A murder defendant cut a plea deal and allegedly had sex in custody. Did it influence his sentence?

WARWICK – Priscilla Mello remains despondent that some of the men who killed her son walk free just years after they played a role in slaying the 36-year-old father of three before dismembering him and throwing his body parts into the ocean.

“I didn’t think any of them got enough time,” Priscilla said in a recent interview in her Warwick home, her other son, Wesley, across the kitchen table, equally distraught.

New revelations about the case have added to the family’s horror and grief. A recently disclosed state Department of Corrections investigation concluded that one of the men who participated in killing Kerry Mello had sex with his girlfriend in the attorney general’s office at the Licht Judicial Complex while in state custody as a state prosecutor and state trooper stood by. The family now wonders if the desire to keep that alleged encounter under wraps influenced the plea deals the state reached with the defendants, at least one of whom — the man who met with his girlfriend — walked out of the courthouse at sentencing.

“Now, I feel like I’ve been revictimized. The victims are victimized all over again by the deals that are made with the attorney general’s office,” Priscilla said.

She believes, as she puts it, that she was “sold a bill of goods” when she says Assistant Attorney General James Baum convinced her to agree to sentences that she and her family thought were too lenient. Baum, now a deputy chief of the attorney general’s criminal division, cast doubt in her mind that her son’s killers might go free, though there were two cooperating witnesses set to testify, she and Wesley say.

“I think they were duplicitous,” Mello said.

How did a defendant purportedly have sex with his girlfriend in a prosecutor's office?

A spokesman for Attorney General Peter F. Neronha’s office acknowledged that in 2017, before Neronha’s administration took office, a defendant in the Mello case — Graig Bustillo — was brought into the courthouse to meet with the prosecution to discuss the case.

“At that time, the prosecution team inadvisably afforded the defendant a brief period to meet alone with family members. The current administration has made it explicitly clear to all members of the criminal division that this practice — to the extent it has happened in the past — is strictly not permitted,” spokesman Brian Hodge said in an email.

The case was prosecuted by Assistant Attorneys General Baum and Timothy G. Healy, with Rhode Island State Police Detective Adam Kennett leading the investigation, according to court records.

Baum declined to comment.

It is not uncommon for incarcerated witnesses to meet with law enforcement and prosecutors during the prosecution of a criminal case.

It is the protocol of Neronha’s administration that the witness always be supervised by and in the immediate presence of law enforcement, except for allowing the witness to confer privately with his or her lawyer, Hodge said.

“In reviewing the history of the case, it is our understanding that this incident had no bearing on dispositions of the cases of three additional defendants,” Hodge said.

Hodge did not respond to repeated questions about whether anyone had been disciplined in connection with the findings.

The Kerry Mello murder case

The Mello family put calls out in August 2015 that Kerry Mello, an electronics buff with a quick wit and sharp style, had gone missing after being last seen by his girlfriend Aug. 10. They alerted the Providence and Cranston police and stirred up news coverage. Priscilla wrote a letter to Cranston Mayor Allan Fung.

“I kept saying my son’s missing,” Priscilla said.

Days later, a fisherman found a torso slashed with knife cuts in the water near Westport, Massachusetts. Two severed legs were discovered on Goosewing Beach in Little Compton. The remains were identified as belonging to Kerry Mello.

In April 2016, Attorney General Peter F. Kilmartin’s office joined the Rhode Island State Police in announcing the indictment and arrest of four men in Mello’s murder: Jamie Barriera and his father, Albert; Francisco Concepcion; and Graig Bustillo. The men were charged with murder, conspiracy to commit murder, and mutilation of a dead human body.

Several months later, Louis Geremia, the Barrieras’ family friend, was also charged.

Authorities said the men turned on Mello after being robbed of 30 pounds of marijuana and $10,000. They pegged Mello as the culprit and lured him to Albert Barriera’s house in Warwick on Aug. 10, 2015.  There, Jamie assaulted and killed him.

Mello’s body was cut to pieces with a handsaw, wrapped in a tarp and driven to the Warwick marina, where Jamie Barriera kept a power boat.

The Barrieras and Concepcion headed out to sea, where they dumped the body. Bustillo drove Mello's car to Boston to throw investigators off.

The state police later said that Mello had no role in the theft.

“He didn’t steal your [expletive]. You killed the wrong friggin’ person,” Wesley Mello said.

Bustillo quickly reached a deal to cooperate with state prosecutors in exchange for a sentence ranging from two to 10 years, according to his lawyer, Richard James. Concepcion also agreed to cooperate.

The case proceeded through Superior Court, with the prosecutors and defense lawyers trading disclosures and discovery, including the outlines of “free talk” discussion prosecutors had with cooperating witnesses. Free talks are typically statements given to the prosecution by suspects with the understanding that it cannot be used against them in court.

How was the incident discovered?

It’s against that backdrop that then-state Department of Corrections Investigator Joseph Forgue received a tip that a known gang member appeared to have FaceTimed with his father, Bustillo, during the daytime hours of May 3, 2017. At the time, Bustillo was being held at the Adult Correctional Institutions' intake service center as he awaited sentencing and potentially testifying against his co-defendants in the Mello murder case.

Forgue checked Bustillo’s status for the day and learned that he had been at Providence County Superior Court until 4:55 p.m. He began monitoring Bustillo’s phone calls at prison. It became evident that he had had physical, sexual contact with a female at court, the investigative report said.

“It was my impression clearly, by the conversation, that they had sex,” Forgue said in a recent interview.

Report details the encounter and investigation

Bustillo and his girlfriend spoke of being nervous at first after the prosecutor, state police detective, and Bustillo’s mother and cousin left them alone in a room, according to the report.

“But I was like, 'Oh my god, this is about to go down in a few minutes’ when everybody started leaving,” the woman said.

“Yep,” Bustillo said.

“But once your mom walked out the door I closed that. Gone. Forget it. Got right to it,” she said.

“Hell yeah,” he said.

“I knew exactly what I wanted. I wanted to see it,” she continued.

“I’m good for another year,” Bustillo said.

Bustillo spoke of being sore and hampered by having his hands restrained. They agreed not to tell anyone.

“We were walking away, I was like damn, I felt weird because the attorney general, they know, they probably were looking at me like 'she’s a [expletive] slut,’” she said.

“What was your favorite part?” Bustillo asked.

“When we were on the floor,” she said.

Forgue questioned Bustillo and learned that he met with his lawyer, James, the state prosecutor and the state police at court to discuss the details of his plea agreement and testimony in the Mello trial, the report said. Bustillo’s mother, girlfriend and cousin were also present.

Bustillo told him that the three officials left the room, as did his relatives, leaving him alone with his girlfriend for no longer than 10 minutes. He denied having sexual contact with his girlfriend.

Forgue reached out to the sheriffs division Capt. Jason Allaire, whose deputies transport prisoners to and from prison and oversee courthouse security.

Allaire stated that Bustillo had been ordered to court for a “free talk” with his lawyer, James, Assistant Attorney General James Baum, and state police Detective Adam Kennett. He said he had no knowledge of any breaches in security during which Bustillo and his girlfriend were left unattended.

Forgue interviewed Bustillo a second time, and again he would not explain the comments he made to his girlfriend during the phone call, the report said.

He contacted Kennett, who remained “stoic” with “no cooperation,” said Forgue, who retired last year after more than three decades with the department.

Forgue reached out to Baum, of the attorney general’s office. Baum described Bustillo as a cooperating witness, explaining that it was “common practice to allow cooperating witnesses personal time with families and loved ones during these interviews,” according to the report.

Baum confirmed to Forgue that Bustillo was left alone with his girlfriend after he, Kennett and James were done speaking with him. Baum said he remained outside the door and that the room was quiet, the report said.

“Inmate Bustillo was allowed to be left alone [with his girlfriend] for approximately 25 minutes inside the interview room,” Forgue concluded in his report.

“Even though Inmate Bustillo was still handcuffed, [his girlfriend] removed her clothes and the two participated in sexual relations … During this period, Inmate Bustillo also used the cell phone to call his son,” Forgue wrote.

“Since Inmate Bustillo was allowed to conduct the unauthorized activities, he was not internally disciplined for his action,” the report continued.

'We lost our minds.'

“We lost our minds. I could not believe that people of that caliber of authority allowed that to happen,” Forgue said in an interview.

Corrections protocol calls for officers to keep their eyes on people in custody 24-7, even if that requires them to watch an individual during surgery, he said.

“It’s always a fear they might plan an escape or get contraband in,” Forgue said. “The safety and security of everybody involved is why you maintain constant visual contact.”

Chief Sheriff David DeCesare said that an inquiry from The Journal was the first time he had heard about the investigation. He said that inmates are frequently ordered to court for “free talks,” during which his sheriffs leave them in control of the attorney general’s office and another investigating agency.

“We don’t remain in the room,” said DeCesare, who has led the sheriffs division since 2013.

Forgue found it very concerning that Bustillo had been out of the authorities’ eyeshot..

“Who knows what he was going to do with that phone call?” Forgue said. “We don’t know if he was handed drugs or contraband from his girlfriend?”

Forgue has never encountered a similar incident, he said.

“I don’t know what the trooper or Jim [Baum] were thinking,” Forgue said. “I don’t know how that arrangement came to be.”

Forgue said that he and others expected fallout.

“We said, 'This is not going to be good for somebody in the end,’” Forgue said.

Richard Ferruccio, president of the Rhode Island Brotherhood of Correctional Officers, said he was not aware of the investigation.

“Wow, that’s a horrible thing to allow to happen. We never let them out of sight,” he said.

Rhode Island State Police Lt. Col. Robert Creamer referred all questions to the attorney general’s office.

The state Department of Corrections did not respond to requests for comment on the incident.

Corrections spokesman J. R. Ventura emphasized in an email that department officers and staff were not part of the custodial detail for this court visit.

"The Rhode Island Department of Corrections turns over custody of an offender to the Rhode Island Sheriff’s Department for transportation for court appearances. Once there, the Sheriff’s Office, as well as the agents of the court, take custodial responsibility of the offender," Ventura said in an email.

Offenders are expected to behave in accordance with the Rhode Island Department of Corrections rules and regulation for inmate conduct while being transported, he said.

"Inmates that are on an outside facility furlough or are out of our custody for court purposes are subject to the same discipline policies set forth in Code of Inmate Discipline Policy," Ventura said.

Ventura said the discipline code is not public for security reasons and that he could not speak about the specifics of the Bustillo report.

Did the incident impact the murder trial?

James said that “to my knowledge” his client was never without handcuffs and that he had not been informed of the corrections investigation.

He denied that the corrections report influenced the outcome of the case, noting that the plea deal terms were reached shortly after his client’s arrest.

Defense lawyers representing Bustillo’s co-conspirators said they were aware of the corrections investigation, but those reached declined comment, citing attorney-client privilege and the sensitivity of the issue.

Michael DiLauro, a longtime assistant public defender who recently retired, said the investigative report should have been included in discovery in the Mello case, meaning that Bustillo could have been questioned by defense lawyers about the liaison with his girlfriend if the case had gone to trial.

“It’s discoverable all day long,” DiLauro said. “If you don’t ask for it, you might never get it.”

Evidence of promises, rewards, and inducements received by a cooperating witness facing criminal charges is always admissible at trial and can be used to prove bias, prejudice or motive by the witness to fabricate testimony, DiLauro said.

While lawyers often probe witnesses about prosecutorial leniency or other benefits they might have received in exchange for their testimony, that questioning rarely veers into sex acts.

DiLauro could only recall one other instance in Rhode Island in which a cooperating witness’s access to sex came into play. That, he said, was the sensational Peter Gilbert affair.

Gilbert was a star mob informant and admitted murderer who lived in Providence police custody at an apartment at headquarters for nearly three years with his wife and children. An investigation eventually revealed a pattern of bad judgment by law enforcement that morphed the custody arrangement into a "fiasco" that included breaches, such as allowing him access to a prostitute while roaming the cellblock, drinking beer with officers while cruising the city, trips to Florida, and skydiving jaunts to Connecticut without oversight.

Gilbert’s testimony led to a string of convictions, including that of Gerald S. Mastracchio Jr., for the murder of 13-year-old Richard J. "Ricky" Valente.

Revelations about Gilbert’s handling, however, led Mastracchio, one of Rhode Island's most notorious criminals, and others he testified against, to challenge their convictions. Gilbert was the only person who implicated Mastracchio in the death of Valente, whose body was found washed up on the shore in Jamestown four days after he disappeared.

A Superior Court judge overturned Mastracchio’s murder conviction, saying that Gilbert's testimony about the conditions of his confinement by Providence police was "false and misleading," and that some police officers knew the truth but kept quiet. The state Supreme Court later reinstated the conviction.

Priscilla recalls being given a day to decide whether to accept plea agreement terms in September 2018 and being gripped by the fear that her son’s killers might walk.

“They could have told me anything. I was so upset about my son,” she said.

Baum presented the family with concerns that Bustillo might not follow through with his cooperation deal at trial, she and Wesley said.

“They said it was better to get 10 years than to get nothing. As a mother, someone had to pay for it,” Priscilla said.

Priscilla signed off on the deal, but the family was not happy as Superior Court Judge Daniel A. Procaccini accepted the sentencing agreements on Sept. 10, 2018.

Under state law, the sentencing range for second-degree murder is 10 years to serve, up to a maximum of life in prison. A person convicted of mutilating a dead body can face up to three years behind bars.

Jamie Barriera, 42, pleaded no contest to second-degree murder, conspiracy and mutilation of a dead body in the death of Kerry and was sentenced by Procaccini to 70 years in prison, with 35 to serve.

Barriera’s father, Albert Barriera, 68, pleaded no contest to charges of conspiracy to commit felony assault and mutilation of a dead body, and was sentenced to serve 10 years in prison. The Barreiras remain held at the Adult Correctional Institutions.

Louis Geremia, 68, the family friend, pleaded no contest to conspiracy to commit felony assault, and was sentenced to serve four years in prison, with another six years suspended. All were given credit for time served.

To Wesley, the sentences were not long enough.

“How can any of you not be appalled?” he asked at the sentencing hearing.

Priscilla spoke at the sentencings of questions that had haunted the family since Kerry disappeared.

“Did he ask for mercy?” she asked the defendants, seated with their hands shackled a few feet away. “Did he ask for God? Did he ask for me? What were his last words?”

Jamie Barriera, who met Kerry in high school at Cranston East, had sent flowers and offered her condolences on Kerry's death — before the Mellos knew he was responsible.

Judge Procaccini declined to comment about the sentencings.

In October 2018, Superior Court Judge Bennett Gallo sentenced Bustillo to 10 years, with 2½ years to serve and the remainder suspended with probation at the state's recommendation. He was given credit for the time he served since his arrest and walked out of the courthouse.

“He walked out of court with his mom,” Priscilla said last week.

Bustillo, who is now 46, could not be reached for comment.

Days later, Concepcion received his sentence from Superior Court Judge Brian Stern. At the state’s recommendation, he received 60 years, with 20 to serve, for second-degree murder. He continues to be held.

Kerry’s ashes remain at the Perry-McStay Funeral Home as the family begs the killers to tell them the whereabouts of his head, the family says.

“That’s all I ask for. At least have the decency to give us that,” Wesley Mello said last week. “Let me bury mine.”

Priscilla continues to urge the state Parole Board to keep the men locked up.

“First of all, I say to them they didn’t get enough time. I say that they shouldn’t get out,” she said.

Questions linger for the family about the handling of Kerry’s case as they remain convinced that his killers were extended leniency they didn’t deserve. They wonder if the corrections investigation factored in.

“Is this standard protocol if they want to get state’s evidence?” Priscilla asked. “It can affect someone’s else’s case if this is how they make deals.”

This article originally appeared on The Providence Journal: Family of Kerry Mello question plea deal offered to defendant in his murder