Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tempest v. State

Supreme Court of Rhode Island

July 14, 2016

Raymond D. Tempest, Jr.
v.
State of Rhode Island.

         Providence County Superior Court (PM04-1896)

          For Plaintiff: Michael Kendall, Pro Hac Vice Lauren E. Jones, Esq. Matthew R. Turnell, Pro Hac Vice Katherine Dyson, Pro Hac Vice Betty Ann Waters, Esq.

          For State: Aaron L. Weisman Department of Attorney General

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

          OPINION

          Gilbert V. Indeglia Associate Justice

         On July 13, 2015, the Providence County Superior Court vacated the conviction of Raymond "Beaver" Tempest Jr. (Tempest) for the 1982 homicide of Doreen Picard (Picard). On September 22, 2015, this Court granted the state's petition for a writ of certiorari. Before us, the state argues that the Superior Court erred in vacating Tempest's conviction on the basis of two Brady[1] violations founded on the state's suppression of favorable evidence and a due process violation based on improper witness coaching by the Woonsocket Police Department. After careful review of the record and of the parties' written submissions and oral arguments, we affirm the judgment of the Superior Court and quash the writ of certiorari heretofore issued.

         I Facts and Travel

         The facts of this case are altogether tragic, and the travel is anything but lackluster. We recite only those facts that are relevant to the instant appeal, and so invite the reader to consult our opinion in State v. Tempest, 651 A.2d 1198 (R.I. 1995) for a more detailed discussion.

         On February 19, 1982, at approximately 3:20 p.m., fifteen-year-old Lisa LaDue (LaDue)[2]came home to the triple-decker apartment at 409 Providence Street in Woonsocket, Rhode Island, which she lived in with her mother and step-father, Douglas Heath (Heath). LaDue testified that, upon arriving home, she walked around to the back of the house, where she noticed a "big maroon car" parked adjacent to the bulkhead leading into the cellar. When she entered through the back door of the house, she saw three-year-old Nicole Laferte (Nicole) crying, "saying her mother was downstairs sick." LaDue disregarded Nicole's behavior as simply a cry for attention because LaDue heard "some moving around downstairs[, ]" so she went upstairs to wait for Heath to come home. Within a few minutes, she saw Heath pull into the driveway. Shortly thereafter, she heard Heath frantically call for her.

         Heath testified that he arrived home approximately ten minutes after LaDue. When he walked into the back hallway on the first floor of the multifamily home, he also encountered young Nicole, who was standing at the cellar door crying. Heath asked Nicole what was wrong, and Nicole replied that her mother was downstairs "lying down." Heath went down to the cellar, unprepared for the gruesome scene he was about to encounter-a body "basically sitting" between the washer and dryer, and a second body lying face down in a "puddle of blood." Both bodies had been beaten beyond recognition. The bodies would later be identified as those of Picard and Nicole's mother, Susan Laferte (Laferte). Picard was pronounced dead at approximately 4:30 p.m. the same day. Laferte miraculously survived the brutal attack; but, due to the injuries she sustained, her memory was significantly impaired.

         Following what even the state described as a "chao[tic], " "disorder[ly], " and "disast[rous]" nine-year investigation by the Woonsocket Police Department, on June 5, 1991, a grand jury indicted Tempest for Picard's murder.[3] The case went to trial in April 1992, during which Heath, LaDue, and a number of other witnesses testified. Of these witnesses, four testified that Tempest had confessed to killing Picard.

         Two such witnesses were John Guarino (Guarino) and his former girlfriend, Donna Carrier (Carrier).[4] Tempest and Guarino ran in the same circle of friends, and at one time they lived in the same apartment complex on Winter Street in Woonsocket. Guarino testified that, while they were out one night having drinks in late 1982 or early 1983, Tempest confessed to killing Picard. Although Guarino testified that at the time he did not take Tempest's confession "seriously, " he nevertheless went home and told Carrier what Tempest had said. Guarino further testified that, several weeks later, Tempest-who Guarino said appeared "very, very nervous"- came to his apartment and told him he "better keep [his] mouth shut and not say anything to anybody." Tempest again told Guarino "that he did it" but that "they don't have any proof that he did it."

         Carrier testified that she overheard this exchange between Guarino and Tempest. She stated that Tempest said that Picard "came down the stairs at the wrong time, saw him hitting [Laferte]" and that "[h]e couldn't let her get away and had to do her, too." Carrier also testified that Tempest said he was "very upset because [Laferte] was going to tell [his wife] something and that he and [his wife] had just gotten back together." Prior to trial, Carrier had been adamant that, at the time of the murder, the Tempest family lived in the same apartment complex on Winter Street as she and Guarino.

         Two other witnesses testified that Tempest had confessed to killing Picard. The first was Ronald Vaz (Vaz), an acquaintance of Tempest, who had a long criminal record and who occasionally "snorted" cocaine with him.[5] Loretta Rivard, a prostitute with whom Tempest "part[ied]" one night in January 1988, also testified that Tempest took responsibility for the murder. To be sure, many of the state's witnesses were not model citizens. Indeed, the trial justice said the following about them:

"We didn't have a parade of MDs or [s]umma [c]um [l]audes here. We had people who deal in drugs, we have people who snort drugs and matters of that nature. * * * So we don't expect total intelligence here." Tempest, 651 A.2d at 1218.

         Yet, the trial justice also noted that the court "must take the witnesses as they come." Id.

         On April 22, 1992, a jury found Tempest guilty of murder in the second degree, and he was subsequently sentenced to eighty-five years in prison.[6] This Court affirmed his conviction on January 11, 1995. Tempest, 651 A.2d at 1220.

         Nearly a decade later, on April 8, 2004, Tempest filed an application for postconviction relief pursuant to Rhode Island's Innocence Protection Act, G.L. 1956 §§ 10-9.1-11 and 10-9.1-12[7] and sought the release of certain physical evidence (including, among other items, hair recovered from both victims of the attack, as well as fingernail clippings from Picard) for forensic testing. Over the next eleven years, many motions and memoranda were filed, various orders were entered, and discovery ensued. Finally, in April 2015, Tempest filed a second amended application for postconviction relief, which is the operative application in the present appeal.

         Following a lengthy hearing spanning the course of several weeks, the hearing justice issued a seventy-eight-page decision, in which he granted Tempest's application for postconviction relief and vacated his conviction. The hearing justice identified three grounds upon which Tempest was entitled to postconviction relief: two Brady violations based on the state's suppression of favorable evidence and a due process violation resulting from the Woonsocket Police Department's "unduly suggestive interviewing of witnesses[.]"[8] The state then petitioned this Court for a writ of certiorari, which was granted on September 22, 2015.[9]

         II

         Standard of Review

         "[P]ost[]conviction relief is available to a defendant convicted of a crime who contends that his original conviction * * * violated rights that the state or federal constitutions secured to him." Torres v. State, 19 A.3d 71, 77 (R.I. 2011) (quoting Otero v. State, 996 A.2d 667, 670 (R.I. 2010)). "An applicant who files an application for postconviction relief bears the burden of proving, by a preponderance of the evidence, that such relief is warranted." Rivera v. State, 58 A.3d 171, 179 (R.I. 2013) (quoting Anderson v. State, 45 A.3d 594, 601 (R.I. 2012)).

         "In reviewing an application for postconviction relief, '[t]his Court will not impinge upon the fact-finding function of a hearing justice * * * absent clear error or a showing that the [hearing] justice overlooked or misconceived material evidence in arriving at those findings.'" State v. Thornton, 68 A.3d 533, 539 (R.I. 2013) (quoting Anderson, 45 A.3d at 601). However, "[w]e employ a de novo standard of review with regard to 'questions of fact or mixed questions of law and fact pertaining to an alleged violation of an applicant's constitutional rights * * *.'" Id. (quoting Anderson, 45 A.3d at 601). Nevertheless, even when conducting such a de novo review, "we still accord a hearing justice's findings of historical fact, and inferences drawn from those facts, great deference * * *." Id. at 540 (quoting Anderson, 45 A.3d at 601).

         III

         Analysis

         On appeal, the state attacks each of the three grounds the Superior Court relied on in vacating Tempest's conviction. First, the state contends that the hearing justice erred in granting relief on Tempest's "maroon car" Brady claim because his claim was barred by laches and the evidence was not material. Next, the state argues that the hearing justice erred in vacating Tempest's conviction on the basis of the former prosecutor's failure to disclose pretrial statements made by Carrier. Last, the state asserts that the hearing justice erred in determining that Tempest's due process rights were violated as a result of improper police practices. Because we can affirm the Superior Court's decision on any or all of these grounds, we start with the state's second claim of error, which we conclude is dispositive of the state's appeal.

         A. Carrier's Pretrial Statements[10]

         Seventeen days before trial, Carrier provided the state's former prosecutor with two novel statements: (1) that Tempest's brother, Gordon Tempest (Gordon)-who was a detective with the Woonsocket Police Department at the time of the murder-hid the murder weapon (a pipe) in a closet on the first floor at 409 Providence Street in an effort to conceal it so as to protect his brother; and (2) that, on the day of the murder, Tempest's children were "excited" about getting a puppy.[11] In response to receiving these statements from Carrier, the former prosecutor wrote in his notes: "more new info re: [Gordon Tempest] putting pipe in closet dog for the kids-too late-don't volunteer new info-will cause big problems." Tempest argues that the former prosecutor deliberately failed to disclose this favorable evidence, and that such a deliberate nondisclosure automatically entitles him to a new trial.

         "In accordance with Brady, if a prosecutor has suppressed evidence that would be favorable to the accused and the evidence is material to guilt or punishment, the defendant's due-process rights have been violated and a new trial must be granted." DeCiantis v. State, 24 A.3d 557, 570 (R.I. 2011) (quoting State v. McManus, 941 A.2d 222, 229-30 (R.I. 2008)). With respect to such a failure to disclose, our jurisprudence "provides even greater protection to criminal defendants than the one articulated [by the United States Supreme Court]." State v. Chalk, 816 A.2d 413, 419 (R.I. 2002) (quoting Cronan ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I. 2001)). "When the failure to disclose is deliberate, this [C]ourt will not concern itself with the degree of harm caused to the defendant by the prosecution's misconduct; we shall simply grant the defendant a new trial." State v. Wyche, 518 A.2d 907, 910 (R.I. 1986). Thus, instances of deliberate nondisclosure are "[t]he easy cases[.]" Lerner v. Moran, 542 A.2d 1089, 1092 (R.I. 1988) (quoting United States v. Keogh, 391 F.2d 138, 146 (2d Cir. 1968) (Friendly, J.)). We have said that "[t]he prosecution acts deliberately when it makes 'a considered decision to suppress * * * for the purpose of obstructing' or where it fails 'to disclose evidence whose high value to the defense could not have escaped * * * [its] attention.'" Wyche, 518 A.2d at 910 (quoting Keogh, 391 F.2d at 146-47).

         To begin, we are not troubled by the terseness with which the hearing justice determined that the former prosecutor acted deliberately when he failed to disclose Carrier's pretrial statements. In our opinion, he covered all of the necessary bases in his analysis. First, he appropriately articulated our jurisprudence surrounding this issue. He even noted the former prosecutor's purported reason for not offering the information to the defense: because he felt "it would lead to a continuance and to headaches." The hearing justice then cited caselaw to support his contention that "[c]onstitutional rights cannot be tossed aside whenever they present the smallest inconvenience[, ]" and concluded that the former prosecutor's "'considered decision to suppress' [the statements] automatically necessitates relief." (Quoting DeCiantis, 24 A.3d at 570.) Furthermore, the former prosecutor's own words-"don't volunteer"-indicate a considered decision not to offer the new information to the defense.[12] While the hearing justice's analysis of this particular issue was admittedly brief-it spanned only two-and-one-half pages of a seventy-eight-page opinion-the length of the analysis is not a factor when determining the merits of his ruling. The hearing justice succinctly analyzed the issue, and we discern no clear error in his finding that the former prosecutor deliberately suppressed Carrier's new statements. See Thornton, 68 A.3d at 539.

         Moreover, it is our opinion that the "high value" of Carrier's new statements to the defense could not have escaped the former prosecutor's attention; thus, for this reason as well, his failure to disclose the statements constitutes a deliberate nondisclosure. See Wyche, 518 A.2d at 910 ("The prosecution acts deliberately when it makes 'a considered decision to suppress * * * for the purpose of obstructing' or where it fails 'to disclose evidence whose high value to the defense could not have escaped * * * [its] attention.'" (emphasis added) quoting Keogh, 391 F.2d at 146-47). Specifically, when Carrier made the statements in question, the former prosecutor was at least aware that there was an issue (albeit perhaps unresolved) with regard to Carrier's assertion that Tempest lived in the same apartment complex as she and Guarino at the time of the murder. Three months prior to receiving the statements at issue, in December 1991, Pamela Miclette (Miclette), the Tempests' babysitter, indicated that the Tempest family was living on Phoebe Street at the time of the murder, not on Winter Street where Carrier and Guarino lived.[13] At some point just before trial, the former prosecutor definitively found out that Carrier was in fact mistaken as to where Tempest lived at the time of the murder. Having realized that it was of high value to the defense because it seriously discredited much, if not all, of Carrier's testimony about seeing Tempest on the day of the murder, the former prosecutor disclosed Carrier's mistake to the defense. However, in doing so, he failed to also disclose Carrier's new statements recorded in his March 10, 1992 note about Gordon and about the children being excited over the puppy on the morning of the murder.

         The state argues that Carrier's statement with regard to Gordon concealing the murder weapon was not new, but rather was cumulative of other statements Carrier made that had already been disclosed to the defense. This argument is not persuasive. At the outset, we note that the former prosecutor twice identified Carrier's statements as "new." The hearing justice also found that the statements were new, and we do not think he clearly erred in so determining. See Thornton, 68 A.3d at 539. Indeed, our own review of the evolution of Carrier's statements leads us to this same conclusion.

         From her initial statement to police in February 1987 through her testimony at trial, Carrier maintained that Tempest had said that Gordon was unaware of his involvement in Picard's murder. Carrier first spoke to the police in February 1987, at which time she said that Tempest told her that Gordon knew nothing about his involvement in the murder and that, if Gordon did find out, he would turn Tempest in. She confirmed her statement during the grand jury hearing on November 30, 1990. While Carrier did indicate that Tempest told her that "everything ha[d] been taken care of[, ]" she went on to say that Tempest told her that "my father is an important man" and that "it cost a lot of money for my father to make sure my name didn't get brought up in this." She also again confirmed that Tempest told her: "If my brother Gord[on] knew, he would turn me in."

         Similarly, at Tempest's bail hearing in June 1991, in response to the former prosecutor's question as to whether Tempest had ever said anything about "whether he expected to be prosecuted" for Picard's murder, Carrier replied:

"[Tempest] said he didn't think anything would come of it because his father was the High Sherriff [sic] of Providence and his brother was the Detective on the Woonsocket Police Force. He said if he told his brother Gord[on], Gord[on] would go to the police and tell them what they knew, and that the murder weapon was not there, it wasn't available, and that all fingerprints were taken care of." (Emphasis added.)

         Thus, Carrier still maintained that Tempest had told her that Gordon was not aware of his involvement in Picard's murder.

         Carrier's witness statement on August 26, 1991, was a bit more vague, but it still did not specifically indicate that Gordon knew about Tempest's involvement in the murder or that he participated in a cover-up. She stated that "[Tempest] said, 'I won't get caught, my father and brother won't let me get caught. The weapon's been all taken care of, he said.'" At trial, Carrier continued to maintain that Tempest said that "his brother didn't know [about his involvement in Picard's murder], but his father did" and that "[h]is father had paid off a large sum of money to make sure that [Tempest's] name was never mentioned * * *." She then testified that Tempest told her that "[t]he murder weapon would never be found [and that] it had been wiped clean of fingerprints and gotten rid of."

         Now turning to the statement in question, it is clear that Carrier dramatically changed her story both as it pertained to her understanding of Gordon's knowledge of Tempest's involvement in Picard's murder as well as any involvement Gordon may have had in concealing the murder weapon. At Tempest's postconviction-relief hearing, the former prosecutor testified that Carrier told him in March 1992-mere days before trial-that "Gordon Tempest had put the pipe in the closet" at 409 Providence Street, where it was ultimately found by police. We deem this a significant modification from Carrier's previous statements and trial testimony, in which she stated not only that Tempest told her that Gordon was unaware of his involvement in Picard's murder, but which also seemed to indicate that it was Tempest's father who helped him cover up his involvement in the crime.

         The state pushes back and argues that Carrier's statement regarding Gordon's knowledge and involvement was not exculpatory, but rather was inculpatory, inasmuch as it lent itself to the theory that Tempest committed the murder and Gordon helped him cover it up. While the substance of Carrier's statement regarding Gordon hiding the pipe may have been inculpatory, the statement nonetheless could have been used to impeach her credibility. The United States Supreme Court has unequivocally stated that "[i]mpeachment evidence * * * as well as exculpatory evidence, falls within the Brady rule, " United States v. Bagley, 473 U.S. 667, 676 (1985), and that facially inculpatory evidence can be used to impeach a witness. See Strickler v. Greene, 527 U.S. 263, 282 n.21 (1999) ("We reject [the] respondent's contention that these documents do not fall under Brady because they were 'inculpatory.' Our cases make clear that Brady's disclosure requirements extend to materials that, whatever their other characteristics, may be used to impeach a witness."). "Such evidence is 'evidence favorable to an accused, ' * * * so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." Bagley, 473 U.S. at 676. Here, Carrier's new statement about Gordon's involvement in a cover-up, though perhaps inculpatory on its face, certainly could have been used by the defense to undermine her already shaky credibility.

         Carrier's statement with regard to Tempest's children being excited about getting a puppy was also novel, and the state does little to belie this assertion. In her grand jury testimony, Carrier did mention that Tempest was "supposed to pick up a pitbull puppy from * * * either Doreen Picard or Sue Laferte" on the day of the murder. Yet, Carrier had never before offered that, on the morning of Picard's murder, Tempest's children were excited about getting a puppy.

         Her statement that Tempest's children were excited about the prospect of getting a puppy on the morning of Picard's murder also clearly had impeachment value. It had already been established that Carrier's recollection was mistaken as to when Tempest and his family moved into the apartment complex where she and Guarino lived-the Tempests did not move into their apartment complex on Winter Street until 1983, the year after the murder-meaning that it was unlikely, if not altogether impossible, that Carrier could have seen Tempest's children on Winter Street on the morning of the murder. Yet, mere days before trial, Carrier still continued to assert that she saw Tempest and his family on that day. Moreover, it was undisputed that John Allard, a friend of Tempest, was to be the recipient of the puppy in question.[14]

         Given that the evidence in the state's case was nearly entirely circumstantial, "[t]he outcome * * * hinged on whom the jury believed[.]" State v. Haslam, 663 A.2d 902, 909 (R.I. 1995). Thus, had Carrier's newly offered, inconsistent, and factually very dubious statements been disclosed to the defense, and had they been used effectively to further undermine Carrier's already questionable credibility, they "may [have made] the difference between conviction and acquittal." Bagley, 473 U.S. at 676.

         Last, the state argues that the statements were not material. However, the materiality of the evidence is not germane when the prosecution's failure to disclose the evidence is deemed to be deliberate. McManus, 941 A.2d at 230. Yet, even if a showing of materiality were required, Tempest could satisfy this burden. See DeCiantis, 24 A.3d at 571 ("[T]he applicant 'bears the burden of establishing * * * that the nondisclosed evidence was material * * *.'" quoting Chalk, 816 A.2d at 419).

         "Under the Bagley standard of materiality, '[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Lerner, 542 A.2d at 1091 (quoting Bagley, 473 U.S. at 682). To be clear, Tempest "need not show that he 'more likely than not' would have been acquitted had the new evidence been admitted." Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (quoting Smith v. Cain, 132 S.Ct. 627, 630 (2012)). Rather, "[a] 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Lerner, 542 A.2d at 1091 (quoting Bagley, 473 U.S. at 682).

         As we have already pointed out, the suppressed statements could have been used to impeach Carrier's testimony even further. Carrier was one of four less-than-stellar witnesses (and arguably the most credible of the four) who testified that Tempest confessed to the murder. Had her testimony been further undermined, and her credibility perhaps crushed altogether, certainly there is, at the very least, a reasonable probability-one "sufficient to undermine confidence in the outcome"-that the verdict against Tempest would have been different. See Wearry, 136 S.Ct. at 1006 (holding that "[b]eyond doubt, the newly revealed evidence suffices to undermine confidence in [the] conviction" when a witness's credibility, "already impugned by his many inconsistent stories, would have been further diminished" by the revelation). Contrary to what the dissent suggests, whether the defense would have actually used the statements is not relevant to our analysis-the bottom line is that it should have been defense counsel's choice to make.

         B. The State's Remaining Claims

         Because we find the former prosecutor's deliberate failure to disclose Carrier's pretrial statements to be dispositive of the state's appeal, it is the only issue that warrants addressing in our opinion.[15] See Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009) (reiterating our "usual policy of not opining with respect to issues about which we need not opine").

         IV Conclusion

         In coming to our decision today, we are cognizant of the fact that, thirty-four years ago, two young women were brutally beaten, and we remain mindful of the impact that this ordeal has had on the victims and their families. Yet, our justice system requires that the state bear the burden of proving every element of a crime beyond a reasonable doubt, see, e.g., State v. O'Brien, 774 A.2d 89, 100 (R.I. 2001), and it must do so within the confines of the law. When the state exceeds those confines, it must suffer the consequences.

         Tempest has met his burden of proving by a preponderance of the evidence that postconviction relief is warranted. See Rivera, 58 A.3d at 179. Accordingly, we affirm the Superior Court's judgment vacating Tempest's conviction and quash the writ of certiorari heretofore issued. The materials associated with this case may be remanded to the Superior Court.

          Chief Justice Suttell, concurring in the result and dissenting in part.

         I concur with the majority's holding that the Superior Court order vacating Tempest's judgment of conviction should be affirmed, however, I depart from its reasoning. Rather, I agree with the conclusion of my dissenting colleague that the hearing justice failed to make the necessary findings of fact to support his ruling that the state made a deliberate decision not to disclose the statements of Donna Carrier.

         It is my opinion that the hearing justice did not make a clear finding that the state's failure to disclose statements made by Carrier was "deliberate" in line with Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, nor can such a finding be inferred. Although the hearing justice properly cited Lerner v. Moran, 542 A.2d 1089, 1092 (R.I. 1988), when he defined "deliberate [non-disclosure]" as "a considered decision to suppress[, ]" he completely omitted the second half of that definition. "Deliberate, " in the Brady context and in Lerner, is defined as "a considered decision to suppress, taken for the very purpose of obstructing." Id. (quoting United States v. Keogh, 391 F.2d 138, 146-47 (2nd Cir. 1968) (emphasis added). There was testimony from the former prosecutor at the postconviction-relief hearing that tended to negate the contention that his purpose was to obstruct and there was nothing in the hearing justice's decision to support any inference that he discredited the former prosecutor's testimony in this respect. To the contrary, as the majority points out, the hearing justice "even noted the former prosecutor's purported reason for not offering the information to the defense: because he felt 'it would lead to a continuance and to headaches.'" Lacking credibility determinations, therefore, the hearing justice's decision does not adequately support the proposition that the former prosecutor's failure to disclose the Carrier statements was "a considered decision to suppress, taken for the very purpose of obstructing, " or that the high value of the statements to the defense "could not have escaped the [state's] attention."[1] Lerner, 542 A.2d at 1092 (quoting Keogh, 391 F.2d at 146-47) (emphasis added); see DeCiantis v. State, 24 A.3d 557, 572 (R.I. 2011) ("we are satisfied that we can infer from the hearing justice's credibility determination that he did not find any deliberate nondisclosure on the part of the prosecution"). The equivocal nature of the former prosecutor's testimony in this regard is emphasized in the hearing justice's conclusion that "[b]y deciding not to disclose the newly arisen variations in [Carrier's] story, [the former prosecutor] evidently sought to protect * * * [her] from additional impeachment."

         Accordingly, in my opinion, the majority at the very least should remand with instructions for the hearing justice to apply the proper standard and make credibility findings as it relates to the former prosecutor's testimony.[2] See Butterfly Realty v. James Romanella & Sons, Inc., 45 A.3d 584, 591 (R.I. 2012) (case remanded for factual findings due to inconsistencies within the Superior Court decision). I do not advocate for such a remand, however, as I concur with the majority's holding affirming the hearing justice's decision to set aside Tempest's conviction. I do so in reliance on the hearing justice's ruling that the state's failure to disclose certain evidence relating to the "maroon car" constituted a Brady violation.[3]

         I

         Facts and Travel Relating to the Maroon Car

         I begin by summarizing the facts relating to the maroon car Brady claim. John McMann owned a maroon Buick at the time of the February 19, 1982 murder. The maroon car was registered at that time to Lee's Pharmacy, a store of which John McMann was part-owner. In 1983, John McMann sold the maroon car to Robert Monteiro. At the time of the sale, Lee's Pharmacy purchased a blue Buick to replace the maroon Buick that Monteiro had purchased.

         At Tempest's criminal trial, the state presented a witness, Lisa LaDue, who resided in the second-floor apartment of 409 Providence Street. LaDue testified that on the day of the murder she observed a maroon car parked in the driveway of 409 Providence Street when she arrived home at approximately 3:20 p.m.[4] She also testified that upon entering the triple-decker apartment, she had "heard some moving around downstairs, " but that she had proceeded up the stairs to her apartment. Moreover, LaDue's stepfather, Douglas Heath, testified that there was no vehicle in the driveway of 409 Providence Street when he arrived around 3:30 p.m. that day.

         Significantly, Sherri Richards, Tempest's sister-in-law, testified at trial that she observed Tempest between 4:30 and 4:45 p.m. in front of her house on the day of the murder standing next to the maroon car with Monteiro. She testified that Monteiro "used to borrow" the car from Kevin McMann and that "[h]e would later on purchase the car but not at that time."[5] This portion of Richards' testimony-that Monteiro borrowed the car from Kevin McMann-went uncontested at trial. The defense sought to impeach the witnesses who linked Tempest to "Monteiro's" maroon car on the day of the murder by presenting Martin Leyden, an employee of the Rhode Island Division of Motor Vehicles (DMV), who testified that Monteiro did not yet own the maroon vehicle at the time of the murder and that neither Monteiro nor his wife had any vehicle registered in their names until 1983. Additionally, the state presented Ronald Vaz, who testified that Tempest had confessed to fleeing the crime scene in "Monteiro's car."

         In 2000 or 2001, a private investigator hired to work on Tempest's case discovered a hand-written letter from John McMann in defense counsel's case file. The letter read:

"To whom it may concern:
"Enclosed, find a copy of a Bill of sale, for a 1983 Buick, purchased for Lee's Pharmacy Inc. on May 27, 1983.
"The sale of my red Buick to the Monteiro's [sic] took place after I received my new car.
"There is no way, I was without a car, before I picked up my new one.
"Respectfully,
"John J. McMann Jr."

         Then, in December 2012, the law firm of McDermott Will & Emery, LLP, which had agreed to assist the New England Innocence Project (the NEIP) in preparing Tempest's application for postconviction relief, hired an investigator, John Cinotti, to work on Tempest's case. Cinotti met with John McMann's adult children, Kevin McMann and Sharon McMann-Morelli. Kevin McMann provided an affidavit to the investigator attesting that "[p]rior to the sale in 1983, [John McMann] never lent his car to * * * Monteiro, nor did [Kevin McMann] ever lend [his] father's car, or any other car, to * * * Monteiro." At the postconviction-relief hearing, McMann-Morelli testified that she never observed John or Kevin McMann lend the maroon Buick to Monteiro at any time before Monteiro purchased it in 1983. McMann-Morelli testified that her father, John McMann, had told her that he had gone to the Woonsocket Police Department to inform the police that he had never lent the maroon car to anyone. John McMann had done so at some point during the trial after reading in the newspaper that his car had been referenced in testimony. Kevin McMann also testified that he had never lent the maroon car to anyone and that he had also gone to the Woonsocket Police Department during Tempest's trial with this information.

         In his amended application for postconviction relief, Tempest claimed that his due process rights were violated by the state's failure to disclose to the defense that John McMann and Kevin McMann had informed the Woonsocket Police Department that neither had ever lent the maroon Buick to Monteiro. Tempest claimed that this failure to disclose constituted a constitutional due process violation because the McManns' statements were exculpatory evidence that the defense could have used to impeach Richards' trial testimony that Monteiro would borrow the maroon car from Kevin McMann. Tempest argued that the evidence was also material as the maroon car was "the only thing" that tied Tempest to the crime scene during the time of the murder.

         In response, the state raised the affirmative defense of laches, claiming that Tempest failed to timely pursue postconviction relief. Alternatively, the state maintained that there was no Brady violation because there was no direct evidence that the conversation between the McManns and the Woonsocket Police Department ever occurred. The hearing justice disagreed. He found that the state had failed to establish the affirmative defense of laches because Tempest's delay in seeking postconviction relief was "reasonable-not 'inexcusable' or 'unexplained, '" and the hearing justice also found that a Brady violation had in fact occurred.[6] Accordingly, as noted by the majority, the hearing justice entered an order vacating Tempest's conviction relying in part on the maroon car Brady violation.

         On appeal, the state's argument that the hearing justice erred in vacating Tempest's conviction based on the maroon car Brady claim is two-fold. First, the state argues that the doctrine of laches should have prevented Tempest from litigating the maroon car Brady claim altogether because his delay in seeking postconviction relief was unreasonable and prejudicial to the state. Second, the state argues that, even if the laches defense does not apply, any evidence that the McManns did not lend the maroon car to Monteiro was not "material" pursuant to Brady. I address these arguments separately herein.

         II Laches

         To establish a laches defense, "the state has the burden of proving by a preponderance of the evidence that [(1)] the applicant [was] unreasonably delayed in seeking relief and [(2)] that the state is prejudiced by the delay." Raso v. Wall, 884 A.2d 391, 395, 396 (R.I. 2005). These issues are questions of fact dependent on the circumstances of a particular case, id. at 396, and a reviewing court has discretion to weigh the equitable laches defense. Hazard v. East Hills, Inc., 45 A.3d 1262, 1270 (R.I. 2012). It is well settled that "time lapse alone does not constitute laches." Rodriques v. Santos, 466 A.2d 306, 311 (R.I. 1983). Because "the application of the defense of laches is generally committed to the discretion of the trial justice, " School Committee of Cranston v. Bergin-Andrews, 984 A.2d 629, 644 (R.I. 2009) (quoting O'Reilly v. Town of Glocester, 621 A.2d 697, 703 (R.I. 1993)), this Court "will not reverse the trial justice's decision on what constitutes laches on appeal 'unless it is clearly wrong.'" Id. (quoting Arcand v. Haley, 95 R.I. 357, 364, 187 A.2d 142, 146 (1963)).

         A

         Reasonableness of the Delay

         Beginning with the first prong of the laches defense, the hearing justice found that the state had failed to prove that Tempest's delay in seeking postconviction relief was unreasonable. Given the "myriad issues developed as potential claims * * * as well as the scope and complexity of the case as a whole, " the hearing justice determined that "the most balanced and equitable approach" to determining whether the laches defense applied was "to examine * * * Tempest's general course of conduct over the past twenty years." Although not bearing the burden of proof, [7] Tempest presented evidence at the postconviction-relief hearing to establish that his delay in pursuing postconviction relief was reasonable, including his own testimony and that of Martin Yant, Evelyn G. Munschy, Betty Anne Waters, Esq., and Gretchen Bennett, as well as an affidavit from Michael Kendall, Esq., a partner at McDermott Will & Emery. Based on the evidence presented at the postconviction-relief hearing, the hearing justice made extensive findings of fact concerning Tempest's conduct throughout the twenty years between his criminal conviction and the latest amendment to his application for postconviction relief.[8]

         The hearing justice found that, following Tempest's conviction, Tempest lacked the funds to hire a postconviction-relief attorney. He found that, as a result, Tempest wrote several letters to James McCloskey, a minister who directed an innocence project in New Jersey, seeking his assistance. The hearing justice found that Minister McCloskey informed Tempest that he could not assist in his application for postconviction relief because his case was "too much of a case for [McCloskey] to handle." He found that Tempest also worked alongside Munschy, who was a second-mother figure to Tempest, and who, despite not being an attorney, had expended a significant amount of time examining Tempest's case files and looking into issues surrounding his case. Furthermore, the hearing justice found that Munschy and Tempest's sister, Barbara Small, had each spent substantial sums of their personal money to hire a private investigator, Martin Yant, to investigate Tempest's case beginning in 2000. The hearing justice found that Yant worked extensively on the case, billing over two hundred hours, but that the investigation ceased eighteen months later when Munschy could no longer afford to pay for Yant's services.[9]

         Moreover, he found that Munschy wrote to Attorney Waters in 2001 and to the NEIP repeatedly from 2001 to 2004 seeking representation for Tempest. He found that Attorney Waters was volunteering at the NEIP when the NEIP agreed to review Tempest's case and that Attorney Waters did "the ground work looking for evidence, talking to people in Rhode Island [while the NEIP] w[as] in charge of all the paperwork" and filings. He further found that Attorney Waters filed a petition for deoxyribonucleic acid (DNA) testing on behalf of Tempest in 2004 and that the last DNA result came in 2015 and "form[ed] the body of a core claim within [Tempest's] petition-newly discovered evidence." Additionally, the hearing justice found that 2009 was the first time "the NEIP expanded its case review to include evaluation of non-DNA postconviction issues."

         Furthermore, the hearing justice found that the "substantial costs and attorney hours expended by McDermott Will & Emery as well as the NEIP demonstrate[d] the expanse of resources necessary to properly delve into such an investigation."[10] He found that the state had contributed to the delay in Tempest's application by seeking continuances and objecting to Tempest's request for DNA testing, and that the state had failed to present any evidence that, had Tempest previously sought a public defender to file his postconviction-relief application, the Office of the Public Defender would have been able to litigate these claims faster than Tempest's attorneys at McDermott Will & Emery and at the NEIP. Only "[a]fter consideration of the testimony and exhibits outlining the efforts of * * * Tempest to develop a comprehensive, multi-claim postconviction[-]relief petition, " did the hearing justice find that "Tempest's delay was not unreasonable, and, as a result, [that] the [s]tate's defense of laches fail[ed]." The hearing justice considered the "overriding interests of justice" and concluded that the state had failed to show that it would be inequitable to allow Tempest to enforce his legal rights, especially in light of Tempest's allegations that the state had "manipulate[d] witness statements and physical evidence" in his criminal case.

         All of the findings of fact made by the hearing justice are clearly supported by the evidence presented at the postconviction-relief hearing.[11] Notably, the state does not challenge any of these findings-put differently, there is no allegation that any of the specific findings of Tempest's conduct are clearly erroneous or not supported by the record. Instead, the state argues that the trial justice's ultimate denial of its laches defense was erroneous because Tempest's delay was unreasonable as he had been on notice since 1992 that McMann could not have lent Monteiro the maroon car. The state argues that Tempest "took absolutely no legal or other action with respect to uncovering [this claim] and bringing it as a basis for post[]conviction relief." The state's argument fails in my opinion for several reasons.

         First, the state's position ignores the lens through which the hearing justice considered the laches issues-he examined Tempest's overall conduct and did not undertake a claim-by-claim laches analysis. Although the state suggests in a footnote that the hearing justice's laches determination should have parsed out the complex claims from the "uncomplicated" claims such as the maroon car Brady claim, the hearing justice was in the best position to determine how to address the laches defense based on the circumstances of this particular case, and I see no error in his approach. Indeed, his method in addressing the laches defense was especially appropriate given that the state had originally sought to invoke the laches defense against all the claims in Tempest's application for postconviction relief.

         Nevertheless, even when reviewing the proposed laches defense specifically as it relates to the maroon car Brady claim, there is ample evidence in the record before this Court and findings made by the hearing justice to support his denial of such defense. There was testimony at the postconviction-relief hearing that Tempest became aware of the McManns' statements to the Woonsocket Police Department regarding the maroon car in late 2013 when his private investigator approached Kevin McMann. At that time, Kevin McMann signed an affidavit attesting that neither he nor his father had ever lent the maroon car to Monteiro, and that they communicated this to the Woonsocket Police Department. Moreover, Kevin McMann testified at the postconviction-relief hearing that he never discussed what he disclosed to the police (regarding the maroon car) with Tempest or with any attorneys or investigators prior to meeting with Tempest's investigator in 2013.

         The evidence the state relies on and claims was available to Tempest prior to this 2013 interview with Kevin McMann and McMann-Morelli is unavailing. The handwritten letter from John McMann contained in defense counsel's file, which the state relies on for its assertion that Tempest was on notice, could, at best, have informed Tempest that John McMann would not have sold his vehicle to Monteiro and been "without a car" prior to 1983. This letter does not, however, indicate, let alone set forth, that neither John McMann nor Kevin McMann ever lent the maroon car to Monteiro in 1982. The letter also made no indication that John McMann or Kevin McMann actually had gone to the Woonsocket Police Department with this information. Accordingly, when this letter was discovered in Tempest's file in 2001, it could not have placed Tempest on notice of a possible Brady claim.

         Additionally, there was evidence before the hearing justice that Tempest has always maintained his innocence and that he, with the assistance of family and friends, has always actively sought some form of postconviction relief. Munschy testified that she and Small initially hired a private investigator in 2000 because they both felt that they needed to uncover more material to present to an attorney. Bennett, a volunteer at the NEIP, testified, and the hearing justice found her testimony credible, that cases of this magnitude can take many years to properly litigate postconviction-relief issues. Moreover, Rhode Island law, as codified in G.L. 1956 § 10-9.1-8, provides that:

"All grounds for relief available to an applicant at the time he or she commences a proceeding under this chapter must be raised in his or her original, or a supplemental or amended, application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds that in the interest of justice the applicant should be permitted to assert such a ground for relief."

         Therefore, it is my opinion that the hearing justice was not clearly wrong in finding that Tempest's delay was not unreasonable where there is ample evidence to support a finding that Tempest actively sought additional grounds for relief and that a premature filing of a postconviction-relief application could have barred future claims. See Ramirez v. State, 933 A.2d 1110, 1112 (R.I. 2007) (the defendant was precluded from raising new issues in his third application for postconviction relief, where § 10-9.1-8 requires that all grounds for relief be raised in the initial postconviction-relief application, and the defendant failed to establish a reason why his claims could not have been raised in his first application).

         In my opinion, the hearing justice's findings as they relate to the reasonableness of Tempest's delay were all supported by the evidence presented at the postconviction-relief hearing. His ultimate conclusion that "the twenty-year period associated with the pursuit of this petition for postconviction relief was * * * reasonable-not 'inexcusable' nor 'unexplained'" was also supported by the record, well within his discretion, and not otherwise clearly wrong.

         B

         Prejudice to the State

         The state also argues that the hearing justice erred in finding that it was not prejudiced by Tempest's delay. Notably, however, the laches defense is a two-prong analysis necessitating that the hearing justice find both that the applicant's delay was unreasonable and that the state was prejudiced by the delay. Raso, 884 A.2d at 395. Because, as previously noted, there is ample evidence to support the hearing justice's finding that Tempest's delay was not unreasonable- and consequently that the state failed to meet the first prong of the laches defense-a discussion of the second prong is not necessary.

         It is my opinion that the hearing justice's thorough analysis of the laches defense does not warrant a reversal. As this Court has previously noted, "'[t]he standard of abuse of discretion is one that gives extreme deference to the [hearing] justice's determination'" and "we may uphold a [hearing] justice's ruling even if we would have ruled differently had we been in the [hearing] justice's position." State v. Gillespie, 960 A.2d 969, 980 (R.I. 2008) (quoting State v. Remy, 910 A.2d 793, 797 (R.I. 2006)). Accordingly, it was within the hearing justice's discretion to weigh the evidence presented by both the state and Tempest, and to reach the outcome that he did; I discern no clear error in his conclusion that the state failed to prove the requisite elements of the laches defense.

         Finally, I note that Tempest was convicted of murder in the second degree and sentenced to eighty-five years in prison. After rejecting the state's defense of laches, the hearing justice presided over a postconviction-relief hearing that spanned twenty-four days, and he then determined, in a thoughtful and conscientious decision, that Tempest's due process rights were violated and that Tempest was denied a fair trial. A fundamental principle animating our criminal justice system was articulated by Sir William Blackstone in his seminal work, Commentaries on the Laws of England: "[I]t is better that ten guilty persons escape, than that one innocent suffer." 4 William Blackstone, Commentaries *352. In the circumstances of this case, I believe it to be in the interest of justice that the issues raised on appeal, which were fully vetted in the Superior Court, be decided on their merits.

         III

         Brady Claim

         The state argues that, even if the laches defense does not bar Tempest's application for postconviction relief, his Brady claim relating to the maroon car should fail because any evidence, if indeed withheld from the defense, was not material pursuant to Brady and was discoverable with the exercise of due diligence. Specifically, the state argues that Tempest could have discovered that the McManns would not have lent the maroon vehicle to Monteiro prior to trial, and that, accordingly, this evidence was not Brady material. The state also argues that while Kevin McMann's testimony, as credited by the hearing justice, contradicted Richards' testimony that Monteiro borrowed the maroon car in 1982, that did not mean that Richards did not see Tempest standing beside a maroon car (although not necessarily John McMann's maroon car). The state further suggests that, because there was already trial testimony from the DMV employee that Monteiro did not own any vehicle at the time of the murder, thus contradicting Richards' account of seeing Tempest next to "Monteiro's" maroon car on the day of the murder, this new evidence-that the McManns would not have lent the car to Monteiro in 1982-does not create a probability that the result of Tempest's trial would have been different had this statement been available to the defense.

         The state violates a defendant's due process rights under Brady when it suppresses evidence favorable to the accused that is "material either to guilt or to punishment." Brady, 373 U.S. at 87. "[W]here a nondisclosure is not deliberate, [an] applicant [is] required to make a showing of materiality * * *." DeCiantis, 24 A.3d at 571. Evidence is "material" for purposes of Brady when a "reasonable probability" exists that "the result of the proceeding would have been different" if the suppressed evidence had been disclosed. Lerner, 542 A.2d at 1092 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Reasonable probability does not require that "the defendant 'would more likely than not have received a different verdict with the evidence, ' only that the likelihood of a different result is great enough to 'undermine[] confidence in the outcome of the trial.'" Smith v. Cain, 132 S.Ct. 627, 630 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). "Impeachment evidence * * * as well as exculpatory evidence, falls within the Brady rule." Bagley, 473 U.S. at 676. Brady has also been expanded to impose a duty on the prosecutor to learn of any favorable evidence "known to the others acting on the government's behalf, " D'Alessio v. State, 101 A.3d 1270, 1278 (R.I. 2014) (quoting Kyles, 514 U.S. at 437), "including the police." Kyles, 514 U.S. at 437 (emphasis added).

         This Court has previously stated that we "will not disturb a trial justice's factual findings made on an application for post[]conviction relief absent clear error or a showing that the trial justice overlooked or misconceived material evidence in arriving at those findings." Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011) (quoting Gordon v. State, 18 A.3d 467, 473 (R.I. 2011)). We will, nonetheless, "review de novo any post[]conviction[-]relief decision involving questions of fact or mixed questions of law and fact pertaining to an alleged violation of an applicant's constitutional rights." Id. (quoting Gordon, 18 A.3d at 473).

         After hearing extensive testimony, the hearing justice found that "John McMann told the [Woonsocket Police Department] he did not loan his maroon car to * * * Monteiro" when the Tempest criminal trial was ongoing. The hearing justice found as fact that Kevin McMann "also informed law enforcement that he never loaned [the maroon car] out." The hearing justice found that "there [wa]s no indication that [the former prosecutor] ever learned of these statements, and, as such, this evidence was never disclosed to defense counsel." The hearing justice held that "although any nondisclosure by the [s]tate appear[ed] to be wholly inadvertent, it still failed to fulfill its duty to disclose." The hearing justice noted that, here-where the state's case against Tempest "was based entirely on circumstantial evidence, " and where "[t]he statement by * * * LaDue that she saw a maroon car upon returning home the afternoon of the murder, and the corresponding testimony from * * * Richards that she saw * * * Tempest standing by a maroon car driven by * * * Monteiro that same afternoon, constitute[d] the only piece of evidence linking * * * Tempest to the crime scene at the appropriate time"-any "evidence tending to suggest that * * * Tempest was not in a maroon car that day [was] enough to 'undermine[] confidence in the outcome of the trial.'"

         The state's argument that Kevin McMann's statement was not "suppressed" under Brady because Tempest, through the exercise of reasonable diligence, [12] could readily have learned whether Kevin McMann loaned the maroon vehicle to Monteiro, was not raised before the Superior Court, nor was it raised before this Court in the state's petition for writ of certiorari. Accordingly, it has been waived. See Town of Burrillville v. Rhode Island State Labor Relations Board, 921 A.2d 113, 119 (R.I. 2007) ("[W]e will not consider any issue that is not included in a petitioner's initial petition for issuance of a writ of certiorari."); see also State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008) ("It is well settled that a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.").

         Moreover, Tempest testified at the postconviction-relief hearing that he was unaware of Monteiro borrowing the maroon car before Monteiro purchased it in 1983-not that he knew for a fact that Monteiro never borrowed the car. He also testified that, prior to being represented by McDermott Will & Emery, he did not have any knowledge that anybody from the McMann family had gone to the police. William Dimitri, who sat second-chair in Tempest's criminal trial, also testified that the state never disclosed to him that Kevin McMann had denied lending the car to Monteiro. Even with John McMann's handwritten letter in Tempest's file stating that he would not have been without a car prior to selling, there is no indication from the evidence presented at the postconviction-relief hearing that Tempest also knew that the McManns would not have lent the maroon car to Monteiro in 1992, as the state suggests.

         This evidence, if properly disclosed to the defense, would have directly contradicted Richards' trial testimony that Monteiro "used to borrow" the maroon car. The state presented no physical or eyewitness evidence against Tempest at trial. As the trial justice who presided over the criminal case noted, "there[] [was] no doubt in the [c]ourt's mind that the connection [of] [Tempest] to the crime was all furnished by his own words * * * [a]ccording to the [s]tate's case."[13] (Emphasis added.) In the state's closing argument at the criminal trial, the state acknowledged that it had "brought out many of the failures or the deficiencies of the crime scene to explain to [the jury] why there [was] not [sic] physical evidence connecting [Tempest] to the crime." The state in its closing also highlighted the importance of the maroon car, by noting that:

"[Richards] ha[d] * * * told [the jury] about the maroon car [Tempest] * * * was getting out of on February 19th outside of her place at about quarter to five in the afternoon. The maroon car should [have] sound[ed] familiar to [the jury] because the maroon car * * * that [LaDue] [had] described in the driveway outside 409 Providence Street. And once again, she has told you that that maroon car belonged to someone named Kevin McMann."

         Because, as the hearing justice noted, the maroon car was the only physical evidence linking Tempest to the murder scene during the time of the murder, any evidence tending to negate the credibility of the witness who testified that she observed Tempest in the maroon car that day tends to undermine confidence in the outcome of the trial. I see no clear error in the hearing justice's findings of fact as they relate to the maroon car, and I agree that the evidence of the maroon car was material. Accordingly, I would affirm the order vacating Tempest's conviction, albeit on different grounds than the majority.

          Justice Goldberg, dissenting.

         The 1982 brutal murder of Doreen Picard (Picard)-not unlike the attempted murder of Martha "Sunny" von Bulow, see State v. von Bulow, 475 A.2d 995 (R.I. 1984)-ranks as one of the most infamous crimes committed in this state during the last century. The fact that no arrest was made for several years was a festering sore in the community, compounded by a cover-up by sworn police officers. The majority affirms the hearing justice's grant of postconviction relief-which vacates a twenty-four-year-old conviction for this murder-solely on the basis of the prosecution's deliberate nondisclosure of two statements (the Carrier statements) of Donna Carrier (Carrier), one of four trial witnesses to whom Raymond Tempest Jr. (Tempest) confessed. In his seventy-eight-page decision, the hearing justice devoted a grand total of two-and-a-half pages to this issue, including the factual background, the governing legal standard, and his analysis relating to this evidence. This issue demanded more than the cursory treatment it received in the Superior Court and by the justices of this Court on appeal, such that I can only conclude that this decision is a manifest injustice.

         After conducting a thorough examination of the relevant factual background and analysis of the issue within this Court's deliberate-nondisclosure framework, I am convinced that the hearing justice clearly erred in finding that the nondisclosure of the Carrier statements was a deliberate nondisclosure as that concept is defined under our law. Moreover, I am of the opinion that the majority, in reaching a contrary conclusion, improperly supplements the inadequate factual findings of the hearing justice with findings of its own in order to reach a result that is not supported by our jurisprudence and is a marked departure from well-settled law. It is not the business of this Court to make factual findings in a nonjury case. Therefore, I respectfully dissent. I would vacate the hearing justice's grant of postconviction relief because (1) the nondisclosure of the Carrier statements was not a deliberate nondisclosure and the Carrier statements are not material; (2) Tempest's Brady claim[1] with respect to the McMann evidence[2]not only is barred by the doctrine of laches, but it also is without merit under Brady; and (3) Tempest's witness-coaching claim is barred by res judicata, and, additionally, the hearing justice's inventive standard for judging this claim is erroneous and has no basis under this nation's constitutional framework. I also take issue with the majority's refusal to address this witness-coaching issue because this case is being remanded for a new trial, and, in order to provide guidance to the trial justice upon remand, this issue should be resolved by this Court.

         I

         The Carrier Statements

         In my opinion, the hearing justice clearly erred in concluding that the state's nondisclosure of the Carrier statements qualified as "deliberate" under the deliberate-nondisclosure doctrine of State v. Wyche, 518 A.2d 907, 910 (R.I. 1986).[3] Rather than acknowledging the fatal flaws in the hearing justice's decision, the majority compounds them by making its own factual findings-which are also erroneous-in an effort to bolster the decision. Because the hearing justice's finding of deliberateness is clearly erroneous, Tempest is entitled to postconviction relief as a result of the nondisclosure of the Carrier statements if, and only if, this evidence is material under United States v. Bagley, 473 U.S. 667, 682 (1985), and its progeny. And, as explained below, the Carrier statements amount to mere cumulative impeachment evidence and do not constitute material evidence under Bagley.

         A. Background

         A thorough analysis of the prosecution's nondisclosure of the Carrier statements must include a full explication of the relevant facts. Prior to February 19, 1982, the date on which Picard was brutally beaten to death in the basement of her apartment building at 409 Providence Street in Woonsocket, Susan Laferte (Laferte), who also lived at 409 Providence Street, agreed to mate her pit-bull terrier with Tempest's pit bull. The evidence disclosed that, hours before the murder, Tempest had been at 409 Providence Street to select a puppy from the resulting litter, which Laferte had promised him in exchange for the use of his pit bull. Tempest intended to give the puppy to John Allard (Allard). On that fateful afternoon, Sherri Richards (Richards)[4]saw Tempest leave her apartment between 1:20 and 1:30 p.m. with Allard to pick out the puppy, return alone between 2 and 2:30 p.m., depart once more soon thereafter, and return once again between 4:30 and 4:45 p.m. When Tempest returned the second time, Richards noticed that he had changed his boots and was sporting a new bite mark or scratch on his wrist. Meanwhile, at 409 Providence Street, the severely beaten bodies of Picard and Laferte were discovered in the basement at approximately 3:30 p.m. Picard was pronounced dead at the scene at 4:30 p.m. Laferte was grievously injured. There were no eyewitnesses to this crime.[5]

         For several years, the homicide remained unsolved, which was unsurprising in light of the ongoing cover-up that was perpetrated by members of the Woonsocket Police Department, including Tempest's brother, Det. Gordon Tempest (Gordon). In February 1987, Carrier gave a statement to police. In this statement, Carrier stated that, at the time of the murder in 1982, she and her then-boyfriend, John Guarino (Guarino), lived on the third floor at 448 Winter Street in Woonsocket and that Tempest and his family lived at the same address on the floor below. As it turns out, however, Tempest and his family did not move to that address until 1983. But Carrier explained in her February 1987 statement that, in March 1982, Tempest confessed to the murder in her and Guarino's presence at their apartment located at 448 Winter Street. According to Carrier, Guarino

"asked [Tempest] if he thought the [p]olice kn[e]w and [Tempest] said[, ] '[N]o[, ] my father would take care of it.' * * * He said that [t]hey can't do anything because there is no evidence. [Guarino] then asked if [Tempest] used his hands and [Tempest] said no, and something about a hammer or pipe and said that they would never find anything, there are no fingerprints and everything has been taken care of. * * * [Tempest] continued[, ] saying[, ] 'My father is * * * an important man, High Sheriff of Providence[.] It cost a[ ]lot of money for my father to make sure my name didn't get brought up in this. If my brother Gordie knew he would turn me in.'"

         Tempest was in possession of Carrier's February 1987 statement at the time of his trial.

         Carrier testified before the grand jury on November 30, 1990. Carrier first reviewed her February 1987 statement before the grand jurors. She also testified that, although she knew Tempest before the two became neighbors, she did not know Tempest's then-wife, Jane Tempest (Jane), until after the Tempests moved into the Winter Street building. Additionally, she testified, in detail, about certain observations she made of Tempest on the day of the murder:

"A: Johnny Allard was with [Tempest] that afternoon that they came home, they were supposed to pick up a pit[ ]bull puppy from um, either Doreen Picard or Sue La[f]erte, one or the other, because they had had a pit[ ]bull dog that mated with their dog and they were going to get the pick of the litter. Well this was the afternoon supposedly that he went over to pick the dog up and the puppy up from these people, that was his excuse for going over there and the puppy wasn't shown up [sic] until maybe about a week after the murder.
"Q: Okay, but what, how do you know that, that * * *
"A: Because they were, um, talking about it earlier in the day that they were going to pick up their puppy.
"Q: Were you, did you hear them talking about it earlier?
"A: In the kitchen, they were in the kitchen in Jane's apartment and [Tempest]'s apartment.
"Q: Okay, and you were there?
"A: Yes.
"Q: That's the day of the murder?
"A: That was the day of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.