State v. Xavier Vidot

June 28, 2021

Supreme Court

No. 2020-84-C.A.
No. 2020-18-M.P.
(P1/18-33AG)

State :

v. :

Xavier Vidot. :

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 opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
 Supreme Court

No. 2020-84-C.A.
No. 2020-18-M.P.
(P1/18-33AG)

State :

v. :

Xavier Vidot. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Chief Justice Suttell, for the Court. The defendant, Xavier Vidot, was

convicted by a jury of one count of second-degree murder and one count of

discharging a firearm during a crime of violence, thereby causing death. He was

sentenced to twenty-four years’ imprisonment for the second-degree-murder

conviction and a consecutive mandatory life sentence for the discharge-of-a-firearm

conviction.

On review, defendant contends that the trial justice erred by (1) failing to

declare a mistrial and (2) denying defendant’s motion for a new trial. The defendant

maintains that each of these errors entitles him to have his conviction vacated and to

be granted a new trial. After careful consideration of defendant’s arguments and a

thorough review of the record, we affirm the judgment of conviction.

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 I

Facts and Travel

On July 18, 2017, an Attleboro, Massachusetts, police officer made a grisly

discovery—a human corpse that had been set afire and abandoned. Through

fingerprint analysis, the police were able to identify the decedent as Valdez Loiseau

(Valdez).1 Prior to his death, Valdez resided at 15 Edgewood Avenue in Cranston

with his girlfriend Melonie Perez (Melonie) and her son, defendant.2

On January 10, 2018, defendant was charged by indictment with murder and

use of a firearm during a crime of violence. Melonie was also charged by indictment

with failure to report a death and misprision of a felony. A codefendant jury trial

began on October 1, 2018; however, Melonie pled guilty in the middle of trial. At

trial, the state called thirteen witnesses. The defendant presented two witnesses—

himself and his grandmother, Martha Perez (Martha), who is Melonie’s mother. The

testimony revealed the following.

Around July 2016, Valdez moved into 15 Edgewood Avenue after a friend of

Melonie’s “vouched for him” and explained that “he needed a place to stay.” Valdez

1
Throughout trial, the decedent was referred to by various names including
“Swepp,” “Swapp,” “Loiseau,” “Valdez,” and “Val.” In the portions of the trial
transcript most relevant to this appeal, the decedent was frequently referenced as
Valdez. Therefore, for the sake of consistency, we will refer to the decedent as
Valdez throughout this opinion. No disrespect is intended.
2
Throughout this opinion, we refer to defendant’s mother and grandmother by their
first names solely for the sake of clarity. No disrespect is intended.

-2-
paid rent and had his own room in the house. He also used a room as a recording

“studio” to further his nascent career as a rap musician. After several months of

living in the home, Valdez began dating Melonie.

On the afternoon of July 17, 2017, Valdez and Melonie left the house in

Melonie’s vehicle. Shortly thereafter, Melonie returned home alone and told

defendant that Valdez had wrecked her car. The defendant went outside and

observed the damaged vehicle. Approximately twenty-five minutes later, Valdez

returned home upset that Melonie had left him at the scene of the accident. The

defendant then heard Valdez and Melonie arguing for “hours.”

At some point during the argument, Martha received a call from Melonie’s

phone, during which she heard Melonie “crying and screaming” and “heard

somebody else’s screaming.” Martha immediately drove to 15 Edgewood Avenue.

When she entered the home, she heard screaming upstairs. She then rushed upstairs

and was met by Melonie; Melonie appeared intoxicated and ran toward Martha

exclaiming, “Mommy, Mommy, Mommy, he wrecked my car.”

Valdez then entered the hallway, where Martha and Melonie were standing,

and, according to Martha, he “went and grabbed Melonie.” Martha observed that

Valdez also appeared to be intoxicated. The defendant attempted to separate

Melonie and Valdez, and, eventually, Melonie left the home.

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 Valdez followed Melonie out of the home, and Martha and defendant went

after them. Melonie and Valdez entered a corner store that was located a few doors

away from the home, and then Melonie returned home and locked the door. Martha

and defendant watched as Valdez repeatedly banged on the door and called

Melonie’s name, but Melonie did not open the door to let him in. Martha then left,

“because Melonie was locked in the house[,]” and Martha believed “[s]he was safe

in the home.”

The defendant testified that, after Martha left, Valdez climbed up onto the

porch, “pushed in the AC that was in his room[,]” and entered the home. The

defendant then also entered the home by climbing through an unlocked kitchen

window. The defendant testified that, once inside the home, he remained on the first

floor, where he could hear Melonie and Valdez arguing upstairs.

At some point during the argument, defendant heard a loud bang and rushed

upstairs, where he found Melonie on the floor in the corner of the room, while Valdez

was “pacing” and “ranting” with a gun in his hand. The defendant testified that he

also observed a gun “on the bed directly in front [of] where she is sitting.” The

defendant testified that Valdez dropped the gun he was holding, and defendant

removed both guns from the room—placing one under the mattress in a spare

bedroom upstairs and placing the other under the couch cushions on the first floor.

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 The defendant testified that he was seated on the first-floor couch—where he

had hidden one of the guns—when he “heard a loud, loud scream from [his] mother.”

He then put the gun in his waistband and ran upstairs. Upon reaching the bedroom,

defendant observed Valdez pulling Melonie up by her hair and smacking her a few

times in the stomach. The defendant testified that he was attempting to move Valdez

away from Melonie when Valdez spun around “aggressively” and “rushed”

defendant. The defendant said he then pulled out the gun and shot Valdez. Valdez

fell to the floor, and defendant attempted to fire a second shot but the gun “did not

fire for whatever reason.” The defendant testified that he “still thought [Valdez]

could have been a threat[,]” so he retrieved the second gun from the spare room and

shot Valdez in the head as Valdez was “trying to lift himself up[.]”

After the shooting, Melonie called her ex-boyfriend, James Clark, and asked

him to help dispose of the body. Clark testified that defendant told him that he had

killed Valdez; defendant explained to Clark that he shot Valdez after Valdez had

“lunged at him[.]” Melonie and defendant wrapped Valdez’s body in sheets and

loaded it into the trunk of Clark’s car. Clark and Melonie then got into the vehicle

while defendant retrieved a gas container. Clark testified that, once all three were in

the vehicle, Melonie instructed him to drive to Pawtucket. Melonie further directed

Clark to a “secluded” area where he stopped the vehicle. Clark testified that he

remained in the vehicle while Melonie and defendant removed Valdez’s body from

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the trunk. He further testified that he observed defendant lighting a fire before he

returned to the vehicle.

After seven days of testimony, the jury found defendant not guilty of

first-degree murder, guilty of second-degree murder, and guilty of discharging a

firearm during a crime of violence, thereby causing the death of Valdez Loiseau. On

October 22, 2018, defendant filed a motion for a new trial. The motion was heard

on October 24, 2018, and the trial justice denied the motion in an oral decision that

was rendered at the end of the hearing on the same day. On April 1, 2019, defendant

was sentenced to twenty-four years’ imprisonment for the second-degree-murder

conviction and a consecutive mandatory life sentence for the conviction for

discharge of a firearm during a crime of violence, thereby causing death. A

judgment of conviction entered on that same day, and defendant sought review. 3

3
The record reveals that while defendant attempted, through counsel, to file a notice
of appeal in the Superior Court on April 1, 2019—the date of the entry of the
judgment of conviction—the filing was erroneously returned for failure to comply
with the court rules. The defendant filed a petition for writ of certiorari to review
his conviction on January 16, 2020, which we granted on February 19, 2020 (No.
2020-18-M.P.). The defendant’s appeal was subsequently docketed in this Court on
March 6, 2020 (No. 2020-84-C.A.); and, by order dated April 24, 2020, we
consolidated the two matters before the Court.

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 II

Discussion

On review, defendant first argues that the trial justice erred by failing to

declare a mistrial. Second, defendant argues that the trial justice erred in denying

defendant’s motion for a new trial.

A

Failure to Declare a Mistrial

The defendant asserts two claims of error with regard to the trial justice’s

failure to declare a mistrial. First, he claims that the trial justice erred “in failing to

declare a mistrial at the close of the [s]tate’s case due to the prosecutor’s improper

introduction of prejudicial out-of-court statements of a witness not available for

trial[,]” in violation of defendant’s rights under the Confrontation Clause of the

United States Constitution and article 1, section 10 of the Rhode Island Constitution.

Second, he argues that the trial justice erred in failing to grant a mistrial given the

prosecutor’s “improper suggestions and assertions of personal knowledge in his

closing argument, which included unduly prejudicial scientific statements not

presented as evidence in trial[.]”

1

Confrontation Clause

The defendant avers that the prosecutor improperly “introduced testimonial

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statements by a nontestifying witness to be used against the defendant, thus

implicating the Confrontation Clause.” During the prosecution’s cross-examination

of defendant, the following exchange occurred:

“[PROSECUTOR:] And isn’t it true you told Jeremy
Palmer on a phone call on the 18th of July, 2017, that,
quote, [Valdez] is on permanent vacation?

“[DEFENDANT:] I don’t recall.

“[PROSECUTOR:] Isn’t it true that you told Jeremy
Palmer on that same day, the same phone call, that the
problem is solved?

“[DEFENDANT:] I don’t recall this conversation. I
remember making a call. I don’t remember what was said
or how the conversation went at all.

“[PROSECUTOR:] But you do admit you called him the
following day.

“[DEFENDANT:] Yes.

“[PROSECUTOR:] And you talked about what had
happened the night before.

“[DEFENDANT:] I assume so. I don’t know.

“[PROSECUTOR:] Your Honor, approaching the witness
with [s]tate’s 157 for identification, the statement of
Jeremy Palmer, specifically Page 4, line 150.

“* * *

“[DEFENDANT:] All right. I read it, line 150 to line 155.

-8-
 “[PROSECUTOR:] Do you recall now saying to Jeremy
Palmer that, [Valdez is] on permanent vacation and that
he’s—the problem is solved?

“[DEFENDANT:] I still don’t recall ever saying that.”

The defendant did not raise a contemporaneous objection during trial;

however, defendant now argues, for the first time on review, that “[b]ecause of this

line of questioning and presentation of Mr. Palmer’s statement to the defendant, the

jury was able to readily infer the content of Mr. Palmer’s untested, out-of-court

testimonial statement.”

Further, defendant avers that the prosecutor “compounded the harm” when

the prosecutor highlighted this testimony in his closing argument:

“[The defendant] also describes this person to—which a
phone call, which he admits happened to his former—now
former friend Jeremy Palmer that there was a problem, aka
[Valdez] was the problem and the problem was fixed.

“Now, the only thing we know is that Jeremy
Palmer wasn’t in that room on the 17th of July of 2017.
Jeremy Palmer wasn’t outside the house the next day. So
if he wasn’t in either of those spaces, he wasn’t in the car,
that means [defendant] had termed Valdez Loiseau a
problem prior to seeing him assault his mother, in his
words, for the first time. Already a problem. Already a
problem. Apparently whatever happened that night,
maybe that was just the last straw. Already a problem,
because he flippantly describes him as permanently on
vacation. Permanently on vacation.”

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Again, defendant did not object to the prosecutor’s reference to Palmer in the

prosecutor’s closing argument, nor did defendant raise this issue in his motion for a

new trial.

2

Closing Argument

The defendant also argues that, during closing arguments, the prosecutor

made “improper suggestions based on scientific evidence, not introduced at trial, but

instead through assertions of his own personal knowledge.” During his closing

arguments, the prosecutor stated the following:

“Now, recall that [defendant] says he’s never handled a
firearm before in his life, yet he pulls off what is the most
incredible pistol draw, I submit, you will ever hear about,
because he not only reacts within a split second, but he
manages to get the gun out of his waistband, which—
jeans, not a holster, out of his waistband, and somehow
draw it up to a person that is coming towards him with a
lot of force, very fast, somehow he gets this gun up, even
though he’s reacting to Valdez—Valdez, by his story,
reacted first. Valdez makes the first move. Coming right
at him.

“I submit to you that that is impossible, not only
because the relations of the body and him having to pull
from his waistband to getting that up, he would have hit
Valdez in the chest as he came forward. He would have
never got that gun up. The gun would have misfired to the
left. He would have never been able to get that pistol draw
off.

“Now, back in my younger days, I used to be a little
faster. I used to be track and field. You have starting

- 10 -
 blocks, and somebody gets down on the blocks. You’ve
all seen the Olympics. Guy fires a starters pistol, people
go off. There’s something called a false start. And that’s
when somebody reacts too fast for a human to react having
heard a sound. That—that limit is .12. If you react faster
than that, you’re basically guessing. .12. That’s .12. In
that, he pulled out—perceived a threat, pulled the gun,
aimed a shot, fired it, in that fast. That is incredible.

“I submit to you that the only way he would have
been able to shoot Valdez Loiseau as he did, as we know
he must have, because he, number one, he told us he shot
him in the chest, but also because the stippling tells us that
it was a close-range shot, somewhere around inside three
feet. Had to have walked in, had to have had the gun out.
Had to have had the gun out already. It’s the only way
physics allows for that shot to happen the way it must
have, based on the stippling, based on the bullet track.
There was no gun pull. There was no lunge. That didn’t
happen, because it’s incredible for it to have happened.”

3

Standard of Review

“A trial justice’s decision to deny a motion for mistrial is accorded great

weight and will not be disturbed on appeal unless it is clearly wrong.” State v. Doyle,

235 A.3d 482, 511 (R.I. 2020) (quoting State v. Enos, 21 A.3d 326, 332 (R.I. 2011)).

However, “[t]he raise-or-waive rule imposes upon litigants a duty to raise all their

claims for relief in the trial court and properly articulate them to a judge for a ruling.”

State v. Mensah, 227 A.3d 474, 483 (R.I. 2020) (quoting State v. Andrade, 209 A.3d

1185, 1194 (R.I. 2019)). “[I]f an issue was not preserved by specific objection at

trial, then it may not be considered on appeal.” Doyle, 235 A.3d at 511 (quoting State

- 11 -
v. Pona, 66 A.3d 454, 468 (R.I. 2013). “We require a specific objection so that the

allegation of error can be brought to the attention of the trial justice, who will then

have an opportunity to rule on it.” Id. (quoting Pona, 66 A.3d at 468).

4

Analysis

Despite defendant’s claim that the trial justice erred in failing to declare a

mistrial, the record reveals that defendant never moved for a mistrial. “A mistrial in

a criminal trial is an extreme remedy and should be granted only when there is a

fundamental defect in the proceeding that cannot be cured, such that the defendant

will be deprived of a fair trial.” Doyle, 235 A.3d at 507. “The grounds for the motion

should be clearly articulated and the state is entitled to an opportunity to respond.”

Id. “When confronted with a motion for a mistrial, the trial justice is charged with

evaluating the basis for the motion, in order to determine whether a juror voir dire is

warranted and, in the exercise of discretion, decide whether the potential prejudice

can be cured by an immediate cautionary instruction.” Id. “A trial justice is never

permitted to grant a mistrial sua sponte unless there exists manifest necessity or the

ends of justice require a mistrial.” State v. Silva, 685 A.2d 1072, 1073 (R.I. 1996)

(mem.) (citing United States v. Dinitz, 424 U.S. 600, 606-07 (1976)).

Here, the trial justice was never asked to consider whether the state’s

references to Palmer’s statements were in violation of defendant’s rights under the

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Confrontation Clause, and, thus, defendant’s appellate arguments on this issue have

been waived. Further, with respect to the prosecutor’s reference to purported

scientific evidence during closing argument, defendant did not object nor request a

cautionary instruction; thus, defendant’s appellate arguments on this issue have also

been waived.4 Moreover, neither issue that defendant identifies rises to the level of

manifest necessity; consequently, a sua sponte declaration of a mistrial by the trial

justice would have been improper. See Silva, 685 A.2d at 1073; cf. Doyle, 235 A.3d

at 507 (“A classic example of manifest necessity is a deadlocked jury.”).

Therefore, the trial justice did not err in failing to grant a mistrial, as defendant

argues, because the grounds for a mistrial that defendant raises before us were never

articulated before the trial justice “and, significantly, the state was never called upon

nor given an opportunity to respond.” Doyle, 235 A.3d at 507.

B

Motion for a New Trial

The defendant next argues that the trial justice erred in denying defendant’s

motion for a new trial. The defendant avers that “the trial judge misapplied the duty

4
We pause to note that a timely objection would have allowed the trial justice to
“decide whether the potential prejudice c[ould have] be[en] cured by an immediate
cautionary instruction.” State v. Doyle, 235 A.3d 482, 507 (R.I. 2020). Although the
lack of objection denied the trial justice the opportunity to make this determination,
the record reveals that the jury was properly instructed by the trial justice that the
“statements of lawyers are not evidence.”

- 13 -
to retreat rule and overlooked material evidence that raised issues of fact in support

of his self-defense claim.”

1

Standard of Review

“Under the ‘oft-repeated’ and ‘well settled’ test this Court applies when

reviewing a motion for a new trial, we examine whether the trial justice acted as a

‘thirteenth juror’ and exercised his or her ‘independent judgment on the credibility

of witnesses and on the weight of the evidence.’” State v. Stokes, 200 A.3d 144, 152

(R.I. 2019) (quoting State v. Cerda, 957 A.2d 382, 385 (R.I. 2008)). “When

considering a motion for [a] new trial, the trial justice must undertake a three-step

analysis: ‘(1) consider the evidence in light of the jury charge, (2) independently

assess the credibility of the witnesses and the weight of the evidence, and then (3)

determine whether he or she would have reached a result different from that reached

by the jury.’” Id. (quoting State v. Greenslit, 135 A.3d 1192, 1197 (R.I. 2016)).

“If, after conducting this independent review, the trial justice agrees with the

jury’s verdict or if the evidence is such that reasonable minds could differ as to the

outcome, the motion for a new trial should be denied.” State v. Johnson, 199 A.3d

1046, 1051 (R.I. 2019) (quoting State v. Gomez, 116 A.3d 216, 223 (R.I. 2015)).

“Only when the trial justice does not agree with the jury’s verdict, must he or she

embark on a fourth analytical step.” Id. (brackets omitted) (quoting Gomez, 116 A.3d

- 14 -
at 223). “This Court’s review of a denial of a motion for a new trial is deferential

because the trial justice is in an especially good position to evaluate the facts and to

judge the credibility of the witnesses[.]” Id. (quoting Gomez, 116 A.3d at 223). “If

the trial justice has articulated adequate grounds for denying the motion, his or her

decision is entitled to great weight and will not be overturned by this Court unless

he or she has overlooked or misconceived material evidence or was otherwise clearly

wrong.” Id. (quoting Gomez, 116 A.3d at 223).

2

Analysis

Here, defendant specifically argues that the trial justice erred in denying the

motion for a new trial because “reasonable minds could not differ that [defendant’s]

use of deadly force against the substance-crazed and enraged Valdez Loiseau was

indisputably in self-defense and the court misapplied the duty to retreat rule[.]”

During the hearing on the motion for a new trial, defense counsel argued that “[t]he

evidence shows that the defendant fired that first shot in self-defense[,]” and that

“the second shot didn’t matter because the first shot was fatal[.]” Moreover, defense

counsel encouraged the trial justice to “disregard” the portions of defendant’s

testimony where he admitted to firing the second shot, because, according to

counsel, “[i]t doesn’t make sense.” Rather, defense counsel argued,

“A good juror, a good thirteenth juror says Melonie was
on the floor at the side of the bed, the Beretta is right in

- 15 -
 front of her, the defendant is attacked by Valdez. The
defendant shoots Valdez in self-defense, and Melonie is
sitting on the floor, sees Valdez falling on top of her son,
the person that’s spent years protecting her, looking out
for her. The woman who owns the guns. Who got the blue
card, who knew how to fire the guns, and she fires a shot
into the back of Valdez’s head while she sees him
attacking her son. There’s no stippling around the head
wound.

“It makes more sense then [sic] the defendant
running into a second bedroom down the hall, lifting up a
mattress, retrieving a gun that he said he hid there, and
returning to the room and firing, and hitting Valdez in the
back of the head.”

We begin our review of the trial justice’s decision by acknowledging that the

trial justice applied the correct standard for assessing the motion for a new trial and

articulated sufficient grounds for denying the motion; therefore, his decision is

entitled to great weight and deference. See Johnson, 199 A.3d at 1051. In his

decision, the trial justice explained that “[t]here never was an issue as to whether the

defendant shot and killed Valdez Loiseau. * * * The choices the jury had were

between murder and self-defense.” Further, the trial justice explained that

self-defense was “a very weak defense in this case[,]” because Valdez was a

cohabitant and defendant had a duty to retreat. Moreover, the trial justice noted that

defendant admitted that Valdez “had no weapon in his possession” when defendant

shot him. The trial justice rejected defendant’s testimony that Valdez was “tougher

and would have overwhelmed him” and explained that “[e]ven if the defendant felt

- 16 -
he was threatened, he had the duty to retreat before resorting to deadly force.”

Additionally, the trial justice found that defendant shooting Valdez a second time,

while he was “lying prone and making gurgling sounds,” further undermined any

claim of self-defense, as did “defendant’s complicit activities in removing the

decedent’s body, hauling it to Massachusetts with the assistance of James Clark, and

lighting it on fire in the hopes of destroying the evidence of a homicide[.]”

For the first time on review, defendant argues that the trial justice misapplied

the duty-to-retreat rule; therefore, we need not reach the merits of this argument

because it is waived. See Mensah, 227 A.3d at 483. The record reveals that

defendant made no reference to this argument during the hearing on the motion for

a new trial. Nor did defendant object at trial to the jury instruction on the duty to

retreat.

Having thoroughly reviewed the record, as well as the trial justice’s decision

denying the motion for a new trial, we are satisfied that the trial justice articulated

adequate grounds for denying the motion and that he did not overlook or

misconceive material evidence. Accordingly, we hold that the trial justice properly

denied the defendant’s motion for a new trial.

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 III

Conclusion

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

The record in this case may be returned to the Superior Court.

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 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. Xavier Vidot.

No. 2020-84-C.A.
Case Number No. 2020-18-M.P.
(P/18-33AG)

Date Opinion Filed June 28, 2021

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Robert D. Krause

For State:

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

Christopher S. Gontarz, Esq.
Ferenc Karoly, Esq.

SU-CMS-02A (revised June 2020)