Providence County W1/15-384A Superior Court Netti C. Vogel,
State: Christopher R. Bush Department of Attorney General
Defendant: Gary G. Pelletier, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Gilbert V. Indeglia, Associate Justice
defendant, Christopher Forlasto, appeals from a pretrial
order of the Superior Court denying his motion to dismiss one
count of first-degree sexual assault on the grounds of double
jeopardy and prosecutorial misconduct. The defendant
also appeals from the same pretrial order granting the
state's motions in limine to exclude certain
photographic evidence and to admit evidence of a jury's
prior guilty verdict against the defendant, as well as
previously acquitted conduct. This case came before the
Supreme Court on October 3, 2019, 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
carefully considering the parties' written and oral
submissions and 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 in
this opinion, we affirm the order of the Superior Court.
September 30, 2015, a grand jury indicted defendant on four
counts of first-degree sexual assault, in violation of G.L.
1956 § 11-37-2 (counts one, two, three, and five); two
counts of assault and battery, in violation of G.L. 1956
§ 11-5-3 (counts six and seven); and one count of
assault with a dangerous weapon, in violation of §
11-5-2 (count four). Two of the first-degree sexual assault
counts were based on allegations of oral penetration (counts
two and three), and two counts were based on allegations of
anal penetration (counts one and five).
events giving rise to the charges began on the evening of
July 16, 2015, and continued into the early morning hours of
July 17, 2015. At a jury trial in Washington County Superior
Court, two contrasting versions of events were described by
defendant and the complaining witness, Jane. The nine-day
trial included seventeen witnesses, both lay and expert, and
a large number of exhibits pertaining to serious allegations
of sexual assault by defendant. Additionally, evidence of
several surgeries that resulted in a lengthy recovery period
for Jane was introduced.
the close of the state's case-in-chief, the trial justice
granted defendant's motion for a judgment of acquittal as
to count one (first-degree sexual assault based on anal
penetration). Later, the defense presented its case, the
parties rested, and closing arguments were heard by the jury.
After the state's closing argument, defendant objected to
what he characterized as an "improper plea to the
passions of the jury" when, according to defendant, the
prosecutor cried at the end of her closing argument. The
trial justice remarked that she had not noticed the
prosecutor cry, but she added that the issue had been brought
to her attention. The trial justice questioned the
prosecutor, who admitted that she had become "choked
up[, ]" but stated that she "didn't cry."
The trial justice suggested the following curative
instruction for the jury:
"As is the case in many trials, emotions run high.
Witnesses become emotional. Sometimes spectators become
emotional. Attorneys also can become emotional. You must
disregard any display of emotion so that it does not
interfere with your ability to decide this case fairly. When
you were selected to sit on this case, you promised us that
you would decide this case solely on the evidence properly
put before you and on the law that you receive from the
court. We are human and not devoid of emotions; however, you
are duty bound not to let passion or prejudice influence you
in determining the issues in the case."
trial justice then asked defense counsel: "Is there
something else you suggest?" Defense counsel responded:
"No, Your Honor. That's fine." The curative
instruction was then given to the jury, with no objection.
during her instructions to the jury, the trial justice
informed the jurors that they would be given a verdict form
with six questions, one for each of the six remaining counts
of the indictment. Each question referred to the specific
acts that formed the basis for that particular count.
Ultimately, after deliberations, the jury found defendant not
guilty on counts two and three, first-degree sexual assault
based upon two alleged acts of oral penetration. The jury
also found defendant not guilty on count four, assault with a
dangerous weapon, which was based on the allegation that
defendant had choked Jane with his hands, and count seven,
assault and battery, which was based on the allegation that
defendant had bitten Jane's arm. The jury found defendant
guilty on count six, assault and battery, which was based on
a bite to Jane's cheek. On count five, first-degree
sexual assault based upon anal penetration, the jury
deadlocked and did not reach a verdict.
on the mistrial resulting from the hung jury, the trial
justice scheduled a status conference for February 8, 2017,
because it was evident that the state would retry defendant
on the deadlocked count. The state and defendant then filed
several pretrial motions. The defendant filed a motion to
dismiss the sole remaining count, arguing that double
jeopardy barred a retrial of acquitted conduct that arose
from the same set of facts previously decided by the jury and
further arguing that the prosecutor had engaged in conduct
that was intended to cause a mistrial. The defendant also
filed a motion in limine seeking to exclude any
reference to acquitted conduct from the first trial. The
state objected to defendant's motions and moved in
limine to permit evidence related to the acquitted
conduct. The state filed two ...