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Tempest v. State

Supreme Court of Rhode Island

November 10, 2016

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

         Providence County Superior Court PM 04-1896Associate Justice Daniel A. Procaccini

          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

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

          ORDER

         Before this Court is the state's petition to reargue pursuant to Article I, Rule 25 of the Supreme Court Rules of Appellate Procedure.[1] The thrust of the state's petition merely serves to reiterate its position that the former prosecutor did not deliberately fail to disclose Carrier's March 1992 statements and disagrees with the majority that the statements were material under Brady v. Maryland, 373 U.S. 83 (1963). However, the state fails to identify any issues that this Court may have overlooked, nor does it identify any issues upon which this Court was either legally or factually incorrect. Rather, as Tempest's reply aptly points out, the state's petition essentially rehashes the arguments it previously made both in its written brief and at oral argument. Even the state's own characterization of its grievance-that this Court "misapprehended the force of [its] contention"-illustrates the petition's shortcomings (emphasis added).

         In all due respect to both dissents to this order, all of the arguments made by both parties were thoroughly vetted by each member of this Court, as evidenced by the fact that this case produced three separate (and extraordinarily thorough) opinions. The state presents no legal or factual error committed by this Court warranting additional review. Simply put, the state just disagrees with the majority's conclusion.

         Given that the state does not point to any legal or factual errors in the majority's opinion, but rather merely attempts to rehash the arguments already considered by this Court in the original appeal, the state's petition to reargue this case is hereby denied.[2]

          Chief Justice Suttell, dissenting.

         Although I concurred with the Court's affirmance of the Superior Court judgment vacating Raymond Tempest, Jr.'s conviction, I did so for reasons other than those relied upon by the majority. For the reasons set forth in my separate opinion, I believe that the Superior Court justice's decision to vacate the conviction based upon the state's failure to disclose the pretrial statements of Donna Carrier was predicated upon an incomplete analysis under the doctrine set forth in Brady v. Maryland, 373 U.S. 83 (1963) and Lerner v. Moran, 542 A.2d 1089 (R.I. 1988). See Tempest v. State, 141 A.3d 677, 687-88 (R.I. 2016) (Suttell, C.J., concurring in the result and dissenting in part).

         As neither the hearing justice nor the majority concluded that the prosecution's failure to disclose the statements was for the purpose of obstruction, the Court's opinion seemingly stands for the proposition that a defendant need show only "a considered decision to suppress" to be entitled to a new trial. See State v. Wyche, 518 A.2d 907, 910 (R.I. 1986). This is a departure from our long-standing jurisprudence and should be revisited. See id. ("The prosecution acts deliberately when it makes 'a considered decision to suppress * * * for the very purpose of obstructing' or where it fails 'to disclose evidence whose high value to the defense could not have escaped * * * [its] attention.'") (quoting United States v. Keogh, 391 F.2d 138, 146-47 (2nd Cir. 1968)).

         The Court's opinion also rests upon the second prong of the deliberate nondisclosure analysis, i.e., that the "high value" of the Carrier statements could not have escaped the prosecution's attention. In doing so, the majority, I believe, has overlooked or misapprehended significant aspects of the record. Most fundamentally, the majority reached its conclusion notwithstanding the lack of any credibility determinations by the hearing justice with respect to the testimony of the former prosecutor. Indeed, the hearing justice, having found (erroneously in my view) the first prong to have been satisfied, never discussed the alternative high-value-of-the-evidence predicate.

         The only statements in the hearing justice's decision concerning this evidence that may fairly be considered factual rulings are: (1) that the former prosecutor's note, "too late, don't volunteer new info, will cause big problems, " constituted a considered decision to suppress; (2) that "the protean nature of Ms. Carrier's testimony was * * * necessarily harmful to the [s]tate's case"; and (3) that the former prosecutor "evidently sought to protect Ms. Carrier from additional impeachment." The use of the word "evidently" certainly suggests that the hearing justice was not at all convinced of the high value of Carrier's statements to the defense.

         Be that as it may, the majority determined "that the 'high value' of Carrier's new statements to the defense could not have escaped the former prosecutor's attention * * *." Tempest, 141 A.3d at 683. This conclusion, in my judgment, overlooks the wealth of impeachment evidence that was in the defendant's possession at the time of trial.

         One of the statements at issue was Carrier's assertion that, on the day of the murder, Tempest's children were excited about getting a puppy. At the time of the trial, however, the defense was in possession of Carrier's grand jury testimony that she had observed Tempest leave her apartment building on the day of the murder to pick up a puppy. Significantly, it was undisputed at the time of trial that Carrier was mistaken about what she had observed on the day of the murder as Tempest had not yet moved into her apartment building. When placed in proper context, therefore, I believe that the "high value" of Carrier's statement concerning Tempest's children's excitement could easily have escaped the prosecution's attention. See Lerner, 542 A.2d at 1092 ("Such [high ...


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