Providence County Superior Court (P2/06-2582).
For Plaintiff: Thomas M. Dickinson, Esq.
For Defendant: Roger R. Demers, Esq.
Petitioner Robert Dominick has brought before this Court an application for post-conviction relief pursuant to R.I.G.L. § 10-9.1-1, et seq. He claims that his February 2007 conviction after a jury trial for assault and battery upon Mrs. Glennis Beltram, his seventy-four-year-old neighbor, should be vacated and the charge dismissed because Mrs. Beltram hindered his right to a fair trial. Absent an outright dismissal, he says that her behavior, coupled with new evidence that he has uncovered, should at least clear a path for a new trial. The Court disagrees.
While Mrs. Beltram was mowing the grass, Mr. Dominick accused her of straying onto his property. An argument ensued, and he shoved her into a raised granite boundary marker. Her arm was cut and bloodied. The jury needed only about forty minutes to convict him. Thereafter, this Court sentenced Dominick to a five-year suspended/probationary term, fined him $1000 and ordered him to contribute 700 hours of his time to community service. His motion for a new trial was denied, and the Supreme Court has affirmed his conviction. State v. Dominick, 968 A.2d 279 (R.I. 2009).
After that affirmance, Mrs. Beltram filed a civil action against him for monetary damages. In July of 2013, the jury in the civil case awarded her minimal compensatory damages of $100, along with $300 for punitive damages. The jury also credited Dominick's counterclaim that Mrs. Beltram had assaulted him (she spit at him during the confrontation), but determined that her conduct, although not an act of self-defense, warranted no monetary award because it caused him no harm.
Dominick now says that during the civil action he discovered new evidence which, he speculates, "could have exculpated him" at his criminal trial. (Apr. 18, 2014 Brief at 1.) He states that he found out that after the altercation, and prior to the criminal trial, that Mrs. Beltram discarded the lawn mower but kept a picture of it which she never shared with the police or the prosecutor. Dominick says he would have inspected the lawn mower for damage that Mrs. Beltram claimed had occurred to it during the event but couldn't because she had disposed of it. He claims that Mrs. Beltram thus deprived him of due process and engaged in impermissible destruction of evidence.
He also thinks that David Lohr, whose identity the state had disclosed as soon as the criminal Information had been filed, could have assisted him as a witness during the criminal trial in light of what Dominick later learned during the civil case. He now regrets not having presented Lohr in the criminal proceedings to impeach some of Mrs. Beltram's testimony. In a footnote to that pang of regret, Dominick also "suggests" that his trial attorney failed to provide him with effective assistance.
Dominick relies upon § 10-9.1-1(a)(4) to pursue what he charitably denominates something other than a "garden variety" post-conviction case. (Sept. 2, 2014 Brief at 1.) That portion of the statute provides:
"(a) Any person who has been convicted of, or sentenced for, a crime, a violation of law, or a violation of probationary or deferred sentence status and who claims: * * *
"(4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice . . . may institute . . . a proceeding under this chapter to secure relief."
That subsection covers petitions such as Dominick's which assert claims of newly discovered evidence. See Brown v. State, 32 A.3d 901, 910 (R.I. 2011). The well-settled test to determine whether evidence is newly discovered is reported in, e.g., State v. Quaweay, 89 A.3d 823, 827-28 (R.I. 2014):
"We have described a trial justice's consideration of a motion for a new trial based on newly discovered evidence as essentially a two-pronged analysis. See State v. Price, 66 A.3d 406, 417 (R.I. 2013). On the first prong, the defendant bears the burden of proving that the proffered evidence is '(1) newly discovered since trial, (2) not discoverable prior to trial with the exercise of due diligence, (3) not merely cumulative or impeaching but rather material to the issue upon which it is admissible, [and] (4) of the type which would probably change the verdict at trial.' State v. Woods, 936 A.2d 195, 197 (R.I. 2007), quoting State v. Firth, 708 A.2d 526, 532 (R.I. 1998). Only if these four requirements are ...