State v. Miguel Avila

June 16, 2021

Supreme Court

No. 2019-440-C.A.
(P1/09-1350AG)

State :

v. :

Miguel Avila. :

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 (401) 222-3258 or
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typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2019-440-C.A.
(P1/09-1350AG)

State :

v. :

Miguel Avila. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Goldberg, for the Court. This case came before the Supreme

Court on May 11, 2021, on appeal by the defendant, Miguel Avila, from a

judgment of conviction of first-degree murder after a jury trial. The defendant

argues that the evidence failed to establish beyond a reasonable doubt that the

murder of Elio Olivero was premediated and, further, that the state failed to meet

its burden of disproving voluntary manslaughter. Therefore, the defendant

contends that the trial justice erred in denying his motion for a new trial. For the

reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

It is undisputed that on February 22, 2009, defendant intentionally shot

Olivero in the head, killing him. The facts disclose that at about seven o’clock on

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the morning of the murder, defendant appeared at the home of his ex-girlfriend,

Diana Lora, a basement apartment located at 530 Union Avenue in Providence,

Rhode Island.

The defendant’s discovery of a male guest at Lora’s home led to this

senseless homicide. According to Lora, she and defendant had known each other

for approximately two years, and they were in a dating relationship until one to two

months before the February 22, 2009 incident.1 The defendant lived with Lora at

Union Avenue in the beginning of their relationship; he eventually moved out, but

continued to keep a bureau with clothes and other items in the common area of the

basement, outside the door to Lora’s apartment.2 Lora testified that she and

defendant had “[m]any problems” during their relationship, and that he was “very

violent,” and told her, “If I see you doing something, * * * I’m going to kill you.”

Lora’s best friend, Mariubis Santana, testified that approximately six months

earlier, during a conversation with defendant at a family reunion “at the Loras’

house[,]” defendant told her that “if he ever br[oke] up with [Lora], he wouldn’t

give up, if she got another guy that he would kill the guy.”

1
The defendant told police that Lora had told him that “she needed a break” five
days prior to the February 22, 2009 incident. However, Lora and two of her
friends testified that the couple had broken up one to two months before the
murder.
2
Lora testified that the door to her apartment led to another room in the basement
where the electrical breakers were located. She testified that anyone in the
apartment building could access this utility room.
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The defendant carried out this threat on February 22, 2009. According to

Lora, Olivero gave her a ride home from work in the early morning hours, and she

and Olivero were in the basement apartment from approximately 4 a.m. until

7 a.m., when it was time for Olivero to leave for work. When she opened the door

to the apartment, defendant was at the doorway. The defendant admitted to police

that he had been waiting “outside the basement door” listening to the two voices in

the apartment for approximately fifteen minutes before Lora opened the door.

Lora testified that when she opened the door, Olivero asked who the man standing

there was. Lora introduced Olivero to defendant, who then suggested that they all

go inside the apartment to talk.

Once inside, defendant slapped Lora across the face. The defendant told

Olivero that he and Lora had only recently broken up, to which Olivero responded

with indifference. Lora then told Olivero to call the police. The 911 call reveals

that Olivero called the police and relayed that “we got a situation here.” After

Olivero communicated Lora’s address to the dispatcher, defendant asked Lora,

“You’re going to let him call the police on me?” Lora responded, “Yes, because

you hit me[,]” and she told him, “Miguel, leave because the police is going to

come.”

Lora testified that at that point defendant turned and walked down the

hallway as if he was going to leave the apartment. However, defendant was

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actually feigning his departure; he later admitted to police that he exited Lora’s

apartment to access his bureau in the common utility room, to retrieve a firearm.

When defendant returned to the living room with the gun, he approached Olivero

and positioned the weapon against Olivero’s head. Lora testified that Olivero

pleaded with defendant to talk to him, but defendant shot him once in the head.

The defendant admitted to the police that he was in the apartment for

approximately four to five minutes with the gun before he pulled the trigger.

After defendant shot Olivero, Lora ran into another room of the apartment;

defendant followed her, with the gun still in hand. Lora testified that while she

was screaming at defendant to “calm down,” the police began knocking on the

exterior door of the apartment building. The defendant told Lora “to be quiet” and

that she “had to do whatever he said.” Lora testified that the police knocked on the

door for about a minute or two, and then left.3 Lora and defendant remained in the

apartment for approximately ten minutes thereafter, until defendant announced that

they “had to leave.” Lora and defendant proceeded to his car, and defendant began

3
A patrol officer who responded to 530 Union Avenue testified that she received
the dispatch call at approximately 7:13 a.m. and responded to the apartment
building “within a minute.” Police officers checked both the front and back doors,
which were locked, and rang the doorbell and banged on the door a few times.
Upon receiving no answer, the officers returned to their vehicles. One officer
waited outside the building for approximately three to four minutes and was not
flagged down by anyone and did not see anyone leave the apartment building. The
officer cleared the call because “no one approached [police and they] couldn’t gain
access into the house[.]”
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driving around for approximately two hours, during which time he made several

phone calls to Lora’s family and friends. Ms. Santana testified that she spoke with

defendant on the phone several times that morning and that he told her, “I shot the

guy once in the head because I knew that he was going to die quickly.”

Eventually, defendant stopped the car in a parking lot at 266 Adelaide

Avenue in Providence. The first police officer to locate the vehicle blocked the

only exit; and, after defendant attempted to back up towards the exit and came

bumper to bumper with the police vehicle, defendant retreated into the parking lot.

At some point, Lora was able to jump out of the vehicle and safely reach the

officers. After a near hour-long standoff, defendant was taken into custody. As he

was transported to the police station, defendant spontaneously stated to an officer,

“F* * *, I can’t believe I killed him and I did this.”

At police headquarters, defendant was advised of his rights and initialed and

signed a form indicating that he understood each right. The defendant proceeded

to disclose what had transpired that morning. The defendant admitted that he had

retrieved a gun from the hallway bureau, reentered the apartment, and proceeded to

confront Lora and engage in a dispute with Olivero. The defendant told police that

he then shot Olivero, who fell to the floor.4

4
The defendant provided police with discordant accounts of how he came to
possess the gun. He admitted that it was his gun and that he bought the weapon
-5-
On February 23, 2009, the assistant medical examiner performed an autopsy

on Olivero. His report disclosed that the spring rod of the firearm used to kill

Olivero left an imprint on Olivero’s temple, indicating that the firearm was in

direct contact with—and pushed against—Olivero’s head when it was fired. The

report opined that Olivero “died as a result of [g]unshot wound of the head[,]” and

ruled that the manner of death was homicide.

A grand jury returned an indictment charging defendant with seven counts,

including first-degree murder, various weapons charges, assault, and kidnapping.

Prior to trial, and pursuant to Rule 48(a) of the Superior Court Rules of Criminal

Procedure, the state dismissed the counts charging defendant with assaulting Lora

and entering her apartment with the intent to commit murder. A jury convicted

defendant of murder in the first degree, unlawfully using a firearm during a crime

of violence, kidnapping, and unlawfully carrying a firearm.5 The defendant’s

motion for a new trial was denied, and the trial justice sentenced him to a

mandatory term of life imprisonment at the Adult Correctional Institutions for first-

degree murder; a mandatory consecutive term of life imprisonment for discharging

a firearm during the murder; an additional twenty-year sentence at the ACI for the

kidnapping, to be served concurrently with the life sentence imposed for murder;

“off the streets.” However, at one point defendant told police that “he had it for a
week; and another time he stated he had it for six to seven months.”
5
The jury found defendant not guilty of assaulting Lora with a dangerous weapon.
-6-
and a ten-year sentence at the ACI for unlawfully carrying a firearm, to be served

concurrently with the sentence imposed for kidnapping.

The defendant timely appealed to this Court.6 On appeal, defendant

advances a single claim—that the trial justice erred in denying his motion for a

new trial.

Standard of Review

“When a trial justice considers a motion for a new trial, he or she acts as a

thirteenth juror and exercises independent judgment on the credibility of witnesses

and on the weight of the evidence.” State v. Phillips, 244 A.3d 897, 903 (R.I. 2021)

(quoting State v. Perkins, 966 A.2d 1257, 1260 (R.I. 2009)). The trial justice is

tasked with “(1) consider[ing] the evidence in light of the jury charge,

(2) independently assess[ing] the credibility of the witnesses and the weight of the

evidence, and then (3) determin[ing] whether he or she would have reached a result

different from that reached by the jury.” Id. (quoting State v. Paola, 59 A.3d 99,

104 (R.I. 2013)). “If, after conducting such a review, the trial justice reaches the

6
The defendant timely filed a notice of appeal on August 14, 2009. However, it
appears from the record that the transcripts of the proceedings before the Superior
Court were not ordered by his court-appointed attorney, even though the notice of
appeal indicated that transcripts would be ordered. This precluded the transmittal
of the record to this Court. Nearly ten years later, defendant was found to be
eligible for representation by the Office of the Public Defender; the transcripts
were ordered, and the appeal was perfected.
-7-
same conclusion as the jury, the verdict should be affirmed and the motion for a

new trial denied.” Id. (quoting Paola, 59 A.3d at 104).

As we have frequently noted, “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.” Paola, 59 A.3d at 104 (quoting State v. Texieira, 944

A.2d 132, 141 (R.I. 2008)). As such, “this Court accords great weight to a trial

justice’s ruling on a motion for a new trial, provided that he or she has ‘articulated

an adequate rationale for denying a motion.’” Perkins, 966 A.2d at 1260 (quoting

State v. Cerda, 957 A.2d 382, 385-86 (R.I. 2008)). The “trial justice’s

determination will therefore be left undisturbed unless the trial justice overlooked

or misconceived material evidence or otherwise was clearly wrong.” Phillips, 244

A.3d at 903 (quoting State v. Baptista, 79 A.3d 24, 29 (R.I. 2013)).

Analysis

The defendant argues that the trial justice erred in denying his motion for a

new trial because, he contends, the evidence was not legally sufficient to support

the jury’s verdict. Specifically, defendant submits that the evidence supported a

verdict of voluntary manslaughter, the trial justice failed to consider whether the

state disproved voluntary manslaughter beyond a reasonable doubt, and the trial

justice erred by finding that the evidence supported a finding of premeditation.

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After careful review of the record, we are satisfied that the trial justice

carefully performed the required analysis and set forth an adequate rationale for

denying defendant’s motion for a new trial. The jury found sufficient evidence to

convict defendant of first-degree murder, and the trial justice agreed with this

verdict. The trial justice stated:

“This defendant arrived in her apartment unarmed, but
admitted, after discovering Elio Olivero’s presence, he
strode purposefully down the hallway, directly to a
bureau where he stashed a handgun. After retrieving it,
he turned around, walked back up the hallway,
confronted Olivero, pressed the muzzle of the firearm
against Olivero’s temple and shot him. He pushed the
weapon so forcefully against Olivero’s head that post-
mortem photographs showed the imprint of the gun
muzzle, as well as the so-called spring rod virtually
tattooed into Olivero’s skin. Moreover, the head shot
was no randomly-selected target on Olivero’s body.

“Afterwards, while in the car with Diana Lora, the
defendant told Mariubis Santana that he had shot Olivero
in the head so that he would die, plainly activity [sic]
reflecting malice.

“Furthermore, the defendant had steadfastly held
the intent to kill any paramour of Diana Lora. And, at a
family gathering the previous fall, Mariubis Santana
heard the defendant say that if Diana ever dated another
man, if she broke up with him, he would kill the other
man. Santana testified that she had heard the defendant
express that same intent to kill on prior occasions as well.

“Even though Diana and the defendant had broken
up, the defendant felt that she was cheating on him, and,
indeed, he expressed that very sentiment to Officer Jose
Deschamps at the police station.
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“Thus, in the face of that evidence, all of which I
find to be credible, it’s little wonder that the jury
convicted the defendant of first-degree murder * * *.

“Voluntary manslaughter under those
circumstances came in a very, very distant third, if at all,
and certainly was subsumed by the verdict that was
properly rendered by this jury.”

Before this Court, defendant appears to suggest that the trial justice—when

ruling on a motion for a new trial—was required to perform a discrete analysis as

to whether defendant acted in the heat of passion arising from adequate

provocation. This contention is not supported by our jurisprudence. The three-

step analysis required for passing on a motion for a new trial is well settled; and, if

after performing this analysis, “the trial justice agrees with the jury’s verdict, the

inquiry is complete and the motion for a new trial should be denied.” State v.

Staffier, 21 A.3d 287, 290 (R.I. 2011).

In the case at bar, the trial justice performed the requisite three-step analysis

by independently evaluating the evidence in light of his charge to the jury and by

weighing the credibility of the witnesses. The trial justice articulated his reasons

for finding that there was sufficient evidence to convict defendant of first-degree

murder, and he concluded that he would have decided the case as the jury did.

Once the trial justice determined that the jury was justified in finding defendant

guilty of first-degree murder and that he agreed with the verdict, his inquiry was

complete, and defendant’s motion for a new trial was properly denied. The trial
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justice was not obligated to perform a separate analysis of the lesser-included

offenses, including voluntary manslaughter.

Indeed, this Court has recognized that “[t]he distinguishing factor between

murder and manslaughter is the presence or absence of malice aforethought.” State

v. Garcia, 883 A.2d 1131, 1137 (R.I. 2005). By finding defendant guilty of first-

degree murder, the jury evidenced its conclusion that defendant killed Olivero with

malice aforethought; the trial justice agreed with this conclusion, and the record

clearly demonstrates sufficient evidence to support a conviction for first-degree

murder.

This was an execution by a jealous ex-lover. The defendant feigned his

departure from the apartment only to proceed down “a very long hallway” to

retrieve a gun from his bureau. Upon obtaining the murder weapon, defendant

reentered the apartment and placed the gun against Olivero’s head. Olivero

pleaded for his life, saying several times, “My brother, my brother, let’s talk[.]”

The defendant held the gun to Olivero’s head for a period of time—possibly four

to five minutes—before he fired a single shot. The gun was positioned against the

decedent’s temple with such force and duration as to leave an “imprint” that was

visible in postmortem photographs.

After the murder, defendant declared, “I shot the guy once in the head

because I knew that he was going to die quickly.” All of this evidence, taken

- 11 -
together, establishes sufficient proof to justify a finding that malice aforethought

existed for more than a mere moment. See State v. McMaugh, 512 A.2d 824, 829-

30 (R.I. 1986) (holding that circumstantial evidence regarding the degree of

premeditation “should be afforded equal weight with direct evidence”).

After carefully reviewing the record before us, we are of the opinion that the

trial justice did not overlook or misconceive any material evidence. The trial

justice undertook a careful analysis of the evidence and the credibility of the

witnesses, and he correctly found that the proof in this case was sufficient to

support the verdict. Accordingly, we perceive no error in the trial justice’s denial

of the motion for a new trial.

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.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Miguel Avila.

No. 2019-440-C.A.
Case Number
(P1/09-1350AG)

Date Opinion Filed June 16, 2021

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Robert D. Krause

For State:

Virginia M. McGinn
Department of Attorney General
Attorney(s) on Appeal
For Defendant:

Kara J. Maguire
Office of the Public Defender

SU-CMS-02A (revised June 2020)