State v. Harris

• Decision Date: 17 March 2005
• Docket Number: No. 2002-253-C.A.,2002-253-C.A.
• Citation: 871 A.2d 341
• Parties: STATE v. Warren HARRIS.
• Court: Rhode Island Supreme Court

871 A.2d 341

STATE v. Warren HARRIS.

No. 2002-253-C.A.

Supreme Court of Rhode Island.

March 17, 2005.

Christopher R. Bush, Providence, for Plaintiff.

Paula Lynch, East Greenwich, for Defendant.

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

OPINION

PER CURIAM.

The defendant, Warren Harris, appeals from a Superior Court judgment of conviction for assault with a dangerous weapon, contending that the state offered insufficient evidence to prove the offense beyond a reasonable doubt. In addition, he seeks to raise for the first time on appeal an alleged violation of the Sixth Amendment's Confrontation Clause; he asserts that he is entitled to raise this argument at this time in view of the fact that the United States Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) was issued subsequent to his conviction. For the following reasons, we affirm the conviction.

Facts/Travel

On the night of August 6, 2000, defendant was arrested and later charged with (1) assaulting Melody Eason with a dangerous weapon (specifically, a kitchen knife) and (2) refusing to relinquish a telephone.

Earlier that night, at approximately 11 p.m., Woonsocket police officers John Scully III and Thomas Calouro were advised that there had been a call to the police indicating that there was a domestic disturbance at 115 South Street.¹ Upon arriving at the premises, the officers heard a male voice yelling from the second-floor apartment. After knocking, the officers entered the apartment, where they found Melody Eason and her sixteen-year-old daughter, Cassandra Eason, as well as defendant Warren Harris.² The officers spoke with all three individuals and were informed that, in the course of an argument between Warren Harris and Melody Eason, Harris had put a knife (or knives) to Melody Eason's throat and threatened to slit her throat while she slept. The officers searched part of the apartment, but they did not find a knife.

Several weeks after defendant's arrest, Cassandra made a written statement to the police. The record contains no other written witness statements.

Harris proceeded to trial on October 31, 2001. During the jury-waived trial, the state presented its case-in-chief through the testimony of Officers Scully and Calouro. Cassandra was subpoenaed, but she failed to appear to testify at trial. On direct examination by the state, Officer Calouro testified that "Cassandra * * * stated that she was woken up to Mr. Harris having two knives to Melody's throat." Defense counsel objected on hearsay grounds to that statement by Officer Calouro, and the court sustained the objection and struck the statement.³ Significantly, however, the same hearsay evidence was subsequently used by the defense during the cross-examinations of Officer Calouro and Officer Scully.⁴ In addition, it was used by the state during the direct examination of Officer Scully without the defense making any objection.⁵ Moreover, at the close of the state's case, the defense introduced for impeachment purposes the written statement that Cassandra had made to the police several weeks after Harris's arrest.⁶

Melody Eason testified for the defense at trial, and she denied that Harris had had a knife or had put a knife to her throat. She also denied that she had told the police officers that Harris had a knife.

At the close of all the evidence, defendant moved to dismiss, challenging the legal sufficiency of the evidence presented by the state. The trial justice denied the motion to dismiss and found Harris guilty of both charges. On February 12, 2002, defendant received a one-year suspended sentence, with three years probation, on the assault charge and a three-month suspended sentence, with three months probation, on the failure to relinquish a telephone charge, both sentences to run concurrently. The defendant timely appealed to this Court with respect to the assault with a dangerous weapon conviction.

Analysis

1. The Crawford Argument.

The defendant argues for the first time on appeal that the admission of Cassandra's oral statement to the police violated the Confrontation Clause of the Sixth Amendment to the United States Constitution.⁷ The defendant's challenge is based on the very recent United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In Crawford, a criminal case that originated in the State of Washington, a husband and wife each were given Miranda warnings and questioned about their possible involvement in a stabbing. During the interrogation, the wife gave tape-recorded statements implicating her husband in the crime, after which he was charged with assault and attempted murder. At the defendant's state court trial, the wife was called to testify, but she refused, invoking her marital privilege. Crawford, 124 S.Ct. at 1357-58. The prosecution then sought to offer into evidence the wife's statement made during the interrogation as a statement against her penal interest pursuant to Rule 804(b)(3) of the Washington Rules of Evidence.⁸ The defendant objected on Sixth Amendment grounds, but the state trial justice admitted the wife's statement, finding it to be trustworthy.⁹ After the jury convicted the defendant of assault, he appealed, arguing that the admission of his wife's statement violated his Sixth Amendment right to confrontation. Crawford, 124 S.Ct. at 1358. The case eventually reached the United States Supreme Court, which was persuaded by the defendant's argument and held that testimonial out-of-court statements of a witness are barred under the Confrontation Clause, unless the witness is unavailable and the defendant had prior opportunity to cross-examine the witness. Id. at 1365.¹⁰

Harris now argues (1) that, in view of the Supreme Court's ruling in Crawford, the state should have been prohibited from introducing what Cassandra said to the police on the night of August 6, 2000, and (2) that, without the admission of Cassandra's statement, the state would not have been able to meet its burden of proof at trial.

At one point in the trial, defendant did object on hearsay grounds to the prosecution's use of Cassandra's oral statement, and the judge ruled that the statement be stricken. However, in stark contrast with the procedural context in which the statement at issue in Crawford came before the appellate courts, later in the trial of this case, defendant did not object to the hearsay statement at issue on one occasion and defendant's counsel actually introduced the statement himself on more than one occasion. Significantly, defendant chose to employ Cassandra's hearsay evidence for impeachment purposes as part of his cross-examination of a prosecution witness.¹¹

This Court will review on appeal only those issues that have been properly preserved in the court below.¹² See, e.g., State v. Saluter, 715 A.2d 1250, 1258 (R.I.1998) ("It is axiomatic that `this court will not consider an issue raised for the first time on appeal that was not properly presented before the trial court.'") (quoting State v. Gatone, 698 A.2d 230, 242 (R.I.1997)); State v. Long, 488 A.2d 427, 432 (R.I.1985) ("A party who fails to assert his specific objections is deemed to have waived his rights on appeal."). When the issue is evidentiary, Rule 103(a)(1) of the Rhode Island Rules of Evidence specifically provides that a finding of error "may not be predicated upon a ruling which admits * * * evidence unless a substantial right of the party is affected, and * * * a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context."¹³

It is well established in Rhode Island and in other jurisdictions that a defendant may not complain of testimony on appeal when such testimony was brought out by defendant himself or herself on cross-examination. State v. DeWolfe, 121 R.I. 676, 683 n. 5, 402 A.2d 740, 744 n. 5 (1979) (holding that defendant may not complain on appeal of testimony about his previous drug activities when such evidence was either brought out by defendant on direct examination, or brought out by defendant on cross-examination); see also United States v. Garcia-Morales, 382 F.3d 12, 18 n. 1 (1st Cir.2004) (stating that the defendant cannot complain about a witness's responses to the defendant's own cross-examination questions); Mills v. State, 28 Md.App. 300, 345 A.2d 127, 134 (Spec.App.1975) (holding that "error cannot be asserted where the evidence whose admission constitutes the alleged error is elicited by appellant's counsel").

Having chosen to use Cassandra's statement in his cross-examination of both Officers Scully and Calouro, defendant waived any right that he arguably may have had under the Confrontation Clause with respect to that statement.

2. The Sufficiency of the Evidence.

Lastly, we turn to defendant's assertion that the trial justice erred in denying his motion to dismiss. That motion questioned the sufficiency of the evidence that the state had presented to support its case.

In a jury-waived criminal proceeding, a defendant may move to dismiss in order to challenge the legal sufficiency of the evidence. State v. Silvia, 798 A.2d 419, 424 (R.I.2002). In ruling on such a motion, the trial justice acts as the fact-finder. State v. McKone, 673 A.2d 1068, 1072 (R.I.1996). In carrying out that task, the trial justice is "required to weigh and evaluate the trial evidence, pass upon the credibility of the trial witnesses, and engage in the inferential process, impartially, not being required to view the inferences in favor of the nonmoving party, and against the moving party." Id. at 1072-73. The trial justice must deny the defendant's motion to dismiss if he or she concludes that the trial evidence is sufficient to establish guilt beyond a reasonable doubt. Id. at 1073.

On appeal, this Court applies a...