State v. Parrillo

228 A.3d 613

STATE

v.Anthony PARRILLO.

No. 2018-14-C.A.

P2

12-2022A

Supreme Court of Rhode Island.

June 2, 2020

Christopher R. Bush, Department of Attorney General, for State.

John B. Harwood, Esq., for Defendant.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

Justice Goldberg, for the Court.

This case came before the Supreme Court on December 4, 2019, on appeal by the defendant, Anthony Parrillo, from a judgment of conviction following a jury-waived trial on one count of felony assault and one count of simple assault under G.L. 1956 §§ 11-5-2 and 11-5-3, respectively.¹ On appeal, the defendant argues (1) that he was deprived of his right to trial by a neutral and detached arbiter; (2) that the trial justice's finding of guilty beyond a reasonable doubt on each count constituted an impermissible pyramiding of inferences; (3) that he was deprived of his right to fair notice of the crime for which he was convicted and prejudiced by the timing of the introduction of the theory of aiding and abetting; and (4) in accordance with State v. Pepper , 103 R.I. 310, 237 A.2d 330 (1968), if none of the errors standing alone warrants reversal, the cumulative effect of the errors leads to reversible error. For the reasons stated herein, we affirm the judgment of conviction.

Facts and Travel

This case arises from a violent incident in December 2011 at a former nightclub, Club 295 (also referred to herein as the club). The club was located in Providence's Federal Hill neighborhood on Atwells Avenue. During the early morning hours of December 17, 2011, the complainants, Jacob Fernandes, and his wife, Sumiya Majeed, M.D., who were patrons of the establishment, were assaulted by club employees. Fernandes suffered serious injuries, including an orbital fracture, a broken septum, and dental injuries that required hospitalization and surgery.

The lower court record established that Fernandes and Majeed attended a Christmas party sponsored by Majeed's employer on the evening of December 16, 2011. Also attending the party were Anitay Vargas, one of Majeed's coworkers, and Anitay's husband, Paul Vargas. As the evening progressed, the four decided to leave the party and continue their celebration on Federal Hill. After stopping briefly at the Opa Restaurant, the group proceeded to Club 295. The time was about 12:30 a.m. on December 17, 2011.

The evidence disclosed that, shortly after the group entered the club, Majeed needed the restroom. Vargas, who had been to the club previously and was familiar with its layout, directed her to its location. Shortly thereafter, Fernandes met Majeed in the restroom—at her request—to hold the door closed because it could not be secured from the inside. At some point after Fernandes joined his wife, a physical altercation took place just outside the restroom that included Fernandes, Majeed, at least one of the club's bouncers, and defendant.² The altercation began outside of the restroom, moved to the club's outdoor patio area, and finally ended in a gated alleyway behind the club. Ultimately, Fernandes was left so severely injured that he could neither ambulate nor extract himself from the gated alleyway. The defendant and Vargas hauled Fernandes across the street and away from the club, where he was left in front of a restaurant on Atwells Avenue. The defendant left Fernandes and Vargas on the sidewalk to await the arrival of emergency medical personnel.

A criminal information was filed against defendant in Providence County Superior Court on July 11, 2012, charging him with four counts: felony assault upon Fernandes, with serious bodily injury resulting (count one); assault upon Fernandes with a dangerous weapon (count two); conspiracy (count three); and simple assault upon Majeed (count four).³ The defendant was arraigned and pleaded not guilty on August 24, 2012.⁴

After an appropriate colloquy with the trial justice, defendant waived his right to a jury trial, and trial commenced on April 28, 2015. Fernandes testified first, and he recounted the events that preceded the incident. He testified that he was holding the door of the restroom closed from inside the restroom and that he vaguely remembered the door being pushed in and an unknown number of people rushing in. He recalled pain and being struck in the face and hearing his wife scream as he was pulled out of the restroom and into the dark club. Fernandes further testified that, once outside the restroom, a series of blows landed on his face, head, and body from what he believed to be multiple attackers.

He testified that although he knows he subsequently exited the club, he was unconscious at the time. He remembered sustaining the attacks and then regaining consciousness in an ambulance on Atwells Avenue, and then again at Rhode Island Hospital.

Vargas testified next; he was less than cooperative, and declared that he was appearing in compliance with a subpoena, but that he did not want to participate in the proceedings. Vargas testified that sometime after he pointed Majeed to the location of the restroom, he "saw a commotion by the bathrooms and, specifically, the bathroom that [Majeed] was in." Vargas testified that, while he was not able to determine how many individuals were involved, he immediately saw that Fernandes and Majeed were among them. Based on his observations, "it looked to be the bouncers of Club 295 that were pushing the door into the bathroom, and then they pulled [Fernandes] out of the bathroom and his wife followed out of the bathroom." From there, one of the bouncers, later identified as Tomas Robinson, held Fernandes in a chokehold, pulling him towards the rear of the establishment. Vargas tried to intervene to assist his friend but was prevented from doing so. He followed Robinson and Fernandes to the rear of the club.

Vargas testified that while Robinson was holding Fernandes, an older man, later identified as defendant, appeared on scene and told the bouncers to "[t]ake him out the back." At the rear of the club was a doorway leading to an outdoor patio; in accordance with defendant's orders, Robinson pulled Fernandes through the doorway onto the patio and then forcefully swung him by the neck across the patio and onto steel patio chairs and tables, knocking them over.

The outdoor patio also led to a gated alleyway that ran alongside the club and onto Atwells Avenue. After following Robinson and Fernandes to the patio, Vargas called the police. He testified that when he ended the call, he saw one of the bouncers holding Fernandes in a "full [n]elson"⁵ as Robinson was "going to town on his face, punching his face as hard as he could." According to Vargas, when Fernandes was finally released, he fell to the ground, and Robinson and another bouncer began kicking him. At that point, Vargas testified, Majeed jumped on top of her husband to cover him, and they began kicking her. By the time Vargas finally made it to the alleyway, Fernandes was on the ground along with Majeed, who "looked like somebody dumped a bucket of blood on her head." Given how badly Fernandes was injured—the photographs in evidence support this assertion—Vargas thought that he was dead.

Vargas testified that at that point he told defendant that he could not believe the bouncers had hit Majeed, and that he had called the police.⁶ After asking Vargas why he had called the police, defendant and Vargas picked up Fernandes, who was incoherent and unable to walk on his own. Vargas and defendant carried Fernandes across the street, where defendant left Vargas and the badly-injured Fernandes in front of a restaurant on Atwells Avenue and disappeared.

Vargas gave a formal witness statement to Providence police on January 1, 2012, which included greater details of the assault, particularly as it related to defendant. This statement was admitted as a full exhibit at trial. As discussed infra , the trial justice ultimately accorded greater weight to the formal witness statement than he did to portions of the reluctant Vargas's trial testimony. The trial justice focused on the portion of Vargas's statement to police pertaining to defendant's role in the assault and whether Majeed also was assaulted:

"While I was locked inside [the patio] I seen a white bouncer holding [Fernandes's] arms behind his back and the black bouncer repeatedly hitting [Fernandes] who at this time was defenseless. I seen the old man who also wrked ther [sic ] holding [Majeed] while the black bouncer and the white bouncer were beating [Fernandes]. I seen [Fernandes] fall to the ground and [Majeed] fell [on top] of him to cover him. I then seen the black bouncer and the white bouncer kicking both [Fernandes] and [Majeed] while they were on the ground."

Based on Vargas's testimony, the "black bouncer" was identified as Robinson and the "old man" was identified as defendant.⁷

Tomas Robinson, one of the bouncers and a principal assailant, also testified.⁸ He stated that he had tried to kick down the door to the bathroom in which Majeed and Fernandes were in, but was unsuccessful, and that Fernandes then voluntarily left the bathroom. According to Robinson, he then grabbed Fernandes and they started "tussling"; he got Fernandes into a chokehold and began walking from the area outside of the bathroom to the outdoor patio by choking him to the point of unconsciousness.

Robinson further testified that he entered a plea of nolo contendere to one count of felony assault and one count of conspiracy arising from this incident and was sentenced to ten years at the Adult Correctional Institutions, with two years to serve and the remainder suspended, with probation.⁹ According to Robinson, he was under pressure to accept the offer, and did so in order to avoid a stiffer five-year sentence on another charge he was facing. Robinson testified that he was advised by his attorney that it was in his best interest to enter the plea, and, despite being placed under oath at the time he entered the plea, ...