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Dominick v. State

Supreme Court of Rhode Island

June 16, 2016

Robert Dominick
State of Rhode Island.

         Providence County Superior Court, PM 14-2065 Associate Justice Robert D. Krause

          For Applicant: Thomas M. Dickinson, Esq.

          For State: Lauren S. Zurier Department of Attorney General

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



         The applicant, Robert Dominick, appeals from the denial of his application for postconviction relief.[1] The applicant maintains that the hearing justice erred by denying his application and in finding that he failed to present newly discovered evidence that would have entitled him to a new trial. This case came before the Supreme Court sitting at Smithfield High School 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 considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


         Facts and Procedural History

         The underlying facts in this case are set out in State v. Dominick, 968 A.2d 279 (R.I. 2009), in which this Court affirmed applicant's conviction of assault and battery upon Glennis Beltram, a person over sixty years of age, in violation of G.L. 1956 § 11-5-10.[2] On May 30, 2006, Beltram was mowing her lawn near applicant's property when a physical altercation erupted between the two next-door neighbors. Beltram's account of the incident-and testimony in the underlying criminal trial-was that she was mowing her lawn when applicant approached her and told her to get off his property. She testified that she communicated to applicant that she was on her own property and on property owned by the state. Beltram testified that applicant then shoved her against a granite marker pole located on her property, causing scrapes to her right arm. She testified that she responded by spitting on applicant's face and that, once again, applicant pushed her-this time "with all his force"-causing more injury to her right arm. She also claimed that, during their altercation that day, the lawn mower she had been using was damaged on the left side.

         Beltram testified that after the altercation she entered her home, told her husband about the incident, and called 911.[3] Although Beltram did not choose to press charges when the police arrived at her home that day, she went to the Glocester Police Department that evening and filed a formal complaint. Beltram also provided a statement to the Glocester Police Department summarizing her account of the incident. This statement included her allegation that the lawn mower was damaged during the incident. As part of their investigation, the Glocester Police Department also acquired a statement from David Lohr, a witness who arrived at the scene during or shortly after the incident. At that time, when Lohr was asked if he had seen "any physical altercation take place between [Beltram and applicant], " he indicated that he "[did not] recall for sure."

         On August 8, 2006, the state filed a criminal information charging applicant with assault and battery upon Beltram. Attached to the criminal information were the statements made by Beltram and Lohr.[4] On February 22, 2007, the case proceeded to trial and, on the following day, the jury returned a guilty verdict. The applicant was sentenced to five years suspended, with probation, [5] fined $1, 000, and ordered to complete 700 hours of community service. The applicant then directly appealed his conviction to this Court, and his conviction was affirmed. Dominick, 968 A.2d at 285.

         Following this Court's decision in Dominick, Beltram filed a civil claim against applicant for the assault and battery (PM 09-2637).[6] During pretrial discovery in the civil case, Beltram produced a photograph of the lawn mower involved in the incident. She testified at deposition that she had disposed of the lawn mower after the incident, but that, before doing so, she had taken the photograph. She explained that the damage caused to the lawn mower as a result of the altercation was to the "left side" but acknowledged that it was not visible in the photograph.[7]Also during the civil action, applicant called Lohr as a witness. At deposition and at the civil trial, Lohr maintained that he had not witnessed any physical contact between Beltram and applicant, but he also characterized his initial witness statement as "probably the most accurate of what happened, " given that four years had since passed. At the close of the civil trial, the jury awarded Beltram $100 in damages, and $300 in punitive damages.

         On April 8, 2014, applicant filed an application for postconviction relief pursuant to G.L. 1956 § 10-9.1-1, based on the evidence offered at the civil trial that had not been presented in applicant's criminal trial, which he claimed was exculpatory.[8] On December 22, 2014, a hearing was held on his application. During the hearing and in his filings before the Superior Court, applicant relied on two items he described as "newly discovered"-(1) the picture of the lawn mower, coupled with the information that Beltram had disposed of the lawn mower, and (2) Lohr's testimony. The applicant claimed that during the civil trial he learned for the first time that Beltram had destroyed the lawn mower involved in their altercation but that she had kept a photograph of the lawn mower. He claimed that the photograph could have been used to impeach Beltram's testimony at the criminal trial that the lawn mower had been damaged as a result of applicant's conduct because the photograph did not depict any damage to the lawn mower. Additionally, applicant argued that Lohr's testimony could also have impeached Beltram's testimony, because he learned for the first time during the civil trial that Lohr had not seen any physical contact between Beltram and applicant despite being present at the scene. He maintained that this constituted newly discovered evidence entitling him to a new trial because Lohr's previous statement attached to the criminal information indicated that Lohr was not sure what he saw that day, rather than that he had not seen any physical contact.

         On December 29, 2014, judgment was entered denying applicant's application for postconviction relief. In a written decision, the hearing justice, who had also presided over the criminal trial, found that the evidence applicant sought to label as "new" had in fact been available to applicant during his criminal trial. Specifically relating to the lawn mower, the hearing justice held that no responsibility for its loss and/or destruction could have been imputed to the state simply because Beltram decided "on her own, to take [the lawn mower] to a junk yard." The hearing justice noted that Beltram was not a party to the criminal case and applicant "never asked to inspect the [lawn] mower" before or during his criminal trial. Moreover, the hearing justice characterized applicant's "excitement over the missing lawn mower" as "mystifying, " given that the only issue for the jury to decide had been whether applicant assaulted Beltram-not whether the lawn mower had been damaged during their altercation. Furthermore, the hearing justice remarked that applicant's "newly-found regret" for not having presented Lohr as a witness in his criminal trial "scarcely qualifie[d] as newly-found evidence." Additionally, the hearing justice held that, "when juxtaposed to [applicant's] own seriously flawed criminal trial testimony, his fresh offerings [were], at best, only marginally of value, " as he found applicant's credibility "significantly lacking." The hearing justice also concluded that the new evidence applicant relied on ...

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