Providence County No. P2/13-2607A Superior Court Daniel A.
Procaccini Associate Justice
State: Owen Murphy Department of Attorney General.
Defendant: Megan F. Jackson Office of the Public Defender.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Francis X. Flaherty Associate Justice.
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
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.
Facts and Travel
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
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. 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
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. Andrew and Derek then jumped into the fray
to battle with Ingham.
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. 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.
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. In fact,
Sharkey's injuries were so severe that Providence police
initially treated the case as a homicide investigation.
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 ...