                                                                Supreme Court

                                                                No. 2015-257-M.P.
                                                                (PM 04-1896)
                                                                (Dissents begin on pages 2 & 5)


          Raymond D. Tempest, Jr.              :

                      v.                       :

           State of Rhode Island.              :


                                           ORDER

       Before this Court is the state’s petition to reargue pursuant to Article I, Rule 25 of the

Supreme Court Rules of Appellate Procedure. 1 The thrust of the state’s petition merely serves to

reiterate its position that the former prosecutor did not deliberately fail to disclose Carrier’s

March 1992 statements and disagrees with the majority that the statements were material under

Brady v. Maryland, 373 U.S. 83 (1963). However, the state fails to identify any issues that this

Court may have overlooked, nor does it identify any issues upon which this Court was either

legally or factually incorrect. Rather, as Tempest’s reply aptly points out, the state’s petition

essentially rehashes the arguments it previously made both in its written brief and at oral



1
  A review of this Court’s recent jurisprudence, spanning the last twenty years, reveals the
infrequency with which we grant reargument petitions. Indeed, the last time we granted
reargument was in 2004. See American Condominium Association, Inc. v. IDC, Inc., 870 A.2d
434 (R.I. 2005). “The purpose of reargument is to afford a petitioner an opportunity to point out
matters presented in the briefs and relied upon in the original argument which he believes were
overlooked or misapprehended by the appellate court in reviewing the case.” Id. at 436 (quoting
Brimbau v. Ausdale Equipment Rental Corp., 120 R.I. 670, 672, 389 A.2d 1254, 1255 (1978)).
The instant petition does not satisfy those criteria. Moreover, this case falls outside the narrow
parameters that might otherwise justify a grant of reargument: where this Court sits evenly
divided with four justices and a fifth member is later assigned to hear the case. See, e.g.,
Newport Court Club Associates v. Town Council of Middletown, 800 A.2d 405, 409 n.3 (R.I.
2002); Glaude by Stephenson v. Continental Insurance Co., 719 A.2d 856, 857 (R.I. 1998); State
v. Brown, 709 A.2d 465, 467 (R.I. 1998); Rocha v. State, 705 A.2d 965, 966 (R.I. 1998);
Hoffman v. McLaughlin Corp., 703 A.2d 1107, 1009 (R.I. 1997); Almacs, Inc. v. Porreca, 702
                                                -1-
argument.       Even the state’s own characterization of its grievance—that this Court

“misapprehended the force of [its] contention”—illustrates the petition’s shortcomings (emphasis

added).

          In all due respect to both dissents to this order, all of the arguments made by both parties

were thoroughly vetted by each member of this Court, as evidenced by the fact that this case

produced three separate (and extraordinarily thorough) opinions. The state presents no legal or

factual error committed by this Court warranting additional review. Simply put, the state just

disagrees with the majority’s conclusion.

          Given that the state does not point to any legal or factual errors in the majority’s opinion,

but rather merely attempts to rehash the arguments already considered by this Court in the

original appeal, the state’s petition to reargue this case is hereby denied. 2



          Chief Justice Suttell, dissenting. Although I concurred with the Court’s affirmance of

the Superior Court judgment vacating Raymond Tempest, Jr.’s conviction, I did so for reasons

other than those relied upon by the majority. For the reasons set forth in my separate opinion, I

believe that the Superior Court justice’s decision to vacate the conviction based upon the state’s

failure to disclose the pretrial statements of Donna Carrier was predicated upon an incomplete

analysis under the doctrine set forth in Brady v. Maryland, 373 U.S. 83 (1963) and Lerner v.

Moran, 542 A.2d 1089 (R.I. 1988). See Tempest v. State, 141 A.3d 677, 687-88 (R.I. 2016)

(Suttell, C.J., concurring in the result and dissenting in part).




A.2d 892, 893 (R.I. 1997); State v. Ballard, 699 A.2d 14, 15 (R.I. 1997); Holmes v. Begin, 684
A.2d 1141, 1144 (R.I. 1996).
2
  Indeed, there is nothing in the state’s petition (or Tempest’s reply) to suggest that, were this
case to be reargued by the parties and subsequently reexamined by this Court, the result would
be any different.
                                                -2-
       As neither the hearing justice nor the majority concluded that the prosecution’s failure to

disclose the statements was for the purpose of obstruction, the Court’s opinion seemingly stands

for the proposition that a defendant need show only “a considered decision to suppress” to be

entitled to a new trial. See State v. Wyche, 518 A.2d 907, 910 (R.I. 1986). This is a departure

from our long-standing jurisprudence and should be revisited. See id. (“The prosecution acts

deliberately when it makes ‘a considered decision to suppress * * * for the very purpose of

obstructing’ or where it fails ‘to disclose evidence whose high value to the defense could not

have escaped * * * [its] attention.’”) (quoting United States v. Keogh, 391 F.2d 138, 146-47 (2nd

Cir. 1968)).

       The Court’s opinion also rests upon the second prong of the deliberate nondisclosure

analysis, i.e., that the “high value” of the Carrier statements could not have escaped the

prosecution’s attention. In doing so, the majority, I believe, has overlooked or misapprehended

significant aspects of the record.    Most fundamentally, the majority reached its conclusion

notwithstanding the lack of any credibility determinations by the hearing justice with respect to

the testimony of the former prosecutor. Indeed, the hearing justice, having found (erroneously in

my view) the first prong to have been satisfied, never discussed the alternative high-value-of-the-

evidence predicate.

       The only statements in the hearing justice’s decision concerning this evidence that may

fairly be considered factual rulings are: (1) that the former prosecutor’s note, “too late, don’t

volunteer new info, will cause big problems,” constituted a considered decision to suppress; (2)

that “the protean nature of Ms. Carrier’s testimony was * * * necessarily harmful to the [s]tate’s

case”; and (3) that the former prosecutor “evidently sought to protect Ms. Carrier from additional

impeachment.” The use of the word “evidently” certainly suggests that the hearing justice was

not at all convinced of the high value of Carrier’s statements to the defense.


                                                -3-
       Be that as it may, the majority determined “that the ‘high value’ of Carrier’s new

statements to the defense could not have escaped the former prosecutor’s attention * * *.”

Tempest, 141 A.3d at 683.        This conclusion, in my judgment, overlooks the wealth of

impeachment evidence that was in the defendant’s possession at the time of trial.

       One of the statements at issue was Carrier’s assertion that, on the day of the murder,

Tempest’s children were excited about getting a puppy. At the time of the trial, however, the

defense was in possession of Carrier’s grand jury testimony that she had observed Tempest leave

her apartment building on the day of the murder to pick up a puppy. Significantly, it was

undisputed at the time of trial that Carrier was mistaken about what she had observed on the day

of the murder as Tempest had not yet moved into her apartment building. When placed in proper

context, therefore, I believe that the “high value” of Carrier’s statement concerning Tempest’s

children’s excitement could easily have escaped the prosecution’s attention. See Lerner, 542

A.2d at 1092 (“Such [high value] cases rarely present a problem as to ‘the degree of prejudice

which must be shown’; almost by definition the evidence is highly material.”) (quoting Keogh,

391 F.2d at 147).

       The majority also reasoned that Carrier’s statement that Tempest’s brother, Gordon

Tempest, hid the murder weapon in an effort to conceal it to protect his brother

“certainly could have been used by the defense to undermine her already shaky credibility.”

Tempest, 141 A.3d at 685. Thus, the majority concluded, the high value of her statement could

not have escaped the prosecution’s attention. This conclusion, however, overlooks the great

lengths Tempest went to at trial to exclude any evidence concerning his brother’s involvement in

the concealment or “cover up” of the murder. As this Court wrote in Tempest’s direct appeal

from conviction:

                  “The defendant next contends that the trial justice repeatedly
               erred by admitting evidence of an alleged ‘cover up’ of defendant’s

                                               -4-
               involvement in the crime by certain members of the Woonsocket
               police department and defendant’s relatives. According to
               defendant, this evidence was never connected to him, was only
               ‘negligibly relevant,’ and as such was extremely and unfairly
               prejudicial to him.” State v. Tempest, 651 A.2d 1198, 1213 (R.I.
               1995).

It can hardly be said that the high value of Carrier’s statement to the defense would have been

readily apparent.

       Accordingly, I would grant the state’s petition to reargue and urge the majority to

reconsider the Brady claim relating to the maroon car as a basis for affirming the Superior Court

judgment.



       Justice Goldberg, dissenting.       I also dissent in this case. I join the Chief Justice in

concluding that this decision is a radical departure from our settled jurisprudence regarding a

violation of the Brady doctrine and may very well constitute new law that this Court and the trial

bench will struggle with for many years to come. Rather than face up to the fact that the trial

justice wholly overlooked the second and critical factor in State v. Wyche, 518 A.2d 907, 910

(R.I. 1986) that the prosecutor’s nondisclosure must not only be deliberate, but must be found to

have been “‘for the purpose of obstructing,’” the majority persists in ignoring this legal error,

thus compounding the error such that the bench and bar are left wondering what is the law? Are

the factors set forth in Wyche still part of this state’s jurisprudence? If not, and the majority has

changed the law, the opinion should reflect this circumstance.

       As I articulated in my dissent in this case, in affirming the trial justice, the majority

impermissibly engaged in factfinding. The majority concluded that “the former prosecutor’s

own words—‘don’t volunteer’—indicate a considered decision not to offer the new information

to the defense.” Tempest v. State, 141 A.3d 677, 683 (R.I. 2016). Under Wyche, a prosecutor’s

considered decision to suppress must also be “for the very purpose of obstructing the defense.”

                                                -5-
Id. at 706 (Goldberg, J., dissenting) (citing Wyche, 518 A.2d at 910). This finding is absent from

the trial justice’s decision. The majority also went further and reached the alternative ground in

Wyche, concluding that “the ‘high value’ of Carrier’s new statements to the defense could not

have escaped the former prosecutor’s attention * * *.” Id. at 683. These findings were not

discussed by the trial justice, or the state, or Tempest. 1 This is remarkable departure from our

settled jurisprudence on many levels and is fraught with error. Not the least of which is the

“raise-or-waive” rule.

        This Court has had a long-standing and proud tradition of assuring that every person who

appears before us is provided with a full and fair opportunity to be heard on the issues upon

which the case is decided. The Attorney General himself has sought reargument in this Court,

and his petition should be granted so that the parties may be heard and because of the important

jurisprudential principle that is at stake in this case. This Court has consistently refused to hear

issues that were not previously litigated and has never decided a case on an issue that was not

addressed by the trial justice or the parties.

        The raise-or-waive rule mandates that “an issue that has not been raised and articulated

previously at trial is not properly preserved for appellate review.” State v. Gomez, 848 A.2d

221, 237 (R.I. 2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I. 1991)). We have been

steadfast in our insistence on adherence to the raise-or-waive rule, especially mandating that the

issue first be addressed by the trial justice, the judicial officer to whom this issue is entrusted.




1
   In his memorandum in opposition to the state’s petition for reargument, Tempest tacitly
acknowledges the additional factual findings of the majority and goes one step further:
attempting to bolster the majority’s factual determinations by citing evidence not relied on and
offering inferences not put forth by either the hearing justice or the majority. For example,
Tempest laboriously sets forth the reasons why the hearing justice was justified in disbelieving
the former prosecutor’s testimony about why the Carrier statements were disclosed. None of
these reasons was discussed by the hearing justice; more importantly, nowhere in the hearing
justice’s decision does he declare the former prosecutor to be not credible.
                                               -6-
This is “an important guarantor of fairness and efficiency.” See DeMarco v. Travelers Insurance

Co., 26 A.3d 585, 628 n.55 (R.I. 2011). It is lacking in this case.

       Our judicial system entrusts the role of factfinding to judicial officers in the trial courts;

litigants justifiably cannot be expected to anticipate that additional factual findings will be made

when their cases reach this Court. Indeed, our evidentiary rule on judicial notice demonstrates

why this situation is so troubling. Under Rule 201(b) of the Rhode Island Rules of Evidence, a

court can take judicial notice of a fact that is, among other requirements, “not subject to

reasonable dispute.” 2   Even for such indisputable facts, “[a] party is entitled * * * to an

opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter

noticed.” Rule 201(e). As the Advisory Committee Notes to Rule 201(e) of the Federal Rules of

Evidence explain, 3 “[b]asic considerations of procedural fairness demand [this] opportunity to be

heard * * *.” If an opportunity to be heard is mandated by basic considerations of fairness in the

context of judicial notice of indisputable facts, surely it is also required when an appellate court

makes an outcome-determinative finding. In my opinion, once the majority decided to make

factual findings in this case, it should have provided the state with an opportunity to be heard on

those findings. Cf. Lombardi v. City of Providence, 69 A.3d 846, 850 (R.I. 2013) (where this

Court, after oral argument, ordered the parties to file supplemental memoranda on a case-

dispositive issue not addressed by the parties in their original submissions).




2
 To be clear, judicial notice would not have been appropriate for the facts found by the majority
because both the former prosecutor’s purpose in not disclosing the Carrier statements and the
value of the Carrier statements to the defense are subject to reasonable dispute.
3
 Our rule on judicial notice is modeled after Rule 201 of the Federal Rules of Evidence. See
Rule 201 of the Rhode Island Rules of Evidence, Advisory Committee’s Note at 1014.
                                             -7-
       Additionally, in its petition for reargument, the state has articulated sound reasons—apart

from those mentioned in my dissent—demonstrating why reargument should be granted. For

example, in order to rebut the majority’s factual finding that the Carrier statement relating to

Gordon Tempest placing the pipe in the closet was of high value under Wyche, the state pointed

to the strenuous efforts of Tempest’s defense counsel, both before and during trial, to exclude

any evidence of a cover-up, including references to Brother Gordon. This circumstance—wholly

overlooked by the majority—tends to support the notion that defense counsel would not have

used this evidence at trial and, by extension, that the evidence does not meet Wyche’s high-value

prong, thus explaining why the trial justice’s decision did not rest on this prong of the Wyche

analysis.   The state should be given a full and fair opportunity—including additional oral

argument—to address the majority’s factual findings.

       Appellate courts of last resort wield an awesome power: the ability to adjudicate a

controversy in a definitive manner. Cf. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J.,

concurring in the result) (“We are not final because we are infallible, but we are infallible only

because we are final.”).    The safeguards of the judicial process ensure that, at the very least,

before we utter the final word, parties to a case are afforded a full and fair opportunity to apprise

this Court of its positions on the critical issues. In this case, the majority has insulated its

findings—and the final declaration that flows from them—from a critical component of our

judicial system.   Consequently, I would grant the state’s petition to reargue and urge my

colleagues to do so.

       Entered as an Order of this Court, this 10th day of November, 2016.

                                                      By Order,



                                                      ________________/s/__________________
                                                                     Clerk

                                                -8-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Raymond D. Tempest, Jr. v. State of Rhode Island.

CASE NO:            No. 2015-257-M.P.
                    (PM 04-1896)

COURT:              Supreme Court

DATE ORDER FILED:   November 10, 2016

JUSTICES:           Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Providence County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Daniel A. Procaccini

ATTORNEYS ON APPEAL:

                    For Plaintiff: Michael Kendall, Pro Hac Vice
                                   Lauren E. Jones , Esq.
                                   Matthew R. Turnell, Pro Hac Vice
                                   Katherine Dyson, Pro Hac Vice
                                   Betty Ann Waters, Esq.

                    For State: Aaron L. Weisman
                               Department of Attorney General
