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State v. Patino

Supreme Court of Rhode Island

June 29, 2018

Michael Patino.

          Providence County Superior Court (P1/10-1155A) Netti C. Vogel Associate Justice.

          For State: Virginia M. McGinn Department of Attorney General

          For Defendant: George J. West, Esq.

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


          Francis X. Flaherty, Justice.

         The defendant, Michael Patino, appeals from a judgment of conviction for second-degree murder, in violation of G.L. 1956 § 11-23-1, after a jury found him guilty of murdering his girlfriend's six-year-old son. For that crime, he was sentenced to a term of life imprisonment. On appeal, the defendant claims that he is entitled to a new trial because the trial justice made three errors, two of which relate to the trial justice's jury instructions and one of which arises from the admission of certain testimony at trial. For the reasons set forth in this opinion, we affirm the judgment of conviction.


         Facts and Travel

         A little after five o'clock in the evening on Sunday, October 4, 2009, a six-year-old boy named Marco Nieves was pronounced dead at Hasbro Children's Hospital. According to the autopsy performed by then-Chief Medical Examiner of the State of Rhode Island, Thomas Gilson, M.D., the cause of death was peritonitis, which is a medical term that describes inflammation around the stomach cavity. The manner of death was deemed to be homicide. In Dr. Gilson's opinion, the peritonitis that led to Marco's death was the result of the infliction of a substantial amount of blunt force to the abdomen. As a string of text messages between defendant and his girlfriend, Trisha Oliver, later revealed, that blunt force came from defendant's fist.[1]

         At some point in the afternoon of October 3, Ms. Oliver's son, Marco, began vomiting. Despite the boy's distress, Ms. Oliver brought him to church, where a number of people told her that Marco did not look well. The defendant, meanwhile, was spending the evening hanging out at his friend's car shop. He had been with Marco and his daughter, Ms. Oliver's other child, while Ms. Oliver ran errands that morning.[2] The defendant did not return to Ms. Oliver's Cranston apartment until the early morning hours of October 4. However, between the time that he left and the time that he returned to his girlfriend's apartment, defendant and Ms. Oliver exchanged a series of damning text messages that revealed in stark and vulgar terms what had happened to Marco Nieves.

         At about a quarter to five o'clock on the afternoon of October 3, after texting with defendant over an unrelated issue, Ms. Oliver sent defendant the following text message: "of course [Marco] is gonna be all hurt and cryin cuz u f****n beat the crap out of him im not wit that sh*t[.]" Minutes later, defendant responded, with his feelings emphasized by all capital letters: "I PUNCH DAT LIL B***H 3 TIMES AND DAT WAS IT. DA HARDEST 1 WAS ON HIS STOMACH CUZ HE MOVED. BUT LET HIM B A MAN AND NOT A LIL B***H LIKE U[.]" The defendant then issued a follow-up message, again in all capital letters: "WAT KIND OF DISCIPLINE OR ANYTHIN U GONNA KNO[.]" Ms. Oliver responded immediately, informing defendant that Marco had not complained to her about being in pain; rather, as she texted, he was just throwing up. She, too, issued a follow-up: "idk wat u did but u hurt [h]is stomach real bad[.]" The defendant's response: "I TOLD U. I WENT 2 PUNCH HIM ON HIS BACK AGAIN AND HE MOVED AND I HIT HIM ON HIS STOMACH."

         After sending that text, defendant attempted to offer an alternative explanation for why Marco might be sick to his stomach. The defendant wrote to Ms. Oliver: "ITS PROLLY SINCE HE HAD ATE DATS Y. MY BAD IM REALY SORRY ABOUT DAT[.]" Ms. Oliver texted defendant back, stating that Marco was making sounds and throwing up a foamy substance; she also informed defendant that the boy's eyes were rolling toward the back of his head. At this point, it was just after 5 p.m. on Saturday, October 3. It was clear to defendant's girlfriend that her son Marco was in terrible distress.

         But while Marco's condition continued to worsen, the couple contented themselves with text messages. Their text chain shows that Ms. Oliver was becoming increasingly concerned with Marco; he was still throwing up, his stomach was "madd tight[, ]" and after briefly falling asleep, he had vomited on the bed sheets. The defendant suggested a solution: She should leave Marco alone for a while and let settle whatever food that he had eaten. Meanwhile, Ms. Oliver noted that her son's vomit was dark and that his blanket needed to be washed. The defendant, though, was undeterred as he proposed cures for Marco's distress.

         The defendant suggested, first, that Ms. Oliver should give Marco some water. After being informed that Marco had thrown up again, defendant offered a twist: Ms. Oliver should awaken Marco and give him water with lemon. Then, defendant suggested that she should rub Marco's stomach. When notified that the stomach rub had failed, defendant again asked Ms. Oliver to give Marco a drink of water. Time wore on, and his proposed remedies were to no avail. At about six o'clock that evening, defendant texted: "MAKE HIM LIKE EXERCISE[.]" Exasperated, Ms. Oliver responded: "yes mike idk wat else 2 do[.]"

         She then sent defendant the following text: "mike he is in madd pain u had 2 hit him real hard mike wtf[.]" The defendant responded: "I HIT HIM DA SAME WAY EVERYWHERE BUT ITS DAT HE MOVED AND I HIT HIM BAD[.]" Ms. Oliver queried: "wat if somethin happened 2 him his eyes r rolin he cant even talk he says he is doin reall badd[.]" The defendant then implored his girlfriend to relax and calm down. Ms. Oliver's response was to ask defendant to come to her home and help take care of Marco; defendant agreed to do so. And, apparently recognizing her predicament, Ms. Oliver ominously typed out one more message to defendant: "wat if i got2 take him 2 da hospi[ta]l wat will i say and dos marks on his neck omg[.]"[3]

         Despite his agreement to do so, defendant did not return to Ms. Oliver's home until hours later, around three or four in the morning. While Ms. Oliver continued texting with defendant, and as Marco continued to suffer, defendant whiled away the evening enjoying drinks and hanging around his friend's car shop in Central Falls, alternating between drinking with his friends and by himself at his mother's home.

         Early the next morning, October 4, a dispatcher at the Cranston Fire Department received a distressing emergency call. On the other end of the line was Trisha Oliver, and she related disturbing news: her son was not breathing. Within minutes, a crew of four men from the Cranston Fire Department arrived at Ms. Oliver's apartment. Private David Brouillard, an emergency medical technician, was one of the first to respond to the scene. Upon rushing into Ms. Oliver's apartment, Pvt. Brouillard first observed a young boy on the couch. The boy was unresponsive. Private Brouillard also encountered a woman, who he later confirmed was Ms. Oliver, and another child. Ms. Oliver, Pvt. Brouillard noted, "appeared nervous and upset." There was also another person in the apartment; a man who Pvt. Brouillard noticed was "quiet, standing in the corner, not saying anything." That man, it turned out, was defendant.

         As soon as Pvt. Brouillard entered the apartment, he went to the boy on the couch. The boy "was not breathing and he had no pulse." While Pvt. Brouillard continued checking for a pulse, Ms. Oliver, upset and nervous, told him that the boy "had been up all night vomiting and complaining of stomach pain." Two of the other responders, Privates Christopher Coutu and Mark Bouchard, also hurried over to the boy to administer aid. The fourth firefighter on the scene, Lieutenant James Woyciechowski, radioed in the boy's status to the incoming rescue personnel.

         With time of the essence, Pvt. Brouillard began "working on the [boy's] airway," while Pvt. Coutu continued to search for a pulse. As Pvt. Brouillard searched for any obstructions in the boy's airway, he opened a breathing bag to ventilate him. Private Bouchard also readied an automated external defibrillator (AED), which is a device designed to check the heart's rhythm and, if needed, deliver electric shocks to reset it. However, after Pvt. Bouchard pushed the button marked "analyze" on the AED, it read: "no shock advised." Neither Pvt. Brouillard nor Pvt. Coutu found a pulse.

         As Pvt. Brouillard and Pvt. Coutu ventilated the boy and continued administering CPR, the rescue arrived at the scene. Lieutenant Thomas Rimoshytus, who arrived with the rescue personnel and who had been informed that the boy was not responding to aid, instructed: "Scoop him up and let's go." With the AED pads still attached to the boy's body, Pvt. Coutu cradled the child and rushed him out to the just-arrived ambulance. Inside the ambulance, the boy was placed on a stretcher, and the rescuers administered CPR and reconnected the AED. Still, as Pvt. Brouillard testified, the boy's body looked "limp and totally lifeless."

         During all of this commotion, with his girlfriend hysterical, his girlfriend's son unresponsive, and a number of firefighters and rescue personnel rushing about, defendant appeared to be calm and quiet. As a number of the firefighters observed, defendant remained off to the side, standing in the hallway, with his hands in his pockets.

         En route to the hospital, the rescue personnel applied the AED again. This time, pushing the analyze button resulted in a reading of "shock advise[d]." As Lt. Rimoshytus later testified, "[w]e shocked him, and he was still pulseless and not breathing * * *."

         Just before 6:30 a.m., the rescue arrived at Hasbro Children's Hospital in Providence. Medical records reveal that the boy did not regain a documented pulse until 7:20 a.m. Linda Snelling, M.D., the Chief of Pediatric Critical Care and Medical Director of the Pediatric Intensive Care Unit at Hasbro Children's Hospital, was the boy's attending physician that morning. She described his condition as "[g]rave." The boy underwent CT scans of his brain and abdomen, and he was later moved to the Pediatric Intensive Care Unit.

         As Dr. Snelling testified, the CT scans showed that there was the presence of "free air" in the boy's abdomen. Free air, Dr. Snelling explained, indicates an "abdominal perforation, usually an intentional perforation." While the free "air itself hurts," she testified that "the bigger problem is that if you have a perforation or a hole in your intestine, what is inside the intestines spills out into the abdominal cavity and it's full of bacteria." That, according to Dr. Snelling, "can cause a lot of irritation, * * * infection, and it can cause a lot of tissue swelling. It can change the blood flow to the organs, and depending upon where in the intestine the hole is located, it can also spill acids from the digestive system into the abdominal contents."

         Over the course of the next several hours, the boy's condition did not improve. As the morning turned to afternoon, according to Dr. Snelling, he was on "[e]very kind of life support system except for a heart bypass machine. He had adrenaline to make his heart beat. He had a ventilator to breathe for him. * * * He had blood products. He was getting a lot of resuscitation." However, despite the heroic efforts of medical personnel, Marco Nieves was later pronounced dead.

         Back at the apartment, Lieutenant (then-sergeant) Matthew Kite of the Cranston Police Department had arrived just as the rescue left for the hospital. He approached the apartment and spoke with Ms. Oliver, who was visibly upset and was pacing outside her apartment building. Ms. Oliver then agreed to walk him through her apartment. Once inside, Lt. Kite observed two individuals, defendant and the infant daughter of defendant and Ms. Oliver. The defendant, according to Lt. Kite, was seated calmly on the couch. Lieutenant Kite then walked with Ms. Oliver room by room, observing that one bed had been stripped of its sheets, which were piled on the floor. He also spotted "a white waste basket with a coffee ground type substance visible in the bottom." In the bathroom, he viewed the same "brown coffee grind type substance in the toilet." The object of his search, Lt. Kite explained, was to find the cause of Marco's injury, which he initially suspected was "an ingestion of a toxic substance" such as a "household cleaner."

         After the apartment walk-through, Ms. Oliver left for the hospital. Lieutenant Kite, now in the kitchen area, began making small talk with defendant, who was standing near the kitchen. As Lt. Kite scanned the living room, he noticed that there were a number of cell phones lying about. Then, the home phone, a landline, rang, and defendant answered it. After he hung up, defendant, apparently recognizing that he would soon be leaving, changed his daughter's diaper and began packing a diaper bag. Meanwhile, a cell phone on the kitchen counter caught Lt. Kite's attention, either by making a sound or vibration, or because the screen lit up. The defendant, who had finished packing the diaper bag, sat back down on the couch and did not respond to the cell phone. When Lt. Kite picked up the cell phone from the counter, its screen indicated that a new message had been received. After a few clicks, he read the message but quickly returned the cell phone to the counter. The information that Lt. Kite gleaned from that text message was incriminating and it gave him cause to contact police headquarters. Although he had initially been searching for household items that Marco may have ingested, the text message indicated that there was a different, more malicious cause of injury.[4]

         The defendant was transported to the Cranston police station, where he agreed to speak with two detectives. In his interview with the detectives, defendant did not have much to offer. He confirmed that he had been out the evening and night of Saturday, October 3, and that he had returned to Ms. Oliver's apartment sometime between three and four o'clock in the morning. The defendant also said that Ms. Oliver had informed him that Marco had been vomiting.[5]

         On April 2, 2010, close to six months after Marco Nieves died, defendant was indicted by a grand jury for Marco Nieves's murder, in violation of §§ 11-23-1 and 11-23-2. After a trial in the Superior Court held in April 2015, defendant was convicted of murder in the second degree. Thereafter, the trial justice sentenced defendant to life imprisonment. The defendant appealed, arguing that the trial justice erred (1) in instructing the jury with respect to second-degree felony murder; (2) in instructing the jury with respect to causation; and (3) by admitting testimony about prior bruising that had been observed on Marco's body.


         The Jury Instructions

         The defendant's first two assignments of error arise out of the trial justice's jury instructions. He first argues that the trial justice erred with respect to her instruction on second-degree felony murder in three respects: (1) that the instruction on second-degree felony murder deprived him of due process because, even though the indictment charged him with murder in violation of § 11-23-1, it included neither a charge of second-degree felony murder nor a charge of the predicate felony to second-degree felony murder, felony child abuse; (2) that there should have been no instruction on second-degree felony murder at all because, under the merger doctrine, the predicate felony for second-degree felony murder-in this case, felony child abuse-should have merged into the homicide; and (3) that the trial justice erred by describing the injury required to establish felony child abuse as one that was "however slight."

         The defendant also takes issue with the trial justice's instruction on causation. According to defendant, the instruction on proximate cause did not sufficiently explain to the jury the lynchpin of his defense-that is, whether Marco Nieves's death was proximately caused by defendant, as the state had argued, or by Ms. Oliver's failure to obtain medical care for the child, as defendant maintained.


         Standard of Review

         We review jury instructions de novo. State v. Delestre, 35 A.3d 886, 891 (R.I. 2012). "In conducting that review, 'it is our role to examine the instructions in their entirety to ascertain the manner in which a jury of ordinary intelligent lay people would have understood them ** *.'" Id. (quoting State v. John, 881 A.2d 920, 929 (R.I. 2005)). As we have explained, we "will not examine a single sentence apart from the rest of the instructions, but rather the challenged portions must be examined in the context in which they were rendered." Id. (quoting State v. Kittell, 847 A.2d 845, 849 (R.I. 2004)). Moreover, "[a]n erroneous charge warrants reversal only if it can be shown that the jury could have been misled to the resultant prejudice of the complaining party." State v. Florez, 138 A.3d 789, 793 (R.I. 2016) (quoting State v. Burnham, 58 A.3d 889, 897 (R.I. 2013)). As long as the trial justice's jury instructions "adequately cover[ed] the law[, ]" "we will uphold them[.]" Delestre, 35 A.3d at 891 (quoting State v. Ensey, 881 A.2d 81, 95 (R.I. 2005)).


         Second-Degree Felony Murder

         The trial justice began her charge to the jury with a definition of murder: "Murder, whether murder in the first degree or murder in the second degree, is the unlawful killing of a human being with malice aforethought." Accordingly, the trial justice explained, to convict defendant of murder, either in the first or second degree, the jury had to find that the state proved beyond a reasonable doubt: (1) "that the [d]efendant willfully caused the death of another human"; and (2) "that the [d]efendant acted with malice aforethought."

         The trial justice then distinguished between murder in the first degree and murder in the second degree. To find defendant guilty of first-degree murder, the trial justice told the jurors, they needed to conclude that defendant "acted with premeditation[, ]" meaning an "intent to kill ** * which * * * existed for more than a mere moment." If, the trial justice explained, a defendant "commits a murder but does not act with premeditation having a duration of more than a mere moment, * * * [he] is guilty of murder in the second degree * * *."

         The trial justice then turned to that with which defendant has taken issue on appeal: the instruction on second-degree felony murder. She explained that if the jury did not find defendant guilty of first-degree murder, or if the jury did not find that the state had proven that defendant acted with the requisite intent to kill for second-degree murder, then the jury still had to "consider whether the [s]tate has proven [d]efendant guilty of second degree felony murder." As the trial justice clarified for the jury, "[t]hat's murder in the second degree also, but it's on a different theory."

         She first summarized the doctrine of second-degree felony murder:

"Under our law, the criminal offense of second degree murder may also be established under what is known as the Felony Murder Rule. If a [d]efendant kills someone in the course of or in attempting to commit an inherently dangerous felony, then that killing is by law considered second degree murder even if the [d]efendant did not intend to kill another human being.
"Under this doctrine the [s]tate need not prove malice or intent to kill. So you can still find the [d]efendant guilty of second degree murder even if the [s]tate does not prove malice or intent to kill, if ...

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