State v. Jose A. Breton , 138 A.3d 800 ( 2016 )

Supreme Court
No. 2014-149-C.A.
(P2/12-1929ADV)
State :
v. :
Jose A. Breton. :
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 Tel. 222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2014-149-C.A.
(P2/12-1929ADV)
State :
v. :
Jose A. Breton. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. Early in the morning of October 25, 2011, as she was
leaving for work, the complaining witness, Dilcia Lora, was viciously attacked by a masked
assailant in the front hall of her home and was severely cut on her face with a small blade.
Ms. Lora subsequently identified her attacker as the defendant, Jose A. Breton a.k.a. Pappi
Valdez, a man with whom she had previously had a two-year-long romantic relationship. In a
three-count information, the defendant was charged with one count of assault with a dangerous
weapon and one count of simple assault on Ms. Lora. The third count was for a simple assault
against Ms. Lora’s daughter, Jani Tolentino, which was alleged to have occurred on May 26,
2010. When the case was reached for trial, the defendant was convicted of the two counts of
assault against Ms. Lora, but he was acquitted of the third count against Ms. Tolentino. The
defendant filed a motion for a new trial, which the trial justice denied. 1 It is from that ruling that
the defendant has timely appealed, arguing that the trial justice misconstrued the evidence when
1
On count 1 defendant was sentenced to twenty years, eleven to serve, nine years suspended,
with nine years of probation. On count 2, he was sentenced to one year to serve, suspended with
probation to run concurrently with count 1.
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he found Ms. Lora to be a more credible witness than the alibi witnesses produced by the
defendant. We have examined the record and have considered the written submissions and oral
arguments advanced by the parties. For the reasons set forth in this opinion, we affirm the
judgment of conviction.
Facts and Travel
On May 26, 2010, Ms. Lora and defendant had an argument, during the course of which
defendant struck and pushed Ms. Lora’s daughter, Jani Tolentino. The police were called, but
when they arrived, Ms. Lora told them that she did not know defendant’s real name, only his
alias, “Pappi Valdez,” and that they had been dating for only three months when in fact they had
been dating for two years. At trial, Ms. Lora explained that she had not been truthful with the
police because she was afraid of what defendant would do if she reported him to law
enforcement.
According to Ms. Lora, she and defendant had been in a two-year relationship that had
been replete with assaults and threats. The romance, she said, came to an end in December 2010.
However, Ms. Lora said that she never explained to defendant that the relationship was over and
that she never “officially” broke up with him, but instead she simply left the country. Ms. Lora
said that she went to the Dominican Republic to stay with her mother, remaining there for
approximately two months. Ms. Lora did not tell defendant she was leaving the country or
where she would be going, nor did she inform her mother why she had come to stay. However,
shortly after she got to the Dominican Republic, defendant showed up at her mother’s house,
unexpected and uninvited. The defendant repeatedly asked Ms. Lora to resume their relationship
and he promised to enter counseling. But Ms. Lora was unmoved, and, when she refused to get
back together with him, he left.
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Ms. Lora moved to Florida and then back to Santo Domingo before finally returning to
Rhode Island in August 2011. In Rhode Island, she lived with her brother, her sister, her
daughter, and her niece and nephew. Eventually, Ms. Lora secured employment at Kenny
Manufacturing, where she worked with the mother of defendant’s children. Occasionally, she
saw defendant as he brought that woman to work but, she explained, she avoided interacting with
either of them.
On October 25, 2011, as she was leaving her apartment to go to work, Ms. Lora was
accosted by a hooded and masked assailant. Ms. Lora made an effort to defend herself with her
hands “so he wouldn’t cut [her]” and, during the course of the struggle, she was able to pull part
of the mask up. When she did, she recognized defendant’s nose and chin. Ms. Lora also
recognized the ski mask as belonging to defendant. Ms. Lora screamed for help and attempted to
defend herself as the attacker kept slashing at her with the knife. Ms. Lora’s brother, niece,
daughter, and sister, hearing her screams, rushed to her aid. When they arrived, the assailant
ceased attacking Ms. Lora, fled the apartment building and ran down the street. Lisandro, Ms.
Lora’s brother, chased the assailant out of the building but was unable to catch him. Ms. Lora
immediately told her family that “Pappi” had cut her.
At the hospital, Ms. Lora informed the doctors that Jose Breton had cut her face, that she
had been in a relationship with him for a long time, that he “always threatened [her]” and that
she had never before reported the abuse because she feared that he “would leave [her]
paralyzed.” She also told the medical personnel that defendant had followed her to the
Dominican Republic and had confronted her at her mother’s house. Although Ms. Lora related
these events to the doctors, she did not immediately notify the police about who had attacked her
because she was still afraid of defendant. However, the following day Ms. Lora advised
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Det. Emilio Matos of the Providence police department that defendant had assaulted her, that she
knew it was him because of his height and build, and that she recognized the “little bit” of his
face that had become uncovered when she tugged on the mask. She also explained that “the only
person threatening [her] was [defendant]. And he was always threatening [her] if [she] left him
he was going to kill [her], this that [sic], that he was going to take [her] eyes out, that he was
going to leave [her] paralyzed.”
At trial, the attending emergency room physician, Dr. Leo Kowayashi, testified that
Ms. Lora presented with three lacerations above her right eye as well as a large deep laceration to
the left side of her face, and that these wounds would result in permanent scarring. Ana Cruz,
defendant’s mother, testified for her son. She said that she had brought defendant to New York
City on October 24, 2011, the day before the assault, dropping him off there as she traveled to
Virginia for a funeral service for a recently deceased family member. She said that she rented a
minivan at the T.F. Green Airport in Warwick, on October 24, 2011, traveled to New York City
with defendant, and arrived in Manhattan around 3:30 a.m. on October 25, 2011. Ms. Cruz
testified that she left defendant in Manhattan and picked up other family members who were
going to the funeral, and that defendant went to stay with her brother’s former girlfriend, “Fam,”
for the day in Brooklyn. Ms. Cruz produced receipts for the rental car, gas, and tolls for the trip
to Virginia. She testified that she returned the rental van on October 26, 2011.
Femije Tairi, or “Fam,” testified that defendant’s mother called her on October 24, and
asked if defendant could stay with her because there were too many people going to the funeral
and not everyone could afford to go. She said that she met Ms. Cruz and defendant in Manhattan
early in the morning on October 25, 2011, and Ms. Cruz picked up other family members;
Ms. Tairi said that she then drove with defendant back to her home in Brooklyn, where she lived
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with her daughter and two small sons. She testified that she and defendant arrived at her home
around 4 a.m., at which point they started talking about the deceased family member and
“goofing around like normal families” before making breakfast at about 6 a.m. The defendant’s
aunt, Marilyn Castillo, arrived around 6:15 a.m. “to grieve,” and Ms. Tairi explained that “[w]e
have our own way of grieving.” According to Ms. Tairi, defendant stayed in Brooklyn until after
10 p.m., at which point she transported him back to Manhattan to meet his mother for the return
trip to Rhode Island. 2
The jury returned a guilty verdict on counts 1 and 2, but acquitted defendant on count 3.
When defendant was heard on his motion for a new trial, he argued that the verdict was against
the weight of the evidence because it was based primarily on the credibility and reliability of
Ms. Lora in identifying defendant as her assailant. The defendant challenged Ms. Lora’s ability
to identify her attacker, arguing that an accurate identification was impossible given that the
attack began and ended in a matter of seconds in a poorly lit stairwell. Additionally, he pointed
to the fact that it took her over a day to identify defendant as her assailant to the police after she
initially lied to them. And when she finally did, he argued, she did not describe defendant’s
specific facial features to them. Finally, defendant argued that the state was unable to cast doubt
on the unimpeached testimony of his alibi witnesses. 3
Standard of Review
Rule 33 of the Superior Court Rules of Criminal Procedure provides that “[o]n motion of
the defendant the court may grant a new trial to the defendant if required in the interest of
2
Ms. Castillo testified that Ms. Tairi had invited her to have breakfast on October 24 as a
“family reunion[] [on] the occurrences of my cousin’s death.” She arrived there with her two
children around 6 a.m., when she had breakfast with Ms. Tairi, her nieces, and defendant.
3
The defendant argued for the first time, in his supplemental Rule 12A statement and at oral
arguments before this Court, that the trial justice’s decision demonstrated “a cultural bias or
ignorance.” After reviewing the record, we see no merit to this argument.
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justice.” The trial justice’s role in reviewing a motion for a new trial is that of the proverbial
“superjuror” who independently weighs the evidence and assesses the credibility of the
witnesses. Battle v. State, 125 A.3d 130, 132 (R.I. 2015). “Specifically, ‘the trial justice must
(1) consider the evidence in light of the jury charge, (2) independently assess the credibility of
the witnesses and the weight of the evidence, and then (3) determine whether he or she would
have reached a result different from that reached by the jury.’” State v. Offley, 131 A.3d 663,
674 (R.I. 2016) (quoting State v. Heredia, 10 A.3d 443, 446 (R.I. 2010)). “If, after conducting
such a review, the trial justice reaches the same conclusion as the jury, the verdict should be
affirmed and the motion for a new trial denied.” State v. Gregson, 113 A.3d 393, 398 (R.I. 2015)
(quoting State v. Mathews, 88 A.3d 375, 388 (R.I. 2014)). In the end, we will not disturb the
decision of a trial justice on a motion for a new trial unless the decision is clearly wrong or “the
trial justice overlooked or misconceived material and relevant evidence * * *.” Battle, 125 A.3d
at 132 (quoting Gomes v. Rosario, 79 A.3d 1262, 1265 (R.I. 2013)).
Analysis
At the outset of his decision, the trial justice acknowledged that the state’s “case rises and
falls on the shoulders of the [s]tate’s first witness Dilcia Lora.” He also said that he had
“listened carefully” to defense counsel’s arguments and that he did not “overlook the various
points made” by him. These included the poor lighting, the fact the assailant was wearing a
mask during an attack that occurred in a matter of seconds, Ms. Lora’s inability to identify the
weapon used, and her refusal to identify defendant or reveal her prior relationship with him.
Nonetheless, the trial justice found her to be a credible witness. In so doing, the trial justice, in
evaluating her testimony, said he sought to “understand the circumstances, the background, the
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relationship, between Ms. Lora and this defendant in weighing, sifting, and evaluating some of
the contradictions and omissions * * *.”
For that, he looked to Ms. Tolentino’s testimony, which he also found credible. Even
though defendant was acquitted of the assault charge related to her, the trial justice said that it
was helpful that she “did describe the nature of [the relationship between Ms. Lora and
defendant] and the dynamics of that relationship and the conduct exhibited by this defendant
towards her mother in the period of time leading up to the events related to these specific
charges.” Finding their testimony to be genuine, he summarized,
“[t]here is no question in observing those two cases, mother and
daughter on this witness stand either it was an academy award
acting performance or it was a legitimate and sincere display of
fear but there is no question in this [c]ourt’s mind, I have not seen
witnesses testify in the manner that they testified aside from what
they said but the manner of delivery how they positioned
themselves on the witness stand, it didn’t strike me as contrived or
an act. It seemed like a sincere display of their feeling towards this
defendant.”
The trial justice did not stop there, however, and he went on to address the credibility of
the defendant’s alibi witnesses, all of whom placed him in New York at the time of the attack.
During the defendant’s argument on his motion for a new trial, the trial justice specifically
questioned the alibi testimony regarding having the family gathering at 6 to 7 a.m. to
memorialize a decedent. The trial justice asked defense counsel to address the timing,
commenting specifically:
“[It] just so happened that is exactly the time that this assault
occurred. And, of course, they identified the defendant as sitting at
the table. I mean, I mean, I know there are different cultures and
different ways that people do things and [sic] but isn’t that an odd
time of day to gather little children and let’s all sit around and that
is the time you pick to memorialize this person who died.
“* * *
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“I just thought it peaked [sic] my interest at the time of the day that
took place.”
In response, defense counsel dismissed any suggestion that the time of day was odd, reasoning
that it was natural under the circumstances to hold a family gathering at that time of the day:
“So if he arrives 3:30, 4:00 in the morning what is he
supposed to go to sleep at four a.m. or something. Of course they
are going to be up, and you cook breakfast, you know, young kids
have breakfast 6:30 seven in the morning. They get up early. So,
again, it was not just, not just a gathering for the memorial it was
also to see my client, too. Because the mother was coming into
town and they needed to pick my client up. She wasn’t going to be
staying at the house in Brooklyn. She was driving through. So
that is the reason for that time so the time is the trip for Rhode
Island time it takes to get to New York, meet them over in
Manhattan and instead of more driving to Brooklyn and Manhattan
because other people were meeting 191st Street the trip from 191st
Street goes back over to Brooklyn and the other aunt came over a
little bit later on to meet for breakfast time. I think she arrived
little after six she said.”
However, the trial justice rejected the testimony of the alibi witnesses when he weighed it against
the testimony of Ms. Lora, Ms. Tolentino, and the history of Ms. Lora’s relationship with the
defendant. The trial justice opined that
“[w]hen you take that testimony and weigh it against what
Ms. Lora and her daughter had to say and the history of that
relationship up to that point, I can’t say I disagree with the jury’s
conclusion that the alibi would not be accepted based on the
recitation of those witnesses.”
We are of the opinion that the trial justice satisfied his obligations when he considered and
decided the defendant’s motion for a new trial, and that he was well within his discretion when
he found the state’s witnesses to be credible, despite any inconsistencies in their testimony. See
State v. Gonzalez, 56 A.3d 96, 103 (R.I. 2012) (“Even taking into account [the trial justice’s]
own observations that something was ‘being left out,’ the trial justice found that the witnesses
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were credible * * *.”); State v. Jensen, 40 A.3d 771, 781 (R.I. 2012) (“[T]he presence of some
inconsistencies between or among utterances of a witness or witnesses at different points in time
does not ipso facto render the testimony unworthy of belief.”).
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of conviction. The
record is remanded to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S
OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Jose A. Breton.
CASE NO: No. 2014-149-C.A.
(P2/12-1929ADV)
COURT: Supreme Court
DATE OPINION FILED: May 27, 2016
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Francis X. Flaherty
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Daniel A. Procaccini
ATTORNEYS ON APPEAL:
For State: Virginia M. McGinn
Department of Attorney General
For Defendant: Layne C. Savage, Esq.
Martin D. Harris, Esq.