State v. Kausel
| Decision Date | 19 June 2013 |
| Docket Number | No. 2012–74–C.A.,2012–74–C.A. |
| Citation | 68 A.3d 524 |
| Parties | STATE v. Lewis KAUSEL. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Lauren S. Zurier, Department of Attorney General, Providence, for State.
Thomas M. Dickinson, Esq., Woonsocket, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
The defendant, Lewis Kausel, appeals from the judgment of conviction on one count of simple domestic assault. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time. For the reasons set forth in this opinion, we affirm the judgment of conviction.
On June 3, 2011, defendant was charged by a criminal complaint with one count of “assault or battery or both” on Patricia Kausel in violation of G.L.1956 § 11–5–3 “in circumstances which are in violation of the protections offered through the Domestic Violence Prevention Act,” G.L.1956 § 12–29–5. A five-day jury trial was held in the Kent County Superior Court 1 in October and November of 2011, during which defendant represented himself.
At trial, Ms. Kausel was the first witness to testify for the state. She stated that on June 3, 2011, she was living in East Greenwich with defendant, to whom she had been married for twelve years, and their two children. Ms. Kausel further stated that she had begun the process of seeking a divorce from defendant. Ms. Kausel testified that, at approximately 10 a.m. that morning, she was at home along with defendant and her mother, Barbara Creighan; she explained that she was working from home, as it was her custom to do on Fridays.
Ms. Kausel further testified that, while she was participating in a conference call, defendant was conducting various loud activities—such as mowing the lawn, turning up the volume on the television, and runningthe washer and dryer. She testified that, when she asked defendant to keep the noise down, he replied in a loud voice: “[Y]ou're telling me to shut up?” When asked to describe defendant's demeanor while she was on the conference call, Ms. Kausel answered that she would describe it as “a little belligerent.” She further testified that she terminated the call out of embarrassment and proceeded to take the dog for a walk; she indicated that, at that point in time, defendant was taking a shower.
Ms. Kausel testified that, upon returning from her walk, she saw defendant coming out of the bathroom completely unclothed. She stated that, in an effort to keep defendant out of her mother's sight, she tried “herding him back into the bathroom” so that he could put his shorts back on. Ms. Kausel testified that she did not push or shove defendant; but she agreed that, because they were “in close contact,” it was “possible” that she had touched him “without a push or a shove.” She further testified that she reached down to grab defendant's shorts, and then she remembered a slap to her face. She added that she then dropped the shorts to the floor, ran out of the bathroom, told her mother to return to the master bedroom, and proceeded to call the police. Ms. Kausel told the jury that it was defendant's hand that struck her, leaving a red mark on her face (which mark she testified she saw when she looked in a mirror). The prosecutor also questioned Ms. Kausel with respect to photographs (which were later entered into evidence) of Ms. Kausel depicting the way that her face appeared after the incident, including a photograph of what Ms. Kausel described as a “very clear picture of a bruise on [her] cheek.”
Ms. Kausel testified that she would not have fabricated such a story for the purpose of having defendant removed from the home. Thereafter, during cross-examination of his wife, defendant sought to introduce a list in Ms. Kausel's handwriting which included such tasks as calling an attorney, buying a car, and closing various accounts. The defendant contended that the list demonstrated that Ms. Kausel had been taking steps to put herself in the best position with respect to the couple's divorce proceedings. However, the trial justice ruled that defendant was “not going to try the divorce case in this case.” The trial justice reviewed the list and then ruled that it had no probative value and would only confuse the jury; consequently, he declined to permit the list to be entered into evidence.
Barbara Creighan, Ms. Kausel's mother, was the next witness to testify about the June 3, 2011 incident. Her testimony corroborated that of her daughter. The state also presented the testimony of three officers of the East Greenwich Police Department. All three of the officers stated that they had responded to the Kausel residence, and they proceeded to testify as to their involvement in the subsequent investigation.
One of the three officers who testified for the state was Lieutenant Matthew Haley. He stated that he received a call at around 10 a.m. on June 3, 2011 directing him to respond to the Kausel residence. He further testified that, upon his arrival, defendant showed him a “small scratch” on his arm that defendant asserted had resulted from that morning's altercation with Ms. Kausel. Lieutenant Haley stated that he then spoke with Ms. Kausel. He further testified that he observed a mark on Ms. Kausel's face. Lieutenant Haley added that, “[Ms. Kausel] seemed to explain some things that I thought made more sense to what had actually occurred.”
During cross-examination, defendant asked Lt. Haley if he had considered whether Ms. Kausel's injury had been “self-inflicted”; Lt. Haley answered that that was a possibility. Lieutenant Haley also acknowledged that he knew that defendant had been injured.2
The defendant proceeded with cross-examination of Lt. Haley as follows:
On re-direct examination of Lt. Haley by the prosecutor, the following further testimony was elicited:
The state rested its case after Lt. Haley's testimony, and defendant opted not to present any testimony or other evidence.
On November 2, 2011, the trial justice instructed the jury before the closing arguments took place. Within his instructions, the trial justice addressed the concepts of assault and battery; in pertinent part, he stated as follows:
Immediately after he finished giving his instructions to the jury, the trial justice expressly asked both parties whether there were any objections to the instructions. Both defendant and the prosecutor stated on the record that they had no objections. The parties proceeded to make their closing arguments, and the jury then retired to deliberate.
Shortly after the jury began its deliberations, the trial justice received a note from the jury foreperson. The note asked the trial justice: “If it is an accident can there be intent[?]” The note also requested the definition of the word “intent.”
During a discussion of the jury's note between the parties and the trial justice, defendant filed a motion for mistrial in open court claiming that the trial justice's instructions had “failed to instruct completely on assault and battery”; he elaborated by stating that the trial justice had “stopped short in his instruction to inform the jury of the State[']s obligation in its burden of proof.”
Before ruling on defendant's motion for mistrial, the trial justice turned to the question posed by the jury. The prosecutor asserted that general intent was the proper standard, and she asked the court to respond accordingly to the jury's note. The trial justice ultimately decided to wait until Friday, November 4, 2011 to respond to the jury's inquiry, and he allowed the jurors to continue deliberating.
When the jury reconvened on November 4, 2011, the trial justice responded to the question by giving a supplemental instruction. He stated, in pertinent part, as follows:
“The answer to the question is: It depends. It depends on the crime which is alleged and it depends on what the “accident” was. * * * [T]he alleged crimes are domestic assault and/or domestic battery. The underlying crimes—I only mentioned the word “intent” one time in my original instructions when I defined those crimes. So...
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...intent crime "require[s] only the intent to make bodily movement which constitutes the acts which the crime requires." State v. Kausel , 68 A.3d 524, 531 (R.I. 2013). Put another way, a general intent offense requires only the "intentional commission of a reckless act." Fish , 758 F.3d at 1......
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