State v. Bojang

• Decision Date: 30 January 2014
• Docket Number: No. 2010–361–C.A.,2010–361–C.A.
• Citation: 83 A.3d 526
• Parties: STATE v. Mustapha BOJANG.
• Court: Rhode Island Supreme Court

83 A.3d 526

STATE

v.Mustapha BOJANG.

No. 2010–361–C.A.

Supreme Court of Rhode Island.

Jan. 30, 2014.

Lauren S. Zurier, Department of Attorney General, for State.

Kara J. Maguire, Office of the Public Defender, for Defendant.

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

OPINION

Justice GOLDBERG, for the Court.

After a six-day trial, a Superior Court jury convicted the defendant, Mustapha Bojang (defendant), of two counts of first-degree child molestation sexual assault. The defendant contends that the trial justice committed three errors that require this Court to vacate those convictions: (1) the denial of the defendant's motion to suppress statements made to police during a post-arrest interrogation; (2) the refusal to allow the defendant to inquire into a false accusation of physical abuse by the complainant against her mother; and (3) the denial of the defendant's motion for a new trial. For the reasons set forth below, we remand the case to the Superior Court with directions to the trial justice to make additional findings of fact and credibility determinations concerning the voluntariness of the defendant's confessions.

Facts and Travel

The defendant came to the United States from West Africa in 2005 on a student visa. After brief stays in Maryland and Missouri, defendant settled in Woonsocket with the Manneh family. Mrs. Manneh (Jainoba) was the cousin of defendant's wife, who remained in Africa while defendant traveled to the United States. Jainoba ¹ lived in a second-floor apartment with her husband, Abou Manneh, and their three children, including the complainant, Jasmine. ² The defendant lived with the Manneh family from January 2005 until December 2007; a number of other adult males also lived in the apartment with the Mannehs from time to time.³ Because he was home in the afternoon, defendant would sometimes babysit Jasmine if neither Abou nor Jainoba was home.

The sexual abuse that is the subject of this case occurred in 2007, when Jasmine was eight years old. Jasmine first disclosed the sexual molestations to her fourth-grade teacher and a school guidance counselor in January 2009. After Jasmine reported defendant's alleged abuse, the school officials contacted the Department of Children, Youth and Families (DCYF). When DCYF investigator Sue Kalo (Kalo) interviewed Jasmine, she disclosed that she was raped twice by defendant. Soon after that interview, Jasmine was examined by Dr. Christine Barron (Dr. Barron); the child indicated two separate instances of sexual abuse to Dr. Barron. Doctor Barron's examination was normal, revealing no evidence of physical trauma.

When Jasmine's father learned about her disclosures, he met with Kalo and reported the sexual abuse allegations to the Woonsocket police on January 27, 2009. Based on the information provided by DCYF and a Child Advocacy Center (CAC) interview, Woonsocket Police Det. Kevin Hammann (Det. Hammann) obtained an arrest warrant for defendant. At the time, defendant was living with Abou's brother at another location in Woonsocket. Detective Hammann and Woonsocket Police Det. Ronald LaBreche (Det. LaBreche) arrested defendant at that site on February 2, 2009. Woonsocket Police Officer Anthony Conetta transported defendant to the Woonsocket police station. For clarity, we recount the evidence concerning the voluntariness of defendant's statements as gleaned from the entire trial record and not simply the suppression hearing.

Once at the police station, Dets. Hammann and LaBreche conducted two interviews with defendant: an initial unrecorded interview followed by a recorded confession.⁴ The detectives first placed defendant in the juvenile conference room, which has no recording equipment. During that interview, defendant agreed to waive his Miranda rights and signed a rights form. The testimony at trial produced divergent accounts of the events in the first interview room. At trial, the detectives testified that the interview was largely calm, although Det. LaBreche raised his voice and pounded on the table to get defendant's attention. While the detectives acknowledge raising defendant's immigration status during the interview, each officer denied threatening deportation if he refused to cooperate.⁵ On the other hand, defendant testified at trial that, after he accused Jasmine of lying, Det. LaBreche responded, “Kids don't lie” and struck him in the head. According to defendant, after he expressed a willingness to take a lie detector test, Det. LaBreche hit him again and said, “This is your lie detector test. Shut the f* * * up.” The defendant also alleged that the detectives told him that he would be deported if he refused to cooperate.

Detective Hammann testified that, after first denying the allegations against him, defendant admitted that he kissed Jasmine on the lips and that on one occasion he stuck his finger in Jasmine's vagina. Detective LaBreche initially testified that, after defendant admitted to kissing Jasmine on the lips, the detectives decided to bring him to the interview room with recording capabilities. After having his recollection refreshed by Det. Hamman's witness statement, however, Det. LaBreche testified that, in the first interview, defendant also confessed to sticking his finger in Jasmine's vagina and rubbing up against her on two occasions, once when she was clothed and the other unclothed.

According to Det. Hammann, after the verbal admissions, he requested that defendant provide a video and audio interview, and defendant agreed. The detective brought defendant to a different room with recording capabilities. Once again, defendant signed a form waiving his Miranda rights. In the recorded interview, defendant admitted to assaulting Jasmine multiple times. He admitted to kissing her three times and rubbing against her while clothed “a couple of times.” He admitted to penetrating her vagina digitally, while in the family sitting room, when Jasmine was home sick from school. Finally, defendant admitted to rubbing his naked body against hers, while on his bed, until he ejaculated. We pause to note that, although defendant argued, both in the papers and again at oral argument, that the jury's verdict related only to the crimes to which he confessed, such is not the case. The defendant never admitted to penile penetration, yet the jury found him guilty of count 8, which charged defendant with “[First] degree child molestation sexual assault, to wit, penis to vagina * * *.” ⁶

Prior to trial, defendant moved to suppress all statements to the police, arguing that use of those statements would violate the Fifth and Fourteenth Amendments to the United States Constitution and article 1, section 6 of the Rhode Island Constitution because the statements were “the result of physical, psychological coercion and also because of the State's or the police department's failure to record the interrogation in its entirety.” ⁷ After a two-day hearing, however, the trial justice denied the motion. In his bench decision, he noted the difference in dynamics of Det. Hammann's direct examination and cross-examination testimony, as well as the witness's professed failure of memory about portions of the first interrogation. Specifically, Det. Hammann could not remember whether a table was pounded or whether Det. LaBreche struck defendant in the head. However, the trial justice failed to make any credibility determinations concerning Det. Hammann's testimony.

Turning to the videotaped confession, however, the trial justice found that defendant was relaxed and not apprehensive. Ultimately, the trial justice declared that the state had proven by clear and convincing evidence that the confession obtained during the second interview was not the product of coercion and that defendant knowingly, intelligently, and voluntarily waived his Miranda rights.

At trial, the videotaped interview was admitted into evidence and played for the jury, over defendant's renewed objection. Detective LaBreche—who did not testify at the suppression hearing—testified about incriminating statements defendant also made during the first interview. Detective Hammann also gave similar testimony about the first interview. The record discloses that both detectives were subject to vigorous cross-examination respecting the voluntariness of defendant's confessions.

At trial, Jasmine described a number of sexual assaults by defendant. She testified that, when she was eight years old and in second grade, defendant pulled her into his room, locked the door, shut off the light, and took her clothes off. He then pushed her onto his bed and engaged in vaginal intercourse with her. Jasmine testified that during this molestation, defendant threatened to kill her or beat her up if she told anyone. After the intercourse ended, Jasmine noticed something white and wet in the middle of the bed, and defendant asked her to get a napkin for him. Jasmine then went to the bathroom, where she noticed blood on her vagina and underwear.

Next, Jasmine testified to another similar assault where defendant carried her from the living room to his bedroom and forced her to engage in sexual intercourse while her parents were not home. Again, she noticed blood. The child also liked to play online games on defendant's computer.One day, when she asked to use his computer, he told her she had to come into his room. Although she refused, Jasmine testified that defendant pulled her into his room anyway and again engaged in sexual intercourse with her.

Jasmine testified to five other instances of forced sexual intercourse. One instance occurred on the couch when she was home sick from school; another assault occurred in his bedroom after she returned from her aunt's house; another assault occurred in her bedroom; and two more assaults occurred in defendant's bedroom. Additionally, Jasmine testified that during one of the assaults in defendant's bedroom, he also...