185 A.3d 510
R.I.2018Background
- Andre Marizan was indicted for first-degree sexual assault for an incident on August 18, 2012; a jury convicted him and he was sentenced to 40 years (25 to serve).
- Complainant Alicia and her sister Lauren testified that Alicia was heavily intoxicated/unconscious after a party; a video of a prank showed Alicia passed out; Alicia awoke partially unclothed and accused Marizan.
- Hospital sexual‑assault exam produced a vaginal swab positive for seminal fluid (no sperm); Y‑STR testing later showed a Y‑STR profile consistent with Marizan.
- A double‑shot police photograph (mug‑style front and profile) shown to Alicia at the station was introduced at trial after a cautionary instruction.
- At closing, prosecutor said there was no evidence the sex was consensual “Not from [Alicia]. Certainly not from [Lauren]. And not from him.” Defense moved for mistrial claiming comment on defendant’s silence; motion denied.
- Defendant moved for new trial (challenging witness credibility and the weight/meaning of Y‑STR DNA); trial justice denied the motion. Appeal followed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Marizan) | Held |
|---|---|---|---|
| 1. Whether prosecutor’s closing comment improperly commented on defendant’s silence (Fifth Amendment) | Comment addressed lack of evidence of consent and rebutted defense consent theory; not a reference to defendant’s choice not to testify. | The phrase “And not from him” was a direct, prejudicial comment on defendant’s failure to testify and required a mistrial or immediate curative instruction. | No Fifth Amendment violation; read in context the remark referred to defendant’s out‑of‑court statements about the incident, and the trial justice’s general instructions cured any potential prejudice. |
| 2. Admissibility of double‑shot police photograph (mug shot) | Photo showed what was shown to Alicia at the police station and was relevant to identification. | Photo implied prior arrest and there was no demonstrable need (identity was not disputed); double‑shot format suggested criminal record. | Admission violated two prongs of Lemon test (no demonstrable need; could imply record) but was harmless given other strong identification and DNA evidence plus a timely cautionary instruction. |
| 3. Whether the trial justice abused discretion in denying the motion for new trial on credibility grounds | Witness testimony corroborated (Alicia and Lauren), video evidence supported timeline; trial justice properly weighed credibility. | Trial justice erred in crediting witnesses despite inconsistencies and motive to fabricate; credibility errors warrant new trial. | Denial affirmed: trial justice acted as superjuror, assessed credibility reasonably, and did not overlook or misconceive material evidence. |
| 4. Whether Y‑STR DNA evidence was sufficiently probative or too inconclusive (weight of evidence) | Expert testimony supported consistency between vaginal Y‑STR profile and Marizan’s Y‑STR profile; trial justice reasonably treated it as a match in context of other evidence. | Y‑STR cannot uniquely identify an individual (shared along paternal line); the DNA could belong to another male relative or partner, raising reasonable doubt. | Trial justice did not clearly err; as factfinder he reasonably accepted expert testimony and the totality of evidence supports the verdict; challenge better suited to evidentiary admissibility, not a new‑trial weight claim. |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (Fifth Amendment forbids prosecutorial comment on defendant’s silence)
- State v. Fontaine, 323 A.2d 571 (R.I. 1974) (test whether jury would naturally construe comment as on defendant’s failure to testify)
- State v. Enos, 21 A.3d 326 (R.I. 2011) (post‑Miranda silence and curative instruction sufficed to extinguish prejudice)
- State v. Lemon, 456 A.2d 261 (R.I. 1983) (framework for admitting police/mug photographs)
- State v. Long, 488 A.2d 427 (R.I. 1985) (demonstrable need requirement for mug‑shot admission; examples of permissible uses)
- State v. Dinagen, 639 A.2d 1353 (R.I. 1994) (improper photograph admission may be harmless where strong other evidence exists)
- State v. Sherman, 317 A.2d 445 (R.I. 1974) (immediacy of curative instruction required to cure impermissible comment)