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State v. Munoz

Superior Court of Rhode Island

August 30, 2017

STATE OF RHODE ISLAND
v.
RUDY L. MUNOZ

         Providence County Superior Court

          For Plaintiff: Meghan E. McDonough, Esq.

          For Defendant: Sinclair T. Banks, Esq.

          DECISION

          MONTALBANO, J.

         The State of Rhode Island (State) has charged Rudy L. Munoz (Defendant) with one count of transfer of child pornography in violation of G.L. 1956 §§ 11-9-1.3(a)(2) and 11-9-1.3(b) and one count of possession of child pornography in violation of §§ 11-9-1.3(a)(4) and 11-9-1.3(b). The Defendant appeals a Superior Court Magistrate's denial of a Super. R. Crim. P. 9.1 Motion to Dismiss and four interrelated motions. Jurisdiction is pursuant to G.L. 1956 § 8-2-11.1(d).

         I

         Facts

         The following facts are gleaned from the criminal information package. Detective Kevin Harris (Det. Harris), a detective with the Coventry Police Department and member of the Rhode Island Internet Crimes Against Children (ICAC) Task Force, [1] informed Detective Lieutenant Stephen Riccitelli (Det. Lt. Riccitelli or Detective Lt. Riccitelli)[2], also a member of ICAC, that on December 24, 2014, Det. Harris connected directly to Internet Protocol (IP)[3] address 68.0.239.40 on a peer-to-peer file sharing network[4] and downloaded a number of suspected child pornography files. After watching one of the videos, Det. Lt. Riccitelli determined that its subject matter, consisting of a prepubescent female giving an adult male oral sex, constituted child pornography under § 11-9-1.3.

         Based on his training and experience, Det. Lt. Riccitelli knows that peer-to-peer networks are typically free, easily downloadable over the Internet, and used to share electronic files with other users in the network. In addition, Det. Lt. Riccitelli knows that users often utilize the peer-to-peer network to share and obtain child pornography. The name of the file viewed by Det. Riccitelli is "pthc pedo rare deepthroat 5yo wow no gaging.mpg." In his affidavit contained in the criminal information package, Det. Lt. Riccitelli explained that "pthc" stands for "pre-teen hard core." He further explained that peer-to-peer network users can enter text-based search terms, such as "pthc, " to obtain a list of other users' files available for download that match the search term. These files include the users' IP addresses. A user can then select a specific file from the list to download.

         Through the American Registry of Internet Numbers, Det. Lt. Riccitelli determined that Cox Communications, Inc. owned IP address 68.0.239.40. On February 5, 2015, in response to an administrative subpoena, Cox Communications, Inc. provided the name and address for the IP address subscriber: Rudy Munoz, 120 Elmdale Avenue, Providence, Rhode Island 02909. Through research and surveillance, Det. Lt. Riccitelli confirmed that two individuals named Rudy Munoz with two different dates of birth resided in the single-family residence located at 120 Elmdale Avenue and that a car registered under the name Rudy Munoz had been parked in the residence's driveway.

         On March 13, 2015, a search warrant issued for the person of Rudy Munoz, the 120 Elmdale Avenue premises, all computer hardware, computer software, computer-related documentation, records, documents, material and passwords or other data security devices related to the acquisition, possession, and transfer of child pornography. In addition, the search warrant provided for an on-site forensic preview and off-site forensic analysis of seized electronic evidence. On March 17, 2015, at 6:30 A.M., members of the ICAC Task Force, including Det. Lt. Riccitelli, executed the search warrant. Upon entering 120 Elmdale Avenue, ICAC Task Force members encountered Rudy L. Munoz (Defendant), his mother, his brother, his girlfriend, and his father, who is also named Rudy Munoz. Detective Lt. Riccitelli explained to the occupants that the ICAC Task Force had a search warrant pursuant to an ongoing child pornography investigation.

         At that time, Det. Lt. Riccitelli did not know which Rudy Munoz, the son or the father, was the subscriber assigned to the IP address. Detective Lt. Riccitelli decided that he would interview Defendant first. Before the interview began, Det. Lt. Riccitelli read Defendant his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 456, 467 (1966). After reading and signing the rights form, Defendant confirmed that he understood his rights and expressed his willingness to talk with the detectives. Detective Macera (Det. Macera) and Det. Lt. Riccitelli interviewed Defendant in the bedroom. The interview was audio recorded, transcribed, and included in the criminal information package. See Witness Statement of Defendant. During the interview, Det. Lt. Riccitelli asked Defendant if he ever used any file sharing software. Defendant responded, "I had one, but I removed it." Id. at 13. He then told the detectives that he used "Shareaza" and has "BitComet" on his newer computer. Id. at 14. He explained to detectives that file sharing software allows users to get files in "bits and pieces . . . from different people to -- to view." Id. at 15. Detectives then asked the Defendant if he looked at images or videos of child pornography on his computer or cell phone. Id. at 18. Defendant responded, "[c]ell phone, no. Computer, once. But I -- I tried to delete it." Id. He told the detectives it was a video depicting "a young girl and a guy and I delete [sic] it when I saw it." Id. He further stated that "[i]t was just a blow job, and then I d- deleted it." Id. at 19. The detectives then asked the Defendant the age of the girl in the video. Id. He responded, "[a]round twelve or something I think, eleven? Twelve/eleven." Id. Detective Lt. Riccitelli asked Defendant what search terms he entered to find the video on the peer-to-peer network. Id. at 20. He responded that he searched for "[y]oung girl giving blow jobs." Id. When asked if he had videos or pictures, he responded, "[n]ot pictures, I have videos usually." Id. at 30. He was asked how many times he has downloaded pictures or videos of child pornography. Id. at 25. He stated "[a]round twenties [sic]." Id. at 29. He then told the detectives that the average age of the girls in the videos he has viewed is "[t]welve to sixteen" and that he entered "twelve-year-old or fourteen-year-old" as his search terms on file sharing software. Id. at 30, 35. He also described the video that had been obtained by Det. Harris from the IP address assigned to 120 Elmdale Avenue as depicting a pre-pubescent female giving an adult male oral sex. Id. at 19.

         After the interview, Det. Lt. Riccitelli concluded that Defendant's father, Rudy Munoz, was the IP address subscriber and that Defendant, Rudy L. Munoz, was the individual in possession of and transferring child pornography. Defendant was taken into custody and transported to the Lincoln Woods State Police barracks. Police seized one HP Pavilion laptop, one Sager laptop, and one HTC cell phone.

         The digital forensic report contained in the criminal information package notes that on April 20, 2015, a forensic examination of the HP Pavilion laptop uncovered seventy-five deleted images of child pornography "depict[ing] nude prepubescent females engaged in sexual acts, includ[ing] bondage, and/or the graphic exhibition of their genitals." Digital Forensic Examination Report, at 1. The forensic report also includes descriptions of three of the seventy-five images: (1) depicting "a nude prepubescent female in a bathtub being urinated on by an adult male[;]" (2) depicting "a prepubescent female performing oral sex on an adult male while handcuffed[;]" (3) depicting "a nude prepubescent female being vaginally penetrated by an adult male's penis." Id. at 3. The forensic analyst reported that these images were found in unallocated space on the HP Pavilion laptop and obtained through a data carving process. Id. According to the forensic analyst, files located in a computer's unallocated space contain no metadata and, though they may have once been accessible, they are no longer reachable by the user. Id.

         II

         Travel

         On July 31, 2015, the State filed a criminal information against Defendant charging him with (1) the transfer of child pornography in violation of §§ 11-9-1.3(a)(2) and 11-9-1.3(b) and (2) the possession of child pornography in violation of §§ 11-9-1.3(a)(4) and 11-9-1.3(b). On September 16, 2015, Defendant filed a Super. R. Crim. P. 9.1 motion to dismiss the criminal information along with a supporting memorandum of law. On October 16, 2015, Defendant filed a supplemental memorandum in support of his motion to dismiss.

         On November 16, 2015, Defendant filed seven motions: (1) "Motion for an order that the prosecution shall, in their response to Defendant's Motion to Dismiss the information, state their proposed jury instructions for the two crimes charged under R.I.G.L. 11-9-1.3[;]" (2) "Motion for the prosecution to be ordered to obtain comprehensive immunity for defense counsel and defense experts, failing which the case will be dismissed[;]" (3) "Motion . . . for the Court and the prosecution to explain, precisely, what the defense can lawfully do to defend Mr. Munoz in this case, consistent with his rights to effective assistance of counsel and a fair trial[;]" (4) "Motion to exclude from the trial any and all imagery of child pornography offered by the prosecution[;]" (5) "Motion . . . for the prosecution to produce the source code of the software the police allegedly used to download alleged child porn from the Defendant's computer[;]" (6) "Discovery Motions: for an opportunity to inspect and test the seized computers and imagery, for the prosecution's expert's full report, and for the prosecution expert's C.V.[;]" and (7) "Motion . . . for the prosecution to be required to prove, by expert testimony, at a preliminary evidentiary hearing before trial, that the alleged child pornography imagery is of actual child pornography not of virtual child pornography[.]" In addition, Defendant filed a second supplemental memorandum in support of his motion to dismiss.

         On January 4, 2016, Defendant filed his third supplemental memorandum along with "Defendant's motion and memo that the prosecution be ordered to declare immediately its supporting inductive principles for its two inferential claims that there is probable cause that: 1) actual child porn was seized, and, 2) that the Defendant knew the seized imagery was actual child porn[.]" On June 7, 2016, Defendant filed his fourth supplemental memorandum. On July 13, 2016, Defendant filed his fifth supplemental memorandum along with a "Motion to transmit images in the Superior Court courtroom, during a probable cause hearing, in order to support the Defendant's Motion to Dismiss the case for lack of probable cause[.]"

         On July 14, 2016, the State filed its objection to Defendant's motion to dismiss. On July 27, 2016, Defendant filed his sixth supplemental memorandum. On August 22, 2016, Defendant filed his seventh supplemental memorandum. On September 7, 2016, Defendant filed his eighth supplemental memorandum. In addition, he filed a motion for four already filed and served motions to be heard before the probable cause motion is ruled upon, including the following: motion that the State provide immunity for defense counsel and seek immunity for defense counsel under federal law; motion that the Attorney General and Judge explain how defense counsel can zealously do his defense job without immunity; motion to show Judge computer-generated imagery Youtube videos in court; and motion that State provide its proposed jury instructions. On September 19, 2016, Magistrate McBurney, as requested by Defendant, heard the four motions prior to his probable cause determination. The Magistrate ultimately denied these motions. Subsequently, the Magistrate denied Defendant's Super. R. Crim. P. 9.1 motion to dismiss for lack of probable cause. No orders were entered at that time.

         On October 6, 2016, Defendant filed a notice of appeal of the Magistrate's denial of his motion to dismiss. On October 14, 2016, Defendant filed a supplemental notice of appeal and index of remaining appealed issues. On October 17, 2016, Defendant filed the same notice of appeal and supplemental notice of appeal and index of remaining appealed issues in Kent County. Three days later, he again filed the same notice of appeal and supplemental notice of appeal and index of remaining appealed issues in Providence County. On January 30, 2017, Defendant filed his ninth supplemental memorandum. On February 14, 2017, the State filed its objection to Defendant's motion to dismiss. On February 27, 2017, Defendant filed a motion and supporting memorandum to show computer-generated-imagery (CGI) video images in the Superior Court to Justices Montalbano and Matos, in support of his appeal against his denied motion to dismiss, and in support of his other appeals (against his other denied and unaddressed motions). On the same date, Defendant filed a memorandum in response to the State's objection.

         On April 13, 2017, Defendant refiled his second, fifth, sixth, and seventh memoranda with this Court. He also refiled his "Motion to transmit images in the Superior Court courtroom, during a probable cause hearing, in order to support the Defendant's Motion to Dismiss the case for lack of probable cause" and his "Motion . . . to show CGI video images in the Superior Court, to Justices Montalbano and Matos, in support of his appeal against his denied Motion to Dismiss, and in support of his other appeals (against his other denied and unaddressed motions)[.]" In addition, Defendant refiled his response memorandum to the State's objection.

         On June 1, 2017, the Magistrate entered orders for the Defendant's motions previously heard and denied on September 19, 2016, including (1) denial of motion that Attorney General provide immunity from state prosecution and seek immunity from U.S. Attorney General's Office for defense counsel; (2) denial of motion that Attorney General and Judge explain how defense counsel can zealously do his job without immunity from federal and state prosecution; (3) denial of motion to show the Judge in Court two hyper-realistic computer-generated-imagery Youtube videos as relevant to probable cause motion to dismiss; (4) denial of motion that at the probable cause stage, the Attorney General provide its proposed jury instructions as to elements of crimes charged; and (5) denial of motion to dismiss.

         On June 6, 2017, Defendant timely refiled his notice of appeal along with his supporting memorandum after the Magistrate entered the five separate orders. In addition, Defendant filed a motion that the State make a copy of the seized evidence in this case and deliver the copy to Defendant's expert in Oregon. The docket sheet indicates that on June 13, 2017 (date stamped June 19, 2017), Defendant again filed his notice of appeal of the Magistrate's orders and supplemental memorandum.

         III

         Standard of Review

         A

         Review of a Magistrate's Decision

         The Superior Court's review of Administrator/Magistrate decisions is governed by § 8-2-11.1(d). Section 8-2-11.1(d) provides:

         "A party aggrieved by an order entered by the

administrator/magistrate shall be entitled to a review of the order by a justice of the superior court. Unless otherwise provided in the rules of procedure of the court, the review shall be on the record and appellate in nature. The court shall, by rules of procedure, establish procedures for review of orders entered by the administrator/magistrate, and for enforcement of contempt adjudications of the administrator/magistrate." Sec. 8-2-11.1(d).

         Rule 2.9(h) of the Superior Court Rules of Practice presently governs the standard of review. Rule 2.9(h) provides:

"The Superior Court justice shall make a de novo determination of those portions to which the appeal is directed and may accept, reject, or modify, in whole or in part, the judgment, order, or decree of the magistrate. The justice, however, need not formally conduct a new hearing and may consider the record developed before the magistrate, making his or her own determination based on that record whether there is competent evidence upon which the magistrate's judgment, order, or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter with instructions." Super. Ct. R.P. 2.9(h).

         B

         Rule 9.1 Motion to Dismiss

         '"When addressing a motion to dismiss a criminal information, a [Superior Court] justice is required to examine the information and any attached exhibits to determine whether the state has satisfied its burden to establish probable cause to believe that the offense charged was committed and that the defendant committed it."' State v. Martini, 860 A.2d 689, 691 (R.I. 2004) (quoting State v. Fritz, 801 A.2d 679, 682 (R.I. 2002)); see also State v. Reed, 764 A.2d 144, 146 (R.I. 2001); State v. Aponte, 649 A.2d 219, 222 (R.I. 1994). "A motion justice's review with respect to the existence of probable cause (vel non) is limited to 'the four corners of the information package.'" State v. Baillargeron, 58 A.3d 194, 197 (R.I. 2013) (quoting State v. Young, 941 A.2d 124, 128 (R.I. 2008)). Furthermore, "the trial justice should grant the state 'the benefit of every reasonable inference' in favor of a finding of probable cause." Young, 941 A.2d at 128 (quoting State v. Jenison, 442 A.2d 866, 875-76 (R.I. 1982)). Therefore, probable cause sufficient to support a criminal information is established when, after taking into account relevant facts and circumstances, a reasonable person would believe that the charged crime occurred and was committed by Defendant. See Martini, 860 A.2d at 691.

         IV

         Analysis

         A

         Defendant's Constitutional Challenge to the Rhode Island ...


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