State v. Marizan, 2015–322–C.A.(P1/14–403A)

• Court: United States State Supreme Court of Rhode Island
• Citation: 185 A.3d 510
• Docket Number: No. 2015–322–C.A.(P1/14–403A),2015–322–C.A.(P1/14–403A)
• Parties: STATE v. Andre MARIZAN.
• Decision Date: 12 June 2018

185 A.3d 510

STATE
v.
Andre MARIZAN.

No. 2015–322–C.A.(P1/14–403A)

Supreme Court of Rhode Island.

June 12, 2018

For State: Aaron L. Weisman, Department of Attorney General, Providence.

For Defendant: Angela M. Yingling, Office of the Public Defender.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

Justice Indeglia, for the Court.

185 A.3d 513

A grand jury indicted Andre Marizan (Marizan or defendant) on February 14, 2014 on two counts of first-degree sexual assault in violation of G.L. 1956 §§ 11–37–2(1) and 11–37–3.¹ After a jury trial in Providence County Superior Court, the defendant was convicted on January 23, 2015. On appeal, the defendant argues that the prosecutor's closing argument improperly commented on the defendant's failure to testify, thereby violating his Fifth Amendment constitutional rights. Additionally, the defendant contends that the trial justice erred in admitting the defendant's photograph into evidence and also by denying his motion for new trial. For the reasons set forth herein, we affirm the judgment of the Superior Court.

I

Facts and Travel

The complaining witness, Alicia,² testified at trial. She recalled that, on August 18, 2012, after a night of drinking with friends, she woke up next to one of her sister's friends, Marizan. The previous day, Alicia and her sister, Lauren, had gone to a South County beach for a few hours. While there, they consumed Hennessy liquor;³ and, when the beach closed, they went to Lauren's ex-boyfriend's house in Providence and continued drinking there with a group of Lauren's friends.

Around 8:00 p.m., Alicia, Lauren, defendant, and another friend drove to a clothing store in the Olneyville section of Providence. After shopping, the group went to a liquor store and also picked up some food before returning to the house to join the others. The group of six friends continued drinking well into the night, and Alicia testified that she had planned to sleep at the house.

The party eventually moved from the living room to a bedroom. At some point after 11:00 p.m. but before 3:00 a.m., the group purchased alcohol from a bootlegger.⁴ After smoking marijuana and continuing to drink alcohol, Alicia testified that she vomited and later "passed out" on the bed in the bedroom.

When Alicia woke up around 7:00 a.m., she testified that she was not wearing pants or underwear, and she recalled that she also felt a wet substance on her leg.⁵ She saw defendant at the corner of the bed and subsequently began "flipping out" on

185 A.3d 514

him. Alicia stated that defendant told her she was "bugging" and nothing happened between them—he said that the substance on her leg was urine. Alicia said that defendant told her she had removed her clothing after urinating on herself.

Alicia went to the living room, where her sister and a couple of friends were sitting. Lauren assisted in finding Alicia's clothes. Alicia—who had been a professional boxer—testified that, before she put her clothes back on, she attempted to attack defendant, but was stopped by the friend who lived there. Alicia remembered leaving the house with her sister, who drove her to Women & Infants Hospital in Providence, where a sexual-assault examination was conducted.

At trial, Lauren also testified. She recalled that, a little after 3:00 a.m., she and a few of the friends present that evening had played the prank on Alicia and defendant while they were sleeping, and one person had recorded it on Lauren's cell phone. In the video, three individuals are visible: Lauren, Alicia—who appeared to be passed out—and a third person, whom Lauren identified as defendant. Lauren recalled that, after the video was taken, defendant got out of bed and went to the bathroom to wash his face.

Lauren testified that, when defendant returned to the bedroom, she and two of her friends went back to the living room. Lauren recalled that, after about ten to fifteen minutes, one of her friends attempted to open the bedroom door, but it was locked. When the friend finally found the key to the room, Lauren remembered, she went into the bedroom and found Alicia without her pants on and still asleep. Lauren testified that she observed defendant wearing only boxer shorts, although he had "regular" shorts on earlier in the night.

Lauren stated that, even though she was concerned at that point, she left the room and stayed in the living room until around 6:00 a.m., when she left the house to go to a restaurant with her friends for something to eat. After about thirty minutes to an hour at the restaurant, she returned to the apartment and woke Alicia. At this point, Lauren testified, Alicia started attacking Marizan, and Lauren heard Marizan tell Alicia that she had urinated in a cup and that "nothing happened." Soon after, Marizan left, and Lauren and Alicia went to the hospital.

Amy Corrado was the nurse in the emergency room at Women & Infants Hospital in Providence that day. Corrado testified that she performed a sexual-assault exam on Alicia. She recalled that Alicia had told her that she had showered but was wearing the same clothes she had been wearing the night before. Corrado used swabs to take samples from Alicia's body. She did not find any injuries on her body. Corrado notified the police on Alicia's behalf.

At trial, Detective Joseph Villella testified that he responded to a house in Providence to investigate a suspected sexual assault. Detective Villella collected the bedding from the scene for testing at the Rhode Island Department of Health. Detective William Corrigan also testified regarding his involvement in the case and recalled taking formal statements from both Alicia and Lauren on August 21, 2012. When she gave her statement at the police station, Alicia also identified defendant from a "mug shot"⁶ shown to her. A few months later, on October 12, 2012, Det.

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Corrigan received Marizan's consent to take a buccal swab of his mouth.

However, Det. Corrigan did not obtain an arrest warrant until January 2013, and Marizan was not arrested until August 2013. Moreover, Det. Corrigan testified that he had not taken witness statements from three men who were at the house during the evening of the alleged assault because Alicia warned him that the men were defendant's friends and would not cooperate.

At trial, Cara Lupino, the supervisor of the Rhode Island Department of Health Forensic DNA Laboratory, also testified for the state. She explained that the only swab from the sexual-assault examination performed on Alicia at the hospital that tested positive for seminal fluid was the vaginal swab. However, Lupino noted that the seminal fluid did not contain any sperm cells. She also testified that the department received the bedding from the Providence police, and the laboratory tested what was determined to be a bloodstain on a bed sheet for DNA; she concluded that the blood came from a male donor.

In addition, Lupino testified that the laboratory used reference samples from the buccal swab of Marizan and from Alicia's sexual-assault examination. Lupino explained that, in December 2012, the DNA test done on the vaginal swab did not reveal whether the small amount of seminal fluid on the swab was consistent with defendant's DNA profile. Subsequently, however, the laboratory acquired the capability to perform Y–STR testing, which Lupino considered an effective method for this case due to the lack of sperm in the seminal fluid sample and the overwhelming amount of female cells on the vaginal swab. After the testing was conducted, Lupino testified, the results showed that the Y–STR DNA profile from the vaginal swab was consistent with Marizan's Y–STR DNA profile.⁷

During closing arguments, defendant moved for a mistrial, arguing that one of the prosecutor's comments violated his Fifth Amendment right to not testify. The trial justice reserved decision on the motion for a mistrial. After the trial justice gave general instructions,⁸ the jury deliberated, returning with a guilty verdict. Immediately following the verdict, the trial justice denied defendant's motion for a mistrial.

The defendant then moved for a new trial. The trial justice denied the motion and sentenced defendant to forty years, with twenty-five years to serve and fifteen years suspended with probation. He was also required to register as a sex offender and obtain counseling. The defendant timely appealed to this Court.

II

Standard of Review

Given the various issues raised on appeal, we outline the standard of review for each issue in turn.

185 A.3d 516

First, when this Court reviews a trial justice's ruling on a motion for a mistrial, we afford the decision "great weight" and reverse only "if it was clearly wrong." State v. Fry , 130 A.3d 812, 828 (R.I. 2016) (quoting State v. Tucker , 111 A.3d 376, 388 (R.I. 2015) ). We acknowledge that a trial justice "has a ‘front row seat,’ allowing him or her to ‘best determine the effect of the improvident remarks upon the...