State v. Boillard

• Decision Date: 31 January 2002
• Docket Number: No. 99-473-C.A.,99-473-C.A.
• Citation: 789 A.2d 881
• Parties: STATE v. Joseph BOILLARD.
• Court: Rhode Island Supreme Court

789 A.2d 881

STATE v. Joseph BOILLARD.

No. 99-473-C.A.

Supreme Court of Rhode Island.

January 31, 2002.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Paula Rosin, Paula Hardiman, Providence, for plaintiff.

Aaron Weisman, Virginia M. McGinn, Providence, for defendant.

OPINION

LEDERBERG, Justice.

The defendant, Joseph Boillard, has appealed a judgment of conviction of six counts of first-degree child molestation, one count of second-degree child molestation, and one count of assault with a dangerous weapon. For the reasons stated herein, we deny and dismiss the appeal and affirm the judgment of the Superior Court.

Facts and Procedural History

On February 27, 1998, defendant was indicted on five counts of first-degree child molestation involving his former girlfriend's daughter, Jane,¹ in violation of G.L.1956 §§ 11-37-8.1 and 11-37-8.2, one count of first-degree and one count of second-degree child molestation involving his girlfriend's son, Henry, in violation of §§ 11-37-8.3 and 11-37-8.4, and one count of assaulting Henry with a dangerous weapon, in violation of G.L.1956 § 11-5-2. Each of the incidents underlying the indictment took place between 1987 and 1992. After a five-day trial in the Superior Court, the jury found defendant guilty on all eight counts.

The defendant's motion for a new trial was denied, and on May 28, 1999, the trial justice entered a judgment of conviction. The defendant was sentenced to thirty years on the first-degree child molestation convictions, with twenty years to serve and ten years suspended, with ten years probation; eight years to serve, concurrent, on the second-degree child molestation conviction; and eighteen months to serve, concurrent, on the assault with a dangerous weapon conviction. The defendant appealed, raising three issues: (1) whether the trial justice erred in overruling defendant's objections to the state's closing arguments; (2) whether the trial justice erred in overruling defendant's objections to leading questions that the state asked of its own witness on direct examination; and (3) whether the trial justice erred in denying defendant's motion for judgment of acquittal on the charge of assault with a dangerous weapon. Additional facts will be presented in the discussion of each of these issues.

Closing Arguments

The defendant contended that the trial justice erred in refusing to sustain his objections to statements that the state made during closing arguments, the state arguing, in response, that defendant failed to preserve any objections for appeal. According to the transcript, defendant voiced two objections during the state's argument, but thereafter did not request curative jury instructions or a mistrial, leading the state to contend that defendant had waived his initial objections.

Our cases have not established a clear, bright-line rule by which trial justices can determine whether remarks by counsel during closing arguments are improper, and if they are, what remedy is required. We have held that ordinarily a defendant must request a cautionary jury instruction or a mistrial in order to preserve for review an objection raised during closing arguments. State v. Mastracchio, 546 A.2d 165, 174 (R.I.1988); State v. Anil, 417 A.2d 1367, 1373 (R.I.1980). The failure to make such a request, however, does not necessarily preclude review, id., in circumstances inwhich a request to do so would be futile, either because previous objections were summarily overruled, State v. Mead, 544 A.2d 1146, 1150 (R.I.1988); State v. Plante, 111 R.I. 386, 391, 302 A.2d 804, 807 (1973); State v. Mancini, 108 R.I. 261, 273, 274 A.2d 742, 748 (1971), or, in the case of jury instructions, because the comments to which defendant objected were so prejudicial that "any attempt to palliate the prejudice would have been ineffective." Anil, 417 A.2d at 1373.

It is our opinion that in this case both objections made by defense counsel in closing argument sufficiently preserved for our review the two issues to which defense counsel objected, namely, the prosecutor's use of the word "repressed" and his explanation of inconsistencies in state witnesses' testimony. Simply stating "Objection" or "I object" may not suffice to preserve an issue in every case, particularly where the objection is uttered outside of closing argument, and its basis is not ascertainable from the context of the argument. In general, if an objector believes that counsel has uttered a highly inflammatory word or comment that leads the opposing party to believe that it has become so prejudiced by the utterance that it has been deprived of a fair trial, then counsel is obliged to seek a conference at side bar, explain the basis for the objection, and request a curative instruction, or, alternatively, request a mistrial and move for a new trial. Because the trial justice here overruled defense counsel's two objections — objections that preserved the issues because the objectionable words or phrases and the bases for the objections were obvious — we turn to the substance of those objections.

During trial, Jane had testified that when she was six or seven years old, she saw defendant's daughter, Ruth, then five years old, performing fellatio on defendant in the bathroom of the victims' apartment. Jane also testified that she talked to Ruth afterward, and "asked her if it happened all the time, and she said only when I see my Dad." When she took the stand for the defense, Ruth denied that she had ever had sexual contact with her father or that she had had such a conversation with Jane.

In its summation, the state argued,

"Who knows exactly what message [Ruth] got from [Jane] at five years of age concerning that and what questions she was really answering when [Jane] asked that question. Who knows exactly what [Jane] saw. She saw what she thought was the same thing that had been happening to her when she was four or five years of age, and it happened to her countless times, going on between the two of them in the bathroom and that's what she believed she saw. Look at [Ruth] in the light most charitable toward her, either she's repressed it and doesn't remember it or * * * ."

At that point, defendant made his first objection, the trial justice overruled the objection, and the state continued,

"or what [Jane] saw was him drying her off, drying [Ruth] off, and it wasn't the same act that had been going on between [Jane] and the Defendant for so long. Okay? Or, she's lying. Those are the three explanations for [Ruth]. * * * We don't know. She had somewhat of a motive to lie; it is her father, she's involved with him, * * *. Whether she's lying, whether she's [sic] doesn't remember, whether [Jane] was mistaken about what she saw, any one of those explanations could occur."

The defendant objected again when the state explained the inconsistencies elicited upon defendant's cross-examination of the state's child witnesses, Henry and Jane, as follows:

"Any witness, the most skillful, skillful cross-examination, difficult cross-examination of a child and after the — after the end of, I forget, I guess it was Wednesday afternoon, that child was exhausted, she would have said yes if you asked is the moon made of blue cheese. She was exhausted. You have to understand whatever a witness says is in context into the questioning that they're being asked. That's why, to an extent, when I cross-examined [Ruth], I am attempting to get her answers to get her to tell us what she really does indeed recall and what she doesn't indeed recall. I asked the question slowly and carefully. It isn't a staccato-style, wouldn't you agree, that every time that he used to do these things, they occurred in the bathroom? Well those types of questions, kids listen and only partly listen to the questions. And I tell them, listen to the question, listen to the question before they go up on the stand, listen to the question. By the time a skilled cross-examiner isthrough with them, they're no longer listening to the question, they're just saying anything to agree to get off the stand."

The defendant objected, and the trial justice overruled the objection, stating, "This is final argument, it's not evidence."

The purpose of closing argument is "to sharpen and clarify the issues for resolution by the trier of fact in a criminal case." Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593, 600 (1975). Only after all the evidence has been presented are counsel for the parties in a position to present their respective versions of the case as a whole. "Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions." Id. The challenged arguments in this case were intended to rehabilitate the state's witnesses and to suggest rationales by which the jury could reconcile unfavorable testimony with the state's theory of the case, objectives that are among the intended functions of summation and within the ordinary scope of final argument.²

A prosecutor is given considerable latitude in closing argument, as long as the statements pertain only to the evidence presented and represent reasonable inferences from the record. State v. Scott, 114 R.I. 132, 137, 330 A.2d 66, 70 (1974). We have held that "while there is no formula in law which precisely delineates the proper bounds of a prosecutor's argument, * * * prejudice obviously inheres if the remarks are totally extraneous to the issues in the case and tend to inflame and arouse the passions of the jury." Mancini, 108 R.I. at 273-74, 274 A.2d at 748. The probable effect of the prosecutorial statements on the outcome of the case must be evaluated by examining the remarks in the context in which they were made. State v. Brown, 522 A.2d 208, 211 (R.I.1987).

We are of the opinion that the state's closing statements sub judice suggesting possible explanations for Ruth's...