                                                 Supreme Court

                                                 No. 2016-132-C.A.
                                                 No. 2017-400-C.A.
                                                 (P1/99-2303A)

     State                    :

      v.                      :

Jeffrey Murray.               :




NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
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                                                                  Supreme Court

                                                                  No. 2016-132-C.A.
                                                                  No. 2017-400-C.A.
                                                                  (P1/99-2303A)

                   State                      :

                     v.                       :

              Jeffrey Murray.                 :


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

                                         OPINION

       Justice Indeglia, for the Court. The defendant, Jeffrey Murray, appeals from both a

Superior Court judgment adjudicating him a probation violator and a Superior Court order

denying his motion to terminate imprisonment.1 These consolidated appeals came before the

Supreme Court pursuant to an order directing the parties to appear and show cause why the

issues raised in the appeals should not be summarily decided. After considering the parties’

written and oral submissions and reviewing the record, we conclude that cause has not been

shown and that the appeals may be decided without further briefing or argument. For the reasons

set forth herein, we affirm both the judgment and the order.




1
  Although a Rule 12A statement was filed on defendant’s behalf by the Rhode Island Office of
the Public Defender, defendant moved to proceed pro se, to which the public defender had no
objection. We granted that motion, and defendant thereafter filed a supplemental memorandum
and was heard on the show cause calendar pro se.


                                             -1-
                                                I

                                       Facts and Travel

                                                A

                                      Probation Violation

       On April 18, 2000, defendant pled guilty to one count of first-degree sexual assault, for

which he received a sentence of twenty years, with five years to serve and the remainder

suspended, with probation, and one count of assault with a dangerous weapon, for which he

received a ten-year suspended sentence, with probation, to be served concurrently.

Subsequently, defendant twice pled nolo contendere, in 2010 and 2012, to charges of failing to

register as a sex offender, for which he was also sentenced to terms of imprisonment and

probation.

       On July 8, 2015, the state filed a probation-violation report in the Newport County

Superior Court, pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure,

alleging that defendant had violated his probation in all three cases by failing to keep the peace

and be of good behavior. Specifically, the report indicated that defendant was “under an active

Newport Police investigation for the domestic strangulation, domestic kidnapping and domestic

[first] degree sexual assault of his girlfriend.”   The report noted that “[s]aid violation of

probation is not contingent upon any specific criminal offense.”

       At the probation-violation hearing held over four days in late 2015 and early 2016 before

a justice of the Superior Court, the complaining witness testified as to the events that allegedly

took place between June 26, 2015, and June 28, 2015, at defendant’s apartment on Elm Street in




                                             -2-
Newport.2    Her testimony included graphic details of sexual assault and strangulation that

followed her admission to defendant that she had been unfaithful to him while he had been

incarcerated. She testified that she feared being harmed and therefore remained at defendant’s

side all weekend. She explained that much of the time over that weekend was spent placating

defendant by staying with him, and that her ultimate plan was to notify the police when her

father picked her up on Sunday morning.

       Following the complaining witness’s testimony and the testimony of other witnesses

involved in the case, including her father and the investigating police officers, as well as the

admission of numerous exhibits, such as text messages, police reports, and statements to the

police, the hearing justice rendered a bench decision. He began by noting that the burden was

“on the [s]tate to reasonably satisfy the [c]ourt that the defendant has failed to keep the peace and

be of good behavior.”3      He noted also that “a so-called 32(f) violation hearing is a civil

proceeding and the evidence doesn’t have to rise actually to the level of a criminal offense in

order to constitute failing to keep the peace and be of good behavior.”

       Next, the hearing justice reviewed the evidence and testimony presented at the hearing,

acknowledging defendant’s statements to police at the time of the incident. He found that

defendant “in his own words confirmed [to the police] the fact that he had imprisoned [the

complaining witness], by preventing her from leaving 36 Elm Street * * * when he arrived


2
  For purposes of this opinion, a precise recitation of the sordid details of the acts allegedly
committed by defendant is not necessary. Although there was significant, and at some points
appalling, testimony from the complaining witness, we do not deem it necessary to delve into the
details.
3
  Rule 32(f) of the Superior Court Rules of Criminal Procedure was amended effective June 21,
2016, after the decision finding defendant a probation violator in the instant case was rendered,
to provide that no revocation of probation “shall occur unless the [s]tate establishes by a fair
preponderance of the evidence that the defendant breached a condition of the defendant’s
probation or deferred sentence or failed to keep the peace or remain on good behavior.”
(Emphasis added.)


                                              -3-
there[-]after learning from a co-worker that she had been seen leaving his apartment * * * with

somebody[.]” Additionally, the hearing justice noted that defendant, in his own statement to the

police, “says he pushes her back inside and makes her go back into the room upstairs where she

had already locked the door and prevented her from leaving the apartment[.]” According to the

hearing justice, “[t]hat in and of itself, without anything further, would certainly constitute a

failure to keep the peace and be of good behavior.”

       Following a detailed review of the complaining witness’s testimony, the hearing justice

noted that she had “readily admitted her issues” and “didn’t try to gild the lily,” and “basically

said that [defendant] forced her to do the acts * * * which would certainly constitute a sexual

assault under the statute.” He addressed her trip out of the apartment with defendant to a

Cumberland Farms store over the weekend, noting that the complaining witness in her testimony

had pointed out that the surveillance video showed that she was crying and using her sunglasses

to cover up. The hearing justice also addressed defendant’s assertions that, if she believed she

was in danger while she was with defendant that weekend, she could have asked for help or gone

to the police. However, he found her explanation “to be credible, that she was waiting until

Sunday when her father would come[.]”

       Regarding the complaining witness’s multiple statements to police, the hearing justice

found that “[w]hile there are some inconsistencies between the statements, which is certainly to

be expected, which is really an indicia of truth or credibility, if the stories matched exactly you

would think that they were rehearsed and made up, but they were in all important respects

consistent.”   The hearing justice found that much of her testimony was corroborated by

defendant in his statement to police, as well as by other witnesses. He ultimately found that

defendant had certainly “failed to keep the peace and be of good behavior by having or holding




                                             -4-
her against her will, preventing her from leaving 36 Elm Street in his room at the top [of] the

stairs[.]” The hearing justice determined that he was “convinced beyond a reasonable doubt as

[to] those facts which this [c]ourt found based upon the credible testimony of [the complaining

witness].”

       The hearing justice determined that defendant had approximately fourteen years and five

months remaining on the suspended sentence imposed in P1/99-2303A, and he ordered that

defendant serve thirteen years of that sentence. Judgment was entered on January 28, 2016. The

defendant filed a timely notice of appeal on February 12, 2016.

                                               B

                             Motion to Terminate Imprisonment

       While his first appeal was pending, defendant filed a pro se motion in the Superior Court

to terminate his sentence of imprisonment, asserting at the hearing on the motion that, because

the underlying District Court complaint against him concerning the events of June 2015 was

dismissed, according to defendant for lack of probable cause, the provisions of G.L. 1956

§ 12-19-18(b)(5) mandated that his imprisonment be terminated. The motion was heard before a

second hearing justice, sitting in Providence County, who, in response, read from the Rule 48(a)

dismissal filed by the state in that underlying case, which stated: “[T]he [s]tate is dismissing

these charges in the interest of sparing the victim any further trauma from repeated court

appearances. This dismissal shall in no way be construed to imply that the [s]tate indicates a

lack of probable cause or any doubt of the culpability of the defendant.” The state objected to

defendant’s motion, arguing at that initial hearing that the underlying District Court charges

against defendant were dismissed because the state was “satisfied with the sentence as well as

sparing the victim of [sic] any further hearing.” The state further argued that defendant had not




                                            -5-
demonstrated any of the five reasons enumerated in § 12-19-18(b) that would mandate that his

imprisonment be terminated.

       The court eventually held an evidentiary hearing.         The first witness to testify was

assistant attorney general Roger Demers, who was the prosecutor at defendant’s probation-

violation hearing. Demers testified, in response to questioning by the defendant, that he could

not recall being told by the lead investigator assigned to the case, Detective Jacque Wuest of the

Newport Police Department, on the day the probation-violation report was filed, whether there

was probable cause to support the underlying criminal charges against defendant. He did,

however, “remember seeing that [there was no probable cause to charge him with a crime] in one

of her early reports.”

       After identifying the Rule 48(a) dismissal filed in the District Court case, Demers

testified that the state had dismissed the charges against defendant to ensure that the complaining

witness would not be put through any more trauma, including, according to Demers, the “trauma

of being sexually assaulted by the defendant and the trauma of having to testify about that sexual

assault and undergo a fairly lengthy cross-examination, much of it having to do with irrelevant

questions.” He testified further that the “main input was from the victim herself” in the state’s

decision to dismiss the underlying charges against defendant; according to Demers, the

complaining witness “did not want to continue to have to suffer through this.” He testified that

there was no doubt in his mind that there was probable cause in the underlying case and that

defendant was culpable for the acts alleged.

       The defendant then called Det. Wuest as a witness, to which the state objected, arguing

that only the state had the discretion to dismiss the charges, and, therefore, the testimony of Det.




                                               -6-
Wuest was not relevant. The hearing justice sustained the state’s objection, but he allowed

defendant to examine Det. Wuest as an offer of proof.4

        After hearing the testimony, the hearing justice rendered a bench decision denying

defendant’s motion to terminate his sentence of imprisonment. He found that only the state had

the authority to decide whether to proceed with or dismiss the charges, based upon the input of

the complaining witness; ultimately, the hearing justice noted, it is the attorney general who has

the final say. He found that Det. Wuest’s testimony was not relevant to the determination of

probable cause but that, even if it was, “what she initially said about probable cause was later

retracted, at least implicitly[.]”

        The hearing justice concluded by stating that “given the strictures of [§] 12-19-l8(b)(5),

the [c]ourt finds that Mr. Demers’ testimony is very, very credible,” and that there was “nothing

the [c]ourt heard by way of cross, redirect or recross, or anything — in the event the [c]ourt was

in error and should have considered Detective Wuest’s testimony, there is nothing that undercut

Mr. Demers’ very credible testimony.” He therefore denied defendant’s motion.

        An order was entered denying defendant’s motion to terminate imprisonment. The

defendant filed a premature but timely notice of appeal on August 2, 2017.5




4
  Although the testimony of Det. Wuest was an offer of proof and not admitted into evidence, it
is important to note that while Det. Wuest testified that initially there was not enough probable
cause to charge, once she conducted an investigation, the police “determined there was enough
probable cause to charge, and the AG agreed with us, so we charged.”
5
   This Court has consistently considered a notice of appeal filed prior to the entry of the
judgment or order appealed from to be timely. See, e.g., State v. Chase, 9 A.3d 1248, 1252 n.2
(R.I. 2010) (holding that “[a]lthough [the] defendant’s notice of appeal was premature, it was
nevertheless valid”); Otero v. State, 996 A.2d 667, 670 n.3 (R.I. 2010) (same); Bleau v. State,
968 A.2d 276, 278 n.1 (R.I. 2009) (mem.) (same).


                                             -7-
                                                 II

                                            Discussion

                                                 A

                                       Probation Violation

         On appeal from the adjudication that he violated his probation, defendant submits that the

hearing justice acted arbitrarily and capriciously in finding that defendant had violated the terms

of his probation.      The defendant further argues that the case should be remanded for

consideration under the since-enacted “fair preponderance of the evidence standard” under Rule

32(f).

                                                 1

                                       Standard of Review

         “At a probation-violation hearing, the sole issue for a hearing justice is whether the

defendant has breached a condition of his or her probation by failing to keep the peace or remain

on good behavior.” Neufville v. State, 172 A.3d 161, 165 (R.I. 2017) (brackets and deletions

omitted) (quoting State v. Beaudoin, 137 A.3d 726, 731 (R.I. 2016)). “A probation-violation

hearing is ‘not part of a criminal prosecution;’ therefore, ‘the burden of proof at a probation-

violation hearing is much lower than the standard of beyond a reasonable doubt used in criminal

trials.’” Id. (quoting State v. Raso, 80 A.3d 33, 42 (R.I. 2013)). “To determine whether the

defendant has committed a violation, the hearing justice weighs the evidence and assesses the

credibility of the witnesses.” Id. (quoting Beaudoin, 137 A.3d at 731-32).

         “On review, ‘this Court accords great deference to the hearing justice’s credibility

assessments.’” Neufville, 172 A.3d at 165 (brackets omitted) (quoting Beaudoin, 137 A.3d at

732). “It is well founded that this Court ‘will not second-guess supportable credibility




                                              -8-
assessments of a hearing justice in a probation-revocation hearing.’” Id. (quoting Beaudoin, 137

A.3d at 732). “Instead, this Court’s ‘review is limited to considering whether the hearing justice

acted arbitrarily or capriciously in finding a violation.’” Id. (quoting Beaudoin, 137 A.3d at 732).

                                                 2

                                             Analysis

       In support of his contention that the hearing justice acted arbitrarily or capriciously in

finding the complaining witness’s testimony to be credible, defendant asserts that her story was a

“far-fetched and outrageous tale” and that it was “erroneous for [the probation-violation hearing

justice] to credit her testimony in these highly questionable circumstances,” arguing that the

testimony was “essentially uncorroborated” and “improbable[.]”

       Our review of the record reflects that the hearing justice considered the tone of the

complaining witness’s testimony, the corroboration of her testimony by other witnesses and

other evidence admitted in this case, and the fact that she had “readily admitted her issues.”

Indeed, the hearing justice carefully considered the minor inconsistencies in her testimony,

ultimately determining them to be “really an indicia of truth or credibility,” reasoning that a

perfectly matched story would seem to be false or rehearsed. Importantly, the hearing justice

noted that defendant himself, in his statements to police, corroborated portions of the

complaining witness’s story that supported a finding that he had breached the peace, in particular

that he had pushed her back inside and prevented her from leaving the apartment. It is clear to

us, based upon our review of the record, that the hearing justice did not act arbitrarily or

capriciously when he made his finding that the complaining witness was a credible witness.

       The defendant also asks this Court to remand this case for a new probation-violation

hearing utilizing the new burden of proof contained in Rule 32(f), given that the new standard




                                              -9-
was enacted while the violation adjudication was pending direct review in this Court. He argues

that the state is now required to prove by a “fair preponderance of the evidence” that defendant

had breached a condition of his probation by failing to keep the peace. However, a review of the

record reveals that the hearing justice, when rendering his bench decision on the probation

violation, stated that he was “convinced beyond a reasonable doubt as [to] those facts which this

[c]ourt found based upon the credible testimony of [the complaining witness].” It goes without

saying that the standard of proof of beyond a reasonable doubt is a higher standard than either

the fair preponderance of the evidence standard or the reasonable satisfaction standard, and that,

as such, there is no question that the “fair preponderance of the evidence” standard would have

been met in this case. See Neufville, 172 A.3d at 165. We therefore conclude that this case

should not be remanded for consideration under the new standard.

                                                 B

                              Motion to Terminate Imprisonment

       Next, defendant argues that the second hearing justice erred in denying his motion to

terminate his imprisonment, which motion was based on defendant’s assertion that the

requirements of § 12-19-18(b)(5) were satisfied under the facts of his case.

                                                 1

                                       Standard of Review

       “It is well established that the factual findings of a [hearing] justice sitting without a jury

are accorded great weight and will not be disturbed unless the record shows that the findings

clearly are wrong or the [hearing] justice overlooked or misconceived material evidence.”

Kilmartin v. Barbuto, 158 A.3d 735, 746-47 (R.I. 2017) (quoting Cote v. Aiello, 148 A.3d 537,

544 (R.I. 2016)). “This Court consistently has held that factual findings of a [hearing] justice




                                             - 10 -
sitting without a jury are granted an extremely deferential standard of review.” Id. (quoting Cote,

148 A.3d at 544). This Court reviews “questions of statutory interpretation de novo.” State v.

Hazard, 68 A.3d 479, 485 (R.I. 2013) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)).

                                                  2

                                              Analysis

       After a careful review of the record, we conclude that the hearing justice did not overlook

or misconceive material evidence or otherwise commit clear error. The hearing justice held an

evidentiary hearing, at which defendant had the opportunity to examine and cross-examine both

Demers and Det. Wuest. The defendant’s core argument in support of his motion to terminate

imprisonment was that § 12-19-18 applied to the facts of this case. Section 12-19-18 states, in

pertinent part:

                  “(b) Whenever any person, after an evidentiary hearing, has been
                  sentenced to imprisonment for violation of a suspended sentence or
                  probationary period by reason of the alleged commission of a
                  felony or misdemeanor said sentence of imprisonment shall, on a
                  motion made to the court on behalf of the person so sentenced, be
                  quashed, and imprisonment shall be terminated when any of the
                  following occur on the charge which was specifically alleged to
                  have constituted the violation:

                     “* * *

                     “(5) The charge fails to proceed in District or Superior Court
                     under circumstances where the state is indicating a lack of
                     probable cause, or circumstances where the state or its agents
                     believe there is doubt about the culpability of the accused.”

       The defendant asserts before this Court that, by dismissing the underlying District Court

complaint, the “state [was] indicating a lack of probable cause” and an “agent believe[d] there

[was] doubt about the culpability of the [defendant,]” and that, therefore, his imprisonment

should be terminated under § 12-19-18(b)(5). In support of this argument, defendant points to a




                                              - 11 -
statement by Det. Wuest suggesting that, at one point early in the case, there was insufficient

probable cause to arrest defendant. He argues that, in light of Det. Wuest’s testimony in this

regard, the hearing justice erred in his application of § 12-19-18. This argument is without merit

for two reasons.

       First, while Det. Wuest did testify in the offer of proof that, prior to a full investigation of

the case, there was a lack of probable cause to arrest defendant, she clearly also testified that,

after further investigation, including interviewing witnesses and gathering evidence, there was

sufficient probable cause and therefore defendant was subsequently arrested.                  Section

12-19-18(b)(5) requires that “[t]he charge fails to proceed in the District * * * Court under

circumstances where the state is indicating a lack of probable cause[.]” The fact that probable

cause may have been lacking preliminarily does not mean that § 12-19-18(b)(5) is applicable,

especially when future investigations establish the existence of probable cause. See, e.g.,

O’Connell v. Walmsley, 156 A.3d 422, 428 (R.I. 2017) (holding that “although we must give

words their plain and ordinary meanings, in so doing we must not construe a statute in a way that

would result in absurdities or would defeat the underlying purpose of the enactment” (brackets

and deletion omitted) (quoting Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 681

(R.I. 1999))).

       Second, as noted supra, the Rule 48(a) dismissal by the state in the District Court

specifically indicated that the reason for the dismissal of the three charges against defendant was

to “spar[e] the victim any further trauma[,]” and that it was not because of “lack of probable

cause” or any “doubt about the culpability about the accused[,]” as required by § 12-19-18(b)(5).

At the hearing on defendant’s motion to terminate imprisonment, Demers was found to have

credibly affirmed those statements as contained in the Rule 48(a) dismissal.




                                              - 12 -
       As such, there is ample evidence to support the hearing justice’s conclusion that

§ 12-19-18(b)(5) is inapplicable to the instant case. There is no indication in the record that this

is a case that failed to proceed because of lack of probable cause. Accordingly, we affirm the

order denying the defendant’s motion to terminate imprisonment.

                                                III

                                           Conclusion

       For the reasons stated herein, we affirm the judgment and the order on appeal. We

remand the papers to the Superior Court.




                                             - 13 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Jeffrey Murray.
                                     No. 2016-132-C.A.
Case Number                          No. 2017-400-C.A.
                                     (P1/99-2303A)
Date Opinion Filed                   October 16, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Providence County Superior Court
                                     Associate Justice Stephen P. Nugent
Judicial Officer From Lower Court
                                     Associate Justice William E. Carnes, Jr.
                                     For State:

                                     Christopher R. Bush
Attorney(s) on Appeal                Department of Attorney General
                                     For Defendant:

                                     Jeffrey Murray, Pro Se




SU‐CMS‐02A (revised June 2016)
