State v. Ucero

• Decision Date: 03 August 1982
• Docket Number: No. 81-367-C,81-367-C
• Citation: 450 A.2d 809
• Parties: STATE v. Juan UCERO. A.
• Court: Rhode Island Supreme Court

Page 809

450 A.2d 809

STATE v. Juan UCERO.

No. 81-367-C.A.

Supreme Court of Rhode Island.

Aug. 3, 1982.

Dennis J. Roberts, II, Atty. Gen., Judith Crowell, Sp. Asst. Atty. Gen., for plaintiff.

John F. Cicilline, Providence, for defendant.

OPINION

MURRAY, Justice.

On December 7, 1979, a Providence County Grand Jury indicted the defendant Juan Ucero. The indictment charged the defendant with five counts of first-degree sexual assault, three counts of second-degree sexual assault, and three counts of abominable and detestable crimes against nature. The charges arise out of two separate incidents involving two sisters: Diana, eleven years old at that time, and Roxanna, eight years old at that time. The first incident occurred on August 20, 1979, and involved sexual attacks on both sisters by the defendant, who at that time was sixty years old. The second incident occurred on August 30, 1979, and involved only Roxanna.

On November 10, 1980, the case was brought to trial before a justice of the Superior Court sitting with a jury. At the close of the evidence, the trial justice granted defendant's motion for judgment of acquittal in regard to five of the counts. The remaining counts were submitted to the jury. The jury returned guilty verdicts on all but one of the remaining counts. The jury found defendant guilty of two counts of first-degree sexual assault, two counts of second-degree sexual assault, and one count of the lesser included offense of assault with intent to commit first-degree sexual assault.

On November 26, 1980, the trial justice denied defendant's motion for a new trial. Subsequently, the trial justice imposed a twenty-year sentence for each count of first-degree sexual assault as well as for the lesser included offense of assault with intent to commit first-degree sexual assault. In regard to the second-degree-sexual-assault counts, the trial justice imposed a sentence of five years for each count. At the time of the jury verdict defendant's bail had been revoked, and he has remained incarcerated while we consider his appeal from such conviction.

Both Diana and Roxanna were involved in the August 20, 1979 incident. Evidently, the children's mother and father were out of the house at the time of the incident. They were only a short distance from home, working at the store that they owned. The defendant had been performing various tasks around the house during late summer and early fall of 1979. While working at the house on the day in question, defendant asked Diana to show him where a certain ladder could be located. As Diana took him through the basement, they passed a room containing two beds. Diana testified that defendant then forced her into the room, locked the door behind them, threw her onto one of the beds, removed her clothes, and tied her arms and feet to the bed with a clothesline. In response to defendant's actions, Diana stated that she tried to bite him and began to scream. Diana's screams evidently roused the attention of Roxanna, who after entering the basement began knocking on the door of the room where her older sister and defendant were located. According to Diana, defendant then got off the bed, unlocked the door, allowed Roxanna to enter, and bolted the door shut behind her.

Diana, on direct examination, explained that defendant proceeded to remove Roxanna's clothes and to tie her sister to the other bed in the same manner that he had used to restrain her. According to Diana's version, defendant then proceeded to remove his own clothes. Diana's testimony then detailed the various sexual acts defendant performed upon the two girls. She stated that the girls' continued screams brought an even younger sister to the door of the room. The younger sister began knocking on the door, which action caused defendant to untie the girls and to order them to dress. Before he released the sisters, defendant evidently warned the girls not to tell anyone about the events that had occurred.

Roxanna also took the witness stand. She told a story similar to the one told by Diana, except that her version had the girls' mother entering the room and demanding that defendant untie the victims. Rosa, the mother, while on the witness stand, was asked about Roxanna's version of the girls' rescue. In response, the mother specifically denied seeing her daughters tied up or telling defendant to untie them. According to the mother, she learned of the incidents of sexual assault in October when an aunt visiting from New York told her what had happened. Diana's version of the mother's learning of the incident has the aunt being told of the events by Roxanna and then relaying the information to the mother.

In regard to the August 30, 1979 incident, there was little evidence introduced and much of it was confusing. In fact, the trial justice entered a judgment of acquittal on the four counts relating to the incident occurring on that date. It is sufficient to state for our purposes that the record reveals that the alleged activity took place in an area of the basement where a boiler was located and that it involved Roxanna and defendant.

After the mother and two daughters had testified, the state began presenting medical testimony. Two physicians from Women and Infants Hospital were called. Doctor Myles Dotto testified to the fact that on November 1, 1979, he was able to examine Diana but was unable to examine Roxanna because of her apprehension. He also explained that he had taken a medical history from Diana which revealed that she had been sexually assaulted over a period of months by defendant. The doctor also revealed the findings of Diana's gynecological examination. He explained that he had attempted to take a medical history from Roxanna as well but that she had not proved to be "a very good historian." Doctor Thomas A. Murray III was also called as a witness for the state. He explained that on October 31, 1979, he had occasion to take a medical history from Diana. The doctor then detailed the series of sexual assaults about which he had been made aware when taking the history.

In addition to the medical testimony of the doctors, the state attempted to introduce as full exhibits the medical records from Women and Infants Hospital relating to the diagnosis and treatment of Diana and Roxanna. Defense counsel duly objected. The trial justice, evidently realizing that there may have been a problem with the admissibility of the records and attempting to expedite the trial, allowed the exhibits to be admitted in full with the understanding that they "would not be shown to the jury at the present time." The trial justice stated that he would consider removing any portion of the exhibit before the jury took the records into deliberations. During the course of the trial, defense counsel again raised the issue of the admissibility of the medical records. The trial justice, as promised, reviewed the exhibit and removed a number of pages therefrom.

As part of its case the defense presented Joaquin Vela, a general contractor who had employed defendant. He testified that defendant had worked for him for a period of fifteen days during the month of August. According to the witness, the period was from August 15 to August 30, 1979.

The defense also attempted to present Harold Gomes as a witness. His proposed testimony would have indicated that defendant worked for him during the month of October 1979. The trial justice refused to allow him to testify.

In support of his appeal defendant raises six arguments; we shall consider each in the order in which they have been raised. Any additional facts necessary to the resolution of the issues will be discussed in the remainder of the opinion.

Initially, we consider defendant's contention that the state is not entitled to exercise peremptory challenges without restriction. In particular, defendant argues that the state, by using peremptory challenges to exclude three male jurors, had violated his right to have a jury chosen from a fair cross section of the community.

Recently, in State v. Raymond, 446 A.2d 743 (R.I., 1982), we rejected a similar argument involving the state's use of peremptory challenges to exclude three young women from a jury. In that case we noted the virtual impossibility of a defendant's showing that the state's use of peremptory challenges has caused the systematic underrepresentation of a particular group. Id. at 745 (citing Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). Also, in Raymond we specifically refused to adopt two cases relied upon by defendant here. People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979).

In the present case, defendant specifically noted for the record his objection to the state's use of peremptory challenges to exclude the men. No statistical data was provided to the trial court in an attempt to make the requisite showing. Evidently counsel for defendant took the position that the state simply could not use its peremptory challenges to exclude men. Obviously this was not an adequate showing. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

The defendant next argues that the trial justice erred in excluding the public from his trial during a portion of Diana's testimony. The defendant contends that this exclusion order violated his right to a public trial.

The record reveals that Diana, aged twelve at the time she testified, began to relate the occurrences of August 20, 1979, in an open courtroom. When Diana reached the point where defendant had tied her to the bed, she was unable to continue her explanation of what had happened thereafter. The trial justice, after allowing the prosecutor an opportunity to ask a couple of leading questions, inquired whether Diana would "be able to tell us more if there were not so...