Supreme Court
No. 2016-132-C.A. No. 2017-400-C.A. (P1/99-2303A)
State :
v. :
Jeffrey Murray. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. The defendant, Jeffrey Murray, appeals from both a
Superior Court judgment adjudicating him a probation violator and a Superior Court order
denying his motion to terminate imprisonment.1 These consolidated appeals came before the
Supreme Court pursuant to an order directing the parties to appear and show cause why the
issues raised in the appeals should not be summarily decided. After considering the parties’
written and oral submissions and reviewing the record, we conclude that cause has not been
shown and that the appeals may be decided without further briefing or argument. For the reasons
set forth herein, we affirm both the judgment and the order.
1 Although a Rule 12A statement was filed on defendant’s behalf by the Rhode Island Office of the Public Defender, defendant moved to proceed pro se, to which the public defender had no objection. We granted that motion, and defendant thereafter filed a supplemental memorandum and was heard on the show cause calendar pro se.
-1- I
Facts and Travel
A
Probation Violation
On April 18, 2000, defendant pled guilty to one count of first-degree sexual assault, for
which he received a sentence of twenty years, with five years to serve and the remainder
suspended, with probation, and one count of assault with a dangerous weapon, for which he
received a ten-year suspended sentence, with probation, to be served concurrently.
Subsequently, defendant twice pled nolo contendere, in 2010 and 2012, to charges of failing to
register as a sex offender, for which he was also sentenced to terms of imprisonment and
probation.
On July 8, 2015, the state filed a probation-violation report in the Newport County
Superior Court, pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure,
alleging that defendant had violated his probation in all three cases by failing to keep the peace
and be of good behavior. Specifically, the report indicated that defendant was “under an active
Newport Police investigation for the domestic strangulation, domestic kidnapping and domestic
[first] degree sexual assault of his girlfriend.” The report noted that “[s]aid violation of
probation is not contingent upon any specific criminal offense.”
At the probation-violation hearing held over four days in late 2015 and early 2016 before
a justice of the Superior Court, the complaining witness testified as to the events that allegedly
took place between June 26, 2015, and June 28, 2015, at defendant’s apartment on Elm Street in
-2- Newport.2 Her testimony included graphic details of sexual assault and strangulation that
followed her admission to defendant that she had been unfaithful to him while he had been
incarcerated. She testified that she feared being harmed and therefore remained at defendant’s
side all weekend. She explained that much of the time over that weekend was spent placating
defendant by staying with him, and that her ultimate plan was to notify the police when her
father picked her up on Sunday morning.
Following the complaining witness’s testimony and the testimony of other witnesses
involved in the case, including her father and the investigating police officers, as well as the
admission of numerous exhibits, such as text messages, police reports, and statements to the
police, the hearing justice rendered a bench decision. He began by noting that the burden was
“on the [s]tate to reasonably satisfy the [c]ourt that the defendant has failed to keep the peace and
be of good behavior.”3 He noted also that “a so-called 32(f) violation hearing is a civil
proceeding and the evidence doesn’t have to rise actually to the level of a criminal offense in
order to constitute failing to keep the peace and be of good behavior.”
Next, the hearing justice reviewed the evidence and testimony presented at the hearing,
acknowledging defendant’s statements to police at the time of the incident. He found that
defendant “in his own words confirmed [to the police] the fact that he had imprisoned [the
complaining witness], by preventing her from leaving 36 Elm Street * * * when he arrived
2 For purposes of this opinion, a precise recitation of the sordid details of the acts allegedly committed by defendant is not necessary. Although there was significant, and at some points appalling, testimony from the complaining witness, we do not deem it necessary to delve into the details. 3 Rule 32(f) of the Superior Court Rules of Criminal Procedure was amended effective June 21, 2016, after the decision finding defendant a probation violator in the instant case was rendered, to provide that no revocation of probation “shall occur unless the [s]tate establishes by a fair preponderance of the evidence that the defendant breached a condition of the defendant’s probation or deferred sentence or failed to keep the peace or remain on good behavior.” (Emphasis added.)
-3- there[-]after learning from a co-worker that she had been seen leaving his apartment * * * with
somebody[.]” Additionally, the hearing justice noted that defendant, in his own statement to the
police, “says he pushes her back inside and makes her go back into the room upstairs where she
had already locked the door and prevented her from leaving the apartment[.]” According to the
hearing justice, “[t]hat in and of itself, without anything further, would certainly constitute a
failure to keep the peace and be of good behavior.”
Following a detailed review of the complaining witness’s testimony, the hearing justice
noted that she had “readily admitted her issues” and “didn’t try to gild the lily,” and “basically
said that [defendant] forced her to do the acts * * * which would certainly constitute a sexual
assault under the statute.” He addressed her trip out of the apartment with defendant to a
Cumberland Farms store over the weekend, noting that the complaining witness in her testimony
had pointed out that the surveillance video showed that she was crying and using her sunglasses
to cover up. The hearing justice also addressed defendant’s assertions that, if she believed she
was in danger while she was with defendant that weekend, she could have asked for help or gone
to the police. However, he found her explanation “to be credible, that she was waiting until
Sunday when her father would come[.]”
Regarding the complaining witness’s multiple statements to police, the hearing justice
found that “[w]hile there are some inconsistencies between the statements, which is certainly to
be expected, which is really an indicia of truth or credibility, if the stories matched exactly you
would think that they were rehearsed and made up, but they were in all important respects
consistent.” The hearing justice found that much of her testimony was corroborated by
defendant in his statement to police, as well as by other witnesses. He ultimately found that
defendant had certainly “failed to keep the peace and be of good behavior by having or holding
-4- her against her will, preventing her from leaving 36 Elm Street in his room at the top [of] the
stairs[.]” The hearing justice determined that he was “convinced beyond a reasonable doubt as
[to] those facts which this [c]ourt found based upon the credible testimony of [the complaining
witness].”
The hearing justice determined that defendant had approximately fourteen years and five
months remaining on the suspended sentence imposed in P1/99-2303A, and he ordered that
defendant serve thirteen years of that sentence. Judgment was entered on January 28, 2016. The
defendant filed a timely notice of appeal on February 12, 2016.
B
Motion to Terminate Imprisonment
While his first appeal was pending, defendant filed a pro se motion in the Superior Court
to terminate his sentence of imprisonment, asserting at the hearing on the motion that, because
the underlying District Court complaint against him concerning the events of June 2015 was
dismissed, according to defendant for lack of probable cause, the provisions of G.L. 1956
§ 12-19-18(b)(5) mandated that his imprisonment be terminated. The motion was heard before a
second hearing justice, sitting in Providence County, who, in response, read from the Rule 48(a)
dismissal filed by the state in that underlying case, which stated: “[T]he [s]tate is dismissing
these charges in the interest of sparing the victim any further trauma from repeated court
appearances. This dismissal shall in no way be construed to imply that the [s]tate indicates a
lack of probable cause or any doubt of the culpability of the defendant.” The state objected to
defendant’s motion, arguing at that initial hearing that the underlying District Court charges
against defendant were dismissed because the state was “satisfied with the sentence as well as
sparing the victim of [sic] any further hearing.” The state further argued that defendant had not
-5- demonstrated any of the five reasons enumerated in § 12-19-18(b) that would mandate that his
imprisonment be terminated.
The court eventually held an evidentiary hearing. The first witness to testify was
assistant attorney general Roger Demers, who was the prosecutor at defendant’s probation-
violation hearing. Demers testified, in response to questioning by the defendant, that he could
not recall being told by the lead investigator assigned to the case, Detective Jacque Wuest of the
Newport Police Department, on the day the probation-violation report was filed, whether there
was probable cause to support the underlying criminal charges against defendant. He did,
however, “remember seeing that [there was no probable cause to charge him with a crime] in one
of her early reports.”
After identifying the Rule 48(a) dismissal filed in the District Court case, Demers
testified that the state had dismissed the charges against defendant to ensure that the complaining
witness would not be put through any more trauma, including, according to Demers, the “trauma
of being sexually assaulted by the defendant and the trauma of having to testify about that sexual
assault and undergo a fairly lengthy cross-examination, much of it having to do with irrelevant
questions.” He testified further that the “main input was from the victim herself” in the state’s
decision to dismiss the underlying charges against defendant; according to Demers, the
complaining witness “did not want to continue to have to suffer through this.” He testified that
there was no doubt in his mind that there was probable cause in the underlying case and that
defendant was culpable for the acts alleged.
The defendant then called Det. Wuest as a witness, to which the state objected, arguing
that only the state had the discretion to dismiss the charges, and, therefore, the testimony of Det.
-6- Wuest was not relevant. The hearing justice sustained the state’s objection, but he allowed
defendant to examine Det. Wuest as an offer of proof.4
After hearing the testimony, the hearing justice rendered a bench decision denying
defendant’s motion to terminate his sentence of imprisonment. He found that only the state had
the authority to decide whether to proceed with or dismiss the charges, based upon the input of
the complaining witness; ultimately, the hearing justice noted, it is the attorney general who has
the final say. He found that Det. Wuest’s testimony was not relevant to the determination of
probable cause but that, even if it was, “what she initially said about probable cause was later
retracted, at least implicitly[.]”
The hearing justice concluded by stating that “given the strictures of [§] 12-19-l8(b)(5),
the [c]ourt finds that Mr. Demers’ testimony is very, very credible,” and that there was “nothing
the [c]ourt heard by way of cross, redirect or recross, or anything — in the event the [c]ourt was
in error and should have considered Detective Wuest’s testimony, there is nothing that undercut
Mr. Demers’ very credible testimony.” He therefore denied defendant’s motion.
An order was entered denying defendant’s motion to terminate imprisonment. The
defendant filed a premature but timely notice of appeal on August 2, 2017.5
4 Although the testimony of Det. Wuest was an offer of proof and not admitted into evidence, it is important to note that while Det. Wuest testified that initially there was not enough probable cause to charge, once she conducted an investigation, the police “determined there was enough probable cause to charge, and the AG agreed with us, so we charged.” 5 This Court has consistently considered a notice of appeal filed prior to the entry of the judgment or order appealed from to be timely. See, e.g., State v. Chase, 9 A.3d 1248, 1252 n.2 (R.I. 2010) (holding that “[a]lthough [the] defendant’s notice of appeal was premature, it was nevertheless valid”); Otero v. State, 996 A.2d 667, 670 n.3 (R.I. 2010) (same); Bleau v. State, 968 A.2d 276, 278 n.1 (R.I. 2009) (mem.) (same).
-7- II
Discussion
On appeal from the adjudication that he violated his probation, defendant submits that the
hearing justice acted arbitrarily and capriciously in finding that defendant had violated the terms
of his probation. The defendant further argues that the case should be remanded for
consideration under the since-enacted “fair preponderance of the evidence standard” under Rule
32(f).
Standard of Review
“At a probation-violation hearing, the sole issue for a hearing justice is whether the
defendant has breached a condition of his or her probation by failing to keep the peace or remain
on good behavior.” Neufville v. State, 172 A.3d 161, 165 (R.I. 2017) (brackets and deletions
omitted) (quoting State v. Beaudoin, 137 A.3d 726, 731 (R.I. 2016)). “A probation-violation
hearing is ‘not part of a criminal prosecution;’ therefore, ‘the burden of proof at a probation-
violation hearing is much lower than the standard of beyond a reasonable doubt used in criminal
trials.’” Id. (quoting State v. Raso, 80 A.3d 33, 42 (R.I. 2013)). “To determine whether the
defendant has committed a violation, the hearing justice weighs the evidence and assesses the
credibility of the witnesses.” Id. (quoting Beaudoin, 137 A.3d at 731-32).
“On review, ‘this Court accords great deference to the hearing justice’s credibility
assessments.’” Neufville, 172 A.3d at 165 (brackets omitted) (quoting Beaudoin, 137 A.3d at
732). “It is well founded that this Court ‘will not second-guess supportable credibility
-8- assessments of a hearing justice in a probation-revocation hearing.’” Id. (quoting Beaudoin, 137
A.3d at 732). “Instead, this Court’s ‘review is limited to considering whether the hearing justice
acted arbitrarily or capriciously in finding a violation.’” Id. (quoting Beaudoin, 137 A.3d at 732).
Analysis
In support of his contention that the hearing justice acted arbitrarily or capriciously in
finding the complaining witness’s testimony to be credible, defendant asserts that her story was a
“far-fetched and outrageous tale” and that it was “erroneous for [the probation-violation hearing
justice] to credit her testimony in these highly questionable circumstances,” arguing that the
testimony was “essentially uncorroborated” and “improbable[.]”
Our review of the record reflects that the hearing justice considered the tone of the
complaining witness’s testimony, the corroboration of her testimony by other witnesses and
other evidence admitted in this case, and the fact that she had “readily admitted her issues.”
Indeed, the hearing justice carefully considered the minor inconsistencies in her testimony,
ultimately determining them to be “really an indicia of truth or credibility,” reasoning that a
perfectly matched story would seem to be false or rehearsed. Importantly, the hearing justice
noted that defendant himself, in his statements to police, corroborated portions of the
complaining witness’s story that supported a finding that he had breached the peace, in particular
that he had pushed her back inside and prevented her from leaving the apartment. It is clear to
us, based upon our review of the record, that the hearing justice did not act arbitrarily or
capriciously when he made his finding that the complaining witness was a credible witness.
The defendant also asks this Court to remand this case for a new probation-violation
hearing utilizing the new burden of proof contained in Rule 32(f), given that the new standard
-9- was enacted while the violation adjudication was pending direct review in this Court. He argues
that the state is now required to prove by a “fair preponderance of the evidence” that defendant
had breached a condition of his probation by failing to keep the peace. However, a review of the
record reveals that the hearing justice, when rendering his bench decision on the probation
violation, stated that he was “convinced beyond a reasonable doubt as [to] those facts which this
[c]ourt found based upon the credible testimony of [the complaining witness].” It goes without
saying that the standard of proof of beyond a reasonable doubt is a higher standard than either
the fair preponderance of the evidence standard or the reasonable satisfaction standard, and that,
as such, there is no question that the “fair preponderance of the evidence” standard would have
been met in this case. See Neufville, 172 A.3d at 165. We therefore conclude that this case
should not be remanded for consideration under the new standard.
Next, defendant argues that the second hearing justice erred in denying his motion to
terminate his imprisonment, which motion was based on defendant’s assertion that the
requirements of § 12-19-18(b)(5) were satisfied under the facts of his case.
“It is well established that the factual findings of a [hearing] justice sitting without a jury
are accorded great weight and will not be disturbed unless the record shows that the findings
clearly are wrong or the [hearing] justice overlooked or misconceived material evidence.”
Kilmartin v. Barbuto, 158 A.3d 735, 746-47 (R.I. 2017) (quoting Cote v. Aiello, 148 A.3d 537,
544 (R.I. 2016)). “This Court consistently has held that factual findings of a [hearing] justice
- 10 - sitting without a jury are granted an extremely deferential standard of review.” Id. (quoting Cote,
148 A.3d at 544). This Court reviews “questions of statutory interpretation de novo.” State v.
Hazard, 68 A.3d 479, 485 (R.I. 2013) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)).
After a careful review of the record, we conclude that the hearing justice did not overlook
or misconceive material evidence or otherwise commit clear error. The hearing justice held an
evidentiary hearing, at which defendant had the opportunity to examine and cross-examine both
Demers and Det. Wuest. The defendant’s core argument in support of his motion to terminate
imprisonment was that § 12-19-18 applied to the facts of this case. Section 12-19-18 states, in
pertinent part:
“(b) Whenever any person, after an evidentiary hearing, has been sentenced to imprisonment for violation of a suspended sentence or probationary period by reason of the alleged commission of a felony or misdemeanor said sentence of imprisonment shall, on a motion made to the court on behalf of the person so sentenced, be quashed, and imprisonment shall be terminated when any of the following occur on the charge which was specifically alleged to have constituted the violation:
“* * *
“(5) The charge fails to proceed in District or Superior Court under circumstances where the state is indicating a lack of probable cause, or circumstances where the state or its agents believe there is doubt about the culpability of the accused.”
The defendant asserts before this Court that, by dismissing the underlying District Court
complaint, the “state [was] indicating a lack of probable cause” and an “agent believe[d] there
[was] doubt about the culpability of the [defendant,]” and that, therefore, his imprisonment
should be terminated under § 12-19-18(b)(5). In support of this argument, defendant points to a
- 11 - statement by Det. Wuest suggesting that, at one point early in the case, there was insufficient
probable cause to arrest defendant. He argues that, in light of Det. Wuest’s testimony in this
regard, the hearing justice erred in his application of § 12-19-18. This argument is without merit
for two reasons.
First, while Det. Wuest did testify in the offer of proof that, prior to a full investigation of
the case, there was a lack of probable cause to arrest defendant, she clearly also testified that,
after further investigation, including interviewing witnesses and gathering evidence, there was
sufficient probable cause and therefore defendant was subsequently arrested. Section
12-19-18(b)(5) requires that “[t]he charge fails to proceed in the District * * * Court under
circumstances where the state is indicating a lack of probable cause[.]” The fact that probable
cause may have been lacking preliminarily does not mean that § 12-19-18(b)(5) is applicable,
especially when future investigations establish the existence of probable cause. See, e.g.,
O’Connell v. Walmsley, 156 A.3d 422, 428 (R.I. 2017) (holding that “although we must give
words their plain and ordinary meanings, in so doing we must not construe a statute in a way that
would result in absurdities or would defeat the underlying purpose of the enactment” (brackets
and deletion omitted) (quoting Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 681
(R.I. 1999))).
Second, as noted supra, the Rule 48(a) dismissal by the state in the District Court
specifically indicated that the reason for the dismissal of the three charges against defendant was
to “spar[e] the victim any further trauma[,]” and that it was not because of “lack of probable
cause” or any “doubt about the culpability about the accused[,]” as required by § 12-19-18(b)(5).
At the hearing on defendant’s motion to terminate imprisonment, Demers was found to have
credibly affirmed those statements as contained in the Rule 48(a) dismissal.
- 12 - As such, there is ample evidence to support the hearing justice’s conclusion that
§ 12-19-18(b)(5) is inapplicable to the instant case. There is no indication in the record that this
is a case that failed to proceed because of lack of probable cause. Accordingly, we affirm the
order denying the defendant’s motion to terminate imprisonment.
III
Conclusion
For the reasons stated herein, we affirm the judgment and the order on appeal. We
remand the papers to the Superior Court.
- 13 - STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. Jeffrey Murray. No. 2016-132-C.A. Case Number No. 2017-400-C.A. (P1/99-2303A) Date Opinion Filed October 16, 2019 Suttell, C.J., Goldberg, Flaherty, Robinson, and Justices Indeglia, JJ. Written By Associate Justice Gilbert V. Indeglia
Source of Appeal Providence County Superior Court Associate Justice Stephen P. Nugent Judicial Officer From Lower Court Associate Justice William E. Carnes, Jr. For State:
Christopher R. Bush Attorney(s) on Appeal Department of Attorney General For Defendant:
Jeffrey Murray, Pro Se
SU‐CMS‐02A (revised June 2016)