*1 STATE
Danny L. BROWN.
No. 95-648-C.A.
Supreme Court of Rhode Island.
March *2 denied defendant’s motion duly imposed
for a new trial. Sentence was
14,1995.
February
on
appeal
six
defendant raised
issues
he
claimed warranted reversal of
*3
Superior
appeal cul-
judgment.
Court’s
His
curiam
opinion
on
per
minated
issued
5, 1997,
four-justice
panel
March
wherein
appeal
of this court
dismissed defendant’s
two of the issues he raised
also
while
indicat-
ing
panel
evenly
that the
divided on the
Weisman,
Goldberg
Annie
and Aaron L.
remaining
Accordingly,
four claims of error.
Providence, for Plaintiff.
judgment
the trial court’s
affirmed.
Brown,
(R.I.1997).
ally molesting Emily Doe,1 stepdaughter Emily alleged made no mention of the (Emily complainant). alleged moles- abuse the time of its occurrence. The tation approximately occurred over an anybody. two- defendant told her “not to tell and-a-half-year during However, period Emily which It our secret.” four ages eight years years ceased, was between the ten Emily after the assaults 30, 1994, old. watching On her November after three- mother were a television talk (the Show”) Court, day in Superior jury “Oprah Winfrey returned show on the guilty all Judgment subject verdicts on counts. en- Em- the sexual abuse children. hap- ily tered on the verdict and in December 1994 her mother “that exclaimed to complaining 1. The name of the witness and that identities. changed protect of her mother have been their waking up it was his wife him but
pened subsequently ran out me” and room, his stepdaughter’s to discuss the matter he realized it was too “seared” when perpetrator. not name a pants, According further. She did in his he scolded her. hand Emily's at trial that when defendant, mother testified inci- he informed Doe of this Emily’s occurrence, later confronted defendant with shortly but after its dent exclamation, any knowl- cryptic he deified specifically. nothing more was said about cross-examination, howev- edge thereof. On starkly contrasted The mother’s recollection er, in her Emily’s mother defendant; admitted she testified that with that of police she had written witness statement any such incident to defendant never related had told asserted her at that time. sexually. him the child had touched suggested that subsequently Janikuak divorced in March Doe and defendant counseling seek with Richard the Browns *4 was short- 1989. Their marital dissolution (Dr. Tanguay, Tanguay), Christian M.D. lived, however, and after reconciliation in pastor and former located psychiatrist couple in remarried June 1991.2 sorts the Connecticut, greater had Wilmington, family By of 1991 the Brown had the fall counseling than she experience in did. Living regular parishioners become Tanguay testified that Janikuak had Doctor in Gospel Foursquare Waters Church persons him other previously referred pastor, The church’s Elizabeth Smithfield. 12, purposes. On December for similar Janikuak), (pastor who had also Janikuak or 1991, to Con- defendant and Doe traveled marriage second officiated at the Browns’ Tanguay, to meet with Dr. necticut noticing Emily began ceremony, with him defendant’s there discussed “manifest[ing] angry some real behavior.” trial, Emily. At Dr. Tan- sexual abuse Janikuak her office be- Emily into called reaction guay testified that defendant’s help her.” as- cause “she “wanted to She admission, yes, something of a “was one Emily to talk sured that she was available himself nature did occur between sexual any problems experiencing about she was [Emily]” “mini- but that defendant was ready when she and told her “call me happened. Doe testified mizing” what had going to force to talk because I wasn’t counseling session Dr. at trial that at that her to talk didn’t want to.” Several she there, defendant, you Tanguay “Was asked from days Janikuak received call later know, responded af- abuse?” and defendant meeting on Emily, they arranged a Oc- in a firmatively, to three times “Two 24, 1991, Emily revealed tober wherein month.” history sexually having been Janikuak her fully Emily yet had to confide still abused defendant. hap- concerning family what member Emily, meeting Janikuak After her complainant’s According to pened to her. attempted control of the to take immediate 7, 1992, mother, April in the it not until defendant and She contacted situation. Janikuak, Emily finally di- presence of to the church to discuss asked him come which vulged to the extent to her mother Thereafter, in- “very matter.” serious April had abused her. On accusations, Emily’s and de- him of formed information to the reported Doe However, he told fendant denied them. Thereafter, 1992 formal police. June years earlier on one several occasion proceedings began. criminal him while he was Emily approached reasserts couch, reargument On into asleep living-room reached on this court alleged trial errors over which four underwear, penis. his and fondled He contends previously at was deadlocked. of events this version defendant reiterated justice, rulings that various explained at first he believed trial. He be- couple again file for a second divorce Doe he wanted to 2. The defendant testified that and was in love with began a he "didn’t love her” separated he cause of 1991 and that October However, apparently was not relationship Doe on Doe’s friend. with a friend of Doe’s romantic complaint divorce until April According to served with defen- about 1992. July dant, 10, couple time on or about he told some weeks thereafter within a turn, spective which we now prosecution violated his confrontation witness] are those re- rights under the garding prior Kelly, United States Constitution convictions.” State (R.I.1989) and the (holding Rhode Island Constitution.4 require produce Rule 16 does not the state to Analysis Department records of the then of Children pertaining prospec- and Their Families to a witness). prosecution tive The Denial of Defendant’s Pretrial Motion Compel the State to Produce the Although Kelly the court went on Physicians Names and Addresses of to hold that the defendant there did May Who Have Treated or Examined require produce state Complainant requested records at trial under confron The defendant’s claim first of error arises tation clauses of the State and the Federal pretrial hearing mo- constitutions, so did a matter of compel produce tion to the state to pretrial discovery but in the context what “any names and pediatri- addresses of and all provided information must be to the defen cians medical doctors from whom [com- dant at trial to enable him to conduct an plainant] may have received treatment or prosecution effective cross-examination of period May been examined from the of 1983 Kelly witnesses. Thus we noted that “the through January of 1987.” We believe that right of right, raising confrontation is a trial *5 hearing justice provisional- was in correct only improperly when a is itself defendant ly denying—one year before trial be- ability to to denied the and confront effec gan—such request an unripe overbroad and tively an cross-examine adverse witness at production for the of trial impeach- witness added.) (Emphasis trial.” Id. at 635. And event, any ment material. because the only types questions it arises “when the requested confrontation-clause information during may the defense counsel ask cross- right was discoverable as a matter of improperly examination are restricted.” trial, before defendant was required to seek Here improperly defendant was never denied this information at the time of trial. Howev- ability effectively to confront to and er, so, neglected he to do thereby faded any against cross-examine adverse witnesses preserve to this issue for review. types him. of questions Nor were the might any improp he wish to ask of witness A. The Was Not to Entitled Defendant Indeed, erly justice restricted. the trial was Requested Obtain the Information never made aware defendant’s to desire during Discovery the Pretrial Phase physicians obtain the names of all who this Prosecution complainant period have examined for the The defendant’s counsel the Superior requested, question told and defendant failed to justice presiding Court any Thus, at the November about such witness information. pretrial hearing com- Kelly, his motion to unlike in the circumstances pel was under Superior right filed Rule 16 of the not a case which a defendant’s to Court Rules of Criminal Procedure. Howev- to confront cross-examine and the witnesses er, applied to complainant, against impermissibly as Rule 16 does him was restricted require produce Rather, the state to justice. such infor- the trial because defendant part pretrial trial, discovery. mation as Other failed to raise this issue at the trial prior than justice totally recorded statements or a sum- in the on was left dark mary expected trial point suspect witness’s testimo- had no reason to even ny, information, under Rule 16 “the still records the state defendant desired such let required produce [pertaining pro- compel to a alone that he would like the court to 3. The Sixth Amendment to the United States state Article section our constitution provides prosecu- guarantees similarly tions, "[i]n all criminal Constitution that "the accused shall * * * enjoy right persons accused shall enjoy to be confronted with the against to be confronted with the witnesses witnesses him.” them.” confronting properly the witnesses produce it and use the state to for his review (which happen), did not against him trial at trial. be proper remedy would not here opinion request In our trial to remand this case to grant a new but of all from the state the names obtain justice direct him ascertain the trial physicians treated or exam vaginal- any whether there are were complainant four-and-a-haif-year ined for a and, so, in existence examination records year period, coming it or so before did if the would in camera “records determine began, decidedly premature, a the trial on [the] a basis an attack witness’s create justice’s hearing fact in the denial reflected 636; credibility.” Kelly, see also 554 A.2d at If point.”5 of the motion “at this defendant Kholi, 437. If one of these 672 A.2d at either truly such infor or his counsel had desired negative, then questions answered during mation for use at trial before or cross- failing compel error examination, was incumbent provide this information would be state to justice.6 to raise this issue with the harmless conclusively shown have been framed, Although request, as was im granted. and no new trial would need (see below), properly any overbroad event Indeed, attempt made no because defendant the trial if defendant had asked to cross-examine wit- whatsoever at trial require produce any the state medical issue, to obtain access ness on this possession, custody, records in its or control the trial question, or to records any vaginal the results of would show inspection an in-camera justice to conduct complainant during examinations of rele same, any such records we have no idea that period, vant could have con existed, much less that con- have ever pro require sidered whether to the state the witness’s tain “basis for attack on any such material so that he could duce credibility.” Kelly, 554 at 636. impeach inspection for conduct an in-camera Moreover, although could have Kholi, ment fodder. See State *6 17(c)7 in ad- Super.R.Crim.P. well utilized 429, (R.I.1996) (endorsing use of in-cam 437 trial, any he failed to do so. Pursu- vance of inspection complainant’s psychother era of a 17(c), have re- could ant to Rule defendant case). Having apy in records a sexual-abuse subpoena to court to authorize a quested the the any request to make such trial failed (or Emily her mother upon be served and/or justice, not now be heard to defendant should any psychiatric of the upon for that matter appeal. this issue for the first time on raise in personnel discovery the materi- identified produced response if this in to the court’s order properly Even had raised als defendant (which do) provide with such and even for the state defense issue at trial he failed information) produce for requiring them prevented subsequent hearing justice pro- produce and its in- medical records did order state to The appropriate when a defendant pertaining review are camera other medical information duce right to certain rec- invokes confrontation-clause relating to complainant, including information immediately prior to relating to a witness ords may any psychiatric consultations she have that wit- the ness); cross-examination of ten-year period. jus- during hearing Thus 632, Kelly, 636 v. see also State that, may given the confi- tice have determined Youth, Children, (R.I.1989) (Department and the medical information re- dential nature of records). Families quested, proceed stages in would be best to in it discovery hope psychiatric of the records 17(c) Superior Court’s Rules of 7.Rule help for to narrow or to obviate the need would part provides pertinent Procedure in Criminal other treat- irrelevant medical information about follows: complain- ments and examinations unrelated to alleged sexual ant’s abuse. books, papers, doc- court direct "The subpoena objects designated in the uments or “providing prior such in- 6. The dissent contends produced court at a time before the he immediately prior before trial had formation after or time when are trial or disagree. may upon begun their have been useless.” We in and would be offered evidence books, papers, procedure permit en- docu- production is that the court This the same 429, Kholi, objects portions or thereof to 672 436-37 in State v. A.2d ments inspected dorsed (R.I.1996) (trial attorneys." parties their and the state to court’s order for
471
(and
suppressed by
for
court’s in-camera review
defense mation has not been
state
is
possible
inspection) any docu-
and when that information
not otherwise
counsel’s
later
(such
bills,
possession, custody,
prescriptions,
ments
as doctors’
the state’s
or control.
like)
(R.I.
Wyche,
v.
A.2d
909
diagnoses,
showing
State
518
the names Cf
1986)
Trombetta,
(citing
v.
467
any physicians
might
gynecologi-
who
have
California
479, 104
cally
Emily
U.S.
S.Ct.
L.Ed.2d
during
examined
treated
(1984)) (“Nor
prosecution responsible
period.
is the
Relying upon an
relevant
examina-
delivery
records,
for
of information
custo
[its]
outside
any
tion
control”);
Beaumier,
dy
v.
State
been able to learn the names and addresses
(R.I.1984), abrogated
A.2d
on un
physicians
of such
whose relevant records
Rios,
grounds,
related
Further, thing everything we do not a believe that and over four-and-a-half- flus, prosecution possesses any colds, special year period—including any affirmative stom measles, aches, fevers, obligation investiga to assist in his whooping cough, defendant ach sought tion pursuant any long litany of information to his the other of childhood of rights confrontation-clause such infor- when afflictions unrelated to sexual abuse—was request- peri- the medical information grossly regard both to breadth overbroad (a fourteen For all these reasons we conclude that period od covered that included ed.9 stopped) refusing abuse and err in Superior months after the Court did not types compel treatments and pretrial as to the medical grant defendant’s motion Moreover, because requested. examinations produce part pretrial as its the state to sought about the information discovery examining of all and the names complainant privileged and confidential prosecu- physicians for treating one information,8 Superior Court health-care tion’s witnesses. justified strictly entirely been would have limiting Consequences infor- medical C. The Adverse Future concerning complainant Contrary that was Holding mation a . purposes. confrontation-clause needed for lega- We also seek avoid the foreseeable Moreover, wholly apart privileged from the ruling If we cy contrary on this issue. nature of the information and confidential hearing to reverse and rule that were justice hearing not have to sought, a should granted justice should the motion to have grant a informational demands defendant’s stop compel, holding would if possibility for of chaff there is bushels unjustified, over- endorsing the submission of might up a request that such a turn few broad, unripe requests confrontation- at the bottom of confrontation-clause kernels here, when, they grist as have been clause discovery the hear- barrel. Nor should year before trial improperly propounded one ing justice give defendant a have blue discovery. It would also pursuant Rule 16 hand, guide pencil, take him the and then every reason to frame give other defendants through him redraft of such blunderbuss requests and submit such overbroad requests. that, here, they hope will denied well so, If advance of trial. these defendants discovery request Thus if even then relax and rest as- their counsel could complainant’s examining for the names of they thereby preserved a sured if physicians ripe, even it had been been appellate review and even- surefire issue discovery even if it allowable under Rule if verdict comes in tual reversal later appropriate peri- to a more had been limited they The fact that against them trial. od, presented it had been even justice issue hearing failed to raise this justice merely to a instead of trial, appeal— them on would not be held year it should have before all, argue—because, so after would been denied because of the manifest over- discovery Confidentiality previously dant to revisit his denied this state’s of Health Under Act, However, requested request. the information doctrine Care Information law-of-the-case identity physicians in the case at bar—the "[a] "flexible rule” such that clear alteration complainant examined have treated or decision of the circumstances since first requested during period—clearly falls within question make it advisable that the also "confidential health care infor the definition of pass upon permitted should be second designed mation" because Payne light changed it in the conditions.” relating patient’s [this] obtain "information Court, 184, 185, 80 *8 Superior v. 78 R.I. A.2d condition, history, diagnosis, treat health care Here, 159, (1951). provisional given the 163 a health care ment or evaluation obtained from ruling, hearing justice's of the law-of- nature [may] provider her. See ha[ve] who treated” applicable have been the-case doctrine would not such, 5-37.3-3(3). requested § As G.L.1956 properly raised If defendant had event. information, subpoenaed though may it even appropriate this confrontation-clause issue in presumptively legal process, pursuant is to valid (trial) appropriately drawn and via an forum request confidential, privileged. private, See Wash and overbroad) (that is, was not one that 495, (R.I. Corp., 500 v. 695 A.2d bum Rite Aid indicating of the results while court 1997) (finding receipt of that "mere a valid sub (names discovery and ad- earlier court-ordered negate privilege” against poena [the] does not psychologists, psychiatrists, ther- of those dresses of disclosure medical records unauthorized provided apists treatment social workers who or publish give party not a "carte blanche does complainant), changed circumstances these parties”). willy-nilly to third the information justice to allowed the trial consider would have ma- for confrontation-clause the law-of-the-case doc- 9. The dissent states that ripe by to do so. terial when it later effort defen- trine have barred 473 require buUdog-like by justice’s this court does not or te- tation the trial exercise of his Bowden, nacity from defendants. her State v. 473 sound discretion. (R.I.1984). 275, justice A.2d trial 279 And a However, usually require something we do exercise discretion to narrow the potted-plant-like more than passivity for de- questioning long as he or not she does preserve alleged fendants errors “unduly restrict” a defendant’s cross-exami worse, however, What review. is even is that (cit right. Anthony, nation 422 at 924 A.2d ruling such open a would the door for the Alaska, 308, ing 316, Davis 94 v. U.S. type potential discovery sandbagging de- 1110, 347, S.Ct. 39 L.Ed.2d 353-54 above, practice scribed an insidious (1974)) (noting that the cross-examiner should not be rewarded in this manner. latitude, given including should be reasonable the chance to establish to reveal bias as II tried). particular being relates to the case The Trial a Justice’s Limitation of Thus, after there has been sufficient cross- Prosecution Bias Witness’s satisfy a examination defendant’s constitu Cross-Examination rights, tional confrontation the trial possesses the limit discretion to further The defendant’s next claim of error Brennan, cross-examination. upon justice’s focuses limitation of a (R.I.1987). prosecution A.2d not We shall dis witness’s cross-examination con turb such limitation absent a clear abuse cerning a lawsuit filed her one of discretion “and then when abuse defendant’s cousins. We conclude that this prejudicial Anthony, constitutes error.” ruling scope on Janikuak’s cross-exam A.2d at 924. Here we conclude that the trial justice’s ination fell within the trial broad justice’s on minor restriction defendant’s bias questioning discretion limit and control inquiry clear on was neither a abuse discre matter, such a collateral and in any event prejudicial tion nor necessitating error was harmless if it an constituted error. The altogether. new trial pastor mere fact that the church had been sued cousin of unknown proposed Our review defendant’s line-of- proximity affinity relational to defendant inquiry subsequent proof bias and his offer of moneys allegedly due on a church con at trial that the trial reveals did project struction does constitutionally clearly restricting abuse his discretion de- compel a bias concerning cross-examination fendant’s cross-examination of on Janikuak subject this collateral pain of reversible First, point. showing no there was error if the same is restricted. pastor whatsoever knew defen- agree We that a criminal defendant is dant was related contractor named constitutionally guaranteed to an Brown or that “was instrumental effective prosecu together cross-examination putting people to build that Doctor, Indeed, tion’s witnesses. State v. according church.” to Janikuak’s (R.I.1997); Anthony, testimony, even that a she did not know man (R.I.1980). However, 923-24 named a contractor Brown had been who scope subject helped of cross-examination limi- to build the church.10 built? built? church built in "Janikuak: “Defense Counsel: “Janikuak: 1991. “Defense Counsel: When was that church “Defense Counsel: Yes, Smithfield? I did. By whom Did you church outside that church? "Janikuak: "Defense Counsel: Was there a "Janikuak: "Prosecutor: "Defense Counsel: Al Brown had no contact "The Court: You made a statement. bench, your question. name contractors. church. of A1 No, By Objection. May Honor? he Brown *9 didn’t, people not. No acted we gentleman by church way. [*] Rephrase approach building
474 pack up
Second, hiding fishing or to his subsequent offer the fish were of gear 328. try elsewhere.” at proof wholly inadequate to indicate that allowing cross-examination would additional developed probative of bias. cites to a Connecticut evidence The defendant (no case, Doctor, appellate 690 of court
See
A.2d at 827-28
abuse
intermediate
709,
605,
Privitera,
limiting
ConnApp.
1
607
in
bias cross-examination
476
discretion
(1984),
proposition
“pendency
knowledge
a lack of
for the
that the
when witness testified to
subject
litigation
a
and a
alleged
about the
matter of the
bias
of civil
between
witness
against
party
he
whom he testifies is relevant
and the defendant failed
indicate what
in
develop
agree
be inferred
might
if he was allowed
continue
bias.” We
bias
cross-examination).
which,
example,
in
there is
Thus we believe that
circumstances
his
prosecution
fishing
not
a
witness and
litigation
the trial
did
err because “a
between
However,
may proper-
in that case.
when
expedition on cross-examination
the defendant
prose
ly
brought
litigation
a
as here that
is not between a
be
halt when
becomes
pond
of
witness and a defendant but between
obvious that
is devoid
fish.” Id.
cution
Brennan,
657).
prosecution
at
A.2d at
witness
some nonimmediate
(quoting
involving
a defendant
a matter
When Janikuak answered defense counsel’s
relation of
underlying
negative
knowing
entirely
proceed
about not
inquiry in
unrelated
allegedly
man
such evidence of
ings,
named Brown who had
we deem
church,
light
of
building
bias—especially
the trial
defense counsel’s
been involved
proffer
subject—to
that “the
limited
of evidence on the
was entitled to conclude
pond
at
too
to mandate farther cross-ex
is devoid of fish”—or
least
worth
be
remote
obliged
pain
if it is
keeping—and
per
amination on
se reversal
defense counsel
tell
he
“either
the court where
believed
restricted.11
[to]
Yes,
your
Judge.
May
approach,
Counsel:
No further
Counsel:
we
"Defense
“Defense
questions.”
Honor?
(The following
out
occurred
side bar
hearing
jury.)
case at bar also
11. The bias circumstances
going
Alaska,
“Defense Counsel: I’m
to establish that
v.
to the level of those in Davis
do
rise
Danny
Brown is relative A1Brown.
308,
1105,
partment of Families (DCYF) April cross-examining daughter’s propriety her about addressed the (2) of sexual abuse and whether disclosures the to inform authori- a witness on failure statutory a realized that she had Id. at 1105. At the mother alleged the ties of abuse. notify un- obligation to DCYF of this abuse there, trial a cousin of the defendant testi- § G.L. 1956 40-11-3. Defense counsel’s der allegations fied that the abuse were after reasoning inquiry this line of purported defendant, stepson the the made (or inaction) the mother’s action was Id. he told him that had been fondled. respect to DCYF notification would the judge at 1101. concluded that trial We credibility adversely on her as reflected properly allowed cross-examination defendant, According to because a witness. concerning report his failure to cousin this apparently the mother did not make such a exculpatory potentially information law notification, must not com- have believed Id. at 1105. Even enforcement authorities. or plainant’s allegations to be true else she “nothing though we found that there protect her would have notified DCYF to inherently cross-examining erroneous” More- two other children from defendant.12 to re- concerning his failure defense witness over, in a manner with defendant’s consistent exculpatory port potentially information theory complainant’s allegations were authorities, we were also law enforcement instigation fabrications made at her mother’s Id. quite ruling clear that our was limited. divorcing her mother for an- because he was position emphasized we that oúr There woman, other further contends interpreted as a “broad-based invi- to be (for appeal) first time on that the moth- haphazardly every inquire tation to wit- report alleged failure to abuse to er’s reported he ness whether or she information legal despite DCYF an awareness her authorities” and that the law enforcement obligation her to do so would east doubt on justice “must or trial exercise his sound allegations daughter’s assertion that her jury is not discretion to ensure that had told the been made before defendant by impeach credibility misled efforts to However, be- mother he wanted divorce. Thus, to achieve this a witness.” argu- cause defendant failed make acknowledged in Brisson end, tri- we justice, hold that he ment to trial we to limit al has discretion cross- broad argue it for the first cannot now court examination based on a witness’s failure appeal. time on report information to authorities. if But even made a timely objection grounds prof now opinion are of that the trial We fered, court did not we conclude that trial prof justice’s exclusion of defense counsel’s rights
violate defendant’s state
federal
questioning in the
line of
case
bar
fered
limiting
so
an effective cross-examination
did not constitute an abuse of his discretion
the mother.
defendant’s cross-examination of
impermissibly
upon
intrude
discretion in deter
A trial
has broad
against him.
to confront witnesses
cross-examination,
mining
scope of
First,
ruling
our
it was consistent with
we shall not
absent abuse of
discretion
Brisson,
(as
governs any situation
which
ruling. See
disturb the trial court’s
here)
questioned
about
which witness is
(R.I.1993).
Brisson, the authorities
notify
failure to
was no Here we conclude that there
involving
merely
situations
and not
those
abuse.
defense witnesses. Un
cross-examination of
Brisson, the cross-exam
Brisson,
like the situation in
a case in which the defendant
jury a
sought
put
first-degree
assault
iner here
before
charged with
sexual
[defendant],
presence
be in the
as much before
would
Certainly
12. Defense counsel contended
justice:
[the mother]
became
would become aware
[who]
"Once
one
abuse,
allegations
certainly
[she]
aware of
having
subject
been
to abuse would want
child
veracity
question
did not
being
statements
were not
[her]
sure that
other children
make
child,
certainly
[she]
made
the minor
subject to
same abuse.”
protect
would want to
two other children
specific statutory
bolstering.
con-
provision,
implying
engage
thus
ness to
But this
*12
specific
that the
of a
witness was
violation
preserved
tention was not
for review because
legal
report.
justice
to
obligation
The trial
objection
specifically
no such
raised with
correctly
that
case
concluded
defense
justice.
any
In
the trial
event the witness’s
doing might
jury,
counsel’s
so
mislead
context,
testimony,
taken
did not consti-
any
properly
questions
and thus he
excluded
impermissible vouching.
tute
reported
about whether the witness had
stated,
justice
abuse to DCYF.
theAs
trial
A.
Failed to Preserve this Is-
Defendant
is “not
trial
mother
here. Her credi-
Appeal
sue
issue,
bility
always
an
but she’s not on trial
Moreover,
pro-
here.”
defense counsel here
According to Rhode Island’s well-
any
vided no foundation that the mother had
rule,
justice’s
settled “raise-or-waive”
trial
that,
knowledge
duty
report
of a
to
even
specifically
errors that
ob
claimed
are not
knowledge,
she had
she would have
is,
jected
by
objection
to at
trial—that
DCYF
her daughter’s
notified
sexual
“sufficiently
that is
focused so as to call the
allegations
abuse if she had
to
considered her
justice’s
trial
attention to the basis for said
have been credible.
objection”—are
preserved
not
for consider
Such
could
conveyed
also have
Toole,
by
appeal.
ation
this court on
State v.
to
jury
report
the mother’s
failure
(R.I.1994)
(quoting
A.2d
daughter’s
her
abuse DCYF indicated that
Warren,
(R.I.1993)).
“[All-
A.2d
even the mother did not
the daugh-
believe
legations of error
at
committed
trial are con
testimony.
ter’s
But this construction would
effectively
sidered waived if
were not
constitute the
of negative
same kind
vouch-
trial, despite
at
raised
their articulation
ing
Haslam,
we condemned
Toole,
the appellate level.”
We also note the existence of significant conflicting considerations On direct examination tes Janikuak might providing militate the mother’s concerning tified her com discussions with DCYF with notice in circumstances such as plainant. “very After present she said that those example, this case. For preferred [complain mother sure' that what cautious make to resolve this authorities, situation involving without telling me was truth ant] was because especially perceived if she that notification just we’re trained to be sure that because might jeopardize relationship with her allegation someone makes an does mean other children. Because these considerations true,” stated, simply it’s defense counsel tend to undercut inference that could be “[Objection.” over immediately The court drawn report the mother’s failure to However, objection. grounds ruled the no necessarily adversely reflects on her credibil- objection were stated either or for ity daughter, or that of her we believe the overruling. court’s There was no mention justice properly trial could restrict such bolstering. Indeed made prevent being line of inquiry jury testimony, there was no motion strike point. Accordingly misled on this we affirm objection itself too be of and the came late to exclusionary ruling. the trial court’s also assistance defendant. The defendant a mistrial or to ask that failed IV cautionary jury. given instruction be Alleged
The Admission of apprised Thus the was never Bolstering Testimony pastor’s defendant considered the remarks bolstering. Accordingly our claim constitute under defendant’s final of error is that justice supposedly permitted the trial a wit- rule established raise-or-waive ciently specific or focused for us to pursue this issue on review should not be allowed appeal. particular in this instance.” this contention
In Toole
been con-
defendant who had
on various counts of sexual assault
victed
case
was defense counsel’s
things,
appeal, among
argued on
other
objection
spe-
because was not
ineffective
prosecutor
improperly questioned
wit-
cific,
colloquy
but his
led
vouch for their
truthfulness—on
nesses to
objec-
latter to conclude that defendant’s
querying a witness about
several occasions
*13
pastor’s
hearsay
tion to the
statement was
performed a
“the real reason” she had
cer-
transcript
A close review of
based.
at
972. He contended
tain act.
proffered
counsel’s
ob-
reveals that defense
improper
it
questioning
this
was
because
that
concerning
testimony
jections
Janikuak’s
special
implied
prosecutor
some
(wherein
complainant
meeting
about her
with
regarding
facts
case.
knowledge
divulged
pastor
to
complainant first
Id. The state
responded that the
defendant
her)
sexually
abused
were
preserve
appeal
not
this issue for
because
did
hearsay
strictly
their
limited to
sta-
objection
at trial
the defense
asserted
allegedly offending
tus.
Indeed the
state-
specific” objec-
“general
rather than a
ment
itself is sandwiched between bookend
agreed
This court
and concluded
tion.
hearsay objections.13
objection
“not
that the
suffi-
And,
you
happened
back and forth with
at that
"Prosecutor: Did
talk
what
“Prosecutor:
her?
meeting?
Yes, we did.
“Janikuak:
Objection.
“Defense Counsel:
Okay.
you describe what
Could
"Prosecutor:
"The Court: Grounds?
was like?
her demeanor
Honor,
if
is
"Defense Counsel: Your
there
periods
"Janikuak: At
of time she was with-
going
be
to what [com-
to
discussion relative
drawn,
periods very angry
antago-
and
other
plainant] may
[Janikuak]
to
have said
her
alone,
know,
nistic,
like,
you
just
me
like
leave
here, just
up
yet
want
talk but
I’m
an
I don’t
question at a
“The Court: Let’s take one
time.
and down behavior.
grounds?
What’s
words,
telling us
did
"Prosecutor:' Without
It
be that I believe
would
"Defense Counsel:
any
you of
incidents that she had
she inform
testimony
hearsay
elicited.
would be
been involved in?
question
happened
is what
That
"The Court:
your
Objection,
Honor.
"Defense Counsel:
Now,
hearsay
meeting.
comes in
[if]
yes
"The Court: Just
or no.
answer,
object
you
to it
subsequent
can
"Janikuak: Yes.
then,
it
I don’t want to start
now.
not before.
"Prosecutor: And—
Go ahead. Overruled.
added.)
(Emphases
“The Court: Overruled.”
question?
youDo
recall
"Defense Counsel:
following
colloquy
Immediately
highlighting
question is:
[sic]
"The Court: ‘What’s
hearsay
repeated
with
defense counsel’s
concern
happened
meeting?’
at that
testimony
allegedly
came
offensive
the witness’s
happened
meeting
"Janikuak: What
is
bolstering statement:
behavior,
apologize
for her
and
she came
information,
learning
Upon
“Prosecutor:
‘Well,
seems,
said,
really
I
it
I’m
concerned
your
what was
reaction?
your
escalating
be
because
behavior seems to
your response?"
What was
getting
and
worse.’
to what she said to me?
As
"Janikuak:
say
“The Court: You can’t
what she said
Yes,
saying
she
without
what
"Prosecutor:
you.
said.
“Janikuak: Pardon me?
very
to make sure
cautious
I
"Janikuak:
say.
she
"The Court: You cannot
what
said
telling me was the truth
that what she was
you.
just be-
we’re trained to be sure that
because
Well,
please, I
if the Court
would
"Prosecutor:
allegation
cause someone makes an
does
My questions
attempt
ask
it.
would
mean it’s true.
meeting
offering
state-
elicit the
without
Objection, your
Honor.
Counsel:
"Defense
asserted but
for the truth
the matter
ments
"The Court: Overruled.”
explain meeting.
just
later,
question-answer segments
de-
Just twelve
Honor,
my
I renew
hearsay
“Defense Counsel: Your
objec-
again
renewed
fense counsel
hearsay
objection based on the
testimo-
testimony:
tion
Janikuak’s
fact
ny going
spe-
giving
elicited.
Again,
be
us
without
"Prosecutor:
cifics,
your apprehension,
you
specifics
I understand
more
or did
did
ask her for
"The Court:
elicited,
appropri-
specifics?
give you
I
deal
and
it’s
will
more
point
upset
ately.
so
"Janikuak: At that
she was
said,
you’re
Yes,
’[Emily]
distraught
manifest-
your
so
Honor.
"Defense Counsel:
Although
thereby
ty
meaning
within the
waived
another witness
any bolstering objection,
Haslam,
(R.I.1995),
prof
he also fails to
A.2d 902
(R.I.1996),
any legitimate exception
Miller,
fer
espe-
to the raise-or- State v.
would a reasonable have so construed jury- testimony. her The balance of what testimony preceding In the case bar the pastor said demonstrates that she had made alleged bolstering Janikuak’s statement ad- judgment any point no concerning the pastor’s meetings dressed the initial falsity truth or the of what she had been told complainant wherein she first disclosed de- by complainant, or for that matter defen fendant’s sexual abuse. The itself statement dant. Rather she attempting was to pastor’s concerned the reaction to the wit- help mediate between them to them resolve allegations: ness’s family this conflict. Thus in context Janik- testimony uak’s shows she was not ei Upon learning “Prosecutor: this informa- endorsing ther the complaining witness or tion, your what was reaction? discrediting point defendant. at one Indeed your response? What was stated, was, know, “I you she still couldn’t “Janikuak: As to what she said to me? see, one saying yes saying was and one was Yes, suggested no. psycholo saying “Prosecutor: without what see gist.” said. she
Hence if preserved very even defendant had his I was make “Janikuak: cautious to argument bolstering appeal, telling we are of the sure what was me was the opinion bolstering there was no here truth because trained to be sure that we’re allegedly just because the offending allegation statement an because someone makes attempt not was to vouch for the it’s credibili- does mean true.” ing it,’ again question. behavior I don't understand "The Court: There’s no proceeded Well, and she to hearsay, lash out at me and again, "Defense Counsel: this is ‘Well, say, you happened you ] [sic had your Honor. me, happened you’d what predicament,' be in the same question. "The Court: There’s no You didn’t or, 'you would feel same may proceed." object to it. You way.’ added.) (Emphasis Objection, your Counsel: "Defense Honor. However, pas- rape. Id. at 872.
Although
testimony
reveals that the
about
police
for the
trying
gauge
was
the truthfulness of
detective testified
defendant
tor
spoken to
complainant’s
proceeding
that she had
the mother several
revelations before
the mother
counseling,
in her
months later and that
never
further
the substantive
testimony—when
fact
attention.
import
brought
detective’s
Janikuak’s
Id.
the detective was
in its
context—was not that
On cross-examination
viewed
entire
objec-
being
allega-
permitted,
then
over the defendant’s
complainant
truthful in her
tion,
testify
that it was “not at all uncom-
Significantly,
tions.
a close look at Janik-
neglect
people
mon”
elucidate de-
point
testimony
uak’s overall
on this
reveals
investigating police
of an incident to an
tails
pastor
that the
herself could
determine
(in
fully.
appeal
Id.
officer
On
defendant
complainant
allegations)
her
whether
(in
testimony
im-
denials)
contended that this
constituted
being
truthful.
permissible vouching for the mother because
pastor
highlights
And it
the fact that the
also
purported
explain
the inconsistencies
merely attempting this fami-
mediate
complainant’s
testimony
between
moving
ly
cautiously
light
while
crisis
investigat-
and the mother’s comments
Ac-
allegations.14
the serious nature
ing
argued
that this
officer.
overall
cordingly we conclude that Janikuak’s
jury
suggested
also
reasonably
testimony could not have been
investigating
inform the
mother’s failure to
vouching
perceived
jury
for the
not have cast
shadow on
officer should
credibility
complainant’s
sexual-abuse alle-
credibility.
agreed, especially
We
gations.
closely
light
the fact that the evidence was
*15
Moreover,
distinguish-
situation is
also
credibility was therefore of
balanced and that
testimony
from the
we found offensive
able
paramount importance.
at 873.
In
in Miller and Haslam for other reasons.
Miller,
defendant,
coach,
Janikuak’s
college track
Unlike the situation
Miller the
testimony
purport
explain any
to
first-
not
had been convicted on one count of
does
complain-
testimony
is inconsistent with
degree sexual
of one of
student
that
assault
addition,
allegations.
In
complainant
at
sexual-abuse
athletes. 679 A.2d
869. The
ant’s
Miller,
jury
her
unlike
where the
heard extensive
testified at trial that she had told
mother
n to,
you do next?
that I would confront
she said.
conflict
that
phone.
and he denied it. He denied the
doing
would
doing that?
“Janikuak:
Did
of that discussion?
matter
“Janikuak:
"Janikuak:
"Prosecutor: Did
"Prosecutor: "Prosecutor:
"Prosecutor:
"Janikuak:
"Prosecutor:
"Janikuak:
"Janikuak:
"Prosecutor: Did he?
"Janikuak:
"Prosecutor:
you
seriousness of
truthfulness of
[complainant]
that?
he
know,
that
here,
I
come
told
Yes,
Yes, he
Uh-huh. I
I called
I
I told him
I related to him the
I
she’s
just
Okay.
continue
When
Could
had
into
him
I did.
And how
you,
you
your allegations?
said to
saying yes, you
what she was
did.
my
And how did
Danny
that
you
that
Danny
then take
discuss with
told
office.
made
seeing
fact,
I had a
tell us the
her,
look
happened,
Brown on
did
Brown with
do that?
concerning
"Do
at this
that she needed
that
any
you go
you go
did,
very
saying,
allegations.
you
allegations
action?
there
substance
him,
what did
aspect
and he's
the tele-
serious
realize
about
about
what
him,
is a
saying
gist.” (Emphases
couldn't
when
by that?
your,
Brown had denied her
see what
wrong
completely distraught at that
saying
understand it—I
here,
called someone
‘He’s
here."
then
"Prosecutor: "Janikuak:
Can
"Prosecutor: "Janikuak:
"Janikuak:
Did
[complainant] again?
"Janikuak:
"Prosecutor:
"Prosecutor:
[complainant]
next
but
lying.’ I
someone
no.
no,
here,’
Danny
happens
see,
meeting?
she
he
Yes,
I
I said to
She
suggested
one
[*]
didn’t,
said,
because
Brown?
Okay.
was out of control.
Did
gets
a liar and
I did.
said, “Well,somebody’s lying
was out of
and
added.)
don’t want
you explain what
‘There's
you
sk
you
that
I said ‘Youneed to
upset,
[complainant]
discuss this with her and
And what
saying
that
allegations, and she was
I
make
point.
also discuss
still
si!
something
it’s like
maybe, they don’t
point.
control.
yes
’
was, you
see a
Í¡S
happened at
and one was
paint
suggestions
that
when
you
psycholo-
She
radically
I
[*]
it
go
Danny
mean,
words
know,
mean
said,
with
back
you
testimony
“dealing
to cor-
plicitly
about
lack
evidence
disavowed
abuse,”
presence at
charges
testifying
roborate the sexual-assault
sexual
that her
defendant, complainant’s
only
word here was
make a
meant
“to
statement
only
supporting
not the
evidence
defendant’s
shared with me.”
about what was
Indeed,
conviction.
admit-
defendant himself
Haslam also found the
testimony
In
we
witnesses,
trial,
separate
ted to two
prosecution
im-
another
witness
constitute
acts of
sexual nature did occur be-
There,
child-protec-
permissible vouching.
complainant.
signifi-
tween him and
Most
investigator
tive
for DCYF was allowed
cantly,
Tanguay,
defendant admitted to Dr.
testify
complaint lodged by
defen-
that a
mother,
presence
of complainant’s
complainant’s
stating
dant
brother
activity
he had sexual
“two to three times in
sexually
child victim was
abused the
complainant.
a month”
Thus
with-
even
906-07.
con-
“unfounded.”
A.2d at
We
out
testimony
Janikuak’s
the state had sub-
cluded that this declaration had the effect of
prove
stantial other evidence to
conveying
belief that the de-
that witness’s
guilt beyond a reasonable doubt.
subsequent
testimony
fendant’s
on the sub-
Haslam In
be believed. Id. at 907.
ques-
ject
prosecution—through
was not
contrast,
tioning
professional sex-abuse-recovery
of a
case at
Janikuak’s remarks
periodi-
counselor
clearly
the victim had seen
bar
not rise
whom
do
level
cally
two-year
period—repeatedly
over
investi-
“unfounded” comment
DCYF
sought
emphasize
in Haslam.
gator
that the victim had been
undergoing therapy with a sexual-abuse
reviewing
pick
Just as
court should
part
ongoing recovery.
counselor as
of her
out one
from a
isolated statement
slew
derlying allegations of Instead sexual abuse. testimony clearly Janikuak’s reveals her role GOLDBERG, J., participate. did not aas mere mediator who soon referred the WEISBERGER, Justice, whom Chief with (Dr. psychiatrist Tanguay) parties on to (Ret.) joins, dissenting. SHEA Justice crim- before whom defendant admitted to his Thus, dissenting respectfully point I out inal misconduct. unlike the situation Haslam, largely pastor professional- history liberty been of has history procedural safe- ly providing observance trained sexual-abuse counselor States, v. McNabb United ex- 318 U.S. guards. treatment victim. In fact Janikuak 482 608, 819, Honor, request, 616, the reason for that 827- “Your 63 87 L.Ed. S.Ct. J.). (1943) (Frankfurter, Honor, I recognize your is that the acts are case, Danny L. Brown in this anal intercourse also include and
(Brown), was accused of a heinous crime. penetration. supposed child is sexual The to a term conviction he was sentenced After eight years been ten between on forty years’ imprisonment each particular old the time of incident. paramount It im charged. six counts is of medical Clearly, there would be evidence person of such a portance that a accused up through would show a medical which procedural all the safe crime be afforded my That is the basis for examination. * * * guaranteed by guards that are the State pediatri- to the relative pro as well as our the Federal Constitutions cians.” interpreting rules case law these cedural hearing justice expressed her belief rules. request” proffer “nice proce- I that defendant was denied believe Brown asserts but nevertheless. denied safeguards and information that dural error. With this conten- that this denial was important bearing well have had an justices agree. dissenting tion the ability prepare a would hold defense. Questions concerning relevancy of evi by defen- that three the four issues raised left the sound discretion of dence are reversal. Each these issues dant warrant justice, A.2d Kholi which will be discussed the order (R.I.1996), must a search for “foster by majority. other are addressed Such by giving truth reasonable latitude pertinent are the discussion of facts as preserv while purpose of cross-examination provided. will each issue orderly ing trial.” Id. at a fair and Confrontation Clause 276, 278, Bennett, 122 (quoting v. R.I. (1979)). All the defendant fall issues raised the law That guarantees embod- within constitutional a considerable a trial entrusts of the ied in the confrontation clause Sixth permit him or degree of discretion does not States Constitu- Amendment to United analysis objective to utilize the to decline through applicable tion made to the states States the law commands. See United process the Fourteenth the due clause of (C.C.D.Va.1807)(No. Burr, 30, 35 25 F. Cas. Amendment, analogue, article and its state C.J.) (“[A] 14692D) (Marshall, [the motion to 10, of Island Constitution. section the Rhode motion, not to court] is a its discretion inclination, judg judgment; The Sixth Amendment the United but to its and its guarantees that “the ac- princi States Constitution guided legal to be sound ment is enjoy the to be con- shall cused ples”). against him.” fronted with the witnesses *17 correctly gen majority reiterates The 1, Rights, article Similarly our Declaration of is fun confrontation clause eral rule 10, of Island section the Rhode Constitution not be damentally right a and should provides, prosecutions, “In ac- all criminal “constitutionally compelled confused * * * right persons enjoy the cused shall discovery.” Pennsylvania v. pretrial rule of the witnesses be confronted with 989, 999, 39, 52, Ritchie, 107 S.Ct. 480 U.S. them.” L,Ed.2d (1987). 40, principle Yet the 94 54 produce material when compel will a state to Discovery Pretrial Error improperly restrict to do so would failure during claim of error arose Brown’s first questions counsel of defense types hearing 8, pretrial 1993 November v. Kel during ask cross-examination. of, production compel defendant’s motion (R.I.1989). Certainly 632, ly, 635 things, and ad- among other names “[t]he possibility [without more] mere “[t]he or pediatricians and all medi- dresses of might information have item undisclosed of [Emily] may have cal whom doctors from not establish helped the defense does examined from treatment been received ‘materiality’ the constitutional sense.” January through of period May of 1983 97, 109-10, Agurs, 427 U.S. v. United States explained The his basis 1987.” 342, 2392, 2400, 49 L.Ed.2d as S.Ct. requesting information follows: this (1976). expansion Instead defendant “must at probably least the record would have plausible make some showing of [the how precluded by been the law-of-the-case doc- requested would have material] been both Court, Payne Superior trine. See v. R.I. material and favorable to his defense.” 177, 183-85, (1951).16 163-64 I Valenzuela-Bernal, United v. States 458 U.S. am mindful that the state need not hold an 858, 867, 3440, 3446, 102 S.Ct. 73 L.Ed.2d accused’s hand in order to ensure that he or (1982). request The defendant’s advantage every pro- she takes of each and in the instant squarely ease fell within the safeguard legal cedural offered under our parameters principles. of these system. guarantees The constitutional The state relies too heavily on the fact that promised in both the Federal and the State denying request, the motion are, all, negative Constitutions after justice’s exact going words were “I’m not is, variety. That forbid the state or grant request] point.” [Brown’s this government denying federal from to the ac- Apparently argument, the state’s unfortu- rights cused that bundle of we refer to col- nately by sanctioned today, the court is that lectively process.” DeShaney as “due See hearing justice because the possibili- left the Winnebago County Department Social (“at ty of discovery open point”), defen- Services, 189, 195, 489 U.S. 109 S.Ct. complain dant cannot now because he failed 1002-04, (1989) (dis- 103 L.Ed.2d 258-59 repeat request his at some later date.15 cussing “negative” quality of substantive implicit This assertion that defendant’s fail- due-process rights). proper provision request again ure to that which had been rights those lies denying once denied him somewhere between constituted waiver of the precludes and, issue outright right him complaining conversely, access to the now support is without unpersua- law and holding duty affirmatively state sive in concept. ensuring that the accused him avails or her- self protections.17 of those Accordingly I sure, prudent
To be
a more
strategy might
decline to hold that
have
defendant waived his
been for
pressed
defendant to have
discovery
denial,
requirements
justice’s
to contest the motion
at or before trial to a
different
and thus
equivocal,
avoid the instant
however
of his
request
reasonable
challenge. Counsel for
discovery.
decided that
it would have been futile to
In
Kelly,
(R.I.1989),
tuted
discovery
certainly have
of rele-
no
led
though Kelly
cognizable
entitlement
vant
not without considerable
evidence but
pursuant
to
to Rule 16 of the
the records
the
preparation
might include
issuance
Procedure,
Superior Court Rules of Criminal
17(c)
pursuant
the
subpoenas
of
to Rule
of
enjoy
a right
under both article
he did
Procedure,
Superior
Rules of Criminal
Court
of the Rhode Island Constitu
section
potential medical wit-
interviewing
the
of
and the
Amendment to the United
tion
Sixth
nesses,
taking
depositions pur-
the
of
and/or
Constitution.
485 note, however, Janikuak, though I must that since believe not involved with either respect during period that a new trial is warranted in Browns the Does below, central, abuse, other two issues set forth such re- sexual evolved into crucial, mand would not accord the full prosecution. not the for the witness testimony Emily relief to which I believe he is entitled. If the trial of Brown and (and dispute is cancel each other out there no Cross Examination of Pastor Janikuak. eyewitnesses al- that there were no to the abuse) leged pivotal then Janikuak becomes alleges Brown that the trial erred jury’s understanding the facts and curtailing the cross-examination of Pastor (Janikuak). Brown, jury’s discrepancies reconciliation Elizabeth Janikuak who testimony prin- of the other always innocence, embedded has maintained his en- all, Janikuak, purport- cipals. After it was during deavored the cross-examination of (1) witness, who, edly disinterested corrobo- question regarding Janikuak to the con- crucial of both of budding struction of a new church rated the most that was witnesses, Smithfield, Island, primary Emily the state’s erected Rhode in 1991. (2) Doe, Emily’s original recipient was the securing Brown was instrumental in the ser- (3) trust, and testified that Brown had ac- vices of several of the construction contrac- knowledged Emily employed by some contact between tors Janikuak to build the new facility. himself. engaged One of the subcontractors cousin, Brown, by defendant was his A1 right A defendant’s to cross-examine the performed project. excavation work on the “primary state’s witnesses is a interest” se trial,
According proffer to defendant’s at confrontation clause under both cured problems developed during the construction the Federal and the State Constitutions. church, prompting A1 Brown to file a (R.I. Freeman, 1149, 473 A.2d 1153 impose against civil suit and to a lien 1984) Alaska, 308, (quoting v. 415 Davis U.S. church, seeking money damages for Janik- 315-16, 1105, 1110, 347, 94 S.Ct. 39 L.Ed.2d pay uak’s failure certain costs. (1974)). Supreme 353 The United States right Defense Court has characterized this as follows: counsel asked Janikuak whether a man A1 named Brown had been involved in partiality subject “The of a witness is facility, construction of the new church exploration trial, ‘always and is relevant “No, question replied, which Janikuak he discrediting affecting the witness and way.” didn’t. No The trial refused weight testimony.’ of his [or her] * * * pursue allow defendant this line of exposure of a witness’ motiva- [T]he questioning, reasoning that A1 because was important in testifying proper tion is a Brown, Brown, Danny who had sued the constitutionally protected function of the church, specter of bias was too attenuat- Davis, right of cross-examination.” exploration. ed to warrant As a result de- 316-17, 94 S.Ct. at U.S. unable, probe possible fendant was bias L.Ed.2d at 354. harbored Janikuak be- liberally construed the mandate of We have cause of the lawsuit in- and/or Davis in a manner consistent with our belief project. strumental role in the troublesome of confrontation “[t]he [re- Moreover, emphatically negative Janikuak’s jury quires] that a be allowed to evaluate response question may posed testify- that a have for motive witness proven credibility detrimental to her had de- Olsen, ing.” pursue inqui- fendant been able to this line of (R.I.1992) Beaumier, 480 (quoting State v. ry and to demonstrate that Janikuak had (R.I.1984)). (Emphasis add- been candid about A1Brown’s involvement in ed.) very nature of cross-exami- Because the the construction of the new church. “necessarily exploratory,” nation is “[c]ounsel addressing pertinent what defendant’s confrontation often cannot know advance argument, important feel that it v. United we to be facts be elicited.” Alford States, 687, 692, 218, 219, mindful of the universe of witnesses 51 S.Ct. small U.S. (1931). respective testimony and their this case. 75 L.Ed.
486 Applying principles these time-tested described as
Cross-examination has been
inevitably
con
the
case
instant
leads
engine
“greatest legal
ever invented for
the
constitutionally protect
clusion that Brown’s
Wigmore, Evi
discovery
of truth.” 5 J.
confronting
in
ed
adverse witnesses
interest
1974).
(Chadbourn
§
at 32
rev.
dence
1367
justice’s premature
trial
was thwarted
component
important
of
Without a doubt
prosecution.
the behest
intervention
engine
opportunity
impeach
this
is the
First,
credibility, had
respect to
in
Janikuak’s
by showing
a witness has
witness
“that
bias
confront her with
defendant been able to
prejudice
parties
has
toward one of the
A1
in
documentary
Brown had
evidence
personal
of
interest
the outcome
the ease
fact been associated with
construction
expected
her]
which can be
to color
[or
may
hospitable
project, it
have cast
less
reliability.” In
testimony and undermine its
damaging
light
totality
severely
of her
on the
(R.I.1993)
L.,
1357, 1360
Douglas
re
625 A.2d
Second,
beyond
testimony.
it is
debate
Eckhart,
431, 435,
(quoting
v.
117 R.I.
State
litigation
of
between
pendency
civil
(1977)).
1073,
scope
A.2d
1075
of
“[T]he
367
party
and a
is relevant to show bias.
witness
cross-examination,
purpose
even for the
DeBarros,
551-52;
441 A.2d at
Common
bias,
unlimited,”
exposing
is not
State v. Doc
924,
Maffei, Mass.App.Ct.
471
19
wealth v.
(R.I.1997)
tor,
321,
(quoting
690 A.2d
327
1364,
(1984).
1365
N.E.2d
Veluzat,
93,
(R.I.1990)),
v.
578
95
State
A.2d
a named
Although Brown himself was not
but,
instead is left
the sound discretion
action,
fact
he was
party
the civil
Benevides,
justice.
v.
420
State
assembling
the construction
instrumental
65,
(R.I.1980). Nonetheless,
A.2d
69
plaintiff who was
team and was related to
right
may not be
given
itself
or withheld
church merited at
suing
and her
Janikuak
pleasure
justice.
v.
trial
State
probe
opportunity to
the issue.
least some
(R.I.1982).
DeBarros,
549,
441 A.2d
552
See,
State,
604,
Spoerri
561 So.2d
606
e.g.,
v.
discretionary authority to limit cross-
“[The]
(Fla.Dist.Ct.App.1990) (reversing child-sexu-
[only]
play
after
examination comes into
al-assault conviction when
permitted
matter
there has been
as a
cross-examining
mother
victim’s
restricted
satisfy
sufficient cross-examination
landlord, the
being
evicted
who was
(quoting Springer v.
Sixth Amendment.” Id.
justice’s
employer). The trial
States,
846,
(D.C.App.
388
855
United
A.2d
proffer
counsel’s
without
dismissal of defense
1978)).
previously
We
declared
prop-
opportunity
such an
denied Brown
satisfy the
cross-examination sufficient
questioning.19
er avenue of
requires
trial
guarantee
constitutional
for the
majority suggests that counsel
The
lati
to afford
accused “reasonable
justice an
present
to the trial
defense did
*
**
possible
or reveal
tude
establish
basis to
his cross-examina-
adequate
pursue
bias,
prejudice, or
motives as
ulterior
Indeed,
majority
respect
tion in
bias.
Doctor,
may
being
relate to the case
tried.”
Brennan,
654, 657
v.
527 A.2d at
cites State
Anthony,
(quoting
v.
487 phatically response jury’s guilt negative question, to this determination defendant’s precluded ability counsel further defense was The state’s to bear its innocence. questioning though part even he set forth some proof was borne in no small burden detail, opinion, quoted majority as in the his testimony damaging thanks to the of Janik- exploring potential reasons for Janikuak’s testimony duplicative uak. was not Her I bias. Thus this case cannot discern cumulative, corroborating evi- nor was there pond whether there fish in were because testimony save that of Doe. dence of permitted defendant was not even to cast his majority’s of this rendition evidence line. The fact that allowed to defendant was could lead a reasonable reader to conclude testify concerning the role of his cousin and Danny Brown testified to the admission relationship between the cousin and Jan- of sexual abuse. This was not the case. The ikuak is no substitute for effective cross- testified, just as he had related his examination of Janikuak on this issue. previously, version of events physical Emily contact he had had with was Denial of an accused’s to cross-exam the innocent contact that she initiated. As subject Chap ine him witnesses majority, majority op., indicated see analysis. man harmless-error v. Delaware II, part testimony “two to three times” Arsdall, 673, 684, Van 475 106 U.S. S.Ct. solely Emily’s came out of the mouth of 1431, 1438, 674, (1986); 89 ac L.Ed.2d mother, Doe, Judy who claimed that defen- Chapman California, 18, 24, cord 386 U.S. dant such an admission to Dr. Richard 824, made 828, 705, 87 S.Ct. 17 L.Ed.2d 710-11 critical, however, (1967). Tanguay. It is to note that Thus order for this court to dis vague testimony nowhere in the of the doctor justice’s harmless, miss the trial error as we was there mention of such an admission “assuming must conclude that reading Dr. Tan- defendant. Indeed damaging potential of the cross-examination guay’s clearly testimony indicates that he realized,” fully were in precluding error virtually specific no recollection of beyond such examination was harmless by Danny admission Brown. The bulk of his Arsdall, reasonable doubt. Van at U.S. testimony experience to his sex- 684, 106 related 1438, 686; at S.Ct. 89 L.Ed.2d at see in general ual-abuse cases rather than the (R.I. Squillante, 474, State v. 622 A.2d concerning 1993) purported case which he to testi- (applying Van Arsdall factors to al Janikuak, then, fy. presented Pastor claim); leged denial of confrontation jury seemingly as a disinterested witness Manocchio, (R.I.1987). 872, 874-75 theory Emily who did not fit defendant’s Arsdall, Writing for the Court in Van allegations and Doe had concocted then-Associate Rehnquist Justice enumerat- assigna- retribution for Brown’s extramarital reviewing ed factors a court could consider Consequently of Doe. tions and divorce in determining magnitude of the error: justice’s topic of cross- restriction of (1) importance testimony “the of the witness’ completely deprived examination Brown of (2) case,” prosecution’s in the “whether the persuasive attacking his most basis for (3) testimony cumulative,” presence “the witness. corroborating or absence of evidence or con- tradicting of the witness on only speculate limitless One can about the (4) points,” material “the extent of cross-ex- possibilities impact of Janikuak’s (5) permitted, amination otherwise and” “the jury findings or its bias have had on the strength prosecution’s overall case.” concerning fate. The burden Arsdall, Van U.S. at 106 S.Ct. at placed upon prove the state to each element 1438, 89 L.Ed.2d 686-87. beyond of the crime a reasonable doubt ren-
Application potential extremely sig- of the above criteria to the ders evidence of bias opportunity reasonable well be curtailment of Brown’s to cross- nificant since doubt upon impeachment of the weighs against declaring examine Janikuak based credibili- beyond ty important of an witness. Because “[a] the error harmless a reasonable testimony, jury might signif- have received a doubt. Janikuak’s and her credi- reasonable icantly impression of bility, undeniably [Janikuak’s] were at the forefront of the different per- Emily inappropriately credibility been who had touched counsel [Brown’s] pursue proposed of cross- him. his line mitted examination,” Arsdall, 475 U.S. at see Van your reaction What was “[Prosecutor]: 106 S.Ct. at L.Ed.2d saying this? *22 a new trial.
believe is entitled to I was because I’m shocked “[Janikuak]: children, can’t, I the mother of four Bolstering Testimony of Pastor Janikuak my say children were to come to me and Jan- Brown’s next claim of error concerns father, mean, I I that about their would be meeting testimony regarding ikuak’s her appalled my tell that husband would me Emily Emily divulged in first which my eight years old was child of Brown, stepfather, sexually her had abused perpetrator. 26 He’s or 28. particular, objects her. you say did to him? “[Prosecutor]: What following: said, T a 26 or I can’t believe “[Janikuak]: us her telling Without “[Prosecutor]: year eight say 28 old man would words, you did inform incidents she ” year perpetrator.’ old child was involved that she been in? The determination of truthfulness Objection, your Hon- “[Defense Counsel]: credibility the exclu of a witness lies within or. James, province jury. v. sive State yes or Just no. “[The Court]: (R.I.1989). Accordingly it 557 A.2d 473 Yes. “[Janikuak]: impermissible offer an is for a witness to And— “[Prosecutor]: veracity another’s opinion concerning the “[The Court]: Overruled. testimony. does Id. Even when one witness informa- Upon learning this “[Prosecutor]: literally opinion her concern state his or tion, your what reaction? What was witness, if the ing credibility of another response?
your
challenged testimony
the same
would have
effect,
As to what she said me?
inadmissi
testimony
“[Janikuak]:
is
substantive
Haslam,
902, 905
State v.
663 A.2d
ble.
Yes,
saying
without
what
“[Prosecutor]:
(R.I.1995).
a witness’s
bolstering of
Such
she said.
is
credibility, especially crucial when it
very
1
cautious make
“[Janikuak]:
complaining
testimony
being
that is
witness’s
telling
she was
me was the
sure
what
buttressed,
territory
invades the exclusive
sure
truth because we’re trained to be
Moreover,
so-
the factfinder.
905-06.
allegation
just
someone makes an
because
testimony
by one
bolstering
offered
called
does not
it’s true.
mean
high
community may
in
held
esteem
Objection, your Hon-
“[Defense Counsel]:
See, e.g.,
particularly
jury.
influence the
or.
(R.I.
Desmarais,
v.
A.2d
State
Overruled.
“[The Court]:
Nicoletti,
1984);
471 A.2d
State v.
you go
how
about
And
did
“[Prosecutor]:
(R.I.1984) (acknowledging
nature
influential
doing that?
Castore,
testimony);
police
her,
just
you
‘Do
I
said to
“[Janikuak]:
(R.I.1981)
(recognizing that a
your allegations?’
realize the
seriousness
great
testimony would be accorded
doctor’s
factfinder).
you
any ac-
take
Did
then
weight
“[Prosecutor]:
tion?
Allowing
testimony,
failing to
such
ad-
I
told her
she
Uh-huh.
“[Janikuak]:
it,
disregard
creates a
jury
monish the
to,
know,
look
you
continue to
needed
faced with
risk that a defendant
substantial
aspect
of the truthfulness of what she
deprived
jury’s
of a
testimony will be
saying,
Dan-
and that would confront
judgment on
those issues that
law
all
(Emphasis
ny Brown
with what
said.”
The risk is
to its determination.
commits
added.)
jurors might reasonably defer
that the
“actual”
purportedly
testimony
judgment
of one with
Later
Janikuak recalled
solely
rely
on their
knowledge rather than
telling her of his claim that
determination,
from a criminal defendant
as it
such a
collective
restricted
him
to mean
necessarily
cloistering
according
before
or her access
the sometimes
See, e.g.,
evidentiary
ingful appellate
The trial
review.
effect of our
rules.
(R.I.1988).
Mead,
1146, 1150
justice’s
failing
steps
error
to take
equalize
impermissible impact
of Janik-
In Haslam we vacated the defendant’s Su-
vouching effectively
uak’s
allowed Janikuak
charges
perior
on various
Court conviction
“and,
effect,
credibility,
to evaluate
to sit
part
because the trial
child molestation
jury
in the
box and become the thirteenth
permitted
testimony
of a sex-
Castore,
juror.”
The
that if
the victim
consideration
treated
repeatedly al-
given
entirety
elicited
of Janikuak’s testimo-
abuse.
*23
actually
primary area
ny it becomes clear that she never
luded to the fact that Swink’s
practice
recovery. Has-
telling
decided for herself who was
the truth.
was sexual-abuse
lam,
however,
Also,
important,
the state elicited
What is
is not what Jan-
child’s claims.
Conclusion *24 pretrial errors discussed and trial defen-
above undermine confidence consti- product conviction of a
dant’s