June 8, 2017


                                                           Supreme Court

                                                           No. 2015-267-C.A.
                                                           (N2/13-68A)



     State                            :

      v.                              :

 Kevin Corleto.                       :




        NOTICE: This opinion is subject to formal revision before
        publication in the Rhode Island Reporter. Readers are requested to
        notify the Opinion Analyst, Supreme Court of Rhode Island, 250
        Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
        3258 of any typographical or other formal errors in order that
        corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2015-267-C.A.
                                                                    (N2/13-68A)

            State                             :

             v.                               :

        Kevin Corleto.                        :


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

                                         OPINION


       Justice Robinson, for the Court. The defendant, Kevin Corleto, appeals from an order

of the Superior Court denying his motion to dismiss on double jeopardy grounds1 a criminal

information charging him with breaking and entering a dwelling, in violation of G.L. 1956 § 11-

8-2. Specifically, the defendant’s motion to dismiss was predicated on alleged prosecutorial

goading that resulted in the declaration of a mistrial. This case came before the Supreme Court

for oral argument on April 5, 2017, pursuant to an order directing the parties to appear and show

cause why the issues raised in this appeal should not be summarily decided. After a close review

of the record and careful consideration of the parties’ arguments (both written and oral), we are

satisfied that cause has not been shown and that this appeal may be decided at this time.

       For the reasons set forth below, we affirm the order of the Superior Court.




1
       This Court has held that the denial of a motion to dismiss on double jeopardy grounds is
immediately appealable, even though such an appeal is interlocutory. See State v. O’Connor,
936 A.2d 216, 217 (R.I. 2007); see also State v. Casas, 792 A.2d 737, 739 (R.I. 2002).
                                                  -1-
                                                I

                                       Facts and Travel
       On January 3, 2013, defendant was charged with for breaking and entering the dwelling

of one Elizabeth Murphy, in violation of § 11-8-2.2 His jury trial commenced on May 13, 2014.

       At trial, the state presented Ms. Murphy as its only witness. Ms. Murphy testified that

she then owned and had resided in a “one-family home” in Newport for the past seventy-three

years. She proceeded to testify that, on what she characterized as the “unforgettable” day of

September 22, 2012, at around 2:30 in the afternoon, she was working on her computer in the

den, which is located in the back portion of her house and outside of which is a deck. She stated

that, at some point during that afternoon, she “heard somebody climbing over the railing on the

deck.” Ms. Murphy testified that she looked out and saw dark brown hair on a person’s head—

which hair color “was about the same color” as that of her grandson; she added that, for that

reason, she “assumed” that the person was her grandson. Ms. Murphy stated that she went to the

back door “to give him the devil” for having climbed over the railing. She further testified that,

without “look[ing] out the curtain,” she then unlocked and opened the door. She added that she

noticed that “the screen door had already been opened” and that she saw defendant “crouched

down.” She said that he suddenly “jumped into the foyer” of her home. Ms. Murphy testified

that defendant held up both of his hands in the form of “two fists” and said: “I got medicine for

the lady next door.” (She noted that there was “nothing” actually in his hands at that time.) Ms.


2
        It bears noting that defendant was also charged with a similar count of breaking and
entering the dwelling of Sean Reilly (a neighbor of Ms. Murphy), also in violation of G.L. 1956
§ 11-8-2; however, that count was in due course dismissed by the trial justice. The defendant
was additionally charged with one count of disorderly conduct while in the dwelling of Mr.
Reilly, in violation of G.L. 1956 § 11-45-1, as to which defendant eventually entered a plea of
nolo contendere. Accordingly, for the purpose of the present appeal, we are concerned solely
with the count referenced in the text—viz., breaking and entering into the dwelling of Ms.
Murphy, in violation of § 11-8-2.
                                               -2-
Murphy testified that, at that juncture, she told defendant that “the lady next door,” who

happened to have been her sister-in-law, “had gone back to Georgia.” She added that, in reaction

to that revelation by her, defendant “looked at [her] and he said ‘Fuck. Oh, fuck.’” She replied,

“Watch the language,” but defendant “looked right at [her]” and responded: “‘Fuck you.’” Ms.

Murphy stated that she thereafter “shoved [defendant] out the door” with “[t]wo hands.” And

she said that, as a result, “[h]e went back and he hit the screen door * * * and he fell out the

step.” Ms. Murphy concluded her direct testimony by stating that, about fifteen minutes after the

just-described incident, her son arrived, to whom she related what had happened—resulting in

his advising her to call the police.

        During the course of cross-examination, defense counsel pointed out several details in

Ms. Murphy’s testimony that had been omitted from her two prior witness statements to the

police (dated September 22, 2012 and November 25, 2012, respectively). Specifically, Ms.

Murphy conceded that, in those two prior statements, she never mentioned: “the screen door” or

that defendant was “crouched down” or that he had held “his hands out in close[d] fist[s].” Ms.

Murphy explained to the cross-examiner that, at the time she wrote her first statement, which

occurred on the day of the above-described incident, she was “very upset.”

        Before the presentation of closing arguments, the trial justice, outside the presence of the

jury, posed the following question to both the prosecutor and defense counsel: “Based upon their

assessment of the evidence, are the parties at a different place than they were at the beginning of

this trial, vis-à-vis a resolution, without having a jury verdict?” After the parties responded that

their respective positions remained the same, the trial justice engaged in the following dialogue

with both of them:

                “[THE COURT]: If my recollection is correct then, * * * the place
                where the defendant was was a willingness to plea to an amended

                                                -3-
              charge of trespassing, with a sentence, a recommendation for --
              hopefully a recommendation from the State of a sentence of home
              confinement for a time frame of 364 days.
              “[DEFENSE COUNSEL]: That’s correct, your Honor.
              “[THE COURT]: * * * [T]hat was what the defendant sought * * *
              before we commenced jury empanelment; am I correct?
              “[PROSECUTOR]: That is correct, your Honor.
              “[THE COURT]: But the State is still of the opinion that the
              evidence offered is sufficient to allow this jury to convict the
              defendant of the charge of breaking and entering?
              “[PROSECUTOR]: Yes, your Honor.”

       On May 15, 2014, in the course of her closing argument to the jury, the prosecutor made

the following comment: “There is no testimony, no evidence before us that explains why Mr.

Corleto was climbing over a back deck railing, somebody’s back yard.” Defense counsel

immediately objected and moved to pass the case.3 Counsel argued that the “comment * * *

seem[s] to suggest that because Mr. Corleto did not testify, did not explain or justify why he

leaped over the railing,” it constituted a “substantial abridgement of Mr. Corleto’s Fifth

Amendment privilege against self-incrimination.”4 In response, the prosecutor argued “that the

statement during the closing at issue was * * * relatively innocuous * * * [and was] not intended

to suggest that there must be evidence * * * as to why Mr. Corleto was climbing over a railing.”

The prosecutor added that her intention “was merely to point out that [defendant] was climbing




3
        “In Rhode Island, the terms ‘motion to pass the case’ and ‘motion for a mistrial’ are
synonymous.” O’Connor, 936 A.2d at 218 n.2; see also State v. Fortes, 922 A.2d 143, 148 n.3
(R.I. 2007); State v. Disla, 874 A.2d 190, 198 (R.I. 2005).
4
       We note that, in a commendable display of professionalism and candor, defense counsel
made the following comment in the course of his motion to pass the case: “I certainly am not
arguing to this Court that [the prosecutor] intentionally has tried to create this problem.
Sometimes it happens.” In view of that remark, we could arguably decide this case on the basis
of that concession. However, after due consideration, we deem it to be fairer and more
appropriate to base our decision on the objective findings made by the seasoned trial justice who
presided over this case.
                                               -4-
over the railing in furtherance of going to the back door of Mrs. Murphy’s house.” And the

prosecutor suggested that the statement at issue “could be cured with a cautionary instruction.”

        After listening to argument from the parties, the trial justice preliminarily observed that

the prosecutor’s comment during closing argument “was not directed specifically to the

defendant’s failure to take the stand;” he nonetheless ruled that the comment at issue “indirectly

address[ed] the defendant’s failure to take the witness stand.” He noted that, in the instant case,

only Ms. Murphy had testified; and he added that, notably, her “testimony [had] not [been]

attacked or impeached by the [d]efendant.” As such, the trial justice reasoned that “the only

person who could refute the evidence would be Mr. Corleto.” Eventually, he determined that a

curative instruction could not cure the “unintentional but unfortunate reference, obliquely, to the

defendant’s failure to testify.” And the trial justice then granted defendant’s motion to pass the

case.

        Over a month later, on June 20, 2014, defendant filed a motion to dismiss the information

on grounds of double jeopardy. A hearing on that motion was held on July 16, 2014, at which

the same trial justice reviewed the record and heard arguments from defense counsel and the

prosecutor. Then, in ruling on defendant’s motion, the trial justice first recalled his earlier

observation that the prosecutor’s comment was “unintentional but unfortunate.” He also opined

that “[t]he misconduct * * * did not occur when the case was unraveling.” The trial justice then

explained that his inquiry after trial and before closing arguments as to the parties’ “respective

positions” had not been “a suggestion” or “a hint,” but rather had been “an inquiry as to whether

or not the parties would be prepared or willing to resolve the matter without closing argument,

without instructions and without jury deliberations.” In addition, the trial justice expressly stated

his disagreement with defense counsel’s assertion that the state believed that its case had been



                                                -5-
unraveling; he reasoned that, if that had been true, “the [s]tate would have jumped at the

opportunity to amend the charge to a trespass” and “defendant would have been less likely * * *

to have stated his willingness to accept an amendment” to the charge. He also found that there

was no evidence demonstrating that, taking into account the extent of the experience of the

prosecutor, “she knew or should have known better that she was not permitted to make” such a

comment; he found “objectively” that the prosecutor’s experience had been “minimal.”

Ultimately, the trial justice ruled “as a matter of fact or a matter of law that the State’s actions in

making that unfortunate reference to there being no evidence was * * * not intended to goad the

defendant into seeking a mistrial;” and he denied defendant’s motion to dismiss. A timely notice

of appeal ensued.

                                                  II

                                        Standard of Review

       As this Court has stated on numerous occasions, “where a defendant has moved for a

mistrial and asserts on appeal that double jeopardy bars his retrial because of prosecutorial

goading, we defer to the trial court’s findings of fact.” State v. O’Connor, 936 A.2d 216, 220

(R.I. 2007); see State v. Hull, 754 A.2d 84, 87 (R.I. 2000); see also State v. Diaz, 521 A.2d 129,

133 (R.I. 1987); State v. Gordon, 508 A.2d 1339, 1346 (R.I. 1986). We note that “[a] trial

court’s finding as to ‘whether prosecutorial misconduct was intended to provoke the defendant

into seeking a mistrial is a factual question that is appropriately decided by the trial court.’”

O’Connor, 936 A.2d at 220 (quoting Diaz, 521 A.2d at 133); see also Oregon v. Kennedy, 456

U.S. 667, 675 (1982). It follows that, “[o]n appeal, we will not disturb the trial [justice]’s

finding on that factual issue if it is supported by competent evidence.” State v. Rolle, 84 A.3d

1149, 1154 (R.I. 2014) (internal quotation marks omitted); see O’Connor, 936 A.2d at 220.



                                                 -6-
                                                III

                                             Analysis

       On appeal to this Court, defendant contends that the Superior Court committed reversible

error when it declined to grant his motion to dismiss on double jeopardy grounds. In particular,

he avers that the state’s “egregious behavior” goaded him into requesting a mistrial, thereby

“implicat[ing] the Double Jeopardy clauses of the Fifth and Fourteenth Amendments to the

United States Constitution[] as well as Article I § 7 of the Rhode Island Constitution.” In stark

contrast, the state argues that the trial justice’s decision denying defendant’s motion to dismiss

was “supported by competent evidence [in the record] and should be affirmed.”

       Ordinarily, when a mistrial has been granted at a defendant’s behest, the prohibitions on

double jeopardy contained in the United States and Rhode Island Constitutions do not preclude

the retrial of that defendant’s criminal case. Rolle, 84 A.3d at 1154; State v. Casas, 792 A.2d

737, 739 (R.I. 2002). However, there is a narrow exception for those instances “[w]here a

prosecutor has engaged in extreme misconduct intended to provoke the defendant into moving to

pass the case.” Rolle, 84 A.3d at 1155; see Casas, 792 A.2d at 739; State v. Beltre, 764 A.2d

190, 191 (R.I. 2000) (mem.); State v. McIntyre, 671 A.2d 806, 807 (R.I. 1996). This Court has

continued to “steadfastly adhere[] to the rule announced in Oregon v. Kennedy, 456 U.S. 667,

676, * * * (1982), that a second trial is not forbidden unless the prosecutor’s conduct was

specifically intended to goad the defendant into moving for a mistrial.” Rolle, 84 A.3d at 1155;

see McIntyre, 671 A.2d at 807.

       It is well settled that “[t]o infer the existence or nonexistence of intentional goading,” the

trial justice must scrutinize “the objective facts and circumstances surrounding the prosecutor’s

misconduct.” Rolle, 84 A.3d at 1155. The pertinent factors in that context “include the timing



                                                -7-
of the misconduct, the experience of the prosecutor, and whether there was a legitimate reason

for the misconduct.” Id.; see O’Connor, 936 A.2d at 222-23 n.6.; Casas, 792 A.2d at 740;

McIntyre, 671 A.2d at 807. Especially relevant to the instant case is the principle that mere error

on the part of the prosecutor will not preclude retrial, even if “it may incite a mistrial.”

O’Connor, 936 A.2d at 222. We remain cognizant in this context of the importance of striking

“a careful balance between the right of a defendant to obtain a completion of his trial by the first

tribunal assembled to pass in judgment upon him and the societal interest in apprehending and

punishing those who are guilty of serious crimes.” Diaz, 521 A.2d at 133; see also Rolle, 84

A.3d at 1155.

       In the case at bar, it is our opinion that the trial justice did not err in determining that the

prosecutor did not goad defendant into moving for a mistrial. When the trial justice declared the

mistrial, he tersely expressed his view that the prosecutor’s comment during closing argument

was an “unintentional but unfortunate reference, obliquely, to the defendant’s failure to testify.”

It is noteworthy that he repeated that same observation several weeks later at the hearing on

defendant’s motion to dismiss the information on double jeopardy grounds. In denying that

motion, the trial justice set forth several findings, of which the following are particularly relevant

to the issue raised on appeal: the prosecutor’s “misconduct * * * did not occur when the case was

unraveling;” the experience of the prosecutor was “minimal;” and, notably, there was “no

evidence” in the record demonstrating that the prosecutor’s comment during closing argument

was intended “to goad defendant into seeking a mistrial.” It is clear to us that the trial justice’s

findings were amply supported by competent evidence. The trial justice considered all of the

arguments presented by the parties and “performed a balanced and conscientious analysis of the

objective facts and circumstances in” the case before him. Rolle, 84 A.3d at 1156. The record



                                                 -8-
supports the view that the prosecutor’s comment during closing argument was likely “the result

of a mistake”—and it must be borne in mind that “a prosecutorial mistake does not, in and of

itself, constitute goading.” O’Connor, 936 A.2d at 223. And, it should also be recalled that, with

respect to the issue of intentional goading vel non, “[t]his Court gives deference to the trial

court’s findings on this issue; the question of whether or not prosecutorial misconduct was

intended to provoke a defendant into moving for a mistrial is a factual question for the trial

court.” Id.; see also Rolle, 84 A.3d at 1154.

       After thoroughly reviewing the entire record, we perceive no basis for concluding that the

trial justice erred in determining that the prosecutor did not intentionally goad the defendant into

moving for a mistrial. “Because we, like the Superior Court [in the instant case], perceive no

evidence of intent on behalf of the prosecutor to goad [the defendant] into moving for a mistrial,

we affirm the order denying [his] motion to dismiss.” O’Connor, 936 A.2d at 223.

                                                IV

                                           Conclusion

       For the reasons set forth in this opinion, the defendant’s appeal is denied and dismissed.

The order appealed from is affirmed, and the papers in the case may be returned to the Superior

Court for further proceedings.




                                                -9-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Kevin Corleto.
                                     No. 2015-267-C.A.
Case Number
                                     (N2/13-68A)
Date Opinion Filed                   June 8, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson, III

Source of Appeal                     Newport County Superior Court

Judicial Officer From Lower Court    Associate Justice Edward C. Clifton
                                     For State:

                                     Lauren S. Zurier
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Gary G. Pelletier, Esq.
                                     Maria Caley, Esq.




SU-CMS-02A (revised June 2016)
