Justice ROBINSON, for the Court.
The defendant, Julie Robat, appeals from a judgment of conviction on one count of second-degree murder. The victim was the defendant's newborn daughter. On appeal, the defendant first contends that the trial justice erred in failing to grant her motion for a judgment of acquittal and her later motion for a new trial on the second-degree murder charge; the basis for that contention is the defendant's underlying assertion that the state failed to provide legally sufficient evidence for a jury to find that she acted with malice in connection with the death of her baby. The defendant additionally contends on appeal that the trial justice erred in failing to grant her motion for a new trial because of what she alleges were improper comments made by the prosecutor during her closing argument.
For the reasons set forth in this opinion, we affirm the judgment of conviction.
On the night of October 29 or in the early morning hours of October 30, 2006,
On April 13, 2007, a Providence County grand jury indicted defendant for the murder of her child, in violation of G.L.1956 §§ 11-23-1 and 11-23-2; she was also indicted for failure to report a death with the intent of concealing a crime, in violation of G.L.1956 § 23-4-7, which charge was later dismissed by the state pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure.
On April 2, 2009, defendant's trial began in the Superior Court for Providence County. The state presented the testimony of fourteen witnesses; in due course, defendant took the stand in her own defense and also presented the testimony of five additional witnesses. We summarize below the trial testimony pertinent to the issues on appeal.
Thomas Ellis (defendant's former boyfriend) testified that, on a particular evening sometime between late February and early March of 2006,
Mr. Ellis then testified that, although he attempted to contact defendant in the interim, the next time that the two actually spoke was not until late August or early September of that year.
Marie, the youngest sister of defendant, was nineteen years old at the time of the
Marie next testified that, at that time, she did not sense that anything was wrong; she said that, after taking a few minutes to get ready for bed, she returned to the bathroom. Marie testified that, when she walked through the open bathroom door and into the bathroom itself, she "saw [defendant] leaning over a counter," under which her family kept a laundry basket. Marie stated that she asked defendant "if she was okay" and that defendant responded that she was "fine;" however, Marie further stated that she observed that her sister was pale. Marie testified that she then proceeded to clean up a puddle of blood that she had noticed on the floor in front of the toilet; she said that the puddle of blood was approximately ten inches to one foot in size. Marie stated that, when she asked her sister what had happened, she responded that she "got [her] thing." Marie testified that she understood that statement to mean that her sister was menstruating. Marie stated that, when she inquired further, defendant said that she had fallen.
Marie further testified that, after cleaning up the blood, she went to awaken her sister Christine, who was in bed "[h]alf asleep;" Marie said that she then told Christine: "There's something wrong with Julie." Marie testified that, just then, both she and Christine "heard a boom." She stated that they saw that defendant had fallen "face first" in the hallway; Marie added that "it looked like she had passed out." Marie testified that defendant then stood up and was "coherent" and that she and Christine helped their sister reach the bathroom. Marie further testified that, while accompanying defendant to the bathroom, she noticed "a spot of blood" on the hallway floor; she added that, once in the bathroom, defendant was bleeding from "[h]er vaginal area" and that there was blood "[a]ll over [her] legs." Marie testified that she and Christine then helped to clean their sister while she continued to tell them that she was menstruating. Marie stated that she and Christine discussed calling 911, but that defendant told them that she was fine and did not need an ambulance.
Marie testified that, after she and Christine helped defendant clean herself off, defendant said to them: "I have to wash some clothes for work tomorrow. I have to do laundry." Marie stated that she then followed defendant, who was carrying the laundry basket from the bathroom down to the laundry room. Marie testified
Marie stated that she then left the laundry room and went to draw a bath for defendant. Christine testified that, at that point, she went downstairs into the laundry room and that defendant had "plopped herself on the cement ground floor" and commented that "the cement felt good." Christine stated that she then left defendant "for a minute" and that, upon her return, defendant was still on the floor. Christine further stated, however, that the washing machine had been started and that she noticed that it was a "red, red load." Christine testified that she then helped defendant back upstairs to the bathroom; she said that defendant "was still bleeding" and that she and Marie put defendant into the bathtub.
Marie testified as follows about defendant's appearance: "She did not look good at all. She was very pale. She was a[s] white as a ghost. Her gums were white. Her tongue was white." Marie stated that defendant then had a seizure; she said that "[defendant's] head went back, her eyes rolled into the back of her head, and she started shaking."
Marie proceeded to testify that, at that point, Christine yelled to their father from the bathroom and that he came into the bathroom.
It was the testimony of the rescue lieutenant who responded to the 911 call as well as that of the doctors who treated defendant at the various hospitals
The two other treating physicians testified that, after examining defendant, they also reached the conclusion that she had been pregnant and had recently, in the words of one of the physicians, "giv[en] birth to a baby that * * * was of sufficient gestational age that [it] could have * * * survived." One of the doctors testified that she also confronted defendant with her conclusions and that defendant responded with a denial of having seen a baby; she then informed defendant that the hospital would be notifying the police, at which point in time defendant "continued to appear calm, nodded her head, and really didn't say anything further." The police were subsequently notified that it was believed that defendant had given birth to an almost full-term baby that had not arrived at the hospital with her.
One of the officers who responded to the doctor's notification testified that several police and fire department personnel were dispatched to the Robat home in order to locate the newborn. That officer, a patrolman in the North Providence Police Department, testified that, upon searching the laundry room, he moved a laundry basket that was in front of the clothes dryer and he then found a bag that was located under a raised platform upon which the clothes dryer sat. The patrolman testified that he observed that the bag "appeared to have some blood" on the exterior and that he then notified his supervisor, Sergeant Kristian Calise.
Sergeant Calise testified that, upon "grabbing the bag," he immediately observed that "it was a baby inside" of the bag. He further testified that he could "tell there were liquids" inside the bag. Sergeant Calise further testified that, once
Three experts testified at trial: Thomas Gilson, M.D., on behalf of the prosecution and Jonathan Arden, M.D. and Dave E. David, M.D., on behalf of the defense.
Doctor Thomas Gilson testified as an expert in the field of forensic pathology. Doctor Gilson testified that, on October 30, 2006, he was the Chief Medical Examiner in Rhode Island and that, as part of his duties, he went to the Robat residence in order to investigate the fact that a baby had been found "wrapped in plastic bags in the basement of the residence." Doctor Gilson testified that, upon his arrival at the Robat home, he proceeded to the laundry room, where he saw two plastic bags, one inside the other; he stated that the inner bag contained a "female infant who looked about term." He further testified that the infant "had some fluid covering her head [as] would be seen in the birth process." Doctor Gilson stated that he also noticed that the placenta had been placed in the outer bag and that the umbilical cord looked "like it had been torn, not sharply cut."
Doctor Gilson testified that he had the dead infant transported to his office, where an autopsy was performed the following morning by Peter Gillespie, M.D., an assistant medical examiner.
Doctor Gilson stated that the baby weighed just under seven pounds and was twenty inches in length. Doctor Gilson further testified that, during the external examination, he did not observe any injuries to the baby and that there were not any "birth defects or abnormalities;" he stated: "She looked like a [full-]term baby, healthy, no signs of injury or disease."
Doctor Gilson further stated that the x-rays of the baby revealed that the lungs were dark, "which [was] consistent with aeration, air being in the lungs." In elaborating on the term "aeration," Dr. Gilson stated that that term meant that "air has been introduced into the lung tissue. Breathing." He further stated that "there was air also in the stomach of the infant."
Doctor Gilson further testified that, during the examination of the infant, "two small quarter-inch bruises" were observed "on the left side of her head." He stated
Doctor Gilson next testified that Dr. Gillespie had examined the lungs of the infant — an examination which was partially carried out in the presence of Dr. Gilson. Doctor Gilson testified that, after performing several tests and examinations of the lungs, the conclusion was that the baby "was breathing after birth;" he later stated that the baby "should have been able to continue [breathing]." However, he was not able to offer an opinion as to how many breaths were actually taken by the baby.
Doctor Gilson also testified regarding the results of the examination of the placenta. He stated that a microscopic examination of the fetal side of the placenta revealed "some staining;" he specified that the staining was a substance called meconium.
Doctor Gilson further testified that, when inhaled by an infant, meconium is "very irritating to the lungs" and can cause the death of the child when so inhaled. He stated, however, that there was no evidence that defendant's infant had inhaled meconium.
Doctor Gilson further testified that there was "a small focus of inflammation" in the placental membrane that "would have [been] wrapped around the [infant];" he stated that the likely cause of the inflammation was that it was "where the membrane tore and the body responded." He testified that the inflammation would not have caused the death of the infant and that it was a "normal part of the birthing process for the membrane to break."
With respect to the maternal side of the placenta, Dr. Gilson testified that there was a small amount of blood clot attached thereto — a phenomenon that he stated was "normal in the birthing process." He stated that there was nothing in the finding of the blood clot that "would explain why the baby died." He further testified that there was no evidence of placental abruption
In partial summary, Dr. Gilson testified that no defect, life-threatening injuries, or disease had been found in the infant and that, in his opinion, the baby was born alive and was viable; he explained the term "viable" as meaning "capable of living by [herself]." Doctor Gilson further testified that he agreed with the cause of death that Dr. Gillespie had recorded on the death certificate — viz., "asphyxiation due to exposure, and failure to provide or obtain basic neonatal resuscitation." With respect to the reference to "asphyxiation due to exposure," Dr. Gilson testified as follows:
With respect to the "failure to provide or obtain basic neonatal resuscitation" language in the death certificate, Dr. Gilson testified that that phrase refers to "things like calling 911, going to a hospital, wrapping the infant in blankets or something to keep it warm." Doctor Gilson summarized his explanation of the terms used in the death certificate by stating that "actions, either active or passive, resulted in the child not getting enough oxygen to her body." Later in his testimony, Doctor Gilson elaborated as follows:
Doctor Gilson testified that Dr. Gillespie's conclusion as to the manner of death, a conclusion with which Dr. Gilson agreed, was "homicide;" Dr. Gillespie explained that term as meaning that "the death was at the hands of another person." Doctor Gilson made the following statement as he concluded his testimony on direct examination:
Doctor Jonathan Arden testified on behalf of defendant as an expert in the field of forensic pathology. Doctor Arden testified that he became involved in the instant case in November of 2006 and that, at that time, he examined the remains of defendant's baby and the placenta; he stated that he also examined defendant's medical records, the final autopsy report, the testimony of Dr. Gillespie before the grand jury, and various materials maintained by the Medical Examiner's office (microscopic slides, x-ray films, photographs, and the like).
Doctor Arden testified that he performed an independent examination of the baby's lungs and that on that basis he concluded as follows:
Doctor Arden also testified as to his examination of the placenta; he testified that he observed "areas of blood clot adhere[d] to
In terms of the significance of that condition to the survival of the infant, Dr. Arden testified that, depending on the amount of the separation, it "could have no significant effect on the fetus whatsoever [or it could] very readily cause[] fetal death." Doctor Arden stated that, to him, it "look[ed] like a significant degree of blood clotting on the maternal surface [of the placenta], which is then consistent with a significant abruption of the placenta." Doctor Arden affirmed that, if the "degree of blood clot[s]" found on defendant's placenta was "found in the clinical setting of an abruption," that condition would be sufficient to cause fetal distress. With respect to the meconium found on the placenta, Dr. Arden testified that "finding meconium in a portion of the placenta is an indicator of some episode of fetal stress," but he added that the amount of meconium found in the instant case was "not sufficient in and of itself to be a cause or a mechanism of the death" of the infant.
Doctor Arden further testified that he had reviewed the autopsy report, including the conclusion regarding the manner of death, which was said to be homicide; Dr. Arden stated that, in his opinion, the "manner of death should have been certified as undetermined." He explained that he reached that conclusion because he thought that, in the instant case, one manner of death could not be said to have been a "far * * * more probable and supportable conclusion" than others.
Doctor Arden next testified that he would prefer to describe defendant's infant as having been "potentially viable," rather than "viable." Doctor Arden explained that an examination of the infant in isolation would support the conclusion that she was viable; he further testified, however, that "the viability of a newborn depends upon not only the inherent characteristics of that newborn, but also [upon] the circumstances of the fetal life in utero and the circumstances particularly of the birth." Doctor Arden proceeded to state that the presence of meconium on the placenta, defendant's severe vaginal bleeding, and the blood clots on the placenta "[gave him] reason to suspect and believe that there was an obstetric * * * complication [which injected] a different note into the question of viability." However, Dr. Arden did acknowledge on cross-examination that he was not diagnosing a placental abruption in this case. He also acknowledged that, when a baby is in severe distress, the placenta would "be obviously stained green," whereas in the instant case the meconium on the placenta was only observable through a microscopic analysis. He further acknowledged that "finding some blood clots in * * * association with the placenta" is typical in a normal delivery.
Doctor Arden offered as his final opinion on direct testimony that defendant's infant "did not demonstrate independent viability" in view of the "absence of * * * clear[-]cut indicators of prolonged independent survival." He further stated: "I think that tells us that this baby did not live very long, did not maintain independent viable existence." Doctor Arden added that, given the evidence that the baby had taken only "but [a] few breaths," he could not "arrive at the opinion that providing neonatal care would have, to a reasonable medical certainty, altered the outcome." However, on cross-examination, Dr. Arden acknowledged that the infant manifested no signs of disease, no abnormalities,
Doctor Dave E. David was the second expert to testify on behalf of the defense. Doctor David was qualified at trial as an expert in the area of obstetrics and gynecology. He testified that he became involved in the instant case a few months prior to trial and that he had reviewed the records compiled by the EMTs and by the hospitals where defendant was treated, the minutes of the grand jury, the pathology report concerning the infant and the placenta, an expert report from Dr. Arden, and numerous photographs.
After testifying as to his observations based upon his review of the above-listed materials, Dr. David stated that it was his opinion that there had been a placental abruption during the course of the delivery of defendant's infant. He further testified that it was his opinion that the consequence of the placental abruption in the instant case was that it was "very likely that, um, that caused, um, [the] death of the baby." Doctor David also stated that, in his opinion, taking steps to provide neonatal care to the infant "couldn't ensure" the baby's survival. On cross-examination, however, Dr. David acknowledged that the infant had been born alive and had taken breaths. He further acknowledged on cross-examination that he had read the medical reports from the three doctors who had examined and treated defendant at the hospitals where she was treated after the birth and that none of their diagnoses had indicated a placental abruption.
At trial, defendant took the stand in her own defense. She testified that she had taken a pregnancy test on April 2, 2006
With respect to the events of October 29, 2006, defendant testified in detail as to her activities on that day. She stated that the first sensation of pain that she experienced was at night at her parents' home. She testified that she felt a "sharp pain cramp" in her stomach and then went to the upstairs bathroom. She stated that she remembered "go[ing] to the bathroom" and "seeing blood," which she then flushed down the toilet. The defendant testified that the cramp was strong and that she then crouched over the toilet. She testified that the next thing that she remembered was that she fell down and hit her head.
The defendant next testified that, after that point in time, she did not remember much. She did testify, however, that she "remember[ed] the bathtub" and her sisters having put her into the bathtub. The defendant testified that she also remembered that, at some point, she was in the hallway, where she fell. She then recalled that "[s]omebody was slapping [her] face." The defendant denied having any memory
The defendant testified that her next memory about her hospitalization was that of seeing her father and her sisters. She stated, however, that she did not recall telling Marie that she had had a baby, that it was dead, and that it had looked purple. The defendant testified that she did not remember having a baby and that she did not kill her infant. She further testified that, if she were going to have a baby, she would not fear telling her parents about it. Ultimately, defendant denied ever seeing a baby; when asked if she had put the baby in the bags in which the baby was found, defendant replied: "I don't think so."
On April 15, 2009, after the close of all of the evidence, the trial justice heard arguments on defendant's motion for a judgment of acquittal;
On April 17, 2009, the jury found defendant guilty of second-degree murder. On April 24, 2009, defendant filed a motion for a new trial, which motion was denied by the trial justice. The trial justice subsequently sentenced defendant to forty-five years imprisonment, with twenty-five years to serve and twenty years suspended with twenty years of probation. The judgment of conviction and commitment subsequently entered. Thereafter, defendant timely appealed.
The analytical process that should be followed when a trial justice considers a motion for a new trial is well established in this jurisdiction. See State v. Cerda, 957 A.2d 382, 385 (R.I.2008). In dealing with such a motion, "the trial justice acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence." State v. Guerra, 12 A.3d 759, 765 (R.I.2011) (internal quotation marks omitted); see also State v. Karngar, 29 A.3d 1232,
If, after carrying out that three-step process, "the trial justice concludes that reasonable minds could differ as to the result or if the trial justice reaches the same conclusion as the jury did, the verdict should be affirmed and the motion for a new trial denied." State v. Texieira, 944 A.2d 132, 140 (R.I.2008); see also State v. Cipriano, 21 A.3d 408, 429 (R.I.2011); State v. Cardona, 969 A.2d 667, 672 (R.I. 2009); Cerda, 957 A.2d at 385.
However, if the trial justice "does not agree with the jury verdict or does not agree that reasonable minds could differ as to the proper disposition of the case," he or she must undertake a fourth analytical step. State v. DeOliveira, 972 A.2d 653, 665 (R.I.2009); see also Guerra, 12 A.3d at 765; State v. DiCarlo, 987 A.2d 867, 870 (R.I.2010); State v. Rivera, 839 A.2d 497, 503 (R.I.2003). At that fourth step, the trial justice is required to determine "whether the verdict is against the fair preponderance of the evidence and fails to do substantial justice." DeOliveira, 972 A.2d at 665. Then, "[i]f the trial justice so determines, * * * a new trial should be ordered." Id. (citing State v. Luanglath, 749 A.2d 1, 4 (R.I.2000)).
On appeal, this Court accords "great weight to a trial justice's ruling on a motion for a new trial if he or she has articulated sufficient reasoning in support of the ruling." State v. Navarro, 33 A.3d 147, 156 (R.I.2011) (internal quotation marks omitted); see also Texieira, 944 A.2d at 140-41. Accordingly, the record "should reflect a few sentences of the justice's reasoning on each point." Guerra, 12 A.3d at 766 (internal quotation marks omitted); see also State v. Luanglath, 863 A.2d 631, 637 (R.I.2005); State v. Salvatore, 763 A.2d 985, 991 (R.I.2001). The trial justice "need not refer to all the evidence supporting the decision;" rather, he or she "need only cite evidence sufficient to allow this [C]ourt to discern whether the justice has applied the appropriate standards." Guerra, 12 A.3d at 766 (emphasis and alteration in original) (internal quotation marks omitted); see also DiCarlo, 987 A.2d at 870; State v. Banach, 648 A.2d 1363, 1367 (R.I.1994).
A trial justice's ruling on a motion for a new trial will not be overturned on appeal "unless we determine that the trial justice committed clear error or that he or she overlooked or misconceived material and relevant evidence [relating] to a critical issue in the case." Texieira, 944 A.2d at 141 (alteration in original) (internal quotation marks omitted); see also Pineda, 13 A.3d at 641; State v. Scanlon, 982 A.2d 1268, 1279 (R.I.2009); DeOliveira, 972 A.2d at 665; State v. Bergevine, 942 A.2d 974, 981 (R.I.2008). This Court is deferential to the trial court in this context "because a trial justice, being present during all phases of the trial, is in an especially good position to evaluate the facts and to judge the credibility of the witnesses." Guerra, 12 A.3d at 766 (internal quotation marks omitted); see also State v. Ferreira, 21 A.3d 355, 365 (R.I.2011); Texieira, 944 A.2d at 141.
In undertaking a review of a trial justice's denial of a motion for a judgment
On appeal, defendant challenges the legal sufficiency of the evidence in support of her conviction for second-degree murder; specifically, defendant contends that "the evidence did not give rise to an inference, beyond a reasonable doubt, that [she] acted with malice." The defendant asserts that, therefore, the trial justice erred in denying her motion for a judgment of acquittal and her motion for a new trial.
We once again note that this Court (like the trial court), in dealing with a motion for a judgment of acquittal, must view the evidence in the light most favorable to the state. In light of that requirement, "prevailing on an acquittal motion is a heavier burden for a defendant" than is prevailing on a motion for a new trial. See Pineda, 13 A.3d at 640; see also Navarro, 33 A.3d at 156. Accordingly, in view of the fact that a defendant's burden is less onerous in the context of a motion for a new trial, when a defendant challenges the rulings of a trial justice with respect to the denial of both such motions, this Court will first undertake a review of the motion for a new trial. See Cardona, 969 A.2d at 672; see also Navarro, 33 A.3d at 156; Pineda, 13 A.3d at 640. In other words, "unless a defendant can show that the presented evidence failed to support his or her conviction upon the motion-for-a-new-trial standard, a defendant necessarily will be unable to establish [that] he or she was entitled to a judgment of acquittal." Pineda, 13 A.3d at 640; see also Navarro, 33 A.3d at 156; State v. Hesford, 900 A.2d 1194, 1200 (R.I.2006). For that reason, we shall now proceed to review the trial justice's ruling on the motion for a new trial. See Pineda, 13 A.3d at 640; Cardona, 969 A.2d at 672.
The defendant contends that, in light of the evidence presented at trial, the only reasonable inferences that could be drawn beyond a reasonable doubt were that she "gave birth to a living child who then died of asphyxiation due to [defendant's] lack of care." (The defendant notes in her brief to this Court that the "lack of care" to which she makes reference would constitute involuntary manslaughter "if it amounted to criminal negligence.") The defendant argues, however, that the state did not present sufficient evidence to permit the jury to reach the conclusion that she either (1) maliciously failed to provide care to her child or (2) took affirmative action to smother her child. On the basis of those alleged insufficiencies of the evidence,
The crime of murder existed at common law, but the delineation of murder into degrees was effectuated by the General Assembly in its codification of the crime. See State v. Gillespie, 960 A.2d 969, 975 (R.I.2008); see also State v. Delestre, 35 A.3d 886, 900 & n. 15 (R.I.2012); State v. Mattatall, 603 A.2d 1098, 1105-06 (R.I. 1992); State v. Iovino, 554 A.2d 1037, 1039 (R.I.1989). See generally § 11-23-1. Murder is defined in § 11-23-1 as "[t]he unlawful killing of a human being with malice aforethought * * *." Pursuant to that section, first-degree murder is "[e]very murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing" or any murder committed during the commission of certain enumerated felonies. Section 11-23-1; see also Delestre, 35 A.3d at 900; Texieira, 944 A.2d at 142 n. 12.
The just-cited section of the General Laws goes on to define second-degree murder as any murder other than first-degree murder. See § 11-23-1. On the basis of that statutory definition, we have stated that second-degree murder is "any killing of a human being committed with malice aforethought that is not defined by the statute as first-degree murder." State v. Parkhurst, 706 A.2d 412, 421 (R.I.1998); see also Delestre, 35 A.3d at 900; Gillespie, 960 A.2d at 975.
Malice aforethought has been defined as "an unjustified disregard for the possibility of death or great bodily harm and an extreme indifference to the sanctity of human life." Texieira, 944 A.2d at 142 (internal quotation marks omitted); see also Delestre, 35 A.3d at 900 n. 16; Gillespie, 960 A.2d at 975; Mattatall, 603 A.2d at 1106. Malice aforethought arises from either "an express intent to kill or to inflict great bodily harm or from a hardness of the heart, cruelty, wickedness of disposition, recklessness of consequence, and a mind dispassionate of social duty." Texieira, 944 A.2d at 142 (internal quotation marks omitted); see also Delestre, 35 A.3d at 900 n. 16; Gillespie, 960 A.2d at 975-76.
This Court has recognized three possible "theories of second-degree murder, each grounded in a different aspect of malice aforethought." Gillespie, 960 A.2d at 976; see also Delestre, 35 A.3d at 900 n. 17; Parkhurst, 706 A.2d at 421; Iovino, 554 A.2d at 1039 ("Under the common law, Rhode Island has adopted three means by which the malice aforethought necessary to convict a defendant of second-degree murder can be established."). The first theory "involves those killings in which the defendant formed a momentary intent to kill contemporaneous with the homicide." Gillespie, 960 A.2d at 976; see also Delestre, 35 A.3d at 900 n. 17. The second theory "includes felony murder for inherently dangerous felonies that are not expressly listed within the statutory definition of first-degree murder." Gillespie, 960 A.2d at 976; see also Delestre, 35 A.3d at 900 n. 17; Iovino, 554 A.2d at 1039. The third theory of second-degree murder involves "those killings in which the defendant killed with wanton recklessness or conscious disregard for the possibility of death or of great bodily harm." Delestre, 35 A.3d at 900 n. 17 (internal quotation marks omitted); see also Gillespie, 960 A.2d at 976; Iovino, 554 A.2d at 1039.
Accordingly, for a conviction of second-degree murder to be upheld, the prosecution must prove, beyond a reasonable doubt, that the defendant acted with malice aforethought; and, in attempting to so prove, the prosecution may rely on any of the three above-listed theories. See
The defendant first challenges the evidence presented at trial by directing our attention to the holdings in In re Derek, 448 A.2d 765 (R.I.1982), and in State v. Dame, 560 A.2d 330 (R.I.1989); on the basis of those cases, defendant argues that the jury's conclusion that she acted with malice was based upon an improper pyramiding of inferences.
It is well established in the jurisprudence of this Court that "we do not distinguish between the probative value of circumstantial and direct evidence." State v. Patel, 949 A.2d 401, 414 (R.I.2008); see also State v. Vargas, 21 A.3d 347, 353 (R.I.2011); State v. Hornoff, 760 A.2d 927, 931 (R.I.2000); Mattatall, 603 A.2d at 1106. Indeed, the prosecution may rely entirely on circumstantial evidence "without disproving every possible speculation or inference of innocence as long as the totality of the circumstantial evidence offered constitutes proof of guilt beyond a reasonable doubt." State v. Caruolo, 524 A.2d 575, 581 (R.I.1987); see United States v. Rodriguez-Durán, 507 F.3d 749, 758 (1st Cir.2007) ("The government need not succeed in eliminating every possible theory consistent with the defendant's innocence and circumstantial evidence alone may be sufficient to provide a basis for conviction." (citations and internal quotation marks omitted)); see also State v. Lyons, 924 A.2d 756, 765 (R.I.2007); Mattatall, 603 A.2d at 1106; Dame, 560 A.2d at 334; In re Derek, 448 A.2d at 768.
It is axiomatic that "[i]nferences and presumptions are a staple of our adversary system of factfinding." County Court of Ulster County, New York v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); see also State v. Stone, 924 A.2d 773, 783 (R.I.2007); State v. Ventre, 910 A.2d 190, 198 n. 5 (R.I.2006). From that axiom, it follows that the state may prove the guilt of a defendant "by a
With respect to inferences, we have stated that, when "the initial inference in the pyramid [of inferences] rests upon an ambiguous fact that is equally capable of supporting other reasonable inferences clearly inconsistent with guilt, [the] pyramiding of inferences * * * becomes speculative * * * and thus insufficient to prove guilt beyond a reasonable doubt." Vargas, 21 A.3d at 353 (omissions in original) (emphasis added) (internal quotation marks omitted); see In re Derek, 448 A.2d at 768 ("[A]n inference resting on an inference drawn from established facts must be rejected as being without probative force where the facts from which it is drawn are susceptible of another reasonable inference." (internal quotation marks omitted)); see also State v. Sivo, 925 A.2d 901, 910 (R.I.2007); Mattatall, 603 A.2d at 1107; Dame, 560 A.2d at 334; Caruolo, 524 A.2d at 582.
The defendant in the case before us takes issue with the ultimate inference in this case — namely, that she acted with malice aforethought with respect to the death of her daughter. What defendant fails to identify, however, is any ambiguity in the factual foundation upon which that ultimate inference rests. See Mattatall, 603 A.2d at 1107 (explaining that the fact that the victim was found in the defendant's home "shot in the head by a .357 magnum" was "certainly * * * not an ambiguous fact that [was] capable of supporting other reasonable inferences clearly inconsistent with guilt"). To the contrary, defendant appears to admit, as the medical experts concluded, that her child was born alive and that it died while in her care; she focuses her attention on what she asserts is a lack of evidence of malice on her part. See id. at 1106 (stating that "[m]alice may consist of an unjustified disregard for the possibility of death or great bodily harm and an extreme indifference to the sanctity of human life").
The defendant contends that the reasoning in In re Derek, 448 A.2d 765 (R.I.1982), supports her argument. In our judgment, however, In re Derek is readily distinguishable from the case at hand. In In re Derek, 448 A.2d at 768, the Court concluded that neither of the inferences which were necessary in order to find the defendant guilty of the crime charged were "exclusive;" and, therefore, since the facts did not "inevitably" lead to those inferences, no further inferences could properly be drawn from those primary inferences. Ultimately, the Court held that, although the evidence "raise[d] a suspicion" that the defendant committed the crime, "[p]roof based on conjecture and speculation does not support a criminal conviction." Id. at 768-69; see also Dame, 560 A.2d at 335 (holding that, although testimony showed that the defendant gave a false statement to the police regarding the description of the fire in question, that fact did not lead to the inevitable conclusion that the defendant intentionally set the fire).
The trial justice expressly rejected the testimony of Dr. David, defendant's other expert witness, stating that "[i]t is little wonder that these jurors plainly rejected Dr. David's opinions, and, from my vantage point as a front-row observer, they were entirely justified in doing so."
The trial justice concluded his review of the expert testimony by stating that he was "well-satisfied that the credible medical evidence demonstrated beyond any doubt that this child was born alive."
The trial justice next reviewed the evidence to determine whether defendant was "criminally responsible for the infant's death." The trial justice first observed that that determination "ineluctably turned on the credibility of the defendant."
The trial justice then proceeded to review the evidence in the record which pointed to defendant's criminal responsibility for the infant's death. He first found that defendant gave birth to a healthy and fully developed infant, who at birth was breathing on her own. The trial justice also found that defendant had refused access to her sister
The trial justice then went on to review the evidence in the record that would support a finding of malice aforethought as would be required for a conviction of second-degree murder to be sustainable. He began by again referencing the testimony of defendant, and he found that "[t]he jury would have been well-justified in finding that the professed failure of memory at trial was a lie." He continued by reviewing the testimony of the treating doctors, and he made note of their statements that defendant was alert and oriented during her treatment. He also made reference to defendant's acts of concealment — including "[r]efusing her sister[s] access to the bathroom;"
The trial justice concluded his assessment with the following statement:
The trial justice determined that, "[a]t best, the defendant may be able to argue that reasonable minds could differ." The trial justice further stated as follows:
The trial justice thereafter denied defendant's motion for a new trial.
After examining the record, it is clear to us that, in addressing defendant's motion for a new trial, the trial justice properly weighed the evidence and assessed the credibility of the witnesses. Moreover, after scrutinizing the facts summarized above, it is our judgment that the trial justice did not overlook or misconceive material evidence relating to a critical issue, nor did he commit clear error. See Mattatall, 603 A.2d at 1109. Indeed, it is manifest from our review of the record that the
Therefore, in view of the trial justice's findings, the established circumstantial facts concerning the birth of defendant's child are as follows: that the infant was born alive and healthy and that the infant died while she was in the care of defendant. Those underlying facts lead to a single inference — that defendant's action or inaction resulted in the death of her infant. The question that remains is whether the state provided legally sufficient evidence to prove beyond a reasonable doubt that that action or inaction by defendant was carried out with an "unjustified disregard for the possibility of death or great bodily harm and an extreme indifference to the sanctity of human life." See Texieira, 944 A.2d at 142.
One need only review the additional circumstantial evidence to conclude that such an inference was not only permissible in the instant case, but indeed was also inevitable. See In re Derek, 448 A.2d at 766-68. The state's evidence, as found by the trial justice, established: (1) that defendant never sought medical attention for her baby; (2) that she expressly turned her sisters away while she was in the bathroom where she gave birth; (3) that she hid the body of her infant; (4) that she protested when her family sought medical attention for her; and (5) that she vehemently and mendaciously rebuffed the suspicions of her treating physicians to the effect that she had given birth or had seen a baby. In addition, defendant never once attempted to seek medical advice or treatment after she became aware that she was pregnant. The entirety of the evidence, which can properly be viewed as reflective of "purposeful and deliberate conduct in an attempt to conceal the true facts," Mattatall, 603 A.2d at 1108, leads ineluctably to the conclusion that defendant acted, with respect to the life of her child, with "an unjustified disregard for the possibility of death or great bodily harm and an extreme indifference to the sanctity of human life."
It is important to draw a distinction between second-degree murder and involuntary manslaughter because defendant's argument that the evidence at trial was insufficient to warrant a conviction for second-degree murder necessarily invites the question as to whether the evidence warranted a conviction only for involuntary manslaughter, which is a lesser included offense.
In the instant case, it is clear that the evidence produced at trial established that defendant's actions were far more egregious than those that have been held sufficient to warrant a conviction for involuntary manslaughter. The defendant, at the time of her pregnancy and the birth of her newborn infant, was thirty years old. It appears self-evident to us that a reasonable thirty-year-old person would understand and expect that the deliberate failure to obtain medical attention for a newborn infant would lead to that newborn's death or serious injury. Furthermore, defendant owed a duty of care to her newborn infant because a special relationship exists between a parent and his or her child such that a duty to care for the child on the part of the parent is manifest, and the jury was so instructed (see footnote 22, supra). See State v. McLaughlin, 621 A.2d 170, 175 (R.I.1993) (expressly recognizing the parent-child relationship as constituting an exception to the rule that there is "no general duty of care imposed on a person to protect, render assistance, or to otherwise be responsible for another's safety and welfare" and stating that a "parent may be guilty of criminal homicide for failure to call a doctor for his [or her] sick child" (internal quotation marks omitted)). If the failure to act in the face of such a duty results in the death of the child and is accompanied by malice aforethought, then the parent may properly be found guilty of murder. See Dressier, Understanding Criminal Law § 31.05[A][2] at 477 ("Malice may also be evidenced by an omission, such as when a parent, out of indifference, fails to feed her infant for two weeks."); see also 2 Wayne R. LaFave, Substantive Criminal Law § 14.4(a) at 440, 441 (2d ed.2003) (stating that, with respect to the type of risks that will be adequate to show the "high degree of unjustifiable homicidal danger" required for certain second-degree murder convictions, "[a] very risky omission will suffice where there is a duty to act").
In the case at bar, as noted above, the state proved that defendant acted with malice aforethought (an unjustified disregard for the possibility of death or great bodily harm and an extreme indifference to the sanctity of human life).
The defendant further contends that, in reviewing her testimony at trial, the trial justice mistakenly relied upon certain language in this Court's opinion in Mattatall. Specifically, defendant argues that the trial justice incorrectly reasoned that, because defendant's testimony was not credible, the jury could reasonably infer that the state had proven its case. As previously noted, the trial justice in the instant case quoted certain language from the Mattatall opinion as articulating the principle that, by testifying, defendant ran the risk that, if her testimony were disbelieved, the finder of fact could conclude that the opposite of her testimony was actually the truth — provided that there existed some other evidence to support a finding of guilt. See Mattatall, 603 A.2d at 1109.
Lastly, defendant primarily relies upon Vaughan v. Commonwealth, 7 Va.App. 665, 376 S.E.2d 801 (1989), to contend that, "[b]ased upon factual scenarios that were very similar to this case, other courts have held that the evidence was not sufficient to support a conviction for intentional malicious
Accordingly, "we are satisfied that the evidence and testimony were sufficient to support a jury finding that defendant possessed the legal malice necessary to sustain [her] conviction of second-degree murder." Mattatall, 603 A.2d at 1109. The trial justice pointed to "ample evidence" in denying defendant's motion for a new trial. See id. We hold that the trial justice did not err in denying defendant's motion for a new trial; and, in fact, we agree with his decision. For these reasons, we will not disturb that decision. See Scanlon, 982 A.2d at 1279.
Due to our conclusion that the evidence presented in this case was sufficient to enable us to sustain the denial of defendant's motion for a new trial, it follows a fortiori that "the evidence was also sufficient to withstand a motion for a judgment of acquittal." See State v. Otero, 788 A.2d 469, 475 (R.I.2002) ("[T]he standard applied to a motion for judgment of acquittal requires less in the way of evidence than the standard applicable to a motion for a new trial." (internal quotation marks omitted)); see also Navarro, 33 A.3d at 158; Cardona, 969 A.2d at 674; Hesford, 900 A.2d at 1200. Thus, the trial justice correctly denied defendant's motion for a judgment of acquittal on the second-degree murder count. See Navarro, 33 A.3d at 158; see also Pineda, 13 A.3d at 642.
The defendant next contends that the trial justice erred in overruling defense counsel's objections to comments made by
As specified by defendant, the comments to which, in defendant's view, counsel's objections should have been sustained are as follows:
We begin by noting that defense counsel's objections to these statements were overruled; and, in our judgment, given the facts of this case, the challenged statements did not constitute improper comments.
We would further comment that, although defense counsel did timely object to the above-quoted statements, he failed either to move to pass the case
This Court will look beyond a failure to comply with that procedural requirement and will deem there to be present an exception to the raise or waive rule "if such a request would [have been] futile, or [if] any attempt to cure the prejudice would have been ineffective * * *." Monteiro, 924 A.2d at 792; see also Horton, 871 A.2d at 964. Similarly, despite a party's failure to do more than voice an objection, this Court has stated as follows with respect to when we will reach such an argument:
The defendant does not argue that a request for a cautionary instruction would have been futile,
For the reasons set forth in this opinion, we affirm the judgment of conviction. The record in this case may be returned to the Superior Court.
Justice FLAHERTY, dissenting.
I respectfully dissent from the holding of the majority in this case. I do agree, however, with the majority's cogent framing of the question before us: Whether the state produced legally sufficient evidence from which the jury could conclude beyond a reasonable doubt that the action or inaction of Julie Robat that caused her child's death was perpetrated with malice aforethought? The facts of this case are beyond tragic; they are the stuff of nightmares. Nevertheless, after a searching review of the record and the applicable law, I have concluded that there is but one, unequivocal answer to that question under the law of this state: No.
In my opinion, the trial justice erred when he denied defendant's motion for a new trial because he misconceived both the evidence and our state's law with respect to the critical issue of whether defendant acted with malice aforethought. It is also my opinion that the trial justice erred when he denied defendant's motion for judgment of acquittal based on substantially the same errors of law; those errors subsequently tainted his ruling on defendant's motion for a new trial. For these reasons, it is my opinion that the defendant's conviction for second-degree murder should be vacated, and the matter should be remanded to the Superior Court for an entry of conviction for involuntary manslaughter and concomitant resentencing.
The majority lashes its holding to what it describes as the "ineluctable inference" that defendant acted with malice. In my opinion, the majority's interpretation and application of our law on the probative value of "pyramiding inferences" is a flawed contortion of this Court's precedent. It is wholly accepted that the state may rely solely on circumstantial evidence of guilt to sustain its burden of proof, so long as the totality of the circumstantial evidence constitutes proof beyond a reasonable doubt. In re Derek, 448 A.2d 765, 768 (R.I.1982) (citing State v. Proulx, 419 A.2d 835, 841 (R.I.1980); State v. Roddy, 401 A.2d 23, 35 (R.I.1979)); see also State v. Dame, 560 A.2d 330, 334 (R.I.1989). It is equally true that "the state may prove guilt from an established circumstantial fact through a series of inferences" in "a process of logical deduction." Dame, 560 A.2d at 334 (citing State v. Caruolo, 524 A.2d 575, 581-82 (R.I.1987)). "If this pyramiding
This Court firmly has delineated when a "pyramid of inferences" stretches so far beyond its factual foundation that it becomes legally, and logically, unsupportable. As Chief Justice Bevilacqua wrote in State v. von Bulow, 475 A.2d 995 (R.I.1984):
"In this way the ultimate inference rests upon a foundation that logically has the probative force of established fact; were it otherwise, the ultimate conclusion * * * would rest on no more than conjecture and surmise." von Bulow, 475 A.2d at 1023 (quoting Carnevale v. Smith, 122 R.I. 218, 225, 404 A.2d 836, 841 (1979)). Put another way, if a chain or pyramid of inferences begins with an ambiguous fact — that is, an established fact that is "capable of supporting other reasonable inferences clearly inconsistent with guilt" — then the probative force of the chain is broken, and the state has failed to demonstrate proof beyond a reasonable doubt. Caruolo, 524 A.2d at 582; see also State v. Vargas, 21 A.3d 347, 353 (R.I.2011); Alexander, 471 A.2d at 218; In re Derek, 448 A.2d at 768.
In my opinion, a review of the record shows that the pyramid of inferences built by the state, and relied upon by the majority, strains credulity and transgresses these salutary restraints. At trial, the state presented no direct evidence of malice; instead, it relied on circumstantial facts and a series of inferences surrounding the established fact that defendant's child was born alive and died while in her care.
The In re Derek line of cases militates against the stacking of further inferences because the established fact — that defendant's baby was born alive — is susceptible to another reasonable inference inconsistent with guilt. See Vargas, 21 A.3d at 353; Caruolo, 524 A.2d at 582; In re Derek,
The majority's attempt to distinguish In re Derek is, in my opinion, a hollow exercise. The test for determining whether a fact is "ambiguous" is whether it is susceptible to more than one reasonable inference inconsistent with guilt. See Vargas, 21 A.3d at 353; Caruolo, 524 A.2d at 581; In re Derek, 448 A.2d at 768. Our law does not require that the alternative inference be more likely or more probable; it requires only that it be "reasonable." The majority opines that because the trial justice concluded that "a jury would not have been unjustified" in finding malice, that not only does the law permit such an inference, but that it necessarily must be so. I respectfully disagree. There was ample evidence from which a juror reasonably could infer that defendant was incapacitated after she gave birth, and therefore she did not know the baby was born alive or was incapable of rendering aid. As the majority relates, there was little question that this was a traumatic delivery: The medical testimony reflected that this was a "precipitous birth" and an inordinately fast labor for a first-time mother. The record is replete with evidence of her copious blood loss: her sisters described that she was "white as a ghost" and that even her gums and tongue were white; defendant passed out, fell face-first onto the floor, and began to seize when her sisters put her in the bath tub; Dr. Kurl testified that defendant arrived at the hospital "soaked in blood" and that blood was pouring out of both sides of the gurney; she estimated the blood loss at two to three liters, which is nearly half of the human body's total blood volume.
The majority bolsters its untenable chain of inferences by reviewing evidence of the "surrounding circumstances" considered by the trial justice when he ruled on defendant's motion for a new trial. In my opinion, that evidence bears no rational relationship to the issue of malice. The majority improperly relies on evidence of "consciousness of guilt" that is only properly probative of the fact that defendant committed a "guilty deed." Furthermore, the majority emphasizes that the trial justice did not find defendant to be a credible witness, and was able to consider that conclusion as evidence of malice. In my opinion, the majority's conclusion results from a misapplication of our law on that issue.
The majority's reliance on the consciousness of guilt evidence introduced by the state is misplaced and vastly at odds with the weight of authority. The defendant's refusal to admit her sisters into the bathroom, her secreting of the baby's body, and the lies she told hospital staff about not being pregnant or giving birth give rise only to an inference that defendant knew she had done something that was illegal or shamefully immoral; it says nothing about whether she acted with malice. Our Court has not squarely considered whether so-called "consciousness of guilt" evidence has any bearing on a defendant's specific mental state. However, this issue has been addressed by numerous other authorities. See, e.g., Stafford v. People, 154 Colo. 113, 388 P.2d 774, 778 (1964); Commonwealth v. Lowe, 391 Mass. 97, 461 N.E.2d 192, 199 n. 6 (1984); State v. Steele, 190 N.C. 506, 130 S.E. 308, 312 (1925); 1A Wigmore, Evidence §§ 32, 173, 267, 276-78 (Tiller rev. ed.1983). These authorities, among others, unanimously conclude that inferences of malice, premeditation, or deliberation cannot be gleaned from evidence of subsequent concealment of evidence, lying, or other guilty conduct.
The Supreme Court of North Carolina's holding in Steele, 130 S.E. at 312, is representative: "Subsequent acts, including flight or hiding the body, or burning the bloody clothes and otherwise destroying traces of the crime are competent on the question of guilt." The North Carolina court, however, had no trouble also concluding that "[f]light is not evidence of premeditation and deliberation." Id. Similarly, the Massachusetts Supreme Judicial Court stated that evidence of the defendant's consciousness of guilt — that he did not call for help, that he fled and disposed of the death weapon, and that he made incriminating statements to police officers — "while relevant to the issue whether a criminal homicide was committed, is not evidence of malice aforethought." Lowe, 461 N.E.2d at 199 n. 6; accord Stafford, 388 P.2d at 778 ("The fact that the defendant buried the body, repeatedly lied concerning the disappearance of Blanche, went under an assumed name and, while awaiting trial, escaped from jail, was properly submitted to the jury as evidence of guilt * * * but the same does not serve to supply the missing element of malice."). The facts relied upon here by the trial
The majority also suggests that defendant's age and the fact the she did not prepare for the baby's birth are probative of malice. In my opinion, defendant's age, with no additional evidence of her specific knowledge or education about childbirth or her mental well-being, says nothing about her mental state. The gap between unreasonableness and malice is wide, and defendant's age cannot span it. I similarly believe that the majority's consideration of the civil duties of care imposed on parents and their children is not germane to this matter. Those duties serve to underscore the aberrant nature of defendant's actions, which I do not contest. However, they are irrelevant to the question presented.
Furthermore, if defendant's failure to prepare for the birth of her child constitutes malice, then the majority puts this Court in the precarious position of judging the sufficiency of every expectant mother's decisions about prenatal care. I see no intrinsic relationship between a mother's failure to prepare for the birth of her child and a murderous intent.
I fully concur in this analysis, which is based on facts that are closely analogous to the circumstances of this case. The fact that Ms. Robat is older than the defendant in Vaughan does not mean that she may not have felt the same shame, embarrassment, and fear as a result of her pregnancy, particularly when it was undisputed that she lived with her parents and she admitted that they espoused rather traditional, conservative values. Surely, the
I have been unable to find a similar case with so few established facts in which an appellate court has affirmed a conviction for a crime requiring malice aforethought. After reviewing the majority's comparators, I find them to be quite incongruous. For instance, in State v. Collins, 986 S.W.2d 13, 18 (Tenn.Crim.App.1998), the Court of Criminal Appeals of Tennessee affirmed a conviction for second-degree murder, which that state defines as the "knowing killing of another." Additionally, Tennessee law provides that "[a] parent who elects not to seek medical assistance for his infant child may be convicted of second degree murder where there is proof that the victim's `deterioration [is] evident and the need for medical attention [] apparent.'" Id. In that case, there was significant additional evidence of the defendant's "knowing" action that is absent here: the prosecution introduced evidence showing that her labor lasted several hours, during which she asked her roommates for towels as well as for a pair of scissors. See id. at 15. Additionally, the cause of death of the baby was drowning, not exposure, which drowning occurred in the bathroom's commode; the commode was found draped with a towel. See id. at 15-16. These circumstances, unlike those in this case, provided a factual platform for the primary inference that the defendant was not only consciously aware of everything that was going on, but arguably an active participant in the death of her child.
Goldsmith v. State, 344 So.2d 793 (Ala. Crim.App.1977), and State v. Wilding, 638 A.2d 519 (R.I.1994), are even more dissimilar. In Goldsmith, 344 So.2d at 794, the defendant admitted giving birth to a baby in a motel during the early morning hours. She then left the baby, which was born alive, on the motel room's bed until 1 P.M. the following day. Id. In her statement to police, she admitted that around that time she placed the baby in a paper bag, and then inside of a suitcase, and that she and her brother then drove to her mother's house. Id. There was testimony from the defendant's aunt that she could hear "something moving" and "whin[ing]" inside of the suitcase when they arrived at the house. Id. The suitcase was opened around 2 p.m., and the baby was discovered; several witnesses testified that the baby appeared to be alive, but was having difficulty breathing. Id. The baby subsequently died. Id. In Wilding, 638 A.2d at 519-20, an otherwise healthy infant was left in his father's care and subsequently discovered by his mother "hardly breathing and covered with black-and-blue marks." Id. at 520. The baby died "of severe external and internal traumatic injur[ies] to the head." Id. I cannot conceive of how cases like Goldsmith and Wilding support a similar outcome in this case; they are simply factually inapposite.
I also find fault with the majority's application of our law concerning the effect of the defendant's lack of credibility as a witness. I agree that State v. Mattatall, 603 A.2d 1098, 1109 (R.I.1992), stands for the proposition that if a defendant chooses to testify, then "he runs the very real risk that if disbelieved, the trier of fact may conclude that the opposite of his testimony
For the foregoing reasons, I cannot join in the majority's holding in this case with respect to the sufficiency of the evidence on the issue of malice.
