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First Amendment Right to Tape Police During an Arrest

Carla Gericke and Tyler Hanslin were pulled over for a traffic stop.  In the process, Hanslin informed the police officer he had a firearm.  The police were taking him into custody when Gericke informed the officer that she was going to record and tape him.  He asked her to get into her vehicle.  She complied, however, when other officers arrived she was arrested for refusing to tell the officer where she put the camera.  The charges were later dropped and she pursued a claim for violation of civil rights against the officers.  The officers claimed qualified immunity but the First Circuit Court of Appeals found that there is First Amendment Right and that the officers should have known based on Glik.  See full opinion:  Gericke v. Gebin

Categories: Civil, News, Recent Decisions.


Confession of Error: Notice of Dismissal Required

The Rhode Island Supreme Court ruled and the State acknowledged that “the trial justice’s failure to advise the applicant of the court’s intention to summarily dismiss the [post-conviction] application and without providing the applicant with a meaningful opportunity to respond to the proposed dismissal,” is grounds for granting the appeal and remanding with instruction.  See full decision Garcia v. State of Rhode Island


Categories: Criminal.

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The Math: Three Defendants, One Victim, $20.00 Robbery, 20 Years and Double Jeopardy

May 6, 2009, Cesar Lopez was dispatched from Dominoes Pizza for a delivery.  When he arrived at the delivery address things did not look right.  However, as a good employee, Cesar proceeded to attempt to make the delivery.  Instead he was escorted to the back of the house by the supposed customers where he was confronted by two more.   One of the customer/assailants grabbed Cesar in a headlock, choking Cesar as he guided Cesar to the back of the house.  The other two assailants were trying to punish Cesar into submission by beating him with a metal pipe all the while reaching into Cesar’s pockets for the company money.  The assailants were able to take $20.00 from Cesar’s pocket before they lost control of the situation.  Cesar was not going to go easily.  He continued to resist.  Cesar managed to squirm out of his shirt bolting for his vehicle and leaving his shirt in the hands of the assailants.

Four days later Cesar spotted one of his assailants.  With his wife driving, he had her circle around the block and call 911.  He caught sight of the assailant he had recognized at the same time the assailant caught sight of Cesar.  The assailant ran.  And Cesar ran after him.  Cesar caught the assailant that had robbed him four days earlier and held onto him.  There would be no squirming out of his shirt for the assailant.  The police arrived and arrested Michael Long.  A short time into the interview Michael Long coughed up his two confederates.  Markus Matthews was arrested and decided to go to trial.  Although Michael Long choose to deny involvement at trial claiming he did not remember his confession, he had already confessed to his former fiancée, Jeannine Labossiere, and she did testify.  Matthews was convicted and sentenced to twenty years.  He appealed his conviction on several grounds including double jeopardy.

The indictment had charged the robbery offense as two counts with differing elements.  The jury returned the guilty verdict on one count.  The Appellant, Markus Matthews, did not preserve the issue for appeal and the Rhode Island Supreme Court recognized this.  However, the Court also recognized the significance of the issue and provided guidance in its opinion for the future.  Indictments should consider one count with finding of specific facts.  The Court specifically stated: ”

An indictment or criminal information that charges one offense having been committed by multiple means is a fair solution for both the state and the defendant. It lessens, or eliminates, any potential double jeopardy concerns, because it ensures that the accused is charged with a single offense, and thus, can only be convicted and sentenced on a single count. It also addresses duplicity issues because the jury would have to state which theory or theories were proven beyond a reasonable doubt.

This is probably in keeping with rulings coming out of the Supreme Court since Apprendi v. New Jersey.  The math just did not work out for Long or Matthews.  See the entire opinion at: State v. Markus Matthews

Categories: Criminal, News, Recent Decisions, Uncategorized.

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Confession of Error: PCR Attorney Requirement

The Rhode Island Supreme Court ruled and the State acknowledged that “in order for an indigent, first-time applicant to have a meaningful opportunity to reply [PCR brief], he or she must be afforded counsel upon request.”  Alberto Rodriguez had filed a Post-Conviction Application seeking relief from his conviction.  The Court, without giving prior notice to Alberto Rodriguez, summarily denied his application.  The state on a Confession of Error admitted that the Court had made an error as there is a precedent requirement that in order to afford a first-time indigent applicant a meaningful opportunity to reply he or she must be granted counsel upon request. Campbell v. State, 56 A.3d 448, 459 (R.I. 2012).  The Confession of Error was accepted and the applicant’s appeal was sustained.  See full Order at: Rodriguez v. State


Categories: Civil, Criminal.

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Condominium Deck Checks

After a check/inspection of condo decks at Moorland Farm Condominiums, some decks were identified as in disrepair.  The Association determined that it would publish special assessment fees to all the condo owners as it felt the the decks were part of the common area.  Over $800,000.00 was assessed for the deck repairs.  The Plaintiff/Owners were those whose units did not need repair.  They filed suit arguing that the decks were not common area and should not have been assessed fees.  The Court agreed that the decks were not part of the common area and that each repair was therefore the responsibility of that unit owner.  However, the defendants argued that the affected plaintiffs whom would have to pay were not a party to the suit and were not before the court.  The superior court entered its order nonetheless.  The RI Supreme Court reversed the decision citing Section 9-30-11 of Rhode Island General Laws which states: that “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”.  So the matter has been sent back to the Superior Court.  See entire opinion at: Burns, et. als v. Moorland Farm Condominiums, Inc.

Categories: Civil.

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Haunting Experience and Results

It is November 27, 2005, a Sunday just past Thanksgiving and less than a month past our celebrated Halloween.  Dark is upon us early and long-abandoned properties come with stories of hauntings, ghosts and creatures we only think of when our mind runs wild.  Such is the case for the young lad of 17 years.  Intrigued by possible sightings of such, he ventures with friends onto the premises of the Ladd Center, an old hospital center, in the Town of Exeter that has been closed and abandoned for some eleven years and has acquired that eerie reputation exactly because it was an old hospital center.  A reputation whispered among youths that also entices one to wonder how much is true and challenges groups to dare upon to see for themselves.  Unfortunately or perhaps fortunately, the results of this endeavor where naught the kind sought.  The young lad  knowingly trespassed upon the property and suffered injuries from bottled sulfuric acid that was found on the premises.  The family brought suit against the property owners, including the state, seeking damages because the youth had been enticed to entered the property, otherwise known as attractive-nuisance doctrine.  The youth admitted that he had trespassed and was aware that he was trespassing among other admissions.  The trial court held the facts of this case did not fit into the attractive-nuisance doctrine.  The Plaintiff was aware he was trespassing.  The Plaintiff had tested and knew that the vessels they were removing from the private property were not water.  The Plaintiff appealed.

The Rhode Island Supreme Court agreed with the trial court.  Specifically, the Supreme Court noticed: “It strains credulity to think that plaintiff, a seventeen-year-old who was about to complete his G.E.D., did not realize the risk involved in climbing a pipe to an upper-story window and entering a dark, abandoned building. Further, the discovery of the bottles triggered enough caution within the group for L.V. to pour some of the liquid out for further examination. As plaintiff himself testified, when he saw the liquid in the bottle, he believed it contained a hazardous material.”  Accordingly, the court ruled against the Plaintiff and denied the appeal.  See full decision: Burton v. State of Rhode Island 

Categories: Uncategorized.

Language Sufficient to Establish Trustee

Joanne Miller married Dean Miller.  Four children were bore from the marriage.  In 2006 a petition for divorce was filed.  As part of the Property Settlement Agreement, Dean Miller assented to provide life insurance for the benefit of the four children until the age of majority.  The Agreement did not When Dean Miller listed his children as the beneficiary on the policy, he added the following statement on the service form: “Beneficial interests to be paid to and managed by Kristin Saunders as custodial trustee for the benefit of my minor children.”  Kristin Saunders was Dean’s sister.  This became a point of contention for Joanne Miller and she filed a complaint with the Court seeking that Kristin and her husband Henry be removed as trustee alleging that any funds were to be paid out to her directly and that she should have been the trustee.  The Court disagreed and the Supreme Court upheld the lower court’s decision.  In response to Joanne Miller’s challenge that the language of the Property Settlement Agreement established her as trustee the Rhode Island Supreme Court specifically articulated that: ‘Here, we hold that the contractual language is not ambiguous, and that Mr. Miller did not violate paragraph twelve of the agreement by designating Mrs. Saunders “as custodial trustee for the benefit of [his] minor children” on the service request form.’  See Miller v. Saunders

Categories: Divorce, Family Court, Recent Decisions.

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Supplemental Jurisdiction

The renovations of the Hampton Inn & Suites (owned by Weybosset Hotel, LLC) was to be done by Stonestreet Construction LLC.  There were several guarantee clauses in the contract and eventually a dispute arose among the parties involved, including one of the subcontractors.  Most of the dispute surrounded monies owed, mostly as a result of change orders and delays.  The GC and said subcontractor filed mechanics liens in state Superior Court and an action in Federal Court under supplemental jurisdiction.  While the federal action was pending, the mechanics liens matter was adjudicated in the state court.  Weybosset Hotel LLC filed several motions in Federal Court, among which was the Court’s continued supplemental jurisdiction.  The Court of Appeals affirmed the District Court’s findings that it continued to have jurisdiction and upheld the award in favor of Stonestreet Construction LLC.  See full opinion at: Allstate Interiors & Exteriors, Inv. v. Stonestreet Construction, LLC v. Weybosset Hotel, LLC.

Categories: Civil, News, Recent Decisions.

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After Decades of Court Proceedings

In a recent decision, the First Circuit Court of Appeals affirmed the Rhode Island District Court's Decision in DeCiantis v. Wall.  DeCiantis was convicted of the murder of Dennis Roche from back in the early 1980's.  The informant that the State used, William Ferle, was part of the criminal element of the day.  He and his family were placed in protective custody.  The State while disclosing some of Ferle's criminal history to DeCiantis, seems to have failed to provide the extensive criminal activity Mr. Ferle was involved in.  Additionally, there seems to be no evidence that the state exposed that Ferle was being compensated to the tune of $24,000 including the State's payment of his home mortgage.  After more that 2 decades of court proceedings that has spanned over 4 decades, the First Circuit has agreed with the lower courts.  Although DeCiantis argued that “[u]nder Rhode Island law, the deliberate nondisclosure of evidence favorable to a defendant furnishes 'grounds for a new trial regardless of the degree of harm to the defendant.'”  State v. Chalk, 816 A.2d 413, 419 (R.I. 2002), all the Courts that have reviewed this argument have reached similar conclusion.  DeCiantis habeas corpus appeal has been denied.  Full opinion can be seen at: DeCiantis v. Wall.


Categories: Civil, Criminal, Recent Decisions.

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When Is Impeachment Evidence Proper?

The Rhode Island Supreme Court issued a ruling last week recognizing that the prosecution’s questioning of defendant for crimes he had not been convicted of served to prejudice the jury and overturned the conviction.  The defendant was on trial for possession of drugs with intent to deliver while having available a firearm for use.  During the warrant execution, a gun was discovered in the defendant’s girlfriend’s purse.  The defendant was not on the premises and was not arrested until some weeks later.  He had previously been sentenced to probation for possession of cocaine.  Rhode Island does not recognize a sentence of just probation as a conviction.  During the trial, the defendant testified in his own defense that the drugs were for his personal use.  The prosecution during cross asked the defendant about his previous conviction for possession with intent to deliver cocaine.  The questioning was misleading in that defendant did not have a conviction and certainly it was not for possession with intent to deliver.  Attorney Steven J. De Luca, representing the defendant, objected.   And although the judge sustained the objection in form, the prosecutor put the information before the defendant and jury once more and attempted to confuse the defendant’s answers.   An appeal was filed by Lara E. Montecalvo from the Public Defender’s Office, arguing among several issues this preserved issue.  The Rhode Island Supreme Court agreed with the preserved issue that defendant’s right to a fair trial was compromised and overturned his conviction.  See the entire opinion at: State v. Price

Categories: Criminal, Recent Decisions.

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