State v. Mora

• Decision Date: 11 January 1993
• Docket Number: No. 91-16,91-16
• Citation: 618 A.2d 1275
• Parties: STATE v. Jorge MORA. C.A.
• Court: Rhode Island Supreme Court

Page 1275

618 A.2d 1275

STATE v. Jorge MORA.

No. 91-16 C.A.

Supreme Court of Rhode Island.

Jan. 11, 1993.

James E. O'Neil, Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine Gibran, Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

MURRAY, Justice.

This case comes before us on appeal by the defendant, Jorge Mora, from his conviction of first-degree sexual assault. The defendant argues that the trial justice erred in both admitting an audio-tape recording of the assault and allowing a subsequent demonstration using that recording. The defendant also contends that his rights to a fair trial and to testify on his own behalf were so impaired by difficulties arising in the Spanish-English translation that the trial justice erred in failing to grant his motion for a mistrial. We reject the defendant's arguments and affirm.

The testimony adduced at trial concerning the alleged criminal assault that occurred on August 9-10, 1988, is frequently contradictory. For purposes of depicting the general sequence of events that evening, we shall summarize the victim's version of the facts. The victim, Karen LaFleur (LaFleur), testified that on August 9 she was employed as a cocktail waitress at Wolfie's, a topless bar formerly located in Providence. Although she had already finished her shift on that date, she returned to Wolfie's at approximately 10:30 p.m. that evening to visit a friend who was dancing there until 1 a.m., when the bar closed. LaFleur consumed approximately three drinks consisting of vodka and cranberry juice while waiting at the bar.

During the course of the evening LaFleur made arrangements with another dancer known as Sadia to bring Sadia home with her after closing whereupon they would ingest cocaine. Since LaFleur, however, did not possess any cocaine herself, Sadia arranged for her to purchase some from two men present at the bar, Joshua Jorge (Jorge) and defendant, Jorge Mora (Mora). Prior to the transaction, LaFleur did not know either of the two men.

While the victim, defendant, and Jorge were in the midst of this cocaine transaction, five or six uniformed Providence police officers entered Wolfie's. Immediately thereafter LaFleur and the two men left the premises in Jorge's Honda Civic and proceeded to drive around for a while before they were due to return to Wolfie's to retrieve Sadia. At this time all three consumed cocaine and beers provided by Jorge. They returned to Wolfie's later that evening and found that the bar was closed and Sadia had already left. In search of her friend LaFleur called Sadia's home from a pay phone near the parking lot adjacent to Wolfie's. There was no answer at that time, but LaFleur decided she would phone back in a short while to check on her again. She then got into the Honda for the second time with Jorge, who was driving, and defendant, who was in the rear seat.

The victim testified that throughout this sequence of events she engaged in continual conversation with Jorge. However, LaFleur never conversed with defendant because of his inability to speak English. She also stated that defendant and Jorge occasionally spoke in what she believed to be Spanish during their travels that evening.

Still in search of her friend, LaFleur requested that they find another pay phone from which she would again try to call. When she did place this call, Sadia's boyfriend answered the telephone and informed LaFleur that Sadia was already asleep. LaFleur decided it was also time for her to go home. Instead, however, Jorge drove to an area behind the C.A. Brown Company building located at 315 Wellington Avenue in Cranston.

While parked in this industrial area, the victim, defendant, and Jorge each ingested more cocaine. At some point all three got out of the car. The victim testified that at this time she observed defendant and Jorge arguing, although she could not identify the subject matter because they were speaking in Spanish. When Jorge finally stepped away from defendant and approached the victim, he informed her that defendant wanted to have sexual relations with her. With the ostensible intention of extinguishing defendant's desires, Jorge suggested that the victim kiss Jorge and make it appear as though she was already romantically involved with him. LaFleur initially complied with this suggestion but thereafter pulled herself away from Jorge because she believed his suggestion was driven only by self-serving motives and not solely to have an effect on defendant.

Eventually they all returned to the car and assumed the same positions in which they were seated earlier. While the car was still parked, defendant crawled between the bucket seats from the back seat to the passenger seat where the victim was sitting. The victim testified that he attempted to kiss her and put his hands up under her skirt while she struggled to get him off her. In an effort to get away from defendant, the victim opened the passenger door and fell out of the car to the ground. The defendant fell out as well and landed on top of the victim, who continued to struggle and scream.

Jorge initially did not intervene, although he did get out of the car once the victim and defendant were on the ground outside the car. Jorge proceeded to the back of his car, opened the hatchback, removed a large canvas dropcloth, and threw it to defendant, who in turn placed it over LaFleur's head. In the course of the subsequent struggle, defendant pulled the victim's underwear off and both men pinned her to the ground. The victim testified that while Jorge sat on her chest with his knees on her arms and one hand over her mouth, defendant took down his pants and inserted his penis into her vagina. LaFleur continued to scream, although her voice was effectively muffled by Jorge's hand.

The sexual assault continued for a couple of minutes, after which time defendant stood up, zipped his pants, and returned to the car. While Jorge was still sitting on the victim's chest, a Cranston police cruiser arrived at the scene. The officer driving that vehicle testified that after she turned on her alley spotlight, she saw Jorge get off the victim and run to the driver's side of the Honda Civic. This officer also testified that the victim was dirty, bruised, hysterical, and not wearing underpants. Both defendant and Jorge were arrested on the scene.

A grand jury indicted defendant on November 9, 1988, for first-degree sexual assault. ¹ The case came up for trial in January 1990. On January 29, 1990, after eight days of testimony, a jury found Mora guilty of first-degree sexual assault. The defendant filed a motion for a new trial on February 6, 1990, contending that (1) the verdict was contrary to the clear weight of the evidence and (2) defendant was substantially prejudiced and deprived of a fair trial because the court-appointed interpreter used during the direct and the cross-examinations of defendant had inaccurately interpreted defendant's testimony, thereby causing the jury to assess defendant's demeanor and credibility unfairly. This motion was denied by the trial justice on February 12, 1990, and defendant was thereafter sentenced to forty years with twenty-eight years to serve. The defendant filed a timely appeal on April 27, 1990.

The defendant's appeal raises two issues. First, defendant asserts that the trial justice abused her discretion and committed reversible error in allowing the jury to hear an audio-tape recording of the assault and the victim's commentary on the same. Second, defendant argues that he was denied a fair trial because he could not testify effectively on his own behalf because of the inaccurate translations between Spanish and English during defendant's testimony. We shall address each issue in turn.

I USE OF DEMONSTRATIVE EVIDENCE

The creation of the audio tape at issue was incidental to the placement of a security system installed in the C.A. Brown Company. As part of this Sonitrol security system, five microphones were placed in various parts of the building to monitor any unusual sounds that might occur in the middle of the night. If a noise rises above a preset threshold level, then the sounds are transmitted live to a monitoring console at the Sonitrol headquarters where a Sonitrol employee is on duty throughout the night.

At approximately 2:30 a.m. on August 10, 1988, Michael Savaria (Savaria) was on duty at the Providence headquarters of Sonitrol. He testified that in the course of monitoring approximately 3700 accounts with Sonitrol, he heard a woman in trouble in or near the C.A. Brown Company in Cranston. He immediately activated a tape machine at Sonitrol, which picked up the noises from the incident as they were transmitted from a microphone installed at the C.A. Brown building, and called the Cranston police. Savaria also testified that after roughly three minutes, during which time he heard more sounds of a woman struggling, he heard a car approaching the area from which the noises were emanating. The tape recorder was deactivated and rewound when Savaria heard what he believed to be police officers on the scene.

The original cassette tape was sent to the Federal Bureau of Investigation (FBI) where it was subject to an enhancement procedure, the purpose of which was to maximize the intelligibility of the sounds and/or voices on the tape. This enhanced version of the Sonitrol audio tape was played to the court, including the jury, through individual headphones. Later, during direct examination of the victim, the enhanced version was played for the jury a second time with prosecutorial interruptions permitted at five different points. Each time the tape was stopped, the victim was asked what was occurring at that particular time.

The defendant contends that the enhanced version of the tape was irrelevant and prejudicial and should not have been admitted into evidence. Additionally defendant argues...