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State v. Corleto

Supreme Court of Rhode Island

June 8, 2017

State
v.
Kevin Corleto

         Newport County Superior Court, N2/13-68A, Associate Justice Edward C. Clifton.

          For State: Lauren S. Zurier Department of Attorney General.

          For Defendant: Gary G. Pelletier, Esq. Maria Caley, Esq.

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

          OPINION

          WILLIAM P. ROBINSON, III ASSOCIATE JUSTICE.

         The defendant, Kevin Corleto, appeals from an order of the Superior Court denying his motion to dismiss on double jeopardy grounds[1] a criminal information charging him with breaking and entering a dwelling, in violation of G.L. 1956 § 11-8-2. Specifically, the defendant's motion to dismiss was predicated on alleged prosecutorial goading that resulted in the declaration of a mistrial. This case came before the Supreme Court for oral argument on April 5, 2017, 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 a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time.

         For the reasons set forth below, we affirm the order of the Superior Court.

         I

         Facts and Travel

         On January 3, 2013, defendant was charged with for breaking and entering the dwelling of one Elizabeth Murphy, in violation of § 11-8-2.[2] His jury trial commenced on May 13, 2014.

         At trial, the state presented Ms. Murphy as its only witness. Ms. Murphy testified that she then owned and had resided in a "one-family home" in Newport for the past seventy-three years. She proceeded to testify that, on what she characterized as the "unforgettable" day of September 22, 2012, at around 2:30 in the afternoon, she was working on her computer in the den, which is located in the back portion of her house and outside of which is a deck. She stated that, at some point during that afternoon, she "heard somebody climbing over the railing on the deck." Ms. Murphy testified that she looked out and saw dark brown hair on a person's head- which hair color "was about the same color" as that of her grandson; she added that, for that reason, she "assumed" that the person was her grandson. Ms. Murphy stated that she went to the back door "to give him the devil" for having climbed over the railing. She further testified that, without "look[ing] out the curtain, " she then unlocked and opened the door. She added that she noticed that "the screen door had already been opened" and that she saw defendant "crouched down." She said that he suddenly "jumped into the foyer" of her home. Ms. Murphy testified that defendant held up both of his hands in the form of "two fists" and said: "I got medicine for the lady next door." (She noted that there was "nothing" actually in his hands at that time.) Ms. Murphy testified that, at that juncture, she told defendant that "the lady next door, " who happened to have been her sister-in-law, "had gone back to Georgia." She added that, in reaction to that revelation by her, defendant "looked at [her] and he said 'Fuck. Oh, fuck.'" She replied, "Watch the language, " but defendant "looked right at [her]" and responded: "'Fuck you.'" Ms. Murphy stated that she thereafter "shoved [defendant] out the door" with "[t]wo hands." And she said that, as a result, "[h]e went back and he hit the screen door * * * and he fell out the step." Ms. Murphy concluded her direct testimony by stating that, about fifteen minutes after the just-described incident, her son arrived, to whom she related what had happened-resulting in his advising her to call the police.

         During the course of cross-examination, defense counsel pointed out several details in Ms. Murphy's testimony that had been omitted from her two prior witness statements to the police (dated September 22, 2012 and November 25, 2012, respectively). Specifically, Ms. Murphy conceded that, in those two prior statements, she never mentioned: "the screen door" or that defendant was "crouched down" or that he had held "his hands out in close[d] fist[s]." Ms. Murphy explained to the cross-examiner that, at the time she wrote her first statement, which occurred on the day of the above-described incident, she was "very upset."

         Before the presentation of closing arguments, the trial justice, outside the presence of the jury, posed the following question to both the prosecutor and defense counsel: "Based upon their assessment of the evidence, are the parties at a different place than they were at the beginning of this trial, vis-à-vis a resolution, without having a jury verdict?" After the parties responded that their respective positions remained the same, the trial justice engaged in the following dialogue with both of them:

"[THE COURT]: If my recollection is correct then, * * * the place where the defendant was was a willingness to plea to an amended charge of trespassing, with a sentence, a recommendation for -- hopefully a recommendation from the State of a ...

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