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State v. Forlasto

Supreme Court of Rhode Island

October 22, 2019

State
v.
Christopher Forlasto.

          Providence County W1/15-384A Superior Court Netti C. Vogel, Associate Justice

          For State: Christopher R. Bush Department of Attorney General

          For Defendant: Gary G. Pelletier, Esq.

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

          OPINION

          Gilbert V. Indeglia, Associate Justice

         The 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.[1] 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.

         I

         Facts and Travel

         On 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).

         The 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.[2] 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.

         After 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."

         The 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.

         Also 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.

         Based 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 ...


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