Supreme Court
No. 2023-255-C.A. (P1/21-2390AG)
State :
v. :
Johnny Xaykosy. :
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 (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, 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, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. The defendant, Johnny Xaykosy
(defendant or Xaykosy), is before the Court on appeal from a Superior Court
judgment of conviction for second-degree murder and discharging a firearm during
a crime of violence, resulting in the death of Nikolas DiPanni (decedent or
DiPanni).1 Prior to trial, the defendant entered pleas of guilty to two additional gun
charges that did not come before the jury. The defendant contends that the trial
justice erred by refusing to instruct on the lesser-included offense of voluntary
manslaughter; and that the sentence imposed was excessive. For the reasons
1 The spelling of the decedent’s name varies throughout the record. We adopt the spelling used in the trial transcripts. We intend no disrespect. -1- discussed herein, we reject the defendant’s claims of error and affirm the judgment
of conviction.
Facts and Travel
We note at the outset that defendant asserted the defense of self-defense
before the jury. This Court observed in State v. Tribble, 428 A.2d 1079 (R.I. 1981),
that “the very essence of the defense of self-defense is how the defendant perceived
the situation at the time of the incident in question.” Tribble, 428 A.2d at 1085.
Therefore, we focus our analysis on defendant’s trial testimony and supplement the
relevant facts with the testimony of other witnesses.
The evidence at trial was clear, defendant was a longtime drug dealer.
Xaykosy admitted that he had been selling drugs since 2014; and in 2017 he entered
a plea of nolo contendere to a charge of possession with the intent to deliver cocaine,
and he received a sentence of four years suspended, with probation.2 It is also
undisputed that in the late evening of April 22, 2021, defendant fatally shot the
decedent in the chest on the heels of a drug transaction during which he sold cocaine
to Cynthia McLintock (McLintock), a long-time customer, and the decedent’s
girlfriend.
2 At the time of the incident on April 22, 2021, defendant was currently serving his probationary sentence from the 2017 conviction. -2- Earlier in the day, on April 22, 2021, defendant and McLintock arranged a
transaction in which defendant agreed to sell McLintock drugs for DiPanni’s use.
The defendant maintained throughout trial that he did not know the decedent before
the transaction that led to DiPanni’s death on April 22, 2021. Later that evening,
defendant arrived at an agreed-upon location, in a silver Toyota—a vehicle
McLintock recognized from past drug transactions with defendant. McLintock
arrived in a Chevrolet, along with the decedent and their friend, Nicholas Nevola
(Nevola). McLintock exited the Chevrolet and met defendant in his vehicle, where
the two briefly engaged in light conversation. To avoid looking suspicious,
defendant and McLintock proceeded to drive around Providence in order to
consummate the transaction. Apparently, this did not sit well with the decedent.
As they were driving, defendant noticed a vehicle following the Toyota and could
hear an individual screaming. Eventually, McLintock was able to identify DiPanni
as the person yelling loudly.
According to defendant, McLintock used his cell phone to call the decedent,
and he immediately heard a male voice “calling [McLintock] a name and
threatening her.” McLintock kept the device on speakerphone. The defendant
testified that the decedent threatened McLintock, stating that “[h]e was going to
f* * * her up, [and] beat her f* * *ing a* *,” and he continued to berate McLintock
with expletives. The defendant testified that he told McLintock to tell the decedent
-3- to relax and that there was a vehicle behind them, at which point, the decedent
exclaimed, “Oh, that’s me, you fat b* * *h.”
After the decedent threatened McLintock, he made additional threats, laden
with expletives, toward defendant. Although defendant maintained that he did not
respond to the decedent’s comments, McLintock testified that “[defendant] had said
to me, ‘I got something for this motherf* * *er,’ and [that the decedent] heard
[defendant] say that.” Although defendant admitted that he said, “I had something
for him,” defendant denied having ever called the decedent the profanity. The
defendant testified that he intended to bribe the decedent with more cocaine in order
to calm him down because he was worried about the threats the decedent made
toward McLintock. Knowing DiPanni was upset, defendant testified that prior to
McLintock exiting the vehicle, he promised her that he would not get out of his
vehicle, nor would he fight with the decedent.
At trial, defense counsel presented a surveillance video of defendant’s
vehicle during the transaction and shortly thereafter. According to defendant, once
McLintock had the drugs in hand, he brought his vehicle to a complete stop, with
his foot on the brake. McLintock returned defendant’s cell phone and paid cash for
the drugs. Once McLintock exited the vehicle, defendant kept his foot on the
brake—never placing the vehicle in park—and began counting the cash proceeds.
The defendant related that he was “relaxed the whole time.” Meanwhile, after
-4- McLintock exited his vehicle, he could hear the decedent’s screams become louder
as the decedent approached his vehicle. With his foot on the brake, defendant
locked his doors, but opened the window on the passenger side in order to “defuse
the situation because [McLintock] clearly didn’t defuse it.” The decedent
approached defendant’s passenger door, grabbed the handle of the locked vehicle,
and yelled “I’ll f* * *ing kill you” and “Get out of the f* * *ing car, tough guy.”
Moments later, defendant testified, he became terrified when he saw what he
believed to be a firearm in the decedent’s right hand; so he reached down, grabbed
his own firearm, and fired one shot in the direction of the decedent.3
It was then that defendant fled the scene, tossed the firearm into “a wooded
area * * * [w]ithin like Providence/Cranston borderline,” and headed straight home.
The defendant did not make an emergency call to 911 at the scene, nor upon
returning home. In fact, when he arrived home, defendant emptied his vehicle of
his drug supply, searched for shell casings, and disposed of the single shell casing
that was ejected upon firing. According to defendant, he was unaware the decedent
3 At trial, defendant testified that as the decedent approached his vehicle, he noticed the decedent holding an object in his right hand, and that it “seem[ed] like [he was] concealing something, and I thought it was a gun.” According to Providence Police Detective Thomas Richards, a bottle of Dunkin’ Donuts creamer was found at the scene. Nonetheless, defendant maintained that he could not identify the item, stating “I thought it was a gun. That’s the first thing I thought of” because “[the decedent] just threatened me that he was going to f* * *ing kill me.”
-5- had died until he saw the news the next day. Despite learning of the decedent’s
death, Xaykosy never turned himself into the police because, he claimed, he “wasn’t
in the right state of mind. [He] was still shocked.”
On the evening of April 23, 2021, the day after the homicide, police officers
found Xaykosy driving around Providence; and he was arrested. The defendant
subsequently was indicted by a grand jury and charged with four counts—murder;
discharging a firearm while committing a crime of violence, to wit, murder;
carrying a pistol without a license; and possession of a firearm having been
previously convicted of a crime of violence. As noted, Xaykosy pled guilty to
counts 3 and 4 before trial but also acknowledged the pleas during his trial.
At the close of evidence, defendant requested a voluntary manslaughter
instruction. With explicit findings, the trial justice denied defendant’s request,
concluding:
“The record before me demonstrates that the defendant was very calm and well collected. By his own testimony, he boasted on direct examination that he was ‘relaxed the whole time.’ Even when [the decedent], although he knew him only as [McLintock’s] friend or boyfriend, was screaming and unnerving [McLintock], the defendant told her, ‘Relax. It’s not a big deal,’ trying to calm her down.
“Indeed, he explained his comment, ‘I have something for him’ ‘excluding the motherf’er’ sobriquet[], as not at all retaliation with his weapon, but instead some extra cocaine to placate [the decedent].
-6- “Returning to [State v. Ruffner, 911 A.2d 680 (R.I. 2006)], I repeat what the Court said there, ‘An act of self-defense can be committed cooly [sic] and deliberately. By contrast, a claim of heat of passion presupposes that the defendant had acted unreasonably on account of intense emotional excitement.’ It’s [Ruffner, 911 A.2d at 688 n.3].
“I do not find that ‘intense emotional excitement’ here in this case. When [the decedent] approached the defendant’s car, Mr. Xaykosy was not at all distracted or disturbed by [the decedent’s] prior hollering. Instead, the defendant was apparently simply relieved to have his cell phone returned, and otherwise simply sat in his car counting the proceeds of the cocaine sales he just completed with [McLintock], instead of driving away, as he said he could have, without obstruction. * * *
“But under my sense of the record, as a front-row observer, there was no adequate provocation as, after all, the defendant did not appear or recount that he had been particularly, if at all, very bothered or concerned about [the decedent’s] yelling. The defendant was only concerned with [McLintock’s] well-being rather than his own.
“He recounted that he was relaxed, he tried to calm [McLintock] down, and he even was ready to offer DiPanni extra cocaine as a way to defuse the situation * * *.”
In reliance on State v. Garcia, 883 A.2d 1131 (R.I. 2005), and State v.
Winston, 105 R.I. 447, 252 A.2d 354 (1969), the trial justice concluded that there
was “neither the requisite adequate provocation nor the heat of passion which are
essential predicates for a voluntary manslaughter instruction, and I shall therefore
not offer it to the jury.” Defense counsel objected to the trial justice’s ruling.
-7- A jury found defendant guilty of second-degree murder and discharging a
firearm during a crime of violence, to wit, murder, resulting in the death of DiPanni.
With respect to count 1, the trial justice sentenced Xaykosy to life in prison for
second-degree murder; and as to count 2, Xaykosy was sentenced to serve a second
consecutive life sentence for using a firearm to commit murder. On count 3,
defendant was sentenced to serve an additional ten years suspended and ten years
of probation, consecutive to count 4 to which defendant was sentenced to serve five
years, consecutive to count 2. The defendant filed a premature but valid notice of
appeal on April 18, 2023.4 Thereafter, a judgment of conviction entered on April
19, 2023. Additional relevant facts will be set forth as necessary.
Standard of Review “This Court reviews ‘jury instructions on a de novo basis.’” State v. Isom, 251
A.3d 1, 6 (R.I. 2021) (quoting State v. Ros, 973 A.2d 1148, 1166 (R.I. 2009)). “It is
well established that, on review, we examine jury instructions in their entirety to
ascertain the manner in which a jury of ordinary intelligent lay people would have
understood them.” Id. (quoting Ros, 973 A.2d at 1166). “This Court will not
examine a single sentence apart from the rest of the instructions, but rather the
4 “[T]his Court will treat a premature appeal as timely filed.” State v. Forlasto, 217 A.3d 489, 492 n.4 (R.I. 2019) (quoting State v. Diamante, 83 A.3d 546, 548 n.5 (R.I. 2014)). -8- challenged portions must be examined in the context in which they were
rendered.” Id. (quoting Ros, 973 A.2d at 1166).
Analysis
Voluntary Manslaughter Instruction
On appeal, defendant argues that the trial justice erred as a matter of law in
denying his request for an instruction on voluntary manslaughter. Xaykosy relies
on the recent case of State v. Esdel, 317 A.3d 756 (R.I. 2024), asserting that the
facts presented in the case at bar are analogous to the facts presented in Esdel and
that the trial justice ignored the fact that the decedent approached defendant’s car
with what appeared to be a firearm. Therefore, defendant argues, the trial justice
erred in refusing to instruct on voluntary manslaughter. The defendant is mistaken.
“When determining whether a trial justice’s refusal to give an instruction was
warranted, ‘this Court will examine the record in the case and determine whether the
evidence justifies such an instruction.’” State v. Fry, 130 A.3d 812, 820 (R.I. 2016)
(quoting State v. Motyka, 893 A.2d 267, 281 (R.I. 2006)). “In making this
determination, our review is limited to ‘ascertaining whether an actual and adequate
dispute exists as to the distinguishing element between the lesser and greater
offenses in question.’” Id. (quoting Motyka, 893 A.2d at 281). In State v. Gautier,
950 A.2d 400 (R.I. 2008), we observed that, “[i]n determining whether the evidence
calls for a lesser-included-offense instruction, the trial justice should not weigh the
-9- credibility of the testimony; rather, he or she should consider whether, at the very
least, some minimal evidence exists that, if credited by the jury, could support a
conviction for the lesser-included offense.” Gautier, 950 A.2d at 414 (emphasis
added) (quoting State v. McGuy, 841 A.2d 1109, 1112 (R.I. 2003)).
“A trial justice commits prejudicial error when he or she refuses to give a
jury instruction that the evidence entitles the defendant to receive.” McGuy, 841
A.2d at 1112. On the other hand, this Court has also stated that a trial justice “should
not instruct the jury on a lesser-included offense when the evidence wholly fails to
support such a charge.” Id.
In Ruffner, this Court recognized that the element of malice aforethought is
the distinguishing factor between voluntary manslaughter and murder. See Ruffner,
911 A.2d at 686. “Murder, both first and second degree, is ‘the unlawful killing of
a human being with malice aforethought.’” Id. (brackets omitted) (quoting G.L. 1956
§ 11-23-1). Whereas “[v]oluntary manslaughter is a lesser-included offense within
the crime of murder, and is defined as ‘an intentional homicide without malice
aforethought committed in a sudden heat of passion as a result of adequate legal
provocation.’” Id. (emphasis added) (brackets omitted) (quoting State v. Ortiz, 824
A.2d 473, 486 (R.I. 2003)).
“Voluntary manslaughter is an intentional homicide that does not include the
element of malice aforethought by reason of one or more mitigating factors.” State
- 10 - v. Ventre, 811 A.2d 1178, 1184 (R.I. 2002). “The usual view of voluntary
manslaughter thus presupposes an intent to kill (or perhaps an intent to do serious
injury or to engage in very reckless conduct), holding that in spite of the existence
of this bad intent the circumstances may reduce the homicide to manslaughter.”
Ortiz, 824 A.2d at 486 (quoting Wayne R. LaFave, Criminal Law § 7.10(a) at 704
(3d ed. 2000)). Significantly, however, conduct that is wanton and reckless also
“can supply the element of malice that is necessary to raise homicide to the level of
common-law murder.” State v. Iovino, 524 A.2d 556, 558 (R.I. 1987). This is so
because malice aforethought “consists of an unjustified disregard for the possibility
of death or great bodily harm and an extreme indifference to the sanctity of human
life.” State v. McGranahan, 415 A.2d 1298, 1302 (R.I. 1980).
In order for a homicide to amount to voluntary manslaughter, the element of
adequate provocation, which “arises, inter alia, when the defendant reasonably fears
imminent death or serious bodily harm,” must be present. See Ruffner, 911 A.2d at
686. This Court has stated that “[h]eat-of-passion manslaughter exists when: ‘(1)
the provocation is so gross as to cause the ordinary reasonable man to lose his
self-control and to use violence with fatal results, and (2) the defendant is deprived
of his self-control under the stress of such provocation and committed the crime
while so deprived.’” Id. (brackets and deletions omitted) (quoting Garcia, 883 A.2d
at 1137-38). We also recognize that “heat of passion may be aroused by fear and
- 11 - terror as well as anger.” Ventre, 811 A.2d at 1184 (brackets omitted) (quoting State
v. Fetzik, 577 A.2d 990, 995 (R.I. 1990)).
In Esdel, the defendant was stopped at a traffic light at an intersection in
Pawtucket. See Esdel, 317 A.3d at 761. He was trapped when the vehicles
surrounding him “came to an abrupt stop; [and] several individuals—some of whom
were armed—exited their vehicles, and quickly surrounded defendant, who
remained inside his vehicle.” Id. Within seconds, Esdel was encircled by several
individuals, and he testified that he “felt boxed in,” and “cornered,” believing that
“[his] life was over at that point.” Id. at 763. He reached into his bag, grabbed a
revolver, and raised his right arm, firing a single shot out the passenger side
window, killing the decedent. Id. at 761. In addition to Esdel’s testimony, a video
from a Grubhub food delivery driver, who witnessed the altercation, was presented
to the jury, evidencing the approximately four to five vehicles surrounding Esdel’s
vehicle. Id. at 761 n.2.
In light of this evidence, this Court recognized that “[t]he credibility of
[Esdel’s] testimony is committed to the jury; and, if believed, this evidence can
serve to negate the element of malice aforethought for second-degree murder.”
Esdel, 317 A.3d at 768. “With respect to the element of ‘sudden heat of passion,’”
we further concluded that if believed, there was “more than a scintilla of evidence
that defendant acted in a sudden heat of passion prompted by fear such that a jury
- 12 - could find defendant was so ‘deprived of his self-control’ under the stress of such
provocation that led him to quickly lean over to * * * grab the revolver, and let off
a single warning shot.” Id. at 768-69.
Contrary to defendant’s arguments, Esdel is distinguishable. The evidence in
Esdel indicated that the defendant was in fear for his life and that “the decedent’s
prior hostile history with [the] defendant—who was known to carry a firearm—are
factors that could lead [Esdel] to fire the weapon in the heat of passion on sudden
provocation.” Esdel, 317 A.3d at 769. The evidence in this case does not correspond
to the facts in Esdel. We conclude that Xaykosy’s testimony fails to present
sufficient evidence to support a finding that he acted in a sudden heat of passion as
a result of adequate provocation. See id. at 766.
Significantly, the facts in Esdel suggest that bad blood existed between the
defendant and the decedent, who made a threat to kill the defendant on a prior
occasion. See Esdel, 317 A.3d at 769. This served as “minimal evidence” necessary
to support a conviction for voluntary manslaughter. Id. (emphasis omitted); see also
Gautier, 950 A.2d at 414. In the case at bar, there was no prior relationship between
defendant and the decedent; nor was there any evidence at trial that the decedent
made any threats toward defendant before their fateful encounter.
- 13 - Turning to the events leading to the shooting, we are of the opinion that
evidence to support the element of adequate provocation, sufficient to warrant an
instruction for voluntary manslaughter, is lacking.
On the evening of April 22, 2021, McLintock and defendant drove around
Providence near Allens Avenue to complete their transaction. During the drive,
defendant testified that McLintock borrowed his cell phone to call the decedent.
The decedent quickly answered the call and began threatening McLintock, stating
that he was going to beat her, lacing his threats with expletives. He also threatened
to “f* * * [defendant] up” and smash his windows with even more expletives. The
defendant heard these threats because the phone call was on speakerphone. Yet
defendant did not respond to the decedent’s verbal threats, but instead, suggested
McLintock tell him “to relax” and that “[t]here [was] a car behind us” to which the
decedent responded, “Oh, that’s me, you fat b* * *h.” Once the transaction was
consummated, defendant testified that he promised McLintock that he would
remain in the vehicle, stating something to the effect of “I [have] something for him
* * *.” The defendant testified that he kept his foot on the brake, never placing the
vehicle in park, and remained in his vehicle to count the proceeds. While counting
his cash, defendant heard the decedent yelling, and as he drew near, defendant
locked his doors, and rolled down the window so as to “defuse the situation because
[McLintock] clearly didn’t defuse it.” The decedent reached for defendant’s door
- 14 - handle, and threatened defendant, stating “I’ll f* * *ing kill you,” and “Get out of
the f* * *ing car, tough guy.” It was at this moment, defendant testified, that he
became terrified and saw what he believed to be a weapon in the decedent’s right
hand. Xaykosy reached down, grabbed his firearm, and without looking at the
decedent, he fired one shot toward the decedent. It was after he fired his weapon
that defendant took his foot off the brake, and fled the scene.
In reviewing defendant’s testimony, we “apply an objective standard to
determine whether an alleged provocation is legally sufficient” to warrant an
instruction on voluntary manslaughter. See McGuy, 841 A.2d at 1113. Based on
these facts, we are satisfied that the trial justice appropriately denied defendant’s
request for a voluntary manslaughter instruction.
The facts this Court considered in Esdel to determine whether an instruction
of voluntary manslaughter was warranted differ from the facts and circumstances
presented here. The defendant was calmly counting his money, there were no prior
threats or bad blood between these individuals, and defendant had a clear means of
escape. Therefore, it is our view that the trial justice did not err when he determined
that there was insufficient evidence to support a finding of adequate provocation or
sudden heat of passion.
We further observe that defendant’s own testimony defeats the necessary
element of “sudden heat of passion.” The defendant’s testimony fails to suggest
- 15 - that he was “aroused by fear and terror as well as anger” while he was calmly
counting his money. See Ventre, 811 A.2d at 1184 (quoting Fetzik, 577 A.2d at
995). Again, despite defendant’s singular statement that he became “terrified” as
the decedent approached his vehicle, he opened the window and never took his foot
off the brake. Therefore, defendant’s statement that he was “terrified” is not
sufficient to establish that he “acted out of a sudden and uncontrollable passion.”
Ruffner, 911 A.2d at 688.
“[T]his Court has repeatedly recognized that ‘a trial justice is not required to
instruct the jury on a lesser-included offense when the evidence presented at trial
completely fails to support such a charge.’” Fry, 130 A.3d at 820 (brackets omitted)
(quoting Motyka, 893 A.2d at 285). Accordingly, the trial justice did not err when
he rejected defendant’s request to give a voluntary manslaughter instruction to the
jury.
The Sentencing
The defendant raises a second issue on appeal, arguing that the trial justice
erred by imposing an excessive sentence. The defendant contends that the life
sentence on the second-degree murder conviction was discretionary and that,
therefore, when the trial justice imposed such sentence he erred. The defendant
seeks to distinguish murder in the first degree from that of murder in the second
degree. In State v. Monteiro, 924 A.2d 784 (R.I. 2007), this Court upheld the
- 16 - constitutionality of mandatory consecutive life sentences in the context of a
first-degree murder. See Monteiro, 924 A.2d at 795. The defendant asserts that this
is a case of first impression because this Court has not yet addressed consecutive
life sentences within the context of murder in the second degree. The state objects
on the ground that defendant does not contend that the life sentence for the
second-degree murder conviction was illegal or unconstitutional. Significantly, the
state further asserts that defendant’s argument, that the trial justice erred by
imposing an excessive sentence, is not ripe for this Court’s review. We agree.
This Court has often declared “that the appropriate procedure for challenging
an improper or illegal sentence is to seek a revision of that sentence initially in the
Superior Court pursuant to Rule 35 of the Superior Court Rules of Criminal
Procedure.” State v. Ducharme, 601 A.2d 937, 946 (R.I. 1991) (emphasis added);
see also Super. R. Crim. P. 35. “In the absence of such a motion and determination
thereof in the Superior Court, this [C]ourt will not consider issues involving the
legality or propriety of a sentence.” State v. Bucci, 430 A.2d 746, 749 (R.I. 1981);
see also State v. Lee, 502 A.2d 332, 335 (R.I. 1985) (“This [C]ourt has
unequivocally stated that the appropriate procedure for challenging an improperly
or illegally imposed sentence is not to appeal directly to the Supreme Court but to
seek revision of the sentence initially in the Superior Court under [Rule 35].”).
- 17 - Because the defendant failed to raise a Rule 35 motion before a justice of the
Superior Court, we “will not consider issues involving the legality or propriety” of
the sentence imposed by the trial justice. See Bucci, 430 A.2d at 749. To the extent
the defendant maintains his conviction and sentence are constitutionally infirm, an
application for postconviction relief is the proper avenue of relief. Therefore, the
defendant’s appellate argument concerning his sentence is not properly before this
Court.
Conclusion
For the reasons stated, we affirm the judgment of conviction. The papers in
this case may be remanded to the Superior Court.
- 18 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Johnny Xaykosy.
No. 2023-255-C.A. Case Number (P1/21-2390AG)
Date Opinion Filed March 18, 2026
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Robert D. Krause
For State:
Christopher R. Bush Attorney(s) on Appeal Department of Attorney General For Defendant:
Michael S. Pezzullo, Esq.