STATE v. John R. PACHECO, Jr.
No. 2000-6-C.A.
Supreme Court of Rhode Island.
Jan. 3, 2001.
Present: WEISBERGER, C.J., LEDERBERG, BOURCIER, and GOLDBERG, JJ.
OPINION
LEDERBERG, Justice.
This case came before the Supreme Court on appeal by the defendant, John R. Pacheco, Jr., from a judgment of conviction of one count of first-degree murder, one count of conspiracy to commit murder, and on application for reduction of his sentence. The defendant, after a jury trial in Superior Court, was sentenced to life imprisonment without the possibility of parole for murder committed with aggravating circumstances and to ten years consecutive incarceration for conspiracy to commit murder. We affirm.
Facts and Procedural History
At approximately 9:45 a.m. on November 18, 1995, a fisherman discovered the body of seventeen-year-old Jenny-Lee M. Bailey (Bailey or victim) on the shore of Gorton‘s Pond in Warwick, Rhode Island. Her body was supine and a large amount of bloоd was found on her face and neck. The details of the state medical examiner‘s testimony describing the brutality of the murder are summarized below in our discussion of the issues raised on appeal. The autopsy also revealed that at the time of her death, Bailey was approximately sixteen weeks pregnant.
On the day before Bailey‘s body was discovered, defendant was living at 60 Curson St. in West Warwick, Rhode Island, with Jonathan Tretton (Tretton), Tretton‘s girlfriend Tanya Casala (Casala), their friend Christopher King (King), and King‘s mother, Mary Raleigh. Casala, the prosecution‘s prime witness at trial, gave extensive testimony over three days during which she related the following account of the events surrounding Bailey‘s murder. Casala testified that on the afternoon of the murder, Tretton told her that they would be leaving that evening for a trip to New York City. While Casala was packing thеir bags, Tretton and King had a conversation in the living room.
According to Casala, defendant returned to the house at 60 Curson St. between 6 and 6:30 p.m. He asked whether Tretton was ready, directed him not to place the bags into the car at that time, but to get dark clothing. Casala observed that after Tretton had dressed in black jeans, a black muscle shirt, and a black Notre Dame jacket, defendant and King searched for a knife in the living room. Once the knife was found, Casala watched defendant sharpen it for several minutes. She testified that Tretton and defendant then went towards the kitchen and, after a few minutes, returned with a window weight,1 which defendant told Casala was “to bonk people over their heads.” Casala heard defendant ask King for “the pregnant bitch‘s number,” after which defendant called Bailey, told her to meet him “where I fish” at a quarter-to-ten, then made a second call and instructed Bailey not to tell anyone about the meeting. Later in the evening, Tretton told Casala that he had “a job” to kill someone, an act for which he would be paid $1,000, a car, and employment, but he intended only to “beat the person up.”
Casala further testified that defendant told Tretton, who was carrying the window weight and a supermarket bag containing pink sweat pants, that he would drop Tretton off at Gorton‘s Pond while defendant visited his girlfriend, Erin Sweeney (Sweeney).2
Casala also testified in detail about a conversation she had with Tretton that night, in which Tretton told her that he had met Bailey at the pond, talked to her for a while and then hit her over the head with the window weight as they were walking. When Bailey asked him why he was doing this to her, Tretton allegedly responded “because he had to.” Tretton told Casala that he hit Bailey again, sliced her throat, stabbеd her, then threw the knife and window weight into the pond.
The defendant‘s motion for separate trials was granted. Casala and King testified at the trial, and defendant took the stand in his own defense. King‘s testimony supported that of Casala in many significant details, although not totally, because King frequently was reluctant to answer, and he contradicted his earlier statements to police, explaining that he had tried “to save my friend [Pacheco]” and was “scared [of] going to jail.” A jury found Tretton guilty of first-degree murder and conspiracy to commit murder, and he was sentenced to life imprisonment. The defendant was found guilty on the same counts, but the jury in his case also found that several of the aggravating factors set forth in
On appeal, defendant argued that the trial justice committed reversible error when he allowed Casala, a prosecution witness, to testify about statements made by Tretton, defendant‘s coconspirator, and then refused to pass the case. Second, defendant maintained that the trial justice erred when he failed to instruct the jury to determine whether a conspiracy existed, before considering the statements of the coconspirator as proof of defendant‘s guilt. Third, defendant argued that because the jury in his coconspirator‘s separate trial had found no aggravating factors, the state was barred by the doctrine of collateral estoppel from seeking a sentence of life imprisonment without the possibility of parole in the present case. Finally, defendant appealed his sentence of life imprisonment without parole pursuant to
Admission of Hearsay Testimony
The first question before us is whether the judge erred in admitting Casala‘s testimony, relating what Tretton and defendant discussed before the murder and Casala‘s reports of what Tretton said following the murder. The defendant argued that Casala‘s testimony relating what Tretton told her before the murder about their planned trip to New York, Tretton‘s informing her that defendant wanted them to return to Curson St., and Tretton‘s account of what was required of him and the rewards he would receive, was not against penal interest and therefоre, should not have been admitted under
Assuming without deciding that defendant had raised or substantiated his objections in a timely manner to preserve them for our review, the issues now raised on appeal are without merit. Statements made by defendant in Casala‘s presence were clearly against his own interest, particularly when considered together with the events that took place. Pursuant to
“[a] statement which was at the time of its making so far contrary to the declarant‘s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant‘s position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Here, Tretton, defendant‘s coconspirator, was unavailable because he availed himself of his Fifth Amendment right not to testify. ”
In his appeal, defendant also challenged the incriminating, out-of-court statements made by his coconspirator after the murder, when the conspiracy had ended, on the basis that he was denied his right to cross-examination guaranteed by the Confrontation Clause of the United States Constitution. The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides to the accused the right “to be confronted with the witnesses against him [or her].” State v. Correia, 600 A.2d 279, 286 (R.I. 1991). We have held repeatedly “that the right to cross-examination is guaranteed by the confrontation сlause of the Sixth Amendment.” Id. (quoting State v. Dame, 488 A.2d 418, 423 (R.I. 1985) and citing State v. DeBarros, 441 A.2d 549, 552 (R.I. 1982)). Moreover, article 1, section 10, of the Rhode Island Constitution guarantees to a defendant the right of confrontation, although that right does not bar the admission of all hearsay evidence. Correia, 600 A.2d at 286 (citing State v. Manocchio, 497 A.2d 1, 7 (R.I. 1985), cert. denied, 506 U.S. 910, 111 S.Ct. 1695, 114 L.Ed.2d 89 (1991)); see Dutton v. Evans, 400 U.S. 74, 80, 81 S.Ct. 210, 215, 27 L.Ed.2d 213, 222 (1970) (holding that the defendant‘s right of confrontation was not denied by coconspirator‘s statement as related by witness, when independent indicia of reliability were present).
When a confrontation is not possible because the declarant of a proffered out-of-court statement is not available, we must engage in a case-by-case analysis to determine whether the right of confrontation of the accused has been violated. Correia, 600 A.2d at 286 (citing Manocchio, 497 A.2d at 7-8). In Manocchio, 497 A.2d at 8, we adopted the test set forth in Dutton, as clarified in Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293, 301 (1972). “The focus of the Court‘s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be plаced before the jury though there is no confrontation of the declarant.‘” Manocchio, 497 A.2d at 8 (quoting Mancusi, 408 U.S. at 213, 92 S.Ct. at 2313, 33 L.Ed.2d at 301). Reliability can be inferred, without more, in a case in which the evidence falls within a firmly rooted exception. In other cases the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. State v. Burke, 574 A.2d 1217, 1222 (R.I. 1990) (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980)).
This Court has upheld the admission of hearsay statements of a coconspirator under the authority of Dutton, in State v. Bracero, 434 A.2d 286, 289 (R.I. 1981), and in State v. Lerner, 112 R.I. 62, 82-84, 308 A.2d 324, 338-39 (1973). Moreover, in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), the Supreme Court permitted the out-of-court confession of the defendant‘s coconspirator when he refused to testify at the defendant‘s trial. The Court stated that
In the present case, defendant alleged that the trial justice erred when he admitted the statements that his coconspirator Tretton made to Casala and King after the murder. We have viewed testimony as reliable when “the witness [here Casala] had been subjected to extensive cross-examination and the out-of-court declarant [here Tretton] had no reason to lie under the circumstances.” Bracero, 434 A.2d at 289 (citing State v. Patriarca, 112 R.I. 14, 43-44, 308 A.2d 300, 318 (1973)). In addition, we have established three considerations to determine the trustworthiness of declarations made against one‘s penal interest under
In the present case, the contested statements, during and after the conspiracy, were clearly against Tretton‘s penal interest. His statements detailing the attack on Bailey were essentially self-inculpatory, rendering them inherently trustworthy, and were made in confidence to his girlfriend after the murder. Considerable corroborating evidence also linked him to the crime. In view of these indicia of reliability, the trial justice properly admitted the statements Tretton made to King and Casala. Moreover, defendant‘s own statements and actions provided overwhelming inculpatory evidence against his penal interest. Taking the stand at his trial, defendant strongly attempted to deny knowledge of the actual events on the night of Bailey‘s murder and place responsibility on his coconspirator Tretton and his friend King. While mostly offering testimony that contradicted statements by other witnesses and his own previous statements to the police, defendant admitted knowing that Tretton may have intended to harm someone and that the person might have been Bailey. The defendant also recounted, consistent with other supporting testimony, that he had given Tretton a ride home after the attack had occurred and had immediately noticed blood on Tretton. His own testimony placed him at 60 Curson St. on the evening of the murder and at the time stated by other witnesses. His description of his knife that was allegedly used in the attack was identical to the description by another witness, and he conceded that he had sharpened it on that evening. He also admitted learning details of Bailey‘s murder that same evening, not calling the police, but going to bed, and on the following day, attempting to sell his car to four different people. In light of this inculpatory testimony and Casala‘s testimony relating defendant‘s statements against self-interest, had Tretton‘s statements been inadmissible hearsay, their admission would have been harmless error. McKone, 673 A.2d at 1075 (holding that the admission of hearsay constituted harmless error when “most of the challenged hearsay was in fact otherwise supported by other direct or indirect evidence in the record“). Here, we arе convinced that the effect of this challenged testimony would have been negligible, given defendant‘s own admissions and the overwhelming physical evidence in this case. Taking into account any alleged error in the admission of hearsay statements, we are of the opinion that in light of Williamson, any possible errors were harmless beyond a reasonable doubt.
Motion for Mistrial
The defendant also contended that the trial justice‘s refusal to pass the case was reversible error. “[I]t is well-settled law that motions to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice.” State v. Figueroa, 673 A.2d 1084, 1091 (R.I. 1996);
In the present case, defendant made the motion to pass after Casala testified that Tretton received a phone call, after which Tretton told her they had to go, “Chico (defendant‘s nickname) wanted [them].” In his appeal, defendant alleged that the admission of this testimony violated his Sixth Amendment rights, because Tretton had refused tо testify at defendant‘s trial and therefore was not available for cross-examination. Although the objection to Tretton‘s statements to Casala was a general, not a specific one, assuming without deciding that the issue was preserved for proper review, we believe that the issue now raised on appeal is without merit. The transcript reveals the following interchange at trial:
“Q: When Tretton got off the phone, what happened?
“A: He said—
“[Defense Counsel]: Objection.
“The Court: She may answer.
“A: He said we have to go. Chico wanted us.
“[Defense Counsel]: Move to pass, your Honor.
“The Court: What?
“[Defense Counsel]: I move to pass.
“The Court: Motion denied.
“[Defense Counsel]: Move to strike.
“The Court: Motion denied.”
On the basis of this exchange, we conclude that the reference to “Chico” was not sufficiently inflammatory to distract the jury from the overwhelming evidence that defendant was directing Tretton‘s actions on that evening. In fact, the jury had not been informed that “Chico” was defendant‘s nickname, and both before and after this particular statement by Casala, the jury heard significant other testimony from which it could reasonably conclude that Tretton was acting on defendant‘s behest. Consequently, we conclude that the trial justice did not abuse his discretion by denying defendant‘s motion to pass the case.
Instructions to the Jury
On appeal, defendant challenged the sufficiency of the trial justice‘s instructions on statements made in furtherance of a conspiracy. We first note that this issue has been waived by defendant‘s failure to object after the trial justice charged the jury. Pursuant to
“[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the party‘s objection.”
We have repeatedly held that failure to object to a jury instruction precludes review of the instruction on appeal. State v. Bertoldi, 495 A.2d 247, 250 (R.I. 1985). In
This Court has held that:
“[t]he charge given by a trial justice need only ‘adequately cover [] the law.’ [State v. Grundy, 582 A.2d 1166, 1170 (R.I. 1990)]. A trial justice‘s instructions will be upheld if they neither reduce nor shift the state‘s burden of proof. State v. Gordon, 508 A.2d 1339, 1349 (R.I. 1986). On review, we examine the instructions in their entirety to аscertain the manner in which a jury of ordinary intelligent lay people would have understood them. State v. Gomes, 604 A.2d 1249, 1256 (R.I. 1992). We will not examine simple sentences. Rather, the challenged portions must be examined in the context in which they were rendered.” Gordon, 508 A.2d at 1349. State v. Marini, 638 A.2d 507, 517 (R.I. 1994).
In instructing the jury in the present case, the trial justice explained that defendant was charged with conspiracy, and he defined conspiracy for the jury as follows: “[A] conspiracy is a combination of two or more persons to commit an unlawful act. A conspiracy is, in effect, a partnership in a criminal venture. Once the unlawful agreement has been made, the crime of conspiracy is complete.” The trial justice continued by stating the requisite burden of proof: “In order to convict the defendant of the charge of conspiracy, the State must prove beyond a reasonable doubt thаt on or about the dates alleged, there was an unlawful agreement between defendant Pacheco and Jonathan Tretton to commit murder.” Finally, he detailed the law of vicarious responsibility as it relates to the crime of conspiracy. It is our conclusion that the trial court‘s instructions sufficiently covered the applicable law.
Collateral Estoppel
On appeal, defendant argued that collateral estoppel precluded the state from seeking a term of life imprisonment without the possibility of parole, once the jury in defendant‘s coconspirator‘s case had not made a finding of aggravating circumstances. This Court has previously held that “[t]he doctrine of collateral estoppel makes conclusive in a later action on a different claim the determination of issues that were actually litigated in a prior action.” E.W. Audet & Sons, Inc. v. Fireman‘s Fund Insurance Co. of Newark, New Jersey, 635 A.2d 1181, 1186 (R.I. 1994); see also State v. Chase, 588 A.2d 120, 122 (R.I. 1991). In order to invoke successfully the doctrine of collateral estoppel, a plaintiff must show “(1) that there [was] an identity of issues, (2) that the prior proceeding resulted in a final judgment on the merits, and (3) that the party against whom collateral estoppel is asserted [was] the same as or in privity with a party in the prior proceeding.” E.W. Audet & Sons, Inc., 635 A.2d at 1186. The defendant‘s theory of collateral estoppel that would preclude a jury at his trial from finding aggravating circumstances cannot satisfy the requirement of identity of the parties. Although the state was a party to each of the proceedings against Tretton and against defendant—necessitated by the granting of defendant‘s motion for severance of their trials—Tretton and defendant were distinct and separate parties. In his аppeal, defendant argued that he and Tretton were in privity because they faced the same charges by the state. It may be true that Tretton and defendant shared the same interest in defeating the charges against them, but their
Propriety of the Sentence Imposed
Following the denial of his motion for a new trial, defendant applied to this Court for reduction of his sentence pursuant to
“The defendant shall have the right to appeal a sentence of life imprisonment without parole to the supreme court of the state in accordance with the applicable rules of court. In considering an appeal of such a sentence, the court, after review of the transcript of the proceedings below, may, in its discretion, ratify the imposition of the sentence of life imprisonment without parole or may reduce the sentence to life imprisonment.”
In his appeal, defendant alleged that the trial justice erred when he charged the jury on the aggravating factor of murder for hire. The defendant also maintained that because the record did not reveal any evidence that torture or abuse of the victim was the purpose of the conspiracy, the jury was mistaken in making such a finding.
In cases in which a sentence of life imprisonment without the possibility of parole has been imposed, we have held that it is incumbent upon this Court to exercise independent judgment and discretion in deciding the appropriateness of the sentence. State v. Tassone, 749 A.2d 1112, 1119 (R.I. 2000) (citing State v. Travis, 568 A.2d 316, 322 (R.I. 1990); State v. Lassor, 555 A.2d 339, 355 (R.I. 1989)). In so doing, we examine the total record, consider the findings of the trial justice, and review the personal character, reсord, and propensities of the defendant. Tassone, 749 A.2d at 1119 (citing State v. Wilson, 568 A.2d 764, 769 (R.I. 1990)).
The penalties for murder enumerated in
“Every person guilty of murder in the first degree * * * (3) committed at the direction of another in return for money or any other thing of monetary value from that person; or (4) committed in a manner involving torture or an aggravated battery to the victim * * * shall be imprisoned for life and if ordered by the court pursuant to chapter 19.2 of title 12 such person shall not be eligible for parole from imprisonment.” (Emphasis added.)
In Travis, we stated that the imposition of any sentence has historically been the function of the trial justice. Travis, 568 A.2d at 323. After the jury has found at least one aggravating circumstance enumerated in
In his appeal, defendant sought a reduction in his life-without-parole sentence, arguing that the trial justice committed reversible error by charging the jury on the “murder for hire” aggravating factor under
Here, the jury determined unanimously that in addition to murder for hire, “aggravated battery” and “torture” were factors present in the murder. In Travis, we considered those terms to be of common usage and defined “battery” as conveying to a juror of ordinary intelligence “an image of a beating or infliction of traumatic force that is greater than necessary in order to render a victim helpless or subject the victim to the will of the aggressor.” Similarly, torture would convey a meaning of “inflicting pain and traumatic force beyond that which would ordinarily be expected even in the case of homicide.” Travis, 568 A.2d at 323. The defendant suggested that the violence in Travis made it one of the “core cases” in which the harshest penalty possible should be imposed and from which the present case should be distinguished. In our independent judgment, we believe that the murder in the instant case was committed in a manner that supports the jury‘s finding of aggravated battery and torture. Numerous injuries were inflicted upon Bailey. See post. The evidence showed that she fell to the ground after a blow to her head with a metal bar; she was hit again and then was stabbed and cut repeatedly while she was still conscious. Given these circumstances, the state met its burden of proof of demonstrating torture or aggravated battery sufficient to support a sentence of life without parole under
“Pursuant to
§ 12-19.2-1 , the jury must find at least one aggravating factor in order to trigger the presentence hearing by the trial justice.” State v. Washington, 581 A.2d 1031, 1035 (R.I. 1990). “After hearing arguments and receiving evidence by both counsel, the trial justice then uses his or her own discrеtion to sentence defendant.” Id. The penalties for murder listed in§ 11-23-2 are enumerated in the alternative, thereby requiring that the jury find only one of seven conditions in order to trigger consideration of the “not eligible for parole” provision.
Therefore, regardless of whether
This case is not the first in which we have reviewed the imposition of different sentences upon coconspirators. In State v. McMaugh, 672 A.2d 877, 878-79 (R.I. 1996) (per curiam), we affirmed a more severe sentence for a coconspirator on the basis that the defendant was “the prime mover in the conspiracy,” a rationale that would clearly support our holding here. Similar reasоning supported our affirming the disparate sentences for coconspirators in State v. Ballard, 699 A.2d 14, 17 (R.I. 1997), where we held that the defendant in that case “was the mastermind of the kidnapping scheme,” a role analogous to that of defendant here who was clearly the mastermind and prime mover of Bailey‘s murder. Moreover, we have explained that “only when the record unswervingly points to the conclusion that there is no ‘justification’ for the imposition of a sentence that is ‘grossly disparate from sentences generally imposed for similar offenses‘” shall we modify or revise a sentence imposed in the exercise of a trial justice‘s discretion. State v. Crescenzo, 114 R.I. 242, 262, 332 A.2d 421, 433 (1975).
After defendant‘s motion for new trial had been denied, a sentencing hearing took place at which Bailey‘s mother addressed the court, as did counsel for both parties. The trial justice also cоnsidered letters from decedent‘s aunt, an extensive letter by a friend of decedent, and the presentence report. During the imposition of the sentence, the trial justice explained why defendant should receive a sentence that exceeded the sentence received by his coconspirator and concluded that defendant should suffer the most extreme penalty allowed by law:
“Pacheco was the one who conceived the plan to kill Jenny Lee Bailey. It was Pacheco, not Tretton, who truly was motivated by some perverse, angry reasons to have her killed. It was Pacheco, not Tretton, who planned the action that night, and it was Pacheco, not Tretton, who directed the scheme be carried out. It was Pacheco who lured Jenny Lee Bailey to the pond that night under the false guise of mеeting her so that he could continue to be her friend and assist her financially with the expenses of the baby which, at the time, he assumed was his. Pacheco was the one who prompted and conscripted Tretton to kill Jenny Lee Bailey with inducements of money, a job, and a car. Tretton had no such murderous designs on Jenny Lee Bailey. But for Pacheco this killing would never have occurred that night.”
In his appeal, defendant argued that the record did not reveal any evidence that torture or abuse of the victim was the objective of either defendant or the conspiracy, and therefore the jury erred in so finding. He also argued that a sentence of life imprisonment is adequate and proportional to his role in the crime. We disagree. The record in this case discloses ample evidence of cruelty and brutality. After being lurеd by defendant to a meeting, Bailey was unexpectedly attacked by defendant‘s coconspirator, who hit her in the back of her head with a metal window weight, causing her to fall on the ground. She did not lose consciousness after he hit her the first time, but was aware enough to ask Tretton why he was doing this to her. After Tretton responded that “he had to,” he viciously assaulted Bailey, inflicting as many as sixteen knife wounds, including three stab wounds and five cuts to her throat and neck area, five stab wounds to her chest, and three stab wounds to her back. In the course of the attack, she sustained injuries to her lung, liver, kidney and heart. None of these injuries, however, was immediately fatal; instead, Bailey died only after her hemorrhaging depleted the blood supply to her brain. The testimony of the state medical examiner indicated that Bailey was probably conscious fоr at least part of the horrific attack. The fact that Bailey was pregnant at the time of her death was known to her attacker and to defendant when they
Referring to mitigating circumstances, defendant cites his youth—nineteen years of age in 1995—his “mild history of trouble with the law,” and the lack of evidence “to imply that John Pacheco had encouraged the torture or battery of the intended victim.” Having reviewed the presentence report and examined the record, we are not persuaded by defendant‘s arguments. The defendant had the benefit of a caring, intact family throughout his life, but his behavior displayed an avoidance of responsibility. While continuing a relationship with the mother of his son, defendant also pursued a sexual relationship with Bailey. When Bailey‘s pregnancy became threatening, defendant conspired to kill her and lured her to her death, after first arming his coconspirator with a metal bar and a knife that defendant himself had sharpened.
Therefore, after carefully considering the evidence in the exercise of our independent judgment and discretion, we affirm the sentence imposed by the trial justice.
Conclusion
For the reasons stated herein, the defendant‘s appeal is denied and dismissed, and the judgment of conviction is affirmed. The imposition of the sentence of life imprisonment without parole is affirmed, and the papers in this case may be remanded to Superior Court.
Justice FLANDERS did not attend oral argument but participated on the basis of the briefs.
WEISBERGER, Chief Justice
concurring in part and dissenting in part with whom Justicе GOLDBERG joins.
I concur fully in the opinion written by Justice Lederberg in all respects save that portion of the opinion which affirmed the propriety of the sentence imposed. For the following reasons I must dissent in respect to the imposition of the sentence of life imprisonment without parole.
The evidence in this case overwhelmingly supported the conclusion that the defendant, John R. Pacheco, Jr., procured the services of Jonathan Tretton to murder Jennifer Lee Bailey. The evidence also established beyond a reasonable doubt that Tretton committed the murder in a manner “involving torture or an aggravated battery to the victim” as required by
There was no evidence to establish that this defendant participated in the acts of torture or aggravated battery since he was not at the scene of the crime.
Thеre is no question that he should be punished as a principal for the act of first-degree murder because he participated in the premeditation and the conspiracy to commit the act of murder.
As is pointed out in the majority opinion, Jonathan Tretton in a separate trial was sentenced to life imprisonment, but was not subjected to the penalty of life imprisonment without parole. I agree with the majority that the State was not collaterally estopped from seeking in the case at bar this ultimate penalty solely by reason of the fact that the codefendant was not subjected to the same penalty.
Nevertheless, I am of the opinion that unwarranted disparity between sentences imposed upon codefendants should be avoided. Moreover, in the case at bar, I have serious doubts conсerning whether this defendant meets the requirements for this extreme penalty under the provisions of
“Every person guilty of murder in the first degree * * * (3) committed at the direction of another person in return for money or any other thing of monetary value from that person; or (4) committed in a manner involving torture or an
aggravated battery to the victim * * * shall be imprisoned for life and if ordered by the court pursuant to chapter 19.2 of title 12 such person shall not be eligible for parole from imprisonment.”
First, it is clear that Tretton committed the murder at the direction of Pacheco for money. The defendant did not plan the murder at the direction of any other person for money or any other thing of monetary value. Consequently, he is ineligible for that finding of an aggravating circumstance. It is true, as the majority points out, that the trial justice instructed the jury that this defendant wаs eligible for such a finding. I believe that charge was erroneous, but also recognize that counsel for defendant failed to object to the instruction.
However, on an appeal from a sentence this Court pursuant to
In reviewing both the facts and the law, I am of the opinion that this defendant did not meet the requirements of
This defendant planned a heinous crime. He is certainly guilty of murder in the first degree. I believe that he deserves the mandatory penalty of life imprisonment. Nevertheless, I am bound by the provisions of the statute and cannot rely upon an erroneous charge to the jury (even though without objection) or upon erroneous findings of the trial justice. In the exercise of my independent judgment reviewing the facts and the law de novo, I am constrainеd to conclude that this defendant should not be sentenced to life imprisonment without parole, but should be sentenced to life imprisonment, the mandatory penalty for murder in the first degree in the absence of proof of the aggravating statutory circumstances.