State v. Manuel Texieira

Supreme Court
No. 2006-267-C.A.
(P1/04-380A)
State 	:
v.
Manuel Texieira. 	:
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 Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.

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Supreme Court
No. 2006-267-C.A.
(P1/04-380A)
State 	:
v.
Manuel Texieira. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court. 	On February 16, 2006, a jury found the defendant,
Manuel Texieira,1 guilty of the first-degree murder of one Edgar Ortega. 	On June 20 of that
year, he was sentenced to the mandatory term of life imprisonment.
The defendant has appealed to this Court, contending: (1) that the trial justice erred in
refusing to arrest the judgment of first-degree murder; (2) that the trial justice erred in denying
defendant’s motions for a judgment of acquittal; (3) that the trial justice erred in denying
defendant’s motion for a new trial; and (4) that the trial justice erred in denying defendant’s
motion to correct an illegal sentence.
For the reasons set forth herein, we affirm the judgment of the Superior Court.
1 We note that there are several different spellings of the defendant’s name throughout the
record. We have chosen to employ the spelling that appears in the indictment.

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Facts and Travel2
In the early morning of August 31, 2003, a fight between two strangers began outside of a
Providence nightclub. Several bystanders joined in, and the fight ended tragically—with Edgar
Ortega being beaten and kicked to death in the course of the melee.
The events that led to this tragic death began on August 30, 2003, when Mr. Ortega and
three of his friends, Rigoberto Gomez, Victor Alonzo, and Jonathan Peguero, decided to spend
the evening at “The Keg Room,” a Providence nightclub. 	The impetus for the fight occurred
after they arrived at that nightclub3 when a club patron, later identified as Jonas Chattelle,
walked by and bumped Mr. Ortega from behind while he was dancing with a female friend. The
two men stared at each other ominously, but apparently did not confront each other at that time.
Later in the evening, at approximately 2:00 a.m., as the club was closing, Mr. Ortega
began to argue with Mr. Chattelle, saying, “[H]it me, hit me. I don’t care that the bouncers are
here.” 	As they continued to verbally quarrel, some bouncers came over to the two men and
attempted to separate them. 	Mr. Ortega struggled with the bouncers; the bouncers then
physically ushered Mr. Ortega out of the nightclub. 	The bouncers also directed several other
patrons out of the club through its back entrance.
Mr. Ortega met up with his friends outside of the club and warned them that they should
“watch out because there might be [a fight].” 	Immediately after making that statement, Mr.
Ortega saw Mr. Chattelle and they began to fight on the sidewalk in front of the club’s entrance.
2 The facts narrated in the Facts and Travel section of this opinion were adduced from the
testimony of the multiple witnesses who testified at trial.
3 The record indicates that Mr. Ortega and his three friends arrived at the nightclub
between 11:30 p.m. and midnight.

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One of Mr. Ortega’s friends, Victor Alonzo, attempted to break up the fight, but Mr. Ortega
refused to withdraw.
As the two men continued their physical confrontation, a sizeable crowd began to
surround them. As the crowd grew in size and intensity, Mr. Gomez and Mr. Alonzo attempted
to fend off the crowd; but, recognizing that it was an unfair fight (Mr. Ortega was a large man
who stood over six feet tall and weighed over three hundred pounds, whereas Mr. Chattelle
weighed only about 180 pounds), the crowd became rowdier, yelling at the two men. 	Mr.
Gomez heard defendant, a friend of Mr. Chattelle’s, say: 	“This is not going to be fair. 	This is
not going to be fair. This is my boy. He’s not going to go down like that. * * * This is not the
way we do things.” 	Kevin Powell, a bystander, heard Alberto Heredia further instigating the
fight, proclaiming his allegiance to Mr. Chattelle over and over again.
Eventually, the fight between Mr. Chattelle and Mr. Ortega evolved into a melee
involving friends of both men. 	At some point, Mr. Ortega was brought down to the ground, at
which time Mr. Heredia proceeded to hit and kick him in the abdominal area. 	Mr. Ortega
attempted to get up and was on all fours; at that point, in the descriptive words of Mr. Powell,
defendant “kicked Ortega in the face * * * [h]ard, like he was trying to kick [a football] thirty
yards * * *.” 	Mr. Powell, who did not know defendant or any of the other participants, then
grabbed defendant from behind to calm him down and prevent him from becoming further
involved in the fighting.
At that time, Mr. Ortega was struck in the head by a bottle, possibly thrown by Mr.
Heredia. 	After being struck by the bottle, Mr. Ortega attempted to stand up, but he was
“confused” and was moving like a “punch drunk boxer” and was “walking wobbly.” It appears
that at this point the police arrived and began to take action to disperse the crowd.

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It is here that the several accounts of the events that transpired on the night of August 31,
2003 begin to diverge. According to Mr. Alonzo, he and Mr. Ortega attempted to flee the scene;
however, they were spotted by Mr. Chattelle and several others, including defendant, and the
fighting resumed. 	Mr. Alonzo testified that defendant attacked him and that he and defendant
were “struggling” when he felt someone hit the back of his head. 	Mr. Alonzo then saw
defendant run toward his friends, who were in a circle “kicking” Mr. Ortega. 	Mr. Alonzo
testified that he saw defendant enter the circle, but that he could not see what, if anything, Mr.
Texieira was doing.
Another friend of Mr. Ortega’s, Rigoberto Gomez, testified that, during the second phase
of the fight, he saw defendant, among others, kicking and stomping on Mr. Ortega. According to
Mr. Gomez, he witnessed defendant kick Mr. Ortega in the head “about three times.”
Dylan Andrews,4 a bystander who had been at the club and who did not know Mr. Ortega
or any of the other individuals involved in the fight, testified that, as he was standing on the
4 Mr. Andrews was the only witness with no relationship to the participants in the melee
who testified that Mr. Texieira kicked Mr. Ortega during the second phase of the fight.
According to the record, Mr. Andrews did not make a statement to the police on the night
of August 31, 2003. Thereafter, Mr. Andrews spoke with a co-worker about what had transpired
on the night of August 31, and she referred him to an attorney; that attorney happened to be
representing Eric Landry, another man who had been charged in connection with the death of
Mr. Ortega. 	Mr. Andrews testified that he met with that attorney some weeks after August 31,
2003, and it was at that time that he told the attorney his version of events. 	The attorney
informed him that he would contact the police and that they would contact Mr. Andrews directly.
When Mr. Andrews did not hear from the police, he assumed that they did not need his
assistance.
According to Mr. Andrews, it was not until August of 2005 that he was contacted by the
police. At that time, he met with a detective at the Providence Police Department and began to
give his statement. Before he was able to complete his statement or identify the perpetrator from
a photo lineup, the detective was called away and terminated the interview. 	On January 30,
2006, Mr. Andrews completed his statement to police. 	It was at that time that he identified
defendant from a photo lineup.

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street conversing with a friend, he saw a tall white man (later suggested to be one Eric Landry)
come over and say, with respect to Mr. Ortega, “[t]his is him.” 	Mr. Landry then proceeded to
punch Mr. Ortega in the head.
Mr. Andrews testified that he then saw Mr. Chattelle run from the middle of the street
toward Mr. Ortega, swing at him, and then drive his shoulder into Mr. Ortega’s head. Then, as
Mr. Ortega was trying to grab Mr. Chattelle, he stepped off the curb, lost his balance and fell to
his knees. At that point, Mr. Landry “went to go kick him and * * * grazed him.” Mr. Heredia
also “barely kicked him as well, nearly kicking his shoulder.” Mr. Andrews then testified that he
saw Mr. Texieira run approximately three to four steps and then kick Mr. Ortega in the face. Mr.
Andrews stated that the noise was jarring and sounded “like [Mr. Ortega’s] face broke.” At that
point, Mr. Ortega’s head went back, his hands came off the ground, and he collapsed on the
ground without further movement.
The police found Mr. Ortega unconscious, and medical aid was summoned. 	He was
taken by ambulance to the hospital, but he was pronounced dead shortly thereafter.
Doctor Dorota Latuszynski, the Acting Chief Medical Examiner who performed the
autopsy on Mr. Ortega, testified that Mr. Ortega suffered multiple blunt force traumas to the head
and body. She identified a contusion and abrasions above the right eye and a further abrasion on
the cheekbone. She also testified that Mr. Ortega had a black eye, hemorrhaging of the eye, and
a laceration to the tissue that connects the lips with the gums. 	Mr. Ortega had additional
contusions on his left shoulder and back, on his right hand and right elbow, as well as abrasions
on his wrist, armpit, and knees. Doctor Latuszynski listed the cause of death as cerebral edema
(swelling of the brain) and subarachnoid hemorrhage of the brain due to blunt force trauma.

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Doctor Latuszynski testified that the external and internal injuries to Mr. Ortega’s head
which she observed were consistent with a blunt force trauma that could have been caused by
punching and kicking. 	Although she was certain that Mr. Ortega’s death was caused by the
cerebral edema and subarachnoid hemorrhage, she could not tell whether the damage to Mr.
Ortega’s head was inflicted by one strong blow or was the cumulative effect of many blows; she
also could not state decisively which blow in particular, if any, was the lethal blow to the head.
On February 6, 2004, defendant, along with Alberto Heredia, Eric Landry, and Jonas
Chattelle, was indicted for the murder of Mr. Ortega in violation of G.L. 1956 § 11-23-1.5
The defendant’s jury trial commenced on February 8, 2006, and it continued for seven
trial days. 	At the close of the prosecution’s case, defense counsel moved for a judgment of
acquittal, arguing that the evidence did not support a charge of first-degree murder. 	The trial
justice found that there was sufficient evidence to support a finding of first-degree murder, and
she denied the motion. 	Defense counsel renewed his motion for a judgment of acquittal at the
close of defendant’s case; the trial justice again denied the motion, ruling, as she had previously
ruled, that the evidence was sufficient to support a finding of first-degree murder.
On February 15, 2006, the trial justice gave her instructions to the jury. In the course of
those instructions, the trial justice, without any objection by defendant, instructed the jury to
determine whether or not defendant was guilty of the first-degree murder of Mr. Ortega based
upon one or more of three theories of liability. Those theories were: (1) guilt as a principal; (2)
5 Mr. Heredia stood trial in June of 2005 and was convicted of second-degree murder. Mr.
Landry pled guilty to involuntary manslaughter in September of 2005. 	Following defendant’s
trial, Mr. Chattelle pled guilty to misdemeanor manslaughter.

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vicarious liability as a co-conspirator; and (3) guilt as an aider and abettor.6 On February 16,
2006, the jury found defendant guilty of murder in the first degree.
On February 24, 2006, defendant filed: (1) a motion for a new trial pursuant to Rule 33 of
the Rhode Island Superior Court Rules of Criminal Procedure and (2) a motion in arrest of
judgment pursuant to Rule 34 of the Rhode Island Superior Court Rules of Criminal Procedure.
Both motions questioned inter alia the sufficiency of the evidence with respect to the first-degree
murder conviction. 	After a hearing on April 11, 2006, the trial justice denied both motions.
On June 20, 2006, the Superior Court sentenced defendant to the mandatory sentence of
life imprisonment pursuant to § 11-23-2.7 Eight days later defendant filed a motion to correct an
illegal sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure, and in
support of that motion he renewed his argument that the evidence was not sufficient to support a
conviction for first-degree murder. On July 18, 2006, the trial justice denied the Rule 35 motion
for the same reasons that she had articulated in denying defendant’s Rule 34 motion to arrest
judgment. The defendant timely filed a notice of appeal.
In his appeal, defendant contends: (1) that the trial justice erred in refusing to arrest the
judgment of first-degree murder; (2) that the trial justice erred in denying defendant’s motions
for a judgment of acquittal; (3) that the trial justice erred in denying defendant’s motion for a
new trial; and (4) that the trial justice erred in denying defendant’s motion to correct an illegal
sentence.
6 In submitting the case for the jury’s consideration, the trial justice provided it with a
general verdict form that both the prosecution and the defense were allowed to review in
advance; significantly, neither party objected to the verdict form.
7 General Laws 1956 § 11-23-2 provides in pertinent part: “Every person guilty of murder
in the first degree shall be imprisoned for life.”

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Analysis
I
Motion to Arrest Judgment
On appeal, defendant argues that the trial justice erred in denying his motion to arrest
judgment pursuant to Rule 34 of the Rhode Island Superior Court Rules of Criminal Procedure.
The defendant first argues that two of the three theories of liability that were presented to
the jury in the instructions (namely, “aiding and abetting” and “vicarious liability”) are not
legally sufficient to support a verdict of first-degree murder.
With respect to the theory of aiding and abetting, defendant contends that the jury
instructions8 provided the jury with the opportunity to convict him of being an accessory before
the fact, and he further contends that, since that offense was not charged separately in the
indictment, the conviction is invalid. 	The defendant further alleges that entry of judgment for
being an accessory before the fact requires that the principal have been convicted of the same
degree of offense; in this case, however, defendant emphasizes, no other charged participant was
convicted of murder in the first degree.
With respect to the vicarious liability theory, defendant argues that the plain language of
§ 11-23-1 precludes a conviction of first-degree murder predicated on a conspiracy theory. The
defendant also notes that the indictment charged murder without specifying a degree or type, and
on that basis he argues as follows: “Insofar as the state purported to charge first-degree
conspiratorial murder (a crime on which it went to the jury and on which (by hypothesis) the
verdict may have been premised), then it failed to state an offense under Rhode Island law.” 9
8 We note that defendant voiced no objections to the jury instructions at the time of trial.
9 The parenthetical words in the sentence from defendant’s brief that is quoted in the text
appears in that brief and were not inserted by us.

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Finally, defendant contends that the Superior Court acted in excess of its jurisdiction
when it entered a judgment of first-degree murder “on what may have been a verdict premised on
conspiratorial liability.” 	The defendant similarly argues that the court acted in excess of its
jurisdiction when it entered a judgment of first-degree murder on the basis of a verdict that was
possibly premised on a theory of aiding and abetting.
Although we appreciate the creative nature of defendant’s arguments concerning his
motion to arrest judgment and the articulate manner in which they have been presented to us,
defendant cannot rely on Rule 34 as the procedural mechanism for raising these arguments. Rule
34 provides two separate and independent bases upon which a motion to arrest judgment may be
predicated. First, such a motion is appropriate “if the indictment, information, or complaint does
not charge an offense.” Second, the motion is proper “if the court was without jurisdiction of the
offense charged.” 	Rule 34 does not, however, “permit a defendant to obtain belated review of
* * * challenges that could have and should have been raised during the course of the trial.”
Cronan ex rel. State v. Cronan, 774 A.2d 866, 878 (R.I. 2001). By failing to raise any of these
arguments at trial, defendant is precluded from asserting them for the first time in a post-trial
motion to arrest judgment.
Furthermore, a motion for arrest of judgment must be decided on the “record,” which in
this instance includes only the indictment, the plea, the verdict and the sentence. 	See United
States v. Sisson, 399 U.S. 267, 281-82 (1970). 	For Rule 34 purposes, the “record” does not
include the evidence offered at trial or the jury instructions. See Sisson, 399 U.S. at 281-82; see
also Owens v. United States, 58 F.2d 684, 684 (D.C. Cir. 1932); 3 Charles Alan Wright et al.,
Federal Practice and Procedure: Criminal 3d § 571 (2004). 	In view of this limitation,
defendant’s Rule 34 arguments with respect to the aiding and abetting and vicarious liability

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theories fail because determination of those issues would require this Court to look at the jury
instructions and thus to look beyond the “record.”
With respect to defendant’s argument that the Superior Court acted in excess of its
jurisdiction when it entered a judgment of first-degree murder which was possibly based upon a
theory of conspiratorial liability or upon a theory of aiding and abetting, we conclude that it is
likewise 	unavailing. 	Rule 	34 	provides 	for 	arresting 	judgment 	if 	the 	court 	is 	“without
jurisdiction”—that is, if the court is without subject matter jurisdiction. 	See United States v.
Smith, 410 F.Supp. 1256, 1258 n.1 (E.D.Pa. 1976); United States v. Figueroa, 337 F.Supp. 645,
652 (S.D.N.Y. 1972) (“[T]he jurisdiction referred to in Rule 34 concerns subject matter
jurisdiction * * * .”); see also 3 Charles Alan Wright et al., Federal Practice and Procedure:
Criminal 3d § 571 (2004). 10 There is no question that the Superior Court had jurisdiction over
the instant case, because it clearly has original jurisdiction over murder cases pursuant to G.L.
1956 § 8-2-15. 11 We infer that, because it is clear that there was no lack of subject matter
jurisdiction in this case, defendant has argued that the Superior Court acted “in excess of its
jurisdiction.” 	For the above-stated reasons, however, it is our judgment that such an argument
does not fall within the parameters of Rule 34.
For these reasons, we affirm the denial of defendant’s Rule 34 motion to arrest judgment.
10 We note that, unlike a claim of lack of subject matter jurisdiction, a claim that a trial
court exceeded its jurisdiction is waivable. See, e.g., Hartt v. Hartt, 121 R.I. 220, 397 A.2d 518
(1979).
11 General Laws 1956 § 8-2-15 provides as follows:
“The superior court shall have original jurisdiction of all crimes,
offenses, and misdemeanors, except as otherwise provided by law,
and 	shall 	sentence 	all 	persons 	found 	guilty before 	it 	to 	the
punishment prescribed by law. All indictments found by grand
juries shall be returned into the court.”

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II
Motion for a Judgment of Acquittal
On appeal, defendant contends that the trial justice erred in denying his motion for a
judgment of acquittal with respect to the first-degree murder charge, which motion was
authorized by Rule 29 of the Superior Court Rules of Criminal Procedure.
In reviewing a trial justice’s decision with respect to a motion for a judgment of acquittal,
this Court applies the same standard as that employed by the trial justice. See State v. Day, 925
A.2d 962, 974 (R.I. 2007); State v. Imbruglia, 913 A.2d 1022, 1027 (R.I. 2007). 	As such, we
view the evidence in the light most favorable to the prosecution, giving full credibility to the
prosecution’s witnesses and drawing “all reasonable inferences consistent with guilt” from that
evidence. 	State v. Snow, 670 A.2d 239, 243 (R.I. 1996); see also Day, 925 A.2d at 974;
Imbruglia, 913 A.2d at 1027.
If the evidence, construed in the light most favorable to the prosecution, is insufficient to
establish the defendant’s guilt beyond a reasonable doubt, a motion for a judgment of acquittal
should be granted. 	Day, 925 A.2d at 974. 	If, however, a reasonable juror could find the
defendant guilty beyond a reasonable doubt, the motion should be denied. Id.
In the instant case, the trial justice applied the correct standards when she denied
defendant’s motion for a judgment of acquittal. She explained that the testimony of Mr. Powell
and Mr. Andrews indicated that defendant was involved in two spatially distinct fight scenarios,
in both of which he kicked Mr. Ortega in the head. She further pointed out that, in view of Mr.
Andrews’ testimony to the effect that Mr. Texieira ran several steps before kicking Mr. Ortega,
the jury could infer that such conduct required intent and premeditation of more than just a mere
moment.

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In view of these considerations, the trial justice correctly concluded that the evidence
presented was sufficient to sustain a guilty verdict beyond a reasonable doubt for first-degree
murder, and she accordingly denied defendant’s motion for a judgment of acquittal. 	We
conclude that there was no error in the trial justice’s analysis or in her ultimate decision with
respect to defendant’s motion for a judgment of acquittal.
III
Motion for a New Trial
On appeal, defendant argues that the trial justice erred in denying his motion for a new
trial, which he timely filed pursuant to Rule 33. He contends that the trial justice (1) incorrectly
determined that the evidence supported a conviction for first-degree murder and (2) articulated
and applied an incorrect legal standard in the course of finding that there was sufficient credible
evidence to support a first-degree murder conviction.
When considering whether or not to grant or deny a motion for a new trial, “the trial
justice acts as a thirteenth juror.” 	Imbruglia, 913 A.2d at 1028 (internal quotation marks
omitted); see also State v. Woods, 936 A.2d 195, 197 (R.I. 2007); State v. Abreu, 899 A.2d 473,
477 (R.I. 2006). In dealing with a motion for a new trial, “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. Morales, 895 A.2d 114, 121 (R.I. 2006). If the
trial justice concludes that reasonable minds could differ as to the result or if the trial justice
reaches the same conclusion as the jury did, the verdict should be affirmed and the motion for a
new trial denied. Day, 925 A.2d at 984; Imbruglia, 913 A.2d at 1028. If the trial justice does not
agree with the jury’s verdict, “the trial justice must * * * determine whether the verdict is against
the fair preponderance of the evidence and fails to do substantial justice. If the verdict does meet

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this standard, the trial justice may grant a new trial.” State v. Banach, 648 A.2d 1363, 1367 n.1
(R.I. 1994); see also State v. Mondesir, 891 A.2d 856, 862 n.3 (R.I. 2006).
On review, we accord great weight to a trial justice’s ruling on a motion for a new trial if
he or she has articulated sufficient reasoning in support of the ruling. 	See Woods, 936 A.2d at
197; Day, 925 A.2d at 983-84; Imbruglia, 913 A.2d at 1028; State v. Hallenbeck, 878 A.2d 992,
1011 (R.I. 2005). This Court will not overturn a trial justice’s determination with regard to such
a motion unless we determine that the trial justice committed clear error or that he or she
“overlooked or misconceived material and relevant evidence [relating] to a critical issue in the
case.” State v. Bolduc, 822 A.2d 184, 187 (R.I. 2003).
We employ this deferential standard of review with respect to a motion for a new trial
because a trial justice, being present during all phases of the trial, is in an especially good
position to evaluate the facts and to judge the credibility of the witnesses. In contrast to both the
trial justice and the jury, the members of this Court do not observe witnesses while they testify
and thus are unable to focus on the demeanor and body language of the various participants in a
trial. 	See, e.g., Woods, 936 A.2d at 198 (“We do not have the same vantage point as the
presiding judge, and we are unable to assess the witness’ demeanor, tone of voice, and body
language.”); Commonwealth v. Heffernan, 213 N.E.2d 399, 403 (Mass. 1966).
A
Causation
The defendant contends that the trial justice misconceived the testimony of the Assistant
Medical Examiner in denying his motion for a new trial. The defendant argues that the evidence
must support a finding that defendant contributed to Mr. Ortega’s death and that the medical
testimony precluded such a finding because the Assistant Medical Examiner could not determine

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whether the fatal injuries occurred as the result of a single blow or more than one blow. 	We
disagree with defendant’s contention in this regard.
The trial justice correctly determined that there was sufficient evidence to support a jury
finding that defendant committed first-degree murder. 	She pointed to the evidence indicating
that defendant had delivered at least two forceful kicks to Mr. Ortega’s head. She also pointed to
the testimony of the Assistant Medical Examiner that the injuries she observed were consistent
with being punched and kicked and that the cause of death was such blunt force trauma. 	We
conclude that the trial justice did not misconceive the evidence when she found that the evidence
was sufficient to support a conviction for first-degree murder. 	See Holsemback v. State, 443
So.2d 1371, 1382 (Ala. Crim. App. 1983) (“To render a defendant guilty, it is not necessary that
the blow given by him, or his wrongful act, was the sole cause of death. Even if the blow or act
was only a partial cause accelerating death, the defendant is nevertheless guilty.”); People v.
Bailey, 549 N.W.2d 325, 334 (Mich. 1996) (“In assessing criminal liability for some harm, it is
not necessary that the party convicted of a crime be the sole cause of that harm, only that he be a
contributory cause that was a substantial factor in producing the harm.”).
B
Applicable Legal Standard
The defendant further asserts that, in denying the motion for a new trial, the trial justice
incorrectly articulated the criteria as to what constitutes first-degree murder and erroneously used
the criteria relative to second-degree murder in assessing the motion for a new trial with respect
to the issue of first-degree murder. In essence, defendant contends that the trial justice conflated
the first-degree murder standard and the second-degree murder standard. 	Therefore, defendant
argues, “the first-degree verdict here was sustained on a fundamentally inaccurate view of the
requirements of law.”

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General Laws 1956 § 11-23-1, defines murder as “[t]he unlawful killing of a human
being with malice aforethought.” Pursuant to that same statute, first-degree murder is defined as
“[e]very murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing * * * .” 12 Any other murder constitutes second-degree
murder. 	In other words, murder in the second-degree “is any killing of a human being
committed with malice aforethought that is not defined by statute as first-degree murder.” State
v. Parkhurst, 706 A.2d 412, 421 (R.I. 1998); see also State v. Mattatall, 603 A.2d 1098, 1106
(R.I. 1992).
This Court has defined malice aforethought as being synonymous with malice, either
express or implied. “Legal malice can arise from either an express intent to kill or to inflict great
bodily harm or from a hardness of the heart, cruelty, wickedness of disposition, recklessness of
consequence, and a mind dispassionate of social duty.” 	State v. McGranahan, 415 A.2d 1298,
1302 (R.I. 1980); see also State v. Lambert, 705 A.2d 957, 964 (R.I. 1997). Malice aforethought
“consists of an unjustified disregard for the possibility of death or great bodily harm and an
extreme indifference to the sanctity of human life.” 	McGranahan, 415 A.2d at 1302; see also
Parkhurst, 706 A.2d at 421.
While malice aforethought is a required element with respect to both first- and second-
degree murder, it is well-settled in this jurisdiction that “[t]he distinction between murder in the
first degree and murder in the second degree is that murder in the first degree requires
premeditation.” 	State v. Vorgvongsa, 692 A.2d 1194, 1196 (R.I. 1997); see also State v.
Grabowski, 644 A.2d 1282, 1285 (R.I. 1994). 	The premeditation required for first-degree
12 Section 11-23-1 also provides that any murder committed during the commission of
certain enumerated felonies constitutes murder in the first-degree. 	None of those statutory
provisions has any bearing on the instant case.

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murder requires the formation of “an intent to kill for a period more than momentarily prior to
the killing itself.” Id. First degree murder “requires the state to prove beyond a reasonable doubt
a premeditated intent to kill of more than a momentary duration in the mind of the accused
* * *.” Parkhurst, 706 A.2d at 421.13
In the instant case, we are satisfied that the trial justice independently evaluated the
evidence and weighed the credibility of the witnesses; we are also satisfied that she acted
conscientiously and meticulously in making her findings of fact and conclusions of law.14 In
addition, in denying defendant’s motion for a new trial the trial justice adequately articulated her
reasons for finding that there was sufficient evidence to convict defendant of first-degree murder.
The record indicates that the trial justice would have decided the case as the jury did since, in her
opinion, the prosecution proved the required elements of first-degree murder.
In the course of denying defendant’s motion for a new trial, the trial justice found that the
witnesses for the prosecution portrayed the defendant “as a person of great violence [who had] a
total disregard for the sanctity of human life.” 	The trial justice found the witnesses for the
prosecution to be credible and observed that they provided a reliable version of the events that
led to Mr. Ortega’s death. 	She further found that Mr. Andrews and Mr. Powell provided
especially credible and compelling testimony; in that regard, she noted that these two men had no
connection to the decedent, the defendant, or any of the other participants in the fight.
13 By contrast, in order to convict a person of murder in the second degree, it is only
required that the state prove beyond a reasonable doubt that the defendant acted with malice.
See State v. Barrett, 768 A.2d 929, 944 (R.I. 2001); State v. Banach, 648 A.2d 1363, 1368 (R.I.
1994).
14 We note that more than twenty transcript pages were required for the recording of the
trial justice’s findings of fact and conclusions of law.

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In finding sufficient evidence to support a conviction for first-degree murder, the trial
justice made the requisite finding of premeditation, stating that defendant’s actions “were
planned for more than a fleeting moment” and “resulted from more than just a fleeting or
momentary thought.” 	In connection with her finding of premeditation, the trial justice further
found that the defendant acted with malice aforethought. Noting that “[i]t sounded like his face
broke,” the trial justice stated:
“There was sufficient evidence [Texieira] acted deliberately
and 	purposely; 	that 	he 	acted 	with 	wanton 	disregard 	for 	the
probability of death or great bodily harm. 	When you consider
* * * the fighting words, followed by two brutal kicks to the head
of a man who was down, it is clear that the facts and circumstances
give rise to a reasonable inference that [Texieira] intended his
kicks and intended to kill * * *.”
For these reasons, the trial justice correctly denied defendant’s motion for new trial.
IV
Motion to Correct an Illegal Sentence 15
Finally, defendant contends on appeal that the trial justice erred in denying his motion to
correct an illegal sentence because, as defendant’s brief contends, “the mandatory life sentence
imposed * * * may have been predicated on jury findings, which as a matter of law, support only
the lesser offense of murder in the second degree.” We note that this argument, which in essence
questions 	the 	evidentiary 	basis 	for 	the 	jury 	verdict 	that 	was 	actually 	rendered, 	is 	not
appropriately made in the context of a motion to correct an illegal sentence under Rule 35.
While Rule 35 authorizes the correction of “an illegal sentence” at any time, it is important to
bear in mind that an illegal sentence has been judicially defined as one that is not authorized by
15 It is questionable whether defendant has properly appealed from the denial of his motion
to correct an illegal sentence. 	In any event, we now proceed to address his contentions with
respect to sentencing.

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the statute establishing the punishment that may be imposed for the particular crime or crimes.16
See, e.g., State v. Murray, 788 A.2d 1154, 1155 (R.I. 2001) (mem.).
On appeal, the defendant had the burden of establishing that his life sentence for first-
degree murder was not authorized by § 11-23-2. 	See Murray, 788 A.2d at 1155; State v.
Furtado, 774 A.2d 38, 39 (R.I. 2001). 	Pursuant to that statute, however, the only sentence
permitted following a conviction for first-degree murder is life imprisonment; a trial justice in
such a situation has absolutely no discretion with respect to the sentence since the statute
proscribes that “[e]very person guilty of murder in the first degree shall be imprisoned for life.”
(Emphasis added.) In light of this mandatory statutory language, we conclude that the defendant
has utterly failed to establish that the imposition of a life sentence was improper in the instant
case. 	Accordingly, we affirm the trial court’s denial of the defendant’s motion to correct an
illegal sentence.
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court. 	The
papers in the case may be remanded to the Superior Court.
16 The Reporter’s Notes accompanying Rule 35(a) of the Superior Court Rules of Criminal
Procedure define an illegal sentence as being “one which has been imposed after a valid
conviction but is not authorized under law.”

19
COVER SHEET
TITLE OF CASE: 	State v. Manuel Texieira
DOCKET NO: 	2006-0267-C.A.
COURT: 	Supreme
DATE OPINION FILED: 	April 3, 2008
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: 	Judge Netti C. Vogel
JUSTICES: 	Williams, C.J., Goldberg, Flaherty, Suttell and Robinson, JJ.
WRITTEN BY: 	Justice William P. Robinson, III, for the Court
ATTORNEYS:
For Petitioner: Lauren Zurier, Esq.
ATTORNEYS:
For Respondent: 	John A. MacFadyen, III