9 A.3d 1240 (R.I. 2010), 2008-326-C.A, State v. Brown

Docket Nº:2008-326-C.A.
Citation:9 A.3d 1240
Opinion Judge:SUTTELL, Chief Justice.
Party Name:STATE v. Nakeda BROWN.
Attorney:Aaron L. Weisman, Department of Attorney General, for State. Paula Rosin, Office of the Public Defender, for Defendant.
Judge Panel:Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ. Justice INDEGLIA did not participate.
Case Date:December 15, 2010
Court:Supreme Court of Rhode Island

Page 1240

9 A.3d 1240 (R.I. 2010)



Nakeda BROWN.

No. 2008-326-C.A.

Supreme Court of Rhode Island.

December 15, 2010

Page 1241

Aaron L. Weisman, Department of Attorney General, for State.

Paula Rosin, Office of the Public Defender, for Defendant.

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SUTTELL, Chief Justice.

The defendant, Nakeda Brown, appeals from a judgment of conviction for one count of felony assault and one count of simple assault, both relating to a domestic altercation between him and Waysaywhein Timbo. The defendant raises three evidentiary issues that he contends warrant the reversal of the jury's verdict. First, he argues that the trial justice erred when he permitted the state to cross-examine the defendant about his physical abuse of Ms. Timbo in the past. Second, the defendant asserts that the trial justice committed error by allowing a rescue technician to testify about a statement that Ms. Timbo made concerning the cause of her injuries. Finally, the defendant challenges the trial justice's ruling to allow the state to question the defendant using a transcript of a telephone conversation, between the defendant and Ms. Timbo, that contained several " inaudible" designations.

This case came before the Supreme Court pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Procedural History

On July 6, 2007, defendant was charged in a four-count criminal information with (1) assault with a dangerous weapon (a mirror tile); (2) assault with a dangerous weapon (a shod foot); (3) simple assault; and (4) domestic disorderly conduct. The pertinent evidence adduced at trial is set forth below.

Ms. Timbo and defendant were in a relationship from around 2001 to 2007. They lived together for five years and had a daughter in 2003, but began experiencing relationship problems in the early part of 2007. According to Ms. Timbo, she and defendant were " [n]ot really" together in May 2007; however defendant still cared for their daughter every day while Ms. Timbo worked. Ms. Timbo testified that on the evening of May 15, 2007, after defendant had dropped off their daughter at Ms. Timbo's apartment, he and Ms. Timbo began arguing about " a lot of stuff." Ms. Timbo testified that defendant accused her of sleeping with someone else, called her names, and refused to leave even though Ms. Timbo requested that he do so more than once. According to Ms. Timbo, this argument " led to an assault," where defendant " assaulted" her with a mirror, as a result of which she suffered injuries to her head and face. Ms. Timbo also testified that defendant " [p]robably" assaulted her with his hands, and she acknowledged that she had told the police that she " assumed that he used his foot, too."

Derrick Campbell, a rescue technician working for the Providence Fire Department, also testified at defendant's trial. He testified that he responded to a dispatch call to Ms. Timbo's apartment at around 11 p.m. on May 15, 2007. Upon arrival, Mr. Campbell saw a woman, who he later ascertained was Ms. Timbo, with two lacerations on her forehead and blood on her face and clothing. Mr. Campbell testified that Ms. Timbo " looked like she had been hit with something." When the state asked Mr. Campbell what Ms. Timbo

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told him had happened to her, defendant objected on hearsay grounds. The trial justice overruled the objection and allowed Mr. Campbell to answer the question, reasoning that such testimony was a statement made for purposes of medical diagnosis or treatment, admissible as an exception to the hearsay rule under Rule 803(4) of the Rhode Island Rules of Evidence. The trial justice said that the medical-diagnosis exception applies in this case because " if somebody said they were hit by an object * * * or kicked with a foot, that would make some difference as far as what treatment should be rendered." Mr. Campbell then testified that Ms. Timbo, while in the rescue vehicle on her way to the hospital, told him " that she was kicked and punched repeatedly and hit with a mirror in the forehead." Mr. Campbell testified that he related Ms. Timbo's statement to the triage nurse at the hospital.

The defendant took the stand in his own defense and told a strikingly different version than Ms. Timbo of the events that took place on May 15, 2007. He testified that on that evening, he was watching cartoons with his daughter at Ms. Timbo's apartment while Ms. Timbo sat at the dining room table, when he and Ms. Timbo began arguing. According to defendant, the argument " got out of control" when he jumped up from the couch " as if [he] was going to chase [Ms. Timbo]" and Ms. Timbo " took off running" and " tripped and fell" into a mirror, which shattered as a result. The defendant said that he then helped Ms. Timbo, who was bleeding " from her face and on her arms," to stand up and got her a cold rag to wash the blood from her face. He further testified that he left approximately forty-five minutes later because Ms. Timbo told him that she was going to call for an ambulance and suggested that defendant should " leave just in case they come and they think that [Ms. Timbo and defendant] were fighting." The defendant testified that he did not punch or kick Ms. Timbo at any point on May 15, 2007.

During cross-examination of defendant, the state played several audio recordings for the jury of telephone conversations that took place between defendant and Ms. Timbo while defendant was incarcerated at the Adult Correctional Institutions (ACI). The state also provided the jury with a transcript of the telephone conversations.1 In one of the conversations, defendant said to Ms. Timbo " I put my hands on you before." The defendant did not object when the portion of the recording...

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