State v. Jacques Gautier

Supreme Court
No. 2006-58-C.A.
(P1/03-199A)
State 	:
v. 	:
Jacques Gautier. 	:
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.

Supreme Court
No. 2006-58-C.A.
(P1/03-199A)
State 	:
v. 	:
Jacques Gautier. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. The defendant, Jacques Gautier, was convicted by a jury
of second-degree murder and breaking and entering for surreptitiously entering his estranged
wife’s apartment and killing her seventeen-year-old boyfriend, Jeffrey Indellicati. At the time of
Mr. Indellicati’s death, Mr. Gautier and his wife were separated and there was a District Court
“no-contact” order in effect as the result of a criminal charge pending against the defendant for
assaulting his wife. 	The defendant appeals to this Court, arguing that the trial justice erred:
(1) by allowing his wife’s prior recorded testimony from the defendant’s probation-violation
hearing to be read into evidence; (2) by excluding an affidavit made by the defendant’s wife in
which she refuted the testimony she gave at the defendant’s probation-violation hearing; (3) by
admitting evidence of the recent incident of domestic assault and evidence that the defendant had
used cocaine shortly after Mr. Indellicati was killed; (4) by allowing the state to bolster the
credibility of its own witness; (5) by failing to give the jury an instruction on voluntary
manslaughter; (6) by commenting on the evidence while giving the jury an instruction on
burglary; and (7) by denying the defendant’s motion to pass the case after a witness for the state
misspoke. For the reasons set forth in this opinion, we affirm the judgment of conviction.
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I
Facts and Procedural History
This Court has recited the facts of this case twice before. See State v. Gautier, 871 A.2d
347 (R.I. 2005) (Gautier II); State v. Gautier, 774 A.2d 882 (R.I. 2001) (Gautier I). As a result,
we will address only briefly the facts necessary to decide this case. 	After his arrest for the
murder of Mr. Indellicati, defendant was presented as a probation violator before the Superior
Court. 	The defendant’s wife, Minerva Gautier (Minerva), testified at defendant’s probation
violation hearing as follows.
Minerva testified that on the early morning of October 6, 1998, she was awakened by a
noise in the kitchen of the apartment into which she recently had moved with her and defendant’s
twenty-two-month-old son. Minerva got out of bed to investigate and discovered defendant, who
had entered the kitchen through a window. Minerva testified that defendant started to argue with
her, which woke Indellicati, who had been sleeping in the nearby bedroom. 	When Indellicati
entered the kitchen, both men began to fight. According to Minerva’s testimony, defendant then
grabbed a knife from a kitchen drawer and began stabbing Indellicati. 	The altercation moved
from the kitchen and into the bathroom as the men continued to fight each other. Mr. Indellicati
slipped and fell on the wet bathroom floor as defendant continued to stab him.1 Minerva
testified that after defendant stopped stabbing Indellicati she attempted to resuscitate him, but
defendant ordered her at knifepoint to get the couple’s son and drive him to his sister’s
apartment.
Noting inconsistencies in Minerva’s testimony, the probation-violation-hearing justice
did not find her to be a credible witness, and he stated at the conclusion of the hearing that he
1 The chief medical examiner testified at the hearing that Indellicati suffered sixty-eight separate
wounds, caused by two different knives.
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“was not satisfied the State met its burden [in proving] that [defendant] did murder [Indellicati].”
Gautier II, 871 A.2d at 349. The state filed a petition for writ of certiorari, seeking review of the
hearing justice’s decision. 	We granted the petition, quashed the Superior Court judgment, and
remanded the case with directions to adjudge defendant a violator. Gautier I, 774 A.2d at 888.
The state then filed a motion to have the previous adjudication of non-violation reconsidered,
after which the same probation-violation hearing justice found defendant to be a violator.
On January 17, 2003, a grand jury returned an indictment against defendant charging him
with the first-degree murder of Indellicati, burglary, kidnapping, felony assault, eluding police,
and violation of a no-contact order. The defendant moved to dismiss the murder count, asserting
that the state was collaterally estopped from maintaining its murder charge based upon the
probation-violation hearing justice’s determination at the original probation-violation hearing.
His motion was denied, and defendant then filed an appeal to this Court. On appeal, we held that
the state was not precluded from prosecuting defendant for murder based on the factual findings
that the hearing justice made at the probation-violation hearing. Gautier II, 871 A.2d at 360.
The case proceeded to trial in September 2005. 	The trial justice granted defendant’s
pretrial motion to dismiss counts 3 through 6, leaving the charges of murder and burglary to be
tried before a jury. 	On September 26, 2005, the jury found defendant guilty of the lesser-
included offenses of second-degree murder and breaking and entering. 	The defendant filed a
motion for a new trial, which the trial justice denied on October 21, 2005. On January 9, 2006,
the trial justice sentenced defendant to a life sentence for second-degree murder and to a ten-year
sentence for breaking and entering, to be served concurrently. 	Thereafter, defendant filed a
timely appeal to this Court. 	Additional facts will be discussed throughout the opinion as
necessary.
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II
Discussion
A
Admission of Minerva’s Prior Recorded Testimony
Before the jury was impaneled, Minerva moved to quash a subpoena served upon her,
asserting both her right against self-incrimination guaranteed under the federal2 and state3
constitutions and her common-law privilege not to be a witness against her husband. 	The trial
justice granted the motion, and he also declared Minerva to be unavailable as a witness within
the meaning of Rule 804(a) of the Rhode Island Rules of Evidence.4 The trial justice then
granted, over defendant’s objection, the state’s motion to introduce into evidence significant
portions of the testimony Minerva had given at defendant’s probation-violation hearing. At trial,
the testimony was read by an assistant attorney general.
The defendant argues on appeal that the trial justice violated his right to confront
witnesses under the Sixth Amendment to the United States Constitution and under article 1,
section 10, of the Rhode Island Constitution by allowing the jury to hear the prior recorded
testimony of Minerva from defendant’s probation-violation hearing. 	He also asserts that such
testimony did not qualify for admission under Rule 804(b)(1).5
2 U.S. Const. Amend. V.
3 R.I. Const., art. 1, sec. 13.
4 Rule 804(a) of the Rhode Island Rules of Evidence provides in relevant part:
“(a) Definition of Unavailability. ‘Unavailability as a witness’
includes situations in which the declarant –
“(1) is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of the
declarant’s statement * * *.”
5 Rule 804(b)(1) provides:
“(b) Hearsay Exceptions. The following are not excluded by
the hearsay rule if the declarant is unavailable as a witness:
“(1) 	Former 	Testimony. 	Recorded 	testimony 	given 	as 	a
witness at another hearing of the same or a different proceeding, or
in a deposition taken in compliance with law in the course of the
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We first consider defendant’s constitutional argument. It is well settled that “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.
Pacheco, 763 A.2d 971, 976 (R.I. 2001) (quoting State v. Bettencourt, 723 A.2d 1101, 1107 (R.I.
1999)). 	At trial, defendant raised two objections to Minerva’s probation-violation-hearing
testimony. The defendant first stated that he was not given “a significant or satisfactory amount
of evidence” through discovery to have “a real opportunity to develop the testimony of Ms.
Gautier” by cross-examination as required by Rule 804(b)(1). 	Secondly, he argued that the
testimony Minerva offered at defendant’s probation-revocation hearing did not bear “the
appropriate guarantees of reliability and/or trustworthiness.” Because defendant failed to raise a
constitutional challenge to the admission of Minerva’s previous testimony, we deem the
argument waived.
Turning to defendant’s argument that Minerva’s testimony was admitted in violation of
Rule 804(b)(1), this Court has held that “[t]he decision as to whether or not to admit former
testimony lies in the sound discretion of the trial justice, and we will not overturn such a decision
unless there has been an abuse of that discretion.” State v. Day, 925 A.2d 962, 979-80 (R.I.
2007) (citing State v. Sharp, 708 A.2d 1328, 1330 (R.I. 1998)).
Mr. Gautier contends that he did not have a meaningful opportunity to cross-examine
Minerva at the violation hearing because the amount of discovery available at that time “was
very, very little compared to the volumes of materials amassed by trial time.” 	He was thus
unable to cross-examine Minerva relative to statements from two police detectives and from a
same 	or 	another 	proceeding, 	if 	the 	party 	against 	whom 	the
testimony is now offered, or, in a civil action or proceeding, a
party with similar motive and interest had an opportunity to
develop the testimony by direct, cross, or redirect examination.”
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prison informant that differed from her account “in several important ways.” 	In addition,
defendant argues that a “substantial identity of issues simply does not exist between a violation
hearing and a full-blown criminal trial.”
Rule 804(b)(1) does not exclude as hearsay evidence the previous recorded testimony of
an unavailable witness if the party against whom the admission is sought was afforded an
opportunity to develop the testimony through direct, cross-, or redirect examination.
This Court adheres to “the so-called ‘liberal’ rule when determining the adequacy of prior
opportunities to cross-examine witnesses.” Day, 925 A.2d at 980. Under this rule, “it is required
only that there be a substantial identity of issues and of parties before former testimony will be
deemed admissible.” Id.; see also State v. Ouimette, 110 R.I. 747, 757, 298 A.2d 124, 131
(1972). 	We reject defendant’s suggestion that an identity of issues cannot exist between a
probation-violation hearing and a criminal trial. 	To be sure, the two proceedings serve very
different purposes. 	A probation-violation hearing is a civil proceeding to determine whether a
probationer has kept the peace and been of good behavior, or otherwise violated a condition of
probation, see State v. Piette, 833 A.2d 1233, 1237 (R.I. 2003); whereas a criminal trial is “the
intended forum for ultimate determinations as to guilt or innocence of newly alleged crimes.”
Gautier II, 871 A.2d at 359 (quoting Lucido v. Superior Court, 795 P.2d 1223, 1230-31 (Cal.
1990)). Nevertheless, in this case the alleged violation and the murder charge related to the same
sequence of events concerning defendant’s involvement in the death of Jeffrey Indellicati. See
Day, 925 A.2d at 981; see also Bertrand v. State, 214 S.W.3d 822, 824 (Ark. 2005) (admitting
former testimony from a suppression hearing); People v. Zapien, 846 P.2d 704, 729 (Cal. 1993)
(admitting former testimony from a preliminary hearing); Ward v. State, 910 S.W.2d 1, 3 (Tex.
Ct. App. 1995) (admitting former testimony from a bond hearing).
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Furthermore, we agree with the trial justice that defendant was afforded a full and
adequate opportunity to cross-examine Minerva at the probation-violation hearing. 	As the trial
justice noted, defendant cross-examined her so effectively that the probation-violation-hearing
justice found her testimony to be inconsistent and lacking credibility. 	The fact that defendant
may have obtained more information through discovery by the time of trial does not undermine
the adequacy of his opportunity to cross-examine the witness at the probation-violation hearing.
Moreover, at trial defendant acknowledged that the hearing justice did not limit his cross-
examination in any way. 	Based upon our review of the record, we are satisfied defendant was
given an adequate opportunity to cross-examine Minerva at the probation-violation hearing, and
that the trial justice did not abuse his discretion by admitting into evidence under Rule 804(b)(1)
her redacted prior recorded testimony.
B
Exclusion of Minerva’s Recantation
On August 17, 1999, Minerva gave a statement in affidavit form to an investigator in the
Public Defender’s Office in which she essentially recanted the testimony she gave at defendant’s
probation-violation hearing. 	In her statement she said she found Indellicati on the floor of her
bathroom when she arrived home around midnight. She performed CPR and asked him if he was
all right. After he said that he was, Minerva left to find defendant to enlist his help. When the
two returned to Minerva’s apartment, Indellicati no longer was alive. She said in the statement
that she later was arrested and brought to the police station, where she was stripped of her
clothes, given plastic to put over her, and treated “like a caged animal” from 7 a.m. to 3 p.m.
until she finally told the police that she had seen defendant stab Indellicati three times.
On September 15, 2005, three days after the trial justice allowed the state to introduce
Minerva’s probation-violation-hearing testimony and one day after the jury was impaneled and
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sworn, defendant sought to introduce the affidavit under Rule 806 of the Rhode Island Rules of
Evidence to attack her credibility. 	The trial justice denied defendant’s motion, concluding that
Minerva’s affidavit was not the type of statement the drafters of Rule 806 envisioned being used
for impeachment purposes. The trial justice also was concerned whether the statement was made
freely and voluntarily, and he was particularly irked that defendant failed to produce the
statement until after the jury had been sworn.
It is well settled that “this Court will not disturb a trial justice’s ruling on an evidentiary
issue unless that ruling ‘constitutes an abuse of the justice’s discretion that prejudices the
complaining party.’” State v. Gomez, 848 A.2d 221, 232 (R.I. 2004) (quoting State v. Dellay,
687 A.2d 435, 439 (R.I. 1996)).
A party’s ability to attack the credibility of a declarant is governed by Rule 806. 	Rule
806 states:
“Attacking and supporting credibility of declarant. –
When 	a 	hearsay 	statement, 	or 	a 	statement 	defined 	in 	Rule
801(d)(2), (C), (D), or (E), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may be
supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. 	Evidence of a
statment [statement] or conduct by the declarant at any time,
inconsistent with the declarant’s hearsay statement, is not subject
to any requirement that the declarant may have been afforded an
opportunity to deny or explain. 	If the party against whom a
hearsay statement has been admitted calls the declarant as a
witness, the party is entitled to examine the declarant on the
statement as if under cross-examination.”
By its terms, Rule 806 permits a party to impeach the credibility of a declarant of a
hearsay statement “by any evidence which would be admissible for those purposes if declarant
had testified as a witness.” 	In denying defendant’s motion the trial justice said that he was
concerned about the authenticity of the affidavit. 	He also noted that the statement purportedly
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was written after defendant had been released from incarceration; thus, he said, the possibility
existed that Minerva did not make the statement “freely and voluntarily.”
It is our opinion that the trial justice did not abuse his discretion by excluding Minerva’s
affidavit. 	On the contrary, we are convinced that he appropriately was concerned about the
circumstances surrounding the preparation of the six-year-old statement that contradicted not
only Minerva’s prior testimony at the probation-violation hearing, but also her subsequent
testimony before the grand jury. 	Although we agree with defendant that Rule 806 “levels the
playing field” between live witnesses and non-testifying hearsay declarants by allowing the
introduction of impeaching evidence to attack or support the latter’s credibility, we do not read
Rule 806 as superseding other rules of evidence. See United States v. Rosario, 111 F.3d 293, 296
(2d Cir. 1997) (“Rule 806 does not overcome the Rule 410 objection if the statements being
offered were obtained in a proffer session and they are being offered against the person who
made the proffer.”); United States v. Finley, 934 F.2d 837, 839 (7th Cir. 1991) (“Rule 806
extends the privilege of impeaching the declarant of a hearsay statement but does not obliterate
the rules of evidence that govern how impeachment is to proceed.”); State v. Chaney, 989 P.2d
1091, 1102 (Utah Ct. App. 1999) (“Regardless of the applicability of Rule 806, the affidavit had
to meet basic foundational and reliability requirements. 	Authentication or identification of
evidence is ‘a condition precedent to admissibility.’”).
Here, the trial justice, in the performance of his discretionary, gate-keeping functions,
expressed concerns about basic foundational requirements concerning the proffered affidavit.
Rule 901(a) of the Rhode Island Rules of Evidence6 requires that evidence be properly
6 Rule 901(a) of the Rhode Island Rules of Evidence provides: “(a) General Provision. The
requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.”
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authenticated and identified as a “condition precedent to admissibility.” 	The admissibility of
evidence to attack or support a hearsay declarant under Rule 806 is not unrestricted; it is subject
to the condition that such evidence “be admissible for those purposes if declarant had testified as
a witness.” 	In the case at bar, the trial justice made clear that he would not have allowed
Minerva’s affidavit into evidence, even if Minerva had testified, without “some kind of
foundation.” We are satisfied that his ruling was a sustainable exercise of his ample discretion in
evidentiary matters.
As a second ground for excluding Minerva’s affidavit from the evidence, the trial justice
found that defendant violated Rule 16 of the Superior Court Rules of Criminal Procedure by not
producing the affidavit to the state until after the jury had been sworn. We agree, although we do
so for a different reason than that the trial justice expressed.
The defendant argues that Minerva was at all times a potential witness for the state.
Thus, he was under no obligation to disclose her name under Rule 16(b)(4) as a person whom he
expects to call as a witness, nor was he required to produce her affidavit under Rule 16(b)(5).7
The trial justice concluded, however, that:
“there was a good chance that she was going to testify not
favorable to the State but, rather, favorable to the defense. And so,
even if, in fact, she was not listed as a defense witness and, in fact,
7 Rule 16(b)(5) of the Superior Court Rules of Criminal Procedure provides:
“(b) Discovery by the State. A defendant who seeks any
discovery under subdivision (a) of this rule shall permit the State,
upon receipt of written request, to inspect or listen to and copy or
photograph any of the following items within the possession,
custody or control of the defendant or the defendant’s attorney:
“* * *
“(5) as to those persons other than the defendant whom the
defendant expects to call as witnesses at the trial, all written or
recorded verbatim statements, signed or unsigned, of such persons
and, if no such statement of a witness is in the possession of the
defendant, a summary of the testimony such person is expected to
give at the trial.”
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she still was listed as a State’s witness, we’re into that gray area
where she could have almost been both sides’ witness. 	And it
seems to me that the spirit of Rule 16, that at some point at least
prior to the swearing in of the jury, which caused jeopardy to
attach, that the defense would have made this affidavit known to
the State.”
Although we agree with defendant that Minerva’s statement was not discoverable under
Rule 16(b)(5), we are of the opinion that defendant was obligated to produce it under Rule
16(b)(1), which requires a defendant to produce “all books, papers, documents, photographs,
sound recordings or copies thereof, or tangible objects, buildings, or places which are intended
for use by the defendant as evidence at the trial.”
There can be little doubt that from the moment the trial justice declared Minerva to be
unavailable as a witness and allowed her prior recorded testimony to be read into the record,
defendant intended to introduce Minerva’s affidavit at the trial. As the trial justice noted, by not
disclosing the document for three days until after the jury had been sworn and jeopardy had
attached, defendant “prohibited the State from appealing [the] ruling with regard to the spousal
privilege.”
It is our opinion, therefore, that the trial justice did not abuse his discretion in excluding
Minerva’s affidavit because of defendant’s discovery violation, albeit we do so on grounds other
than those specifically relied upon by the trial justice. See Shepard v. Harleysville Worcester
Insurance Co., 944 A.2d 167, 170 (R.I. 2008) (“[W]e are free to affirm on grounds other than
those relied on by the trial justice.”).
C
Evidence of Other Misconduct
Over the course of the trial the state was allowed to introduce evidence concerning an
incident of domestic assault involving defendant and Minerva that occurred eight days before the
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murder and which resulted in an order prohibiting defendant from contacting Minerva. 	Such
evidence was introduced through Minerva’s recorded testimony, as well as the testimony of
Wilfred Dumont, a jailhouse informant, Patrolman Anthony Teixeira, Jr., the arresting officer,
and Jerome Smith, chief clerk of the District Court. 	In addition, Dumont testified Gautier told
him that after Indellicati was killed that he (Gautier) “was doing coke, snorting coke” at his
sister’s house. 	On appeal, defendant contends the admission of such evidence of misconduct
constitutes reversible error.
The defendant concedes that evidence of a no-contact order clearly was relevant to the
charge that he burglarized his wife’s apartment. 	He maintains, however, that the facts
underlying the no-contact order, i.e., the domestic assault, were not relevant to either the
burglary or murder charge and, even if they were marginally relevant, such facts were unfairly
prejudicial.
This Court has stated that “[t]he admissibility of evidence is within the sound discretion
of the trial justice, and this Court will not interfere with the trial justice’s decision unless a clear
abuse of discretion is apparent.” State v. Brown, 900 A.2d 1155, 1159 (R.I. 2006) (quoting State
v. Mohapatra, 880 A.2d 802, 805 (R.I. 2005)). 	“It is well settled law both that evidence of a
defendant’s bad character or criminal disposition may not be admitted to prove his or her
propensity to commit crime, and that several important exceptions exist alongside this principle.”
Id. at 1160 (quoting State v. Baptista, 894 A.2d 911, 914-15 (R.I. 2006)).
Rule 404(b) of the Rhode Island Rules of Evidence provides the framework for the
admissibility of evidence concerning other crimes and misconduct:
“Other Crimes, Wrongs, or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show that the person acted in conformity therewith. 	It
may, however, be admissible for other purposes, such as proof of
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motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or to prove that defendant feared
imminent bodily harm and that the fear was reasonable.”
Rule 404(b) evidence may also be admitted when “admitting the evidence allows ‘a trier of fact
to hear a complete and, it is to be hoped, coherent story so as to make an accurate determination
of guilt or innocence.’” Brown, 900 A.2d at 1161 (quoting State v. Parkhurst, 706 A.2d 412, 424
(R.I. 1998)). 	Also, “if the prior incidents are interwoven with the charged offense they are
admissible.” State v. Gomes, 690 A.2d 310, 316 (R.I. 1997). 	“In any event, drug use and
addiction are topics that should be handled with sensitivity to avoid undue and unnecessary
prejudice.” State v. D’Alessio, 848 A.2d 1118, 1125 (R.I. 2004).
Based on our review of the record, we perceive no error in the trial justice’s rulings
concerning the incident of domestic assault. 	In overruling defendant’s objection to portions of
Minerva’s recorded testimony in which she refers to the domestic assault, the trial justice said:
“And so, what I have here is a situation where the witness
has testified as to this assault having taken place about a week
before the incident for which he is charged, and it seems to me that
information can come before the jury not to show that he’s a bad
person or to show that because he may have done something in the
past he, therefore, did what he’s been charged in this indictment,
but, rather, to show that there was a motive or a reason for him to
have done what he did that night. He was angry with his wife. As
a result of his anger with his wife, this assault takes place.”
The testimony of Dumont, the jailhouse informant, suggested that defendant had planned
the break-in carefully. 	According to Dumont, defendant said he had unlocked a window in
Minerva’s apartment earlier in the day “because he wanted to break in later to see whether
Minerva was cheating on him.” Mr. Gautier also told Dumont that when he returned by cab, he
got out “up the street” from Minerva’s apartment so that he wouldn’t be seen there. 	He then
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proceeded to the apartment and climbed through the kitchen window he had unlocked earlier that
day.
We conclude that the trial justice did not abuse his discretion by allowing evidence of the
previous domestic assault into evidence. Moreover, we note that the trial justice gave adequate
cautionary instructions on several occasions.8 The defendant also has failed to demonstrate that
the probative value of such evidence was substantially outweighed by the danger of unfair
prejudice under Rule 403 of the Rhode Island Rules of Evidence.
So, too, we are satisfied the trial justice did not abuse his discretion when he admitted
testimony from Patrolman Teixeira that on the morning of defendant’s arrest, Officer Teixeira
recognized both defendant and his automobile from the previous domestic assault incident. The
trial justice ruled the testimony relevant with respect to the issue of defendant’s identity and gave
an appropriate limiting instruction to the jury.
With regard to the testimony about defendant’s drug use after the murder, the state
contends that the evidence was admitted to fill holes in the chronology of events, specifically the
time between defendant’s arrival at his sister’s house and his apprehension by the police. After
the testimony was elicited, defendant asked for a cautionary instruction, to which the trial justice
8 On four occasions during the reading of Minerva’s testimony, the trial justice warned the
jurors:
“[T]o the extent that the witness, Minerva Gautier, testified that on
other occasions, the defendant engaged in other untoward conduct,
bear in mind that he has not been charged with any such untoward
conduct 	or 	alleged 	misconduct, 	and 	you 	may 	not 	draw 	the
inference that the defendant committed the criminal offenses he is
on trial for simply because on other occasions, he may have acted
improperly.
“To the extent that you decide to consider this evidence, it is
admitted for your consideration for the limited purpose as it may
relate to the defendant’s motive, intent or plan with regard to the
offenses for which he is presently on trial. You may not consider
this evidence for any other purpose.”
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agreed, stating “[a]nd to the extent that you decide to consider this evidence, it is admitted for
your consideration for the limited purpose as it may relate to the defendant’s motive, intent or
plan with regard to the offenses for which he’s presently on trial and you may not consider this
evidence for any other purpose.” Thereafter, defendant neither objected to the instruction nor did
he request a mistrial. 	Having asked for, and received, an appropriate cautionary instruction,
defendant has no basis for arguing reversible error on appeal. Accordingly, we perceive no error
in the trial justice’s evidentiary rulings.
D
Bolstering the Testimony of Wilfred Dumont
The defendant argues that the trial justice erred in allowing the state to unfairly and
repeatedly bolster the credibility of Wilfred Dumont, a jailhouse informant. 	The defendant
asserts that the state repeatedly emphasized the witness’s obligation to tell the truth as part of the
cooperation agreement, thereby vouching for his credibility.
Vouching occurs when “the government says or insinuates that it has ‘special knowledge’
that its witness is testifying truthfully.” State v. Chakouian, 537 A.2d 409, 412 (R.I. 1988).
Vouching can also occur “if the prosecution ‘place[s] the prestige of the government behind the
witness * * *.’” Id. (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)).
To 	preserve 	evidentiary 	objections 	for 	review 	on 	appeal 	the 	objection 	must 	be
“sufficiently focused so as to call the trial justice’s attention to the basis for said objection.” State
v. Brown, 709 A.2d 465, 477 (R.I. 1998) (quoting State v. Toole, 640 A.2d 965, 972 (R.I.
1994)). 	“‘[A]llegations of error committed at trial are considered waived if they were not
effectively raised at trial, despite their articulation at the appellate level.’” Id. (quoting Toole,
640 A.2d at 973).
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Our review of Dumont’s testimony shows that defendant objected to the questioning six
times. 	The defendant did not raise vouching objections each time, but instead made two
objections based on the form of the questions, both of which were overruled. 	Another of the
objections defendant made was that the state was leading the witness. 	This objection was
sustained. 	Notably, the two vouching objections defendant made either were sustained or
effectively sustained. The first objection for vouching was sustained by the trial justice and the
second objection was not ruled upon by the trial justice because he, instead, did not allow
Dumont to answer, and ended the trial for the day. 	The defendant did not object to the trial
justice’s handling of this objection. 	We are satisfied the trial justice did not commit reversible
error in this regard.
The defendant also argues that the trial justice erred by allowing Dumont to improperly
insinuate that he had held up his end of the bargain to tell the truth when he implied that the
prosecutor had written a letter on his behalf to the Parole Board. Thus, according to defendant,
“the prosecutor indirectly shored up his testimony by effectively portraying the state as the
guarantor of the witness’s credibility.” 	We fail to see, however, how this argument has been
preserved. The transcript reflects that defendant made two objections to this line of questioning,
both of which were sustained.
E
Voluntary Manslaughter Instruction
The defendant next argues that the trial justice committed prejudicial error by failing to
instruct the jury on the lesser-included offense of voluntary manslaughter. The defendant argues
that the evidence allowed a rational jury to conclude that he killed Indellicati in the heat of
sudden passion, “upon discovering, first-hand, his wife’s extramarital affair.” 	The state,
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however, maintains that even if defendant were entitled to a jury instruction on voluntary
manslaughter, he waived this objection at trial. We agree.
This Court has held that “[a] defendant charged with a crime ‘is entitled to instructions
that explain those propositions of law that relate to material issues of fact that the evidence
supports.’” State v. Ortiz, 824 A.2d 473, 485 (R.I. 2003) (quoting State v. Fetzik, 577 A.2d 990,
996 (R.I. 1990)). 	As a result, “[a] defendant is entitled to an instruction on a lesser-included
offense when the evidence produced at trial justifies such an instruction.” State v. Ruffner, 911
A.2d 680, 685-86 (R.I. 2006). 	“The trial justice, however, should not instruct the jury on a
lesser-included offense when the evidence wholly fails to support such a charge.” State v.
McGuy, 841 A.2d 1109, 1112 (R.I. 2003). 	“In determining whether the evidence calls for a
lesser-included-offense instruction, the trial justice should not weigh the credibility of the
testimony; rather, he or she should consider whether, at the very least, some minimal evidence
exists that, if credited by the jury, could support a conviction for the lesser-included offense.” Id.
When determining whether a trial justice’s refusal to instruct on a lesser-included offense
was proper, “this Court examines the record to determine whether adequate evidence was
introduced to merit a jury instruction on the lesser-included offense.” State v. Garcia, 883 A.2d
1131, 1137 (R.I. 2005). “In undertaking this de novo review, the role of this Court is limited to
‘ascertaining whether an actual and adequate dispute exists as to the distinguishing element
between the lesser and greater offenses in question.’” State v. Motyka, 893 A.2d 267, 281 (R.I.
2006) (quoting Garcia, 883 A.2d at 1137). 	“When there is no such dispute, our review is at an
end.” Garcia, 883 A.2d at 1137.
In the case at bar, after the trial justice read the instructions to the jury, defendant
objected to the absence of a voluntary-manslaughter charge. In making his argument, defendant
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stated that the facts in his case were similar to the facts of Ortiz, 824 A.2d at 473, because the
facts in Ortiz were considered “almost an imperfect self defense.”9 The defendant argued:
“I will alert the court to State vs. Pedro Ortiz found at 824
A.2d 473. The facts of that case are very similar to the facts of the
case here. In Ortiz, your Honor, the defendant came upon a person
who struck him first. 	Mr. Ortiz, your Honor, had a board with a
nail in it and he proceeded to hit him in the head. At some point, a
struggle ensued and during the course of the struggling, there was
chasing going on, and Mr. Ortiz bludgeoned the decedent in that
case to death, your Honor, using a board with nails on it. I believe
they needed fingerprints to identify who the decedent was. In that
case, it was proper, as the Supreme Court said, based on the facts
of almost an imperfect self defense or just based on the fact that
they found voluntary manslaughter should have been given * * *.”
In Ortiz, this Court held that the defendant was not entitled to a jury instruction on
involuntary manslaughter because the killing was not imperfect self-defense as he argued and,
even if the defendant had acted in imperfect self-defense, the defendant would not be entitled to
an involuntary manslaughter instruction because the killing still would be voluntary. Ortiz, 824
A.2d at 484, 487-88.
We need not comment on this argument, however, because defendant does not raise the
“imperfect self-defense” argument on appeal. 	Instead, defendant argues that the killing was
committed in “the heat of passion” because defendant caught his wife committing adultery, thus
confirming his suspicion that she had been cheating on him. Rule 30 of the Superior Court Rules
of Criminal Procedure provides in part: “No party may assign as error any portion of the charge
or omission therefrom unless the party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which the party objects and the grounds of the party’s
9 “[T]he doctrine of imperfect self-defense ‘purports to reduce the crime of murder to voluntary
manslaughter.’ * * * It is based on the underlying theory that ‘when a defendant uses deadly
force with an honest but unreasonable belief that it is necessary to defend himself, the element of
malice, necessary for a murder conviction, is lacking.” State v. Linde, 876 A.2d 1115, 1129 (R.I.
2005) (quoting State v. Catalano, 750 A.2d 426, 429 (R.I. 2000)).
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objection.” “The purpose of Rule 30 is to notify the trial justice, with clarity and specificity, of
any deficiencies in the charge so that the alleged error may be cured before the jury retires for
deliberations.” State v. Brown, 898 A.2d 69, 83 (R.I. 2006). 	As a result, “if an objection to a
jury instruction is not effectively raised below, it is waived on appeal.” State v. Crow, 871 A.2d
930, 935 (R.I. 2005).
In the present case, defendant failed to make the same objection that he makes before this
Court after the trial justice gave his instructions to the jury. 	As a result, we hold that the
objection to the jury instructions that defendant now raises on appeal has been waived.
F
Burglary Instructions
The defendant next argues that the trial justice committed reversible error during his
instructions to the jury about the criminal offense of burglary. 	More specifically, defendant
contends that the trial justice unfairly commented on the evidence during the jury instruction by
zeroing in on particular facts that members of the jury could consider in making their
determination.
The standard of review for jury instructions is well settled. “The charge given by a trial
justice need only ‘adequately cover[ ] the law.’” State v. Krushnowski, 773 A.2d 243, 246 (R.I.
2001) (quoting State v. Grundy, 582 A.2d 1166, 1170 (R.I. 1990)). “As long as the instructions
‘neither reduce nor shift the state’s burden of proof’ we sustain the trial justice’s charge as
given.” State v. Hazard, 797 A.2d 448, 469 (R.I. 2002) (quoting Krushnowski, 773 A.2d at 246).
“On review, we examine the instructions in their entirety to ascertain the manner in which a jury
of ordinary intelligent lay people would have understood them.” Krushnowski, 773 A.2d at 246.
“[W]e review challenged portions of jury instruction ‘in the context in which they were
rendered.’” Id. (quoting State v. Gordon, 508 A.2d 1339, 1349 (R.I. 1986)).
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The state argues that the court’s instruction cannot be interpreted as commenting on the
weight of the evidence. The defendant, however, states that when the trial justice was giving the
jury a list of evidence to consider when determining whether the element of “dwelling of
another” was satisfied, the trial justice only noted evidence favorable to the state and left out
important evidence in his favor, such as the fact that defendant’s name was on the lease to
Minerva’s apartment.10 By providing the jury with this “laundry list” of evidence to consider,
defendant contends, the trial justice improperly invaded the province of the jury by commenting
on the weight that should be given to the evidence. 	The defendant further maintains the trial
justice essentially gave a preemptory instruction on a required element of the crime of burglary.
We disagree.
The trial justice’s instructions stated clearly that the state bore the burden of proof and
had the responsibility of proving each element of every crime beyond a reasonable doubt.
Additionally, when giving the instruction on the lesser-included offense of breaking and
10 The trial justice’s jury instructions on the critical issue of “dwelling of another” are in part as
follows:
“The traditional term for a residence is a dwelling, dwelling
house. A dwelling house refers to a person’s home. That is to say,
any habitable building or place, whether it be a house or an
apartment. 	The State does not have to prove who actually owned
the residence. 	It merely has to establish to your satisfaction that
the defendant was not entitled to be in the residence at the time the
burglary occurred. The uninvited entry of an estranged spouse into
the residence of the other spouse may constitute an unlawful entry
even if the spouse accused of burglary had an ownership interest in
the residence.
“Factors you may consider in determining whether a break
occurred into the dwelling house of another are: One, was there a
valid no contact order between the defendant and Minerva Gautier;
two, did the defendant have possession of the premises; three, was
the defendant living in the premises on a regular basis; four, did
the defendant have personal possessions on the premises; five, did
the defendant have a key to the premises?”
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entering, the trial justice highlighted evidence that the jury “may consider.” “It is unquestioned
that a trial justice has a duty to ensure that the jury is not influenced in its factfinding by what it
believes to be the opinion of the court.” State v. McKee, 442 A.2d 440, 443 (R.I. 1982). 	The
trial justice did not state that any of the evidence was trustworthy, nor did he state that the
evidence listed was the only evidence the jury could consider on that point. 	Merely listing
evidence that the jury could consider without commenting more does not persuade jurors by
suggesting what is the opinion of the court.
Turning now to defendant’s contention that the trial justice erred by failing to mention
that defendant’s name was on the lease for Minerva’s apartment, we find that this argument is
waived because defendant failed to object to the omission below. See Crow, 871 A.2d at 935.
Accordingly, we perceive no error concerning the trial justice’s jury instructions.
G
Motion to Pass
The defendant’s final contention on appeal is that the trial justice erred by not granting
his motion to pass the case when the chief clerk of the District Court misspoke while testifying.
The chief clerk had been called as a witness by the state. When asked by the prosecutor “[w]hat
was the charge against Mr. Gautier in that case?”, the chief clerk, with a District Court file folder
in hand, responded, “The case has a number of charges in it, prior charges, prior dates.” 	The
defendant immediately objected and requested a sidebar conference, at which he pressed for a
mistrial. 	According to defendant, the jury could not be expected to disregard the testimony of
unspecified other charges, particularly since the information had been given by a witness cloaked
with the authority conveyed by his very title.
After a brief discussion, the trial justice asked the parties to research the issue, and he
recessed the trial for lunch. During the break, the chief clerk reviewed the District Court file and
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determined that it contained only a single charge, specifically the previously discussed domestic
assault charge. 	After the luncheon recess, the trial justice determined the witness simply had
made a mistake, and he did not find “that what was stated to the jury so inflamed them that they
cannot disregard it with a proper cautionary instruction.” 	The trial justice, therefore, denied
defendant’s motion to pass. 	When the trial resumed, the chief clerk corrected his earlier
testimony and the trial justice gave a cautionary instruction. 	On appeal, defendant continues to
maintain that such remedial measures “were insufficient to dispel the prejudicial taint of the
clerk’s offending testimony.”
This Court traditionally has assigned great weight to the decision of a trial justice to pass
a case vel non. We consistently have held that “a trial justice’s decision on a motion to pass the
case is addressed to the sound discretion of the trial justice, and this Court will not disturb the
ruling on such a motion absent an abuse of discretion.” State v. Bolduc, 822 A.2d 184, 186 (R.I.
2003). “When considering a motion for a mistrial, a trial justice assesses the prejudicial impact
of the statement(s) or the event in question on the jury and determines whether ‘the evidence [is]
of such a nature as to cause the jurors to become so inflamed that their attention [is] distracted
from the issues submitted to them.” Id. (quoting Pacheco, 763 A.2d at 979). “We accord the trial
justice’s determination great deference because ‘he or she possesses a “front-row” seat at the trial
and can best determine the effect of the improvident remarks upon the jury.’” Pacheco, 763 A.2d
at 979 (quoting State v. Figueroa, 673 A.2d 1084, 1091 (R.I. 1996)). 	“Not all potentially
prejudicial statements or other disturbing events that occur during a trial require the trial justice
to pass the case.” Bolduc, 822 A.2d at 186. 	“Even a prejudicial remark, however, does not
require the granting of a motion to pass.” Pacheco, 763 A.2d at 979.
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After reviewing the trial proceedings, as well as the parties’ arguments, it is absolutely
clear to us that the trial justice did not abuse his discretion by denying defendant’s motion to
pass. After a brief sidebar conference, he recessed the trial so that the parties could research the
issue more. He then engaged in a long discussion with counsel, outside the presence of the jury,
in which he considered the current stage of the proceedings and the circumstance that the witness
whose testimony was at issue was the chief clerk of the District Court, with twenty years of
experience. 	He then reviewed the appropriate standard for considering a motion to pass,
concluding:
“I would feel that the proper mechanism to take is for the –
perhaps the testimony of the witness as to what he brought with
him today to be stricken, that the new question posed showing the
mistake that was made, the court will then instruct the jury that
what they heard this morning with regard to charges was – is to be
disregarded by them for the ability to unring a bell as per their
oath, they shouldn’t maybe make any references to it and it should
be disregarded.
“And it seems to me under the circumstances, that should
solve any problems that are related.”
We conclude that the trial justice made a thoughtful determination well within his
discretionary authority.
III
Conclusion
For the reasons stated in this opinion, we affirm the judgment of conviction entered in the
Superior Court. The record may be returned to the Superior Court.
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COVER SHEET
TITLE OF CASE: 	State of RI v Jacques Gautier
DOCKET SHEET NO : 	2006-58A
COURT: 	Supreme
DATE OPINION FILED: 	June 27, 2008
Appeal from
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: 	Judge Gilbert V. Indeglia
JUSTICES: 	Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice Paul A. Suttell
ATTORNEYS:
For Plaintiff : 	Christopher R. Bush
ATTORNEYS:
For Defendant: Catherine A. Gibran