County Superior Court (P2/10-3252A) Sarah Taft-Carter
State: Virginia M. McGinn Department of Attorney General.
Defendant: Catherine Gibran Office of the Public Defender.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
WILLIAM P. ROBINSON III ASSOCIATE JUSTICE.
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.
reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
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.
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. 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.
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. 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.
First Phone Call
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
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."
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."
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 ...