State v. Burke

• Citation: 522 A.2d 725
• Decision Date: 17 March 1987
• Docket Number: No. 86-14-C,86-14-C
• Parties: STATE v. Michael BURKE. A.
• Court: United States State Supreme Court of Rhode Island

Page 725

522 A.2d 725

STATE v. Michael BURKE.

No. 86-14-C.A.

Supreme Court of Rhode Island.

March 17, 1987.

James E. O'Neil, Atty. Gen., Thomas Dickinson, Sp. Asst. Atty. Gen., for plaintiff.

Gregory A. Madoian, Charles Butterfield, Jr., Warwick, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal by the defendant, Michael Burke, from judgments of conviction entered after a jury trial in the Superior Court. We affirm. The jury returned guilty verdicts on two counts of first-degree sexual assault in violation of G.L.1956 (1981 Reenactment) § 11-37-2, as amended by P.L.1981, ch. 119, § 1. Valerie T., ¹ the complaining witness, testified to the following facts at trial.

On or about October 14, 1983, Valerie was hitchhiking along Post Road in North Kingstown, when defendant, a uniformed police officer, pulled up in his police cruiser and asked her to come over to him. When she approached the car, defendant asked her if she wanted to make some money. She replied that she did not, whereupon he asked her to enter the cruiser. The complaining witness testified that she complied with this request because she "didn't know what else to do" and because she was afraid.

Valerie told the jury that Sergeant Burke drove her to his house and told her to follow him to the den. He then told her to remove her clothes. She refused. He asked her to give him a "blow job," and she replied that she would not. At that point he pulled down his pants and told her to kneel on the floor. She complied because she was afraid of defendant due to the fact that he was a uniformed police officer carrying a gun. He then started pushing on her head so that her mouth was penetrated by his penis. When she got up, Officer Burke put a handcuff on Valerie's left arm, laughed at her, removed the handcuff, and made her lie on the rug. He knelt on top of her and masturbated, ejaculating on her face. Following this episode, defendant drove Valerie home, instructing her not to tell anyone what had happened.

Valerie also testified that on another occasion, in early January of 1984, Sergeant Burke again approached her and asked her if she wanted a ride. After she refused, he got out of his police cruiser and pulled her by the arm into the front seat. The defendant threatened not to let Valerie out of the car unless she performed oral sex on him. He undid his pants and, while driving, pushed her head down, penetrating her mouth with his penis.

Count 1 of the indictment refers to the October 1983 incident and count 2, the occurrence in January 1984. The defendant raises a number of issues on appeal. We shall discuss these issues in the order presented by the defense.

I

The defendant first asserts that the trial justice abused his discretion in precluding him from introducing certain evidence. Valerie testified on cross-examination that defendant wore a black pistol and that defendant's home was the first house on the right-hand side of Lynn Drive. The defendant thereupon attempted to supplement his answer to the state's request for discovery by notifying the prosecution that Patrolman Michael Sullivan would testify that defendant's house was the third house on the right side of Lynn Drive and that Patrolman Jeffrey Boisvert would testify that defendant was issued a silver-colored gun during all times relevant to the incidents alleged at trial.

The prosecution informed the trial justice that both patrolmen, Sullivan and Boisvert, had been present in court during the trial and that the admission of their testimony would constitute a violation of the trial justice's prior sequestration order. As a sanction for violation of the sequestration order and of Rule 16 of the Superior Court Rules of Criminal Procedure, the trial justice excluded the proffered testimony of Officers Sullivan and Boisvert. Four days after the trial justice's decision, defendant once again sought to supplement his answer to the state's discovery request to offer the testimony of Patrolman John D'Ellena. The defendant's supplemental memorandum stated that D'Ellena would testify about the location of defendant's house and the color of defendant's gun during the period in question. Citing his discretionary authority under Rule 16(i), the trial justice refused to admit the proffered testimony.

A

The defendant contends that the exclusion of proffered defense testimony is generally an improper sanction for violation of a sequestration order. We agree. Under the overwhelming weight of authority, it is an abuse of discretion to preclude a criminal defense witness's testimony for violation of a sequestration order unless special circumstances exist that would warrant the preclusion. See, e.g., Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); United States v. Torbert, 496 F.2d 154 (9th Cir.), cert. denied, 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974); Braswell v. Wainwright, 463 F.2d 1148 (5th Cir.1972); United States v. Schaefer, 299 F.2d 625 (7th Cir.), cert. denied, 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497 (1962). See generally Annot. 14 A.L.R.3d 16, § 6(c) at 54-56 (1967 & 1986 Supp.). Unless violation of the sequestration order is due to the consent, connivance, procurement or knowledge of the defendant or his counsel, a trial justice should not deprive a criminal defendant of his right to present testimony. State v. Warren, 437 So.2d 836 (La.1983); State v. Burdge, 295 Or. 1, 664 P.2d 1076 (1983); Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161 (1981). Instead, a trial justice should consider alternative sanctions to enforce the order, such as the issuance of a cautionary instruction to the jury or in some instances a contempt proceeding against the witness. See Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); State v. Leong, 51 Haw. 581, 465 P.2d 560 (1970); Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161 (1981).

In the case at bar it seems clear beyond doubt that defendant had no intention of calling these police officers as witnesses until after he had heard the testimony of the complaining witness. He then proposed to call these officers purely for the purpose of impeaching the credibility of the complaining witness in respect to certain details set forth in her cross-examination. The testimony of these rebuttal witnesses was neither foreseen nor reasonably foreseeable at the time the sequestration order was issued by the judge. Therefore, it is highly questionable that the officers or defendant violated the sequestration order at all, but if a retroactive violation could be discerned, it would obviously be wholly unintentional. The preclusion of testimony based solely on an unintentional violation of the order was unwarranted.

B

We must now determine whether the trial justice was justified in excluding the proffered testimony as a sanction for an alleged violation of defendant's discovery obligations under Rule 16. In this case, defendant's nondisclosure was due to the fact that he was surprised by the testimony of the complaining witness on cross-examination and hence could not have foreseen the need to contradict that testimony. We have stated that nondisclosure is not deliberate when the necessity of calling the witness is not known until the last minute. State v. Ricci, 472 A.2d 291 (R.I.1984); State v. Sciarra, 448 A.2d 1215 (R.I.1982). In Sciarra we held that imposition against a defendant of the severe sanction of exclusion constituted an abuse of discretion when the defendant's proffered evidence was based on facts that were unknown until trial and, once in possession of the information, the defendant exercised due diligence in providing the state with a summary of the proposed testimony. 448 A.2d at 1219. This court has also stated that no error results from the admission of a rebuttal witness's testimony despite the absence of prior disclosure by the prosecution when the state had no way of knowing it would call a rebuttal witness. State v. Lawrence, 492 A.2d 147 (R.I.1985); State v. Ricci, 472 A.2d 291 (R.I.1984).

The state suggests that by cross-examining the complaining witness, defense counsel was attempting to lay a foundation for an attack upon her memory in respect to the gun and, presumably, the location of the house. This may be true but is scarcely determinative. It is obvious that defense counsel did attempt to probe the complaining witness's memory on numerous subjects. He could not have known which subjects might be vulnerable to impeachment until after he had heard the answers. Since the defense did not know with any degree of certainty, prior to its cross-examination of the complaining witness, specifically what impeachment testimony would be offered, no violation of Rule 16 occurred in the instant case. Consequently, the exclusion of this evidence was erroneous.

The improper exclusion of evidence, however, is reversible error only if the excluded evidence would have had a controlling influence on a material aspect of the case. State v. Calitri, 459 A.2d 478 (R.I.1983); State v. Tavarozzi, 446 A.2d 1048 (R.I.1982). We shall not mandate a new trial unless the preclusion of testimony causes substantial injury to the party seeking its admission. State v. Parker, 472 A.2d 1206 (R.I.1984). In determining whether the rejection of proffered testimony is prejudicial, this court must ascertain whether the rejected evidence reasonably could have altered the result. State v. Almeida, 111 R.I. 566, 304 A.2d 895 (1973).

The defendant contends that the excluded evidence bears significantly on the victim's credibility and on her identification of defendant. We disagree. The record reveals that Valerie identified defendant by his name, rank, and age, as well as by the hours he was on duty. She identified him in court. Additionally, Valerie led Lieutenant Wynne to Sergeant Burke's home on 37 Lynn Drive and identified it as the house to which she had been transported by defendant...