State v. Brown

• Decision Date: 13 March 1998
• Docket Number: No. 95-648-C,95-648-C
• Citation: 709 A.2d 465
• Parties: STATE v. Danny L. BROWN. A.
• Court: Rhode Island Supreme Court

Page 465

709 A.2d 465

STATE v. Danny L. BROWN.

No. 95-648-C.A.

Supreme Court of Rhode Island.

March 13, 1998.

Annie Goldberg and Aaron L. Weisman, Providence, for Plaintiff.

Paula Rosin, Providence and Stephen P. Nugent, Barrington, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER and FLANDERS, JJ., and SHEA, J. (Ret.)

OPINION

FLANDERS, Justice.

The defendant, Danny L. Brown, appeals from a judgment convicting him on three counts of first-degree sexual assault and three counts of first-degree child molestation sexual assault. The trial justice sentenced him to serve concurrent terms of forty years for each count, with twenty years suspended and twenty years of probation to commence upon his release from incarceration. Because we conclude that none of the Superior Court's challenged rulings constitute error or entitle the defendant to a new trial, we deny and dismiss this appeal for the reasons discussed below.

Facts and Travel

A grand jury indicted defendant for sexually molesting Emily Doe, ¹ his stepdaughter (Emily or complainant). The alleged molestation occurred over an approximately two-and-a-half-year period during which Emily was between the ages of eight and ten years old. On November 30, 1994, after a three-day trial in Superior Court, a jury returned guilty verdicts on all counts. Judgment entered on the verdict and in December 1994 the trial justice denied defendant's motion for a new trial. Sentence was duly imposed on February 14, 1995.

The defendant raised six issues on appeal that he claimed warranted reversal of the Superior Court's judgment. His appeal culminated in a per curiam opinion issued on March 5, 1997, wherein a four-justice panel of this court dismissed defendant's appeal on two of the issues he raised while also indicating that the panel was evenly divided on the remaining four claims of error. Accordingly, the trial court's judgment was affirmed. State v. Brown, 690 A.2d 1336 (R.I.1997). The defendant immediately moved to reargue his appeal upon the availability of a fifth justice. We granted this request for the limited purpose of reexamining only the four issues that had originally ended in an evenly divided court.

At trial the complainant testified that defendant's sexually abusive conduct toward her commenced during the summer of 1983, just after defendant moved in with her mother, Judy Doe (mother or Doe), Emily, and her sister at the mother's home in West Warwick. According to Emily, defendant initially began to abuse her by fondling her breasts and her vaginal area, but this activity soon escalated to oral sex and finally to intercourse. The defendant's sexual abuse of Emily continued for over two years until November 1985, just before defendant married the complainant's mother, and it typically occurred when the mother was at work or out shopping or when her sister was outside playing, in her room sleeping, or with her mother. Emily testified that the sexual abuse occurred on a regular basis throughout this period.

Emily made no mention of the alleged abuse at the time of its occurrence. The defendant had told her "not to tell anybody. It was our secret." However, in 1989, four years after the assaults ceased, Emily and her mother were watching a television talk show (the "Oprah Winfrey Show") on the subject of the sexual abuse of children. Emily exclaimed to her mother that "that happened to me" and subsequently ran out of the room, too "scared" to discuss the matter further. She did not name a perpetrator. Emily's mother testified at trial that when she later confronted defendant with Emily's cryptic exclamation, he denied any knowledge thereof. On cross-examination, however, Emily's mother admitted that in her written witness statement to police she had asserted that defendant had told her that the child had touched him sexually.

Doe and defendant divorced in March 1989. Their marital dissolution was short-lived, however, and after a reconciliation of sorts the couple remarried in June 1991. ² By the fall of 1991 the Brown family had become regular parishioners of the Living Waters Foursquare Gospel Church in Smithfield. The church's pastor, Elizabeth Janikuak (pastor or Janikuak), who had also officiated at the Browns' second marriage ceremony, began noticing that Emily was "manifest[ing] some real angry behavior." Janikuak called Emily into her office because she "wanted to help her." She assured Emily that she was available to talk about any problems she was experiencing and told her to "call me when she was ready to talk * * * because I wasn't going to force her to talk if she didn't want to." Several days later Janikuak received a call from Emily, and they arranged a meeting on October 24, 1991, wherein Emily revealed to Janikuak her history of having been sexually abused by defendant.

After her meeting with Emily, Janikuak attempted to take immediate control of the situation. She contacted defendant and asked him to come to the church to discuss a "very serious matter." Thereafter, she informed him of Emily's accusations, and defendant denied them. However, he told her that on one occasion several years earlier Emily had approached him while he was asleep on the living-room couch, reached into his underwear, and fondled his penis. The defendant reiterated this version of events at trial. He explained that at first he believed that it was his wife waking him up but that when he realized it was his stepdaughter's hand in his pants, he scolded her. According to defendant, he informed Doe of this incident shortly after its alleged occurrence, but nothing more was said about it specifically. The mother's recollection contrasted starkly with that of defendant; she testified that defendant never related any such incident to her at that time.

Janikuak subsequently suggested that the Browns seek counseling with Richard Tanguay, M.D. (Dr. Tanguay), a Christian psychiatrist and former pastor located in Wilmington, Connecticut, who had greater experience in counseling than she did. Doctor Tanguay testified that Janikuak had previously referred other persons to him for similar purposes. On December 12, 1991, defendant and Doe traveled to Connecticut to meet with Dr. Tanguay, and there they discussed with him defendant's sexual abuse of Emily. At trial, Dr. Tanguay testified that defendant's reaction "was one of admission, yes, something of a sexual nature did occur between himself and [Emily]" but that defendant was "minimizing" what had happened. Doe testified at trial that at that counseling session Dr. Tanguay asked defendant, "Was there, you know, abuse?" and defendant responded affirmatively, "Two to three times in a month."

Emily still had yet to confide fully in any family member concerning what had happened to her. According to complainant's mother, it was not until April 7, 1992, in the presence of Janikuak, that Emily finally divulged to her mother the extent to which defendant had abused her. On April 30, 1992, Doe reported the information to the police. Thereafter, in June of 1992 formal criminal proceedings began.

On reargument defendant reasserts the four alleged trial errors over which this court was previously deadlocked. He contends that various rulings by the trial justice, to which we now turn, violated his confrontation rights under the United States Constitution ³ and the Rhode Island Constitution. ⁴

Analysis

I The Denial of Defendant's Pretrial Motion to Compel the State to Produce the Names and Addresses of Physicians Who May Have Treated or Examined Complainant

The defendant's first claim of error arises from a pretrial hearing on defendant's motion to compel the state to produce the names and addresses of "any and all pediatricians or medical doctors from whom [complainant] may have received treatment or been examined from the period May of 1983 through January of 1987." We believe that the hearing justice was correct in provisionally denying--one year before the trial began--such an overbroad and unripe request for the production of trial witness impeachment material. In any event, because the requested confrontation-clause information was not discoverable as a matter of right before trial, defendant was required to seek this information at the time of trial. However, he neglected to do so, and thereby failed to preserve this issue for review.

A. The Defendant Was Not Entitled to Obtain the Requested Information during the Pretrial Discovery Phase of this Prosecution

The defendant's counsel told the Superior Court justice presiding at the November 8, 1993 pretrial hearing that his motion to compel was filed under Rule 16 of the Superior Court Rules of Criminal Procedure. However, as applied to complainant, Rule 16 does not require the state to produce such information as part of pretrial discovery. Other than prior recorded statements or a summary of the witness's expected trial testimony, under Rule 16 "the only records the state is required to produce [pertaining to a prospective prosecution witness] are those regarding prior convictions." State v. Kelly, 554 A.2d 632, 635 (R.I.1989) (holding that Rule 16 does not require the state to produce records of the then Department of Children and Their Families pertaining to a prospective prosecution witness).

Although the court in Kelly went on to hold that the defendant there did have the right to require the state to produce the requested records at trial under the confrontation clauses of the State and the Federal constitutions, it did so not as a matter of pretrial discovery but in the context of what information must be provided to the defendant at trial to enable him to conduct an effective cross-examination of prosecution witnesses. Thus in Kelly we noted that "the right of confrontation is a trial right, raising itself only when a defendant is improperly denied the ability to confront and to effectively cross-examine an adverse witness at trial." Id. at...