Providence County Superior Court (P1/10-1155A) Netti C. Vogel
State: Virginia M. McGinn Department of Attorney General
Defendant: George J. West, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Francis X. Flaherty, Justice.
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.
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.
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. 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.
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."
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
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.
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[.]"
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
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
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 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.
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.
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
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.
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 * * *."
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.
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."
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
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."
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.
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
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.
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
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.
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
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."
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 * * *."
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."
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
"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 ...