State v. Carvalho, 81-143-C

• Citation: 450 A.2d 1102
• Decision Date: 30 July 1982
• Docket Number: No. 81-143-C,81-143-C
• Parties: STATE v. James J. CARVALHO. A.
• Court: Rhode Island Supreme Court

Page 1102

450 A.2d 1102

STATE v. James J. CARVALHO.

No. 81-143-C.A.

Supreme Court of Rhode Island.

July 30, 1982.

Dennis J. Roberts II, Atty. Gen., Judith Crowell, Sp. Asst. Atty. Gen., for plaintiff.

John F. Cicilline, Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal from a judgment denying the defendant's application for postconviction relief in which the defendant claims that the trial justice made certain erroneous evidentiary rulings.

The defendant, James J. Carvalho, was charged with a rape that occurred in Providence in the early-morning hours of October 22, 1976. The victim testified that she had returned to her home at that time after having spent the evening at the Safari Lounge, a neighborhood drinking establishment. As she stood on the sidewalk in front of her house and searched for her house key, a man driving a small, dark car stopped and inquired whether she wished to go for a ride with him. The individual departed, however, when the victim swung her purse at him and ordered him to leave. Several minutes later, while standing on the front porch to her house, she was grabbed from behind, pulled into a neighboring backyard, and raped. She screamed once, but her assailant clamped his hand over her mouth and threatened to kill her if she made any more noise. After the attack, the assailant walked down the driveway into the street. His victim followed a few feet behind him. The assailant fled when the victim, having spotted two police cars nearby, began to scream for help.

A police officer responding to the screams received a description of the assailant from the victim and sent out a broadcast of that description. The defendant was arrested five minutes later in the vicinity of the assault, driving his car at high speed with its lights out. Police brought him to the scene of the rape, where the victim immediately identified him as her assailant.

The physician who examined the victim stated that there were multiple abrasions located on her body. He further testified that his findings, which were derived from a pelvic examination, were consistent with forcible penetration.

In his testimony, defendant did not deny having engaged in sexual relations with the victim on that morning. He maintained, however, that their encounter was consensual.

At the commencement of the trial, defense counsel requested the trial justice to allow the jury to view the Safari Lounge, which request the trial justice denied. During cross-examination of the victim, defense counsel attempted to question her as to her use of alcohol and other drugs and her institutionalization. Specifically, defense counsel attempted to introduce evidence that on November 3, 1974, the witness was admitted into the Institute of Mental Health, where she underwent treatment for alcoholism. After conducting a voir dire, the trial justice sustained the state's objection to the admission of this evidence. The trial justice also prohibited defense counsel from questioning the victim regarding prior claims of assault which she had made against other individuals.

The defendant was found guilty of the crime charged. This court denied his direct appeal in State v. Carvalho, R.I., 409 A.2d 132 (1979). In the appeal defendant was represented by his trial counsel. After retaining new counsel, defendant applied for postconviction relief, alleging that the trial justice erred in denying defendant's motion to allow the jury to view the Safari Lounge and in limiting the cross-examination of the victim on the issues of her use of alcohol and other drugs, her institutionalization, and her prior complaints of assault. ¹ These issues were not presented on direct appeal. The justice at the postconviction hearing found that defendant's failure to raise these issues on appeal constituted a waiver of such issues, and held that defendant was therefore not entitled to postconviction relief.

The Post Conviction Remedy Act, General Laws 1956 (1969 Reenactment) § 10-9.1-1(b), as enacted by P.L. 1974, ch. 220, § 3, provides: "This remedy is not a substitute for * * * direct review of the sentence or conviction." In State v. Duggan, R.I., 414 A.2d 788, 790-91 (1980), we interpreted this language to mean that the legislative intent behind this statute was that a petitioner seeking postconviction relief is precluded from presenting in his application all those issues that could have been reviewed directly.

Rule 51 of the Superior Court Rules of Criminal Procedure is determinative of whether the issues raised in defendant's application for postconviction relief could have been presented on direct appeal. That rule provides, in pertinent part, as follows:

"Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor if requested * * *."

It is clear that defendant satisfied the requirements of Rule 51 in regard to the issues raised here. The trial justice's denial of defendant's motion for a view of the Safari Lounge operated to preserve defendant's direct appeal of that issue. Similarly when the trial justice restricted the cross-examination of the victim, defense counsel preserved his right to direct review by offering his grounds for wanting to inquire into the prohibited areas.

The defendant contends, however, that his appellate counsel's failure to brief and argue the three issues that form the basis of the postconviction-relief application should not preclude petitioner from raising these issues now, absent a showing that defendant...