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State v. Lussier

Supreme Court of Rhode Island

June 20, 2018

Tory Lussier.

          Providence County No. P2/13-2607A Superior Court Daniel A. Procaccini Associate Justice

          For State: Owen Murphy Department of Attorney General.

          For Defendant: Megan F. Jackson Office of the Public Defender.

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


          Francis X. Flaherty Associate Justice.

         The defendant, Tory Lussier, appeals from a judgment of conviction on one count of felony assault following a jury-waived trial in the Superior Court. A group consisting of the defendant, his friends, and his brother-most of whom were off-duty Marines-was involved in a late-night melee with some students from Brown University. After the brawl had subsided and the groups were heading their separate ways, the defendant ripped off his shirt, ran back toward the site of the donnybrook, and landed a punch to the head of Joseph Sharkey. According to the defendant, that punch was in defense of himself and his companions; according to the state, it was an uncalled-for sucker punch. The trial justice agreed with the state's theory and found the defendant guilty.

         This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. The defendant contends that there was sufficient evidence of self-defense to require a finding of not guilty. The defendant further argues that the trial justice overlooked material evidence in carrying out his fact-finding function. After considering the parties' written and oral submissions and after reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth below, we affirm the judgment of conviction.

         I Facts and Travel

         The defendant and his friends Joseph Ryan, Joseph Parrish, and Andrew Parrish were all United States Marines who had served in the same unit, and they had been deployed to Afghanistan together. They considered themselves to be brothers, and each knew the importance of always having each other's back. Unfortunately, during the early morning hours of May 12, 2013, they became brothers in arms in a manner that they did not anticipate.

         After the four Marines returned from active duty, they made plans to get together and enjoy a night socializing in Providence. The defendant, Ryan, Joseph, Andrew, and defendant's younger brother, Derek, first convened for dinner.[1] Eventually, they made their way to the East Side of the city, where the comrades spent the remainder of their night drinking at a bar located near Brown University. The defendant estimated that he had consumed at least seven drinks at the bar, and he described himself as having been intoxicated that night. The defendant was known to his friends to sometimes become irritable and angry when he was drinking. Shortly before the 2:00 a.m. closing time, the group left the establishment in search of late-night food. Trouble ensued, however, while they were en route to their vehicles.

         As the group walked on Thayer Street, in the vicinity of George Street, they passed by two individuals. The larger of the two, Dillon Ingham, a Brown University football player, somehow insulted Ryan. Joseph intervened, and a fight erupted. Ingham punched Joseph and knocked him out. Either Ingham or his cohort rendered Ryan unconscious as well. Indeed, Ryan suffered a concussion and broken orbital bone, nose, and tooth.[2] Andrew and Derek then jumped into the fray to battle with Ingham.

         Meanwhile, defendant had engaged in fisticuffs with the other individual who had been standing with Ingham. The defendant, Ryan, and Derek all identified that second individual as Sharkey, a Brown University basketball player who would ultimately become the complaining witness at trial.[3] Soon enough, the melee petered out. Andrew pulled Derek away from Ingham, who raised his hands and began to back away. At that point, the police arrived, and the crowd scattered.

         The defendant was later seen on surveillance video pulling his shirt off and walking back in the direction of the initial confrontation as the first police cruiser arrived at the scene. By the time the camera panned in that direction, an individual-later identified as Sharkey-could be seen lying motionless on the ground, his body half in the street and half on the sidewalk. Sharkey had been badly injured and he had apparently collapsed and hit his head on the concrete. To save his life, it was necessary to remove a portion of his skull to stop his brain from swelling.[4] In fact, Sharkey's injuries were so severe that Providence police initially treated the case as a homicide investigation.

         Numerous witnesses testified to what had transpired in the seconds between the time that defendant was seen heading back toward the scene of the initial confrontation and the time that Sharkey was grievously injured. Katherine Mahoney said that she had been out with Sharkey that night; they were merely friends at the time, although the relationship did ripen into romance at a later time. Mahoney explained that she and Sharkey had just left an on-campus bar and that they were walking on Thayer Street when they saw a commotion. According to Mahoney, Sharkey then walked over to the "late night brawl" while she remained on the sidewalk. She testified that she was watching him the whole time and that she did not see him throw any punches or touch anyone whatsoever. Sharkey was in the middle of the fighting for ten seconds at most, Mahoney said, before she called for him to get out of there and, whether her entreaty was the reason or not, he did so. Mahoney said that, less than a minute later, she and Sharkey were talking on the sidewalk approximately thirty feet away from where the fighting had taken place. Mahoney testified that Sharkey had his back turned to the fight and that defendant ran toward them ...

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