Rhode Island Superior Court

STATE OF RHODE ISLAND v. THIBODEAU, 06-3396 (R.I.Super.
12-8-2006) STATE OF RHODE ISLAND v. DWAYNE THIBODEAU. C.A.
No. P1/ 06-3396. State of Rhode Island, Superior Court.
PROVIDENCE, S.C. Filed: December 8, 2006.

DECISION

LANPHEAR, J.

On May 3, 2006, Defendant Dwayne Thibodeau was charged with
the crime of kidnapping and arraigned in the Rhode Island
District Court. (Case Number 62-2006-8261.) The District
Court set bail; Mr. Thibodeau posted that bail, and then
was released on bail.

Later that month, Mr. Thibodeau was alleged to have
violated the terms of his bail. Upon his appearance, the
Court granted him bail once again, adding more conditions
to the terms of his bail.

On October 4, 2006, Mr. Thibodeau was indicted by the
Providence County Grand Jury in the instant action. At his
arraignment, the Court continued the issue of bail with Mr.
Thibodeau’s consent. The parties have briefed the issue and
the matter is now before the Court today.

Mr. Thibodeau claims that he cannot be held without bail,
as the District Court found him to be entitled to bail. The
record of the District Court proceedings is scant,[fn1] but
this Court is hard-pressed to label what transpired as a
“bail hearing” pursuant to the

Court rules and case precedent. No witnesses were called,
and no arguments were raised. Instead, a police
officer[fn2] read the charge.

The State contends that the Grand Jury indicted Mr.
Thibodeau on a new charge, hence the pending charge was
never considered by the District Court. A more extensive
review of the charges is therefore necessary.

The District Court Complaint, while containing the phrase
“kidnap a juvenile” in the text of the charge, also lists
the statute violated as RIGL § 11-26-1. In fact,
11-26-1 is listed three separate times on the Complaint and
no other statute is referenced.

Kidnapping — Whoever, without authority, forcibly
or secretly confines or imprisons another person within
this State against his or her will, or forceably carries
or sends another person out of this State, or forceably
seizes or confines or inveigles or kidnaps another person
with intent either to cause him or her to be secretly
confined or imprisoned within the State against his or her
will or to cause him or her to be sent out of the State
against his or her will, shall be guilty of a felony and,
upon conviction, shall be punished by imprisonment for not
more than twenty (20) years. RIGL § 11-26-1(a).

As the maximum penalty imposed by law is imprisonment for
twenty (20) years, it is not a capital crime. Accordingly,
Mr. Thibodeau may have a right to bail for this particular
kidnapping statute. Mr. Thibodeau claims he was charged
with another statute at the District Court. He was not.
RIGL § 11-26-1 is the statute referenced in the
District Court Complaint, and before the District Court.

The Indictment resulting from the Grand Jury’s true bill
reads quite differently. It charges Mr. Thibodeau with
violation of is RIGL § 11-26-1.4, kidnapping of a
minor. This is separate statute, distinct from the charge
contained in the original District Court Complaint.

Kidnapping of a Minor — Whoever, without lawful
authority, forcibly or secretly confines or imprisons any
child under the age of sixteen (16) years within this
State against the child’s will, or forcibly carries or
sends the child out of the State, or forcibly seizes,
confines, inveigles, or kidnaps the child with intent
either to cause the child to be secretly confined or
imprisoned within the State against his or her will, or
with the intent of sexually assaulting or molesting the
child as defined in chapter 37 of this title, or with the
intent to abuse the child as defined in chapter 9 of this
title, shall be guilty of a felony and, upon conviction,
shall be punished by imprisonment for life or for any term
not less than twenty (20) years. However nothing
contained in this section shall be deemed to make the
reasonable lawful acts of a parent in caring for his or
her child a violation of this section. RIGL §
11-26-1.4.

While kidnapping may have been an acceptable charge at the
outset, the Grand Jury selected a more specific charge. The
Kidnapping of a Minor Statute has different elements and a
different penalty range. The new charge carries a higher
maximum

penalty, subjecting Mr. Thibodeau to the potential of life
imprisonment. As it is a capital charge, it allows a
defendant to be held without bail pursuant to the
provisions of the Rhode Island Constitution. Art. I,
Section 9 of the Rhode Island Constitution states

All persons imprisoned ought to be bailed by sufficient
surety, in less for offenses punishable by imprisonment
for life, or for offenses involving the use or threat of
a dangerous weapon by one already convicted of such an
offense or already convicted by an offense punishable by
imprisonment for life, or for offenses involving the
unlawful sale, distribution, manufacture, delivery, or
possession with intent to manufacture, sell, distribute or
deliver any controlled substance or by possession of a
controlled substance punishable by imprisonment for ten
(10) years or more, when the proof of guilt is evident or
the presumption great. . . .

See also Fontaine v. Mullen, 117 RI 262, 366 A.2d 1138, 1141
(1976) which holds “that bail may be denied in cases where
death or life imprisonment could possibly be imposed as
penalties.”

At the District Court level, the State did not request that
Mr. Thibodeau be held without bail. In fact, Mr. Thibodeau
was not charged with a crime for which he could be held
without bail. The likelihood of a denial of bail was not
reached until he was charged with a separate crime by the
Providence County Grand Jury. It is at this point, and only
this point, when the threshold of Art. I, Section 9 is
reached. Therefore, the State is within its prerogative to
request that Mr. Thibodeau be held without bail on the new
charge, and the bail hearing is appropriately before the
Court. This matter shall be set down for a bail hearing
within 48 hours.

[fn1] A copy of the District Court Complaint is attached to
the Memorandum of the State. A copy of the tape-recorded
proceedings of the District Court was submitted by Mr.
Thibodeau. The Court orders the tape to be included in the
Court file herein.

[fn2] This Court is reluctant to use the term “prosecutor”
as this title is normally preserved for schooled and
licensed attorneys. Query: If the police did police work
and attorneys did attorneys’ work, whether the State would
be placed in this controversy.