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State v. Lopez

Superior Court of Rhode Island

September 15, 2015


Providence County Superior Court

For Plaintiff: Joseph J. McBurney, Esq.

For Defendant: David A. Cooper, Esq.



Defendant Jose Lopez urges dismissal of a single-count indictment alleging that on September 3, 2010, he discharged a firearm during a crime of violence (assault with a dangerous weapon), which resulted in permanently incapacitating Ramon Cruz, who is now a paraplegic. The penalty for conviction on that charge is a mandatory life sentence. G.L. 1956 § 11-47-3.2(a), (b)(4).[1]

The indictment, which was returned by a grand jury on March 26, 2014, does not include a count separately charging the defendant with the felony assault upon Mr. Cruz. The state had already charged him with that offense, as well as three other counts, in a criminal information which bears the Superior Court Clerk's file-stamp of September 9, 2013, six days beyond the three-year statute of limitations for assault with a dangerous weapon. See G.L. 1956 § 12-12-17(c). Accordingly, the defendant also filed a motion to dismiss that information as time-barred.[2]

Both dismissal motions were scheduled to be heard on August 17, 2015. On that day, however, both parties agreed, instead, to submit the matter to the Court for a decision based upon their several pleadings. The state also voluntarily dismissed the criminal information pursuant to Rule 48(a), Super. Ct. R. Cr. P., acknowledging in open court that there were "legitimate issues" associated with its statute of limitations argument.[3]

As grounds for both dismissal requests, leading up to the scheduled August 17 hearing, the defendant had principally argued that because the felony assault charge was time-barred, the state was precluded from using it as a predicate crime of violence under § 11-47-3.2. With the dismissal of the criminal information, that argument, at least on that narrow track, is no longer available to the defendant. That does not mean, however, that his principal argument is necessarily defused.

Distilled to its essence, he contends that an allegation under § 11-47-3.2 depends entirely upon the state's successful prosecution of a predicate crime of violence. In other words, it does not matter whether the felony assault was nullified by operation of the statute of limitations or by the state's voluntary dismissal of it, because, he argues, if the predicate crime of violence is no longer extant, a charge under § 11-47-3.2 cannot survive. That contention raises an issue of first impression in Rhode Island.

Alternatively, the defendant contends that § 11-47-3.2 is simply a sentence enhancement mechanism and cannot support a stand-alone criminal cause of action. Additionally, invoking the state and federal constitutions, he complains that life imprisonment for shooting and permanently incapacitating another person is impermissibly harsh punishment. Lastly, he criticizes the state for allegedly exceeding the ethical boundaries of prosecutorial discretion by charging him under § 11-47-3.2(b)(4) and unfairly exposing him to such a severe penalty.

For the reasons set forth herein, the Court denies the defendant's motion to dismiss the indictment. The issues will be addressed seriatim.

The Absence of a Separate Charge Alleging a Predicate Crime of Violence Does Not Affect a § 11-47-3.2 Prosecution

The state is neither obliged to convict nor even separately charge a defendant with an underlying crime of violence in order to secure a conviction under § 11-47-3.2. That statute provides in pertinent part, with emphasis added:

"11-47-3.2. Using a firearm when committing a crime of violence.
"(a) No person shall use a firearm while committing or attempting to commit a crime of violence .
"(b) Every person who, while committing an offense violating subsection (a) of this section, discharges a firearm shall be guilty of a felony and be imprisoned as follows:
"(4) Life . . . if the . . . permanent incapacity of any person (other than the person convicted) results from the discharge of the firearm[.]"

Nowhere in the statute is it mandated that a conviction be secured on the underlying crime of violence in order to find the defendant guilty under § 11-47-3.2. Indeed, the statute invites criminal liability even if the crime of violence is never completed; an attempt to commit the offense suffices. Sec. 11-47-3.2(a)(1). What is required is the commission of the act, that is to say, its performance, execution or accomplishment, or even its mere attempt. Any act of violence, or its endeavor, if it is included in the list of violent crimes limned by the legislature in § 11-47-2(2), is simply an element which the state must prove for a § 11-47-3.2 offense. A judgment of conviction, with all the public trappings of a judicial decree, is not needed. [4]

If it is shown that a person purposefully and unjustifiably shoots another, he has unquestionably carried out an assault upon his victim with a dangerous weapon. It matters not whether the shooter is later prosecuted and ultimately convicted of that criminal charge. Indeed, if he is never caught and eludes apprehension for the remainder of his life, he has nonetheless committed, i.e., performed, the act of assaulting another person with a dangerous weapon. The fact of the act itself is not diminished by the passage of time or by the absence of a conviction.

It is the view here that if the state can demonstrate that the defendant deliberately and indefensibly discharged a firearm in the course of committing, i.e., carrying out, an assault upon Ramon Cruz resulting in his permanent incapacity, the state will have sustained its burden of proof under the statute. Copious federal decisions interpreting the federal version of such a statute support that conclusion.

Although the Rhode Island statute does not track the language of the federal version, 18 U.S.C. § 924(c)(1), our enactment nonetheless conveys and reflects the same import and similar intent with which Congress ordained the federal provision.

Section 924(c)(1), fully set forth in Appendix B hereto, provides in relevant portion:

"[A]ny person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm . . . shall, in addition to the punishment provided for such crime of violence . . . be sentenced [from five years to as much as life in prison]."

Where, as here, there is no explication of a Rhode Island statute, we have traditionally relied upon federal case law interpreting a similar enactment for guidance. State v. Porto, 591 A.2d 791, 795 (R.I. 1991) (where state's RICO conspiracy statute had never been addressed, "we look for guidance to federal decisions that have passed upon the requirements for a conviction[.])" Even if the Rhode Island and federal statutes "are substantively different . . . we believe federal decisions offer sound conceptual guidance." Id. at 795 n.3.

The United States Court of Appeals for the Second Circuit has recently examined 18 U.S.C. § 924(c) and pointed out that "[e]very circuit court to have considered the issue has concluded that § 924(c) does not require the defendant to be convicted of (or even charged with) the predicate crime, so long as there is legally sufficient proof that the predicate crime was, in fact, committed." Johnson v. United States, 779 F.3d 125, 129 (2d Cir. 2015) (collecting federal cases). The Second Circuit then announced that it, too, would "join that consensus." Id.[5] That consensus holds that "it is only the fact of the offense, and not a conviction, that is needed to establish the required predicate." United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir. 1990) (emphasis added), cert. denied, 498 U.S. 824 (1990).

Defendant Lopez, dismissive of the federal statute and all of the circuits aligned with that stated rule, contends that they are incorrect guideposts for construing § 11-47-3.2. He claims that the federal statute is more expansive than the Rhode Island version, and he presses the Court to adopt Priest v. State of Delaware, 879 A.2d 575 (Del. 2005) as its polestar. The Court disagrees.

The Rhode Island statute is, in fact, significantly more encompassing than the federal enactment. The defendant focuses on the introductory language of 18 U.S.C. § 924(c)(1), which targets a person "who, during and in relation to any crime of violence . . . for which the person may be prosecuted" employs a firearm, shall be sentenced to a mandatory prison term. He believes that the term "may be prosecuted" is somehow much broader than the language of § 11-47-3.2(a). He misconstrues the scope of our statute. Indeed, the opposite of what he argues is much more the case. In the federal domain, Congress opted to target a predicate crime of violence for which a defendant may or legally could be held criminally accountable. United States v. Carter, 300 F.3d 415, 424-25 (4th Cir. 2002) (citing Munoz-Fa ...

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