State v. Gautier

• Decision Date: 27 June 2008
• Docket Number: No. 2006-58-C.A.,2006-58-C.A.
• Citation: 950 A.2d 400
• Parties: STATE v. Jacques GAUTIER.
• Court: Rhode Island Supreme Court

950 A.2d 400

STATE v. Jacques GAUTIER.

No. 2006-58-C.A.

Supreme Court of Rhode Island.

June 27, 2008.

Christopher R. Bush, for Plaintiff.

Catherine A. Gibran, Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

The defendant, Jacques Gautier, was convicted by a jury of second-degree murder and breaking and entering for surreptitiously entering his estranged wife's apartment and killing her seventeen-year-old boyfriend, Jeffrey Indellicati. At the time of Mr. Indellicati's death, Mr. Gautier and his wife were separated and there was a District Court "no-contact" order in effect as the result of a criminal charge pending against the defendant for assaulting his wife. The defendant appeals to this Court, arguing that the trial justice erred: (1) by allowing his wife's prior recorded testimony from the defendant's probation-violation hearing to be read into evidence; (2) by excluding an affidavit made by the defendant's wife in which she refuted the testimony she gave at the defendant's probation-violation hearing; (3) by admitting evidence of the recent incident of domestic assault and evidence that the defendant had used cocaine shortly after Mr. Indellicati was killed; (4) by allowing the state to bolster the credibility of its own witness; (5) by failing to give the jury an instruction on voluntary manslaughter; (6) by commenting on the evidence while giving the jury an instruction on burglary; and (7) by denying the defendant's motion to pass the case after a witness for the state misspoke. For the reasons set forth in this opinion, we affirm the judgment of conviction.

I Facts and Procedural History

This Court has recited the facts of this case twice before. See State v. Gautier, 871 A.2d 347 (R.I.2005)(Gautier II); State v. Gautier, 774 A.2d 882 (R.I.2001)(Gautier I). As a result, we will address only briefly the facts necessary to decide this case. After his arrest for the murder of Mr. Indellicati, defendant was presented as a probation violator before the Superior Court. The defendant's wife, Minerva Gautier (Minerva), testified at defendant's probation violation hearing as follows.

Minerva testified that on the early morning of October 6, 1998, she was awakened by a noise in the kitchen of the apartment into which she recently had moved with her and defendant's twenty-two-month-old son. Minerva got out of bed to investigate and discovered defendant, who had entered the kitchen through a window. Minerva testified that defendant started to argue with her, which woke Indellicati, who had been sleeping in the nearby bedroom. When Indellicati entered the kitchen, both men began to fight. According to Minerva's testimony, defendant then grabbed a knife from a kitchen drawer and began stabbing Indellicati. The altercation moved from the kitchen and into the bathroom as the men continued to fight each other. Mr. Indellicati slipped and fell on the wet bathroom floor as defendant continued to stab him.¹ Minerva testified that after defendant stopped stabbing Indellicati she attempted to resuscitate him, but defendant ordered her at knifepoint to get the couple's son and drive him to his sister's apartment.

Noting inconsistencies in Minerva's testimony, the probation-violation-hearing justice did not find her to be a credible witness, and he stated at the conclusion of the hearing that he "was not satisfied the State met its burden [in proving] that [defendant] did murder [Indellicati]." Gautier II, 871 A.2d at 349. The state filed a petition for writ of certiorari, seeking review of the hearing justice's decision. We granted the petition, quashed the Superior Court judgment, and remanded the case with directions to adjudge defendant a violator. Gautier I, 774 A.2d at 888. The state then filed a motion to have the previous adjudication of non-violation reconsidered, after which the same probation-violation hearing justice found defendant to be a violator.

On January 17, 2003, a grand jury returned an indictment against defendant charging him with the first-degree murder of Indellicati, burglary, kidnapping, felony assault, eluding police, and violation of a no-contact order. The defendant moved to dismiss the murder count, asserting that the state was collaterally estopped from maintaining its murder charge based upon the probation-violation hearing justice's determination at the original probation-violation hearing. His motion was denied, and defendant then filed an appeal to this Court. On appeal, we held that the state was not precluded from prosecuting defendant for murder based on the factual findings that the hearing justice made at the probation-violation hearing. Gautier II, 871 A.2d at 360.

The case proceeded to trial in September 2005. The trial justice granted defendant's pretrial motion to dismiss counts 3 through 6, leaving the charges of murder and burglary to be tried before a jury. On September 26, 2005, the jury found defendant guilty of the lesser-included offenses of second-degree murder and breaking and entering. The defendant filed a motion for a new trial, which the trial justice denied on October 21, 2005. On January 9, 2006, the trial justice sentenced defendant to a life sentence for second-degree murder and to a ten-year sentence for breaking and entering, to be served concurrently. Thereafter, defendant filed a timely appeal to this Court. Additional facts will be discussed throughout the opinion as necessary.

II Discussion

A Admission of Minerva's Prior Recorded Testimony

Before the jury was impaneled, Minerva moved to quash a subpoena served upon her, asserting both her right against self-incrimination guaranteed under the federal² and state³ constitutions and her common-law privilege not to be a witness against her husband. The trial justice granted the motion, and he also declared Minerva to be unavailable as a witness within the meaning of Rule 804(a) of the Rhode Island Rules of Evidence.⁴ The trial justice then granted, over defendant's objection, the state's motion to introduce into evidence significant portions of the testimony Minerva had given at defendant's probation-violation hearing. At trial, the testimony was read by an assistant attorney general.

The defendant argues on appeal that the trial justice violated his right to confront witnesses under the Sixth Amendment to the United States Constitution and under article 1, section 10, of the Rhode Island Constitution by allowing the jury to hear the prior recorded testimony of Minerva from defendant's probation-violation hearing. He also asserts that such testimony did not qualify for admission under Rule 804(b)(1).⁵

We first consider defendant's constitutional argument. It is well settled that "issues that were not preserved by a specific objection at trial, `sufficiently focused so as to call the trial justice's attention to the basis for said objection, may not be considered on appeal.'" State v. Pacheco, 763 A.2d 971, 976 (R.I.2001) (quoting State v. Bettencourt, 723 A.2d 1101, 1107 (R.I.1999)). At trial, defendant raised two objections to Minerva's probation-violation-hearing testimony. The defendant first stated that he was not given "a significant or satisfactory amount of evidence" through discovery to have "a real opportunity to develop the testimony of Ms. Gautier" by cross-examination as required by Rule 804(b)(1). Secondly, he argued that the testimony Minerva offered at defendant's probation-revocation hearing did not bear "the appropriate guarantees of reliability and/or trustworthiness." Because defendant failed to raise a constitutional challenge to the admission of Minerva's previous testimony, we deem the argument waived.

Turning to defendant's argument that Minerva's testimony was admitted in violation of Rule 804(b)(1), this Court has held that "[t]he decision as to whether or not to admit former testimony lies in the sound discretion of the trial justice, and we will not overturn such a decision unless there has been an abuse of that discretion." State v. Day, 925 A.2d 962, 979-80 (R.I.2007) (citing State v. Sharp, 708 A.2d 1328, 1330 (R.I.1998)).

Mr. Gautier contends that he did not have a meaningful opportunity to cross-examine Minerva at the violation hearing because the amount of discovery available at that time "was very, very little compared to the volumes of materials amassed by trial time." He was thus unable to cross-examine Minerva relative to statements from two police detectives and from a prison informant that differed from her account "in several important ways." In addition, defendant argues that a "substantial identity of issues simply does not exist between a violation hearing and a full-blown criminal trial."

Rule 804(b)(1) does not exclude as hearsay evidence the previous recorded testimony of an unavailable witness if the party against whom the admission is sought was afforded an opportunity to develop the testimony through direct, cross-, or redirect examination.

This Court adheres to "the so-called `liberal' rule when determining the adequacy of prior opportunities to cross-examine witnesses." Day, 925 A.2d at 980. Under this rule, "it is required only that there be a substantial identity of issues and of parties before former testimony will be deemed admissible." Id.; see also State v. Ouimette, 110 R.I. 747, 757, 298 A.2d 124, 131 (1972). We reject defendant's suggestion that an identity of issues cannot exist between a probation-violation hearing and a criminal trial. To be sure, the two proceedings serve very different purposes. A probation-violation hearing is a civil proceeding to determine whether a probationer has kept the peace and been of good behavior, or otherwise violated a condition of probation, see State v. Piette, 833 A.2d 1233, 1237 (R.I.2003); whereas a criminal trial is "the intended forum for ultimate determinations as to guilt or innocence of newly...