982 A.2d 602 (R.I. 2009), 2007-323-C.A., State v. Nelson

Docket Nº:2007-323-C.A.
Citation:982 A.2d 602
Opinion Judge:FLAHERTY, Justice.
Party Name:STATE v. Nicki A. NELSON.
Attorney:Jane M. McSolely, Department of Attorney General, for Plaintiff. Catherine Gibran, Office of Public Defender, for Defendant.
Judge Panel:Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).
Case Date:November 13, 2009
Court:Supreme Court of Rhode Island

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982 A.2d 602 (R.I. 2009)



Nicki A. NELSON.

No. 2007-323-C.A.

Supreme Court of Rhode Island.

November 13, 2009

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Jane M. McSolely, Department of Attorney General, for Plaintiff.

Catherine Gibran, Office of Public Defender, for Defendant.



FLAHERTY, Justice.

Before this Court is an appeal by the defendant, Nicki A. Nelson, from judgments of conviction for operating a motor vehicle while under the influence of intoxicating liquor, resulting in serious bodily injury in violation of G.L. 1956 § 31-27-2.6 and for driving to endanger, resulting in personal injury in violation of § 31-27-1.1. This case came before the Supreme Court for oral argument on October 6, 2009, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the parties' arguments and considering memoranda submitted by counsel, we are satisfied that cause has not been shown, and we proceed to decide the appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we vacate the judgments of conviction by the Superior Court.

Facts and Travel

On July 24, 2004, at about 3:20 in the morning, the South Kingstown Police Department received two calls that reported a pickup truck first proceeding south in the northbound lane on Route 1 and then north in the southbound lane. A police officer responding to the call observed the pickup truck as it swerved and nearly collided with another vehicle and as it traveled briefly on the grassy median. Another vehicle, a Saturn, driven by a man later identified as Stanley Bates, was moving south in the southbound lane of Route 1 in the direct path of the errant pickup truck. In the severe collision that followed, Bates sustained serious injuries that required two surgeries, and his leg was permanently disfigured as a result of the collision.

Another South Kingstown police officer responding to the call arrived soon. That

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officer testified that she approached the pickup truck and opened the driver's side door to find a woman who identified herself as " Nicki" lying across the front seat of the vehicle. The officer further testified that she " was able to smell an odor of alcoholic beverage coming from her" and that it was her opinion that defendant " was under the influence of alcohol at that time." Emergency vehicles transported the driver of the pickup truck to the hospital. There, her blood was evaluated for the presence of alcohol in accordance with hospital procedure for trauma patients. The analysis revealed a blood alcohol level in the range of 0.192 percent to 0.208 percent, well above the legal limit of 0.08 percent.

The defendant, Nicki A. Nelson, was charged on May 25, 2005, with (1) operating a motor vehicle while under the influence of intoxicating liquor, and causing serious bodily injury to Stanley Bates, in violation of § 31-27-2.6 (count 1); (2) operating a motor vehicle in reckless disregard of the safety of others that caused serious bodily injury to Stanley Bates as a proximate result of operating the vehicle, in violation of § 31-27-1.1 (count 2); (3) operating a motor vehicle while knowingly having in said motor vehicle or in her possession a controlled substance, to wit, marijuana, as defined by G.L. 1956 § 21-28-1.02, in violation of § 31-27-2.4 (count 3); and (4) unlawfully, with knowledge and intent, possessing a controlled substance classified as marijuana by § 21-28-2.08, in violation of § 21-28-4.01(c)(2)(ii) (count 4). 1 On February 14, 2007, a jury returned a verdict acquitting Nelson of operating a motor vehicle while in possession of a controlled substance, but convicting her on the charges of driving under the influence and causing serious bodily injury and driving to endanger and causing serious bodily injury. On April 27, 2007, the trial justice sentenced Nelson on count 1 to ten years to serve at the Adult Correctional Institutions, a $1,000 fine, two-year loss of license upon release, and alcohol treatment in prison, as well as restitution for Bates's incurred and continuing expenses and lost wages. For count 2, the trial justice sentenced Nelson to a suspended five-year sentence, with five years probation on the condition that Nelson undergo substance-abuse counseling upon release. Nelson filed a timely notice of appeal.

On appeal before this Court, defendant argues that her convictions should be vacated because (1) the trial justice erred when he denied a defense motion for a mistrial after a prospective juror made an inappropriate comment during the voir dire; (2) the trial justice erred in admitting the evidence of the blood-alcohol-level analysis done at South County Hospital because of an insufficient showing of chain of custody of the blood specimen; and (3) the trial justice erred when he questioned two of the state's witnesses, John B. Kettelle, M.D. and Mr. Dennis Hilliard.

Standard of Review

The trial justice is vested with considerable discretion when ruling on a motion to pass a case and declaring a mistrial. State v. LaPlante, 962 A.2d 63, 70 (R.I.2009). Thus, this Court will reverse the trial justice's ruling only if it was clearly wrong. State v. Mendoza, 889 A.2d 153, 158 (R.I.2005). We afford the ruling such deference because the trial justice has a " front-row seat" at the trial, allowing the trial justice to " best determine the effect of the improvident remarks upon the jury." State v. Figueroa, 673 A.2d 1084, 1091 (R.I.1996) (quoting State v. Tempest, 651 A.2d 1198, 1207 (R.I.1995)). Therefore,

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the trial justice's determinations about the remarks' prejudicial quality and whether to conduct an individual voir dire of each juror to determine his or her ability to render a fair and impartial verdict also are reviewed under an abuse-of-discretion standard. State v. Ramirez, 936 A.2d 1254, 1267-68 (R.I.2007); State v. Gomes, 690 A.2d 310, 315 (R.I.1997) (citing State v. Taylor, 423 A.2d 1174, 1175 (R.I.1980)); State v. Carmody, 471 A.2d 1363, 1366 (R.I.1984). Overall, " the conduct of a trial is within the sound discretion of the trial justice." State v. Giordano, 440 A.2d 742, 745 (R.I.1982) (citing Padula v. Machado, 416 A.2d 1184 (R.I.1980); Pucci v. Algiere, 106 R.I. 411, 261 A.2d 1 (1970)).



Juror's Comment

On the first day of jury selection, the trial justice questioned prospective jurors on whether any circumstances existed that would affect their " ability to be fair and impartial in this case." After questioning a number of prospective jurors, the trial justice asked Juror 29 whether she had " heard the questions already asked" and did she " have a response to any of them." She replied in the affirmative. The trial justice then asked whether she would like to be heard at sidebar or, alternatively, what was the question to which she would like to respond. Instead, she replied, " Well, I'm a college professor. I have had three students killed by drunk drivers." 2 The trial justice then promptly excused her without further questioning. Defense counsel immediately moved for a mistrial. The trial justice gave a cautionary instruction to the jurors, telling them " to disregard those comments" made by Juror 29, and then he dismissed them for the day.3 Defense counsel argued that the comment was " highly" prejudicial, apparently assuming that Juror 29 was a University of Rhode Island professor and that her deceased students had been killed in the same geographic area as pertinent in this trial.4 Defense counsel further disputed

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that a curative instruction would be effective because the " inflammatory statement" had " contaminate[d]" the panel by suggesting " that we have to do something about these drunk drivers driving around, and * * * here is your opportunity." Defense counsel also stressed that, as a practical matter, the motion to pass should be granted given the early stage of the trial. The trial justice observed, however, that there were not enough available jurors to simply begin anew the next day if the motion was granted. The state maintained that a mistrial was not warranted and that the trial justice's curative instruction to the jury to disregard the comment was sufficient because the comment did not " point any finger at this defendant."

The next day, before the jurors were brought into the courtroom, the trial justice denied the motion to pass. Even in doing so, he characterized Juror 29's unresponsive comment as " emotionally" and " almost vindictively" delivered. Nonetheless, he ruled that the comment would not " prevent[ ] [the jurors'] calm and dispassionate evaluation of the evidence." 5 However, the trial justice acknowledged on the record that he may " revisit the issue" after he asked the jurors whether they could follow his cautionary instruction to disregard the comment. The trial justice then addressed the jury panel as a group, rather than individually, precipitating another objection from defendant. The trial justice asked the prospective jurors whether they would be able to follow his cautionary instruction from the day before, and he received an affirmative response.6 The trial then proceeded until its conclusion on February 14, 2007.

On appeal, Nelson argues that the trial justice erred when he denied her motion to pass the case because Juror 29's comment was " incendiary" and prejudicial because it encouraged the jury to convict the defendant. Nelson further contends that the trial...

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