State v. Girouard

Decision Date06 July 1989
Docket NumberNo. 88-112-C,88-112-C
Citation561 A.2d 882
PartiesSTATE v. Robert E. GIROUARD. A.
CourtRhode Island Supreme Court

James E. O'Neil, Atty. Gen. and Caroline C. Cornwall, Sp. Asst. Atty. Gen., Providence, for plaintiff.

Francis X. Mackey, Providence and Donna A. Uhlmann, Cranston, for defendant.

OPINION

MURRAY, Justice.

A Superior Court jury found Robert E. Girouard (Girouard) guilty of one count of first degree child molestation sexual assault. He appeals his conviction. We affirm.

The defendant was charged with two counts. The first count was first degree child molestation sexual assault in violation of G.L. 1956 (1981 Reenactment) §§ 11-37-8.1 and 11-37-8.2, as enacted by P.L. 1984, ch. 59, § 2. The second count was second degree child molestation sexual assault in violation of G.L. 1956 (1981 Reenactment) §§ 11-37-8.3 and 11-37-8.4, as enacted by P.L. 1984, ch. 59, § 2. The first count occurred in Central Falls, Rhode Island, and the second allegedly occurred in Providence, Rhode Island. At trial the victim was unable to testify in regard to the second count, and that charge was dismissed.

Sally was the victim of the assault. She was four years old when it occurred. (The victim's name has been changed.) At the time of trial, Sally was six. A voir dire was conducted to ascertain her competency to give testimony. When asked if she knew what it meant to tell the truth, Sally said she did. She also promised to tell the truth to the judge. When questioned whether she knew the difference between a truth and a lie, Sally shook her head no. When asked if the truth was good or bad, she responded that the truth is good. She said a lie was bad. The trial justice also asked Sally:

"Q. What happens to you when you tell a lie?

"A. My mom spanks me * * *.

"Q. [Sally], what color jacket do I have on?

"A. Blue.

"Q. Okay. If I tell you that I'm wearing a red jacket, is that the truth or a lie?

"A. A lie."

Sally was unable, however, to describe defendant or to recall what presents she received for Christmas or her last birthday. The trial justice found Sally competent to testify.

At trial, Sally testified that one day she was at her home in Central Falls with Uncle Bobby and Uncle Johnny. She testified that Uncle Johnny asked Uncle Bobby, defendant Robert Girouard, to wash her. Sally recounted that defendant took her into the bathroom, wrapped a towel around her eyes, and asked her if she wanted a lollipop. She said yes, and defendant put his penis into her mouth. When the prosecutor asked Sally what a penis is, she said she didn't know. The prosecutor then showed Sally a diagram of a male body. Sally correctly identified a penis. When asked how she knew what she had in her mouth when her eyes were covered, Sally replied "[b]ecause it was soft." When asked how she knew it wasn't a finger, Sally replied "[i]t was big." Sally testified that Uncle Bobby told her not to tell anybody what happened. She made an in-court identification of Girouard.

Sally's mother testified that during the time the assaults occurred, she lived with her two children in an apartment in Central Falls. The defendant's brother, John Girouard, also lived in the apartment. Sally's mother testified that she considered John and Robert Girouard her stepbrothers as her mother and their father had cohabitated. She stated that Robert Girouard visited the home often. The defendant was known to Sally as Uncle Bobby, and John Girouard was known to Sally as Uncle Johnny. She testified that she first became aware of the assault when her sister suggested that she have a talk with Sally. After Sally told her mother what had transpired, her mother contacted the Rape Crisis Center, the police, and the Department of Children and Their Families. Sally's mother also took Sally to counseling.

Prior to the assault Sally was toilet trained and did not need assistance going to the bathroom. In the months after the assault, however, Sally's behavior changed. Sally's mother testified that she and Sally were at a McDonald's restaurant and they went into the bathroom. Sally's mother let Sally into the stall, and when the door closed behind her, Sally screamed as if someone were killing her. Sally's mother recounted that she went to the door of the stall, and Sally clung to her, shaking. After this occurrence, Sally always had to have the door to the bathroom open because she was afraid.

During the trial but prior to Sally's testimony, defense counsel made a motion to suppress Sally's upcoming identification of defendant. At this time, the jury left the courtroom and a hearing was conducted. Sixteen-year-old Glen Girouard, another of defendant's brothers, testified that he saw Sally's mother whispering in the child's ear and pointing at defendant who was sitting in the courtroom. Sandra Girouard, Robert's and Glen's mother, corroborated this assertion. Sally's mother testified that she had not pointed out defendant to her daughter, but only asked Sally if she recognized anyone. The trial justice noted that he did not believe Sally's mother's testimony that she was not pointing out defendant. However, the trial justice ruled that the forthcoming identification would not be tainted. He denied the motion to suppress.

This case presents six issues. The first issue is whether the trial justice erred in finding the child witness competent to testify. The second is whether the victim's in-court identification was properly admitted to evidence despite allegations of prosecutorial misconduct, and the third is whether the trial justice erred in overruling defendant's objections to purportedly leading questions. The fourth inquiry is whether it was error to deny defendant's motion for judgment of acquittal, and the fifth is whether it was error to deny defendant's motion to pass. The final query is whether the trial justice erred in denying the motion for a new trial. We affirm the Superior Court judgment in its entirety.

I

A witness must be competent to testify for his or her testimony to be admitted into evidence. When an individual is called to testify, he or she initially may be presumed a competent witness. McCormick on Evidence, § 62 at l52 (Cleary 3d ed. l984); see also R.I. Rul. Evid. 60l. If there is uncertainty in regard to a potential witness' competency, a voir dire examination should be conducted outside the presence of the jury. A voir dire hearing is used to ascertain the competency of a child witness.

Although there may be questions regarding the reliability or accuracy of a child's account of events, rather than disregard a child's testimony "the preferable course is to accept a child's story for what it seems to be worth, as ascertainable upon testifying * * *." In re Gerald, 471 A.2d 219, 221 (R.I.1984) (quoting 6 Wigmore, Evidence, § 1821 at 405 (Chadbourn rev. 1976)). There are four testimonial capacities that are required for a child to be found competent to testify. This court has stated:

"[A] child may not testify unless and until the trial justice has been satisfied that the proposed witness can (1) observe, (2) recollect, (3) communicate (a capacity to understand questions and to furnish intelligent answers), and (4) appreciate the necessity of telling the truth." State v. Cabral, 122 R.I. 623, 628-29, 410 A.2d 438, 442 (1980).

It is the trial justice who must determine whether these capacities are present in a potential child witness. In re Gerald, 471 A.2d at 221. Among these four capacities, the fourth has caused particular concern. We have held that a child has shown an appreciation of the necessity of telling the truth if the child understands: the meaning of telling the truth and of telling a lie, that when the child testifies he or she must tell the truth, and that persons who do not tell the truth are punished. State v. Mandarelli, 105 R.I. 696, 700, 254 A.2d 738, 741 (l969). A child need not articulate magic words that he or she knows the difference between a lie and a truth as long as the child understands the definitions of both and was there to tell the truth. In re Gerald, 471 A.2d at 220-21; see also State v. Pettis, 488 A.2d 704, 706 (R.I.1985). We now turn to an application of these principles to the present case.

As to observation, Sally's testimony demonstrated her ability to observe. Sally testified that Uncle Bobby took her into the bathroom, shut the door, and they were alone. It is true that Sally later had a towel covering her eyes, but observation does not depend upon sight alone. One may observe with all the senses. Sally testified she felt Girouard put something into her mouth and she described it as big and soft, and identified it as a penis. Sally's testimony indicated a capacity to observe.

As to recollection, Sally's relation of the above incident demonstrates that she had the ability to remember and did indeed remember. The defendant notes that Sally did not remember what gifts she received for Christmas or for her birthday. However, the trial was in mid-June, while Christmas was in December and Sally's birthday had been in September. For a child to receive presents is a normal occurrence and that which is usual is easily forgotten. A sexual assault, however, is a traumatic event and as such is memorable. Sally's mother testified that as a result of the assault, Sally was unable to use the bathroom by herself because she was afraid. It is reasonable to believe that Sally did remember the assault as it was still having a great effect on her.

Sally also demonstrated an ability to communicate. She related the facts of the crime both at the competency hearing and before the jury. It is true that Sally did exhibit some bashful behavior. For instance, when asked what a penis is, she said she didn't know. However, when shown a diagram Sally could point to the penis and make a mark across the penis. Similarly, she was not willing to describe Girouard's appearance, but she did identify him by stating where he was sitting in...

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    • 20 Junio 2008
    ...questions and to furnish intelligent answers), and (4) appreciate the necessity of telling the truth") (quoting State v. Girouard, 561 A.2d 882, 886 (R.I.1989)). 15. General Laws 1956 § 11-37-13.2(a) "Alternative methods of victim testimony — Child victim. — (a) In any judicial proceeding i......
  • Commonwealth of Pa. v. Hutchinson
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    • United States State Supreme Court of Pennsylvania
    • 22 Agosto 2011
    ...the other hand, have concluded that voir dire of a child witness should be conducted outside the presence of the jury. State v. Girouard, 561 A.2d 882, 885 (R.I.1989); State v. Gantt, 644 S.W.2d 656, 658 (Mo.Ct.App.1982). 10. Ms. Pugh was initially called as a Commonwealth witness, but subs......
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    • United States State Supreme Court of Rhode Island
    • 12 Agosto 2004
    ...however, is a traumatic event and thus may be more clearly memorable than other everyday normal occurrences. See State v. Girouard, 561 A.2d 882, 887 (R.I.1989). It is reasonable to believe that even though Mary may not have a clear recollection of the exact times and places that the allege......
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    • United States State Supreme Court of Rhode Island
    • 4 Agosto 1998
    ...element to cases that would be considered rape at common law, see id., as well as to cases involving cunnilingus or fellatio. See Girouard, 561 A.2d at 889. Thus in most but not all cases of statutory-sexual assault, and except in the most limited instances of child-molestation sexual assau......
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12 books & journal articles
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part I - Testimonial Evidence
    • 31 Julio 2015
    ...5 L.Ed.2d 224; Wilson v. U.S ., 558 A.2d 1135 (D.C.App. 1989). With respect to “reiteration” of prior testimony, see State v. Girouard , 561 A.2d 882 (R.I. 1989), where the appellate court held that it was not an abuse of discretion on the part of the trial court to overrule an objection to......
  • Privilege
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Testimonial evidence
    • 31 Julio 2017
    ...5 L.Ed.2d 224; Wilson v. U.S ., 558 A.2d 1135 (D.C.App. 1989). With respect to “reiteration” of prior testimony, see State v. Girouard , 561 A.2d 882 (R.I. 1989), where the appellate court held that it was not an abuse of discretion on the part of the trial court to overrule an objection to......
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    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part I - Testimonial Evidence
    • 31 Julio 2014
    ...5 L.Ed.2d 224; Wilson v. U.S ., 558 A.2d 1135 (D.C.App. 1989). With respect to “reiteration” of prior testimony, see State v. Girouard , 561 A.2d 882 (R.I. 1989), where the appellate court held that it was not an abuse of discretion on the part of the trial court to overrule an objection to......
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    • James Publishing Practical Law Books Is It Admissible? Part I. Testimonial Evidence
    • 1 Mayo 2022
    ...5 L.Ed.2d 224; Wilson v. U.S ., 558 A.2d 1135 (D.C.App. 1989). With respect to “reiteration” of prior testimony, see State v. Girouard , 561 A.2d 882 (R.I. 1989), where the appellate court held that it was not an abuse of discretion on the part of the trial court to overrule an objection to......
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