Appeal from Superior Court. Providence County. (PM 07-2755). Associate Justice Robert D. Krause.
For Applicant: Kara J. Maguire, Office of the Public Defender.
For State: Lauren S. Zurier, Department of Attorney General.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
The applicant, Rocco D'Alessio, appeals from the denial of his application for postconviction relief. This case first came before the Supreme Court for oral argument on December 5, 2012, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments and examining the memoranda filed by the parties, we concluded that cause in fact had been shown, and we assigned the case to the regular calendar for full briefing and argument. Thereafter, the matter was argued on September 30, 2014. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
On May 29, 2007, Rocco D'Alessio filed an application for postconviction relief in Providence County Superior Court. The applicant argued that newly discovered evidence required that his April 16, 2002, conviction for the second-degree murder of his infant daughter, Gianna D'Alessio, be vacated. At a hearing conducted before a justice of the Superior Court, applicant presented the testimony of Dr. Richard T. Callery, who, while he was employed on a contract basis with Rhode Island's Office of State Medical Examiners (OSME), had reviewed the file of Gianna D'Alessio.
Briefly, the facts leading to applicant's conviction are as follows. On the evening of January 13, 2000, applicant was caring for his infant daughter at the Providence home that he shared with Gianna's mother, Jennifer Greenhalgh. The couple had resided there for little over a month. Ms. Greenhalgh left Gianna in applicant's care while she returned to work, her first shift back at her job since Gianna's birth. Before Ms. Greenhalgh left for work, the two had become involved in an argument about why applicant was late in arriving home, causing her to be late in leaving for work. Their argument continued when Ms. Greenhalgh informed applicant that she had hidden a stash of cocaine so that he would not be able to use the drug while he was babysitting Gianna. The applicant became upset and persisted, and Ms. Greenhalgh eventually revealed to him where the cocaine was located so that she could leave for work. Before she left the home, Ms. Greenhalgh made sure applicant had calmed down and, once he did so, she departed for work at about 4 p.m., leaving Gianna in his care.
Approximately an hour later, a Rescue Company of the Providence Fire Department, commanded by Lt. Alan Fortes, responded to the home of applicant's neighbor because of a report that a child was having difficulty breathing. Lieutenant Fortes and other rescue personnel arrived to find applicant holding a sleeping Gianna. He told them that the child was having trouble breathing and was not acting right. The child was examined and appeared to be generally healthy, perhaps simply ...