Lead Opinion
OPINION
for the Court.
This case came before the Supreme Court on February 4, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. The defendant, Raymond A. Peltier (defendant or Peltier), appeals from a judgment of conviction after a jury trial of one count of simple domestic assault. The trial justice subsequently denied the defendant’s motion for a new trial and sentenced Pel-tier to one year’s probation. Before this Court, the defendant argues that the trial justice erred when he allowed into evidence the fact that Peltier resisted arrest in this case, a complaint to which the defendant had entered a plea of nolo conten-dere immediately before the start of trial. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time. We affirm the judgment of conviction entered by the Superior Court..
Facts and Travel
A criminal complaint was filed against Peltier on September 19, 2012. After a bench trial in. District Court, defendant was found guilty of one count of simple domestic assault and one count of resisting arrest. The defendant appealed these convictions to the Superior Court and exercised his right to a jury trial.
Prior to the commencement of the jury trial in Superior Court, Peltier entered a plea of nolo contendere to the complaint of resisting arrest. The trial justice continued the matter for sentencing after accepting the plea. During the course of the prosecutor’s opening statements, defense counsel objected and moved for a mistrial when the prosecutor referenced the resisting arrest. The defense counsel contended that this was evidence of other crimes, wrongs or acts by defendant that was irrelevant and inadmissible in accordance with Rule 404(b) of the Rhode Island Rules of Evidence. The trial justice overruled defense counsel’s objection and denied his motion for a mistrial. The record of this case discloses that defense counsel was notified of the state’s intention to introduce evidence that Peltier resisted arrest before defendant entered a plea of nolo contendere.
The state first called the complaining witness, Kelly Thurber (Thurber), to testify. Thurber recounted that she had known Peltier for almost twenty years and that he is her daughter’s father. Thurber testified that Peltier typically cared for
The second, and final, witness was Officer Kennedy. Officer Kennedy testified that at 8:16 a.m. on September 19, 2012, he was dispatched to defendant’s apartment for a domestic disturbance. Upon arriving at the scene, Officer Kennedy encountered a visibly upset Thurber standing in the driveway. Officer Kennedy called for backup when he learned that the child was inside with Peltier. Moments later three other officers arrived. Officer Kennedy testified that he made contact with defendant and told him to “calm down because he was pacing throughout inside the house.” Defense counsel interposed an objection on the same grounds raised during the state’s opening statement — that the testimony regarding the facts surrounding the charge of resisting arrest was inadmissible under Rule 404(b). The objection was overruled by the trial justice. Thereafter, Officer Kennedy testified that Peltier was not listening to the officers’ instructions and was breathing and sweating heavily. Peltier was then advised that he was being placed under arrest for domestic simple assault and domestic disorderly conduct. Officer Kennedy instructed Peltier to place his hands behind his back, but Peltier did not comply. As the officers began to place Peltier in handcuffs, he actively resisted and tried to pull the officers to the ground. Peltier continued his resistance as the officers walked him down the stairs, and at one point he pulled all four officers against an adjoining building — causing one officer to fall down.
Throughout Officer Kennedy’s testimony, defense counsel continuously objected to the line of questioning detailing the circumstances of Peltier’s arrest, and he eventually moved to pass the case. After hearing argument, outside the presence of the jury, the trial justice denied defense counsel’s motion, but did grant him a continuing objection to that line of questioning. Additionally, after Officer Kennedy concluded testifying, the trial justice gave the following instruction to the jury:
“[T]o the extent that you’ve heard testimony that on the morning in question relating to Mr. Peltier’s, the defendant’s, alleged misconduct during the attempt by the West Warwick Police to investigate the complaint by Miss Thurber and to effectuate an arrest, that conduct, of course, goes beyond the charge for which Mr. Peltier is on trial here, which is, of course, simple assault, domestic in nature. I’m instructing you that that evidence, the evidence of the alleged*153 misconduct during the investigation and effectuating of the arrest should be considered by you only to the extent that it may bear on the defendant, Mr. Pel-tier’sf,] state of mind at the time of the offense to which he’s on trial and not for any other purpose. It is not admitted for purposes of proving the kind of person that Mr. Peltier is or bearing on his character.”
The state rested, and the defense opted not to present any witnesses. During closing arguments, attorneys for both the state and defendant referenced, the fact that Peltier had resisted arrest.
On July 22, 2013, defendant’s motion for a new trial was denied by the trial justice. Defense counsel indicated that one of the bases of the motion was the fact that the circumstances of his conduct in resisting arrest came before the jury and that he was “incorporating into my argument the arguments I made throughout the trial.” In response, the trial justice informed defense counsel that “the [cjourt incorporates the rulings I made throughout the trial on those issues.” The trial justice then sentenced Peltier to one year of probation and required him to participate in the batterer’s intervention program and substance-abuse counseling and complete forty hours of community service.
Standard of Review
“In reviewing the admission or exclusion of evidence, it is well settled that ‘[t]he admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice’s decision unless a clear abuse of discretion is apparent.’ ” State v. Clay,
Additionally, “[e]vidence that may otherwise be admissible under Rule 404(b) is still subject to the Rule 403 [of the. Rhode Island Rules of Evidence] balancing test, which excludes otherwise relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury * * *.’ ” Clay,
Analysis
On appeal, defendant’s assignment of error solely relates to the admission of testimony and argument regarding the resisting-arrest charge to which defendant' entered a plea of nolo contendere prior to the commencement of trial. The defen-' dant argues that, because the assault on Thurber was completed at the time he resisted arrest, that evidence had no bearing on defendant’s state of mind when the alleged assault occurred; he further argues that the • two crimes were not so interwoven as to lead to the admissibility of evidence surrounding his arrest. Accordingly, defendant asserts that it was an abuse of discretion for the trial justice to allow introduction of facts relating to the resisting-arrest charge and that this error warrants a new trial.
Specifically, defendant argues that because the conduct in this case occurred after the alleged crime—as opposed to being evidence of a defendant’s prior conduct—it does not bear on. the accused’s “motive, opportunity, intent, plan, common scheme, knowledge, identity or absence of mistake” when committing the charged offense. However, “we have treated the list contained within the second sentence of Rule 404(b) as examples, rather than a complete enumeration, of permitted purposes.” Rodriguez,
Evidence of prior acts is admissible when the “prior acts are interwoven or in instances when introduction is necessary for a trier of fact to hear a complete and, it is to be hoped, coherent story so as to make an accurate determination of guilt or innocence.” Clay,
Furthermore, this Court declared admissible evidence that is “related to the defendant’s consciousness of guilt with respect to the crime charged.” State v. Graham,
Although this Court has not had the occasion to address whether evidence of resisting arrest is indicative of consciousness of guilt, other state supreme courts have dealt with the issue. In State v. Williams,
In the case before this Court, the responding officers initially were met with a distraught victim in the driveway of defendant’s apartment. The defendant was inside the apartment with his twenty-month-old daughter. When the officers first made contact with defendant, they were confronted with an agitated individual. When they attempted to effectuate an arrest, defendant actively and continuously struggled to thwart their attempts and resist arrest. The defendant continued his behavior even as the officers were escorting him down the stairs of his apartment building. This behavior is indicative of defendant’s consciousness of guilt. See Palmer,
As we said in Acquisto, “a defendant has no right to be insulated from relevant truths ‘even if such truths might lead the jury to draw less favorable inferences concerning [the] defendant than if they were not exposed.’ ” Acquisto,
The trial justice concluded that the evidence was admissible because it was interwoven with the charged offense, offered the complete story, and was indicative of the defendant’s state of mind the morning of the offense. Additionally, the trial justice in this instance offered a cautionary instruction to the jury on the use of the testimony regarding the resisting arrest. “The Court presumes that members of the jury follow the trial justice’s instructions.” State v. Whitfield,
Conclusion
For the foregoing reasons, we affirm the judgment of conviction of the Superior Court and return the papers thereto.
Notes
. Defense counsel posited to the jury that:
"Raymond Peltier resisted arrest. He did resist arrest. An innocent person may very well resist arrest when they are falsely accused of a crime. Is it right? No, it’s not right. Is it legal? It’s not legal. Does it mean he’s guilty of this? No. He is not guilty of assaulting her.”
Also, although Peltier did not testify at trial, defense counsel argued to the jury that defendant "resisted arrest because he was angry for being arrested for something he didn’t do.”
. Defense counsel also requested that another cautionary instruction be given. The trial justice declined to do so, stating: ”1 already gave them the instruction. I don’t want to insult their intelligence. I told them how to consider it.” Moreover, the trial justice instructed the jury during his charge that "remarks and statements or personal opinions expressed by counsel during the trial or during their opening statements and final arguments are not evidence and are not to be considered by you as evidence during your deliberations.” There was no objection to the jury charge.
.The defendant was also sentenced at this time for the charge of resisting arrest. He received an additional consecutive year of probation, also conditioned upon his engaging in the batterer's intervention program, substance-abuse counseling, and community service.
. In a passing reference, defendant contended that the evidence was admitted in violation of Rule 403 of the Rhode Island Rules of Evidence. We have consistently held that "[a] mere passing reference to an argument * * * without meaningful elaboration, will not suffice to merit appellate review.” State v. Day,
Concurrence Opinion
concurring in part and dissenting in part.
I am pleased to concur in the opinion of the majority to the extent that it holds that the trial justice did not abuse his discretion in admitting evidence of the defendant’s resisting arrest as constituting evidence of the defendant’s agitated state of mind at the time of the alleged assault. In view of the very close temporal connection between the alleged simple domestic assault and the act of resisting arrest, the trial justice did not abuse his discretion in admitting the evidence for this limited purpose. However, I respectfully disassociate myself entirely from the majority’s statement that the defendant’s act of resisting arrest is “indicative of his consciousness of guilt” and its suggestion that consciousness of guilt and state of mind are largely indistinguishable concepts.
In the first place, I am both mystified and troubled by the choice of the majority to address an issue that is entirely unnecessary to reach — viz., the issue of consciousness of guilt. Significantly, there was no discussion provided by the parties to support any contention that defendant’s act of resisting arrest should have been admitted as evidence of his consciousness of guilt. Moreover, although the trial justice admitted evidence of defendant’s resisting arrest, he did so with an appropriately focused instruction, which simply directed the jury to consider the resistance as revealing defendant’s state of mind at the time of the alleged offense; the trial justice made no mention of consciousness of guilt. The trial justice’s instruction deftly and correctly straddled the competing interests at hand — allowing the prosecution to present its case in an understandable way, while simultaneously cautioning the jury not to draw improper and unjust inferences. As a result of that instruction, the jury had ample information upon which to reach a verdict without the necessity of considering whether the act of resisting arrest was somehow indicative of defendant’s consciousness of guilt. By unnecessarily addressing the issue of consciousness of guilt, the majority has disregarded our strong and oft articulated policy favoring judicial restraint. See, e.g., Grady v. Narragansett Electric Co.,
It is even more distressing that, in its entirely unnecessary discussion of consciousness of guilt, the majority seems to suggest that state of mind and consciousness of guilt are close to being synonymous. Unquestionably, when a person takes an action prompted by his or her consciousness of guilt, that consciousness of guilt can rightly be said to be part of that person’s state of mind. See State v. Santos,
Although I feel strongly that the majority has rushed in unnecessarily and imprudently in reaching the issue, in view of the fact that the majority has now opined that the act of resisting arrest is indicative of a consciousness of guilt in the instant case and not simply of an agitated state of mind, I feel compelled to forcefully state that the facts of this case do not lead me to draw the same conclusion. I am not even remotely persuaded by the majority’s argument, which in a conclusory manner treats the act of resisting arrest as the equivalent of fleeing from a crime scene. In reaching its conclusion, the majority cites two cases from jurisdictions that have addressed the issue, neither of which do I find convincing — viz., State v. Williams,
After long and careful perusal of the record, I can find no basis therein for the majority’s inference that defendant resisted arrest because he was conscious of his own guilt. Nor have we ever opined that resistance to arrest alone is sufficient to be indicative of consciousness of guilt. It is
The majority cites to this Court’s opinion in State v. Palmer,
“It is universally conceded today that the fact of an accused’s flight * * *, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.” Id. at 769 (quoting 2 John H. Wigmore, Evidence in Trials at Common Law. § 276 at 122 (Chadbourn rev. 1979)).
I do not believe that my position is inconsistent with what this Court said in Palmer. The quoted language does not state that resistance to arrest, by itself, is evidence of consciousness of guilt. I readily acknowledge that resistance to arrest coupled with flight or concealment or such related conduct might, in a different case, be sufficient to be admitted to show that a defendant was conscious of his or her guilt. However, such facts are strikingly absent from the case at bar.
What the evidence in the record in this case does disclose is that defendant was in an agitated state of mind
For the foregoing reasons, I concur in the judgment of the majority with respect to the defendant’s resisting arrest being admissible to show his agitated state of mind, but I respectfully, yet very vigorously, dissent from every jot and tittle of the majority’s discussion of consciousness of guilt.
. That "usual policy” of ours is consistent with the following jurisprudentially sage observation of the United States Court of Appeals for the First Circuit: "Discretion is often the better part of valor, and courts should not rush to decide unsettled legal issues that can easily be avoided.” United States v. Gonzalez,
. It should be borne in mind that the behavior of the defendant that was at issue in this Court’s evidentiary discussion in State v. Palmer,
. I note that the majority specifically recognizes that “[wjhen the officers first made contact with defendant, they were confronted with an agitated individual.” I have been unable to find in the record any evidentiary basis for a conclusion that defendant's agitated state of mind and resistance to arrest are, as the majority states, "indicative of his consciousness of guilt.”
Dissenting Opinion
dissenting.
I respectfully dissent from the opinion of the majority in this case. I do so because it is my opinion that the evidence that defendant resisted arrest was admitted in contravention of the provisions of Rules 404(b)
Rule 404(b) Should Have Barred Admission
In my opinion, this case stretches, beyond its limits, the admittedly elastic characteristics of Rule 404(b). At trial, evidence of defendant’s resistance to arrest, which took place both after the alleged assault had occurred and after the complaining witness had left the scene, was admitted over defendant’s objection. The mere fact that defendant may have resisted the police’s efforts to arrest him fits neither into the illustrated examples that are delineated in Rule 404(b) nor the spirit of other permitted purposes. This evidence, I submit, is the classic type of evidence that Rule 404 deems inadmissible because it tends to shed light only on a defendant’s character or disposition. This evidence invited the jury to reach the forbidden inference: because defendant demonstrated aggressive tendencies towards the police, it is more likely he was aggressive towards the complaining witness as well and therefore guilty of assaulting her. This, in my opinion, is pure propensity evidence and it is exactly the type of evidence Rule 404 was promulgated to exclude.
In the majority’s opinion, the evidence of resisting arrest should be admitted because it tended to show a relevant fact, defendant’s state of mind, citing to State v. St. Jean,
In its opinion, the majority relies on St. Jean,
Further, I am not persuaded that the state needed the evidence of resisting arrest to tell a “complete and, it is to be hoped, coherent story” of the simple domestic assault. Gomes,
Indeed, it is instructive to see how the state made use of the contested evidence once it was determined to be admissible; in my opinion, it was argued that this evidence reflected on defendant’s character. In the prosecutor’s opening remarks he referred to the resistance to arrest and said that it would show that on the day of the incident “[the police] met with a corn-
Alternatively, Rule 403 Should Have Barred the, Evidence
In a case where there was only one witness to the alleged assault, the complaining witness, it is my opinion that this evidence was enormously prejudicial and should not have been admitted under Rule 403. It is axiomatic that “Rule 403 cuts across the rules of evidence and is always a consideration in a trial justice’s ruling on the admissibility of Rule 404(b) evidence.” State v. Mlyniec,
It is my further opinion that,' had the analysis been completed, Rule 403 nonetheless should have barred the admission of the contested evidence. Clearly, this is not an easy burden to meet. We have said that it is only “when evidence is marginally relevant and enormously prejudicial that a trial justice must exclude it.” State v. Pona,
For the reasons set forth above, I respectfully dissent from the majority opinion of this Court.
. Rule 404(a) of the Rhode Island Rules of Evidence stands for the general proposition that "[ejvidence of a person’s character or a trait of the person’s character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion * * Rule 404(b) sets forth:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person*160 acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable.”
Rule 403 of the Rhode Island Rules of Evidence states in full:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
. The majority's opinion equates the term "state of mind,” with "consciousness of guilt,” to justify the admissibility of defendant's alleged resistance to arrest. To support this, the majority cites cases, whose facts I believe are far removed from this case: State v. Williams,
. Mens rea, Latin for "guilty mind,” is "[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime * * Black’s Law Dictionary 1134 (10th ed. 2014).
. The trial justice went on to reply, "[i]f that’s the case, maybe that’s an explanation that can be offered by the defense.” Defense counsel then correctly stated that "the defense shouldn't have to. [offer an explanation]”; however, once the evidence was admitted he felt obligated to address it. In closing argument defense counsel said, ”[a]n innocent person may very well resist arrest when they are falsely accused of a crime.”
.The majority cites United States v. Wright,
. I disagree with the majority’s characterization that defendant did not properly develop his Rule 403 argument. From the record, it is clear that Rule 403 was raised and argued before the trial justice. Even though defendant's written argument on Rule 403 before this Court was sparse, it was raised in his Rule 12A statement. See Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure. Because the analysis of Rule 404(b) evidence is always bifurcated with Rule 403 considerations, I believe that it was sufficiently raised to this Court.