County Superior Court, N2/13-68A, Associate Justice Edward C.
State: Lauren S. Zurier Department of Attorney General.
Defendant: Gary G. Pelletier, Esq. Maria Caley, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
WILLIAM P. ROBINSON, III ASSOCIATE JUSTICE.
defendant, Kevin Corleto, appeals from an order of the
Superior Court denying his motion to dismiss on double
jeopardy grounds 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.
reasons set forth below, we affirm the order of the Superior
January 3, 2013, defendant was charged with for breaking and
entering the dwelling of one Elizabeth Murphy, in violation
of § 11-8-2. His jury trial commenced on May 13, 2014.
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.
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."
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 ...