State v. Joseph D. Maloney

Supreme Court
No. 2006-82-C.A.
(K1/88-615A)
State 	:
v. 	:
Joseph D. Maloney. 	:
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. 2006-82-C.A.
(K1/88-615A)
State 	:
v. 	:
Joseph D. Maloney. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court. 	This is an appeal by Joseph D. Maloney from an
adjudication 	of 	probation 	violation. 	In 	his 	appeal, 	the 	defendant 	argues: 	(1) 	that 	the
prosecution’s decision to present evidence about two different acts of alleged wrongdoing in two
separate probation violation hearings (rather than in one combined probation violation hearing)
was the product of prosecutorial vindictiveness; and (2) that the hearing justice erred when she
determined, at the conclusion of the second probation violation proceeding, that the defendant
had violated the terms and conditions of his probation.
This case came before the Supreme Court for oral argument on March 31, 2008. For the
reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
In 	the 	following 	paragraphs, 	we 	describe 	the 	factual 	events 	and 	the 	procedural
developments that are pertinent to the legal issues implicated by this case. 	The factual and
procedural issues are complex, while the questions of law are rather straightforward.

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A. The 1991 Plea Concerning Several Felonies
In 1988, defendant was arrested in connection with a murder at his apartment building.
On May 2, 1991, defendant entered a plea of nolo contendere to charges of: (1) second-degree
murder; (2) burglary; and (3) possession of a sawed-off shotgun. For these crimes he received a
sentence of fifty years, with twenty years to serve and thirty years suspended, with probation.
The defendant was released on parole on June 23, 1999.
B. The First Super. R. Crim. P. 32(f) Notice of Violation and the Disposition Thereof
On May 31, 2002, defendant was arrested and charged with simple assault and felony
assault on one Lloyd Pettis. 	The simple assault charge was based on the allegation that
defendant had chased after Mr. Pettis, who allegedly had been driving recklessly in the
neighborhood, and had punched Mr. Pettis in the face after he swore at defendant. 	The felony
assault charge was based on an accusation by Mr. Pettis that defendant had threatened him with a
machete.
In view of what allegedly had transpired on May 31, the state filed a notice of violation
pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure1 on June 3, 2002, and
defendant was held without bail pending a probation violation hearing. 	A hearing was
subsequently held on October 15, 2002 at the conclusion of which the hearing justice ruled that
1 Rule 32(f) of the Superior Court Rules of Criminal Procedure provides as follows:
“The court shall not revoke probation or revoke a suspension of
sentence or impose a sentence previously deferred except after a
hearing at which the defendant shall be afforded the opportunity to
be present and apprised of the grounds on which such action is
proposed. 	The defendant may be admitted to bail pending such
hearing. 	Prior to the hearing the State shall furnish the defendant
and the court with a written statement specifying the grounds upon
which action is sought under this subdivision.”

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defendant had violated his probation.2 Thereafter, on November 6, 2002, in view of that finding,
defendant was ordered to serve six years of the underlying sentence.
C. The Second Rule 32(f) Notice of Violation
On November 27, 2002, the state filed a second Rule 32(f) notice of violation with
respect to defendant. 	This second notice of violation stemmed from an investigation into an
alleged “murder for hire” scheme which defendant purportedly had planned. (The details of that
investigation are discussed in the next section of this opinion.)
D. The Events Leading up to the Second Rule 32(f) Notice of Violation3
It will be recalled that defendant was imprisoned in 1991 as a consequence of having pled
nolo contendere to several felony charges. 	Upon his release from prison several years later, in
1999, defendant learned that his former business associate (one Daniel Leonard) had, in the
words of the hearing justice when she summarized the testimony at the second Rule 32(f)
hearing, “taken advantage of [defendant’s] incarceration and had taken over defendant’s business
without compensating defendant for his interest in the business.”4
The defendant discussed his feelings about Mr. Leonard with one Richard Usenia, a man
whom the hearing justice described as a “career criminal” and who happened to be a confidential
2 The justice of the Superior Court who presided over defendant’s first probation violation
hearing did not find Mr. Pettis credible as to his allegation that defendant had threatened him
with a machete. 	She stated: “Mr. Pettis’ testimony about the machete does not have a ring of
truth about it.” 	Accordingly, defendant was found to be a violator only with respect to the
simple assault charge.
3 The factual narrative concerning the background of the second Rule 32(f) notice of
violation is derived from the testimony of witnesses at the violation hearing that was conducted
in 2004.
4 The hearing justice also observed that defendant was “angry with Leonard” because of
those actions, and she further commented that defendant felt that Mr. Leonard “had cheated
him.”

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police informant. Mr. Maloney and Mr. Usenia had first met in prison. After both men had been
released on probation, defendant encountered Mr. Usenia at a medical facility that provides urine
screen tests for certain parolees. 	In addition, defendant also attended meetings at Narcotics
Anonymous with Mr. Usenia, and they also spoke with each other several times on the
telephone.
Despite their friendship, defendant was unaware that Mr. Usenia served as a confidential
police informant. 	In 2001, Mr. Usenia contacted the Warwick Police Department and relayed
what defendant had previously said concerning his former business partner, Mr. Leonard. 	The
receipt 	of 	that 	information 	prompted 	the 	Warwick 	Police 	Department 	to 	undertake 	an
investigation into the possibility that there might be an attempt on the life of Mr. Leonard. Based
on this information, and with the assistance of Mr. Usenia, an undercover operation was initiated,
in which Detective Albert Faella, an undercover agent who was actually an officer in another
Rhode Island police department, posed as a hit man prepared to be hired by defendant. 	In due
course, the undercover agent met with defendant to discuss his desire to have Mr. Leonard killed.
The defendant and Detective Faella met twice in November of 2001. 	During those
meetings, two possible attacks on Mr. Leonard were discussed: (1) assaulting and beating Mr.
Leonard as a way of delivering a message; or (2) killing him and disposing of his body in the
woods. 	At one point the two men also drove to Mr. Leonard’s place of business, where
defendant pointed out the security cameras at that site and offered personal details about Mr.
Leonard.
The defendant and Detective Faella never made plans with respect to harming Mr.
Leonard that were sufficiently specific for the police to conclude that they would be justified in
arresting defendant; defendant would later state in his testimony at the second violation hearing

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that he did not believe Detective Faella and that he suspected that the would-be “hit man” might
have been part of a trap set up by Mr. Leonard. 	In February of 2002, Mr. Usenia was arrested
and therefore was no longer available for use in the undercover operation. 	It appears that the
Warwick Police Department’s investigation into the alleged murder for hire scheme became
dormant after the second meeting between defendant and Detective Faella in November of 2001.
E. Why There Were Two Separate Rule 32(f) Proceedings
As the proceedings relative to the first Rule 32(f) notice of violation (which dealt with the
alleged assault on Mr. Pettis) were drawing to a close, the prosecutor became aware of the
investigation into the alleged murder for hire scheme in which defendant allegedly played a role.
Upon becoming aware of information concerning the alleged murder for hire scheme, the
prosecutor sought to introduce evidence concerning the investigation into those proceedings. At
the sentencing of defendant on the first probation violation, the prosecutor stated:
“[T]he last time this matter was set down for sentencing, I
indicated to the Court and [defense counsel] that, subsequent to the
conclusion of the violation hearing, the State received additional
information concerning Mr. Maloney, which I felt was extremely
relevant and probative to the issue of sentencing. * * * This
additional information the State came into after, as I said, the
hearing concluded * * *.”
The prosecutor stated that the alleged murder for hire scheme had occurred six months before the
assault incident. However, she further explained that, because the murder for hire investigation
was still in an information-gathering stage, the prosecutor herself had not been aware of it. The
hearing justice responded:
“[I]n the event that this particular allegation has weight, I cannot
fathom how it is not going to result in a new [Rule] 32(f), at the
very least, and a new charge, as well; right?”

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The prosecutor replied, however, that the murder for hire investigation would not necessarily
evolve into a new probation violation proceeding. She stated:
“The decision, as to whether or not a new [Rule] 32(f) [would be
filed], hadn’t really been made, and I think the thought was to wait
and see what happened with this [the first probation violation
proceeding].”
The hearing justice declared that the state would have to go forward in that regard in a
separate violation proceeding. She stated:
“There is sufficient evidence, and there’s a whole package of
information here that this man was, indeed, involved in such
activity. It would seem to me that, even if there wasn’t going to be
a new criminal charge filed, certainly a [Rule] 32(f) could be filed.
* * * [I]f this particular investigation has any merit, whatsoever,
that you think a Judge could be reasonably satisfied it occurred,
[then] the remedy is a [Rule] 32(f) * * * .”
The hearing justice stated that she would give defendant a choice between: (1) proceeding with
the sentencing with respect to the simple assault probation violation alone; and (2) continuing the
sentencing while defendant would be held without bail and allowing the state to complete its
investigation on the murder for hire allegations. Defense counsel stated that defendant chose the
first option.
F. The Hearing on the Second Rule 32(f) Notice of Violation
Subsequently, on November 27, 2002, the state filed a second Rule 32(f) notice of
probation violation—this time referring to the alleged murder for hire plot. 	In response,
defendant filed two motions: the first motion called for the hearing justice (who had presided
over defendant’s first probation violation hearing) to recuse herself; the second motion was a
motion to dismiss on the basis of alleged prosecutorial vindictiveness and double jeopardy
grounds. After considering both motions and conducting hearings concerning same, the hearing
justice denied both.

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1. The Recusal Motion5
At the October 1, 2003 hearing on defendant’s motion to recuse, defendant argued that,
because the hearing justice had found his testimony lacking in credibility during the first Rule
32(f) hearing, she would be unable to separate her earlier impressions of his credibility from his
credibility in the second probation violation proceeding. The hearing justice stated that she was
not predisposed to find defendant lacking in credibility; she also stated that she had in fact found
defendant credible in one aspect of the prior proceeding when she determined that he had not
threatened Mr. Pettis with a machete. The hearing justice, stating that she would view defendant
as having a clean slate in terms of credibility, determined that she could be fair and impartial in
her assessment of the evidence at the second probation violation proceeding, and she denied his
motion to recuse.
2. The Allegation of Prosecutorial Vindictiveness
On the next day, October 2, 2003, the hearing justice conducted a hearing on defendant’s
motion to dismiss for prosecutorial vindictiveness. 	The defendant argued that the state was
pursuing the second probation violation as retribution for defendant’s having obtained a
relatively favorable outcome with respect to his first probation violation proceeding (the Pettis
matter).6 In support of this contention, defendant pointed to the fact that, at the sentencing
hearing for the first probation violation, the prosecutor stated that there had not been a final
decision as to whether or not the state would proceed with a violation proceeding on the murder
5 Although defendant has not appealed from the hearing justice’s ruling with respect to his
motion to recuse, we nonetheless summarize the basis for that motion and the hearing justice’s
reaction thereto. We note that the hearing justice did address that motion and carefully explained
her decision not to recuse herself.
6 It will be recalled that defendant was not found to be a violator with respect to the felony
assault charge (involving an alleged threat with a machete). See note 2, supra.

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for hire allegations because “the thought was to wait and see what happened” with the first
probation violation proceeding.
The state, for its part, maintained that the quoted comment meant only that, if defendant
was found not to be in violation of probation in the Pettis matter, an investigation into the murder
for hire allegations could resume after he was released. 	If, however, he were to be imprisoned
for having violated probation because of the Pettis assault, then the investigation would have to
halt due to his incarceration. The prosecutor insisted that she was unaware of the murder for hire
investigation while she was engaged in plea bargaining with respect to the first violation charge,
i.e., the assault on Mr. Pettis.
The hearing justice issued a decision on October 28, 2003 with respect to defendant’s
motion to dismiss. She ruled that there was no evidence that the state intentionally withheld the
fact of the murder for hire investigation or that it later proceeded on that basis out of
vindictiveness. 	She ruled that the state was not precluded from pursuing violation proceedings
on the murder for hire allegations, and she therefore denied defendant’s motion to dismiss.
3. The Second Probation Violation Hearing
Eleven days of probation violation proceedings commenced on March 26, 2004. 	The
hearing justice issued a bench decision on July 26, 2004. In it, she ruled that she was reasonably
satisfied that defendant had violated his probation when he made plans with an undercover agent
to kill Mr. Leonard. 	The hearing justice ruled that defendant should serve ten years of his
suspended sentence and that that ten-year term was to run consecutively to the six-year term
imposed in connection with the earlier probation violation. The defendant timely appealed.

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Standard of Review
The duty of a judicial officer presiding at a probation violation hearing is to determine
whether a defendant failed to keep the peace and remain on good behavior—those being
conditions of probation. State v. McCarthy, 945 A.2d 318, 326 (R.I. 2008). The burden of proof
that the state must bear in such a proceeding is simply that of demonstrating that “reasonably
satisfactory” evidence supports the finding that a defendant has violated probation. 	State v.
Forbes, 925 A.2d 929, 934 (R.I. 2007); see also State v. Sylvia, 871 A.2d 954, 957 (R.I. 2005).
Determinations regarding witness credibility and the weight of the evidence are duties
that fall within the domain of the fact-finder, who is in an ideal position to make such
observations. State v. Texter, 896 A.2d 40, 43-44 (R.I. 2006).
In reviewing a finding of a probation violation, this Court considers “whether the hearing
justice acted arbitrarily or capriciously in finding a violation” and whether the hearing justice
acted arbitrarily or capriciously in assessing witness credibility. State v. McLaughlin, 935 A.2d
938, 941-42 (R.I. 2007) (internal quotation marks omitted); State v. Bourdeau, 448 A.2d 1247,
1249 (R.I. 1982); see also Forbes, 925 A.2d at 934.
Analysis
On appeal, defendant contends that the state’s filing of the second Rule 32(f) notice of
probation violation constituted prosecutorial vindictiveness and that the hearing justice erred in
failing to dismiss the case. The defendant further argues that the hearing justice erred in finding
that he had violated the terms and conditions of his probation. 	He argues in his brief to this
Court that “the evidentiary underpinnings for this case bordered almost on the absurd;” he further
argues that, not only were he and Mr. Usenia not close, but that he actually “thought Usenia was
trying to swindle him.” 	The defendant contends that he never intended to have Mr. Leonard

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killed and that his conversations with the undercover agent make that point clear. The defendant
asserts that Mr. Usenia purposely rekindled his anger toward Mr. Leonard and that he was
entrapped.
A. The Allegation of Prosecutorial Vindictiveness
The defendant’s contentions with respect to his allegation of prosecutorial vindictiveness
can best be summarized by quoting the following sentences from his brief to this Court:
“[I]t is crystal clear that the prosecution had all of the facts it
needed before or at the time of the first violation of probation
hearing * * *. 	When they did not get the desired result from the
hearing and had to settle for a mere [simple] assault charge, it is
obvious that they utilized the instant ‘offense’ as the ‘backup’ for
this prosecutorial quest against Mr. Maloney.”
A defendant can prove prosecutorial vindictiveness by making an evidentiary showing of
actual vindictiveness constituting a due process violation; in the alternative, a defendant may
present evidence establishing that the circumstances of the case “warrant a presumption of
vindictiveness.” 	State v. Tilson, 794 A.2d 465, 467 (R.I. 2002) (internal quotation marks
omitted).
The “exceedingly difficult” showing of actual vindictiveness requires that a defendant
provide “objective evidence” that a prosecutor’s actions were calculated “to punish a defendant
for asserting his legal rights.” Tilson, 794 A.2d at 467 (internal quotation marks omitted).
By contrast, the presumption of vindictiveness comes into play when a defendant
presents sufficient circumstantial evidence to enable the hearing justice to rule that there is a
basis for that presumption. 	Tilson, 794 A.2d at 467. 	At that point, the burden shifts to the
prosecutor to rebut the presumption by showing that objective reasons motivated the prosecution
of the defendant. Id.

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In the instant case, defendant asserts that the conduct of the prosecutor falls within the
parameters of both the concept of actual vindictiveness and the concept of presumptive
vindictiveness. 	He contends that the delay in pursuing the second probation violation until the
conclusion of the assault matter constitutes objective evidence of prosecutorial vindictiveness; he
also contends that vindictiveness could be inferred from the circumstances. 	The defendant
asserts that the state was aware of the facts of the murder for hire investigation several months
before the first probation violation hearing, but that the state made “it clear they did not want to
prosecute until after the hearing * * *.” 	He characterizes the result of the first probation
violation hearing as “a court finding of an offense far less than that hoped for * * *,” and he cites
the state’s delay in pursuing the second Rule 32(f) filing, as well as its “wait and see approach”
with respect to that second filing, as “clear evidence of presumptive or apparent vindictiveness.”
We disagree. 	While it is true that the state did not inform defendant during the plea
bargain negotiations with respect to the assault allegations that he could also be subject to a
murder for hire violation proceeding, the prosecutor stated that she was not even aware of the
murder for hire investigation until sentencing began on the assault violation. 	As the hearing
justice noted, the prosecution’s “wait and see” response revealed not vindictiveness, but rather
recognition that defendant’s arrest “prevented the authorities from continuing their undercover
investigation.” The hearing justice described the situation as follows:
“The State had to determine whether to charge the defendant based
upon an investigation that they had hoped would have continued
but was aborted due to his arrest on the Pettis matter. 	They
decided to wait and see if the charges concerning Pettis resulted in
further incarceration, in which case their investigation could not be
continued because the defendant would be incarcerated. * * * Once
it was apparent to the State that he was incarcerated on the Pettis
matter, they then had to determine whether to charge him or not
based upon the information they had previously gathered, because
the investigation wasn’t going to go much further; he was in jail.”

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The hearing justice ruled that the existence of an ongoing investigation of defendant with respect
to an alleged murder for hire scheme did not preclude the prosecution from filing a Rule 32(f)
notice with respect to the assault of Mr. Pettis. 	She further stated: “I don’t find that [the
prosecutor] negotiated the Pettis charge * * * in bad faith.” 	She also stated that she was not
convinced by defendant’s argument that, if he had been violated on the grounds of assault with a
dangerous weapon (rather than just the simple assault), then the state would have abandoned the
murder for hire investigation: “I see no evidence of that,” she remarked.
We are not persuaded by defendant’s argument that the hearing justice should have
dismissed the second Rule 32(f) violation because of prosecutorial vindictiveness. 	Having
reviewed the record, it is our conclusion that the hearing justice appropriately came to the
conclusion that there was no evidence that vindictiveness, either actual or presumed, motivated
the decisions of the prosecutor in this case.
B. The Finding of Probation Violation
The 	defendant’s 	second 	argument 	on 	appeal 	is 	that 	the 	hearing 	justice 	erred 	in
determining that he had violated the terms and conditions of his probation with respect to the
state’s contention that he had been engaged in orchestrating a murder for hire plot.
We have stated that, in a probation violation proceeding, the state need not prove beyond
a reasonable doubt that an alleged probation violator committed a crime. State v. Bouffard, 945
A.2d 305, 313 (R.I. 2008). 	Instead, “the presiding judicial officer need only be ‘reasonably
satisfied’ that a defendant breached a condition of probation by failing to keep the peace or
remain on good behavior.” Id.; see also McCarthy, 945 A.2d at 327; State v. Seamans, 935 A.2d
618, 623 (R.I. 2007). The focus of a probation violation hearing is not on the defendant’s guilt
or innocence (as a matter of criminal law) with respect to the most recent crime with which he or

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she has been charged; rather, the focus is on whether or not the defendant’s “conduct on the day
in question had been lacking in the * * * good behavior expected and required by his [or her]
probationary status.” State v. Brown, 915 A.2d 1279, 1282 (R.I. 2007) (internal quotation marks
omitted).
In the instant case, the hearing justice, in accordance with what is expected at a probation
violation proceeding, weighed the evidence and assessed the credibility of witnesses. 	See
McCarthy, 945 A.2d at 328. She addressed defendant’s entrapment argument, and she reasoned
that Maloney “certainly was not an unwary innocent [but rather] * * * a person of a criminal
mind filled with rage over a wrong that he perceived was committed on him by [Mr.] Leonard.”
The hearing justice specifically found that defendant was not entrapped—and that defendant
himself had been the first person to raise the idea of assaulting or killing Mr. Leonard “and that
he wanted to hire someone to do so.”
Although she noted that defendant’s plans to hurt or kill Mr. Leonard were certainly
inchoate rather than a “clos[ed] * * * deal,” the hearing justice specifically pointed to: (1)
defendant’s meeting with a self-proclaimed hit man; (2) his provision of information to the
purported hit man regarding a potential target; and (3) his discussing with both Mr. Usenia and
the self-proclaimed hit man his desire to kill or hurt Mr. Leonard. She then ruled that those were
all factors that justified her conclusion that she was “reasonably satisfied the defendant is a
violator * * *.” Although defendant asserted in the hearing that his remarks to the purported hit
man constituted mere boasting, the hearing justice disagreed; she stated: “[D]efendant did
considerable footwork in preparation for a possible contract on [Mr.] Leonard.”
After conducting our own review of the record, we are of the opinion that the hearing
justice acted neither arbitrarily nor capriciously when she determined that the evidence addressed

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at the probation violation hearing with respect to the murder for hire scheme was sufficient to
demonstrate that defendant had violated the terms and conditions of his probation. 	We agree
with the hearing justice that the facts presented by the state were sufficient to indicate that
defendant had failed to keep the peace and remain on good behavior.
Conclusion
For the reasons delineated in this opinion, the defendant’s appeal is denied and dismissed.
The judgment appealed from is affirmed, and the papers in the case may be remanded to the
Superior Court.

15
COVER SHEET
TITLE OF CASE: 	State of Rhode Island v Joseph Maloney
DOCKET SHEET NO : 	2006-82A
COURT: 	Supreme
DATE OPINION FILED: 	May 23, 2008
Appeal from
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: 	Judge Netti C. Vogel
JUSTICES: 	Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice William P. Robinson, III
ATTORNEYS:
For Plaintiff: Jane McSoley
ATTORNEYS:
For Defendant: Edward Romano