Volume 196 — Atlantic Reporter, Third Series

The applicant appealed from a judgment of the Superior Court denying and dismissing his application for postconviction relief. On appeal, the applicant argued that postconviction relief counsel did not act as his advocate, as required under Shatney v. State, 755 A.2d 130 (R.I. 2000), its progeny, and G.L. 1956 § 10-9.1-5. He also claimed that he was not given an opportunity to be heard before his application was denied and that the hearing justice failed to probe the potential existence of genuine issues of material fact. The Supreme Court ruled that the applicant's appointed counsel did not act as a zealous advocate for the applicant based on counsel's interpretation that his role was "for a limited entry of appearance under the guidelines established by Shatney to determine if Mr. Hernandez'[s] post conviction is with merit." The Court also held that the applicant was not given a meaningful opportunity to be heard before his application was denied. The Court therefore vacated the judgment and remanded the case to the Superior Court with directions to appoint counsel in accordance with § 10-9.1-5, Shatney, and its progeny.

On August 29, 2016, Luigi Ricci petitioned the Supreme Court for the issuance of a writ of certiorari to review a June 13, 2014 judgment entered against him in Washington County Superior Court, which granted the state's motion for summary judgment and denied Mr. Ricci's application for postconviction relief. On October 14, 2016, the Court granted Mr. Ricci's petition for a writ of certiorari. Mr. Ricci contended before the Court that the hearing justice erred in granting the motion for summary judgment for the following reasons: (1) "ineffective assistance of counsel is a material fact" (2) "claims of ineffective assistance of counsel cannot be barred by res judicata" (3) the hearing justice did not hold an evidentiary hearing, which Mr. Ricci contended he was entitled to given the severity of his sentence (4) the hearing justice "utilized the 'farce and mockery' standard which was abolished by" the Supreme Court (5) the hearing justice "utilized a higher standard of proof than the statute requires" (6) "[t]he interest of justice requires that [Mr. Ricci] be permitted to assert the tardiness of the habitual offender notice as grounds for relief" and (7) "[t]he interest of justice requires that [Mr. Ricci] be permitted to assert the lack of consent to the amendment of the criminal indictment as grounds for relief." The Supreme Court held that Mr. Ricci's contentions with respect to the filing of the habitual offender notice and the amendment of his indictment were barred by the doctrine of res judicata. The Court further held that the hearing justice did not err in granting summary disposition of Mr. Ricci's claims of ineffective assistance of counsel. The Court found no merit in Mr. Ricci's additional contentions on appeal. Accordingly, the Supreme Court affirmed the judgment of the Superior Court.

The respondent, Tony Gonzalez, appealed from a second decree entered in the Family Court terminating his parental rights to his daughter, Izabella G. The respondent argued that the Family Court justice erred by: (1) permitting a witness to provide expert testimony (2) admitting the child's letter into evidence and (3) taking judicial notice of adjudicative facts. Lastly, respondent argued that the alleged errors were not harmless and required reversal. After a thorough examination of the record, the Supreme Court held that: (1) the witness was qualified to testify as an expert witness in the field of marriage and family therapy and, specifically, in the area of providing therapy to traumatized children (2) the child's letter was admissible as a statement made for the purpose of medical diagnosis or treatment (3) evidence supported a finding that the Family Court justice did not take judicial notice of adjudicative facts and (4) any possible error was harmless and did not require reversal of the termination decision. Accordingly, the Court affirmed the decree of the Family Court.

The defendant, Patrick Cahill, appealed from a judgment of conviction on one count of second-degree child abuse following a jury-waived trial in Superior Court. On appeal, the defendant challenged the admissibility of testimony from a child-abuse pediatric fellow, arguing that she had testified as an expert witness without having been tendered as one, her testimony was cumulative, and she impermissibly bolstered the medical records in evidence. The defendant also argued that the trial justice erred by failing to consider simple assault as a lesser-included offense of second-degree child abuse. Finally, the defendant challenged the trial justice's denial of his motion for a new trial. The Supreme Court rejected the defendant's argument regarding the doctor's testimony as impermissible cumulative or bolstering evidence, finding that this evidence was harmless in this jury-waived trial. Furthermore, the Court concluded that, even if the doctor's testimony went beyond the appropriate bounds of a fact witness, that error was harmless in this case. Next, the Court held that the trial justice's failure to consider simple assault as a lesser-included offense did not constitute error because he had not needed to reach that question after finding that the elements of second-degree child abuse had been satisfied. Lastly, the Court concluded that the trial justice did not err in denying defendant's motion for a new trial. Accordingly, the Court affirmed the judgment of the Superior Court.

The defendant, Troy Footman, was found guilty by a jury of two counts of sex trafficking of a minor, in violation of G.L. 1956 § 11-67-6 two counts of pandering or permitting prostitution, in violation of G.L. 1956 § 11-37.1-7(b) and one count of driving a motor vehicle with a suspended license, in violation of G.L. 1956 § 31-11-18. On appeal, the defendant advanced three assignments of error: (1) that the trial justice erred when she denied his motion for an amended bill of particulars (2) that his convictions for both sex trafficking of a minor and pandering prostitution violated his right to be free from double jeopardy and (3) that the trial justice erred in denying his motion for a mistrial. The Supreme Court first held that, in light of its holding in State v. Maxie, 187 A.3d 330 (R.I. 2018), the defendant's convictions for two counts of sex trafficking of a minor were vacated. The Court next held that the trial justice did not err in denying the defendant's motion for an amended bill of particulars because the state's initial response satisfied the notice requirement. The Court also held that the defendant's double jeopardy argument was moot based upon the vacating of the two counts of sex trafficking of a minor and that, notwithstanding, the defendant had waived the argument because he failed to raise the argument prior to trial. Finally, the Court held that the trial justice did not err in denying the defendant's motion for a mistrial because the defendant was not prejudiced by the complaining witness's testimony and any prejudice caused was cured by the trial justice's cautionary instruction. Accordingly, the Court vacated the defendant's convictions on two counts of sex trafficking of a minor and affirmed the judgment in all other respects.

The plaintiff, Antonio P. Duffy, appeals from a final judgment of the Superior Court dismissing his complaint, with prejudice, under Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. In this appeal, plaintiff argued that the motion justice erred in not considering any possible prejudice to the defendants when he made his ruling on defendants' motion to dismiss. The Supreme Court determined that, under existing caselaw, a showing of prejudice to a defendant is not a necessary consideration when dismissing a complaint under Rule 41(b)(2) for failure to comply with Rule 4(l) of the Superior Court Rules of Civil Procedure. The Court held that, given the five-year delay in serving the summons and complaint, as well as the lack of any sufficient explanation for such delay, the motion justice did not abuse his discretion in dismissing the plaintiff's complaint, with prejudice, under Rule 41(b)(2). Therefore, the Court affirmed the judgment of the Superior Court.