Strict Enforcement of Rule 33 Timeliness and Issue Preservation in Rhode Island: Commentary on State v. Victor Tavares (R.I. 2025)

I. Introduction

The Rhode Island Supreme Court’s order in State v. Victor Tavares, No. 2025-5-C.A. (Dec. 9, 2025), though procedurally terse, is doctrinally significant. It reaffirms two critical principles of Rhode Island criminal procedure:

The strict time limitations governing motions for a new trial under Rule 33 of the Superior Court Rules of Criminal Procedure, including when a motion is said to be “in the interest of justice.”
The requirement that alleged trial errors—here, an asserted discovery violation under Rule 16(a)(7)—must be timely raised and preserved during the trial, not for the first time in a post-verdict motion.

The case arises from a defendant’s attempt to obtain a second new trial based on a supposed discovery violation concerning the state’s trial witness list. The Supreme Court had already addressed, and rejected, the same underlying complaint in an earlier direct appeal, State v. Tavares, 312 A.3d 449 (R.I. 2024). In this 2025 order, the Court holds that the second motion for a new trial was:

Untimely under Rule 33, because it was not based on newly discovered evidence and was filed years after the verdict; and
Substantively foreclosed, because the Rule 16(a)(7) argument had never been raised at trial and therefore was waived.

In doing so, the Court reinforces prior precedent—especially State v. Champion, State v. Oster, and State v. Vose—and clarifies that the “interest of justice” language in Rule 33 does not create an open-ended, timeless avenue for re-litigating issues that were either (a) waived at trial, or (b) already addressed on direct appeal.

II. Background and Procedural History

A. Underlying Criminal Case and Convictions

As recounted in the earlier opinion, State v. Tavares, 312 A.3d 449 (R.I. 2024), the defendant, Victor Tavares, was convicted in the Providence County Superior Court of:

Two counts of first-degree sexual assault; and
One count of conspiracy to commit first-degree sexual assault.

He received the following sentences:

On each first-degree sexual assault conviction: forty years at the Adult Correctional Institutions (ACI), with thirty years to serve.
On the conspiracy conviction: ten years, suspended.
All sentences to run concurrently.

The opinion under commentary does not revisit the underlying facts of the assaults; it incorporates them by reference to the 2024 opinion.

B. The First Appeal: State v. Tavares, 312 A.3d 449 (R.I. 2024)

On direct appeal from the convictions, Tavares raised twelve issues. Central for present purposes was his contention that:

“the trial justice erred and should have granted a new trial due to the state's failure to comply with Rule 16(a)(6) [properly understood as Rule 16(a)(7)] of the Superior Court Rules of Criminal Procedure.”

His specific complaint was that:

During discovery, the state provided a list of approximately thirty expected witnesses under Rule 16(a)(7), but
At trial, only seven of those witnesses ultimately testified.

He argued that this conduct was “inconsistent” with State v. Verlaque, 465 A.2d 207 (R.I. 1983), a seminal Rhode Island case concerning late and expansive witness disclosure by the prosecution.

In the 2024 opinion, the Supreme Court rejected this Rule 16-based challenge for two independent reasons:

Procedural default (waiver): The Court found that Tavares had not raised any Rule 16 objection during trial with “sufficient particularity” and that “there is no dispute that the Rule 16 issue was not raised until post-verdict during a motion for a new trial.” Accordingly, the issue was deemed unpreserved and waived.
No substantive merit: In a footnote, the Court further stated that the claim lacked merit in any event. Relying on State v. Oster, 922 A.2d 151 (R.I. 2007), it held that it is “entirely valid” for the state to list a broader range of potential witnesses than it ultimately calls, in anticipation of “unforeseen circumstances.” The situation in Tavares’s case, where he had the list in advance and prepared for those witnesses, “bears no resemblance” to the facts of Verlaque.

The Court rejected Tavares’s other appellate arguments and affirmed the convictions. See 312 A.3d at 474.

C. The Second Motion for New Trial and the 2025 Appeal

On July 9, 2024—nearly three years after the jury’s verdict on September 30, 2021—Tavares filed another motion for a new trial in the Superior Court. This second motion:

Again asserted the Rule 16(a)(7) issue concerning the witness list; and
Attempted to reframe or revive the argument by invoking the “interest of justice” language in Rule 33 of the Superior Court Rules of Criminal Procedure.

The trial justice (Associate Justice Joseph A. Montalbano) denied the motion, concluding:

The motion was untimely under Rule 33 because it was filed outside the ten-day period and was not based on newly discovered evidence; and
The underlying Rule 16(a)(7) issue had been raised only post-verdict and was therefore waived, consistent with the Supreme Court’s earlier conclusion.

Tavares, appearing pro se, appealed that denial to the Rhode Island Supreme Court. The 2025 order under review resolves that appeal.

III. Summary of the Supreme Court’s 2025 Order

The Rhode Island Supreme Court affirmed the Superior Court’s denial of Tavares’s second motion for a new trial. In essence, it held:

Rule 33 Timeliness is Strict: Unless a motion for a new trial is based on “newly discovered evidence,” Rule 33 requires it to be filed within ten days of the verdict or within such further time as the trial court may allow during that ten-day period. A motion filed years later, based on non-newly-discovered grounds, is jurisdictionally defective and not properly before the court.
No Timeless “Interest of Justice” Motions: The defendant’s contention that the “interest of justice” language in Rule 33 creates an open-ended time frame for new-trial motions was explicitly rejected, consistent with State v. Champion, 873 A.2d 92 (R.I. 2005).
Issue Preservation Requirement: The Court reiterated that the Rule 16(a)(7) discovery issue had not been raised during trial but only post-verdict. Under State v. Vose and State v. Albanese, an issue not raised during trial cannot belatedly be asserted in a motion for a new trial. Accordingly, the alleged discovery violation remained unpreserved and waived.
No Need to Reach Collateral Estoppel: Because the appeal failed on timeliness and waiver grounds, the Court declined to decide whether principles of collateral estoppel would independently bar re-litigation of the Rule 16(a)(7) witness-list issue.

Therefore, the Court concluded that:

The 2024 motion for a new trial was not properly before the Superior Court; and
The appeal from that denial was likewise not properly before the Supreme Court.

IV. Detailed Analysis

A. The Governing Rules: Rule 16(a)(7) and Rule 33

1. Rule 16(a)(7): Witness Lists

Although the 2025 order refers to “Rule 16(a)(6),” the Court clarifies (as it had in the 2024 opinion) that the operative provision is Rule 16(a)(7), which requires, upon a written request by the defendant, that:

“the state shall permit the defendant to inspect, listen, copy, or photograph ‘a written list of the names and addresses of all persons whom the attorney for the State expects to call as witnesses at the trial in support of the State’s direct case.’”

The purpose of this rule is to ensure adequate defense preparation by obligating the prosecution to disclose in advance those witnesses it expects to call in its case-in-chief. The controversy in Tavares’s case centered around the difference between:

The number of witnesses listed (approximately thirty); and
The number of witnesses actually called at trial (seven).

2. Rule 33: Motions for a New Trial

Rule 33 of the Superior Court Rules of Criminal Procedure governs motions for a new trial and contains two key temporal regimes:

Newly discovered evidence: A motion based on newly discovered evidence must be filed “within three (3) years after the entry of judgment by the court.”
All other grounds: A motion “based on any other grounds shall be made within ten (10) days after the verdict or finding of guilty or within such further time as the court may fix during the ten-day period.” (emphasis added)

The rule also provides that a new trial may be granted “if required in the interest of justice,” but this broad phrase does not override the strict filing deadlines, as this order and Champion make clear.

B. Timeliness Under Rule 33 and the Role of State v. Champion

Tavares attempted to argue that because his second motion for a new trial invoked the “interest of justice,” it was not bound by any specific time limit. The Supreme Court rejected this position outright, citing its prior decision in State v. Champion, 873 A.2d 92 (R.I. 2005).

In Champion, the Court held that, unless a motion is based on newly discovered evidence, Rule 33 “clearly requires that a motion for new trial be filed within ten days of the verdict or ‘such further time as the court may fix during the ten-day period.’” The 2025 order quotes this language and applies it directly to Tavares’s motion.

The key points of the Court’s reasoning are:

No “interest of justice” exception to deadlines: The Court explicitly states that it has already “rejected” the view that a motion based on “the interest of justice” is freed from Rule 33’s time limits.
Jurisdictional character of the time limit: By declaring that the motion “was not properly before the Superior Court,” the Court treats the failure to comply with Rule 33’s time restriction as a fundamental procedural defect.
Application to Tavares:
- Verdict: September 30, 2021.
- Second Rule 33 motion: July 9, 2024.
- Basis of motion: not newly discovered evidence, but a previously asserted Rule 16(a)(7) theory.
Since the motion was based on “other grounds” and was not filed within ten days—or within an extension granted during that ten-day window—it was untimely under Rule 33.

This strict application of Rule 33 underscores an important practical lesson: once the ten-day window has closed for non-newly-discovered-evidence grounds, Rule 33 is no longer a vehicle for revisiting those issues. Defendants cannot use the “interest of justice” language to sidestep the rule’s concrete temporal limits.

C. Preservation and Waiver of the Rule 16(a)(7) Issue

The second pillar of the Court’s decision is its insistence on proper preservation of issues at trial. The Court reiterates its earlier conclusion from the 2024 opinion:

“there is no dispute that the Rule 16 issue was not raised until post-verdict during a motion for a new trial and, therefore * * * was not timely raised.”

To support its analysis, the Court cites:

State v. Vose, 287 A.3d 997, 1007 (R.I. 2023); and
State v. Albanese, 970 A.2d 1215, 1222 (R.I. 2009).

In Vose, quoting Albanese, the Court reaffirmed the rule that:

an issue that was not raised during trial “cannot belatedly be asserted during the motion for a new trial.”

Applying that principle here, the Court concludes:

Because Tavares did not raise the alleged Rule 16(a)(7) violation during the trial,
And instead first advanced it in a motion for a new trial,
The claim was not properly preserved and was therefore waived, both in the earlier direct appeal and again in this 2025 appeal.

The Court even addresses Tavares’s factual assertion on appeal that he had raised the Rule 16 issue in a motion for judgment of acquittal, and rejects it:

“Our review reveals Tavares is incorrect.”

The message is twofold:

Factually: The record does not support any claim that the Rule 16(a)(7) objection was made before the verdict.
Legally: Even if the issue is framed as substantial or fundamental, it does not escape the ordinary preservation requirement absent some explicit doctrinal exception (e.g., structural error or plain error review, which the Court does not invoke here).

D. The Witness List Dispute: Verlaque vs. Oster vs. Tavares

A central theme in both the 2024 and 2025 decisions is the dispute over how the state used its Rule 16(a)(7) witness list. Tavares relied on State v. Verlaque to argue that the prosecution’s listing of approximately thirty expected witnesses—but calling only seven—constituted a discovery abuse warranting a new trial.

1. State v. Verlaque, 465 A.2d 207 (R.I. 1983)

The 2025 order sets out, in detail, why Verlaque is distinguishable. In Verlaque:

The state provided, on the day after pretrial motions began, a list of fifty-three potential witnesses.
Thirty-five of those names had not been previously recognized by the defense.
The defendant’s request for a continuance to analyze the list was denied.
The defendant requested summaries of the potential witnesses’ expected testimony. The state did not provide those summaries, and the trial justice refused to preclude the witnesses.
During trial, the state further disclosed additional witness statements that had not previously been turned over.

The Supreme Court in Verlaque vacated the conviction, emphasizing:

“Defense counsel, at the last minute, had to determine who of the fifty-three witnesses listed would testify and prepare to cross-examine them. It is difficult for us to believe that an experienced prosecutor would not know the day before trial who would testify for the state.” (emphasis added)

Verlaque thus stands for the proposition that:

Last-minute, expansive, and incomplete disclosures of witnesses and statements by the prosecution can violate Rule 16’s purposes; and
Such conduct can so prejudice the defense’s trial preparation as to require vacatur of the conviction and a new trial.

2. State v. Oster, 922 A.2d 151 (R.I. 2007)

In Oster, the Court distinguished Verlaque and held that it is “entirely valid” for the state to reserve calling some listed witnesses to respond to “unforeseen circumstances.” While the 2025 order does not provide full detail on Oster, it makes clear that:

Oster recognized a legitimate prosecutorial interest in listing more witnesses than ultimately testify; and
This practice, by itself, does not amount to a Rule 16 violation so long as the defense has had sufficient advance notice and opportunity to prepare.

3. Application to Tavares

In the earlier 2024 opinion (as quoted in this order), the Court noted that:

“during the discovery phase of trial the state provided a list of expected witnesses and Mr. Tavares prepared for each witness because the state had fulfilled its obligation so that he could prepare a rigorous defense.”

The 2025 order explicitly states:

“This case bears no resemblance to Verlaque.”

The differences are decisive:

Timing: In Verlaque, the witness list was sprung on the defense after pretrial motions had begun, with many new names. In Tavares’s case, the list was provided “during the discovery phase,” giving the defense ample time to prepare.
Completeness of disclosure: In Verlaque, additional statements were disclosed mid-trial, and requested summaries were withheld. In Tavares’s case, there is no suggestion in the order that the prosecution failed to disclose statements or summaries of the witnesses it actually called.
Defense preparation: In Verlaque, the defense was effectively ambushed. In Tavares’s case, he admitted that he was able to prepare for each witness listed.
Nature of complaint: In Tavares’s case, the complaint is essentially that the state over-disclosed potential witnesses, not that it engaged in last-minute surprise or nondisclosure.

Accordingly, under Oster, the prosecution’s practice of listing thirty witnesses but calling only seven is permissible, especially where:

The list was timely; and
There is no prejudice to the defense arising from late disclosure or surprise testimony.

E. Precedents Cited and Their Influence

1. State v. Champion, 873 A.2d 92 (R.I. 2005)

The Court relies on Champion to definitively interpret Rule 33’s time limits. From Champion, the Court derives the rule that:

For non-newly-discovered-evidence grounds, a motion for a new trial must be filed within ten days of the verdict, subject only to extensions granted within that same ten-day period.
The “interest of justice” language does not displace or enlarge that time frame.

This precedent undercuts Tavares’s argument that his second motion for new trial—filed nearly three years after the verdict—could still be entertained because he invoked “the interest of justice.”

2. State v. Vose, 287 A.3d 997 (R.I. 2023), and State v. Albanese, 970 A.2d 1215 (R.I. 2009)

These cases provide the doctrinal backbone for the Court’s insistence on issue preservation. The quoted language—that an issue not raised at trial cannot be raised for the first time in a motion for a new trial—derives from Albanese and is reaffirmed in Vose. Applying this rule, the Court holds that Tavares’s Rule 16 complaint:

Should have been raised during trial (e.g., at or before the time the state rested its case);
Was instead raised post-verdict; and therefore
Is procedurally barred and waived.

3. State v. Verlaque, 465 A.2d 207 (R.I. 1983), and State v. Oster, 922 A.2d 151 (R.I. 2007)

These cases frame the substantive bounds of Rule 16(a)(7) discovery obligations:

Verlaque marks the outer limit, where late, burdensome, and incomplete witness disclosure can be so prejudicial as to require a new trial.
Oster recalibrates that standard by affirming that the state may list more witnesses than it ultimately calls and may keep some in reserve for contingencies, so long as the defense is not unfairly surprised.

The Tavares order confirms that, in light of Oster, Verlaque does not stand for a blanket rule requiring the prosecution to call all listed witnesses, nor does it condemn the mere existence of a broad witness list.

F. Collateral Estoppel and Law of the Case (Not Reached)

The Court notes—somewhat tantalizingly—that in light of its conclusion that the appeal is improper, it “need not consider whether collateral estoppel precludes our consideration of the Rule 16(a)(7) issue.”

This suggests that:

Given the earlier 2024 appeal, in which the Court both:
- Held the Rule 16 issue unpreserved and waived; and
- Stated in a footnote that the allegation lacked substantive merit,
There may be an additional bar to re-litigation of the same issue under collateral estoppel or analogous doctrines such as law of the case.

However, because the Court resolves the appeal entirely on Rule 33 timeliness and waiver grounds, it avoids deciding this doctrinal question. Practitioners should nonetheless recognize that once an issue has been decided (or explicitly declined for lack of preservation) on direct appeal, subsequent efforts to reassert the same issue are likely to face formidable preclusion arguments.

V. Complex Concepts Simplified

A. Motion for a New Trial

A “motion for a new trial” asks the trial court to set aside the jury’s verdict and order a new trial. Grounds can include:

Errors of law during the trial;
Serious procedural irregularities (e.g., juror misconduct);
Insufficiency of the evidence; or
Newly discovered evidence that likely would change the outcome.

Rule 33 defines how and when such motions must be filed and distinguishes between “newly discovered evidence” and “all other grounds.”

B. Newly Discovered Evidence vs. Other Grounds

Newly discovered evidence:
- Evidence that existed at the time of trial but was not known and could not have been discovered with reasonable diligence.
- The law typically requires that this evidence be material and likely to affect the verdict.
- Rule 33 allows three years after judgment for such motions.
Other grounds (like alleged trial errors or discovery issues):
- Must be raised promptly: within ten days of the verdict (subject to a court-ordered extension during those ten days).
- Cannot be revived years later under the guise of “interest of justice.”

C. Preservation and Waiver of Issues

“Preservation” means that a party has properly raised an issue at the right time and in the right way during trial so that:

The trial judge has an opportunity to rule on it; and
The appellate court has a clear record on which to review the ruling.

If a litigant fails to raise an issue when it first arises (for example, failing to object to a ruling, failing to object to evidence, or failing to raise a discovery violation during the state’s case), that issue is typically considered “waived” and cannot be raised later:

Not for the first time in a motion for a new trial; and
Not for the first time on appeal.

D. Collateral Estoppel

“Collateral estoppel” (issue preclusion) prevents a party from re-litigating an issue of fact or law that has already been:

Actually litigated and decided; and
Essential to a final judgment in a prior proceeding involving the same party.

Here, the Court hints that collateral estoppel might have precluded Tavares from reasserting the Rule 16(a)(7) issue after it had already been dealt with in his 2024 direct appeal, but it resolves the case on other grounds and does not reach the question.

E. Rule 16(a)(7) Witness Lists

Rule 16(a)(7) ensures that the defense knows, in advance, who the prosecution expects to call in its case-in-chief, allowing defense counsel to:

Investigate the witnesses;
Check credibility and possible impeachment material; and
Prepare cross-examination and defense strategy.

The rule does not, however, require:

That the prosecution call every person on its list; or
That the list be limited only to those witnesses ultimately called at trial.

So long as the list is timely and reasonably accurate, and the defense is not prejudiced by surprise or nondisclosure, providing a broader list than ultimately used is permissible.

VI. Impact and Practical Implications

A. For Defense Counsel and Defendants

Raise discovery issues promptly: Any concern about the adequacy or effect of a Rule 16(a)(7) witness list must be raised during trial—ideally as soon as it becomes apparent that there may be an issue (e.g., when the state rests without calling many of the listed witnesses).
Use the ten-day Rule 33 window carefully: Non-newly-discovered-evidence grounds for a new trial must be advanced within ten days of the verdict or within an extension granted during that time. Missing this window closes off Rule 33 as a remedy.
Understand finality of direct appeal: Once an issue has been litigated (or held waived) on direct appeal, later attempts to reframe or reassert it through subsequent motions for a new trial are highly unlikely to succeed, and may also face issue preclusion objections.

B. For Prosecutors

Maintain robust, timely discovery: Providing a reasonable and timely witness list, along with associated statements and summaries, protects convictions from attack on Verlaque-type grounds.
Use witness lists flexibly but transparently: Oster permits listing more witnesses than ultimately called, but prosecutors should be prepared to explain their trial strategy and show that the defense was not ambushed or prejudiced.

C. For Trial Judges

Enforce Rule 33 deadlines: This order confirms that trial courts should treat late, non-newly-discovered-evidence new-trial motions as improper, and deny them as untimely rather than reach the merits.
Require timely objections: Issues not raised during trial should not be entertained for the first time in post-verdict motions except in narrow, clearly defined exceptional circumstances, none of which were present here.

D. For the Development of Rhode Island Criminal Procedure

The order reinforces a procedural regime in which:

Finality of verdicts is protected through strict time limitations on post-verdict relief; and
Parties bear responsibility for contemporaneous objections and preservation of issues.

Together with the 2024 opinion in Tavares, it confirms that alleged discovery violations must be both timely raised and substantively supported to succeed, and that Rhode Island’s appellate courts will not use Rule 33 as an open-ended safety valve to revisit resolved or waived issues.

VII. Conclusion

State v. Victor Tavares (R.I. 2025) is a concise but consequential reaffirmation of two core principles of Rhode Island criminal procedure:

Rule 33’s deadlines are strict and jurisdictional in nature for all non-newly-discovered-evidence grounds. Invoking the “interest of justice” does not circumvent the ten-day filing requirement or allow serial new-trial motions years after verdict.
Issue preservation is mandatory: Non-jurisdictional trial errors, including alleged discovery violations under Rule 16(a)(7), must be raised contemporaneously during trial. Attempts to first raise such issues post-verdict—whether in a motion for a new trial or on appeal—are procedurally barred and will be deemed waived.

In rejecting Tavares’s second motion for a new trial as both untimely and unpreserved, and in reiterating the distinction between Verlaque and the more flexible approach of Oster, the Court underscores its commitment to orderly procedure, fairness to both sides, and the finality of criminal judgments. The decision serves as a clear warning against using late Rule 33 motions as a vehicle for resurrecting arguments that could and should have been raised at trial or in a first, timely motion for a new trial.