Trial begins for ACI guards charged with assaulting inmates

PROVIDENCE — Testimony began this week in the trial of two former correctional officers who are charged with assaulting inmates at the state’s minimum-security prison.

Capt. Gualter Botas, 39, of Pawtucket, faces seven counts of simple assault involving four inmates, and Lt. Kenneth J. Viveiros, 56, of North Providence, faces four counts of simple assault involving three of the same inmates.

This fall, Botas is expected to return to court to be tried in another inmate-abuse case in which he is accused of forcing a prisoner to taste his own feces.

During Superior Court testimony on Wednesday and Thursday, former inmate Matthew S. Gumkowski testified that Botas “sucker-punched” him after he made a vulgar suggestion to the captain on June 8, 2005.

At the time, Gumkowski, 27, of East Greenwich, was serving sentences on drug delivery and weapon possession charges, and he was caught with a $20 bill at the minimum-security facility. Paper currency is prohibited at the prison unless inmates are on work release.

Gumkowski said he was brought into Gotas’ office in handcuffs and told to sit at a desk. He said Gotas began questioning him about where he got the $20 bill, insisting that the money came from a visitor.

Gumkowski said he kept responding that the $20 had already been in the prison. “I finally got sick of him talking to me,” he testified. So he made a vulgar suggestion to Gotas.

The captain then punched him from behind, Gumkowski said. “I couldn’t see it coming at all,” he said.

Gumkowski said the punch landed near his right eye and cheek bone and he began bleeding. “It was split open,” he said. “He threw some napkins at me and said, ‘Go ahead and do something and I’ll call a code.’ ”

Special Assistant Attorney General Molly K. Cote asked what calling a code means. “If I was trying to fight with him, he’d call for backup,” Gumkowski said.

Gumkowski said Botas told the prison nurse that he had dropped a weight on himself.

Gumkowski said he was left with a “small scar” on his face, and he stood before members of the jury, pointing out the scar.

Cote asked if he made any effort to report what happened to authorities. “No,” Gumkowski said. “I had a parole coming up and I didn’t want to interfere with the hearing on parole.” He said the state police interviewed him about seven months after the alleged assault.

During cross-examination, John D. Lynch Jr., the lawyer for Botas, asked Gumkowski if he works out. “I do,” he said. Lynch asked if Gumkowski had told correctional officers that he had the $20 to buy workout belts. “No,” he said.

Lynch asked Gumkowski if he had injured himself with a barbell. “No,” he said. Lynch also asked Gumkowski if he had told the nurse he injured himself with a barbell. “I didn’t tell her that,” he replied.

Both Lynch and Olin W. Thompson III, the lawyer for Viveiros, zeroed in on how Gumkowski obtained the $20 bill. Lynch asked if the $20 was found after Gumkowski had visited with his girlfriend in the prison yard. Gumkowski said that visit had been earlier in the day, and he said he got the $20 by selling cigarettes to another inmate. When Lynch asked which inmate, Gumkowski said, “I don’t know.” Lynch asked, “Do you not want to tell me?” Gumkowski said, “Correct.”

Gumkowski indicated that being found with the $20 marked the first time he had been “booked” for violating prison rules, but Lynch pointed out that he had been also booked for “willful destruction of property” in prison in 2003.

Lynch noted Gumkowski had violated the terms of prior sentences, saying, “When you were sentenced, you promised to keep the peace and be of good behavior. Did you do that?” Gumkowski said, “No.” Lynch said, “You promised to tell the truth here today. Are you doing that?” Gumkowski said, “I am.”

At another point, Cote asked Gumkowski if he was aware of penalties inmates can face for violating prison rules. “Yes,” he said. Cote then asked, “Have you ever heard of assault by a captain being a valid punishment for a booking?” Defense lawyers objected to that question.

Testimony is scheduled to resume Tuesday before Superior Court Judge Daniel A. Procaccini. The trial, which is expected to last three to four weeks, also will include charges that Botas and Viveiros assaulted three other inmates: Robert Houghton, Anthony Romano and Jose Gonzalez.

In February 2007, District Court Judge Madeline Quirk found Botas, Viveiros and correctional officer Ernest Spaziano guilty of assaulting Gonzalez, an inmate who was serving a sentence on a drug conviction. The three officers appealed their convictions to Superior Court. Spaziano, 40, of Burrillville, was the first to go to trial in Superior Court, and earlier this year he was found not guilty of assaulting Gonzalez.

Now, Botas and Viveiros are receiving a Superior Court trial. Originally, the trial was to include allegations that Botas forced inmate Michael Walsh to taste his own feces.

But Michael J. Healey, a spokesman for the attorney general’s office, said Procaccini granted a defense motion to sever that allegation from the others. He said the judge told prosecutors they could either try all the allegations at once while not using evidence that Walsh was “allegedly made to eat his own feces” — or they could use that evidence and try the Walsh allegation separately. Prosecutors chose to have a separate trial.

“The judge’s rationale is he found that evidence in the Walsh allegation was too inflammatory regarding Mr. Viveiros,” Healey said. “It could affect Mr. Viveiros’ right to a fair trial.”

The Department of Corrections fired Botas and Viveiros, and it stopped paying them on Feb. 12, 2007, department spokeswoman Tracey Z. Poole said yesterday.

Richard Ferruccio, president of the Rhode Island Brotherhood of Correctional Officers, said the Department of Corrections is refusing to put Spaziano back to work although he was acquitted. Once the trials are done, the union will pursue arbitration to get Spaziano back on the job, and it will do the same for Botas and Viveiros if they are acquitted and want to return to work, he said.

source: http://www.projo.com/news/content/aci_guards_trial_07-12-08_THAQCAQ_v40.3bedb8e.html

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