Providence County Superior Court P2/05-2017A, P2/10-2070A, P2/12-416A Associate Justice Robert D. Krause
For State: Virginia M. McGinn Department of Attorney General
For Defendant: Lara Montecalvo Office of the Public Defender
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Associate Justice Maureen McKenna Goldberg
This case came before the Supreme Court on October 1, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The defendant, Juan Gibson (Gibson or defendant), appeals from an adjudication by a justice of the Superior Court declaring him in violation of the terms and conditions of his probation. The defendant contends that the trial justice acted arbitrarily and capriciously in finding a violation. Having carefully reviewed the memoranda submitted by the parties and the arguments of counsel, we are satisfied that cause has not been shown, and the appeal may be decided at this time. We affirm the judgment of the Superior Court.
Facts and Travel
In the early morning hours of May 19, 2013, a violent home invasion occurred at 112 Dawson Street in Pawtucket, Rhode Island. According to the description related by the complainant, Jeffrey Lebrun (Jeffrey),  to the responding officers of the Pawtucket Police Department,  the invasion was perpetrated by two males, dressed in black and wearing ski masks. Armed with a knife, the shorter of the two perpetrators grabbed Jeffrey's neck from behind while he was sitting on his couch and began choking him. As Jeffrey struggled with his attacker for possession of the knife, the second assailant, whom Jeffrey later described as approximately five-feet-eight inches to five-feet-ten inches in height, pushed Jeffrey's head down on the couch. During this struggle, Jeffrey called out to awaken his wife, Sheri, for help. Sheri got out of bed and ran down the stairs in time to see Jeffrey struggling with one of the intruders. Sheri then called 911, and the assailants fled.
Shortly after Sheri's 911 call, then-Pawtucket Police Patrolman (now Sergeant) Eric Bucka (Sgt. Bucka) received a radio description of the suspects, indicating that the perpetrators were "two males dressed in all black, with masks, black sweatshirts, black pants, black shoes." Approximately one block from the crime scene, Sgt. Bucka encountered Gibson, who was wearing black sneakers, black pants, and a white shirt, but no sweatshirt. In response to Sgt. Bucka's questioning, Gibson stated that he was coming from his girlfriend's house in Attleboro, Massachusetts. After a few minutes, Sgt. Bucka and Gibson parted ways.
In the aftermath of the tumultuous events at the Lebrun residence, several items attributable to the perpetrators were uncovered at the scene and in the surrounding neighborhood. Police obtained latex gloves outside of the home at 112 Dawson Street, and a backpack containing various break-in tools was found inside the dwelling. Additionally, police found the knife wielded by one of the assailants inside the home. Later that morning, Patrolman Carl Barovier (Ptlm. Barovier) was summoned to a home one and a half blocks away from the crime scene at 90 County Street, the same street on which Sgt. Bucka had stopped Gibson earlier that morning. When Ptlm. Barovier arrived, the residents informed him that, when they awoke that morning, a black sweatshirt was discovered on their lawn, inside their six-foot stockade fence. The sweatshirt was tossed back over the fence by the homeowners and was situated between the road and the fence at 90 County Street. Patrolman Barovier placed the sweatshirt into an evidence bag and returned to 112 Dawson Street to show it to the Lebruns. Both Jeffrey and Sheri confirmed that the black sweatshirt looked like the sweatshirt that one of the intruders was wearing.
All the evidence recovered by the Pawtucket Police investigators was sent to the Rhode Island Department of Health (DOH) for DNA testing. Tamara Wong (Wong), a forensic biologist employed by the DOH and an expert in DNA testing, explained the results of the DNA testing of this evidence. Wong testified that a saliva stain on the right shoulder of the black sweatshirt matched Jeffrey's DNA profile. Additionally, DNA was extracted from the collar of the sweatshirt, and this extracted DNA matched Gibson's DNA profile. Wong also testified that she examined other items found at the scene-the glove and a piece of cord or clothesline found in the backpack-and that the DNA profiles were consistent with Gibson's DNA profile; she elaborated that twenty-one of the twenty-three loci in the profile found on both the glove and the piece of cord or clothesline matched Gibson's DNA profile. During questioning from Det. Devine following Gibson's apprehension in March 2014, Gibson told Det. Devine that, on the night of the home invasion, his car broke down while he was coming back from North Attleborough,  he was walking home, and he had to call AAA to take care of the car.
Gibson was serving suspended sentences for three separate drug convictions and was on probation as a result. First, in 2005, Gibson entered a plea of nolo contendere to possession of a controlled substance with intent to deliver and was sentenced to ten years at the Adult Correctional Institutions (ACI), two years to serve and the remaining eight years suspended, with probation. Second, in 2010, Gibson entered a plea of nolo contendere to possession of cocaine and possession of marijuana, and he was sentenced to six years at the ACI, one year to serve and five years suspended, with probation. Finally, in 2012, Gibson entered a plea of nolo contendere to possession of an enumerated quantity of cocaine and was sentenced to nine years at the ACI, eighteen months to serve and ninety months suspended, with probation. Accordingly, on March 27, 2014, the state filed, pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure, notices of probation violation in each of these three cases. At the probation violation hearing, in addition to the evidence recounted above, Sheri testified that she knew Gibson through a friendship with his wife and that, although Gibson had been to the back porch of the Lebrun home at 112 Dawson Street, he had never been inside the residence.
After considering the evidence, the trial justice was "more than reasonably satisfied" that Gibson violated the terms and conditions of his probation. The trial justice found that two aspects of the black sweatshirt that police had recovered-and that Sheri and Jeffrey identified as similar to the sweatshirts worn by the perpetrators-were indicative of defendant's involvement in the break-in: (1) the discovery of the sweatshirt close to the crime scene, evidently discarded over a fence by one of the perpetrators; and (2) the fact that both Gibson's and Jeffrey's DNA were found on the sweatshirt. The trial justice was also "trouble[d]" that Gibson "told [Sgt.] Bucka one story and [Det.] Devine a different one." He reasoned that, if Gibson's car had broken down and he was waiting for AAA to assist him, then it was "odd" that he had not relayed these important facts to Sgt. Bucka. Although acknowledging Sheri's testimony that she saw only one intruder, the trial justice found that there were two intruders. He noted that Sheri's "911 recording makes it quite clear that she is speaking of two assailants." Additionally, the trial justice did not deem the discrepancy between Gibson's height-somewhere between six-feet-one and six-feet-two-and Jeffrey's estimation of the height of the taller intruder-approximately five-feet-eight to five-feet-ten-to be significant. He noted the approximate nature of Jeffrey's estimation and reasoned that gauging an individual's height while simultaneously fending off armed home invaders is a difficult task.
The trial justice (1) ordered that the eighty-two months that remained on the suspended sentence imposed in 2005 be served at the ACI; (2) removed the five years remaining on the suspended sentence imposed in 2010 and ordered that Gibson serve that time at the ACI, concurrent with the time to be served on the 2005 sentence; and (3) ordered that the ninety-month suspended ...