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State v. Mosley

Supreme Court of Rhode Island

December 8, 2017

State
v.
Thomas Mosley.

         Providence County Superior Court (P2/10-3252A) Sarah Taft-Carter Associate Justice

          For State: Virginia M. McGinn Department of Attorney General.

          For Defendant: Catherine Gibran Office of the Public Defender.

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

          OPINION

          WILLIAM P. ROBINSON III ASSOCIATE JUSTICE.

         The defendant, Thomas Mosley, seeks review of an adjudication of probation violation after a hearing on September 30 and October 1, 2015 in Providence County Superior Court. Finding that the defendant had violated the terms and conditions of his probation, the hearing justice ordered him to serve at the Adult Correctional Institutions (ACI) six of the seven years of his previously suspended sentence. On appeal, the defendant contends that the hearing justice acted arbitrarily and capriciously in adjudicating him to be a probation violator because, in defendant's view, the record in this case does not substantiate the finding that he failed to keep the peace or remain on good behavior when he made certain statements in the course of telephone calls from the prison, where he had been detained prior to the probation-violation hearing. This case came before the Supreme Court for oral argument 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 in this opinion, we affirm the judgment of the Superior Court.

         I Facts and Travel

         On October 26, 2010, defendant, having pled nolo contendere to possession of a controlled substance with intent to deliver, was sentenced to eight years imprisonment with one year to serve and seven years suspended with probation. When the events at issue in this case occurred, defendant was still on probation for that offense.

         On July 8, 2015, the state filed a probation-violation report pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure, alleging that defendant had violated the terms and conditions of his probationary sentence; that report resulted from the fact that defendant had been charged with the murder of one Yusef A'Vant. Thereafter, on September 22, 2015, the state filed a second probation-violation report, alleging that defendant had been charged with obstruction of the judicial system while making certain phone calls from the ACI between September 6 and September 10, 2015 and further alleging that that conduct constituted a violation of the terms and conditions of his probationary sentence.[1] The defendant was presented as a probation violator in the Superior Court; and, on September 30 and October 1, 2015, the hearing justice conducted a combined probation-violation and bail hearing, at the conclusion of which she adjudged defendant to be a violator and ordered him to serve six of the seven years of his suspended sentence.

         In order to address defendant's contentions on appeal, it is necessary to consider the contents of certain phone calls that he made from the ACI, which formed the focus of the hearing justice's determination that defendant had "failed to keep the peace and be of good behavior." According to the transcript of the audio recordings of the phone calls, defendant made two calls from the ACI on September 8, 2015.[2] Said transcript reveals that defendant repeatedly made reference to a person called "she" or "her;" it is undisputed that, when defendant alluded to "she" or "her" in those calls, he was referencing one Rithy Suon, who was the mother of his child and a key witness in the state's then-pending case against him for the murder of Mr. A'Vant.

         A The First Phone Call

         At the beginning of the first phone call, defendant asked the person with whom he was speaking (the First Speaker) to "[t]ake this number down" and "call her job for me." The defendant explained to the First Speaker that, "if you call her work number and you asked to speak to her, they will put her on the phone with you right away." The First Speaker agreed to reach out to Ms. Suon. The defendant thereafter told the First Speaker that "somebody is telling her not to pick up my calls from jail, " and he asked the First Speaker to convince Ms. Suon to visit defendant and start accepting his calls. The defendant asked the First Speaker to

"explain to her, the best way that you can, that she needs to come up here to see me. That she needs to come here and talk to me. You know what I'm saying? That all of this is between me and her. You know what I am saying? That she needs to come up here and talk to me and stopping talking to -- or stop listening to anybody else. You know what I'm saying?"

         The defendant also instructed the First Speaker to encourage other people to reach out to Ms. Suon on his behalf, explaining: "Have everybody call her to try to convince her to come see me and talk to me * * *." The defendant expressed his belief that Ms. Suon could be persuaded to "be on his side" because he was the father of her child, telling the First Speaker:

"If you all got in contact with her and told her, like, look, you need to be on his side. You know what I'm saying? Don't leave him. Don't leave his side. You know what I am saying? Like this --explain to her, like, this is your kid's father. If anything happens to him, you know what I'm saying; your kid is without a father."

         The defendant also expressed his belief that Ms. Suon's previous statements to the police were the result of intimidation or fear that the police might "take away her son;" defendant told the First Speaker that Ms. Suon needed to revise the statements she had previously made to the police and explain "what really happened." Specifically, defendant stated:

"They're trying to use my kid's mom as a witness against me, so she needs to come. Get her own lawyer. You know what I am saying? And tell her lawyer what really -- what really happened, is that they scared her. You know what I am saying? * * * And now, she is -- they scared her by telling her that they was going to arrest her and take away her son. You know what I'm saying? So now, she needs to tell them, you know, why she said all of this stuff was because they scared her."

         The defendant then discussed his son, telling the First Speaker that "she knows how much my son means to me" and "I don't know why she would just be holding my son back from seeing me or me talking to my son or anything like that." Finally, before ending the call, defendant said to the First Speaker:

"[T]ell her, look, she's safe if she does the right thing. You know what I am saying? She's okay. She doesn't have to be scared of these people. You ...

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