Fontaine v. State

• Decision Date: 21 January 1992
• Docket Number: No. 90-219-A,90-219-A
• Citation: 602 A.2d 521
• Parties: Arthur FONTAINE v. STATE.
• Court: Rhode Island Supreme Court

Page 521

602 A.2d 521

Arthur FONTAINE v. STATE.

No. 90-219-A.

Supreme Court of Rhode Island.

Jan. 21, 1992.

Richard Casparian, Public Defender, Janice Weisfeld, Barbara Hurst, Asst. Public Defenders, for plaintiff.

James E. O'Neil, Atty. Gen., Jeffrey Greer, Jane McSoley, Asst. Attys. Gen., for defendant.

OPINION

FAY, Chief Justice.

This case comes before us on the appeal of Arthur Fontaine (applicant) from the denial of his application for postconviction relief pursuant to G.L.1956 (1985 Reenactment) § 10-9.1-1(a)(4). We affirm the decision of the trial justice finding the recanting testimony of the complaining witnesses incredible and therefore denying the applicant postconviction relief. The relevant facts are as follows.

On August 31, 1982, the Superior Court sentenced applicant to ten years' imprisonment after he pleaded nolo contendere to charges of third-degree sexual assault in violation of G.L.1956 (1981 Reenactment) § 11-37-6 and commission of the abominable and detestable crime against nature in violation of § 11-10-1. With respect to each charge the applicant received a suspended sentence subject to a period of probation.

During April 1987, while in the probationary period, applicant was charged with two criminal offenses: sexual assault in the third-degree in violation of § 11-37-6 against John R. and first-degree child-molestation sexual assault in violation of § 11-37-8.1, as amended by P.L.1984, ch. 59, § 2 against Jane D. ¹ On April 30, 1987, applicant admitted he had violated his probationary status and also pleaded nolo contendere to the new charges. He simultaneously executed a statement in which he maintained his innocence of those charges. The applicant was sentenced to serve five and six years of imprisonment concurrently.

On February 10, 1988, applicant filed an application for postconviction relief based upon newly discovered evidence: the two complaining witnesses' purported recantations of the charges they had brought against him. These witnesses stated to applicant's counsel that they were lying when they reported to the police that applicant had sexually assaulted them. They also signed affidavits drafted by applicant's attorney after each had spoken, in which they purported to recant their charges of criminal activity, stating that they had originally lied to the police. On April 11, 1988, applicant appeared before the trial justice who had also presided at the violation hearing and the taking of the nolo contendere pleas. The trial justice considered the application for postconviction relief along with the complaining witnesses' affidavits allegedly recanting their charges and denied the application. The trial justice found applicant was barred from seeking postconviction relief on the basis of the newly discovered or available testimony because he had admitted probation violation and pleaded nolo contendere to the charges. He heard no evidence on this matter. The applicant appealed the denial of his application for postconviction relief to this court.

In State v. Fontaine, 559 A.2d 622 (R.I.1989), this court found that applicant's admission of probation violation and his pleas of nolo contendere to new charges upon which the violation of probation was based did not bar him from having the trial court consider his application for postconviction relief. The court stated that if a prima facie showing of new evidence exists, the trial justice must conduct an evidentiary hearing. Id. at 625.

On remand to the Superior Court, the trial justice heard testimony from the two complaining witnesses, John R. and Jane D., allegedly recanting their charges against applicant. During the proposed recantation testimony before the court, Jane D. stated that she was sexually assaulted between the ages of six and eight, not by applicant but by another man. She testified that her mother and stepfather knew of the assaults but never reported them to the authorities. She asserted that she was recanting because she felt guilty for the lies she had told. Jane D. stated that she lied to the police in order to charge applicant with criminal conduct and thereby punish her mother by sending applicant to prison. In her affidavit Jane D. stated that she had a detailed knowledge of sexual activity because she had been assaulted by the other man, but while testifying in court, she stated that she obtained the detailed ideas from a friend. John R. testified that he lied for Jane D. because he thought she had been abused by applicant, then later he said that he never believed her but had lied because she had asked him to do so. He further stated that he lied because he thought applicant was his real father and wanted to punish him. The trial justice also heard testimony corroborating the witnesses' recantations from applicant's wife, Betty Fontaine, and other character witnesses. Betty Fontaine had driven both Jane D. and John R. to the office of applicant's attorney to recant their criminal allegations and remained while each witness spoke with the attorney.

The state presented contradictory evidence from the police detective who had taken the original criminal complaints, the Department for Children and Their Families (DCF) caseworkers, and Mary M., the woman with whom Jane D. lived after she was removed from her home. Detective Choquette testified that Jane D., thirteen years old at the time, had come to the Central Falls police station three separate times during February and March 1987 and provided him with a detailed description of applicant's alleged sexual misconduct over a period of six years. She then corrected and clarified these statements. The detective also testified that when John R. gave his statement, he became so emotionally distraught that the interview had to be stopped. Both Mary M. and a DCF caseworker testified that Jane D. was disappointed that applicant had not received a longer sentence. Mary M. also testified that Jane D. told her she was recanting for her mother. The DCF caseworker further stated that Jane D. told him that she had informed her mother of applicant's conduct but that Betty Fontaine would allow him to return to the house when money was low. He also testified that Betty Fontaine had badgered Jane D. during their visits when Jane D. was in Mary M.'s custody. The trial justice heard direct testimony and the cross-examination of each of the witnesses before the court, observed each witness's demeanor, and compared in-court testimony with the complaining witnesses' signed affidavits recanting the criminal allegations and the original statements given to the police. The trial justice ultimately found the recantation of the testifying witnesses to be "wholly incredible in light of prior statements made by them to the Central Falls police department" and thereby denied applicant's request for postconviction relief.

In his decision, the trial justice stated the grounds for his ruling and the basis for finding the purported recantations of the complaining witnesses incredible. He pointed to specific reasons why certain witnesses' testimony was believable and made his credibility determinations of the recantations after weighing all the facts and evidence presented before the court. The trial justice found Jane D.'s original complaining statements to the police to be believable because those statements were highly detailed and because she corrected and clarified confusing allegations. He found Jane D.'s stated motive for lying in order to punish her mother "highly illogical and frankly, unbelievable." The trial justice also noted that cards that applicant had sent to Jane D. expressing warm feelings for her and offered at the hearing were all dated after Jane D. had recanted her testimony by affidavit in the offices of applicant's attorney. The trial justice found the detail of John R.'s original statement and his emotional disturbance when relating allegations of criminal activity to the police to be indicative of its credibility in light of inconsistencies in his in-court testimony. He considered Betty Fontaine's involvement in the recantations of the witnesses significant, finding that she had a financial interest in having the complaining witnesses recant in order to have applicant released and able to recover the pension he lost due to the criminal charges. The trial justice, presented with both versions of the actual facts, found Detective Choquette and Mary M. credible witnesses and Jane D., John R., and Betty Fontaine incredible and thereby denied postconviction relief to applicant.

The applicant now appeals the trial justice's denial of his application for postconviction relief. He asserts that the ruling was erroneous because (1) the trial justice was clearly wrong because he overlooked and misconceived significant material evidence, (2) the trial justice failed to assess the recantations in light of the admissions made at the time of the pleas, and (3) the trial justice failed to consider that the only time the complaining witnesses testified in open court, they both swore no assaults had occurred.

The standard for granting postconviction relief is the same standard for awarding a new trial. State v. Lanoue, 117 R.I. 342, 346, 366 A.2d 1158, 1160 (1976). There exists a two-pronged test by which the trial court determines whether to grant relief. Under the first prong of the test (1) the "newly discovered evidence" must actually be newly discovered or available since the trial, (2) the defendant must have been diligent in attempting to discover the evidence for use at the original trial, (3) the evidence must not be merely cumulative or impeaching but also must be material to the issue, and (4) the evidence must be of the kind that would probably change the verdict at a new trial. State v. Brown, 528 A.2d 1098, 1104 (R.I.1987). Once this initial test, referred to as the "threshold test," is satisfied, the trial justice must then determine whether the...