State v. Merida
| Decision Date | 25 November 2008 |
| Docket Number | No. 2006-317-C.A.,2006-317-C.A. |
| Citation | 960 A.2d 228 |
| Parties | STATE v. Javier MERIDA. |
| Court | Rhode Island Supreme Court |
Lauren S. Zurier, Providence, for Plaintiff.
Richard K. Corley, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
On May 9, 2006, a jury found the defendant, Javier Merida, guilty of the following felonies: one count of second-degree child molestation in violation of G.L.1956 § 11-37-8.3 and two counts of first-degree child molestation in violation of § 11-37-8.1. Thereafter, on July 7, 2006, he received one thirty-year sentence on the second-degree child molestation count and two forty-year sentences on the two first-degree child molestation counts, all to be served concurrently. The court further ordered the defendant to have no contact with the victim for forty years and to make restitution.
On appeal, defendant argues (1) that, in purported violation of his confrontation rights under the Sixth Amendment to the United States Constitution and article 1, section 10 of the Rhode Island Constitution, the trial court committed reversible error by improperly preventing him from cross-examining two important witnesses for the prosecution with respect to their motives, possible bias, and general credibility; and (2) that, in allowing into evidence testimony concerning certain uncharged incidents of alleged sexual misconduct by defendant, the trial court misapplied Rule 404(b) of the Rhode Island Rules of Evidence and thereby committed reversible error. For the reasons set forth below, we affirm the judgment of the Superior Court.
At a jury trial held in May of 2006, the then twelve-year-old complainant, whom we will refer to as Betsy,2 testified that defendant, who is her paternal grandfather, had repeatedly molested her between two and five years prior to the trial, when she was between the ages of seven and ten. Both Betsy and her maternal grandmother (Donna)3 testified that, at that time in her life, Betsy routinely spent the weekends with her paternal grandparents in their Cranston home. Betsy further testified that the just-referenced incidents of molestation did not occur every weekend; she added that, when such incidents did occur, they would occur when her paternal grandmother was not at home and she was alone with defendant.
Betsy testified that the first incident of touching by defendant that she could clearly remember occurred when she was approximately eight or nine years old; that incident occurred during one of the above-mentioned weekend visits. She testified that, at a moment when she was in defendant's bedroom, he grabbed and held onto her breasts and touched "inside" of her "private" (complainant's word) with his fingers.4 Betsy additionally testified that, on a different occasion, defendant put his "private" into her "private" while both were in the bathroom at defendant's home.5
Betsy also testified to two additional incidents of vaginal intercourse that she said took place in defendant's bedroom. According to Betsy's testimony, one of these incidents occurred when defendant called Betsy over to his bed, removed her clothing, placed her on top of him, and put his "private" inside her, which act she said was painful.6 Additionally, while testifying at trial, Betsy unexpectedly described a second incident of vaginal intercourse that she said also occurred in defendant's bedroom.7 Betsy testified that this incident occurred when defendant called her over to his bed, threw her on her back onto the bed, got on top of her, moved her legs apart, and placed his "private" inside her, moving it in and out. This surprise incident had neither been charged in the indictment nor specified as uncharged misconduct that the state would seek to introduce pursuant to one of the exceptions set forth in Rule 404(b). There was no defense objection to Betsy's testimony concerning this surprise incident; moreover, during cross-examination, defense counsel questioned Betsy about the surprise incident and especially about her failure to have disclosed it prior to testifying at trial. At a later point in the trial, the trial justice, the prosecutor, and the defense attorney all agreed that this surprise incident, if deemed admissible, constituted Rule 404(b) evidence.8
Just before the trial commenced, the trial justice ruled (over defendant's objection) that the testimony of eighteen-year-old Lisa,9 alleging uncharged sexual assaults by defendant against her that she said had occurred between eight and twelve years earlier, would be admissible. In ruling that Lisa's testimony should not be precluded pursuant to Rule 404(b), the trial justice noted (1) that both Lisa and Betsy had alleged digital penetration; (2) that the ages of both girls at the time the alleged incidents occurred were similar (both being young girls above toddler age and below adolescence); (3) that both girls had a family relationship with defendant; and (4) that both had had unsupervised contact with defendant in his Cranston residence. In her ruling, the trial justice found that the evidence fell within recognized exceptions to the exclusionary provisions of Rule 404(b) in that it tended to show that the alleged assaults on Betsy were part of a common scheme or plan and were relevant to show motive, intent, and plan to abuse children of similar age in a somewhat similar manner. The trial justice also determined that Lisa's testimony was necessary to explain why Betsy disclosed her abuse allegations at the time that she did and also to explain the process and events leading up to her disclosure. Additionally, assessing the evidence pursuant to Rule 403 of the Rhode Island Rules of Evidence, the trial justice found that its probative value (for the purposes of establishing common scheme or plan, motive, and intent) was not substantially outweighed by its prejudicial effect so long as an appropriate cautionary instruction were to be given.10
At the previously referenced pretrial hearing wherein the prosecutor sought leave to use Lisa's testimony as Rule 404(b) evidence, defense counsel sought permission to impeach Lisa, pursuant to Rule 608(b) of the Rhode Island Rules of Evidence, with information indicating that Lisa had stolen money from her aunt. In addition to seeking leave to impeach Lisa with the fact of the theft, defense counsel also sought to be allowed to seek to impeach her further by establishing that, instead of confessing to the crime, Lisa had allowed her own father to be charged and convicted of the theft. To determine the scope of what defense counsel might be allowed to use at trial for impeachment purposes pursuant to Rule 608(b), the trial justice permitted defense counsel to conduct a voir dire of Lisa. During this voir dire (in which Lisa admitted to stealing the above-referenced money), defense counsel attempted to elicit from Lisa testimony as to (1) the extent of the knowledge that Betsy had concerning Lisa's theft and (2) what benefit may have accrued to Betsy as a result of the theft. Following that voir dire, the trial justice ruled that Lisa's testimony would be limited to her own personal involvement in the theft; defense counsel would not be allowed to elicit testimony from her regarding her father's conviction for the theft. The trial justice also ruled that Lisa's testimony did not "suggest a [Rule] 608(b) issue" as to Betsy and that, therefore, defense counsel would not be allowed to question Betsy about the incident.11
Appearing at trial as the state's very first witness, Lisa, who was eighteen at the time of trial, testified that defendant had molested her when she was between the ages of five and ten on occasions when she was alone with him in his home office. According to Lisa's testimony, defendant would sit her under a desk in the home office area and would "touch" her vagina under her clothing with his fingers going "inside." Although defense counsel objected to the introduction of Lisa's testimony as Rule 404(b) evidence, he did not object to the order in which the state was presenting its case (i.e., that Lisa's Rule 404(b) testimony would be the very first evidence that the jury would hear). The trial justice offered to give an additional Rule 404(b) instruction during a break in Lisa's testimony concerning the uncharged alleged misconduct; but defense counsel instead requested that such an instruction be given at the conclusion of her entire testimony, and the trial justice complied with that request.
On May 9, 2006, the jury found defendant guilty of the one count of second-degree child molestation with which he had been charged and also of two counts of first-degree child molestation. The jury found defendant not guilty of one of the counts of first-degree child molestation with which he had been charged.12 The defendant's motion for a new trial having been denied, he was sentenced on July 7, 2006. This appeal was timely filed on July 20, 2006.
On appeal, defendant argues (1) that the trial court committed reversible error in improperly preventing defense counsel from cross-examining two important witnesses for the prosecution (viz., Betsy and Lisa) with respect to their motives, possible bias, and general credibility in violation of his confrontation rights under the Sixth Amendment to the United States Constitution and article 1, section 10 of the Rhode Island Constitution and (2) that, in allowing into evidence allegations concerning uncharged incidents of sexual misconduct by defendant, the trial court misapplied Rule 404(b) and thereby committed reversible error.
The exercise of a trial justice's discretion in limiting the scope of cross-examination will not be disturbed absent a clear abuse of discretion. State v. Feole, 748 A.2d 239, 242 (R.I.2000). Although a...
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...a Rule 404(b) exception to show plan to abuse young girls of a similar age with whom he had a similar relationship.17 State v. Merida , 960 A.2d 228 (R.I. 2008), then, is helpful. In Merida , 960 A.2d at 232, we held that the trial justice did not abuse his discretion in finding that the Ru......
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...wrongs, or acts may be admitted under an exception to the generally exclusionary provisions of Rule 404(b). See, e.g., State v. Merida, 960 A.2d 228, 232 n. 8 (R.I.2008) ("Rule 404(b) is fundamentally a rule of exclusion."); see also State v. Jalette, 119 R.I. 614, 624-25, 382 A.2d 526, 531......
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