State v. Jorge Depina

S
March 3, 2021




                                                       Supreme Court

                                                       No. 2019-136-C.A.
                                                       (P1/14-1A)



                State                 :

                 v.                   :

            Jorge Depina.             :




            NOTICE: This opinion is subject to formal revision
            before publication in the Rhode Island Reporter. Readers
            are requested to notify the Opinion Analyst, Supreme
            Court of Rhode Island, 250 Benefit Street, Providence,
            Rhode Island 02903, at Telephone (401) 222-3258 or
            Email [email protected], of any typographical
            or other formal errors in order that corrections may be
            made before the opinion is published.
                                                          Supreme Court

                                                          No. 2019-136-C.A.
                                                          (P1/14-1A)



                 State                  :

                  v.                    :

            Jorge Depina.               :


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

                                  OPINION

      Justice Robinson, for the Court. The defendant, Jorge Depina, appeals from

an October 15, 2018 judgment of conviction and commitment1 entered in Providence

County Superior Court which reflected the fact that he was found guilty by a jury of

second-degree murder in the death of his daughter, Aleida, and was sentenced to life

imprisonment. On appeal, Mr. Depina contends that “the trial justice erred when

she denied Mr. Depina’s motion to suppress the videos located on a Samsung digital




1
      Mr. Depina’s notice of appeal states that he is appealing from a May 16, 2018
judgment. However, the judgment of conviction and commitment was not actually
entered until October 15, 2018.


                                       -1-
camera that detectives seized by improperly expanding the scope of a judicially-

approved warrant.”

      For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

                                           I

                                  Facts and Travel

      On January 2, 2014, Mr. Depina was indicted by a Grand Jury on one count

of murder, in violation of G.L. 1956 §§ 11-23-1 and 11-23-2, for the July 3, 2013

death of his daughter. Immediately following the death of Mr. Depina’s daughter,

police officers executed two searches of his home pursuant to validly issued

warrants.

      The first search warrant was issued on July 3, 2013 (the first warrant)2 and

permitted the search of Mr. Depina’s residence at 48 Knowles Street, First Floor,

Pawtucket, Rhode Island, for “[b]lood, semen, vomit, blankets, bedding, clothing,

towels, rags, cloths, ropes, ties, phones, trash, or any items believed associated with

a homicide.” A search ensued. A second search warrant was obtained on July 5,

2013 (the second warrant), following the autopsy of the victim (see infra), and it



2
       The testimony at the suppression hearing reveals that there was some
uncertainty as to whether this search warrant was signed on July 3, 2013 or in the
early morning hours of July 4, 2013. The warrant is dated July 3, 2013, so we shall
refer to it as such.

                                         -2-
permitted a search of the same residence for “[u]tensils, cooking instruments,

heating elements, or items, any metal items, plastic items, or hard items, anything

that may be used to swing or strike, or tie, hold, bind, any items with blood, semen,

vomit on them or other items believed associated with pain, an assault, child abuse,

or homicide[.]” It is undisputed that, during the second search, the police seized the

evidence at issue in this appeal, a Samsung camera.

      On October 28, 2013, the police laudably sought and were issued a third

warrant to search the contents of the camera (the third warrant); the third warrant

specifically permitted a search for “[i]mages and/or videos from PNY memory card

from Samsung WB15OF camera.”3

      On December 22, 2017, Mr. Depina moved to suppress all tangible evidence

seized by the police, including the Samsung camera and its contents (those being the

only items with which we are concerned in this appeal); he averred that the evidence

“was obtained in violation of the Fourth Amendment of the United States

Constitution as well as Article I, Section 6 of the Rhode Island Constitution.”

      Pretrial motions were heard over five days in January of 2018, the majority of

which consisted of motions to suppress. We relate below the salient aspects of what

transpired at those hearings.


3
      Although it is not relevant to the issue before the Court, it is worth noting that
a fourth warrant was later obtained authorizing the search of the contents of a
computer which had also been seized.

                                         -3-
                                           A

                    The Testimony of Detective Donti Rosciti

      Detective Donti Rosciti testified that, at the time of the hearing, he was

employed as a patrol officer for the North Providence Police Department, but that,

at the times relevant to this action, he was employed as a detective in the Major

Crime Unit of the Pawtucket Police Department.4 He further testified that Detective

David Silva was his partner. It was his testimony that he and Det. Silva responded

to the Miriam Hospital around 5:30 p.m. on July 3, 2013 in response to a report of a

deceased ten-year-old female. He stated that the initial responding officer told the

detectives that Mr. Depina had entered the hospital with Aleida, that Aleida had “no

vital signs,” and that Mr. Depina told the officer that he had been alone with his

daughter at their home for the previous twenty-four hours. Detective Rosciti

testified that it was determined that Mr. Depina and Aleida resided on the first floor

of 48 Knowles Street in Pawtucket.

      It was further Det. Rosciti’s testimony that he had an opportunity to view

Aleida’s body at the hospital before the cause of death was determined and that he

observed “extensive bruising on many, many areas of her body, her legs, her back;”

as well as “burn marks” and what he thought at the time were “whip marks.”


4
      It was Det. Rosciti’s testimony that he eventually retired from the Pawtucket
Police Department after twenty-one years of service. For the purposes of this
opinion, we shall refer to him as Detective Rosciti, rather than Patrol Officer Rosciti.

                                         -4-
      Detective Rosciti testified that, after he had an initial discussion with Mr.

Depina at the police station, he sought a warrant to search Mr. Depina’s home (the

first warrant). He added that a search of that property then took place, starting at

approximately 3:40 a.m. on July 4, 2013. It was his testimony that thereafter, on

July 5, 2013, Det. Silva attended the autopsy and that he subsequently told Det.

Rosciti that they “were looking for certain particular items or devices that would

have been used to hit, strike, whip Aleida.”

      Detective Rosciti stated that he then obtained “a second search warrant with

the probable cause for entry into 48 Knowles Street.” It was his testimony that a

second search of that property ensued. Specifically, he testified that a Samsung

camera was seized from the bedroom of Mr. Depina during the second search; he

added that it was “located on the dresser * * *.” He also testified that the camera

was thereafter kept in the evidence room at the Pawtucket Police Department.

      It was further Det. Rosciti’s testimony that, on October 25, 2013, during an

“evidence viewing,” it was determined that the police had never examined the

contents of the camera. He stated that yet another search warrant was then sought

to examine the contents of the camera and that it was issued on October 28, 2013. It

was further his testimony that some of the relevant contents of the camera were then

played for him, Det. Silva, and an Assistant Attorney General.




                                        -5-
      On cross-examination, Det. Rosciti testified that he prepared both the July 3

and the July 5 warrants (the first and second warrants). He testified on cross-

examination that he observed the camera on a dresser during the first search, but he

added that it was not seized until the second search. He acknowledged that he did

not observe “any marks or indentations or scratches” on the camera before it was

seized. He also acknowledged on cross-examination that, in addition to the camera,

the police seized items including the following during the second search: a “round

wood stick;” a baseball bat; four belts; two hair clippers; an extension cord; “two

white cords;” a jump rope; a bike chain; a nutcracker; a hammer; silver tongs; a black

bucket; two green extension cords; a curtain rod; an “HP laptop;” and a report card.

      On cross-examination, Det. Rosciti further stated as follows with respect to

the camera:

              “I noticed it. I looked at it. It fit all the criteria that the
              medical examiner said, ‘Metal, plastic, strap.’ You
              certainly could swing it, jab somebody with it, hit
              somebody with it. And they were round injuries on her
              body. I think it fit a host of different reasons to seize it.”

He acknowledged that, to his knowledge, no one requested that the Department of

Health examine the camera for blood or trace evidence, nor did anyone bring the

camera to the medical examiner to determine if it might have caused any of Aleida’s

injuries. Lastly, he further acknowledged that there were various other items at the




                                           -6-
residence that were not seized but which could be characterized as plastic items or

items with a cord.

                                          B

                     The Testimony of Detective David Silva

      Detective Silva testified that he was, at the times at issue in this case as well

as at the time of the hearing, a detective in the Major Crime Unit of the Pawtucket

Police Department. His testimony was largely consistent with that of Det. Rosciti.

Therefore, we shall provide only the salient aspects of that testimony.

      Detective Silva testified that, subsequent to the first search of Mr. Depina’s

home, he attended the July 5 autopsy. He added that the medical examiner told him

that Aleida’s manner of death was “homicide caused by blunt force trauma” and that

Aleida had a “perforation of her small intestine.” He further testified that, “out of

an abundance of caution,” he told Det. Rosciti that they needed a second search

warrant “to look for items that would have been used to cause her injuries.” He

stated that, when the police officers arrived to execute the second search warrant,

the home was in the same condition as they had left it after the first search. He added

that the evidence room at the Pawtucket Police Department, where the camera was

eventually stored, was “secured” and monitored by video.

      It was Det. Silva’s testimony that he prepared the third warrant to search the

contents of the camera; he added that in doing so he opened a “side compartment”


                                         -7-
of the camera to “allow the memory card to be released” so that he could document

the type of memory card and, if applicable, include the serial number in the warrant.

He testified that he did not turn the camera on. He further testified that seven videos

that were relevant to the case were discovered during the search of the camera.

      On cross-examination, Det. Silva testified that the second warrant was

specific to items that could have caused the physical injuries to Aleida. He also

acknowledged that some of the items seized in the second search were not weapons,

but he stated that he believed that the camera was within the scope of the second

warrant. He further testified on cross-examination that the medical examiner told

him that “when you’re looking for items to think outside of the box[,] [d]on’t look

for just traditional items that you would use to hit * * *.”

      It was further Det. Silva’s testimony on cross-examination that the camera

was not “forensically inspected,” but that other items seized in the second search

were sent to the Department of Health to be tested for bodily fluids and DNA. He

also stated on cross-examination that, after obtaining the third warrant, the officers

viewed photos as well as videos recovered from the camera.

      Upon the completion of the testimony at the suppression hearing relevant to

whether or not the camera and its contents should be suppressed, the trial justice

heard argument from counsel and then issued a bench decision denying the motion

to suppress. See infra. A jury trial ultimately ensued over eleven days in March and


                                         -8-
April of 2018. Mr. Depina was found guilty by the jury of second-degree murder,

and the trial justice sentenced him to life imprisonment. Mr. Depina appealed to this

Court.5

                                         II

                               Standard of Review

      We have stated that “[w]hen reviewing a trial justice’s decision granting or

denying a motion to suppress, we defer to the factual findings of the trial justice,

applying a clearly erroneous standard.” State v. Storey, 

8 A.3d 454

, 459-60 (R.I.

2010) (quoting State v. Flores, 

996 A.2d 156

, 160 (R.I. 2010)). “We will, however,

conduct a de novo review of the record and independently consider whether a

defendant’s rights have been violated.” State v. Parra, 

941 A.2d 799

, 803 (R.I.

2007); see also State v. Casas, 

900 A.2d 1120

, 1129 (R.I. 2006) (stating that, when

conducting a review of a decision denying a motion to suppress, “we are required to

make an independent examination of the record to determine if [the defendant’s]

rights have been violated”) (internal quotation marks omitted). “Moreover, when

performing [our] independent examination, this Court must view the evidence in the



5
      Mr. Depina filed his notice of appeal prior to the entry of the judgment of
conviction and commitment in this case. Although his notice of appeal was filed
prematurely, we shall treat it as though it had been timely filed. See Hexagon
Holdings, Inc. v. Carlisle Syntec Inc., 

199 A.3d 1034

, 1038 n.3 (R.I. 2019) (“[T]his
Court will treat [a] premature appeal as if it had been timely filed.”) (internal
quotation marks omitted).

                                        -9-
record in the light most favorable to the state.” State v. Gonzalez, 

136 A.3d 1131

,

1145 (R.I. 2016) (internal quotation marks omitted). Accordingly, “we will reverse

a trial justice’s findings on a motion to suppress only if (1) his or her

findings * * * reveal clear error, and (2) our independent review of the conclusions

drawn from the historical facts establishes that the defendant’s federal constitutional

rights were denied.”

Id. (internal quotation marks

omitted).

      We have also stated that “[w]ith respect to questions of law and mixed

questions of law and fact involving constitutional issues * * * this Court engages in

a de novo review * * *.” State v. Barkmeyer, 

949 A.2d 984

, 995 (R.I. 2008) (internal

quotation marks omitted).

                                         III

                                      Analysis

                                          A

                            The Trial Justice’s Decision

      The trial justice began her decision on the motion to suppress the camera and

its contents by noting that the Fourth Amendment requires that a warrant

“particularly describe the persons or things to be seized.” She stated that, in

considering the motion before her, she was tasked with determining whether or not

the seizure of the camera went beyond the scope of the second warrant. The trial

justice then proceeded to look at the four corners of the second warrant; she reviewed


                                        - 10 -
the exact language of the warrant and the testimony of the two detectives at the

suppression hearing.

      Importantly, the trial justice pointed out in the course of her decision that she

had the camera at issue “in hand.” She stated that it was not “lightweight plastic,”

but that it was either metal or “exceptionally hard plastic.” She further characterized

it as “a pretty heavy piece of equipment” that did “indeed have a wristband, wrist

string, that can indeed be swung around.” The trial justice also remarked that the

camera “if swung could indeed cause pretty serious pain, and it could cause abuse,

and it probably could cause pretty serious injury.” She added that the camera was

“a lot heavier than described,” although it was small.

      The trial justice also stated that the fact that the camera was not sent for

“scientific testing” was “negate[d]” by the testimony of the detective “that it was

seized, at least in significant part, because it would likely have served as a weapon

and could be swung around and whack somebody with it.”

      She specifically stated that Det. Silva’s testimony that the medical examiner

told him to think outside of the box as to possible weapons was instructive. She

added that she found it compelling that the police seized the camera but did not do

anything with it immediately; she reasoned that, if the police had seized the camera

in order to view its contents rather than because they believed it could have been

used as a weapon, they would not have waited so long to view its contents.


                                        - 11 -
      The trial justice opined that she found credible the version of events whereby

the police had not looked at the camera or examined the memory card and its

contents before October 28, 2013. She then stated as follows:

                    “I am very cognizant of the requirement that you
             can’t have a general warrant, and you can’t take what you
             have not specified because that’s tantamount to a
             warrantless search and inconsistent with the Fourth
             Amendment and applicable case law, but I don’t find
             that’s what occurred here with this particular item of
             evidence. So the motion to suppress the camera is
             denied * * *.”

                                          B

                                     Discussion

      Mr. Depina contends on appeal that the trial justice erred in denying his

motion to suppress the camera and its contents because, in his opinion, the police

improperly expanded the scope of the second warrant. He claims that “the camera

clearly fell outside the warrant’s scope” since it is “a delicate piece of electronic

equipment that can easily fit in the palm of one’s hand * * *.” According to Mr.

Depina, the camera could not have caused the injuries noted by the medical

examiner; in his reply brief, he adds that “no rational person would view the small

camera with a wristlet-style string as a probable—or even possible—choice for the

type of repeat-use weapon the judge had authorized the officers to seize.” (Emphasis

in original.) He further avers that “[b]y ignoring [the warrant’s] parameters * * * the

detectives committed a constitutional violation.”

                                        - 12 -
      In support of his argument on appeal, Mr. Depina points to Det. Rosciti’s

testimony that he did not see any indentations, scratches, blood, hair, or fibers on the

camera and to the fact that the camera was never sent for forensic examination. He

further posits that the seizure of a laptop, bucket, and report card are indicative of

the fact that the “police officers were not bothering to confine themselves to the

judicial dictates of the second warrant.” He contends that the police should have

obtained another warrant for the camera before seizing it.

      The Fourth Amendment to the United States Constitution “declares that the

right to be secure against unreasonable searches shall not be violated, and it further

declares that: No warrants shall issue, but upon probable cause, supported by oath

or affirmation, and particularly describing the place to be searched and the persons

or things to be seized.”6 Marron v. United States, 

275 U.S. 192

, 195 (1927) (internal

quotation marks omitted); see State v. Joseph, 

114 R.I. 596

, 599, 

337 A.2d 523

, 525

(1975) (“The constitutional interdiction is not against all searches and seizures, but

only those that are unreasonable.”); see also State v. Pratt, 

641 A.2d 732

, 736 (R.I.

1994).




6
       The Rhode Island Constitution likewise “mandates that a warrant describ[e]
as nearly as may be, the place to be searched and the persons or things to be seized.”
State v. Rose, 

748 A.2d 1283

, 1285 (R.I. 2000) (quoting article 1, section 6 of the
Rhode Island Constitution).

                                         - 13 -
      “General searches have long been deemed to violate fundamental rights.”

Marron, 275 U.S. at 195

. The United States Supreme Court has definitively stated:

“It is plain that the [Fourth] amendment forbids them.”

Id. “The requirement that

warrants shall particularly describe the things to be seized makes general searches

under them impossible and prevents the seizure of one thing under a warrant

describing another. As to what is to be taken, nothing is left to the discretion of the

officer executing the warrant.”

Id. at 196;

see also Andresen v. Maryland, 

427 U.S. 463

, 480 (1976).

      If, in a given case, “the scope of a search exceeds that permitted by the terms

of a valid warrant, the subsequent seizure is unconstitutional.” United States v.

Hamie, 

165 F.3d 80

, 82 (1st Cir. 1999); see Horton v. California, 

496 U.S. 128

, 140

(1990) (“If the scope of the search exceeds that permitted by the terms of a validly

issued warrant * * * the subsequent seizure is unconstitutional without more.”); see

also United States v. Ewain, 

88 F.3d 689

, 693 (9th Cir. 1996).

      It is important to note initially that there is no allegation in this case that the

second warrant was without probable cause. Mr. Depina himself in his brief before

this Court describes it as “facially valid * * *.” In addition, there is no allegation

that the second warrant impermissibly authorized a general search; indeed, Mr.

Depina in his brief describes the second warrant as “striking i[n] its precision.”




                                         - 14 -
      The only narrow issue with which this Court is confronted in this case is

whether or not, in seizing the camera, the police exceeded the scope of the second

warrant. In order to make that assessment we must look to the precise language of

the second warrant itself.

      The second warrant allowed for the search of the first floor of 48 Knowles

Street for “[u]tensils, cooking instruments, heating elements, or items, any metal

items, plastic items, or hard items, anything that may be used to swing or strike, or

tie, hold, bind, any items with blood, semen, vomit on them or other items believed

associated with pain, an assault, child abuse, or homicide[.]” At the suppression

hearing, the trial justice had the camera at issue in hand7 when she determined that

it fell within the just-quoted language. The trial justice found the camera to be

“metal” or “hard plastic;” she also stated that it was a “heavy compact piece of

equipment” which could be swung to inflict “serious pain * * *.” It is plain that the

trial justice did not commit clear error in finding that the camera was a hard item

made of either metal or plastic or in concluding that its wrist strap could be used to

swing the camera and inflict abuse on a child. Indeed, Det. Rosciti testified that the

camera “fit all the criteria” of the medical examiner, and Det. Silva testified that the

police officers were told to look “outside of the box” for possible weapons that could



7
      The camera was marked as a full exhibit for the purpose of the suppression
hearing.

                                         - 15 -
have been used to abuse Aleida. We are entirely unable to perceive clear error in

the trial justice’s factual findings with respect to the camera. See 

Storey, 8 A.3d at 459-60

.

      Moreover, in the opinion of this Court, the language of the second warrant is

clear and unambiguous—“any metal items, plastic items, or hard items, anything

that may be used to swing or strike * * *.” In our judgment, it was not error for the

trial justice to determine that, based on her factual findings with respect to the

camera, it fell within the dictates of the second warrant. See United States v. Fagan,

577 F.3d 10

, 13 (1st Cir. 2009) (“[I]n all events, search warrants must be read in a

practical, common-sense manner[;] * * * [they] should be viewed through a real-

world prism and interpreted in a realistic fashion.”) (internal quotation marks

omitted). What is more, it is our opinion that it was certainly reasonable for the

detectives to have believed that the camera fell within the terms of the second

warrant since the camera is clearly a hard, metal or plastic item which could be

swung to inflict injury.

      We are not dissuaded from our conclusion that the camera very clearly fits

within the language of the second warrant by the fact that Det. Rosciti did not

observe any indentations, scratches, or trace evidence on the camera when seizing

it, nor by the fact that it was ultimately not forensically tested. There is nothing

about the camera itself or the record presented to this Court which could lead us to


                                        - 16 -
the conclusion which Mr. Depina seeks—viz., that no rational person could have

found the camera to be a possible choice for the type of weapon the police officers

were seeking. Indeed, we are ineluctably led to the opposite conclusion.8

      Accordingly, in our judgment, the trial justice did not commit clear error in

her factual determinations which led to her denial of Mr. Depina’s motion to

suppress the camera and its contents, and we are unable to perceive any violation of

Mr. Depina’s constitutional rights with respect to the admission of that evidence.

See 

Gonzalez, 136 A.3d at 1145

; 

Storey, 8 A.3d at 459-60

.

                                           IV

                                      Conclusion

      Accordingly, we affirm the judgment of the Superior Court. We remand the

record to that tribunal.



Justice Flaherty participated in the decision but retired prior to its publication.



Justice Lynch Prata and Justice Long did not participate.




8
       We deem it important to note that the detectives commendably applied for a
third warrant for the contents of the camera before viewing those contents.

                                         - 17 -
                                               STATE OF RHODE ISLAND
                                        SUPREME COURT – CLERK’S OFFICE
                                              Licht Judicial Complex
                                                250 Benefit Street
                                               Providence, RI 02903

                                 OPINION COVER SHEET


Title of Case                        State v. Jorge Depina.

                                     No. 2019-136-C.A.
Case Number
                                     (P1/14-1A)

Date Opinion Filed                   March 3, 2021


Justices                             Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.


Written By                           Associate Justice William P. Robinson III


Source of Appeal                     Providence County Superior Court


Judicial Officer from Lower Court    Associate Justice Netti C. Vogel

                                     For State:

                                     Owen Murphy
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Angela M. Yingling
                                     Office of the Public Defender




SU-CMS-02A (revised June 2020)

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