State v. Lynch

Conclusion

Accordingly, judgment of the Dis-

trict quashed, Court is and the record in

this case shall be remanded to the District

Court with our decision endorsed thereon

for the entry judgment of a in favor of the

school committee.

Justice FLAHERTY did participate.

STATE

Raymond LYNCH.

No. 1999-327-C.A.

Supreme Rhode Island.

Aug. 2004. Bush, Plaintiff. Esq., R.

Christopher Providence, Laroche, for De- Esq., Mark fendant. WILLIAMS, son, C.J., psychologist.

Present: a school Michelle testi- FLANDERS, GOLDBERG, fied that she FLAHERTY did so because she was con- SUTTELL, might and cerned that defendant abusing JJ. Thereafter,

Mary. Ms. Tillotson called Mary to her Ms. office. Tillotson testified OPINION that Mary initially said that was not she SUTTELL, Justice. supposed to talk about what her father did defendant, to her her mother Raymond Lynch, The when work. ap- peals Superior Mary then said that defendant had jury from sex convictions “all her the time” the basement first-degree three counts of sexual as- their second-degree immediately sault two home. Ms. Tillotson and counts sex- ual called Warwick Police Department assault. The victim of all five and assaults Children, Youth, Department developmentally daugh- was his and impaired ter Families and later Mary.1 alleges He trial court drove Mi- police chelle to committed thirteen distinct station. errors that warrant reversal of some or all convic- The arrested that day. defendant was tions, and that trial abused his Several weeks later indictment was by denying discretion the defendant’s mo- charging him filed with three counts of tion for a new trial. first-degree sexual assault and two counts second-degree against sexual assault Facts and Travel Mary, count second-degree one incident, precipitating At the time of the assault of simple and one count assault years was sixteen old and resided sister, against younger her and one count Warwick, Island, parents, Rhode with her of simple assault A Michelle. younger sister, younger brother. convicted him of the five involving counts Friday, September On Mary in- Mary,2 after which defendant filed a mo- school, Michelle, vited a friend from trial, tion for newa which was denied on sleep girls over at her house. The 8,May 1998. sentenced bed, together Mary’s watched movie serve, sixty years, thirty defendant to and fell asleep. then first-degree on the each of sexual assault convictions, years and ten to serve on the trial Michelle testified at that she woke two second-degree sexual assault convic- up leaning to find defendant her and over tions, all the to run concurrent- sentences rubbing upper part the of the of back her ly. facts supplied Other will be as needed thigh. She further testified that defendant to the appeal. address issues on her, you told place sleep, need a to “[I]f you can come with sleep me.” Michelle I immediately Lynch left the household and walked home. Michelle was described as Mary’s Competency “hysterical” when she arrived home. The alleges The defendant that the trial called, police responded were and to her justice in finding abused his discretion rape a home with crisis counselor. testify in competent light to of her 24, 1996, limitations,

On September cognitive the next school and communicative day, Mary-Ellen impairment abilities, Michelle met Tillot- intellectual and the juveniles acquitted 1. The names of victim and all The defendant was on the other 2. opinion mentioned in this are three fictitious. counts. the trial that recognized It was testimony competency at her conflicting A sexual cognitive limitations. does have hearing. assault, however, and a traumatic event is Rule 601 of the Rhode Island than may clearly more memorable thus be a requires that witness Rules of Evidence occurrences. See everyday other normal testify. court competent to The trial (R.I. Girouard, 882, A.2d v. State must make four determinations evaluat 1989). believe It is reasonable ing competency: a witness witness’s a Mary may have clear though even “observe, recollect, com must be able to places and times recollection of exact municate, appreciate necessity and took alleged multiple assaults the truth." Seabra telling Trafford- fact that cognizant is still place, she Seabra, (citing 655 A.2d occurred. the assaults Cabral, 623, 629, 122 R.I. 410 A.2d State v. (1980)). This will overturn ability to com- Mary demonstrated only a decision for abuse competency by relating municate facts of Ranieri, (citing Id. discretion. assaults, body parts pointing to her when (R.I.1991)). “The 1098-99 asked, identifying defendant and defer afforded considerable This courtroom. level communication making competency ruling ence in a since competency requirements meets the position he is in the best assess testify (ability See id. before court. present ability comprehend witness’s demonstrated adequately communicate oath, give and obligation of crime, relating the facts of the witness may account of what he have seen correct body parts diagram, pointing to Franklin, (citing or Id. heard.” courtroom). identifying defendant (1968)). 724, 241 103 R.I. Mary could Athough defendant noted that hand, case at con whether she communicate adequately Mary, a voir and was suffi ducted dire high from school graduate going ability to ciently satisfied that she had the currently year, grade what she observe, recollect, communicate, and in, responses we conclude her overall necessity tell appreciated she ques- capacity to understand indicated ing agree. truth. We answers. intelligent to furnish tions and testimony abil- demonstrated her transcripts also evidence ity testified that at to observe. She necessity of tell Mary’s knowledge of the two time of trial lived with house- she the truth. ing mates, they own rooms. and that had their And, you if “THE he asks COURT: that she had a television She testified to do? you supposed question, what are work computer her and a that didn’t room it was not connected. Additional- because I’m talk supposed “THE WITNESS: ly, details concern- she testified in here.

ing multiple times that defendant sexu- And, you sup- are “THE what COURT: ally assaulted her. us? posed to tell remember. The defendant er, favorite television demonstrates Mary’s testimony of the sexual assaults that Mary that she had did not know what programs were on notes, howev- ability day her or going to “THE WITNESS: “THE "* ^{[*] [*]} COURT: tell us any Ml Everything. lies? right. Now are you “THE No. room. WITNESS: any she had books whether “THE Why COURT: not? on her meeting Michelle, Based with she “that it important believed to talk with

“THE WITNESS: its [sic ] Because Mary general about her well-being.” Ms. very important to tell the truth.” Mary Tillotson then asked come to her “A child need articulate magic words with office Michelle. As a result of her that he or knows she the difference be- Mary, conversation with she called the De- tween a lie a truth long and as the child partment Children, of Youth and Families understands the definitions of and both police. police and the Warwick A officer Girouard, was there to tell truth.” responded high spoke school and Gerald, (citing A.2d at 886 In re Mary both and Michelle. Ms. Tillotson (R.I.1984)). A.2d 220-21 defer to We and, report made a written request the judgment justice, of the trial upon who officer, girls drove both police hearing exchange, this was confident that station. inMary fact did understand the difference between the and a truth he. After much discussion counsel out- reviewing

After the four testimonial ca- presence jury, side the of the the trial pacities required for a finding compe- said that he would allow Ms. Tillot- tency, we conclude did Mary son to relate what told her that Mary not err in finding to testi- competent jury returned, afternoon. When the Ms. fy. Though cognitive she suffered from Mary Tillotson testified that told her that: and limitations, communicative met she not supposed “She’s to talk about what standard of competency by set forth her dad does to her when her mom is at Court. We also note our established rule work. She told me that —an incident any concerning doubt minimum credi- her, I had related to she—she af- bility of the witness should be resolved firmed that has something happened to favor allowing to hear the her. She told that her me father had had testimony judge the credibility sex with her the basement.” Marr, witness themselves. State v. Tillotson Ms. also testified that curiam) (cit- when she (per happened, asked how often this had ing Evidence, § McCormick On 62 at 91 Mary “seemed to (4th be confused about the Strong ed. Prac. Series Treatise times.” 1992)). “Hearsay evidence is a state

II ment, than other one made the declar Testimony Psychologist of the School ant while testifying hearing, at a prove offered evidence to the truth of alleges The defendant Angell, the matter asserted.” Mary-Ellen statements made to Til (1979). R.I. As a lotson, a school psychologist, certified were rule, hearsay statements are excluded improperly admitted in violation Rule from the evidence at trial introduced be 803(4) of the Rhode Island Rules Evi oath, the usual safeguards cause dence because there was no confrontation, cross-examination, are (or health) Mary sought a medical mental However, not available. Id. there are nu diagnosis from Ms. Tillotson. exceptions merous to this rule. Ms. Septem- Tillotson testified that on 24, 1996, ber 803(4), employee high of the Purposes Rule “Statements for of school Treatment,” asked to meet Diagnosis her with Michelle. Medical or allows however, must, proper be a There to admitted into hearsay statements be that the statements showing foundation if the statements were: of purposes “for the question were made purposes “made for the of medical di- Here, diagnosis or treatment.” medical describing agnosis or treatment for psychologist Mary not seek out the did history, present or or past medical her problems; a or treatment of diagnosis sensations, or or symptoms, pain, Mary. sought rather, out psychologist inception general or character that Ms.Tillotson no indication There was cause or external source thereof insofar Mary as psycholo herself to a identified diagnosis or reasonably pertinent to knew that she gist, or that even treatment, including statements but Further, it even is not psychologist. a for physician solely made to a consulted Tillot clear was alone Ms. litigation purposes preparing of for they spoke or whether Michelle son when testimony trial.” obtaining or for during their conversation. present was also in making A motive the state declarant’s a admissibility “The of evidence is seeking di ment must be consistent with sound question addressed discretion See, v. agnosis e.g., or treatment. State of the trial and will not be dis (Iowa Hildreth, 169-70 N.W.2d appeal turbed on absent a clear abuse of Wade, 750, 622 1998); 136 N.H. State Momplaisir; discretion.” State (1993). The trial A.2d (R.I.2003) 65, 72 v. An (citing A.2d dilemma, noting: considered (R.I.2002) 374-75 dreozzi hearsay excep- clear “it’s not from curiam)). admissibility Mary’s The of (per is, making it purpose tion as to whose hinge statements on whether the state treating person, statement “reasonably pertinent ments were to the purposes it’s for the whether diagnosis formulation a medical or treat treating person purposes or for C., Id. In (citing ment.” re Jessica words, did person. In other the treated (R.I.1997)). 1357, 1363, 1364 A.2d to the [Mary] make these statements Clearly, Mary’s declarations purpose for the psychologist school psychologist helpful school be in di- psychologist could treated the school being listening mental issues. The agnosing psychologist her health the school purpose for the statement that her father “had sex with the statements * * * I [Mary]? presumed very treating in the might basement” be rele- in the school that a student Warwick vant to the treatment of emotional and system visiting psychologist school injuries. psychological perpe- When psychol- in the school premises on school trator is member of the child’s immedi- ogist’s psycholo- there to be office was household, may identity ate his or her well * * * gized by psychologist. the school only reasonably pertinent [Mary’s] it going I’m rule is plan, of a treatment but also to formulation and not making the assertion purpose child in a safe and ensure that is * * psychologist's] so that treatment can secure environment G., Audrey be effectuated. re underlying admitting rationale Cf. curiam) (per fur- made in the out-of-court statements (child’s disclosing doctor or treatment diagnosis therance of medical identity “strong not ad- motivation perpetrator generally person has a that will merely assigns fault about information missible because be truthful diagnosis her] form of his diagnosis). [or the basis and does not aid Advisory treatment.” Note It is Committee’s well established that “the 803(4). ease, to Rule In this was no of hearsay there admission evidence is not preju showing Mary’s that in purpose making merely dicial when evidence cumula diagnosis for guilt statements was or treat- tive and when defendant’s is suffi Tillotson, ment from thus no ciently by proper Ms. and established evidence.” Mary Micheli, (R.I. showing that had a motiva- “strong 1995) curiam) meeting tion to be (per (citing Angell, truthful.” After 122 R.I. Michelle, 14). Mary Ms. Tillotson summoned at 405 A.2d at “While is true into her office. Whether Ms. Tillotson did that evidence is accumulated the course “diagnose this to and treat” or Mary for of a trial to guilt, determine a defendant’s purely no im- cumulative. investigatory reasons is of not all evidence is ‘Cumula port dispositive here. The fact is that ‘tending prove tive evidence’ means Mary did not make these statements same to which point other evidence has ” Ms. Coleman, Tillotson seeking because she was been offered.’ treatment, (1992) underpin- and there thus is no Neb. 478 N.W.2d ning of reliability. (quoting Third Webster’s New Interna (Unabr.1981)). Thus, Dictionary tional Moreover, showing was no there “cumulative,” qualify ever, fact, Mary. Ms. Tillotson treated question only need not be introduced after directly When asked if she ever counseled prove tending other evidence the same Mary, Ms. Tillotson testified that she Rather, point already has been admitted. occasions, “met” with her on several but one, is a retrospective the test adminis regularly “those were coun- scheduled tered at the close of all the evidence to seling added, appointments.” She then determine whether the admission of cer “They generally were request tain in light evidence was harmless of all someone else me to meet with her.” that point. the evidence admitted on conclude, therefore, We that there was an record, pre- insufficient support reviewing foundation After we conclude sumption Mary’s testimony to Ms. merely statements that Ms. Tillotson’s Tillotson were “made for purposes light subsequent cumulative testimon diagnosis y.3 medical treatment.” The trial usual excluding The reasons for hear this, oath, recognize say seemed to nev- but statements —lack of confron tation, Mary ertheless drew an inference that greatly cross-examination'—-are likely seeking simply to be treatment be- abated here Tillotson’s because Ms. testi psy- cause she was speaking mony anything the school did not reveal other than chologist prem- in her by Mary office the school testified to herself. See ises, talking as she had she might Angell, been R.I. at 405 A.2d at 14. school scrape. strength nurse a cut or a the state’s case conclude, therefore, We Mary’s directly dependent upon out-of- defendant was jury’s Mary’s court psychologist credibility. statements to school assessment of properly were not admissible Rule under We therefore conclude admission 803(4). testimony of this was harmless error. Mary’s testimony, Bridget Mary's 3. In addition to Dr. her in the basement. sister also testi- McCue both direct and during testified on cross-ex- Mary trial that related fied an incident essentially amination that related sexually in which their father assaulted namely, same accusations: father dining room in the of their home. vaginal both anal intercourse with box, “I chair in the said that from her witness argues further be- The defendant issue, Dad,” Mary’s credibility was, cause was at Ms. then made and heard what that testimony conceived Tillotson’s “could be rush from the witness stand aggressive that by jury opinion as a conclusive by defendant. She was restrained toward We dis- truthfully.” had testified in full three officers view two or court agree. argues The jury. defendant by in State v. Superior The defendant notes that discretion Court abused its (R.I.1995), Haslam, 663 A.2d to pass not motion granting defendant’s that allowance Court held the trial court’s preju- being jury’s the trial based on the testimony vouching of a counselor Mary’s actions. The defendant by diced credibility of the wit- complaining opportu- he fair that did not have a asserts ness error. The defendant fails to nity Mary’s regard, affec- to show “kind however, note, the different circumstances tion, Raymond.” compassion towards Haslam, In of the two cases. 663 A.2d repeated concluded that this Court justice’s A decision to trial recovery” by references “sexual abuse deny a motion for a mistrial is accorded jury by the counselor would influence the not disturbed on great weight and will be adding credibility complaining wit- clearly v. appeal wrong. unless it is State allegation that sexual- ness’s she had been Werner, 830 A.2d 1112-13 ly abused. The Court said even 420, 427 Aponte, 800 A.2d (citing State though testimony the counselor’s was not a (R.I.2002); 760 A.2d Villafane, literal statement of the counselor’s belief curiam)). (R.I.2000) (per “[T]he complaining truthfulness wit- ringside justice enjoys trial seat at ness, testimony substan- the same posture trial and therefore is the best perceived by tive be import would inappropri determine whether a witness’s jury opinion as a conclusive that the al- ate has inflamed the [or action] remark so leged complaining had testified witness they jurors longer no would able Here, however, truthfully. Id. Ms. Tillot- calm and dis decide the case based generally son was identified school Id passionate evaluation of the evidence.” psychologist, and the discussion between Luciano, (citing at 1113 Mary and Ms. Tillotson was never charac- (R.I.1999)). counseling. as “sexual terized abuse” testimony, only repeated Ms. Tillotson justice jury recessed the after Mary’s no opin- statements. She offered the incident with the outburst to discuss veracity credibility. ion their Ad- parties. both The trial offered ditionally, Mary immediately testified after jury, give a curative instruction Tillotson, jury Ms. and thus the had the “they give instructing [were] opportunity story hear same direct- they any saw evidentia- demonstration Therefore, ly Mary. conclude that from we ry way.” The defendant’s weight either jury reasonably could construe Ms. opportunity. The tri- refused this counsel vouching for testimony as Tillotson’s [was not] al then held that “the credibility Mary. weigh prejudiced they cannot what- so they have to now.” up ever evidence III to Pass Motion “aggressive rush” to- Placing Mary’s context, we conclude defendant ward In the middle direct jurors have been so would not prosecutor, she rose examination Pacheco, (R.I. they 971, inflamed that would be able to State v. 763 A.2d 2001) Bertoldi, dispassionate decide case based the on (citing State v. 495 A.2d evaluation of the (R.I.1985)); Grabowski, evidence. Because the jurors already of Mary’s were aware alle- (R.I.1996). Pursuant to gations abuse, they of defendant’s sexual Superior Rule 30 of the Court Rules of unduly preju- would not be surprised Procedure, Criminal daughter making diced that allega- these party may assign error any “[n]o great anger tions would hold a deal of portion charge or omission there- Moreover, toward her father. defendant party objects from unless thereto during had ample opportunity cross-exami- jury before the retires to consider its Mary inquire any nation of to affec- verdict, stating distinctly the matter to regard tion might or kind have objects which party grounds and the for defendant. We therefore hold that the objection.” of party’s justice trial did not commit clear error in reviewing jury While the issue of grant declining pass. to the motion to In appeal, empha instructions on we have instance, justice the trial during sized that the course of the instruc position weigh best to harm by caused tions, expected counsel listen to are this outburst. judge any and determine whether error Williams, has been made. State v.

IV (R.I.1981). A.2d It is incumbent Jury Instructions to the upon point judge counsel out to the argues The defendant next specifically any corrections or additions justice the trial two committed reversible necessary. that are Id. procedure This is charge jury. First, errors in his critical that any may to ensure errors justice trial defendant contends that immediately, jury corrected before the by instructing jury erred that evidence commences deliberations. Id. Accord its activity of past sexual 1995 with ingly, object the defendant’s failure is juvenile pur another was limited respect fatal to of his claims error with pose assessing credibility. The de jury these two instructions. argues fendant should court have jury that instructed the it could infer from V previous this evidence that activity. of sexual knowledge Secondly, Evidence of Prior Acts defendant contends that Fred Greene by including erred additional in trial, Before the state moved in degree struction that the “second prevent eliciting limine to defendant from charge assault simple could also constitute any evidence relative to a sexual assault assault.” perpetrated upon Mary by Fred Greene errors, these

Both asserted how for which Greene was tried and conv ever, were waived defendant’s failure to icted.4 The also moved in li defendant object requesting after instructed the mine the court allow such jury. firmly It established that evidence. is He asserted that evidence object jury “failure to to a instruction pre assault “should have been admissible appeal.” on sex [Mary’s] knowledge cludes review the instruction show acts or neighbor 4. Fred Greene was an adult Mary's. charge rape of a withdrawal witnesses]

specific sex acts” that she had described man than the defendant Both were other present case. motions complain- challenge but as a impaneled, after the admissible heard credibility in defen- opening ing witnesses] statements. before Oliveira, 576 rape trial.” Id. dant’s hearing the motions The focus of the also held we Mary’s previous whether evidence of was eleven-year-old victim’s accusations by rape the protected sexual activities was to demonstrate should have been admitted statute, 11-37-13, § which shield G.L.1956 jury had other the that she sources a to introduce evidence permits defendant acts she de- knowledge of the sexual her engaged complaining witness scribed, allegations were though even her conduct, no- only prior prior upon sexual nor withdrawn. proven neither false If then specific proof. tice and a offer of relevant, court the evidence to be finds “The admission or exclusion of evidence may Dorsey, State v. 783 be admitted. relevancy of is within grounds on (R.L2001) (citing A.2d State 954 and, justice the trial sound discretion of (R.I.1990)). Oliveira, A.2d 576 113 of this discre showing absent of abuse justice by ruled that assault The tion, ruling this Court will disturb eight years occurred seven or Fred Greene admissibility of concerning evidence.” ago and not relevant. defendant was The (R.I. Calenda, A.2d Mary request question renewed his 2002) curiam) (quoting McBurney (per during about the incident his cross-exami- Services, Inc., Apex, Law Inc. v. It Mary, nation of with a similar result. (R.I.2001) (mem.)). Here, we 911-12 apparent transcripts from the seems in the trial no abuse of discretion see of court’s was the fact ruling the basis justice’s decision to exclude evidence Mary’s conclusive- allegation been Mary. on prior Greene’s assault Fred ly by Fred subse- established Greene’s no Clearly, the evidence had proffered quent being appeal, conviction as true. On Mary’s respect credibili- relevance defendant asserts such convicted, had been con- ty. Fred Greene demon- should have been admissible to the truthfulness of clusively establishing Mary’s knowledge of specific strate sexual It was not the function accusations. acts. in an retry that case Superior credibility. The was rape impugn statute effort shield eight years be- encourage report assault occurred seven enacted “to victims Also, trial. unlike the eleven- unnecessary fore the inviting crimes without fear of Oliveira, nine- was history.” year-old victim probing into the victim’s sexual old, limited, Oliveira, at cognitively years teen albeit Dorsey, (citing 783 A.2d at 113). Therefore, jury com the time she testified. A.2d Evidence of the likely to draw have been less history sexual is admis would plaining witness’s sexually naive was so specific inference she provided sible defendant makes charge. justice could not have fabricated proof the trial finds she offer of See, A.2d Jacques, e.g., This Court history sexual relevant. Id. Moreover, (Me.1989). justice the trial accusations held that evidence false has defendant to cross-examine to allowed by the witness is admissible complaining encounters, two recent sexual a defendant more negate the offense with which Oliveira, allegations of of which involved at 113. one charged. of which strikingly similar those Furthermore, complaining acts of a “evidence statute, Greene had We con- rape primarily Fred been convicted. shield clude, therefore, Oliveira, applicability allega- that the trial was to Mary’s authority by within discretionary well to tions of assault John. After much dis- any concerning cussion whether con- exclude reference to the sexual assault the sexual tact consensual by or the of a perpetrated Fred Greene because such result assault, forcible concluded evidence was not relevant. Therefore it cumulative, hearing ruling on the by motion and was further “shielded” § follows: 11-37-13. ruling “So the then is that I’ll hold a out of the hearing hearing VI all, to, incident first [John] see Hearsay Statements of the Detective or not any allegation whether there is In was when she sixteen If allegation sexual assault. there is no old, years Mary in reported an incident assault of sexual and it consen- becomes John, she alleged which that fourteen then sual, I permit If, won’t then it. howev- old, years sexually had assaulted her. The er, allegations I’m satisfied that the argues justice trial defendant that the assault, were of sexual then I hear will committed by permitting reversible error the whatever State wants to that show police testify that in Warwick officer to true, were, they they were that in other her, March John stated to the words, If anything true. there’s that father, presence of his in fact that he did true, to they’re would tend show that Mary. consensual with have sexual contact I’ll consider that.” hearsay The admitted The incident with John was indeed 804(b)(3) statement under Rule of the by during raised defendant his cross-exam- Rhode Island Rules of as a state Evidence Mary. presence ination of Outside the against ment inter penal declarant’s prosecutor jury, represented that est. prepared prove he was to that appeal, jus- On defendant the trial faults against allegations John were Then true. which, ruling tice’s for several he reasons examination, Mary a voir dire testified asserts, against militate trustworthi- will, against that John touched her her and Also, in hearsay ness of the statements. her penetrated penis vaginally, with his of supplemental citation authorities sub- orally, attempted penetrate and to her after oral argument pursuant mitted to anally. permitting any Without additional 16(e) I, Article Rule of the Supreme argument witnesses further from the Procedure, Appellate sup- Rules of and state, the trial ruled that defendant memorandum, porting he asserts permitted question Mary would be to violated his admission statement in front of jury. about John right against to confront the him witnesses Following Mary’s testimony, the next by Amendment to guaranteed the Sixth by witness called Sgt. state was Kerri the United States Constitution. Depart- Holsten of Warwick Police any jury,

The exclusion or admission evi- ment. absence of relating prosecutor being contact between said that the dence sexual witness was subject and show he John was also a offered “to when said did her, jus- parties’ things proof motions in limine. The trial these there was that it engaged explained counsel for He further that parties happened.” tice and both fairly concerning Sgt. testify in a would ad- extensive discussion Holsten John have would not position Mary. John’s declarant’s having mitted to sex admissible, unless declarant prosecu- made statement statements were penal his it to true.” argued, tor as statements believed no there been interest. Because argues that brief, In his defendant aas showing that John was unavailable sexual denial that of John’s written light 804(b)(3), witness, required as is Rule all his asser- and intercourse occurred excused, however, Sgt. sub- Holsten was that did occur that the sexual contact tion ject recall. consensual, gave he the oral statement was parties stipulated later to John’s “ contrary Holsten ‘so far Sgt. re- unavailability, Sgt. Holsten * * * liability’ criminal to [his] as a Over defendant’s called witness. oral he said that believed [be] could objection, she testified that John further to the detective.” He Mary. initially that he even knew denied is not a substantial suggests there know acknowledged later he did He person a reasonable likelihood that her, finally having admitted the oral position would believe John’s her. He said he fondled intercourse with him Hol- by Sgt. statements attributed her, penetrated vaginally her and tried Further, he asserts sten. penetrate anally, but was unsuccessful. properly failed to consider John’s justice occurred, said, large The incident he on a evidence, corroborating the age, the lack of a a rock in wooded area near school. to likelihood that he would be sent small cross-examination, Sgt. Holsten tes- On School, the Training and the fact that the statement, that an making tified after oral he penal authority present when true statement, a John started to make written police, was the made the statements not father, interrupted by was and but his the father. also contends that but his He completed never it. The that statement justice erroneously trial found that John wrote that John admitted he had been given rights. had been his “Miranda” smoking pot Mary, and fondled but ended following sentence: were on “We probability We first note that the nothing kissing the rock we were juvenile be fourteen-year-old would that happened.” state’s Notwithstanding, indeed, liability is, re subject to criminal objection strenuous that this written state- mote, possible allega although, given the penal against ment not declarant’s force coercion and the mental tions of or interest, justice the trial admitted the victim, entirely out of disability of the as full it was statement exhibit because in of the event possibility the realm of being offered as “direct contradiction jurisdic Family to waive Court were testimony.” [Sgt. Holsten’s] however, A delinquency proceeding, tion. 804(b)(3) provides pertinent Rule civil, of crimi opposed as one is “one part: nal, Matter a Child nature.” In the (18) Age, Years Eighteen A Against Interest. state- under “Statement (R.I.1999) (mem.) (quoting mak- which at the time of its A.2d ment (R.I. D., 1173, contrary so far declarant’s re John

ing 1984)). Also, interest, justice percep trial or so as pecuniary proprietary or observed, “may also tively the statements subject declarant far tended interest because liability, against to render economic civil or criminal or know whether declarant doesn’t invalid claim the declarant another, not.” subject pregnant in the is or person that a reasonable

The sodomy, admission of a statement un as for under then-existing ver- exception § der an rule Finally, is sion of G.L.1956 11—10—1.5 noted, justice within sound discretion of the trial the trial the statements were pecuniary to his contrary and shall not be overturned unless interest Torres, event clearly pregnant erroneous. became as a See State v. their, sexual result of encounter. (admissibility A.2d clearly an excited utterance within hand, other it On the is not from clear justice’s discretion and not be over will that a the record reasonable fourteen-\ unless turned there is an of that abuse year-old, investigation alleged under for an discretion); Estate Sweeney Charpen assault, would be mindful (R.I.1996) (admissi tier, possibility Mary might had a have bility of the residual to the hear exception disability mental sufficient to transform an say clearly rule within the discretion of the act of consensual sex into a sexual assault. and will not be overturned likely It perhaps is more that John’s mo- unless there was an abuse of discre admitting to having tive sex- consensual resulting prejudice). tion penal ual relations with was to avoid liability, least to obtain more favor- focus of inquiry The our must be on able treatment from the authorities. Such whether statements so tended to far self-serving generally statements lack the subject John liability to civil or criminal trustworthiness underlies the rule. person position that a reasonable in his not have would made them unless he be- test is not whether a declar them to lieved be true. “The rationale for subjected ant’s could have him exception people likely is that are liability; criminal civil or rather damaging to make statements that are sufficiently whether statement was they themselves unless believe them to be against the declarant’s interest that rea Advisory true.” Note to Rule Committee’s person position sonable declarant’s 804(b)(3). have made would not the statement unless it he believed to be true. See Williamson Here, weigh there are factors that . States, 594, 603-04, v United U.S. both of the issue. The conversation sides (1994). 2431, 129 S.Ct. L.Ed.2d “Rule at place police took the Warwick station 804(b)(3) is founded on the commonsense presence of his to an pursuant father motion that reasonable rea people, even investigation alleged of an assault. sexual who are not hon people especially sonable Although there was no that direct evidence est, not to self-inculpatory tend make given warnings, he had been the Miranda they statements unless to be believe them prosecutor representation made such a 599, 114 at true.” Id. S.Ct. 2431. Further, Court. to the the sexual activi- hearsay ties to which he admitted light In of this circumstances statements, consensual, case, even if would ar- not we are satisfied that a reasonable subject him for guably liability to fourteen-year-old would be that his aware with a penetration mentally-disabled acknowledging indi- sex- statements consensual 11-37-2, § subject vidual under G.L.1956 as well ual with contact could also statement, nature, against 5. time of G.L.1956 or with At the John's either with mankind beast, provided: § 11-10-1 any imprisoned exceeding shall be (7) (20) years against twenty and detestable crime nor less "Abominable than seven Every person who shall convicted years.” nature. — of the abominable and crime detestable Sgt. Holsten was might that he John’s statements penal liability, him to responsibility as a re- any incur financial harmless error. Accordingly, we are unable thereof. sult argument to defendant’s turn We next that oral statements to conclude John’s state John’s admission contrary to his Holsten were so far Sgt. clause the confrontation ments violated Rule interest as be admissible under “The Sixth Amendment. the Sixth 804(b)(3). pro Clause Confrontation Amendment’s satisfied, however, are We that, prosecutions, all criminal ‘[i]n vides admission was harmless error be their * * * enjoy right shall accused The defendant yond a reasonable doubt. against the witnesses be confronted with identify any prejudice from does ” ——U.S. Washington, him.’ Crawford fact, it of these statements. admission ——, ——, 124 S.Ct. first introduced to the

was defendant who (2004) Const. (quoting L.Ed.2d U.S. objection, evidence jury, over state’s VI). raised This issue was not Amend. sexual encounter John trial, first in defen raised and indeed during Mary. his He cross-examination sup post-oral argument dant’s citation support three advanced reasons plemental authorities. previous of the contention encounter between and John was Supreme cites the recent The defendant First, argued, it relevant. he established proposi opinion Crawford Mary spoke police the fact that of wit tion that testimonial statements during period alleged when she same nesses from are admissible absent her, abusing yet that defendant was unavailable, and is only the declarant when complaint failed to against she make previ only defendant has had when the Secondly, him. he asserted it dem The ex opportunity ous to cross-examine. knowledge prior onstrated her is to overrule press effect of Crawford place “same exact acts took [sexual] Roberts, U.S. rationale of Ohio And, thirdly, he in this case.” maintained (1980) 65 L.Ed.2d 597 S.Ct. challenge that was admissible effec an unavailable witness’s tively credibility. if the a criminal defendant admissible “adequate ‘indicia of relia statement bears undermining than Rather these asser- ” —— at ——, 124 Crawford, bility.’ U.S. however, tions, admission John’s Roberts, at 448 U.S. (quoting S.Ct. arguably statements buttressed 2531). 66, 100 is satisfied Such a test S.Ct. Sergeant testimony them. Holsten’s “firmly root if falls within a the statement con- clearly demonstrated that there was a “particular hearsay exception” bears ed tinuing investigation supporting de- police Id. guarantees of trustworthiness.” ized opportu- claim that fendant’s nity to file a her father. complaint con Generally, this Court will admission of sexual relations with

John’s properly pre are questions that sider Mary supported contention defendant’s v. court below. See State sented in the had other sources she (R.I.1987). Burke, 725, 731 Un 522 A.2d Further, asserting knowledge. by however, circumstances, der certain consensual, his were statements relations implicating issues basic will review they Court Mary’s allegations that contradicted record, rights. These circumstances constitutional reviewing were forcible. After are: the admission of we are satisfied that

“First, crime, if complained type the error of must even it is the same than consist more harmless error. and irrelevant inadmissible.” State v. Second, 1206, the record must be sufficient to Gallagher, 654 A.2d Cardoza, permit 200, determination of the issue. (citing v. 465 A.2d State * * * Third, (R.I.1983)). counsel’s failure to raise The rationale poli behind this the issue at trial must be due to the fact issues, cy is to alleviate confusion of the upon that the issue is a novel rule based surprise, prejudice unfair to defen of law of which counsel could not reason Colvin, (citing dant. Id. v. State 425 A.2d ably have known at the time of trial.” (R.I.1981)). 508, 511 Evidence of other (R.I. Ramsey, State 844 A.2d admitted, however, may if crimes be 2004) Smith, (quoting State v. 766 A.2d “guilty tends to establish defendant’s (R.I.2001)). 913, 919 intent, motive, knowledge, design, plan, scheme, system, or the like” relative to the Because we conclude that the error was charged. (quoting Id. harmless, however, offense we need not address Lemon, (R.I.1985)). 497 A.2d issue within the context Crawford “The decision on whether evidence of other this case. permissible crimes is to a purpose relevant VII is left to the sound discretion of the trial Breen, justice.” State v. 767 A.2d Admission of a Letter Written (R.I.2001). If the trial finds that Defendant probative outweighs potential value Younger Sister prejudice, for unfair and chooses to admit argues The defendant that state’s evidence, specific cautionary instruc exhibit No. a handwritten letter from explain tion also must administered to youngest daughter, defendant to his purpose jury may for which the limited unduly prejudicial because the letter men Brown, consider it. second-degree tions an unrelated child (R.I.1993). charge. abuse The defendant asserts that this error not be cured could exhibit No. 7 was a handwritten State’s argues instruction. The defendant young- letter mailed from defendant to his 404(b) the reference violated Rule daughter advising est her: Evidence, Rhode Island Rules of which up you are summonsed to show “When crimes, precludes evidence of other in court for 2nd DEG. Child Abuse wrongs, prove or acts to a defendant’s just, charge, you probably ignore could character order to show that said it, they drop charges. up, not show crimes, wrongs or actions conformed to definitively I’ll You’ll have to check. that character. [Mary], Though I up show to talk to admission of evidence “[T]he anticipate they drop charges that will rests the sound discretion of the trial then, also, testify. with refusal a and will not be disturbed absent Dad” of that showing of an abuse discretion.” (R.I. Hazard, trial, 1111, objected v. At defense counsel State 2001) Motta, exhibit, asserting of this that (quoting 748 A.2d introduction Graff (R.I.2000)). rule, a to the “2nd DEG. Child general “As the reference Abuse,” of de- that or tends to indicate was admitted as evidence evidence shows The trial participated that the accused has a fendant’s bad character. trial, jury distinguish on found that the could not crime for which he or she is not abuse, testimony, only it has all such assault child As with between sexual give it you as fit to for objection. weight see and thus overruled defendant’s such not, however, child must argues purpose. defendant You appeal, On as testimony any weight evi- charges legally distinguishable are give abuse the child that the defen- tending prove from assault and thus dence disposition redacted charges propensity abuse should have been some or dant had jury. may it have confused is because the crimes with which he to commit words, you must charged here. In other was asserts that the exhibit The state just because defen- not conclude evi- “probative because was introduced to, testified engaged the conduct dant of the guilt consciousness of dence of the crimes for must have committed he charged.” The does crimes defendant he is here on trial.” which admissibility letter for contest rather, purpose; argues, this he An intimidate or dis attempt charge child should degree “2nd abuse” testifying directly suade a witness from have been redacted. to show conscious admissible relevant instance, prejudice no this there was State v. part. guilt ness of defendant’s from the introduction of the letter shown Burke, (citing A.2d charges We referring to of abuse. (R.I.1987)). Payano, A.2d 721 of jury acquitted note that the defendant could that this letter rea are satisfied We and sim second-degree sexual assault attempt sonably interpreted by as an ple charges youngest his involving assault persuade youngest daugh his the father Moreover, daughter. we conclude that him. drop charges against We ter char prove note not introduced to bad was of conclude that admission this therefore act, of prior acter or as evidence a bad but of was within the discretion prove rather to defendant’s consciousness justice. See, of guilt charged. of the crimes (R.I. e.g., Ricci VIII 1994). probative The value of the state Testimony Doctor McCue’s any undue outweighed danger ment prejudice defendant. next asserts that defendant Dr. hearsay testimony Bridget additionally jus- We note that the trial McCue, ob-gyn physician resident tice of a gave option defense counsel the Hospital, improper Infants Women & instruction; re- cautionary defense counsel Court under ly Superior admitted The court instructed fused it. nonetheless 803(4) purposes Rule as at the end of the case: diagnosis or treatment. medical trial, you heard “In the course day same September en- testimony that the here On defendant psy- first to the school spoke is not the gaged some conduct which & now Dr. McCue of Women Infants charges chologist, he is basis for for which First, Mary. thorough examined testimony Hospital on trial. That was offered taken, patient per you showing history purpose for a limited what tran- procedure, to document preparation hospital motive or intent or some visit, and then hospital acci- before spired or absence of mistake or knowledge Mary com- of exam was conducted. physical in connection with the conduct dent “pain Dr. of down there” contends to McCue plained which the State the defendant bottom,” referring to her in her “pain him. charges against is for the the basis trial, vaginal/rectal positing area. At the state the standard “[I]n as * ** admissibility asked Dr. of such statements Mary McCue whether “indi- determining merely the test is not happened to her what cate[d] acts or not part whether the statements are which that pain?” her caused her Defense Rather, history. of a case ‘admission or objected counsel to the admission of rejection hinge will on whether what has Mary’s hearsay declaration to Dr. McCue. patient been related mil assist or The state then conducted in limine voir helpful diagnosis in the or treatment McCue, dire of Dr. in which defense coun- Contreras, his ailments.’ v. testimony sel asserted that Dr. McCue’s of [523,] 534-35, [612,] R.I. A.2d statement to her should not [(R.I.1969)]. If such statements narrate exception be admitted unless “there’s an diagno- details not either connected with purposes as medical she was treat- [if] treatment, they sis or will be inadmissi- ing purposes.” her for medical The trial they ble unless fall within another hear- justice concluded that Dr. McCue’s subse- say exception. Id. quent Mary treatment with antibiotics as to causation en- prophylaxis against sexually transmit- “When statements fault, unlikely fixing ted foundation to ter the realm of it is disease was sufficient present hearsay patient physician allow Dr. McCue to testi- or the consid- mony diagnosis er them or treat- Mary’s description of what caused related 803(4) States, ment. pain, under the Rule medical Sullivan United exception. (D.C.App.1979). 159 n. 11 the circumstances where fault is an is- trial, At Dr. McCue read to the sue, do not hold statements of causation history Mary from the had taken from she reliability the same of truthfulness and exam, including perti- at the time of the (Emphasis are add- properly excluded.” part: nent ed.) Saturday, put penis “On he his in the “investigating The defendant asserts that front and Monday, put the back. he sexually the transmission of a transmitted penis in the front and the back. He designed assign disease is fault and is hurt put way me because he it all the purposes not for the of treatment.” in.” We first reiterate our standard of review additionally explained Doctor McCue admissibility discussed above that the of a history, point Mary at this the oral statement under diagnosis medical could happened not find words for what hearsay exception is within the sound dis- next, Dr. opined but McCue cretion of and shall describing “ejaculation.” clearly overturned unless erroneous.

The defendant that Dr. also note the similarities in circum- asserts McCue’s We testimony “merely assigned by explic- surrounding fault stances the statements action, itly describing a sexual and had made to Dr. McCue and those she made nothing psychologist. psy- to do with her antibiotic treatment the school As with the chologist, Mary Dr. sexually transmitted diseases.” de- did not seek out purposes diagno- for the precedent fendant asserts of this McCue medical Rather, testi- sis or treatment. she was precludes the admission of this accom- Pina, mony, panied by Molloy Det. Lori-Ann and cites to State (R.I.1983), provides per- Department which Warwick Police to Women & Hospital express for the part: purpose Infants tinent IX examination. Doctor McCue a forensic perform that she was asked to testified Evidence Custodial Chain (examination) assault, kit that she rape or physical physi- as a exam after described that argues next The defendant cal assault. cer justice improperly admitted the trial showing a without physical tain is, however, a vast difference be-

There custody, and thus the chain of continuous psy- a conversation with a school tween permitting erred in Jenni Superior Court physical in school office and a chologist Finch, from the a forensic scientist fer by hospital. examination a doctor in a Health, testify Department of there,” in Mary’s complaints “pain down hair performed pubic tests that she situation, “strong latter do evince a presence of semen. samples revealed that provides motivation to be truthful” 803(4). underpinning the rational of Rule that on A of the record indicates review Mary had There also was evidence samples speculum September complaint police made a similar to the rectal Mary’s vaginal taken from were taken to the hos- detective before she was part “rape-kit” of the examination areas as pital. McCue, samples by Dr. administered recently Clearly, the fact that pubic hairs were taken from multiple and anal times vaginal both sex by Nurse Laura body clothing and her in pertinent diagnosis of the cause Molloy Detective testified Tetrault.7 in pain pelvic of her area. On direct the hair Nurse Tetrault take she observed examination, testify not Dr. McCue did Mary’s pubic re- samples from and swab Mary had identity person about the of the for- samples and that those were gion, with, recently only sex to the fact that she of Health. Department warded had sexual intercourse.6 It is similar to a Forensic Scientist Jen- Rhode Island State situation in which a victim of a car accident Finch that she received the nifer testified by physician: is treated the fact that collection kit from sexual assault evidence injuries were suffered in a car accident is Hospital. Infants Mr. Menard of Women & pertinent diagnostic purposes, when trial, objected to the results At defendant “non-diagnostic” other as the facts such samples on these performed of the tests description color of the car or a a lack of foundation and insuffi- based on hand, may driver not be. the case at judge over- custody. chain of cient justice was reasonable for the trial to con- saying: objections, ruled to the doctor clude would he con- person is on the who “the burden potential cause of her about the source break that there’s been some tends aided Dr. pain, and that the statement the time a custody from the chain Moreover, Dr. diagnosis. McCue gets time it is collected until the sample did, fact, Mary by pre- McCue treat And, I’m in this case analyzed. satisfied thus conclude scribing antibiotics. We founded.” are not well grounds did not abuse reversible charges now hearsay testi- The defendant by admitting this discretion 804(3). insufficiency alleged error based on mony under Rule Nurse Tetrault identify state offered call defendant as 7. The 6. Doctor McCue did it as unnec- testify, refused pressed but the perpetrator until on cross-exami- essary. attorney. nation defendant's 1044 Manocchio, A custody

the chain of Nurse Tet- ation.” review of State v. between 931, (R.I.1985), 934-35 Department precedent rault of 496 A.2d and the Rhode Island defendant, cited reveals that this Court Health. only ability established that the to cross- again We reiterate that “the accuracy examine a witness about the admission of evidence rests in the sound memory impor his or her was of crucial justice discretion and will any not provide guidance tance. It did showing be disturbed absent a of an abuse jury instructions. See State v. Ma Hazard, of that A.2d at discretion.” 785 (R.I.1987) (On nocchio, 872, A.2d 874 523 252). (quoting Graff, 1120 748 A.2d at It is remand, importance the Court reaffirmed “showing well established that the of con ability to cross-examine a witness about custody only chain tinuous is relevant accuracy memory). of his or her evidence, weight not to its ad It is well established Cohen, 151, missibility.” 538 A.2d justice a charge given by trial need “[t]he (R.I.1988). evidence, physical 154 To admit ” only ‘adequately cover the law.’ State [] party only a must show the reasonable (R.I.2002) Hazard, 797 A.2d probability tampered that no one has with Krushnowski, (quoting State v. 773 A.2d A.2d Reyes, exhibit. See State v. (R.I.2001) curiam)). (per ‘“On (R.I.1996) curiam) (per (citing review, the instruc [this Court] examinefs] (R.I. Bracero, State v. 434 A.2d entirety tions in their to ascertain the 1981)); Cohen, 538 A.2d at 154. After jury ordinary a intelli manner which record, reviewing we conclude gent lay people would have understood establishing state satisfied its burden of ” * * Hazard, them *.’ 797 A.2d at 469 probability reasonable that no one tam 246). Krushnowski, (quoting 773 A.2d at pered with the evidence. The defendant justice’s grant trial refusal to a re “[A] any did not offer evidence to rebut quest instruction is not reversible showing. Accordingly, the evidence on the requested charge fairly if cov error custody in chain of this case was sufficient general charge.” ered in the admissibility. to establish Price, (quot ing Taylor Corp., v. Allis Chalmers X (R.I.1992) (mem.)). 108, 109 Requested Jury Defendant’s Instruction justice following in- The trial issued the The defendant next asserts that jury: struction to the by refusing trial to in erred capacity op- “You can consider the jury specifically struct the that: portunity any perceive witness had to ability “The of witness remember the matters the witness and understand accurately and to relate the events at the the witness claimed observed time question importance your is of crucial ability to they happened, the witness’ credibility.” of that assessment witness’ the wit- remember those matters and so, narrate them at trial. ability declined to do stat- ness’ may easy you task for ing that such an instruction would be a That regard to a witness in this case. comment on the evidence. The defendant But, testimony of you weigh must “impermissibly asserts that this refusal comes to each witness as witness protected Mary’s cognitive temporal you you le- and as listened to testimo- important limitations from valid and added.) ny.” (Emphasis gal jury’s instruction for the due consider- demon the record justice’s in- first note that the trial We conclude We properly pre did not defendant strates sufficient and we hold struction was stated appeal. for As serve this issue fairly cov- requested the instruction was before, object jury to a “failure to the given instruction. ered the instruc precludes review of the

instruction Pacheco, 763 A.2d at 979. on appeal.” tion XI Nevertheless, timely objection had if a the were to review made and we Rights been Due Process conclude substantively, we would issue argues that his The defendant sufficiently justice instructed that the trial process rights were violated because due charge. reiterate jury on We justice adequately did not instruct the trial justice a trial need charge given “[t]he gratifica jury on the element sexual Haz cover the law.” only adequately [] tion, prove the state faded to and because ard, Krushnow (quoting A.2d at 469 797 every of the first-and second-de element 243). ski, justice at The trial A.2d 773 beyond a rea gree sexual-assault counts jury directing the offered an instruction sonable doubt violation of United assault, the first-degree sexual that to find standard set forth Supreme States acted for jury must find that the defendant 358, 364, 90 Winship, in In re 397 U.S. Thus, gratification. sexual purpose (1970). 1068, L.Ed.2d S.Ct. 368 jury given conclude that the instruction we First, defendant contends that clearly erroneous.

justice properly did not instruct also contends The defendant gratification element of sexual by the state did not presented The defen- first-degree sexual assault. second- every of the first-or prove element argues dant that the instruction was said a rea- beyond counts degree sexual assault brevity “in of the context such and outside doubt, constitutional violating the sonable degree of his instructions as to first sexual Winship, in In re requirements set forth The assault that was ineffectual.” de- be vacated and remanded and thus should trial complains fendant further Winship, In In re 397 U.S. for new trial. anything about explained “never 1068, the United States 90 S.Ct. jury or what he gratification sexual to the Due Process held that the Supreme Court by ‘proffer a certain intent in the meant Amendment of the Fourteenth Clause ” mind of the defendant.’ denies the United States Constitution accused of deprive power state trial instructed: every ele- liberty proves unless the state you regard “I tell that with to the might the crime necessary to constitute ment charge three counts that sexual as- first doubt. charged beyond reasonable degree, first each case sault defen which element It is unclear proved has you must find State therefore, assertion, to in this the fel- dant refers beyond a reasonable doubt that gener challenge it as a intercourse, interpret sexual we latio or the whether for his first- the evidence anal, sufficiency al purpose assault second-degree sexual degree and gratification or sexual arousal or sexual challenge to the suffi words, necessary “[A] convictions. In other it is assault. framed properly ciency of the evidence in the mind of proffer a certain intent justice’s trial challenge to the to in terms of a explained that the defendant as I’ve judg- motions for added.) denial of the defendant’s you.” (Emphasis curiam) (cit- trial.” A.2d acquittal (per ment of and new State v. (R.I.1993) (cit Mercado, Salvatore, ing 635 A.2d 763 A.2d Collazo, 1011- ing (R.I.2001)). (R.I.1982)). Because defendant did of the evi- independent After an review acquittal a judgment

move for on the case, justice weighed dence in this charges, aforementioned this Court must credibility and other witnesses restrict its review to the motion for new and determined that his material evidence Portes, trial. See State juror verdict as a was the same as (R.I.2004). case, by jury. In this the

reached the a Mary central issue was whether was XII judge The trial consid- credible witness. Trial Motion for New acknowledged ered inconsistencies and the of impairment that suffered from an Lastly, defendant asserts that the cognitive her intellectual abilities and justice by deny trial his discretion abused trial, a new in court ing defendant’s motion for and communicative limitations. The light credible, of substantial inconsistencies accepted Mary’s testimony as testimony. in her saying part: in credibility where of “This is a case the a motion for a ruling on witness, trial, complaining the the justice principal “the acts thir new trial as a juror witness, remotely as- independent teenth and exercises cannot even be credibility of judgment transcript witnesses of the from the bare sessed weight and on of the evidence.” State she uttered. One had intelligible words (R.I.2001) Rieger, A.2d 1001-02 watching listening here and Banach, (quoting State v. [Mary] telling that realize (R.I.1994)). justice The trial must truth.” light of charge consider justice added: trial jury, his or determining her own evidence, weighing of the opinion story credibili a horror “[Mary] described choosing conflicting ty among and testimo of up years of at the hands growing her must she ny, and determine whether he or accepts father. Since would have reached a different result than and can everything she did truthful Id. jury. that reached “Provided find she said readily further that what trial an justice has ‘articulated each proves guilt defendant motion,’ adequate denying for rationale found five counts on which he was justice’s ruling trial on a new trial motion doubt, there guilty beyond a reasonable great weight.” Id. at 1002 is entitled absolutely retry no reason Bleau, A.2d (quoting State v. case.” Dame, citing justice that the trial did We conclude (R.I.1989)). justice’s “A trial evi- any misconceive material overlook or ruling on a motion will not be new-trial wrong clearly dence and was not otherwise overturned unless the in his We assessment the evidence. or clearly wrong unless he she over judgment affirm the therefore material rele looked or misconceived motion denying defendant’s to a critical vant evidence that related Bolduc, a new trial. issue the case.” State in the event interest pecuniary [John’s] Conclusion as a result of pregnant became herein, affirm stated we For the reasons encounter.” their sexual Superior of conviction of the judgment Court, majority papers company return the I part to which we Where “it is not clear this case. is when indicates four- that a reasonable from the record Justice, FLANDERS, concurring. an investigation for teen-year-old, under assault, mindful would be alleged sexual majori- disagree with the respectfully I have had a Mary might possibility ty’s analysis of whether John’s to transform disability sufficient mental sexual con- about his consensual into a sexual as- act of consensual sex witness, Mary, complaining tact with I do not believe Respectfully, sault.” a statement was inadmissible as part is knowledge on the declarant’s such meaning of Rule John’s interest within the admitting the statement prerequisite to 804(b)(3) of the Rhode Island Rules 804(b)(3). question under Rule alleged my opinion, In John’s Evidence. Sergeant oral admission to Kerri Holsten a was assessing In whether statement a men- having of had consensual sex with interest, truly against the declarant’s sixteen-year old tally incapacitated objective an test to employed courts have such definitely against his interest because 804(b)(3) text of Rule the determine —as subject a “so far tended to the statement in person “a reasonable requires —whether liability, to or criminal declarant civil would not have position the declarant’s * * * person that a in the de- reasonable unless the declarant made the statement the position clarant’s would not have made added.) (Emphasis it to true.” believed be statement unless the declarant believed Commonwealth, v. 821 S.W.2d Taylor See 804(b)(3). to true.” R.I. R. Evid. Kiewert, 72, (Ky.1990); v. 1031, (1992); 338, City N.H. advisory As the committee’s note to Combs, 804(b)(3) indicates, App.3d 94 Ohio Dayton v. “[t]o Rule be admissi- of (1993). “usual ble, The actually must have a 640 N.E.2d statement determining wheth- pe- employed for declarant’s standard” potential damaging the against the declar- legal or er the statement was cuniary, proprietary, penal, inter- added.) objective on an “rea- majority ant’s interest focuses (Emphasis ests.” standard, than a rather sonable-person” to acknowledges that “the sexual activities the actual state of mind subjective focus on admitted [John] which or she made the statements, consensual, ar- when he even if would of declarant 2 McCormick on Evidence subject liability for statement. guably him sexual 319(e) (John Strong, 5th § at 329 W. mentally a disabled indi- penetration with ed.1999) 11-37-2, logic, at- (although § strictest “[i]n as well vidual under [G.L.1956] * * * actual focus on the tention should sodomy, then-existing under the ver- as for in the declarant” major- produced of mind § 11-10-1.” The state sion of [G.L.1956] objective that, standard is an prevailing trial ity concedes “as the also test).8 Kiewert, In noted, contrary “reasonable-person” were the statements against ("Hearsay declaration inter- employed under the Although a sub- 8. some courts have declar- exception unless the determining against- is unreliable jective analysis est for making the state- aware at the time of out-of-court ant is nature of a declarant’s interest interest.”); People interest, against City his ment that it is see Roberts Cir.1985) (6th 561 N.Y.S.2d Morgan, 76 N.Y.2d Troy, 773 F.2d trial Hampshire Supreme gave New Court ex- John his statement a police police connection with employing objec- plained reason for an investigation allegations into tive standard: incapacitated mentally and therefore 804(b)(3) clearly “Rule sets forth unable to consent sexual intercourse. objective determining for standard Sergeant Holsten Police Warwick nature of the against-interest statement. Department * * * testified at that after ini- adopted This standard was for tially that he denying Mary, even knew reasons; practical because the initial eventually having John admitted sexual requirement applica threshold for the with her. admission intercourse This oc- tion of the rule that the declarant be Sgt. questioning curred while Holsten was unavailable, rarely there will be evidence John, station, presence police at the thought.” of what the declarant Kie Sergeant his father. Holsten testified wert, (Emphasis 605 A.2d at 1034-35. po- then that John’s father terminated added.) son, legal citing lice interview Thus, 804(b)(3) require Rule does not advice that he obtained as reason determination subjective whether context, so. doing reasonable was, it, majority puts declarant as the teenage boy position in John’s would know possibility Mary might “mindful of the front admitting to such actions—in disability have had mental sufficient police, to mention his father —could an act consensual sex into a transform subject only penal him criminal assault.” to all other liability, but also sorts of ad- verse not the least of consequences, which standard, objective I Employing this be- liability, adjudica- a delinquency is civil fourteen-year in lieve that a reasonable old tion,9 potential the for him and and his position not have admitted to John’s would family seeking money claims dam- to face vaginal attempted anal engaging on ages alleged for such misconduct his mentally impaired intercourse with a six- part. teen-year old—even if such behavior could qualify as “consensual”—unless event,

somehow any In under our familiar raise- believed such a was true. To rule, argu- he statement the the or-waive defense waived § 11- constitute crime under G.L.1956 was ment that John’s statement 37-2(1), engaged the accused must have against interest the his because penetration person with another allegedly failed to that a reasonable show and he or she must or fourteen-year position “know[] ha[ve] old John’s would mentally know victim is reason to not have known or have reason know disabled, disabled, mentally §as mentally physi- or 11- incapacitated, 37-2(1) object- argued requires. Defense counsel cally helpless.” The state to the (1990) (declarant person” language of Rule 562 487 must "reasonable N.E.2d 804(b)(3) been he or she the have aware when made Rules of of the Rhode Island Evi- contrary that it dence, statement his or her reasoned decisions are those the better Commonwealth, interest); Lilly penal 255 objective that use the test. (1998) ("the 533 Va. S.E.2d admissibility upon statement’s is based applied Rhode 9. This Court has Island subjective belief declarant of the that he hearsay governing excep Rules of Evidence making against penal his admissions inter- juvenile delinquency proceedings. tions to est”) Lilly Virginia, grounds, on rev’d other G., (R.I. Andrey See In re 116, 140, U.S. 119 S.Ct. 2002) curiam). (per that, (1999), given I conclude L.Ed.2d interest. penal or financial the declarant’s to the admission of John’s oral state- ed broader, embracing Rather, also the rule is only that John asserted ment on basis subject the declar- merely consensual, statements the sexual intercourse was delinquency liability, such as a ant to civil was not therefore his statement against are otherwise adjudication, or that coun- against penal his interest. Defense or proprietary, pecuniary, the declarant’s objected admissibility sel never Indeed, ex- interests. legal ground on the John’s oral statement the declar- ception for statements that John prosecutor failed to establish range a wide ant’s interest “reaches possibility was “mindful of the immediately directly and statements that disability had a mental suffi- might have pecuniary proprie- or qualify or impair cient to transform an act of consensual sex including speaker,” tary interest Consequently, into a sexual assault.” subject speak- that tend to statements preserve failed to this conten- defendant liability, employment, to loss of er to tort appeal at trial tion as basis reverse employment opportunities. or to loss of justice’s decision to admit Laird Kirk- Christopher B. Mueller & C. testimony into evidence. Evidence, § 497 at 824-25 patrick, Federal addition, advisory In committee’s (2d ed.1994). short, I believe 804(b)(3) (3): (“Exception note to Rule of the rule when it takes too-narrow a view Interest”) indicates, Against Statements fourteen-year old that a reasonable insists admissible, the statement must “[t]o that the state- have had to be aware would actually potential damaging have a subject pe- him to question ment in could penal, pecuniary, proprietary, declarant’s of financial liability nal or to some sort added.) legal (Emphasis interests.” narrowly responsibility. The rule is so Thus, necessary satisfy all that is errs, my opinion, and the Court drawn aspect of the rule is that the declarant’s effectively by interpre- redrafts it when potential damage have solely penal on the potential tation to focus interests, or her including declarant’s of the admis- consequences and financial avoiding liability. in potential interest civil fourteen- on a reasonable sion and whether circumstances, I Under these would hold year have aware of such old would been fourteen-year that a ad- reasonable old’s consequences. in inter- engaged mission that he sexual event, that John’s any I would hold mentally a course with disabled classmate damaging to his potentially was statement certainly potential damaging for “the avoiding potential criminal and interests in pecuniary, proprietary, pe- the declarant’s mentally having sex with a liability civil interests,” nal, legal regardless or it lying and then about disabled classmate any knowledge whether the record reflects constitute a crime under police. to the To mental part on his about the classmate’s 11-37-2(1), § circumstances must be disability. in accused sexual engaged such that Also, I construes Rule believe the Court accuser and -with his or her penetration 804(b)(3) narrowly it insists that too when or has reason to know that he “knows fourteen-year incapacitated, old have men- mentally a reasonable would is the victim disabled, in physically helpless.” the statement or tally had to be aware subject person lacks the penal could him to liabili- This is because such question intercourse. Be- ability to consent to the ty responsibili- to some sort of financial 804(b)(3) found potentially be require cause John could ty. Rule does Mary had even if contrary guilty of this offense question in the statement 2001); Harding, inter- engage in sexual “consented” to curiam). Thus, in this course, engage (per that he did his admission po- not overturn such decision Mary described had should the sex acts justice’s in avoid- trial decision compromise appeal his interest unless the tential liability for was and criminal or exclude such evidence ing potential civil to admit Moreover, Verrecchia, regard- A.2d at clearly in acts. engaging such erroneous. say mental pressed I am hard less of John’s awareness 390. observed, of such evidence— disability, justice’s as the trial trial admission subject contrary pecuni- undeniably to John’s tended to statement was which Mary became a minimum— liability in the event that to civil ary interest declarant if, erroneous, ma of the sexual encoun- even as the pregnant clearly result concludes, no clear evi jority there was ter. per that a reasonable dence the record inter- Lastly, it was also John’s be aware that position would son John’s and civil avoiding potential criminal est mentally disabled. writ- contradictory oral and liability give what police to the ten statements justice prop- that the trial I also believe Mary. Martha Stewart happened with testimony of Holsten’s erly Sgt. admitted long in a list of defendants only the latest cu- pursuant to the oral statement John’s alone convict- accused—let who have been The cura- rative-admissibility doctrine. obstructing justice by lying ed—of doctrine, tive-admissibility under certain investigating their who were authorities circumstances, party that “if one provides reasons, I For these alleged misconduct. fact that is received an inadmissible offers * * * statement ad- hold that John’s oral would may offer afterwards opponent Mary— intercourse with mitting only claim to admission facts whose similar only previous that contradicted not one counter- negative, explain, or they is that knowing Mary, but verbal denial of even fact.” prior inadmissible balance (“we were also his later written § 15 at Evidence Henry Wigmore, John po- nothing happened”) kissing and 1983). (rev. Here, —was Tillers ed. Peter penal to his civil tentially damaging testi- counsel who first elicited was defense interests; fourteen-year that a reasonable Mary on his cross-examination mony from not have made position would old John’s allegations previ- concerning her of her true; and unless it was an admission such by John. What ous sexual abuse therefore, that, did not cross-examination, during not hear did ruled error when he commit reversible orally to however, admitted John Sgt. to Holsten that John’s oral statement allega- Mary’s details of Sgt. Holstén the 804(b)(3). under Rule was admissible in fact had namely, that he had tions: her. Defense intercourse with Moreover, acknowledges, as the Court argument op- in his suggested, a hear counsel into evidence of such the admission to the state’s motion limine position to exception trial under an say at statement evi- offering from prevent the defense lay within the sound hearsay rule dence, directly on See, the evidence bore e.g., justice. of the trial discretion (R.I. introduction 377, credibility.10 The Verrecchia, 390 effectively complaining wit- challenge to against motion in arguing the state’s 10. In allegations credibility were limine, even if those ness’ believe "[W]e defense counsel noted: again, And proven withdrawn.” prior false or complaining witness' that evidence of statement, sum- closing defense counsel may in his be admitted allegations of sexual assault of the Indeed, permits rule use “the better suggested this evidence if admissibility even alle- of curative type principle the same of sexual-abuse made first her father made gations objection that she made an has been (John), person one other against at least instance.” Id. falsely. espe- and that she did so This curative-admissibility Thus, doctrine when, here, cially as was able true admitting ground for can be an alternate Mary’s difficulty relating the

to observe would be hearsay that otherwise evidence inci- sequence alleged timing and exception an under inadmissible by her father. dents abuse Armentrout, 8 v. hearsay rule. State Burke, 621, In v. 529 A.2d State banc). (Mo.1999) (en 99, In S.W.3d (R.I.1987), the doc recognized this Court Armentrout, defendant, who was Burke, admissibility. trine of curative a murder —the motive charged with elicited, on defense counsel cross-examina robbery hearsay testi- which was —elicited witness, a statement that a tion of a state’s during of a state’s mony cross-examination and threatened person approached third testified Id. The state’s witness witness. redirect, at the witness. Id. 630. On the deceased on cross-examination about prosecution questioned this witness voluntarily the defendant her gave victim contents of this conversation. Id. This employed court checkbook. Id. The principle of Court held that “[u]nder doctrine, allowing curative-admissibility * * * admissibility intro prior curative testimony of a dif- to admit the the state for a cer duction of inadmissible evidence that the de- who testified ferent witness permits tain of facts class she was afraid that ceased victim said answering in to allow the introduction of if did not kill her she defendant would pertaining admissible evidence same illegal drug purchases. continue to fund his at matter.” Id. 631. The Court went * * * held that 111. The court Id. note, party one seeks the “[w]hen injected an issue a defendant has “where admission of inadmissible evidence without case, allowed to may the state into the objection by opponent, the allowance of inadmissible evidence admit otherwise answering evidence is within the sound negative explain or counteract order justice.” also discretion of the Id. See issue defendant raised inference (R.I. Brash, v. State injects.” (quoting Id. at 1986) (defense objection did not waive (Mo.1995) (en Weaver, 912 S.W.2d hearsay simply because defense Martin, banc)). 241 Kan. also State See counsel elicited additional answers (1987) (admission 582-83 740 P.2d from same witnesses on cross-examinat po- out-of-court of declarant’s ion).11 may apply A court curative admis light “in of [de- admissible upheld lice as when, here, however, there sibility, even cross- issue on opening up the fendant] introduction objection to the initial examination”). § 15 at 731. Wigmore, of the evidence. questions the re- "open[] the door” between John's the inconsistencies marized statement, serology statement blood John's oral test on crime-scene written sults of Mary's testimony about the Sgt. and only Holsten initially inquired defense counsel when incident, testimony [Mary's] observing "[h]er blood to the police officers sent the whether make sense ”[i]t reliable” and doesn’t is not however, held, testing. This FBI for happen.” didn’t because it allowing hear- justice’s error in that the trial Id. say evidence was harmless. 273, Mallett,

11. But see (R.I.1991) holding defendant did not that Johnson, against therefore her ac- Kan. 905 tions John —and In State v. (1995) P.2d 99-100 the court held that father —were untrue. cusations testimony when defense counsel elicited admission of John’s Absent curative implied from a that the wit- Holsten, witness the court Sgt. oral statement ness, defendant, than the was an rather admitted the cross-exami- should have crime, the state was accomplice to the subject on this testimony nation otherwise entitled to admit into evidence and misleading incomplete because of the hearsay to rebut defense inadmissible in impression it have created would innuendo. On cross-examination counsel’s jurors minds of the about the nature witness, of a state’s defense counsel asked question. incident in of phone whether there were “records analysis I also concur Court’s third, calls” the witness and a between right his the defendant waived in crime. person implicated unavailable claim here be- raise a Sixth Amendment also asked Id. at 99. Defense counsel this issue at trial. I cause he did not raise a note addressed to the whether there was that, in if the trial erred agree even person, witness from the same third warn- I do not admitting testimony ing police. not to talk to Id. John’s the witness —and harm- acknowledged that defense an error was The court believe he did—-such knew that the note and the tele- counsel all the Court recites less for the reasons implicate the phone Arsdall, conversations did not v. Van opinion. its See Delaware crimes, sought but to use witness 673, 684, 106 S.Ct. 475 U.S. “change the focus of the their existence (1986) “the con- (holding L.Ed.2d witness, imply and evidence” stitutionally improper denial of defen- defendant, co-participant a witness opportunity impeach dant’s Id. at 100. The Kansas the crime. bias, like other Confrontation Clause * * * held that: Supreme Court errors, subject to harmless-error the defendant addressed the tele- “Once analysis”). that the evidence Given phone and the note this conversation was not alleged John’s oral statement cross-examination, during manner event, the defendant any harmful to him in [the was entitled rehabilitate excep- satisfy aspect this does not introducing details of the by witness] rule. tion to our raise-or-waive The trial court conversation and note. Moreover, by bringing up previous in permitting [the witness] was correct on his cross-examina- incident with John testify to the contents of the note * * introducing John’s tion of conversation *.” telephone and his on his cross- written Id. Holsten, defendant Sgt. examination of Johnson, counsel allowing As in defense right to confront waived his constitutional only portion here to admit into evidence alleged oral admis- John about the latter’s Mary’s information about of the relevant in consensual sex with engaging sion to encounter with John would previous sexual his or her Mary. A defendant can waive right to a fair trial.” “prejudice the State’s including the rights, Sixth constitutional such, under the curative- Id. at 99. As right to confrontation. Unit- Amendment doctrine, admissibility I would hold (7th 243 F.3d Cooper, ed States v. allowing not err in did Cir.2001); State, 772 N.E.2d Norton v. testimony Sgt. Holsten’s present state to (defendant (Ind.Ct.App.2002) to rebut oral admission about John’s and cross- may right to confront accusa- waive suggestion defendant’s Johnson, Kansas, in voluntarily preme Court of both examine witnesses error) cases). 100, “[b]y opening through (collecting See P.2d at held 574, hearsay, Borges, also v. to otherwise inadmissible door (R.I.1986) (an her accused can waive his or Amendment the Sixth defendant waives right present at his or constitutional right to confrontation.” such an is volun- her trial when absence Johnson, Here, in 1258, Feng, 421 A.2d tary); State v. Holsten’s testimo- Sgt. admitted properly (a pleads defendant who n. 10 to rebut oral statement ny about John’s a criminal contendere to guilty or nolo by defendant’s counsel suggestion waives, constitutional charge among other allegedly false accusa- Mary made other rights, right Amendment to con- Sixth kind of of the same against tions John him). against front the witnesses Courts accused her father of sexual acts that she frequently held that a defendant have By questioning committing. rights his or her constitutional waived incidents with cross-examination about the respect prosecutor’s to a use of inadmissi- John, opened counsel the door defense it prosecutor ble evidence used when oral state- otherwise inadmissible John’s initial intro- only to rebut defendant’s in he admitted Sgt. ment to Holsten which similarly duction of evidence. inadmissible in In committing question. the sexual acts Steele, 504, 504, States v. 610 F.2d United addition, counsel introduced into defense Cir.1979) (8th (any error made in ad- hearsay state- written evidence John’s mitting gave statements defendant without having any he denied ment—one which warnings Miranda is reversible when By Mary. cross- sexual intercourse with ‘opened “defendant the door’ and ‘invited examining Mary allegations about her ”); People George, error’ v. 49 Ill.2d attacking purpose John —for the (1971) (defendant 274 N.E.2d cannot credibility by introducing John’s —and complain prosecution’s at references during the de- written property allegedly pursuant trial to seized Holsten, Sgt. fense’s cross-examination of to an invalid search warrant because effectively defendant waived his Sixth was defense counsel that first elicited tes con- right Amendment to confront John timony property during about the cross- Sgt. Holsten cerning his oral admission witnesses). prosecution examination of engaging this conduct. States, See also v. United 347 U.S. Walder Moreover, Supreme the United States (1954) 62, 64-65, 74 S.Ct. 98 L.Ed. 503 opinion in Court’s recent (when perjures defendant himself about Crawford — U.S. —, 124 Washington, S.Ct. in drugs, government his involvement can (2004) inapplicable L.Ed.2d 177 illegally prop introduce evidence of seized Crawford, the Court did this situation. erty solely impeach defendant’s credibil about whether the express opinion Moreover, ity). when defense counsel has that oc violation Confrontation Clause entering tactical legitimate, reason error. in that case was harmless curred evidence, hearsay statements into and the Additionally, the decision Id. at 1359 n. 1. does not dissent from that deci defendant this case be does not affect sion, the defendant has his or her waived Crawford did not the defendant cause right Amendment to confrontation. Sixth Crawford of hear door to the introduction 418; open the Campbell Cooper, 243 F.3d — his consti No.2002-KA-01448-COA, thereby waive State, say evidence So.2d confront the declarant —, right *4 tutional (Miss.Ct.App. 885691 at WL 2004). hearsay. April notably, Most the Su- such 1054 testimony contrary holding

A would allow defense this should not have admit- been selectively jury by counsel to mislead the However, I depart from the ted. where revealing only poten- those details that are in majority is its conclusion that the admis- concerning tially helpful to the defense testimony of harmless sion Tillotson’s was incidents, the previous leaving such while error. in evi- the dark about other material previously This Court has set forth the concerning really dence what happened. determining utilized in factors Thus, previous having chosen raise this whether error is harmless. Those factors of

incident in his cross-examination degree importance the of include “relative hearsay and to John’s introduce written testimony prosecu of the witness Sgt. of statement on his cross-examination case, Holsten, testimony was I waived tion’s ‘whether conclude defendant cumulative, right alleged John his or presence to confront absence of evi engaged Holsten Sgt. admission to that he corroborating contradicting dence in with consensual intercourse testimony of the witness on material Mary. of cross-examination oth points, extent * * * permitted, and the overall erwise Although did not base ” strength of case.’ State prosecution’s hearsay this oral on the the admission of (R.I. considerations, Bustamante, A.2d ap- on v. above-referenced 2000) Texter, peal, justice’s we can affirm the trial evi- (quoting State dentiary than the ruling grounds (R.I.1991)). other viewing After Tillot- actually upon ones relied to admit this of the testimony through prism son’s Froais, testimony. See factors, it is clear that Tillot- Bustamante cases). 735, 738 (collecting witness, in especially an important son was case, compe where the the context reasons, For I in the deci- these concur sub tency of the witness was complaining of the to affirm the defendant’s sion conviction, I although, respects, ject judicial do and where some determination so for reasons from those relied different com Mary, both sides conceded by majority. upon witness, developmentally dis plaining surprise pros It no abled. seems FLAHERTY, Justice, dissenting. ecution Tillotson as a witness offered holding I respectfully dissent from the testimony. advance of This alone First, grounds. this case on two testimony description undercuts her respect testimony Mary-Ellen to the as “cumulative.”12 Tillotson, majority- that agree I with the A fair in this case reading of the record regarding matters relat- testimony testimony con- also reveals that Tillotson’s by Mary ed to her evidence substantially strength to the tributed subject exception not set forth case. I cannot prosecution’s therefore 803(4) Rhode Rules of Rule Island tes- agree that the admission Tillotson’s Evidence, Pur- entitled “Statements for a rea- timony beyond was harmless error poses Diagnosis Medical or Treatment.” Gomes, doubt. subject sonable See As hearsay, evidence (R.I.2001). I majority Consequently, that A.2d exception, agree I with the existing (esp. that evidence 12. evidence is as: "Addi- lished Cumulative defined support).” does need the same as exist- which further tional evidence of character ed.1999). (7th Dictionary ing supports Law and that a fact estab- Black's grounds.13 testimony jected on Amendment that admission of her Sixth believe the af- the statement trial court admitted The reversible error. trustworthy. Id. at 1358. finding it ter Similarly, allowing I also hold that would contended that its Crawford appeal, On oral Sergeant testify Holsten to about the him of his Sixth deprived admission concern gave that John to her statement to confront and cross- right Amendment contact with ing the nature of his sexual against him. the examine witnesses I agree error. with was reversible recollec majority Sgt. the Holsten’s conviction, the the United vacating In tion of oral statement was John’s Supreme Court noted States subject exception and not set forth require- met all of the wife’s statement 804(b)(3) in Rule of the Rhode Island in the rules reliability for set forth ments against Rules of Evidence as a statement However, the Court held evidence. However, interest. to then conclude rules there is a clash between those when testimony the officer’s was harmless flies to con- right and the Amendment Sixth holding of directly in the face of the recent frontation, safeguards the constitutional Supreme States United prevail. must — Washington, case of v. U.S. Crawford case, argument In instant —, 124 S.Ct. 158 L.Ed.2d far weak- of John’s statement is admission (2004). Crawford, er than Crawford. stabbing The case involved a Crawford concluded Supreme Court United States State, in Washington in which the defen require- met the that the wife’s statement given dant and his wife were Miranda Here, ments of the rules evidence. warnings questioned their in hand, majority specifically the other volvement, any, Crawford, if in the crime. challenged statement concludes — at —, at Dur U.S. S.Ct. 1357. 804(b)(3). under Rule pass does not muster ing interrogation, defendant’s wife Nevertheless, holds that the Court gave a impheating statement her husband. admitted. statement should be Thereafter, assault charged he was majority points out that: The trial, At attempted murder. the wife however, “John, at the time testify, was called to but she invoked her was neither nor at the testify. that he made the statements privilege marital and declined to defen- against time the trial a witness point, prosecution At that offered her an inci- His statements concerned into evidence as a statement dant. interest, totally allegations unrelated to the against penal pursuant dent 804(b)(3) never in- against defendant and were Washington Rule Rules of — to be used as evidence Crawford, Evidence. U.S. tended — - —, the accused herein.” at 1357-58. Crawford ob- S.Ct. harmless, it was suffi Although, by majority, defense error was more than

13. as noted ciently and it was not challenge addressed in record counsel did not the admission it constituted "a novel rule Sgt. testimony Amendment raised because Holsten’s on Sixth reasonably have "post-oral counsel could not grounds of his law that until the submission requisite The argument supplemental at the time of trial.” Id. citation to authori- known ties[,]” provided by rights law was constitutional novel rule of I believe that this Crawford — —, Washington, U.S. 124 S.Ct. squarely exception to the issue falls within the (2004), a decision that was 158 L.Ed.2d 177 raise or waive rule because it satisfies Portes, in the conclusion of the trial three-part issued after test reiterated in State (R.I.2004). challenged matter. instant However, after a defendant has been “afforded the it does not seem to me that this is relevant is particularly relevant. What to conduct sufficient cross-ex- opportunity into evidence that the statements did come the applicable amination under rules of objection and that the over the defendant’s satisfy evidence to the [Sixth Amendment] ability to cross-examine defendant had no guarantees” constitutional to confront and right to confront and cross- John. The cross-examine adverse witnesses. State v. against criminal defen- examine witnesses (R.I.2001). Dorsey, 783 A.2d that it trouble- dants is so fundamental is Here, no given opportunity defendant was harm- to determine its absence to be some to cross-examine John on the whatsoever less error. by Sgt. to him Hol- statements attributed challenges, In other Sixth Amendment sten. that a harmless this Court has declared agree majority I While See, analysis inappropriate. e.g., error is interjected the incident with defendant (R.I. Torres, 155, 162 State v. 844 A.2d trial, it is not the incident John into 2004) of the Sixth (stating “violations question that is in here but the are not public-trial provision Amendment’s testimony by Sgt. offered Holsten. I can- analysis”); subject to a ‘harmless error’ this as harmless error and accept Thornton, 1016, 1057 ground would reverse on that as well. (R.I.2002) (observing that “harmless-error

analysis apply does not to Sixth Amend violations”). right-to-counsel-clause

ment questionable light Crawford, is analysis ap is

whether a harmless error Even if

propriate the first instance. this Court has determined

appropriate, analysis implicated only

that such an

Case Details

Case Name: State v. Lynch

Court Name: Supreme Court of Rhode Island

Date Published: Aug 12, 2004

Citation: 854 A.2d 1022

Docket Number: 1999-327-C.A.

Court Abbreviation: R.I.