In re Bozzo

1

IN RE: HENRY BOZZO

C. A. No. PM-2022-3883

Superior Court of Rhode Island, Providence

June 8, 2023

For Plaintiff: Carl H. Hurvich, Esq.

For Defendant: Marissa D. Pizana, Esq.

DECISION

GIBNEY, P.J.

Petitioner Henry Bozzo (Petitioner) has submitted a claim for compensation pursuant to the Wrongful Conviction and Imprisonment Compensation statute, G.L. 1956 chapter 33 of title 12. See generally Pet. for Compensation for Wrongful Conviction & Imprisonment (Pet.). Now before this Court is the State's Motion for Judgment on the Pleadings (Motion), which argues that the compensation statute's requirement that an accusatory instrument be dismissed on grounds "not inconsistent with innocence" is synonymous with "consistent with innocence." (Mem. in Supp. of Def.'s Mot. for J. on the Pleadings, or in the Alternative, Obj. to Pet. For Compensation (State's Mem.) 1.) As such, the State maintains that vacatur of Petitioner's initial conviction based on a prosecutor's improper remarks in closing arguments is not "consistent with innocence." The Court's jurisdiction is pursuant to § 12-33-3.

I Facts and Travel

In October 2016, a jury convicted Petitioner of one count of first-degree child molestation. (Pet. ¶¶ 2-3.) The trial justice sentenced Petitioner to a term of forty-five years, with eighteen to serve, and Petitioner was incarcerated at the Adult Correctional Institutions until his release in 2020 following reversal of his conviction. See id. ¶¶ 4-5; see also State v. Bozzo, 223 A.3d 755 (R.I. 2020).

In vacating the judgment of conviction, our Supreme Court assigned error to the prosecuting attorney's closing argument at trial, in which he stated that:

"This man, Henry Bozzo, molested that young girl. It wasn't a mistake. He did it intentionally. He stared at her as she was walking out of the courtroom. He stared her down. I saw it. It was right there. That is no mistake there . . . You know there is no mistake there. He knew what he was doing." Bozzo, 223 A.3d at 760 (emphasis in original).

The Court reasoned that the prosecutor's statements about Petitioner's courtroom demeanor were not based on evidence or testimony adduced at trial and that the trial court's curative instruction could not overcome the resultant potential for unfair prejudice to Petitioner. Id. at 762-63. The Court also concluded that the trial justice's decision to admit evidence relating to a state police investigation into Petitioner's possession of child pornography-including Petitioner's admissions of "prurient interests" obtained during that investigation-"was highly prejudicial and created a real risk of juror confusion." Id. at 766.

Thereafter the State elected to retry Petitioner, and a second jury returned a not guilty verdict. (Pet. ¶ 9; State's Mem. 9.) Petitioner now seeks compensation for approximately fifty-three months of allegedly wrongful incarceration approximately $221,509. (Pet. ¶¶ 5, 10.)

II Standard of Review

Section 12-33-2 establishes the gatekeeping requirements to present an actionable claim for compensation. See § 12-33-2(a). "If the court determines after an examination of the claim that the claimant has not alleged sufficient facts to succeed at trial it shall dismiss the claim, either on its own motion or on the state's motion." See § 12-33-2(c).

Further, "[p]ursuant to Rule 12(c) of the Superior Court Rules of Civil Procedure, a hearing justice may 'dispos[e] of a case early in the litigation process when the material facts are not in dispute after the pleadings have been closed and only questions of law remain to be decided.'" Houle v. Liberty Insurance Corporation, 271 A.3d 591, 593 (R.I. 2022) (quoting Premier Home Restoration, LLC v. Federal National Mortgage Association, 245 A.3d 745, 748 (R.I. 2021)). A court considers a motion for judgment on the pleadings pursuant to Rule 12(c) by utilizing the Rule 12(b)(6) motion-to-dismiss test. Nugent v. State Public Defender's Office, 184 A.3d 703, 706 (R.I. 2018). "As such, 'a judgment on the pleadings may be granted only when it is established beyond a reasonable doubt that a party would not be entitled to relief from the defendant under any set of conceivable facts that could be proven in support of its claim.'" Houle, 271 A.3d at 593-94 (quoting Premier Home Restoration, LLC, 245 A.3d at 748) (internal quotations omitted).

III Analysis

As is relevant here, "the claimant must establish by documentary evidence that . . . [o]n grounds not inconsistent with innocence . . . [t]he judgment of conviction was vacated for reasons other than the ineffective assistance of counsel . . . and . . . [t]he accusatory instrument was dismissed[.]" (Section 12-33-2(a)(2).) In sum "§ 12-33-2 requires pleading and documentary evidence showing 'legal innocence' not inconsistent with 'factual innocence[.]'" Terzian v. Magaziner, No. PM-2021-07092, 2023 WL 1982669, at *4 (R.I. Super. Feb. 7, 2023).

The State's sole argument before this Court is that a vacatur resulting from a prosecutor's inappropriate and prejudicial statements before a jury does not constitute "grounds not inconsistent with innocence." (State's Mem. 13.) It urges the Court to hold that reversal of a criminal conviction on grounds unrelated to factual innocence does not satisfy the gatekeeping pleading requirement of § 12-33-2. Id. at 13-14 (citing Sutton v. State, 337 So.3d 208 (Miss. 2022); Moore v. State, 203 So.3d 775 (Miss. Ct. App. 2016)). Adopting that view, the State equates "grounds not inconsistent with innocence" with "grounds consistent with innocence." See, e.g., id. at 1, 14, 15.

To the contrary, the Restatement (Third) Torts § 23 demonstrates that the phrases "not inconsistent with innocence" and "consistent with innocence" represent separate standards that are not interchangeable. Reporters of the Third Restatement adopted a "not inconsistent with innocence" standard for malicious prosecution claims. See Restatement (Third) Torts, Liability for Economic Harm § 23 cmt. a (Am. Law Inst. 2020); id. rep. note a. The Third Restatement Reporter recognized, however, that "[a] larger number of jurisdictions add a requirement that the disposition of the criminal case indicate that the accused party was innocent"-i.e., a separate "indicative of innocence" standard-and that

"[t]he difference between the two approaches is most significant when criminal charges were dismissed for want of jurisdiction or on other technical grounds. In those circumstances, the dismissal is consistent with the defendant's innocence (and so would be favorable under the rule of this Section) but does not itself indicate the defendant's innocence (and so would not be favorable under the approach taken in a majority of jurisdictions)." Id. rep. note a.

The State's argument that Rhode Island has not adopted the Third Restatement for common law malicious prosecution claims misses the point. See State's Reply Mem. 7-9. The import of the Third Restatement to this Decision has nothing to do with which definition of "favorable" termination applies to a malicious prosecution claim. Rather, the Third Restatement discussion is relevant insofar as it demonstrates that "not inconsistent with innocence" and "consistent with innocence" are legally distinct standards. See Simeone v. Charron, 762 A.2d 442, 446 (R.I. 2000) ("A well-established tenet of statutory interpretation posits that the Legislature is 'presumed to know the state of existing law when it enacts or amends a statute."')

(quoting Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1134 (R.I. 1998)); see also Laskar v. Hurd, 972 F.3d 1278, 1294 (11th Cir. 2020) (describing different "approaches"); Thompson v. Clark, 142 S.Ct. 1332, 1338 (2022) (discussing different approaches and resolving the circuit split identified in Laskar). This Court must "apply the statute as written," State ex rel. Coventry Police Department v. Charlwood, 224 A.3d 467, 470 (R.I. 2020), and "the legislature is presumed to have intended that every word . . . has some useful purpose and will have some force and effect." State v. Reis, 430 A.2d 749, 752 (R.I. 1981). The State's attempt to equate two separate pleading standards impermissibly ignores these dictates of statutory construction.

The State's further reliance on a litany of out-of-state holdings relating to distinguishable compensation statutes is inapposite. (State's Mem. 13-14.) Minnesota requires "grounds consistent with innocence," which, as already discussed, represents an entirely different approach from Rhode Island. See Minn. Stat. § 590.11(b)(1)(i). Massachusetts requires "grounds which tend to establish . . . innocence," Mass. Gen. Laws ch. 258D, § 1(B)(ii); Colorado expressly excludes legal errors unrelated to the petitioner's actual innocence, Colo. Rev. Stat. § 13-65-102(2)(a); and New York limits relief to specifically enumerated grounds for reversal. See N.Y. Ct. Cl. Act § 8-b(3)(b).

Nevertheless even if this Court were to adopt the State's view that § 12-33-2 requires vacatur on grounds "consistent with innocence," the Massachusetts Supreme Judicial Court has opined that a prosecutor's improper remarks in closing arguments "could well be 'consistent' with innocence" even though such grounds do not satisfy Massachusetts' more stringent requirement that the grounds "tend to establish innocence." Guzman v. Commonwealth, 937 N.E.2d 441, 445 (Mass. 2010); id. n.6 (citing Commonwealth v. Williams, 882 N.E.2d 850, 860 (Mass. 2008) (new trial required where prosecutor acted improperly in giving unsworn testimony and vouching for key prosecution witness)). Minnesota's Court of Appeals has stated that reversal based on the erroneous admission of evidence or improper prosecutorial statements neither contradicts innocence nor agrees...