State v. Concannon, 81-255-C

• Decision Date: 24 March 1983
• Docket Number: No. 81-255-C,81-255-C
• Citation: 457 A.2d 1350
• Parties: STATE v. Richard CONCANNON. A.
• Court: Rhode Island Supreme Court

Page 1350

457 A.2d 1350

STATE v. Richard CONCANNON.

No. 81-255-C.A.

Supreme Court of Rhode Island.

March 24, 1983.

Dennis J. Roberts II, Atty. Gen., Brian Van Couyghen, Sp. Asst. Atty. Gen., for plaintiff.

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

OPINION

SHEA, Justice.

In an indictment filed on May 6, 1980, a Kent County Grand Jury charged the defendant, Richard Concannon, with five counts of first- and second-degree sexual assault in violation of G.L.1956 (1969 Reenactment) §§ 11-37-2 and -4, as enacted by P.L.1979, ch. 302, § 2. The grand jury also charged defendant with one count of committing an abominable and detestable crime against nature in violation of G.L.1956 (1969 Reenactment) § 11-10-1. The defendant, however, was tried only on two counts of first-degree sexual assault. ¹ A Superior Court jury found him guilty on both counts of the lesser included offense of second-degree sexual assault.

The defendant now appeals from the judgment of conviction, raising several issues. One issue concerns the introduction of testimony relating to an act of fellatio. The defendant also contends that the trial justice erred when instructing the jury on the definition of reasonable doubt. Because we conclude that defendant has failed to show that prejudicial error occurred at his trial, we affirm the judgment of conviction.

The facts are not complicated. The complaining witness, who we will refer to as Marie, ² was nine years old at the time of the assault. She lived with her mother, her mother's boyfriend (defendant), and her younger brother.

Marie's testimony detailed two specific instances of sexual assault. She testified that defendant entered the bathroom while she was bathing and began washing her with a washcloth. He told her to stand on the side of the bathtub, which she did. He then put his penis between her legs and into her vagina. Two days later, again while Marie was bathing, defendant entered the bathroom and began touching her. When she stepped out of the bathtub and started to dry off, she said, defendant got on his knees and put his penis into her vagina, then stood up and pushed her head, forcing her to commit an act of fellatio.

At this point, defense counsel objected and moved to pass the case. He argued that the state had not complied with Rule 16 of the Superior Court Rules of Criminal Procedure because it failed to furnish any discovery material relating to the offense of fellatio.

The offense of first-degree sexual assault requires an act of penetration, whereas second-degree sexual assault merely requires sexual contact. Sexual penetration is defined in G.L.1956 (1981 Reenactment) § 11-37-1 as

"sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person's body or by any object into the genital or anal openings of another person's body, but emission of semen is not required."

Sexual contact on the other hand merely requires "the intentional touching of the victim's or accused's intimate parts, clothed or unclothed, if that intentional touching can be reasonably construed as intended by the accused to be for the purpose of sexual arousal, gratification or assault." General Laws 1956 (1981 Reenactment) § 11-37-1.

Concannon's pretrial discovery motion, filed under Rule 16 requested in part:

"As to those persons whom the State expects to call as witnesses at the trial, all relevant recorded testimony before a grand jury of such persons and all written or recorded verbatim statements, signed or unsigned, of such persons and, if no such testimony or statement of a witness is in the possession of the State, a summary of the testimony such person is expected to give at the trial." (Emphasis added.)

The state failed to provide a summary of the testimony it expected Marie to give at trial. In response to defendant's discovery request, the state did furnish a copy of a statement made by Marie indicating that the acts of penetration had consisted of vaginal intercourse and cunnilingus. ³ This statement quoted Marie as saying that Concannon, "asked me to kiss his private" but it did not mention whether or not Marie had actually done so. A copy of a police report provided with the discovery material and the grand jury testimony of a detective indicated that Marie stated she had refused to comply with defendant's request that she kiss his penis. Neither the prosecution nor the defense made any reference to this later statement at trial. In addition, Marie's grand jury testimony did not include a fellatio allegation.

The trial justice denied defendant's motion to pass the case. He held "that the report or statement of [Marie] which was supplied--to the [d]efendant, although it does not specifically state that he, in fact, placed his penis in her mouth, that he did ask her to kiss his private, should have alerted the [d]efendant to at least that particular allegation."

The defendant argues that the trial justice erred when he refused to pass the case. Specifically, defendant contends that the state violated the discovery provisions of Rule 16 since it did not provide the defense with any indication that Marie would testify to an act of fellatio.

In our adversary system, based as it is upon a single trial held on a single occasion, it is imperative that the defense come to trial as well equipped as possible to raise reasonable doubt in the minds of one or more of the jurors. Rule 16, Rhode Island's criminal discovery mechanism, attempts to ensure that both parties receive the fullest possible presentation of the facts prior to trial. See State v. Coelho, R.I., 454 A.2d 241 (1982). The primary purpose of discovery is to eliminate surprise at trial. A prosecutor or a defendant who does not comply with the rules of discovery undermines the judicial process. Both State v. Coelho, supra, and State v. Darcy, R.I., 442 A.2d 900 (1982) stand for the proposition that a prosecutor's failure to comply with discovery may infringe upon a defendant's due process rights to establish the best available defense.

In the case at bar, defendant was charged with first-degree sexual assault, a generic offense. He could only determine the specific allegations by filing a bill of particulars pursuant to Rule 7(f) of the Superior Court Rules of Criminal Procedure, or by relying on discovery. The defendant chose not to file a bill of particulars but chose instead to rely entirely upon discovery. In State v. McParlin, R.I., 422 A.2d 742, 745 (1980), this court took particular note of the importance of discovery procedures to a defendant facing a generic charge:

"This discovery rule, in addition to Rule 7(f), which authorizes a bill of particulars, will effectively permit a person accused of an offense in general terms to obtain detailed information in respect to the underlying circumstances to be presented in support of the accusation."

In order to comply fully with defendant's discovery request, the state should have provided defense counsel with a summary of the testimony concerning fellatio. None of the statements provided by the state alerted defense counsel to that allegation. Marie's statement that Concannon had asked her to "kiss his private" did not indicate whether she actually complied. In fact, the police report recites that Marie had refused to comply. Even a statement indicating that Marie did comply with the request would not have alerted defense counsel to all of the requisite elements required for first-degree sexual assault, particularly penetration.

Rule 16(i) provides sanctions for the failure of either party to comply with that rule. The declaration of a mistrial is an appropriate sanction under the rule. State v. Darcy, R.I., 442 A.2d 900, 902 (1982). However, the imposition of any Rule 16 sanction is a matter within the sound discretion of the trial justice. State v. Coelho, R.I., 454 A.2d at 245; State v. Darcy, R.I., 442 A.2d at 902. This case presents a situation where the trial justice incorrectly concluded that the state had complied with the rule. We must therefore try to determine whether a mistrial would have been an appropriate sanction.

We said in State v. Coelho, R.I., 454 A.2d at 245, that in fashioning a remedy, a trial justice and this court, on appeal, should consider: "(1) the reason for nondisclosure, (2) the extent of prejudice to the opposing party, (3) the feasibility of rectifying that prejudice by a continuance, and (4) any other relevant factors." A careful examination of the record yields very little evidence that we can evaluate under the four-part test. The record does not indicate the reason for nondisclosure. Without evidence to the contrary, we can only assume that the nondisclosure was inadvertent rather than deliberate and that the prosecution became aware of the discrepancy only as the witness's testimony was being prepared and not days or weeks earlier.

The easier cases to resolve arise when the prosecutor appears deliberately to have failed to provide discovery material. When the defense is misled into proceeding to trial unprepared, the basic precepts of due process are violated. "The courts cannot allow the integrity of the criminal system to be undermined by the over-zealous prosecutor." In re Ouimette, 115 R.I. 169, 175, 342 A.2d 250, 253 (1975). In the case of deliberate nondisclosure, we will grant a new trial without inquiry into the degree of harm caused by the misconduct.

The more difficult cases to resolve are those cases, such as this, in which there apparently has been inadvertent nondisclosure. In these situations, we must move to the second element of the test, which is prejudice to the opposing party. Although the result in State v. Coelho, supra, was produced by the combination of several circumstances discussed in that opinion, Rule 16, as we...