State v. Pacheco

• Decision Date: 03 January 2001
• Docket Number: No. 2000-6-C.A.,2000-6-C.A.
• Citation: 763 A.2d 971
• Parties: STATE v. John R. PACHECO, Jr.
• Court: Rhode Island Supreme Court

763 A.2d 971

STATE v. John R. PACHECO, Jr.

No. 2000-6-C.A.

Supreme Court of Rhode Island.

January 3, 2001.

Present: WEISBERGER, C.J., LEDERBERG, BOURCIER, and GOLDBERG, JJ.

Virginia M. McGinn, Aaron L. Weisman, Providence, for Plaintiff. Susan B. Iannitelli, for Defendant.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on appeal by the defendant, John R. Pacheco, Jr., from a judgment of conviction of one count of first-degree murder, one count of conspiracy to commit murder, and on application for reduction of his sentence. The defendant, after a jury trial in Superior Court, was sentenced to life imprisonment without the possibility of parole for murder committed with aggravating circumstances and to ten years consecutive incarceration for conspiracy to commit murder. We affirm.

Facts and Procedural History

At approximately 9:45 a.m. on November 18, 1995, a fisherman discovered the body of seventeen-year-old Jenny-Lee M. Bailey (Bailey or victim) on the shore of Gorton's Pond in Warwick, Rhode Island. Her body was supine and a large amount of blood was found on her face and neck. The details of the state medical examiner's testimony describing the brutality of the murder are summarized below in our discussion of the issues raised on appeal. The autopsy also revealed that at the time of her death, Bailey was approximately sixteen weeks pregnant.

On the day before Bailey's body was discovered, defendant was living at 60 Curson St. inWest Warwick, Rhode Island, with Jonathan Tretton (Tretton), Tretton's girlfriend Tanya Casala (Casala), their friend Christopher King (King), and King's mother, Mary Raleigh. Casala, the prosecution's prime witness at trial, gave extensive testimony over three days during which she related the following account of the events surrounding Bailey's murder. Casala testified that on the afternoon of the murder, Tretton told her that they would be leaving that evening for a trip to New York City. While Casala was packing their bags, Tretton and King had a conversation in the living room.

According to Casala, defendant returned to the house at 60 Curson St. between 6 and 6:30 p.m. He asked whether Tretton was ready, directed him not to place the bags into the car at that time, but to get dark clothing. Casala observed that after Tretton had dressed in black jeans, a black muscle shirt, and a black Notre Dame jacket, defendant and King searched for a knife in the living room. Once the knife was found, Casala watched defendant sharpen it for several minutes. She testified that Tretton and defendant then went towards the kitchen and, after a few minutes, returned with a window weight,¹ which defendant told Casala was "to bonk people over their heads." Casala heard defendant ask King for "the pregnant bitch's number," after which defendant called Bailey, told her to meet him "where I fish" at a quarter-to-ten, then made a second call and instructed Bailey not to tell anyone about the meeting. Later in the evening, Tretton told Casala that he had "a job" to kill someone, an act for which he would be paid $1,000, a car, and employment, but he intended only to "beat the person up."

Casala further testified that defendant told Tretton, who was carrying the window weight and a supermarket bag containing pink sweat pants, that he would drop Tretton off at Gorton's Pond while defendant visited his girlfriend, Erin Sweeney (Sweeney).² Casala testified that she was at the house with King when defendant and Tretton returned about an hour later. She noticed that Tretton was now clad in the pink jogging pants, and she heard defendant ask King whether he had seen all the blood on Tretton's hands, and she further heard defendant tell him that Tretton's jeans had been drenched in blood.³ Casala related that she was upset after defendant left and that Tretton comforted her by saying that he had done it for her so that Tretton could support her with a new job and a place with heat.⁴ Casala further stated that, when defendant returned, he told her to "calm down and not look at Jay (Tretton) as a murderer, that he was just doing a friend a favor, that he would have done the same for him," and that if she really wanted something to cry about, defendant would take her to the body.

Casala also testified in detail about a conversation she had with Tretton that night, in which Tretton told her that he had met Bailey at the pond, talked to her for a while and then hit her over the head with the window weight as they were walking. When Bailey asked him why he was doing this to her, Tretton allegedly responded "because he had to." Tretton told Casala that he hit Bailey again, sliced her throat, stabbed her, then threw the knife and window weight into the pond.

The defendant's motion for separate trials was granted. Casala and King testified at the trial, and defendant took the stand in his own defense. King's testimony supported that of Casala in many significant details, although not totally, because King frequently was reluctant to answer, and hecontradicted his earlier statements to police, explaining that he had tried "to save my friend [Pacheco]" and was "scared [of] going to jail." A jury found Tretton guilty of first-degree murder and conspiracy to commit murder, and he was sentenced to life imprisonment. The defendant was found guilty on the same counts, but the jury in his case also found that several of the aggravating factors set forth in G.L.1956 § 11-23-2 were present. The defendant's motion for a new trial was denied. At a presentence hearing pursuant to G.L.1956 § 12-19.2-1, both sides presented additional evidence relevant to sentencing. On March 8, 1999, defendant was sentenced to life imprisonment without the possibility of parole and ten years incarceration for conspiracy, to run consecutively.

On appeal, defendant argued that the trial justice committed reversible error when he allowed Casala, a prosecution witness, to testify about statements made by Tretton, defendant's coconspirator, and then refused to pass the case. Second, defendant maintained that the trial justice erred when he failed to instruct the jury to determine whether a conspiracy existed, before considering the statements of the coconspirator as proof of defendant's guilt. Third, defendant argued that because the jury in his coconspirator's separate trial had found no aggravating factors, the state was barred by the doctrine of collateral estoppel from seeking a sentence of life imprisonment without the possibility of parole in the present case. Finally, defendant appealed his sentence of life imprisonment without parole pursuant to § 12-19.2-5. For the reasons stated herein, we affirm defendant's conviction and sentence.

Admission of Hearsay Testimony

The first question before us is whether the judge erred in admitting Casala's testimony, relating what Tretton and defendant discussed before the murder and Casala's reports of what Tretton said following the murder. The defendant argued that Casala's testimony relating what Tretton told her before the murder about their planned trip to New York, Tretton's informing her that defendant wanted them to return to Curson St., and Tretton's account of what was required of him and the rewards he would receive, was not against penal interest and therefore, should not have been admitted under Rule 804(b)(3) of the Rhode Island Rules of Evidence. The defendant also challenged the admission into evidence of Casala's testimony describing defendant's statements to Tretton not to pack the car immediately, to get dark clothing, and defendant's arrangement to meet Bailey at Gorton's Pond.

The state argued that objections were made to only three of Casala's statements and that because no bases for the objections were specified, the issues were waived and cannot now be raised on appeal for the first time. "According to our well-settled `raise or waive' rule, issues that were not preserved by a specific objection at trial, `sufficiently focused so as to call the trial justice's attention to the basis for said objection, may not be considered on appeal.'" State v. Bettencourt, 723 A.2d 1101, 1107 (R.I.1999) (quoting State v. Toole, 640 A.2d 965, 972-73 (R.I.1994)). Thus, any allegations that errors were committed at trial are considered waived unless they were effectively raised at trial, irrespective of whether the objections were raised at the appellate level. Id.

Assuming without deciding that defendant had raised or substantiated his objections in a timely manner to preserve them for our review, the issues now raised on appeal are without merit. Statements made by defendant in Casala's presence were clearly against his own interest, particularly when considered together with the events that took place. Pursuant to Rule 804(b)(3), evidence is admissible as an exception to the hearsay rule if the declarant is unavailable as a witness, and if the evidence is determined to be

"[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarantbelieved it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

Here, Tretton, defendant's coconspirator, was unavailable because he availed himself of his Fifth Amendment right not to testify. "Rule 804(a)(2) defines `unavailability as a witness' to include situations in which the declarant `persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so.'" State v. Grossi, 588 A.2d 607, 608 (R.I.1991...