State v. Babbitt

• Decision Date: 15 March 1983
• Docket Number: No. 81-222-C,81-222-C
• Citation: 457 A.2d 1049
• Parties: STATE v. John Francis BABBITT, Jr. A.
• Court: Rhode Island Supreme Court

Page 1049

457 A.2d 1049

STATE v. John Francis BABBITT, Jr.

No. 81-222-C.A.

Supreme Court of Rhode Island.

March 15, 1983.

Reargument Denied April 14, 1983.

Dennis J. Roberts II, Atty. Gen., Sharon O'Keefe, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Janice M. Weisfeld, Asst. Public Defender, for defendant.

OPINION

KELLEHER, Justice.

In this criminal action, a Superior Court jury returned guilty verdicts against the defendant, John Francis Babbitt, Jr. (Babbitt), on nine of the eleven counts in an indictment reported by a grand jury on January 11, 1980. The indictment charged Babbitt with committing various sexual offenses between August of 1977 and June of 1979. Specifically, the offenses included three counts of "rape," in violation of G.L.1956 (1969 Reenactment) § 11-37-1; six counts of committing the "abominable and detestable crime against nature," in violation of § 11-10-1; and two counts of transporting "for the purposes of lewd and indecent acts," in violation of § 11-34-5. A defense motion for a judgment of acquittal on one of the "crime against nature" counts was granted by the trial justice, and the jury returned a not-guilty verdict on another such count. On the remaining nine counts, Babbitt was sentenced to an aggregate term of thirty years' imprisonment.

Babbitt raises several issues on this appeal from his conviction. He contends that (1) the trial justice erred by allowing an inculpatory statement into evidence; (2) the court lacked jurisdiction over the "rape" counts of the indictment; (3) the court lacked jurisdiction over the "crime against nature" counts of the indictment; and (4) the court should have declined jurisdiction over the "transporting for indecent purposes" counts because they were vitiated by a legislative amendment. Before addressing ourselves to the merits of Babbitt's arguments, we shall review the facts.

The two victims of Babbitt's sexual assaults were his fifteen-year-old niece and his ten-year-old stepdaughter. At trial, both victims testified about a variety of sexual assaults that had occurred over a two-year period, the sordid details of which are not germane to the issues raised on appeal. Upon the completion of their testimony, a question arose regarding the admissibility of an express admission of guilt by Babbitt which had been related to his sister-in-law, Lenore. Babbitt's attorney complained that the state had notified him of the inculpatory statement just two days prior to its introduction. He asserted that the "eleventh-hour" disclosure of the admission was a violation of Babbitt's prior request for discovery under Rule 16 of the Superior Court Rules of Criminal Procedure.

The trial justice held a voir-dire hearing on Babbitt's motion to preclude the state from permitting Lenore to testify. The motion was denied; thereafter, Lenore testified that on September 23, 1979, Babbitt told her, "Lennie, I'm sorry for what I have done, and I'm ashamed * * * and I was hoping it was going to be a skeleton that was put in the closet and not let out." With respect to the timeliness of the disclosure of the statement to defense counsel, Lenore averred that she had not apprised the police of Babbitt's confession during the investigation. However, she explained that she had previously disclosed the confession to Babbitt's wife, Karen. Lenore further testified that she was first notified that she was to appear as a witness in the case two days before her testimony was given and that it was only on the preceding Monday that she had first disclosed the contents of the confession to law-enforcement personnel.

Following Lenore's testimony, Karen appeared as a state witness and testified that she had spoken to two officers, Detective Bricault and Lieutenant Sullivan, at the Central Falls police station about the sexual assaults. However, she could not recall whether or not she had divulged Babbitt's confession to either of them. Karen explained that she "was under quite a bit of pressure at the time, and it's possible I did tell them. It's also possible I did not tell them." Finally, in his testimony, Detective Bricault avowed that Karen failed to mention Lenore's statement about Babbitt's confession to him on any of the occasions that he interviewed her.

We shall first dispose of Babbitt's allegation that the trial justice erred in allowing Babbitt's inculpatory statement into evidence. Babbitt alleges that the state failed to comply with the discovery provisions of Super.R.Crim.P. 16. Rule 16 provides that the attorney for the state, upon written request, shall deliver to the defendant specified items known to the state or those that "by the exercise of due diligence may become known to the attorney for the State."

In determining whether or not the state had violated the provisions of Rule 16, the trial justice made certain findings of fact based on the voir-dire testimony of Lenore, Karen, and Detective Bricault. He found that (1) neither the Attorney General nor the Central Falls police had in their possession the substance of Lenore's testimony when the case was being prepared for trial; (2) the police department did not deliberately attempt to keep the information from Babbitt or the Attorney General; and (3) Lenore's testimony could not have been discovered through the exercise of due diligence. Relying on these findings, the trial justice concluded that the state had not violated its duty to disclose pursuant to Rule 16 and thus declined to impose the sanctions requested by Babbitt.

The imposition of sanctions under Rule 16 is a matter within the sound discretion of the trial justice. State v. Darcy, R.I., 442 A.2d 900, 902 (1982). We shall not disturb a decision of a trial justice made in the exercise of a discretionary power unless it clearly appears that such discretion has been abused or improperly exercised. Berberian v. Travisono, 114 R.I. 269, 273-74, 332 A.2d 121, 124 (1975); Levy v. Equitable Fire & Marine Ins. Co., 88 R.I. 252, 254, 146 A.2d 231, 232-33 (1958). With these rules in mind, we cannot say that Babbitt has sustained his burden of establishing that the trial justice abused his discretion in allowing the admission into evidence.

Babbitt was afforded the opportunity of a full and fair hearing on his objection to the introduction of his inculpatory statement. Under such circumstances a hearing is mandated when one is requested by the defendant. See e.g., United States v. Espericueta-Reyes, 631 F.2d 616 (9th Cir.1980). In our opinion, the trial justice's determination following the voir-dire hearing that the state had acted with due diligence was reasonable. We reach this conclusion relying upon Lenore's testimony that she had not previously revealed Babbitt's confession to the police, Karen's lack of certainty about what she had told the police, and Detective Bricault's avowal that Karen had not disclosed the confession to him. Moreover, as the trial justice noted, the prosecutor related the nature of Lenore's testimony to defense counsel as soon as it became available. In light of the foregoing, we can discern no error in the trial justice's decision to admit the inculpatory statement.

Babbitt also attacks the introduction of his admission on constitutional grounds, alleging that it violated his right to a fair trial. There is no question that under certain circumstances the belated disclosure of inculpatory statements made prior to trial may interfere with a defendant's right to due process and effective assistance of counsel. State v. Darcy, R.I., 442 A.2d 900, 903 (1982). The first essential of trial fairness is to ensure a reasonable time for adequate preparation of the accused's defense. United States v. Anderson, 509 F.2d 312, 323 (D.C.Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975).

The tension between the defendant's right to a fair trial and the probative value of inculpatory statements is reconciled when appropriate procedural safeguards are employed. In United States v. Espericueta-Reyes, 631 F.2d 616, 622-24 (9th Cir.1980), the government learned of the defendant's inculpatory statements the day before trial during the pretrial interview with the witness. The substance of the newly discovered statements was promptly disclosed to defense counsel, and he was made aware of the government's intent to use the statements at trial. The trial justice permitted the government to introduce the defendant's statements after offering defense counsel a recess or additional time to rebut or counteract the effect of the admission of the inculpatory statements. The court ruled that the trial justice did not err in admitting the statements into evidence in the absence of a showing by the defendant that the disclosure on the eve of trial had prejudiced him. Id.; see also United States v. Anderson, 509 F.2d 312, 325 (D.C.Cir.1974).

Similarly, in the case at bar, the trial justice found that the government in good faith did not learn of Babbitt's confession until the eve of trial. Defense counsel was promptly informed of the admission and the government's intent to introduce it at trial. The trial justice offered Babbitt an opportunity to request a recess following the close of Lenore's direct testimony if he needed more time to prepare adequately before commencing cross-examination. He also assured Babbitt that he would entertain a motion to give him more time in which to counteract the effect of Lenore's testimony at a later point in the trial. It is clear to us that the trial justice adequately protected Babbitt's due-process rights by affording him these opportunities to request more time throughout the trial. See State v. Coelho, R.I., 454 A.2d 241 (1982). Under such circumstances, Babbitt cannot complain that the introduction of the admission constituted the "complete surprise" required in State v. Darcy, R.I., 442 A.2d 900, 903 (1982), to maintain successfully that effective...