s Law
may
affected the
memory loss that
have
Sons,
Hood &
v. H.P.
see also Valente
thus,
accuracy
testimony
its
of her
558, 562,
Inc.,
R.I.
contrast,
reliability.
argued
In
(1971)
determining
in
witness
(noting that
justice
newly
the trial
that the
discover-
credibility,
fact-finder is allowed
the
issues
presented
ed evidence
“serious
reliability).
In
question of
consider the
questions
credibility.”
about
[and]
[Jane’s]
ruling
when
on a
Luanglath, we held that
justice
Significantly, the trial
found
motion,
justice
trial
must
new trial
“[t]he
“[n]othing
presented
at
all
the
reliability
to what extent
also determine
today
any way
my
in
disturb
would
[c]ourt
credibility and what
the witnesses’
affects
credibility
to the
finding as
wit-
testimony.”
given
be
to their
weight should
in
nesses
this case.”
(emphasis
add
Luanglath, 749 A.2d
ed).
instance,
earlier,
opinion
is our
As noted
DiPetrillo himself
It
consent,
made that
justice appropriately
placing
the trial
raised the defense
analysis.
negating
upon
burden of
this defense
Brigham,
Because evidence of or lack type offered was not the evidence consent, entirely on the witnesses’ depends change verdict. See likely to evidence credibility, when he denied the motion for Firth, (holding that A.2d at 532 justice quite properly new trial, newly evi- discovered warrant new reincorporated earlier credible). are satisfied must be We dence lack of credibility and DiPetrillo’s Jane’s justice articulat- that the reasons the credibility. uphold to' his decision ed are sufficient motion for a new deny the defendant’s ad- findings, In those earlier decision. We to reaffirm his criteria that affect wit- dressed certain rul- justice’s accord deference to credibility reliability, such ness’s clearly wrong “inconsistencies,” that he was not “discrepan- and hold ing looking for nor did he overlook or misconceive materi- on an fact—one based erroneous interpre- and, al additionally, prop- evidence that he scope tation of the implied-threats our erly doctrine, denied the motion for a new trial. and a second based on a correct application of the standard physical Conclusion uncertainty force—but that abounds with reasons, foregoing For the affirm we regard ground to which relied judgment part part. and vacate it in upon adjudged when he the defendant We affirm the denial of the defendant’s guilty. Therefore, majority reasons, motion for a new trial newly based on justice’s because the application psy- However, discovered evidence. we vacate chological coercion standard constituted an judgment of conviction and remand law, error a remand for further Superior this case to the di- Court with necessary to ascertain whether there is rections to enter a new in accor- enough evidence of force in the dance with this decision. The papers satisfy record to that the ele- may this case Superior remanded to the ment of force or proved coercion was be- Court. yond a reasonable doubt on that I basis. agree. cannot ROBINSON, Justice concurring. my opinion, only fair reading of *16 I concur in the opinion majority, of the justice’s decision is that he found except for holding concerning its the mo- (Jane) the complaining witness was
tion for a new trial on newly based discov- by overborne a psychologi- combination of issue, ered evidence. On that I express no cal pressure arising from DiPetrillo’s au- view.
thority an employee over her as and the application of minimal FLAHERTY, physical some force. Justice dissenting. It is critical to me that point at no did the I respectfully from holding dissent the justice trial find that defendant overcame majority. of the I Although agree that the by the complaining witness means phys- of majority vacating judg- is correct in the ical force. court, ment of the trial I disagree that the proper remedy justice’s for the trial appli- decision, justice says: In his of legal cation the incorrect standard for ingredients of present “all the on were implied threats to remand for further evening the of March 20th for the defen- theory on the physi- alternative of dant to overbear the will of this diminu- When, here, cal force. is the a case young girl, tive and attractive either trial case ade- very authority represented, the that he quately lays out the factual for his basis byor a of physical modicum force. As decision in of fact sufficient to out, it turned and as I so find from the 23(e) satisfy requirements of Rule of me, credible evidence before both of Superior Court Rules Criminal Pro- (Em- those circumstances occurred.” cedure, and that factual basis fails es- added.) phases tablish that an element of the crime charged was proven beyond a reasonable And, he explains: later “all of the relevant doubt, appropriate remedy judg- is a hallmarks force or I coercion that out- acquittal. ment of earlier, physical lined both psychologi- cal, majority part parcel concludes that were defen- added.) separate findings made two (Emphasis dant’s misconduct.”
141
(“[W]e
(1970)
explic
1068,
143 of a entry and order justice’s findings of his conviction contrast, the By acquittal. forth adequately set those fact in this case defen- proved that he believed facts guilt beyond a reasonable doubt.20
dant’s concludes, how- majority correctly
As the
ever, by the trial many of those facts found concerning psycho-
justice namely, those — re-
logical pressure not have been —should STATE when upon lied and cannot be considered had met determining of whether the state v. guilt beyond a rea- proving its burden Sonny FORTES. Thus, unlike the cit- sonable doubt. cases majority, justice’s error ed No. 2006-83-C.A. nothing
in had do with this case Rhode Island. Supreme Court of findings because those adequacy of and inclusive. findings were both extensive May 22, 2007.
There little doubt the record Craig Di- support
would a conclusion that night question
Petrillo’s actions extreme, that he to the
were boorish a louse. But because
may be a cad and all prove the ele- state failed charged were satisfied
ments crimes doubt, I would vacate a reasonable justice's making Family Court determination employ this turned a appellate should courts choice, Morris, jus- concluding delinquency compare. F.2d at 596 after respect (“[W]e ambiguous with this case the were have concluded that in tice's improperly the burden rights parties all be best shifted substantial will to whether he trial.”) on his self- persuasion a new with United States to the defendant served case, 797, (3rd Cir.1972) Livingston, Significantly, F.2d in that this claim. defense (“We a new have reviewed the record and find the case for chose to remand credibility pervasive- issues are not of such on the further trial rather than for trial.”) require explic- Rivera v. opinion ness as to a new (Although does not issue. Harris, Cir.1981) (“We (2nd ordered, F.2d itly that a new trial was state Court,” findings] ap- remand for case, Family [a conclude that "remanded case was primarily propriate Doe, because the A.2d at re 120 R.I. inconsistent, verdicts, may yet though facially opinion that no in the there is indication susceptible explanation.”), to rational required.) That findings were further *19 hardly is the law indicates that either case delinquency petition stemmed from case accepted remedy,” as “appropriate and more proceeding ais an adult criminal and not ap- suggests. proper majority choice pur- for the without difference distinction particular pears hinge solely on the facts analysis. poses this each case. Indeed, point, this Further, majority concedes past 20. applied Court has stating: that the trial “we are satisfied remedy of a remand of a new trial instead findings fact and rul comprehensive nonjury In made case. further i: * * can Doe, (1978), this Court ings of law such that A.2d 920 120 R.I. re the basis to determine petition review those involving delinquency nonjury case * * justice’s *.” decision against juvenile, brought this Court over- Notes of law sua See Rule 23 Committee sions trial. they a permit are if (stating may be sufficient ings “[t]here Amendment 2002 33[,][t]he basis of decision permits understanding first of the to Rule changes two clear court, their irrespective trial for error the court to order new trial of the trial”). Although defen- Feather arrangement.” law committed mere form or (10th trial, 246, Barash, for a new he dant filed motion F.2d 250 345 stone v. Cir.1965). law that challenge any errors of failed to justice allegedly made when he record in this After careful review to the the sexual assault statutes applied case, that the we are satisfied Rather, defendant’s evidence in the case. findings of fact and comprehensive made solely on motion for new was based Court, al- this of law such rulings newly pertinent evidence discovered placed the constraints mindful of though De- credibility. at the Significantly, Jane’s to have failure us defendant’s upon 16, hearing 2003 on the defen- cember evidence, sufficiency of the challenged the for a new DiPetrillo dant’s motion findings to determine review those can alleged er- argued any nor neither raised justice’s decision and of the trial basis rors of law. the element findings relative to whether However, ignore record in coercion, based two distinct force and threat, sub this case would be exalt form over by implied grounds —coercion “is purpose special findings stance. and coercion—are sufficient- physical force reviewing afford a court clear under or are so independent of each other ly standing of the trial court’s basis vacating one interrelated that our decision by creating adequate a record decision” uncertainty about the finding gives rise to Hogue, appellate review. United States v. other. See reliability of the independent Cir.1998).10 (5th 1087, (holding 132 F.3d Hogue, F.3d at 1090-91 “ adequacy to the suscep- ‘The ultimate test as findings were trial court’s oral always they will whether are findings interpretation one to more than tible sufficiently pertinent comprehensive and the trier to doubt about whether gave rise a basis for deci provide to the issues every of the crime element of fact found ” Johnson, doubt; States v. 496 F.2d sion.’ United case a reasonable charged (5th Cir.1974). n. 7 In this to make trial court remanded to the conclusions). case, not limit his did supporting fact its findings of finding guilt. general to a decision Force or Coercion Rather, deci comprehensive he issued ap- raised in this on the issues Based spread upon the rec adequately sion satisfy ourselves function is peal, our rulings of fact and of law ord his Snow, See, Johnson, 484 F.2d e.g., States v. United 496 F.2d See also United States v. 11. 10. (D.C.Cir.1973) (stating that Rule n. 2 Cir.1974) (5th (stating 1138 n. request.’ “requires of fact 'on underlying purpose a trial court’s find- case, recognized judge where appellate court a ings of fact is "to afford