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Supreme Court
No. 98-298-C.A.
(P1/94-2165A)
State                                                                                                    :
v.                                                                                                       :
Donna Dellatore.                                                                                         :
Present:  Weisberger, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ.
O P I N I O N
Weisberger, Chief Justice.     This case comes before us on the appeal of the defendant,
Donna Dellatore, from a judgment of conviction entered in the Superior Court in which a jury found her
guilty of second-degree murder.    The trial justice denied the defendant’s motion for a new trial,
sentenced her to fifty years imprisonment (with thirty years to serve and twenty years suspended with
probation), and ordered her to attend counseling upon her release.   This appeal followed.   We affirm
the judgment of the Superior Court.  The facts insofar as pertinent to this appeal are as follows.
On February 12, 1994, Donna Dellatore (defendant) began complaining of pain to Armando
Mejia (Mejia), her partner, with whom she shared an apartment at 144 Central Street in Central Falls.
The pain continued into the following day.   The defendant refused Mejia’s offers to take her to the
hospital and instead sent him to the store to purchase medicine for menstrual cramps and sanitary
napkins.   On February 14, Mejia went to work with defendant’s assurances that she would be fine.
Concerned about defendant’s condition, Mejia returned home early from work and found defendant in
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bed.   Upon seeing Mejia, defendant stated, “I’m sorry, I’m sorry * * * I didn’t know we were
pregnant.”  She then told Mejia that she had given birth to a baby while he was at work.  Mejia entered
the bathroom and found the baby in the toilet.   After the baby failed to respond to his touch or display
any signs of life, Mejia proceeded to leave the apartment and call the paramedics.
Shortly thereafter, the paramedics arrived at defendant’s apartment.    Upon entering the
apartment, they found defendant wrapped in a blanket, lying on a mattress on the floor.    The
paramedics were then led into the bathroom by Mejia.   They found the body of a newborn girl in the
toilet, partially submerged in water.   After checking for vital signs, the infant was declared “DOA”
(Dead on Time of Arrival).   The defendant was then taken to the hospital by the paramedics.   At the
hospital, defendant acknowledged that she had given birth to a baby that morning.   She also admitted
that her stomach had become larger and that she had had no menstrual periods since the previous May.
However, because her menstrual cycle had always been irregular (she had often gone several months
without  menstruating),  because  she  was  naturally  large  in  the  stomach,  and  because  she  was
thirty-five-years-old and had never before conceived (despite a previous ten-year marriage), she had
not understood that she might be pregnant.
Doctor Elizabeth Laposata (Laposata), the state medical examiner, conducted an autopsy on
the baby.   Her examination revealed a Y-shaped laceration on the right side of the back of the baby’s
skull.   Laposata viewed this laceration as evidence of blunt trauma.   Underneath that wound was a
smaller, “cutting” type of wound, possibly made by a fingernail.   An internal examination revealed a
depressed skull fracture with an area of hemorrhage underneath the laceration on the right side of the
temporal lobe.  The examination was otherwise unremarkable, indicating a normally developed, full-term
baby.
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Laposata determined that the baby had not been stillborn.   She based this determination on the
presence of air in the alveoli of the baby’s lungs, which established that some breathing had taken place,
and on the hemorrhaging surrounding the head wound, which indicated  “an effective heartbeat,”
sufficient to support blood flow throughout the body.   The doctor opined that blunt head trauma had
been the main cause of the baby’s death.
Based on the fact that the infant had an effective heartbeat, but had never had the opportunity to
fully expand her lungs to achieve effective respiration, Laposata concluded that the trauma was
sustained very shortly after birth.   She said that the absence of any blood in the amniotic fluid and the
lack of any injuries to defendant eliminated the possibility that the injuries had occurred before birth
because such trauma could not have been suffered by the baby in utero absent the presence of
“significant injuries” to the mother.
Laposata rejected the possibility that the infant had suffered the head injury when she fell,
unassisted, to the floor or onto the toilet during the birthing process.  In order to attain sufficient force to
cause the type of injury that the baby suffered, it would have been necessary to not only drop the baby,
but also to exert additional energy moving the baby’s body against a blunt surface.   This would have
required that the baby be “totally expelled from the mother’s body.”   Laposata did acknowledge that
the injury theoretically could have occurred when the baby had been only partially expelled from the
mother’s body, as long as the head had emerged from the birth canal and one had possessed “the
geometry and the physical ability” to move the child’s head with sufficient force against a blunt object to
effect such trauma.  Such a scenario would have required “some very unusual circumstance[s],” such as
the mother’s “jumping downstairs with the baby partially protruding from her.”
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The defendant was charged with one count of first-degree murder arising out of the death of her
newborn infant.  During trial, the trial justice granted defendant’s motion for judgment of acquittal on the
first-degree murder count, but denied that motion insofar as it sought acquittal on the charges of
second-degree murder and manslaughter.   The trial justice refused defendant’s request to instruct the
jury that for a baby to have been “born alive,” the jury must find that the baby had been fully expelled
from her mother’s body and that she had had a separate and independent existence.   Such a finding,
defendant argued, was necessary to sustain a homicide conviction for the baby’s death.   See State v.
Amaro, 448 A.2d 1257, 1259 (R.I. 1982).  Specifically, defendant asked the trial justice to instruct the
jury as follows:
“Request #9:  Separate and independent existence means that the injury
must have been inflicted when the baby was fully expelled from the
mother.   In other words, if you are not satisfied beyond a reasonable
doubt to this point, you must acquit.
“Request #10:  In order to prove that the baby was born alive, the main
evidence is whether the child took a breath.
“Request #11:  In order to prove that the baby was born alive, you may
consider as factors whether there was air in the lungs, whether the baby
breathed, did the baby cry, was the body moving, were there any
problems with the birthing process.
“Request #12: In order to prove a separate and independent existence,
you must find that the baby had breathed in order to attain separate
respiration and circulation from the mother.”
The trial justice instead instructed the jury as follows:
“First of all, there cannot be a murder unless there is a live victim.   So,
the State has the obligation of proving to you through the evidence that
Baby Dellatore at the relevant times was alive, and that the baby had
the capacity and capability of living separate and apart from its mother
upon being delivered out of the womb, and that the baby, as I say, lived
separate and apart without artificial means, such as an incubator or
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special  extraordinary  drugs  or  something  of  that  nature  being
administered to it.   In other words, it was a basically normal, healthy
baby, and that if all other things had been appropriate it could have
lived.  That is what being born alive means.
“Obviously, if you conclude, based upon the evidence that the baby
was born dead, it was stillborn, well, then, there cannot be a second
degree murder.   The ancient common law has examples of someone
going through a window in the middle of the night bent upon killing
someone, they find out later that the person, the intended victim had
actually died two days earlier.   While the person may have stabbed
something, it was not stabbing a living human being, so there was no
murder.  Similarly, in this case, the baby must have been born alive; that
is one element the State must show.”
On appeal, defendant contends that the trial justice erred in refusing defendant’s request, and, in so
doing, committed reversible error.
A trial justice “shall instruct the jury in the law relating to the action.”   G.L. 1956 § 8-2-38; see
State v. Arpin, 122 R.I. 643, 666, 410 A.2d 1340, 1352 (1980); State v. Butler, 107 R.I. 489, 490,
268 A.2d 433, 434 (1970);  Macaruso v. Massart, 96 R.I. 168, 172, 190  A.2d 14, 16 (1963).
However, a “trial justice is free to instruct the jury in his or her own words, provided that he or she
states the applicable law.”  State v. Parkhurst, 706 A.2d 412, 418 (R.I. 1998) (citing State v. Marini,
638 A.2d 507, 517 (R.I. 1994)).                                                                                   “[I]t is not reversible error for a trial justice to refuse to give
instructions requested by a defendant, as long as the charge given adequately covers the law relating to
the request.”   State v. Grundy, 582 A.2d 1166, 1170 (R.I. 1990).   On appeal, this Court reviews a
challenged instruction in the context of the entire charge to determine how a jury composed of ordinarily
intelligent people would have understood the instructions as a whole.   See State v. Cipriano, 430 A.2d
1258, 1262 (R.I. 1981).   If the Court determines that a reasonable juror would not have misconstrued
the instructions, then the trial justice’s instructions will be upheld.  See  id.; see also Parkhurst, 706 A.2d
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at 418.
The Amaro test requires that a victim be “born alive” in order to sustain a criminal conviction for
homicide.   See Amaro, 448 A.2d at 1259.   It sets forth two very specific criteria that must be met
before that conviction can be obtained.   First, the baby must have been “totally expelled from the
mother.”  Id.   Second, the baby must have shown signs of “independent vitality.”  Id.   Both parts of the
Amaro test were addressed by the trial justice in his instructions.   The first part of the test (“totally
expelled”) was addressed by the trial justice in his instructions to the jury when he instructed the jury
that not only must the baby have “had the capacity and capability of living separate and apart from its
mother upon being delivered out of the womb,” (emphasis added), but also that the baby must have
“lived separate and apart without artificial means.”   The trial justice set this out as a conjunctive
proposition:   the baby had to have both the capacity and capability to live outside the mother’s womb
and the baby actually must have done so.   The former without the latter would have been insufficient.
Any reasonably intelligent juror would have understood that the trial justice’s instruction required a
finding that the baby had the capacity and capability to live outside the mother’s womb and that the
baby actually did so to be considered “born alive.”
Moreover, “a trial justice need only instruct a jury regarding those rules of law that must be
applied to the issues raised at the trial.”   State v. Medeiros, 535 A.2d 766, 772 (R.I. 1987).              “[A]
requested jury instruction should not be given if it is not supported by the evidence admitted at trial
because such an instruction tends to mislead or confuse the jury.”  State v. Mastracchio, 612 A.2d 698,
707 (R.I. 1992) (holding that the evidence did not support giving the instruction requested by the
defendant  as  the  theory  underlying  the  instruction                                                     “truly  stretche[d]  the  bounds  of  credibility”).
Assuming arguendo that a reasonably intelligent juror would not have understood the trial justice’s
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instruction to require that the baby must have been expelled totally from the mother’s body to be
considered born alive, any error that occurred from failing to give the requested instruction was harmless
because the evidence did not support giving such an instruction to the jury.   Laposata’s testimony
refuted the defendant’s theory that the baby’s falling unassisted from the mother caused the baby’s head
to slam forcefully against the toilet seat, resulting in the fatal skull fracture.  The amount of force needed
to cause the head trauma that the baby suffered would had to have been significantly greater than the
force generated by a drop.   It would have been necessary to not only drop the baby, but also to exert
additional energy moving the baby against a blunt surface.   Although Laposata acknowledged it was
theoretically possible that the fatal injury could have occurred with only part of the baby protruding from
defendant’s body, that would have required extremely unusual circumstances -- that is, the mother’s
jumping downstairs with only part of the baby protruding from her body.   There was no evidence to
support a reasonable inference that such a scenario had occurred.
The second part of the Amaro test requires that “independent vitality” be shown.    This part of
the test similarly was addressed by the trial justice’s instructions.  The trial justice said in his instructions
that the baby had to have “the capacity and capability of living separate and apart from its mother,” and
that it must in fact have “lived separate and apart without artificial means.”   The trial justice’s reference
to a “capacity” and a “capability” of living separate and apart from the mother did not change or muddle
the meaning of his instruction; he stressed that the child had to have “lived separate and apart without
artificial means.” His directive was clear.  Any reasonably intelligent juror would have had no difficulty in
discerning that a physically independent existence depended upon the sufficient development of the
baby’s own circulatory and respiratory systems.
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The defendant also argues that the court erred in refusing to give defendant’s requested
mistake-of-fact instruction.    In appropriate circumstances, this Court does recognize the mistake-
of-fact defense.   See State v. Tevay, 707 A.2d 700 (R.I. 1998) (holding that no mistake-of-fact
instruction was necessary when the trial justice had emphasized in his instruction to the jurors that it was
their obligation to find that defendant’s conduct was intentional beyond a reasonable doubt as a
predicate to a guilty verdict).   Here, the jury was instructed that in order to convict defendant of
second-degree murder, it must find that defendant acted with the intent to kill a living human being.
Although manslaughter did not require a specific intent to kill a living human being, it did require a finding
that defendant acted with recklessness or criminal negligence in breaching a duty to aid her child.  Thus,
in order to convict defendant of either second-degree murder or manslaughter, the jurors had to find
that the baby was a living human being when she was killed, and that defendant acted either
intentionally, recklessly, or with a high degree of negligence.   Such instructions by the trial justice
precluded the necessity of a mistake-of-fact instruction.
Finally, defendant argues that the trial justice erred in restricting the portions of the medical
examiner’s testimony read back to the jury.   It is well established that the decision to have testimony
read back to the jury during deliberations is within the sound discretion of the trial court.   See State v.
Dame, 488 A.2d 418, 422  (R.I. 1985) (citing Stone v. United States, 506 F.2d 561, 564 (8th Cir.
1974), cert. denied, 420 U.S. 978, 95 S. Ct. 1405, 43 L. Ed.2d 659 (1975); Pinckney v. United
States, 352 F.2d 69, 70 (5th Cir. 1965)).                                                                        “Generally, such a request should be honored.”   State v.
Haigh, 666 A.2d 803, 804 (R.I. 1995) (citing Dame, 488 A.2d at 422).  When a trial justice grants the
jury’s request to have testimony read back, he or she must ensure that it is done in an impartial manner
so it does not invade the province of the jury.   See State v. Pierce, 689 A.2d 1030, 1035 (R.I. 1997).
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Here, the jury specifically requested to see a copy of Laposata’s testimony regarding the scale used to
determine the severity of force.   This testimony was read back to the jury.   However, the jury was not
read back a portion of the testimony in which the trial justice had asked whether the scale was numerical
and  Laposata  had  responded  that  it  was  not,1  nor  was  the  jury  read  back  defendant’s
cross-examination of Laposata.   Given that Laposata’s testimony was neither undermined by the trial
justice’s question nor by cross-examination, and that the testimony about the scale was not the only
evidence heard by the jury concerning force, the court’s decision to limit the reading back of the
testimony to Laposata’s testimony concerning the scale was, at worst, harmless error.  See Pierce, 689
A.2d at 1034-35 (holding that trial justice’s decision to omit rereading of witness’s testimony that her
memory was blurred was reversible error in sexual assault trial because this testimony was crucial to the
question of whether the episode had occurred before or after the witness’s fourteenth birthday); State v.
Gomes, 604 A.2d 1249, 1259-60 (R.I. 1992) (holding that reading only a portion of a witness’s
testimony to the jury was harmless error when the same information was elicited from other witnesses).
For the reasons stated, the defendant’s appeal is denied and the judgment of conviction is
affirmed.  The papers in the case may be remanded to the Superior Court.
1  Laposata explained that the scale measured force by looking at the displacement in the head caused
by the injury.  She explained that there was a continuum of injury that spanned from the least amount of
displacement (that is, a bruise) to the greatest amount of displacement (that is, an open skull fracture
with bone fragmentation).
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COVER SHEET
TITLE OF CASE:                             State v. Donna Dellatore
DOCKET NO.:                                98-298 - C.A.
COURT:                                     Supreme Court
DATE OPINION FILED:     November 3, 2000
Appeal from                                                                         County:
SOURCE OF APPEAL:                          Superior                                 Providence
JUDGE FROM OTHER
COURT:                                     Fortunato, J.
JUSTICES:                                  Weisberger, C.J., Lederberg, Bourcier,
                                           Flanders, Goldberg, JJ.                  Concurring
WRITTEN BY:                                WEISBERGER, C.J.
ATTORNEYS:                                 Aaron L. Weisman, Jane M. McSoley
For Plaintiff
ATTORNEYS:                                 Kelly Monteiro, Paula Rosin
For Defendant

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