State v. McVeigh

• Decision Date: 29 June 1995
• Docket Number: No. 94-116-C,94-116-C
• Citation: 660 A.2d 269
• Parties: STATE v. Richard McVEIGH. A.
• Court: Rhode Island Supreme Court

Page 269

660 A.2d 269

STATE v. Richard McVEIGH.

No. 94-116-C.A.

Supreme Court of Rhode Island.

June 29, 1995.

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

Francis X. Mackey, Providence, for defendant.

OPINION

MURRAY, Justice.

This matter is before the Supreme Court on the appeal of Richard McVeigh (defendant) from judgments of conviction on eight counts of first-degree sexual assault. After a jury trial in Superior Court, the defendant was sentenced to serve two consecutive life sentences. On appeal the defendant argued that the trial justice erred in (1) denying his motion to preclude testimony about other acts, (2) asking the complaining witness her height and weight, (3) refusing to pass the case or to give the jury a cautionary instruction when a question posed by the prosecutor to a witness implied that the complaining witness was "sleeping" with the defendant, (4) denying his request to recall two of the state's witnesses, and (5) imposing two consecutive life sentences. We affirm the judgments of conviction for the reasons stated below. The facts of the case insofar as pertinent to this appeal follow.

On June 15, 1993, defendant was charged by criminal indictment No. P1/93-1915A with eight counts of first-degree sexual assault occurring at four residences in Central Falls and Pawtucket upon his biological daughter, whom we shall call Cathy, in violation of G.L.1956 (1981 Reenactment) § 11-37-2, as amended by P.L.1981, ch. 119, § 1. ¹

Cathy, a twenty-seven-year-old woman at the time of trial, testified to a long history of sexual assault by defendant that began after she left her biological mother's house and moved in with defendant, his wife, and their three children in February 1981 when she was fifteen years old. After she moved in with defendant and his family in their Central Falls apartment, his wife committed suicide in May 1981 and the defendant's son ran away from home. Thereafter defendant began to drink alcohol excessively, and he increasingly placed demands upon Cathy to manage the household and to take care of his younger daughters, whom we shall call Theresa and Patricia, aged five years old and six years old respectively. Cathy essentially assumed the role of the mother in the household.

The defendant's acts of sexual assault upon Cathy commenced one evening after he came home drunk and ordered her to join him in his bedroom so that he could show her how much he loved her. When Cathy refused, defendant struck her over the head with what she believed to be a telephone. The next day she woke up in defendant's bed with a bump on her head and discovered that her clothing had been removed. Although defendant promised that it wouldn't happen again, the very next night defendant ordered Cathy to go to his bedroom. When Cathy resisted, defendant became violent and threatened her that if she refused he would take Theresa or Patricia into his bedroom, a threat that defendant would frequently express to coerce Cathy to succumb to his sexual advances. Believing defendant's threats against Theresa and Patricia, Cathy joined defendant in his bedroom whereupon the two struggled and fought with their fists. Positioned on his bed naked, defendant instructed Cathy to remove her clothing and then he grabbed her hair at the back of her head and forced his penis into her mouth and later put his penis into her vagina. Cathy, afraid for her life, did not resist. The defendant forced her to sleep with him in his bed that night and told her that from that point onward she was to sleep in his bed with him.

The defendant's sexual assaults upon Cathy continued when the two moved alone to a new apartment in Pawtucket in July 1981. While living there, Cathy was physically forced and psychologically coerced by defendant to engage in intercourse or fellatio almost every night. When Cathy refused to engage in sexual activity with defendant, he would beat her by punching her, kicking her, and throwing things at her. The acts of sexual assault continued when the two later moved to another apartment in Pawtucket with Theresa and Patricia. Although Cathy had her own "make believe bedroom," defendant continued to force her to sleep with him in his bed and to engage in intercourse and fellatio almost every night unless he had a girlfriend over. On one occasion, after Cathy had refused to engage in sexual activity with defendant, he physically picked her up and threw her over a couch into a partition wall.

Cathy testified that this course of conduct by defendant continued for more than three years at various residences in Rhode Island, Pennsylvania, and Massachusetts. The defendant's control over Cathy extended to all aspects of her life, and although he permitted her to work outside the home on occasion, he forbid her to have any friends or to leave the household, and he made her drop out of high school when she was sixteen years old. The defendant even possessed the revolting and outrageous desire to impregnate Cathy, and he would beat her each time she began to menstruate. Eventually defendant's physical abuse of Cathy increased to an intolerable level, causing her to fear for her life and to flee the home in 1984 when she was eighteen years old. After leaving home, Cathy had no contact with defendant until he showed up at her home uninvited when she was married in 1985 and also when her children were born between 1987 and 1990. The defendant repeatedly showed up unannounced to visit Cathy, who was then living in Attleboro, Massachusetts. These visits were disruptive and unwelcome on Cathy's part. She finally "had enough" of defendant's contacts, and in January 1992 she reported the sexual abuse to the appropriate law enforcement authorities in Attleboro, Central Falls, and Pawtucket. ²

On appeal defendant avers that the trial justice erred in denying his motion in limine to preclude the state from introducing at trial certain testimony of Cathy's younger half-sister Patricia. In the challenged portions of Patricia's testimony, she alleged that defendant committed digital penetration of her vagina. The defendant committed this act after having instructed her to join him in his bedroom in order to tell him what she wanted for her tenth birthday, which was the following day. Patricia testified that he told her to lie down on the bed next to him and that he then touched her on her back, arms, and vagina. The defendant had told Patricia to let him digitally penetrate her vagina because "[Cathy] let [him] do it" to her. This incident, for which defendant has not been criminally charged, occurred after Cathy had left the home approximately one year earlier.

Following arguments by counsel the trial justice denied defendant's motion in limine and admitted the testimony to show a plan and an admission by defendant. However, at the time the challenged testimony was initially elicited, the trial justice specifically cautioned the jury about the limited use of this evidence. The jury was admonished that the uncharged conduct narrated by Patricia "may be received by you for your consideration on the issue of motive, opportunity, intent, or plan." In his final charge the trial justice instructed the jury that it may not use the evidence elicited during Patricia's testimony as "proof that defendant is a bad person and therefore probably committed the crimes for which he is charged."

Although defendant acknowledges that evidence of prior bad acts is often relevant and admissible in sexual-abuse cases, he complains that the trial justice should have excluded Patricia's testimony because the incident alleged by Patricia was not closely related in terms of time, place, age, and family relationship and because Patricia's testimony was not reasonably necessary since Cathy was twenty seven years old at the time of trial and was therefore capable of telling her story directly and cogently.

Prior to the adoption of the Rhode Island Rules of Evidence in 1987, we opined "that testimony concerning * * * past, unconnected, [and] uncharged criminal behavior is not admissible to show a propensity to commit the crime charged." State v. Woodson, 551 A.2d 1187, 1193 (R.I.1988); State v. Pignolet, 465 A.2d 176, 179 (R.I.1983); State v. Jalette, 119 R.I. 614, 624, 382 A.2d 526, 531 (1978); see Rule 404(b) of the Rhode Island Rules of Evidence. We have emphasized that the rationale for excluding such other-crimes evidence is the belief that "the potential for creating prejudice in the minds of the jurors outweighs its probative value." State v. Brown, 626 A.2d 228, 233 (R.I.1993) (quoting State v. Chartier, 619 A.2d 1119, 1122 (R.I.1993)). Nevertheless, we have recognized certain exceptions to this general rule. Other-acts evidence is admissible when the other acts " 'are interwoven with the offense for which the defendant is being tried.' " Id. Such other-acts evidence is also admissible when relevant to prove an accused's "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable." Rule 404(b). "With proper instruction, and where reasonably necessary for the state to meet its burden of proof, the testimony of siblings of tender years, similarly situated and similarly abused, is relevant, probative, and admissible corroborative evidence." (Emphasis added.) Pignolet, 465 A.2d at 182.

We have admonished that even when such evidence is admitted under an exception to Rule 404(b), a trial justice should receive it with " 'great caution' " and should specifically instruct the jury regarding its " 'limited purpose.' " State v. Lamoureux, 623 A.2d 9, 13 (R.I.1993). In addition, in his or her charge to the jury, a trial justice must "designate with particularity the specific exceptions" such evidence is being narrowly admitted thereto. Jalette, 119 R.I. at 627-28, 382 A.2d...