State v. Botelho

• Decision Date: 14 June 2000
• Docket Number: No. 98-93-C.A.,98-93-C.A.
• Citation: 753 A.2d 343
• Parties: STATE v. Christopher M. BOTELHO.
• Court: Rhode Island Supreme Court

753 A.2d 343

STATE v. Christopher M. BOTELHO.

No. 98-93-C.A.

Supreme Court of Rhode Island.

June 14, 2000.

Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Virginia M. McGinn, Aaron L. Weisman, Providence, for Plaintiff.

Janice M. Weisfeld, Paula Rosin William C. Dimitri, Providence, for Defendant.

OPINION

LEDERBERG, Justice.

The defendant, Christopher M. Botelho (defendant), has appealed a judgment of conviction of molesting his girlfriend's thirteen-year-old and sixteen-year-old daughters. On December 1, 1997, he was sentenced to concurrent terms of fifty years on all counts of first-degree child molestation, of which twenty-five were ordered to be served and twenty-five suspended, and to concurrent terms of twenty-five years to serve on the counts of second-degree child molestation. For the reasons set forth below, we deny and dismiss the appeal and affirm the judgment in all respects.

Facts and Procedural History

In early 1989, defendant began residing with his girlfriend and her four children: twin boys, who were five years old, and the complaining witnesses, whom we shall call Lisa, who was ten, and Jill, who was seven. The defendant lived with the family for six years in several locations. On December 20, 1994, Jill alleged to the Department of Children, Youth and Families (DCYF) and to the police that defendant had engaged in sexual activity with her. He was thereafter charged by indictment on eight counts of first-degree child molestation, in violation of G.L.1956 § 11-37-8.1, and ten counts of second-degree child molestation, in violation of § 11-37-8.3.

Both Jill and Lisa testified at the trial that followed. Jill testified that defendant began molesting her at the family's apartment in Providence when she was nine years old. The sexual assaults continued, averaging once or twice a week over the next several years. Although defendant had told her that the abuse should be "[their] secret," Jill testified that she told several people, including her mother, friends from school, and a neighbor. Finally, one of the friends alerted DCYF, prompting the events that led to defendant's arrest.

Lisa also testified that she was molested by defendant. According to Lisa's testimony, the abuse began as sexual touching and soon escalated into intercourse. He started abusing her when she was twelve years old and, Lisa testified, the molestations were a daily occurrence. Lisa testified that she confided this to her mother, but the abuse did not stop. Lisa also testified that she witnessed defendant molesting Jill. Although the sisters never discussed the abuse, Jill placed notes under Lisa's pillow with the message, "Help me." When asked why she didn't tell anybody that defendant was molesting her younger sister, Lisa responded that she saw it as a way for her to escape the abuse. On September 18, 1997, a jury returned a verdict of guilty on all counts. The defendant appealed, raising four issues.

Cross-Examination on Prior Allegations

The defendant contended first that the trial justice improperly limited the scope of his cross-examination of Jill. Specifically, defense counsel sought to question Jill about unfounded allegations of physical and sexual abuse that she allegedly had lodged both against her natural father and her mother's former boyfriend. The defendant argued that the trial justice's decision to prohibit this line of questioning violated his federal and state constitutional rights to confrontation and cross-examination of witnesses against him.

An accused in a criminal prosecution is guaranteed the right to confront witnesses, pursuant to the Sixth Amendment to the United States Constitution. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974). "This right is applicable in state criminal proceedings through the Fourteenth Amendment to the United States Constitution, Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), and by art. 1, sec. 10, of the Rhode Island Constitution." State v. Pettiway, 657 A.2d 161, 163 (R.I.1995). The right to cross-examine witnesses is a primary interest secured by the confrontation clause. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965).

Applying this principle, this Court has held that "[e]ffective cross-examination is an essential element of the presentation of a full and fair defense and is guaranteed by both the State and the Federal Constitutions." State v. Veluzat, 578 A.2d 93, 94 (R.I.1990). Furthermore, a "cross-examiner must be given a reasonable opportunity to explore and to establish any possible bias, prejudice, or ulterior motive that a witness may possess that might affect the witness' testimony." Id. 94-95. Nevertheless, the scope of cross-examination is not unlimited. It is within the trial justice's sound discretion to limit the extent of cross-examination, and we shall not disturb such a ruling on appeal absent a showing of clear abuse of that discretion. Id. at 95.

During the cross-examination of Jill, defense counsel asked whether she had lodged accusations of excessive discipline with DCYF against her mother's former boyfriend. The prosecutor objected, and the trial justice sustained the objection. During the sidebar conference that followed, the trial justice explained,

"I'm not going to allow you to try to prove that these are concocted charges by virtue of the fact that she complained about excessive discipline from [her mother's former boyfriend]. I will certainly allow you, as I indicated in my ruling, to show that she made an unfounded complaint of sexual abuse against [the boyfriend]. The fact that she concocts a charge of unfounded sexual abuse from a complaint of discipline is where I'm drawing the line."

The cross-examination continued. At the request of defense counsel, the parties again convened at sidebar, where defense counsel argued that he should be allowed to question Jill about accusations of sexual abuse against her father. The prosecutor contended, however, that DCYF records contained no indication that Jill ever had made sexual allegations against her father. Before deciding on the admissibility of the evidence in question, the trial justice allowed defense counsel to conduct a voir dire hearing in which Jill testified outside the presence of the jury. The pertinent part of the examination progressed as follows:

"Q [Jill], prior to these allegations being brought against [defendant], it's true that you had also made allegations of sexual impropriety against your natural father; isn't it?

"A No, sir.

"Q You never told [DCYF] that he would gather you, your sister and your brothers and make you kiss each other sexually?

"A No, sir.

"Q So those allegations were untrue?

"A Yes, they are.

"Q And D.C.F. — did you ever speak to [DCYF] while your father was living with you?

"A No.

"Q Did you ever speak to [DCYF] after your father left the house?

"A I don't believe so. I don't know.

"Q You never made those allegations against your father?

"A No, I didn't.

"After considering Jill's unequivocal denial that she had made such allegations against her father and in light of defendant's inability to produce evidence to the contrary, the trial justice precluded defense counsel from cross-examining Jill about the alleged accusations.

This Court has held that evidence of similar accusations by a complaining witness may be admissible to challenge the witness's credibility. State v. Izzi, 115 R.I. 487, 490, 348 A.2d 371, 372-73 (1975). We have explained that "guilt or innocence often turns on the relative credibility of the prosecut[or] and the accused; by the knowledge that the charge, though easily made, can be disproved only with difficulty; and by the possibility that the accusation may be fantasized or motivated by malice." Id. at 490, 348 A.2d at 372. The evidence may be admissible even when the allegations were never proven false or were never withdrawn. State v. Oliveira, 576 A.2d 111, 113 (R.I.1990). Moreover, evidence of alleged false charges may be admissible regardless of whether the accusations were made before or after those made in respect to a defendant. State v. McCarthy, 446 A.2d 1034, 1035 (R.I. 1982).

In recognizing the importance of this type of evidence in cases of sexual allegations, we have held that in a prosecution for a child molestation, the trial justice erred in refusing to allow defendant to cross-examine the complaining witness about sexual abuse allegations she had made against other men. Pettiway, 657 A.2d at 164. Likewise, we were persuaded in Oliveira, 576 A.2d at 113, that the trial justice improperly infringed on defendant's right to confrontation and effective cross-examination by not allowing defendant the opportunity to question the child witness about previous allegations of sexual assault.

In the case sub judice, counsel for the defense sought to undermine Jill's credibility by offering evidence that her accusations were part of a pattern. He argued at sidebar that the jury should beallowed to hear that Jill had made similar accusations about her natural father and her mother's former boyfriend. The record before us, however, is completely devoid of any evidence that Jill made similar sexual accusations against the two men. In this case, Lisa had made sexual allegations against her mother's former boyfriend, and defense counsel was allowed to elicit this information during her cross-examination. In addition, defendant was permitted to imply that the charges were unfounded because the accused was not indicted, and the charges were dismissed.

It is our considered opinion that Jill's complaint of excessive discipline, purportedly lodged against her father¹ and her mother's former boyfriend, is fundamentally different from a complaint of sexual molestation. We agree with the trial justice that admission of this evidence would have served only to confuse and...