State v. Lamphere

• Decision Date: 01 June 1995
• Docket Number: No. 94-74-C,94-74-C
• Citation: 658 A.2d 900
• Parties: STATE v. David LAMPHERE. A.
• Court: Rhode Island Supreme Court

Page 900

658 A.2d 900

STATE v. David LAMPHERE.

No. 94-74-C.A.

Supreme Court of Rhode Island.

June 1, 1995.

Jeffrey Pine, Atty. Gen., Andrea Mendes, Sp. Asst. Atty. Gen., Aaron Weisman, Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine Gibran, Paula Rosin, Asst. Public Defenders, for defendant.

OPINION

MURRAY, Justice.

This case comes before us on the appeal of the defendant David Lamphere, from judgments of conviction on six counts of second-degree child molestation, G.L.1956 (1981 Reenactment) § 11-37-8.3, as amended by P.L.1988, ch. 219, § 1, and § 11-37-8.4, as amended by P.L.1984, ch. 59, § 2. On appeal the defendant contends that the trial justice committed reversible error by (1) failing to give a cautionary instruction to the jury, (2) failing to limit the jury's deliberations to the bill of particulars, (3) impermissibly limiting the cross-examination of certain state witnesses, (4) denying the defendant's motion in limine, which sought to preclude the defendant's prior convictions, (5) not allowing the defendant to inquire about the whereabouts of a witness, and (6) refusing to conduct a voir dire of the jurors for potential prejudice. For the reasons set forth below, we reverse the judgments of conviction and remand the case for a new trial consistent with this opinion. The facts of the instant case as are pertinent to this appeal are gleaned from the record below.

On April 4, 1991, defendant was indicted by a grand jury on six counts of second-degree child molestation in violation of §§ 11-37-8.3 and 11-37-8.4, and one count of first-degree child molestation, § 11-37-8.1, as amended by P.L.1988, ch. 219, § 1 and § 11-37-8.2, as amended by P.L.1984 ch. 59, § 2. The seven counts arose out of three separate incidents occurring sometime between January 1, 1988, and November 1, 1990, when the victim, Lori Taylor (Lori), ¹ was between the ages of ten and twelve years old. The first of these incidents was alleged to have occurred in defendant's apartment in West Warwick; the second incident was alleged to have taken place in a swimming pool located behind defendant's residence; the third incident was alleged to have occurred in the victim's home in West Warwick.

At trial, testimony revealed that Lori often stayed with her second cousin, Lisa Betz, and Lisa's husband, John, on the first floor of their West Warwick residence while Lori's mother, Andrea Taylor (Andrea), worked afternoons and some nights. ² The upstairs of the Betzes' residence, which had been converted into a separate apartment, was occupied by defendant and his wife Tammy Lamphere (Tammy), the daughter of the Betzes and third cousin to Lori. Testimony also revealed that Lori occasionally stayed overnight in the second-floor apartment with Tammy and defendant. The two apartments were connected by a common door allowing Lori to move freely between the two floors.

At trial Lori testified about the first incident of sexual molestation, which occurred at defendant and Tammy's second-floor apartment in West Warwick sometime in 1988. This incident took place one night when Tammy had gone out shopping, leaving defendant and Lori, then ten years old, alone in the apartment. According to Lori, after she had gone into one of the bedrooms to lie down, defendant entered the room clad only in a bathrobe. He then began "rubbing and tickling" her legs, breasts, and vagina over her pajamas. Following a brief period, defendant ordered Lori to take her pajamas off. Fearing defendant, Lori complied. With her clothes now off, defendant again began "rubbing and tickling" her legs, breasts, and vagina. At some point defendant removed his robe, ordering Lori to touch his penis. He subsequently engaged in sexual intercourse with Lori. Because she was afraid of breaking up defendant and her cousin Tammy's marriage, Lori stated that she never told anyone of these events in the months that followed.

The second alleged incident of molestation occurred in a swimming pool located behind the Betz and Lamphere apartments when Lori was eleven years old. Lori testified that at one point when the two of them were the only ones in the pool, defendant began to touch and rub her breasts, buttocks, and vaginal area underneath her bathing suit.

The final incident occurred at Lori's home in West Warwick. The incident arose out of a visit by Tammy and defendant to the home of Lori's mother, Andrea. While Lori was coloring in her second-floor bedroom, defendant came up to the bedroom alone and sat down beside her. He then began to rub Lori's breasts underneath her pajamas for approximately five minutes.

Lori again stated that because she was afraid to break up Tammy and defendant's marriage, she refused to disclose any of the incidents of molestation except to her friend and next-door neighbor, to whom we shall refer as Amy. While the incidents of molestation were occurring Lori told Amy, during a conversation the two had in the back yard of Lori's home, that defendant had sexually molested her several times. However, Lori made Amy promise not to tell anyone of these incidents, and Amy agreed.

Finally, in November 1990, Lori revealed to Tammy that she had been repeatedly sexually assaulted by defendant. The revelation came approximately three months after Tammy had separated from defendant and had moved into Andrea's home. While Lori and a friend were upstairs, they overheard Tammy confronting defendant over the telephone with an allegation that defendant had previously molested a young boy. Tammy had received this information from defendant's nephew, Teddy Lamphere, who had become romantically involved with Tammy shortly before defendant and Tammy separated. After overhearing this allegation, Lori told Tammy, who was still on the phone with defendant, that defendant had molested her too. Lori decided to tell Tammy at this point because she did not want Tammy to reconcile with defendant, fearing that she "would have to go through it all over again."

As a result of these three incidents, defendant was indicted on six counts of second-degree child molestation and one count of first-degree child molestation. In the state's answer to defendant's motion for a bill of particulars, the prosecution indicated that the first four counts of the indictment arose out of the single incident in defendant's second-floor apartment bedroom. The first three of these counts were for second-degree child molestation. Specifically, the first two counts alleged that defendant had touched Lori's breasts and vagina while the third count contended that defendant had ordered Lori to touch his penis. The fourth count alleged that defendant had engaged in sexual intercourse with Lori, thereby committing first-degree child molestation.

Counts 5 and 6, alleging second-degree child molestation, arose out of the separate incident occurring in the swimming pool behind the Betz and Lamphere apartments. Specifically, these two counts alleged that defendant had touched Lori's buttocks and breasts. The final count, count 7, alleged that defendant had committed second-degree child molestation by touching Lori's breasts at her residence in West Warwick.

Following two and one-half days of deliberation, the jury returned a verdict of guilty in regard to all six counts of second-degree child molestation. However, the jury was unable to reach a verdict on the one count of first-degree child molestation, which resulted in a mistrial concerning that count. After a denial of his motion for new trial, defendant was sentenced to six concurrent sentences of twenty years, of which ten years were to be served. The defendant now appeals.

On appeal defendant contends that the trial justice committed reversible error in six particular instances by (1) failing to give a limiting instruction regarding several uncharged acts of sexual assault testified to at trial by Lori, (2) refusing to limit the jury's deliberations to the bill of particulars, (3) impermissibly limiting defense counsel's cross-examination of certain state witnesses, particularly with respect to their prejudices and biases (4) refusing to allow defense counsel to inquire into the whereabouts of Teddy Lamphere during cross-examination of Tammy (5) denying defendant's motion in limine which sought to preclude the use of his prior criminal convictions by the prosecution if he chose to testify, and (6) refusing to conduct a voir dire of the jury for potential prejudice arising from some members' possible observation of Lori crying in the hallway of the court house while being comforted by a relative.

In the first issue on appeal defendant contends that the trial justice erred by failing to give a limiting instruction regarding the admission of several alleged uncharged acts of sexual assault perpetrated by him against Lori. Specifically, defendant avers that by failing to give a limiting instruction on the proper use of these prior uncharged instances of sexual assault either when the testimony was initially elicited or during the final charge, the trial justice allowed the jury free rein to use this evidence to impermissibly prejudice defendant. The defendant agrees, however, that this evidence was properly admissible to show defendant's lewd disposition or design toward Lori, see State v. Tobin, 602 A.2d 528 (R.I.1992), but now only takes issue with the fact that no limiting instruction was given. In response the state, while conceding that some sort of limiting instruction should have been given, counters that defendant was not prejudiced by this omission, especially given defense counsel's extensive inquiry into these uncharged acts during his cross-examination of Lori.

At trial Lori testified during direct examination about numerous instances of sexual molestation committed by defendant between January 1, 1988, and November 1, 1990, that were not charged in the indictment or specified in the bill of particulars. ³...