State v. Cassey
| Decision Date | 09 June 1988 |
| Docket Number | No. 86-381-C,86-381-C |
| Citation | 543 A.2d 670 |
| Parties | STATE v. Susan Lee CASSEY, Charles A. Gilbert. A. |
| Court | Rhode Island Supreme Court |
This case comes before us on appeal from judgments of conviction in regard to each defendant of three separate counts of first-degree sexual assault upon Susan Lee Cassey's child (Ted Alan Cassey) over a period when he was four and five years of age. Each defendant was found guilty of three separate acts of sexual molestation, upon the child. The trial justice imposed a sentence of thirty years' imprisonment upon Susan Lee Cassey (Cassey) on the first count and a consecutive thirty-year suspended sentence with thirty years' probation on the second count and a consecutive thirty-year term of probation on the third count (the first three counts of the indictment related solely to Cassey). Charles A. Gilbert (Gilbert) was sentenced to a term of life imprisonment on the fourth count of the indictment and to consecutive thirty-year terms of probation on counts 5 and 6 (counts 4 through 6 applied to Gilbert only). We affirm. The facts of the case may be stated as follows.
During the time relevant to this joint indictment Cassey and Gilbert were living together. They also were related to each other as first cousins. The evidence disclosed that Cassey engaged in three separate acts of sexual penetration with her son. The facts of her relationship with her son will be disclosed in all of their revolting detail in other portions of this opinion. Gilbert was charged with three separate acts of penetration that did not involve Cassey. In one of these acts Gilbert penetrated the anal cavity of the child and spanked him when he cried. In a second act Gilbert penetrated the oral cavity of the child with his penis. In a third act Gilbert took the penis of the child into his (Gilbert's) oral cavity. The indictment was brought jointly against the two defendants pursuant to Rule 8(b) of the Superior Court Rules of Criminal Procedure, but the evidence finally adduced seemed to indicate that the acts committed by Cassey and Gilbert were not jointly committed but the separate acts of each defendant.
Each of the defendants raises a number of issues that will be dealt with, not in the order in which they are raised in the briefs of the two defendants, but in order of their significance to this opinion. Further facts will be supplied as necessary to the determination of the issues raised.
Both defendants argue that the denial of their motions to sever and to grant each defendant a separate trial was erroneous and prejudicial. They assert that since the evidence disclosed that each defendant committed separate acts of sexual molestation, each was prejudiced by the spill-over effect of evidence adduced against the other.
We shall begin our inquiry by determining whether this indictment was appropriately brought against both defendants. Rule 8(b) provides as follows:
(Emphasis added.)
At the time that this case was presented to the grand jury, the prosecution had received a considerable amount of evidence from the victim (who by this time was six years of age) that indicated that Cassey and Gilbert were each aware of the other's activities and had engaged in viewing through a peephole acts that they forced Ted to commit. It is undisputed that both defendants resided in the same dwelling and shared a single bedroom and that this bedroom was sometimes the scene of the acts of molestation committed upon the child.
As part of the testimony to the grand jury, a detective of the Central Falls police department recounted a statement given to him by the child which alleged that Gilbert (whom Ted referred to as his father) and his mother "used to lock me under the table and hit me with rope." In this same statement the child set forth an instance of being sodomized by Gilbert and being forced to lick his mother's vagina, "butt," and breasts. He further described his mother's requiring him to put his penis in her mouth as well as to place his penis upon and into her vagina.
He also stated that Gilbert placed the child's penis in his mouth and placed Gilbert's penis in the child's mouth. The statement further alleged that the mother and the "father" together had required the child to place the penis of his brother Marcus in his mouth and also to place the child's penis in Marcus's mouth. The child also alleged that the mother and the "father" watched this sexual play through a hole in the wall. It seems abundantly clear from the evidence presented to the grand jury that there was ample probable cause to justify the grand jury in finding that these two defendants had participated "in the same series of acts or transactions constituting an offense or offenses." Consequently the returning of a joint indictment was justified by plain language of Rule 8(b). During the course of the trial, the defendants moved for separate trials, alleging that each was prejudiced by evidence of acts committed by the other.
We have repeatedly stated that severance is not a matter of right but rather is an issue directed to the sound discretion of the trial justice. State v. Ashness, 461 A.2d 659, 668 (R.I.1983); State v. Gibbons, 418 A.2d 830, 834-35 (R.I.1980); State v. Patriarca, 112 R.I. 14, 28, 308 A.2d 300, 310 (1973). We have also stated that the trial justice's denial of a motion to sever will not be reversed on review unless there has been a clear abuse of discretion. State v. Ashness, 461 A.2d at 669. The defendant must affirmatively show that in fact he has suffered prejudice as a result of the joint trial to the extent that it has impinged upon his right to a fair trial. Id.; State v. Gibbons, 418 A.2d at 835; State v. Patriarca, 112 R.I. at 28, 308 A.2d at 310.
Federal courts have followed a similar rule in respect to severance under Rule 14 (which in substantially identical terms in both the federal and Rhode Island rules provides for severance to avoid prejudice). The federal rule has been stated as follows in United States v. Zielie, 734 F.2d 1447, 1464 (11th Cir.1984):
Federal courts have also stated that the fact that evidence against a codefendant may have been proportionately greater than the evidence against the complaining defendant is not itself grounds for a severance. United States v. Peters, 791 F.2d 1270, 1302 (7th Cir.1986); United States. v. Hendrix, 752 F.2d 1226, 1232 (7th Cir.) cert. denied, sub. nom., 471 U.S. 1021, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985).
In the case at bar the trial justice in the exercise of his discretion had to consider more than the usual balancing of the right of a defendant to a fair trial against the public's interest in efficient and economic administration of justice. The trial justice here was further required to consider the horrendous burden placed upon a complaining witness of tender years that would be imposed in the event he was required to testify on two separate occasions concerning the outrageous and revolting circumstances involving these defendants. The constitution of this state as recently amended provides in article I, section 23, "[a] victim of crime shall, as a matter of right, be treated by agents of the state with dignity, respect and sensitivity during all phases of the criminal justice process." Certainly in order to balance the right of this child witness to have his ordeal limited to one trial in respect to these defendants, a most compelling prejudice would be required to be shown in order to establish that the trial justice had committed an abuse of discretion in denying the motion to sever.
The evidence in the case at bar was relatively simple and straightforward. The jury would have no significant difficulty in separating out the evidence against each defendant. There were no antagonistic defenses. See State v. Clarke, 448 A.2d 1208 (R.I.1982). Cassey testified, and Gilbert did not. In her testimony Cassey denied any knowledge of wrongdoing on the part of Gilbert.
Neither defendant made any statement that implicated the other so that no issue arose under the doctrine of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
Consequently we are of the opinion that neither defendant has shown the type of compelling prejudice that would render a denial of his or her motion for severance an abuse of discretion. Indeed, considering...
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