Kent County Superior Court. (K3/13-71A). Associate Justice Bennett R. Gallo.
For State: Jane M. McSoley, Department of Attorney General.
For Defendant: Lara E. Montecalvo, Office of the Public Defender.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Justice Robinson, concurring in part and dissenting in part. Justice Flaherty, dissenting.
Maureen McKenna Goldberg,
This case came before the Supreme Court on February 4, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. The defendant, Raymond A. Peltier (defendant or Peltier), appeals from a judgment of conviction after a jury trial of one count of simple domestic assault. The trial justice subsequently denied the defendant's motion for a new trial and sentenced Peltier to one year's probation. Before this Court, the defendant argues that the trial justice erred when he allowed into evidence the fact that Peltier resisted arrest in this case, a complaint to which the defendant had entered a plea of nolo contendere immediately before the start of trial. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time. We affirm the judgment of conviction entered by the Superior Court.
Facts and Travel
A criminal complaint was filed against Peltier on September 19, 2012. After a bench trial in District Court, defendant was found guilty of one count of simple domestic assault and one count of resisting arrest. The defendant appealed these convictions to the Superior Court and exercised his right to a jury trial.
Prior to the commencement of the jury trial in Superior Court, Peltier entered a plea of nolo contendere to the complaint of resisting arrest. The trial justice continued the matter for sentencing after accepting the plea. During the course of the prosecutor's opening statements, defense counsel objected and moved for a mistrial when the prosecutor referenced the resisting arrest. The defense counsel contended that this was evidence of other crimes, wrongs or acts by defendant that was irrelevant and inadmissible in accordance with Rule 404(b) of the Rhode Island Rules of Evidence. The trial justice overruled defense counsel's objection and denied his motion for a mistrial. The record of this case discloses that defense counsel was notified of the state's intention to introduce evidence that Peltier resisted arrest before defendant entered a plea of nolo contendere.
The state first called the complaining witness, Kelly Thurber (Thurber), to testify. Thurber recounted that she had known Peltier for almost twenty years and that he is her daughter's father. Thurber testified that Peltier typically cared for
their daughter on Wednesdays. Thurber stated that on Tuesday, September 18, 2012, she attempted, without success, to call Peltier numerous times in order to finalize their plans for the next morning. Thurber testified that on the morning of Wednesday, September 19, 2012, when Peltier did not come to pick up their daughter, she first called defendant repeatedly and then drove to his home in West Warwick with the child. At approximately 8 a.m., Thurber and her daughter walked up a flight of stairs to Peltier's second-floor apartment, and Thurber began knocking on the window and door. After about five minutes, Peltier answered the door. Almost immediately, a verbal spat ensued. According to Thurber, when she extended her hand to separate herself from Peltier, she was pushed back by defendant and fell down a few stairs. Peltier then began to punch her and kick her. Once Peltier saw that his twenty-month-old daughter was crying and throwing herself on the floor, he abandoned Thurber and took the child inside his apartment. Thurber then called 9-1-1. Officer Joshua D. Kennedy (Officer Kennedy) of the West Warwick Police Department arrived at the location, and Thurber recounted the events to him.
The second, and final, witness was Officer Kennedy. Officer Kennedy testified that at 8:16 a.m. on September 19, 2012, he was dispatched to defendant's apartment for a domestic disturbance. Upon arriving at the scene, Officer Kennedy encountered a visibly upset Thurber standing in the driveway. Officer Kennedy called for backup when he learned that the child was inside with Peltier. Moments later three other officers arrived. Officer Kennedy testified that he made contact with defendant and told him to " calm down because he was pacing throughout inside the house." Defense counsel interposed an objection on the same grounds raised during the state's opening statement--that the testimony regarding the facts surrounding the charge of resisting arrest was inadmissible under Rule 404(b). The objection was overruled by the trial justice. Thereafter, Officer Kennedy testified that Peltier was not listening to the officers' instructions and was breathing and sweating heavily. Peltier was then advised that he was being placed under arrest for domestic simple assault and domestic disorderly conduct. Officer Kennedy instructed Peltier to place his hands behind his back, but Peltier did not comply. As the officers began to place Peltier in handcuffs, he actively resisted and tried to pull the officers to the ground. Peltier continued his resistance as the officers walked him down the stairs, and at one point he pulled all four officers against an adjoining building--causing one officer to fall down.
Throughout Officer Kennedy's testimony, defense counsel continuously objected to the line of questioning detailing the circumstances of Peltier's arrest, and he eventually moved to pass the case. After hearing argument, outside the presence of the jury, the trial justice denied defense counsel's motion, but did grant him a continuing objection to that line of questioning. Additionally, after Officer Kennedy concluded testifying, the trial justice gave the following instruction to the jury:
" [T]o the extent that you've heard testimony that on the morning in question relating to Mr. Peltier's, the defendant's, alleged misconduct during the attempt by the West Warwick Police to investigate the complaint by Miss Thurber and to effectuate an arrest, that conduct, of course, goes beyond the charge for which Mr. Peltier is on trial here, which is, of course, simple assault, domestic in nature. I'm instructing you that that evidence, the evidence of the alleged
misconduct during the investigation and effectuating of the arrest should be considered by you only to the extent that it may bear on the defendant, Mr. Peltier's[,] state of mind at the time of the offense to which he's on trial and not for any other purpose. It is not admitted for purposes of proving the kind of person that Mr. Peltier is or bearing on his character."
The state rested, and the defense opted not to present any witnesses. During closing arguments, attorneys for both the state and defendant referenced the fact that Peltier had resisted arrest. When the prosecutor suggested that Peltier's " demeanor [was not that] of an innocent man[,]" defense counsel moved for a mistrial based on the same grounds that he had previously argued. The trial justice denied the motion. Peltier was found guilty of simple domestic assault.
On July 22, 2013, defendant's motion for a new trial was denied by the trial justice. Defense counsel indicated that one of the bases of the motion was the fact that the circumstances of his conduct in resisting arrest came before the jury and that he was " incorporating into my argument the arguments I made throughout the trial." In response, the trial justice informed defense counsel that " the [c]ourt incorporates the rulings I made throughout the trial on those issues." The trial justice then sentenced Peltier to one year of probation and required him to participate in the batterer's intervention program and substance-abuse counseling and complete forty hours of community service. The defendant timely appealed.
Standard of Review
" In reviewing the admission or exclusion of evidence, it is well settled that '[t]he admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of discretion is apparent.'" State v. Clay,79 A.3d 832, 838 (R.I. 2013) (quoting State v. Rios,996 A.2d 635, 638 (R.I. 2010)). When performing this abuse of discretion analysis in the context of Rule 404(b), this Court first looks to the scope of allowable proof under the rule. See Clay, 79 A.3d at 838. " Rule 404(b) states that '[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the ...