State v. Carrera, 86-332

• Decision Date: 01 July 1987
• Docket Number: No. 86-332,86-332
• Citation: State v. Carrera, 528 A.2d 331 (R.I. 1987)
• Parties: STATE v. Jose Pupo CARRERA. C.A.
• Court: Rhode Island Supreme Court

Page 331

528 A.2d 331

STATE v. Jose Pupo CARRERA.

No. 86-332 C.A.

Supreme Court of Rhode Island.

July 1, 1987.

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

William Reilly, Public Defender, Paula Rosin, Barbara Hurst, Asst. Public Defenders, Providence, for defendant.

O P I N I O N

KELLEHER, Justice.

The defendant, Jose Pupo Carrera (Carrera), was charged by criminal information with assault with intent to murder Frances L. Brown (Brown), in violation of G.L. 1956 (1981 Reenactment) § 11-5-1, as amended by P.L. 1981, ch. 76, § 1. On November 7, 1985, a Superior Court jury, after a four-day trial, found Carrera guilty. Carrera now appeals, raising three issues.

The unfortunate series of events giving rise to the charge levied by the state against Carrera began to unfold on March 27, 1985. On that date Brown, then eight months' pregnant, was discharged from a hospital after having been treated for one week for injuries sustained in an alleged beating by Carrera. She returned to the third-floor Providence apartment she shared with Carrera and told him that she had been informed by a social worker that she might lose custody of her soon-to-beborn infant if she did not move into a "women's shelter." Brown later began packing her things in anticipation of leaving.

On the evening of March 27, Brown did not leave the premises but instead decided to sleep in the second-floor apartment occupied by two friends. Brown awoke between 5:30 and 6 a.m. and returned to her thirdfloor apartment, where she washed and dressed. She then sat on the edge of a bed and began watching a television program. Suddenly Carrera grabbed Brown from behind, Brown observing a pair of scissors in Carrera's hand. Carrera first stated an accusation about a neighbor's having admired Brown and then told Brown that if he, Carrera, could not have her, nobody else would. He then stated, "I'll either kill you or mess your face up so bad that nobody else would want you" and, pinning Brown to the bed, began to cut her head and face. At some point during the attack both Brown and Carrera fell to the floor. Carrera continued his slashing of Brown's face, accusing Brown of having an affair with the man and woman on the second floor.

The second-floor neighbor, Christine Wilcox, corroborated much of Brown's testimony. Wilcox was in her second-floor apartment when she heard cries of "Christine" emanating from the third floor. She rushed upstairs and observed, through the doorway, Carrera sitting on Brown, stabbing her with scissors he was holding in his right hand. Soon after Christine's arrival, Brown was able to escape Carrera's grasp and run downstairs to the first floor where her sister resided. She was transported to Rhode Island Hospital and shortly thereafter gave birth to a child.

At trial Brown testified regarding the circumstances of Carrera's assault. She admitted that she had been, in the past, a serious drug user but claimed that her drug use was presently limited to a little marijuana "every now and then" and "little bit of cocaine." On cross-examination, counsel for Carrera attempted to delve into the details of Brown's drug use in an attempt to attack Brown's credibility. The trial justice sustained an objection by the state to a question that attempted to elicit information regarding whether Brown's baby, born soon after the assault, was addicted to drugs at birth. The state also objected to and blocked questions regarding Brown's past suicide threats and her history of drug overdoses.

Detective Alfred Ferreira of the Providence Police Department also testified at Carrera's trial. He told the jury of his investigation of the assault. During Carrera's cross-examination of Ferreira, the state objected to a question regarding whether, during Ferreira's interview of Brown, Ferreira found Brown "reluctant to accuse [Carrera]."

After the completion of the state's case, Carrera made a motion for a judgment of acquittal. Carrera claimed that the evidence did not support a conviction on the charge of assault with intent to murder but rather would only sustain a conviction on a charge of assault. Lacking, Carrera maintained, was proof of intent to murder. The trial justice denied the motion.

Carrera offered a different picture of the events of March 28, 1985, during the presentation of his case. Carrera maintained that he was sleeping with Brown on the morning of March 28. When he awoke, Brown was no longer in the bed. Brown soon returned to the room in a "drugged up" state. Carrera told her to get out, and Brown left. She later returned "with something in her hands" and "started cutting herself up." Carrera could not stop her because he was on crutches and was thus relatively immobilized. ¹ Carrera stated that Brown's eyes were strangely "wide open" before she cut herself.

When Carrera completed his testimony, he attempted to introduce a discharge report from Rhode Island Hospital dated May 9, 1985, stating that Brown was a "known drug addict" and that her child was "addicted." The state objected to the introduction of the report on the grounds that the hospital record was "hearsay within hearsay." The trial justice sustained the objection, and the report was excluded. Offered and admitted, however, were several hospital records describing Brown's drug use and suicide attempts.

Carrera's appeal is threefold. First, Carrera argues that the trial justice erroneously restricted cross-examination of Brown and Detective Ferreira in violation of Carrera's constitutional right of confrontation. Second, Carrera asserts that the trial justice impermissibly refused to permit the defense to place in evidence hospital records that indicated that at the time of the birth of Brown's baby, the infant was addicted to drugs. Third, Carrera maintains that the trial justice wrongfully denied Carrera's motion for judgment of acquittal on the charge of assault with intent to murder. We turn our attention first to the question of whether the trial justice erred when he restricted cross-examination of Brown and Detective Ferreira.

The right of a criminal defendant to cross-examination is guaranteed by the Sixth Amendment to the United States Constitution and art. I, § 10, of the Rhode Island Constitution. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Burke, 522 A.2d 725 (R.I. 1987). The right of cross-examination dictates that "reasonable latitude be given the cross-examiner." State v. Anthony, 422 A.2d 921, 924 (R.I. 1980). Cross-examination of a witness with respect to his or her ability to perceive and remember facts is an integral part of the guarantee of the right of confrontation. Burke, 522 A.2d at 732. "It is axiomatic that the ability of a witness to remember accurately and to relate the events in question is of crucial importance to a jury's assessment of that witness's credibility." State v. Manocchio, 496 A.2d 931, 934 (R.I. 1985), vacated, Rhode Island v. Manocchio, --- U.S. ----, 106 S.Ct. 1627, 90 L.Ed.2d 175 (1986).

Whether a witness may be impeached with evidence of his or her present or prior drug use is an issue that has troubled and divided courts for decades. See McCormick on Evidence, § 45 at 105-06 (Cleary 3d ed. 1984); Annot. 65 A.L.R. 3d 705 (1975). We hold that evidence of use of drugs is admissible to show that the witness was under the influence of those drugs at the time of the events to which he or she is testifying. ² Such evidence of drug use bears on the question of whether the witness was accurately perceiving the events around him or her, certainly a matter of interest to the finder of fact.

We now turn to the case at hand. During Carrera's cross-examination of Brown, the following colloquy took place:

"Q. You testified yesterday, when your baby was born, I believe, on the 29th of March at Woman & Infants [Hospital], that the baby was physically okay?

"A. Yes, he was.

"Q. As a matter of fact, Miss Brown, the baby was born an addict?

"A. Oh, no.

[State]: Objection.

The Court: Objection sustained."

Carrera contends that the trial justice erred in refusing to allow Brown to answer this line of inquiry. If Brown's baby was addicted to drugs at the time of his birth just a short time after the assault, Carrera claims, this would serve to prove that Brown was a drug user at the time of the incident.

This thrust of Carrera's cross-examination of Brown regarding her infant's alleged addiction at birth was valid and relevant. Brown had testified that she had been "drug free." Certainly, as we indicated, Carrera would be entitled to show that she was not "drug free" at the time of the incidents to which she was testifying. To the extent that evidence tending to prove Brown's baby was addicted at birth would impeach Brown's claims that she was not using drugs at the time of the incident, it would be error for the trial justice to prohibit this line of questioning on relevance grounds alone.

The problem in the present case concerns how one proves that a mother was a drug user by virtue of the fact that her child was born addicted to drugs. The link between a child's drug addiction and a mother's drug use was in no way proved in the case before us as there was no expert testimony establishing the link between the "addicted" infant and any drug use of the mother. Absent any such evidence of a link, the sustaining of the objection to such testimony was proper.

Carrera also maintains that the trial justice impermissibly restricted cross-examination of Brown regarding her alleged threats of suicide. The questioning proceeded as follows:

"Q. You don't recall threatening suicide after he threatened to leave you?

[State]: Objection.

The Court: Objection sustained.

"Q. You have a long history of attempted suicide, don't you?

[State]: Objection.

The Court: Sustained."

In light of the fact that it was the thrust of Carrera's defense that Brown's...