State v. Carvalho, 77-433-C

• Decision Date: 12 December 1979
• Docket Number: No. 77-433-C,77-433-C
• Citation: 409 A.2d 132,122 R.I. 461
• Parties: STATE v. James CARVALHO. A.
• Court: Rhode Island Supreme Court

Page 132

409 A.2d 132

122 R.I. 461

STATE v. James CARVALHO.

No. 77-433-C.A.

Supreme Court of Rhode Island.

Dec. 12, 1979.

[122 R.I. 468] Dennis J. Roberts II, Atty. Gen., James P. Renaldo, Sp. Asst. Atty. Gen., for plaintiff.

Samuel A. Olevson, Providence, for defendant.

OPINION

KELLEHER, Justice.

This indictment charging the defendant, James Carvalho (Carvalho), with rape was tried before a Superior Court jury. Carvalho was found guilty, and the trial justice denied his motion for a new trial. His appeal is twofold. He contends that the trial justice violated his sixth-amendment right by denying his attorney's request that an alleged medical expert be allowed to sit at counsel table during the examination and cross-examination of the prosecution's medical experts. He also challenges the trial justice's denial of his motion for a new trial.

According to the prosecutrix, at approximately 2 a. m. on October 22, 1976, she returned home after having spent the evening at a local drinking establishment. As she stood on the porch of her home searching for the key to the front door, a stranger driving a small, dark car stopped and asked her to go for a ride with him. The individual departed when she swung her purse at him and told him to leave. A few minutes later, the prosecutrix was grabbed from behind and pulled along a driveway into a neighboring backyard where the rape occurred. She screamed once for help, but the assailant clapped his hand over her mouth, saying that if she made any noise, he would kill her. The sexual assault ended when the prosecutrix told the attacker that a car had driven up. Upon hearing this, he, followed a few feet behind by his victim, walked down the driveway into the street. The assailant fled when the prosecutrix spotted two police cars on a neighboring street and began to scream for help.

A police officer responding to the screams tried to calm the victim in order to determine what had occurred. He then sent out a broadcast containing a description of the assailant. Another officer apprehended Carvalho approximately 5 minutes later in the vicinity of the assault. Carvalho, who had been caught driving a dark-colored sports car at a high speed with its lights out, was returned to the scene of the incident, where the prosecutrix immediately identified him as the man who had raped her.

In his testimony, Carvalho substantiated several of the events described by the prosecutrix, including one involving a sexual interlude. He insisted, however, that the intercourse was an episode in which both parties had voluntarily participated.

At trial, the prosecution presented two members of the staff at Women and Infants' Hospital, a physician and a nurse, both of whom testified to the condition of the prosecutrix upon her entry to the hospital's emergency room. The physician described the multiple abrasions located on her body and stated that findings derived from the pelvic examination were consistent with forcible penetration.

Prior to the presentation of this medical testimony, Carvalho had asked that a nurse who worked at Rhode Island Hospital's emergency room be permitted to sit alongside his counsel so that she could point out various portions of the direct testimony that might be fair game for cross-examination. The trial justice denied this request on the ground that such a procedure "would open the door to a new and perhaps unwise deviation from the normal courtroom procedure * * *." Carvalho argues that this refusal came at a crucial time in the trial and deprived him of his sixth-amendment right to the effective assistance of counsel.

Carvalho's contention that the sixth amendment encompasses the right to have an expert sit with defense counsel to aid in the cross-examination of witnesses runs contrary to both the historical development of the amendment and recent cases that define the term "counsel" as set forth in the amendment. Under British common law, a defendant on trial for a felony or treason could not be represented by counsel, whereas a person charged with a misdemeanor was entitled to full assistance of counsel. 1 J. Chitty, Criminal Law 410 (4th ed. 1841). The colonies refused to embrace this rule. Likewise, the states speedily ratified a congressional proposal that now constitutes the first ten amendments to the Federal Constitution. Powell v. Alabama, 287 U.S. 45, 61, 53 S.Ct. 55, 61, 77 L.Ed. 158, 166 (1932). The sixth amendment guards an accused from being convicted because of his ignorance of legal and constitutional rights and his consequent failure to assert such rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Counsel provides a defendant with clear steerage through a maze of unfamiliar legal procedure and jargon and focuses on the central issues of the case. The sixth amendment thereby gives substance to the due-process right to a fair hearing. The true significance of this right to our system of justice can be seen in the following observation of the United States Supreme Court:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

Powell v. Alabama, 287 U.S. at 68-69, 53 S.Ct. at 64, 77 L.Ed. at 170.

The term "counsel" as found within the context of the sixth amendment has not been construed to include the assistance of a person uneducated in the law. United States v. Wilhelm, 570 F.2d 461 (3d Cir. 1978); United States v. Cooper, 493 F.2d 473 (5th Cir. 1974); United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976); State v. Spurgeon, 200 Neb. 719, 265 N.W.2d 224 (1978). Indeed, even in those cases in which a defendant has sought the assistance of an unlicensed or disbarred attorney, federal courts have refused to hold that the right to counsel encompasses such individuals. United States v. Grismore, 546 F.2d 844 (10th Cir. 1976); Turner v. American Bar Ass'n, 407 F.Supp. 451 (1975).

It cannot be denied that courts have in many instances allowed a defendant the...