State v. Hazard, 98-237-C.A.
| Decision Date | 03 December 2001 |
| Docket Number | No. 98-237-C.A.,98-237-C.A. |
| Citation | 785 A.2d 1111 |
| Parties | STATE v. Harold A. HAZARD. |
| Court | Rhode Island Supreme Court |
Present: WILLIAMS, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Jane M. McSoley, Aaron L. Weisman, Providence, for Plaintiff.
James T. McCormick, Providence, for Defendant.
The defendant, Harold A. Hazard (defendant), appeals from a judgment of conviction for repeated sexual assaults upon a child. A Superior Court jury found the defendant guilty of committing five counts of child molestation sexual assault (four counts first degree, one count second degree) against his former girlfriend's daughter (victim) when the girl was eleven and twelve years old.
On appeal, defendant challenges various evidentiary rulings and the trial justice's mid-trial excusal of a juror from the case. Below, we take up each of defendant's specifications of error, reciting the pertinent facts as needed to resolve them as well as the reasons why we reject each of these contentions.
The defendant asserts that the trial justice committed reversible error during the trial when he sustained a series of prosecution objections to various cross-examination questions that his attorneyposed to the victim's mother. On appeal, defendant suggests that he was trying to elicit statements that the victim allegedly made to her mother showing a racial animus against defendant. The defendant, who was a person of color, posits that the victim's racial prejudice toward him caused her to fabricate the sexual-assault charges. In support of this contention, defendant argues, his counsel tried to elicit that the victim made certain statements to her mother that revealed her race-based hostility toward defendant. In particular, defendant contends, because the state's hearsay objections were not well founded, the trial justice erred when he sustained them. The defendant maintains that any such statements that the victim may have made to her mother fell within the hearsay exception for the declarant's then-existing state of mind under Rule 803(3) of the Rhode Island Rules of Evidence.1
The first problem we have with this contention is that defendant failed to present this argument to the trial justice. Under our well-settled raise-or-waive rule, failure to make an argument to a trial justice waives the right to raise that argument on appeal. See State v. Donato, 592 A.2d 140, 141-42 (R.I.1991)
. This rule requires that, to be reviewable on appeal, all objections and allegations of error at the trial level must be raised initially and specifically with the trial justice. State v. Pineda, 712 A.2d 858, 861 (R.I.1998); State v. Toole, 640 A.2d 965, 973 (R.I.1994). When a trial justice sustains an objection to a line of inquiry on cross-examination and opposing counsel fails to make an offer of proof, fails to request any voir dire of the witness, and fails to articulate any reason why the court should reconsider its ruling, then that party cannot, on appeal, question the trial justice's ruling in sustaining the objection as reversible error. State v. Medina, 747 A.2d 448, 450 (R.I.2000).
Although the trial justice sustained various objections to questions that were put to the victim's mother on cross-examination, defendant never once indicated to the trial justice the purpose for which he sought to elicit the hearsay statements in question. Likewise, he made no offer of proof, he never asked the trial justice to allow him to voir dire the witness outside the presence of the jury, and he never mentioned the Rule 803(3) hearsay exception that he now relies upon to justify this line of questioning. Moreover, he never asked the trial justice to reconsider his rulings in light of that exception. Instead of letting the trial justice know the purpose for which he was asking these questions, what evidence he was seeking to adduce, and the legal basis for admitting this evidence, defendant's attorney simply moved on to his next cross-examination question without even indicating what answers he expected to receive concerning the victim's alleged racial animus toward defendant. We hold, therefore, that he has failed to preserve his objection to these evidentiary rulings for our review on appeal.
An exception exists to this raise-or-waive rule, however, for issues involving a basic constitutional right. To invoke that exception the party must show that the error was more than harmless, that a sufficient record exists to permit a determination of whether any error was committed, and that the failure to raise the issue at trial was based on a "`novel rule of law that counsel could not reasonably have known during the trial.'" Cronan ex. rel. State v. Cronan, 774 A.2d 866, 878 (R.I. 2001)
(quoting State v. Donato, 592 A.2d 140, 142 (R.I.1991)). In this case, defendant's Rule 803(3) argument does not qualify under the exception to the raise-or-waive rule.
First, we are not persuaded that any error, if it existed, was more than harmless. Even if the trial justice's decision to limit cross-examination had been erroneous, it would not be reversible if the error was harmless beyond a reasonable doubt. State v. Pettiway, 657 A.2d 161, 164 (R.I.1995). This Court has adopted a test for determining harmless error that calls for consideration of the following factors: the importance of the witness's testimony; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting the witness's testimony on material points; the extent of cross-examination otherwise permitted; and the overall strength of the prosecution's case. See State v. Squillante, 622 A.2d 474, 479 (R.I.1993)
().
In this case, if the trial justice erred, the error was harmless beyond a reasonable doubt because defendant was able to elicit through both the mother and the victim herself considerable evidence indicating that the victim did not like defendant because of his race and that their rocky relationship reflected this fact. For example, the mother was asked about the nature of the relationship between her daughter and her boyfriend, and she characterized it as "rough," noting that their relations were sometimes good, sometimes bad. The mother specifically testified that the relationship between defendant and her daughter began to deteriorate after she was in a car accident in 1994; from then on, she stated, the victim became "cocky and arrogant" toward defendant. They began to argue a great deal and the victim would "huff and puff," "slam things," and "roll her eyes up in the air" when defendant asked her to do chores around the house. When her mother corrected her behavior, the victim became hostile and accused her mother of taking defendant's side against her. Thus, the record shows that defendant was able to elicit the victim's alleged animus and resentment toward defendant. Furthermore, defendant's counsel was able to exploit this issue fully in closing argument. In our judgment, even ifdefendant had preserved his objections to the trial justice's rulings, the additional corroboration sought from the victim's mother was merely cumulative because it would have added little or nothing to the mix of information that the jury ultimately received on this subject.
Second, a sufficient record does not exist to permit a determination of whether defendant may have attempted to preserve this alleged error for review during one or more bench conferences with the court. Indeed, several bench conferences occurred in the middle of this questioning that were not recorded; thus, we have no basis to ascertain the substance of any discussion that occurred and whether defendant's counsel may have alerted the trial justice at that time to the asserted legal basis for his questioning. Third, and most obviously, this issue did not involve a "`novel rule of law that counsel could not reasonably have known during the trial.'" Cronan, 774 A.2d at 878 (quoting Donato, 592 A.2d at 142). For these reasons, defendant is not entitled to rely upon the raise-or-waive exception.
Finally, it is not at all clear that the court sustained objections to all the questioning at issue on the grounds that it called for inadmissible hearsay. For example, defendant challenges the following rulings:
These questions attempted to elicit how the victim's mother perceived the victim's state of mind or attitude when mother and daughter were discussing various subjects. The Rhode Island Rules of Evidence that exclude hearsay include an exception for a statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition, regardless of the declarant's availability. See Rule 803(3). Although such a statement is admissible, it is not permissible for "the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind." State v. Bustamante, 756 A.2d 758, 764 (R...
To continue reading
Request your trial
-
State v. Mohapatra
...Our well settled raise-or-waive rule prevents us from addressing arguments not raised before the trial justice. See State v. Hazard, 785 A.2d 1111, 1116 (R.I.2001). The defendant's counsel failed to object and, in fact, approved the use of the criminal information as the verdict form by say......
-
State v. Thornton
...his absence from sidebar conferences was not raised below, is therefore waived, and is not now properly before us. State v. Hazard, 785 A.2d 1111, 1115 (R.I.2001). We note, however, that given the trial testimony of Debra Means, the state's first trial witness, and Thornton's own admission ......
-
State v. Lynch
...in the sound discretion of the trial justice and will not be disturbed absent a showing of an abuse of that discretion." State v. Hazard, 785 A.2d 1111, 1120 (R.I.2001) (quoting Graff v. Motta, 748 A.2d 249, 252 (R.I.2000)). "As a general rule, evidence that shows or tends to indicate that ......
-
State v. Lynch, No. 1999-327-C.A. (K1/96-591A) (RI 8/11/2004)
...in the sound discretion of the trial justice and will not be disturbed absent a showing of an abuse of that discretion." State v. Hazard, 785 A.2d 1111, 1120 (R.I. 2001) (quoting Graff v. Motta, 748 A.2d 249, 252 (R.I. 2000)). "As a general rule, evidence that shows or tends to indicate tha......