State v. Morey

• Decision Date: 08 January 1999
• Docket Number: No. 97-303-CA.,97-303-CA.
• Parties: STATE v. Robert P. MOREY.
• Court: Rhode Island Supreme Court

722 A.2d 1185

STATE v. Robert P. MOREY.

No. 97-303-CA.

Supreme Court of Rhode Island.

January 8, 1999.

Annie Goldberg, Aaron L Weisman, Providence, for plaintiff.

David N. Cicilline, Bristol, for defendant.

Present: WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

BOURCIER, Justice.

This case comes before us on the defendant's appeal from a final judgment of convictions following a Superior Court jury trial on eleven counts of second degree child molestation sexual assault.

Robert Morey (defendant) had been a long-time family friend of Stephanie and Paul Smith¹ and their two children, Joseph and David. Stephanie was especially close to the defendant because prior to her marriage to Paul, and for a six-month period during her marriage, Stephanie had been involved romantically with the defendant. Even after their affair had ended, the defendant remained good friends with both Stephanie and Paul and in fact, he often visited and slept overnight at the Smith home.² During those visits, he had numerous opportunities to spend unsupervised time with the Smith children.

Through his friendship with the Smiths, the defendant also came to know and spend time with Edward White (Edward), who is the son of Frank and Mary White, close friends of the Smiths. Edward was younger than the Smith boys, but he often spent time with them when his parents visited the Smiths. The defendant was present during many of those visits.

In the spring or summer of 1991, the defendant asked Edward if he wanted to go for a walk in the woods. Edward was five years of age at the time. After receiving his parents' permission, Edward joined Joseph, David, the defendant for a walk. Joseph and David had their bicycles with them and at some point during the walk, Joseph and David rode ahead, leaving behind the defendant and Edward, who was then too young to ride a bicycle. While Joseph and David were a fair distance ahead, Edward told the defendant that he had to go the bathroom. The defendant then instructed him to go into the woods and relieve himself. Edward proceeded to do so. As Edward relieved himself, the defendant, the ever-vigilant chaperone, watched him. When Edward finished, the defendant asked Edward if he could hold Edward's "peanut"³ Young Edward, apparently too shocked to respond, remained silent and the defendant proceeded to hold Edward's penis for a few "seconds." Afterwards, the defendant began to relieve himself. While doing so, the defendant asked Edward if he wanted to hold the defendant's "peanut."⁴ After this incident, the defendant told Edward that it was a secret between Edward and himself and that Edward should not tell anybody about what had taken place.

A year later while he was watching television, young Edward suddenly became visibly upset. When his concerned mother asked him what was troubling him, Edward began talking about the walk that he had taken the year before with the defendant and the Smith children. He said that he had a secret with the defendant and that he was not supposed to tell anyone about it. After persistent questioning by his mother, Edward eventually revealed, on the following day, that the defendant had touched his "peanut." Mary immediately went to her husband with this unexpected and disturbing information.

Because the Whites were such good friends with the Smiths and because the defendant had spent so much time with the Smith children, the Whites then decided to tell the Smiths about what they had learned of the defendant. The Smiths then questioned their own two boys, who at first denied any touching by the defendant, but eventually admitted that the defendant had touched their penises and buttocks. The Smiths then went to the police, who in turn contacted the Whites.

Following an investigation by the police, the matter was referred to the Department of the Attorney General. On May 24, 1993, a criminal information charging the defendant with six counts of second degree child molestation involving Joseph, five counts involving David, and one count involving Edward, was filed in the Kent County Superior Court. See G.L.1956 § 11-37-8.3 (second degree child molestation statute).

At the defendant's trial on the twelve information charges, the testimony revealed that the defendant had not been completely satisfied with the single incident of his touching of Edward's penis in the woods, and that he had also preyed on the Smith children. The defendant had taken advantage of many opportunities when alone with the Smith children to fondle their penises and buttocks. The defendant first touched Joseph, the older Smith child, when Joseph was seven or eight years of age. At that time, Joseph was sitting on the lower bunk of his bed, watching his brother play video games. The defendant came into the room, put his hand in Joseph's pants and touched his penis for a "few minutes." When talking to his brother immediately after the incident, probably too ashamed, embarrassed or confused to say more, young Joseph merely commented that "Bob [the defendant] is gay." Five other similar touching incidents between Joseph and the defendant followed at different times in various rooms of the Smith house—many occurring after the defendant had spent the night at the Smiths'. During two of the incidents, the defendant placed Joseph's hand on the defendant's penis.

Joseph's brother, David, did not escape the defendant's licentious advances either. Commencing when he was just six years of age, David was touched illicitly on his penis and buttocks five times.⁵ On several of those occasions, David was warned by the defendant not to tell anyone about what he had done.

After a jury trial, the defendant was convicted on a total of eleven counts of second degree child molestation. In his timely filed appeal, the defendant advances three challenges to his conviction.

The defendant first challenges the testimony of Mary White, Edward's mother.⁶ Her testimony related her conversation with Edward during which Edward had told her what the defendant had done during their walk in the woods together. The defendant alleges that her testimony was impermissible hearsay. The defendant's challenges fail for several reasons.

As to the defendant's first claim of error concerning what he believes to have been impermissible hearsay, we conclude that the defendant's challenge to that testimony was not properly preserved in the record. Defense counsel's first objection to the supposed hearsay occurred after the following colloquy:

"Q Did he [Edward], at any time, say anything to you?

"A Not much. He just started talking about the walk in the woods."

Defense counsel then objected and moved to strike the answer on the basis of hearsay. After a bench conference that was not recorded and is not part of any record, the objection was overruled. A second objection, also made without any specified basis, later was made during Mrs. White's testimony, after the following colloquy:

"Q All right. When was it that you talked with your son about the walk?

"A Possibly the next day, I kept—He was still upset and he was trying to tell me something and * * *."

That objection also was overruled without explanation. Until that point in the testimony, the prosecutor still had not elicited information about the actual child molestation that allegedly had taken place in the woods. No other objections were made during that part of Mary White's testimony concerning her conversation with Edward, and at no time during her testimony describing the child molestation in the woods did defense counsel ever object specifically on the basis of hearsay or on any other specified basis.⁷ Thus, the two isolated objections were not made in a timely manner when the specifically challenged testimony was being elicited. Therefore, the defendant's challenge to the testimony of Mrs. White was not preserved properly in the record and cannot be the subject of our review on appeal.

"It is well settled that this court will not review issues that were not preserved for appeal by a specific objection at trial." State v. Pineda, 712 A.2d 858, 861 (R.I.1998); see also State v. Tempest, 651 A.2d 1198, 1216 (R.I.1995)

("[a]s we have often stated, arguments on appeal that have not been adequately presented to the trial justice for his or her determination cannot be properly brought before us"); State v. Toole, 640 A.2d 965, 972-73 (R.I.1994) ("[a]ccording to our well-settled `raise or waive' rule, issues that were not preserved by a specific objection at trial, `sufficiently focused so as to call the trial justice's attention to the basis for said objection, may not be considered on appeal'; * * * [c]onsequently, allegations of error committed at trial are considered waived if they were not effectively raised at trial, despite their articulation at the appellate level"). Accordingly, we need not address the question of whether Mary White's testimony constituted impermissible hearsay.

However, even if we were to address the issue, we would conclude that the testimony was not hearsay. Pursuant to 801(d)(1)(B) of the Rhode Island Rules of Evidence, a statement is not hearsay if it is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Edward was the first witness presented at the defendant's trial. He testified about the events that occurred during his walk in the woods with the defendant in the spring or summer of 1991. He also testified that he told his mother about the incident after the events in question. During cross examination of Edward by defense counsel, defense counsel repeatedly raised the issue that Edward spoke to his mother about the incident two or three times before going to the police station, and that while being driven to the police station, Edward's mother reviewed the story with him and "reminded" him of...