State v. Boucher, 86-490

• Decision Date: 17 May 1988
• Docket Number: No. 86-490,86-490
• Citation: 542 A.2d 236
• Court: Rhode Island Supreme Court
• Parties: STATE v. Daniel BOUCHER. C.A.

Page 236

542 A.2d 236

STATE v. Daniel BOUCHER.

No. 86-490 C.A.

Supreme Court of Rhode Island.

May 17, 1988.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Mary E. Rogers, Asst. Attys. Gen., for plaintiff.

Catherine A. Gibran, Janice M. Weisfeld, Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

WEISBERGER, Justice.

This case is before us on appeal by the defendant from a judgment of conviction of murder in the second degree. We affirm. The facts of the case insofar as pertinent to this appeal are as follows.

On March 9, 1985, the body of the victim, Kathy Demers, was found in the Blackstone River in Woonsocket at the intake grate of the Thunder Mist Hydro-Electric Plant. An autopsy conducted by Dr. Arthur Burns, the Deputy Chief Medical Examiner for the State of Rhode Island, revealed that the victim had died as a result of asphyxia due to strangulation and that the manner of death was homicide. The autopsy further revealed a blood-alcohol level of 0.15.

Kathy Demers (Kathy) was last seen alive early on the morning of New Year's Day, 1985. She and defendant, Daniel Boucher (Boucher), left the home of her mother, Theresa Demers (Ms. Demers), at approximately 8:30 p.m. to celebrate New Year's Eve. The defendant had been living with Kathy and her son in Ms. Demers's home during the Christmas holiday. Ms. Demers testified over defendant's objections that during Christmas week she had asked defendant to move out of her house, which he did. She said that Kathy planned to move to California with her son after the New Year. Ms. Demers further testified that when her daughter left the house on New Year's Eve, she was wearing a tan jacket that Ms. Demers "believe[d]" belonged to defendant.

Testimony by witnesses for the state revealed that the two were seen together in the Woonsocket area that night at the First Avenue Pub, the Hillside Cafe, and at the home of John Beauregard. Testimony revealed also that Kathy and Boucher consumed substantial amounts of beer and also some marijuana and cocaine. John Beauregard testified that Kathy and Boucher left his house at approximately 1:45 a.m. on New Year's Day 1985.

Debra Ethier, who regarded herself as the "best friend" of the victim, was the only witness for the state to claim to have seen Boucher kill Kathy. Ms. Ethier said that both Kathy and Boucher had planned to go to California after the New Year.

Ms. Ethier testified that she first saw Kathy and Boucher on New Year's morning at approximately 2:15 a.m. After a short conversation on the street corner where they met, the three walked to Ms. Ethier's mother's house to get more beer. Upon arriving, Boucher waited outside while the two women went into the house. While inside the house, Kathy informed Ms. Ethier that Boucher could not go to California with her. After returning with the beer, Ms. Ethier testified that they went underneath the Bandwagon Bridge to the riverbank, where the three consumed the beer and some cocaine.

Ms. Ethier then testified that Kathy told Boucher that he could not accompany her when she went to California. Upon hearing this fact, Boucher started repeatedly slapping and punching Kathy, who began yelling, "Stop it. * * * Stop it." After also urging Boucher to stop, Ms. Ethier became frightened and ran back up the hill to the street. After a few minutes, Ms. Ethier returned to the top of the riverbank, where she saw Boucher rolling Kathy's body into the Blackstone River. Ms. Ethier said she knew it was Kathy's body because she recognized her sneakers, her hair, and the tan jacket Kathy was wearing.

Ms. Ethier said that she did not contact the police because she feared for her own safety. She also told the police in January of 1985 that she did not have any information and that she had not seen Kathy. Ms. Ethier also testified that she thought she had seen Kathy's body in the Blackstone River one morning in the beginning of January but did not call the police. She testified further that she did not contact the police until after Kathy's body was found in March 1985, and she also admitted lying under oath at an earlier hearing when she denied any knowledge of the homicide.

Lucille Botelho and her daughter Kim Lariviere, who live near the Bandwagon Bridge, both testified that they heard a woman screaming late New Year's Eve. Ms. Botelho believed she heard what she described as a woman screaming the words, "Dan, stop it, Danny. Danny, stop it."

Oscar Sevigny, a detective sergeant with the Woonsocket police department, testified that he had been involved in the search for Kathy. After the body was discovered he said he learned that Boucher was in Florida, to which he had traveled after Kathy's disappearance. Thomas Chute testified that on January 2, 1985, Boucher asked him if he could drive down to Florida with him. Sergeant Sevigny also testified that Boucher was very cooperative with the police.

Carol Boucher, defendant's sister-in-law, testified that on the evening of January 1, 1985, she noticed that one of defendant's hands was swollen around the knuckles. The defendant told her he had injured his hand earlier that day in a fight at the Hillside Cafe. However, Charles McCarthy, a bartender at the bar, testified that he had worked from noon to 6 p.m. on January 1, 1985, and that he could not recall a fight occurring during his shift.

Walter Moody testified that he was Boucher's cellmate at the Adult Correctional Institutions (ACI) for thirty days after Boucher was arrested. Mr. Moody said that during this time Boucher told him that he had killed Kathy.

The jury found Boucher guilty of second-degree murder, and the trial justice sentenced him to life imprisonment at the ACI. Boucher filed a timely appeal from his conviction.

In support of his appeal, defendant raises three issues that will be addressed in the order in which they are presented in defendant's brief. Further facts will be provided as necessary to a determination of the issues.

I WHETHER THE TRIAL JUSTICE ERRED IN NOT ALLOWING DEFENDANT'S WITNESS, ROBERT COTE, TO GIVE EXPERT TESTIMONY ABOUT THE SHRINKAGE CHARACTERISTICS OF FINISHED GARMENTS

The defendant first argues that the trial justice erred in excluding certain testimony by Mr. Robert Cote concerning the shrinkage characteristics of finished garments. The state had introduced evidence that Kathy was wearing defendant's jacket on the night she was killed. The defendant attempted to introduce through Mr. Cote an opinion that the jacket found on the victim's body had not shrunk since being immersed in the Blackstone River. In effect the defense theory was that the jacket was too small to fit defendant and thus did not belong to him. The defendant asserts that Mr. Cote had sufficient expertise in the field of textile dyeing and finishing of fabric to offer an expert opinion regarding the shrinkage of the jacket.

This court has long held that the question of whether a witness is qualified to express an opinion as an expert is a matter that is committed to the sound discretion of the trial justice and that the exercise of such discretion will not be disturbed on review by this court absent a showing of abuse. Mangasarian v. Gould, 537 A.2d 403 (R.I.1988); Richardson v. Fuchs, 523 A.2d 445 (R.I.1987); Greco v. Mancini, 476 A.2d 522 (R.I.1984); Gormley v. Vartian, 121 R.I. 770, 403 A.2d 256 (1979); Leahey v. State, 121 R.I. 200, 397 A.2d 509 (1979); Schenck v. Roger Williams General Hospital, 119 R.I. 510, 382 A.2d 514 (1977).

Robert Cote testified that he had forty years of experience as a textile finisher and dyer of fabrics, fibers, and yarns. Mr. Cote also stated that he had studied textile dyeing and finishing for three years at Rhode Island School of Design. He also stated that he worked with fabric prior to the fabric's becoming a finished garment.

Testimony elicited from Mr. Cote on cross-examination regarding his qualifications revealed that he possessed very limited experience regarding the shrinkage of finished garments.

"Q. And what experience, if any, do you have with dealing with measuring shrinkage of an already completed garment?

"A. Very little in measuring of completed garments. The fabric is usually tested for shrinkage, for tensile strength, before it goes to the cutter to be made into a garment.

"Q. So you have very little experience noting how much a completed garment would shrink after it is done?

"A. A completed garment should not shrink if the goods for the garment are properly prepared.

"Q. When you say should not shrink, do you have any experience in documenting or determining, if it does shrink?

"A. Yes. There are standard tests prescribed by the American Association of Textile Chemists and Colorists that specifically state how you test the fabric and what is acceptable in the trade for normal shrinkage.

"Q. Okay. Now, you're talking about the fabric prior--

"A. Prior to it going into a garment.

"Q. What I'm asking is do you have any experience in determining shrinkage of a completed garment?

"A. No, I do not.

"Q. Do you have any experience in determining how much a garment can stretch after being completed?

"A. No, sir."

During continued direct examination by defense counsel, objections from the prosecution were repeatedly sustained by the trial justice on the ground that the questions sought factual determinations relative to the jacket and the witness was not shown to have any knowledge of the facts regarding the finishing of the particular jacket in question.

We believe that the trial justice committed no abuse of discretion in not allowing Robert Cote to testify about the shrinkage characteristics of the jacket found on the body of the victim. The questions as addressed by defense counsel did in fact call for factual determinations concerning the jacket found on the victim's body. The defense counsel sought to have Mr. Cote testify regarding the process used for finishing the fabric from which the jacket was made....