949 A.2d 984 (R.I. 2008), 2006-279, State v. Barkmeyer

Docket Nº:2006-279-C.A.
Citation:949 A.2d 984
Opinion Judge:Justice GOLDBERG, for the Court.
Party Name:STATE v. Ronald BARKMEYER.
Attorney:Virginia McGinn, Providence, for Plaintiff., Paula Rosin, Providence, for Defendant.
Case Date:June 20, 2008
Court:Supreme Court of Rhode Island
 
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Page 984

949 A.2d 984 (R.I. 2008)

STATE

v.

Ronald BARKMEYER.

No. 2006-279-C.A.

Supreme Court of Rhode Island.

June 20, 2008

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          Virginia McGinn , Providence, for Plaintiff.

          Paula Rosin , Providence, for Defendant.

          Present: WILLIAMS , C.J., GOLDBERG, FLAHERTY , SUTTELL , and ROBINSON , JJ.

          OPINION

          Justice GOLDBERG, for the Court.

          While bathing her eight-year-old daughter, Jane,1 on May 22, 2004, Jennifer Barkmeyer (Jennifer) noticed blood in the childs underwear. When the bleeding continued, Jennifer called her daughter's pediatrician for an appointment. On May 25, 2004, the pediatrician examined Jane and found bruising in her vaginal area. Suspecting sexual abuse, the pediatrician instructed Jennifer to take her daughter to Hasbro Children's Hospital for further examination. The pediatrician also notified

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the Department of Children, Youth and Families (DCYF) about his suspicion that Jane had been molested. When Jennifer called the defendant Ronald Barkmeyer (Barkmeyer or defendant)-her husband and Jane's stepfather-to tell him about the pediatricians findings, he immediately remarked, “they're going to suspect [me]" .2

          The DCYF assigned Laurie Houle (Houle), a child-protective investigator, to interview Jane and the family. Because Jennifer was late for her appointment with her, Houle called the Barkmeyer residence and happened to speak with defendant. Houle was surprised to hear from defendant that he needed to stop at Jane's school “to get documentation of [Jane] falling off of some monkey bar type apparatus before coming to the hospital."

          When the family finally arrived at the hospital, Houle spoke with defendant and Jane about the injuries. The defendant told Houle that he had been watching Jane on May 22 and that Jane had complained of some pain and an inability to go to the bathroom. After he instructed Jane to push when she went to the bathroom, he noticed bleeding coming from her vaginal area. The defendant volunteered that he had not harmed Jane in any way, even though Houle had not asked him whether he was responsible for Jane's injuries.

          Doctor Amy Goldberg (Dr. Goldberg), an expert in forensic pediatrics, examined Jane at the hospital on May 25, 2004. During the examination, Jane indicated to Dr. Goldberg that she had been touched in her “pee-pee" with a finger. Doctor Goldberg noticed severe injury to Jane's genitals, including a tear and hole-type wound, which “appeared to be quite deep." Because of the severity of the injury, Dr. Goldberg consulted with pediatric surgeons, who performed surgery the next day to repair the damage.

          Detective William Swierk (Det.Swierk), of the Middletown Police Department, was notified of the suspected sexual molestation and was told that the child victim had been referred to Hasbro Children's Hospital. The detective went to the hospital and talked with Jane, Jennifer, and Dr. Goldberg about the incident and injuries. The record reveals that, in her interview with the detective, Jane disclosed that during the assault she had been tied up with a rope.3

          The defendant subsequently was arrested and charged with one count of first-degree child molestation sexual assault, in violation of G.L.1956 §§ 11-37-8.1 and 11-37-8.2 . He was held without bail. Jennifer's father, William Wilson (William), and his wife, Barbara, came to Rhode Island from California and stayed in the family home. Both William and Barbara assisted Jennifer and Jane throughout their ordeal; that assistance included cleaning the home and packing up defendant's belongings to move them to the Marine barracks.

          On June 1, 2004, several days after defendant was arrested, Det. Swierk met with William, at the latter's request, to update him on the criminal case and because, in the course of cleaning out defendants vehicle, William had found certain items that he wished to turn over to the police. William also invited Det. Swierk to come to the home to retrieve a rope that William said he had found while cleaning the closet in the master bedroom. Before trial, defendant moved to suppress the

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rope on Fourth Amendment grounds, but the trial justice denied his motion.

          At trial, Jane testified that, when she was at home watching television, defendant, who was naked, picked her up and brought her to the master bedroom. She said that defendant then tied her hands and feet with a rope and touched her on her “private spot" with his finger. Jane further testified that, after defendant untied her, she “took a bath to take the blood away." She said that defendant warned her not to tell anybody about the incident.

          Additionally, Houle testified that during her conversation with Jane, the child pointed to defendant and said that he had caused her injuries while her mother was at work. The trial justice admitted this statement over defendant's objection that it was inadmissible hearsay. Doctor Goldberg testified that, in her opinion, Jane had suffered a penetrating trauma to her genitalia by some object that was “relatively hard and straight." Doctor Goldberg also testified that Jane's injury was “one of the most severe injuries that [she] had seen [,]" and she rejected the suggestion that such an injury could be suffered from falling off monkey bars.

          A jury convicted defendant of first-degree child molestation sexual assault. After his motion for a new trial was denied, as were the remaining post-verdict motions, defendant was sentenced to fifty years at the Adult Correctional Institutions, with thirty to serve and the rest suspended, with probation.4 The defendant timely appealed to this Court, arguing that the trial justice erred when he: (1) denied defendants motion to suppress the rope, (2) ordered the courtroom partially closed during Jane's testimony, (3) allowed Houle to testify that Jane identified defendant as her assailant, and (4) denied defendant's motion to pass the case based on allegedly prejudicial comments made during the state's closing argument. For the reasons set forth in this opinion, we affirm the judgment. Additional facts will be discussed as required.

          I

          Search and Seizure

          Before trial, defendant moved to suppress the rope, arguing that it was the fruit of an unlawful search and seizure, in violation of the Fourth Amendment to the United States Constitution.5 Both William and Det. Swierk testified for the state. The defendant did not call any witnesses.

          In urging the trial justice to suppress the rope, defendant argued that although it may have been discovered as a result of a private search, the police seized the rope without a warrant. According to defendant, the police seized the rope “after they were told where it was by a private party" and that this amounts to a warrantless seizure. It was defendant's contention that William could not consent to a police search of the home and that defendant's prior consent to search was no longer valid. Before this Court, defendant also argues that William could not give valid consent to search the home because he did not have the common authority necessary to consent to a search.

          The state argued that William gave valid consent to permit Det. Swierk to enter the home so that the detective could retrieve what William previously had uncovered during a private search. According to the

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prosecutor, the rope had been discovered “by a private citizen and pointed out to the detective when he was invited into the home."

          After an evidentiary hearing, the trial justice issued a bench decision in which he denied the motion to suppress.6 He found that the Fourth Amendment was not implicated in this case because the rope was discovered in William's private search of defendant's bedroom and closet. The trial justice concluded that there was “not a bit of evidence that suggests that any of the searching activity was carried on as a result of governmental or police authority or request." With respect to Det. Swierk's seizure of the rope in the master bedroom, the trial justice concluded that Det. Swierk was present in the home with Jennifer's consent.

          Before this Court, defendant contends that the trial justice committed reversible error when he denied his motion to suppress. He argues that his prior written pre-arrest consent to search was not valid-an issue that is not before us-and also that William had no actual or apparent authority to consent to a search of the Barkmeyer home. Additionally, defendant contends that the state failed to prove that Jennifer consented to the search. The defendant argues that the admission of the rope into evidence at trial was erroneous and that this error was not harmless. Finally, defendant contends that the inevitable-discovery doctrine should not apply in this case because the police bypassed the Fourth Amendment's warrant requirement.

          The state, on the other hand, argues that the rope was discovered during a private search of defendant's bedroom closet by Jennifer's father, who had assumed many duties in the household and had taken on the responsibility of contacting the police. According to the state, the rope was seized with Jennifer's consent because after the detective was invited into the home by her father, Jennifer was there, Det. Swierk and Jennifer exchanged pleasantries, and Jennifer was informed that they were going into the bedroom so that William could show the detective something. Jennifer did not object, nor...

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