State v. Kholi

• Decision Date: 29 February 1996
• Docket Number: No. 94-370-C,94-370-C
• Citation: 672 A.2d 429
• Parties: STATE v. Khalil KHOLI. A.
• Court: Rhode Island Supreme Court

Page 429

672 A.2d 429

STATE v. Khalil KHOLI.

No. 94-370-C.A.

Supreme Court of Rhode Island.

Feb. 29, 1996.

Andrea J. Mendes, Special Asst. Attorney General, Aaron Weisman, Assistant Attorney General, for Plaintiff.

Paula Rosin, Chief Appellate Counsel, Richard Casparian, Public Defender, for Defendant.

OPINION

WEISBERGER, Chief Justice.

This case comes before the court on the appeal of the defendant, Khalil Kholi, from a judgment of conviction of ten counts of first-degree sexual assault of his two stepdaughters, Amy and Julie. ¹ The defendant was sentenced to life imprisonment on each count, counts 1 through 6 to run concurrently with one another, but consecutively to counts 7 through 10. On appeal, the defendant seeks to have his convictions vacated and to have the case remanded to the Superior Court for a new trial. We deny the defendant's appeal in regard to all counts. The facts of the case insofar as pertinent to this appeal are as follows.

The victims, Amy and Julie, were ages four and eight, respectively, when their mother divorced their father and began a relationship with defendant. Soon thereafter defendant moved in with the mother and daughters and became a father figure to the girls. The girls testified that defendant controlled the household finances and was the family's sole disciplinarian. The defendant engaged in various sexual acts with both girls when they were very young and sexual intercourse and fellatio when they became teenagers. On December 23, 1989, defendant married the girls' mother, becoming their stepfather.

Amy testified that defendant engaged in repeated incidents of digital penetration of her vagina from the time she was approximately the age of five until she entered the sixth grade, at which time defendant began to demand sexual intercourse. By the time she reached the seventh grade Amy had engaged in sexual intercourse with defendant. Amy testified that she told her mother defendant was "touching her" after defendant digitally penetrated her when she was five and after having sexual intercourse with her when she was in the seventh grade. At the age of seventeen, Amy's boyfriend encouraged her to speak to a school counselor about defendant. The school counselor, in turn, encouraged Amy to tell her biological father about the abuse, and she did. Amy's father arranged for her to see a professional counselor, who reported the abuse to the Department of Social Services in Massachusetts.

Julie testified that defendant digitally penetrated her vagina for the first time when she was seven years old. The defendant first demanded that Julie perform oral sex on him when she was approximately seven or eight. From this point onward, defendant often made Julie perform fellatio on him. When Julie was eight or nine years old, defendant disrobed her and took graphic pictures of her vagina. Afterward, defendant repeatedly threatened to show the pictures to Julie's mother and said that if he did, Julie would have only herself to blame. Julie never disclosed the abuse to anyone until her younger sister confided her own accounts of their stepfather's abuse. Both girls testified that defendant would condition the giving of necessities or the granting of privileges upon his obtaining sexual favors from them.

In support of his appeal, defendant raises five issues that will be considered in the order in which they appear in defendant's brief. Additional facts will be supplied as necessary in order to form a basis for determining these issues.

I Challenge to the Denial of the Motion for Mistrial

The defendant asserts that the trial justice erred in failing to grant a mistrial or to give an immediate cautionary instruction after sustaining defense counsel's objection to the state's attempt to introduce evidence that defendant once broke a glass over the hand of a friend of Julie. In response to a pretrial motion to exclude this evidence, the trial justice reserved decision but granted defense counsel's request that prior notice be given before inquiry into the matter was made. At trial the prosecutor did not inquire about the alleged incident during the presentation of his case in chief. During cross-examination of defendant, however, the prosecutor asked, "Did you ever commit any acts of violence or strike any [of Amy's or Julie's] friends?" Prior to defendant's answer, defense counsel objected and moved for a mistrial. The trial justice sustained defense counsel's objection but ruled that a mistrial was not warranted:

"All that is here is a question about some other friend. There has been testimony in the case he had slapped his wife on occasion. There's been testimony he slapped the girls. He's now testified that he slapped them on occasion. I'm going to be charging the jury, and I have already told them that questions are not evidence. This certainly wasn't a question of whether or not he has assaulted anyone in the past; merely whether he struck any of their friends. I sustained the objection to the question. The motion to pass is denied."

The defendant contends that the prosecutor's cross-examination question was so prejudicial as to prevent the jury from rendering an impartial verdict. He argues that the question evoked "inexpiable prejudice" requiring a new trial. See State v. Gallagher, 654 A.2d 1206, 1211-12 (R.I.1995); State v. Ordway, 619 A.2d 819, 828 (R.I.1992); State v. Caprio, 477 A.2d 67, 73 (R.I.1984). We do not agree. It is well settled that a ruling in regard to a mistrial lies within the sound discretion of the trial justice. State v. Brown, 619 A.2d 828, 831 (R.I.1993). The ruling of a trial justice on a motion for mistrial is entitled to great weight and will not be disturbed on appeal unless it is clearly wrong. Id. In evaluating an allegedly prejudicial question, the trial justice must assess the potential prejudicial impact of the question, considering all available facts and circumstances. State v. Mora, 618 A.2d 1275, 1282 (R.I.1993) (citing State v. Brown, 522 A.2d 208, 210-11 (R.I.1987)). Only when the "question so inflames the passions of the jury as to prevent their calm and dispassionate examination of the evidence" will a mistrial be necessary. Brown, 522 A.2d at 211 (citing State v. Mancini, 108 R.I. 261, 273-74, 274 A.2d 742, 748 (1971)).

We agree with the trial justice that the prosecutor's question in the instant case was unlikely to have inflamed the jurors' passions against defendant. The evidence against defendant in respect to his sexual abuse of Amy and Julie was overwhelming. We hold that the trial justice did not err in ruling that the prosecutor's question failed to meet the mistrial standard embodied in Brown.

Nor are we persuaded by defendant's argument that State v. McDowell, 620 A.2d 94 (R.I.1993), requires reversal of defendant's convictions. In McDowell this court held that the admission of other crimes through the rebuttal testimony of an alleged victim for the purpose of impeaching the cross-examination statements of the defendant was reversible error. Id. at 96. In the present case, defense counsel's objection to the prosecutor's question was sustained. The prosecutor was thereby prevented from introducing evidence impeaching defendant's cross-examination testimony. Therefore, the only issues are whether the posing of the question itself prejudiced defendant and, if so, whether that prejudice prevented the jury from passing impartially upon the issues in the case. Brown, 522 A.2d at 210-11.

The defendant contends that the posing of the question itself resulted in the type of incurable prejudice we recognized in Ordway and Gallagher. However, the questions posed in Ordway and Gallagher implicated those defendants in crimes similar to the ones for which they stood trial. Gallagher, 654 A.2d at 1211-12; Ordway, 619 A.2d at 827. Unlike those situations, the question asked here did not implicate defendant in other bad acts involving sexual assault.

The defendant also argues that the failure of the trial justice to give a cautionary instruction immediately after sustaining defense counsel's objection to the question requires that he be granted a new trial. We disagree. If the prejudice can be cured, as it certainly could be here, a mistrial will be ordered only if we are convinced that the cautionary instructions were untimely or ineffective. State v. Hoyle, 122 R.I. 45, 47-48, 404 A.2d 69, 70 (1979); State v. Marrapese, 116 R.I. 1, 7, 351 A.2d 95, 98 (1976). In measuring the effectiveness of the trial justice's instructions, we look to the whole record. Marrapese, 116 R.I. at 8, 351 A.2d at 99. Looking to the record before us, we note that the trial justice cautioned the jurors four times prior to defense counsel's objection not to consider remarks or questions by counsel as part of the evidence to be considered by them. Again, in his final charge to the jury, the trial justice instructed that "[r]emarks, statements or personal opinions expressed by counsel in your presence during the trial or in final arguments are not evidence and are not to be considered by you as evidence during your deliberations." We hold that these admonitions were sufficient to ensure that the jury's verdict rested solely on legally admitted, competent evidence. The trial justice was not required to give any further instruction respecting the question that in the context of this case was relatively innocuous.

II Scope of Cross Examination

The defendant contends that the trial justice erred by permitting the state to cross-examine him about an uncharged incident of sexual abuse and by permitting the victims to rebut that testimony. "In this jurisdiction cross-examination of a witness is generally limited in scope to matters testified to on direct examination." State v. Benevides, 420 A.2d 65, 69 (R.I.1980). "[E]vidence that may not be admissible in the prosecution's case in chief may be used in rebuttal in order to counter false statements made by the...