State v. Ventre

• Decision Date: 30 November 2006
• Docket Number: No. 2006-14-C.A.,2006-14-C.A.
• Parties: STATE v. Destie VENTRE.
• Court: Rhode Island Supreme Court

Page 190

910 A.2d 190

STATE v. Destie VENTRE.

No. 2006-14-C.A.

Supreme Court of Rhode Island.

November 30, 2006.

Virginia M. McGinn, Providence, for Plaintiff.

John F. Cicilline, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice ROBINSON for the Court.

The defendant, Destie Ventre, appeals from a judgment of conviction after a jury found him guilty of both second-degree murder and assault with a dangerous weapon on December 10, 2004.¹ The trial justice denied the defendant's motion for a new trial; and, on February 14, 2005, he sentenced the defendant to sixty years imprisonment, with forty years to be served at the Adult Correctional Institutions (ACI) and the balance to be suspended, with probation, for the murder. In addition, the trial justice sentenced the defendant to a consecutive term of ten years imprisonment for the assault with a dangerous weapon. The defendant filed a timely notice of appeal.

On appeal, defendant contends that the trial justice committed certain evidentiary errors that constituted violations of his Sixth Amendment-based right to cross-examination. Specifically, defendant argues that the trial justice (1) erroneously determined that certain witnesses were unavailable and then admitted their former testimony into evidence using an erroneous procedure and (2) improperly limited defendant's cross-examination of one of the victims concerning that person's arrest for gun possession.

In addition, defendant argues that the trial justice improperly precluded defendant from establishing the murder victim's criminal record for violent behavior. The defendant also contends that the trial justice erred in denying his motion for an inquiry of the jury members and his motion for a mistrial. He further argues that the trial justice erroneously instructed the jury that possession of an unlicensed firearm constitutes prima facie evidence of intent to kill — which instruction, in defendant's view, improperly shifted the burden of proof from the prosecution to him. Finally, defendant appeals from the trial justice's imposition of consecutive sentences.

For the reasons set forth herein, we sustain defendant's appeal, we vacate his conviction; and we remand the case to the Superior Court for retrial.

Facts and Travel

In the early morning hours of June 6, 1998, defendant shot and killed Richard Cruso in a sequel to an argument that had occurred earlier that morning as yet another chapter in an ongoing dispute over a dirt bike. The defendant also shot Vincent Leonardo in the shoulder during the same violent encounter, but Mr. Leonardo's injury was not fatal.

At some time in the early 1990s, defendant, who had grown up in the Silver Lake section of Providence, became acquainted through mutual friends with Richard Cruso and Vincent Leonardo, who were from the Federal Hill section of Providence. At trial, defendant described Mr. Cruso as a friend, although he stated that he had had a closer relationship with Mr. Leonardo.

The defendant testified that, one day in 1997, Mr. Cruso, who knew that defendant owned a dirt bike, approached him to inquire about purchasing a dirt bike, whereupon defendant introduced Mr. Cruso to a friend of his who sold dirt bikes. The defendant testified that Mr. Cruso purchased a dirt bike from that person. The defendant further testified, however, that, at some point after the dirt bike transaction was consummated, Mr. Cruso contacted him to complain that the bike was not functioning properly. The defendant agreed to contact his friend, who agreed to fix the bike. But, after a year passed and the bike was not returned to him, Mr. Cruso became very irritated; and, when he could not reach the seller of the bike directly, he began asking defendant to contact the seller.

On the evening of June 5, 1998, at approximately 9 or 10 p.m., Mr. Cruso met Vincent Leonardo, who was a childhood friend of his, at the Acorn Social Club in Federal Hill. The pair proceeded to go from the Acorn Social Club to a club called Bootleggers in the Fox Point section of Providence, where they met two more friends from Federal Hill — namely, Lance Verrocchio and David Bettencourt. The defendant also happened to be at Bootleggers that evening with his half-brother, Ryan Guinto, and two friends. The two groups of friends noticed each other's presence at the club, but did not speak to each other while there.

The defendant testified that, shortly after leaving Bootleggers at closing time, he drove with his half-brother and his friend Greg Warren to another area of the city near a different nightclub that was closing. Upon arriving there, the three men exited from the car and stepped away in order to urinate in some nearby bushes. When he returned to the car, defendant saw Ryan Guinto, his half-brother, talking to Mr. Cruso. The defendant testified that Mr. Cruso appeared irritated about the fact that he had not been able to get in touch with defendant's friend regarding the dirt bike. The defendant further testified that Mr. Leonardo then told defendant to "get [his] boy out of his face," referring to Greg Warren, one of defendant's friends, who had walked over to Mr. Leonardo and was standing very close to him. The defendant stated that, because both Mr. Leonardo and Mr. Warren were friends of his, he stepped in between them to separate them, but a fistfight ensued, causing defendant to trip and fall onto the ground.

Vincent Leonardo was called by the state to testify at trial regarding the incidents that occurred on June 5 and 6, 1998.² Mr. Leonardo testified that, after leaving Bootleggers just before closing time, he and Mr. Cruso were driving in Mr. Cruso's car and noticed that the car in front of them was occupied by defendant and his friends, whereupon Mr. Cruso began flashing his headlights in order to get defendant to pull his car over. Mr. Leonardo further testified that Mr. Cruso explained that he wanted to talk to defendant about a situation involving a dirt bike. According to Mr. Leonardo's testimony, defendant pulled his car over and parked, and Mr. Cruso parked his car behind defendant's car. Mr. Leonardo testified that, after defendant and his friends relieved themselves in the bushes, Mr. Cruso and Mr. Leonardo stepped out of the car and Mr. Cruso began speaking to defendant and Mr. Guinto about the dirt bike.

Mr. Leonardo's testimony concerning the fistfight differed from that of defendant in that he said defendant had jumped onto his back and that, after shaking defendant off his back, he inadvertently punched defendant in the jaw while attempting to punch Mr. Warren. According to Mr. Leonardo, it was the blow to the jaw that caused defendant to fall to the ground. Mr. Leonardo testified that he and Mr. Warren continued to fight after defendant fell. As they fought, they moved twelve to fifteen feet away from where the fight began, at which time the police arrived and intervened. The defendant and Mr. Guinto left the scene, as did Mr. Cruso. Mr. Leonardo testified that, although a police officer questioned him about the fistfight, he was ultimately allowed to leave.

The defendant testified that Mr. Leonardo had fled from the scene of the fight and that Mr. Warren was arrested by the police just before defendant drove away with Mr. Guinto. The defendant further testified that he then traveled to the home of his ex-girlfriend to get the phone number of Mr. Warren's wife, because he wanted to notify her about her husband's arrest. According to defendant, while he was at the home of his ex-girlfriend, Mr. Cruso called his pager twice. The defendant testified that he called Mr. Cruso back and that Mr. Cruso asked defendant to meet him at the Acorn Social Club, which is located on Acorn Street in Providence. The defendant agreed, and Mr. Guinto drove him there in defendant's car.

According to defendant, when he and Mr. Guinto turned onto Acorn Street, he could not see Mr. Cruso or anyone else in front of the club, so they continued driving around the block, since they were unsure as to just where Mr. Cruso wanted to meet. As they were passing in front of the club for the second time, they heard a loud crash. Mr. Guinto then stopped, and defendant exited the car and examined it to determine whether Mr. Guinto had hit something.

At that point, according to defendant, he saw Mr. Leonardo come out from behind the building with a board or a stick. The defendant testified that, as he was backing away from Mr. Leonardo, Mr. Cruso caught him from behind and began punching him. The defendant testified that, as Mr. Cruso was hitting him, Mr. Leonardo was beating him with the board. The defendant testified that he was afraid of Mr. Cruso and Mr. Leonardo because he knew that both had had violent encounters with other people in the past. The defendant testified that he thought the two were trying to kill him. According to defendant, Mr. Guinto was still in the car during the attack and was driving back and forth in an effort to frighten Mr. Cruso and Mr. Leonardo. The defendant testified that he was on one knee trying to get into the car, and he reached into the car and grabbed his gun, which was on the floor of the car. He then fired three shots in different directions.³ The defendant further testified that, after firing the shots, he jumped into the car and Mr. Guinto drove away.

At trial, defendant introduced photographs of himself, which he had asked Mr. Guinto to take in order to document the injuries that he claimed to have sustained from the beating at the Acorn Social Club. The defendant denied that he had been punched in the jaw during the earlier fistfight between Mr. Leonardo and Mr. Warren.

Mr. Guinto testified at trial that defendant was knocked to the ground in the earlier fistfight between Mr. Leonardo and Mr. Warren, but that he did not observe defendant sustain a punch to the face. With respect to the events later...