State v. Oliveira

• Decision Date: 04 December 2015
• Docket Number: No. 2013–246–C.A.,2013–246–C.A.
• Citation: 127 A.3d 65
• Parties: STATE v. James OLIVEIRA.
• Court: Rhode Island Supreme Court

127 A.3d 65

STATE

v.James OLIVEIRA.

No. 2013–246–C.A.

Supreme Court of Rhode Island.

Dec. 4, 2015.

Jane M. McSoley, Department of Attorney General, for State.

Catherine Gibran, Office of the Public Defender, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.

OPINION

Justice GOLDBERG, for the Court.

The defendant, James Oliveira (defendant or Oliveira), appeals from a Superior Court judgment of conviction on one count of first-degree child molestation. Oliveira raises two issues on appeal. First, he claims that the forty-five-month delay between the return of the record to the Superior Court after this Court vacated the conviction from Oliveira's first trial and the commencement of his retrial violated his right to a speedy trial. Second, he contends that the trial justice abused his discretion in admitting hearsay evidence. For the reasons set forth below, we affirm the judgment.

Facts and Travel

In August 2004, Oliveira was living with his daughter, Barbara, her boyfriend, Richard, and their two young sons (defendant's grandsons), six-year-old Phillip and one-year-old Thomas, in a two-bedroom apartment in Pawtucket, Rhode Island.¹ Oliveira, Phillip, and Thomas all shared one of the two bedrooms; Thomas slept in a crib, while Phillip and defendant shared a bed. On the evening of August 11, 2004, Barbara and Richard went grocery shopping, leaving Phillip and Thomas in Oliveira's care. Shortly after young Phillip went to bed that evening but before he fell asleep, Oliveira came into the bed and began rubbing Phillip's upper thigh. Oliveira then pulled down Phillip's pajama bottoms, and, according to Phillip, he inserted his finger into Phillip's anus. When Phillip told Oliveira to stop because it hurt, defendant complied. Phillip pulled up his underwear and eventually fell asleep.

The next morning, Phillip awoke to the same disturbing touch. He once again told Oliveira to stop, and defendant did so; defendant got out of bed and left for work. Phillip testified that he went into the kitchen to wipe himself with paper towels because his anus felt "weird." Richard observed Phillip's activity and notified Barbara about it. A concerned Barbara summoned Phillip to her room and inquired about his behavior. Phillip responded that he felt like he needed to go to the bathroom, but the bathroom was occupied. Barbara explained to Phillip that this was inappropriate behavior and told him to return to his room. About fifteen to twenty minutes later, Barbara remained perplexed by Phillip's unusual behavior that morning, and she went to his room to speak with him. In response to questioning from his mother, Phillip disclosed that Oliveira had inserted his thumb into Phillip's anus. Barbara called the Pawtucket Police Department.

When then-Pawtucket Police Det. John McIlmail (Det. McIlmail) arrived at the apartment, Barbara explained Phillip's disclosure to her that morning. With police officers present, Barbara called Oliveira at work and persuaded him to return to the apartment. Before Oliveira returned and at Det. McIlmail's urging, Barbara took Phillip to Hasbro Children's Hospital (Hasbro) for an examination. Oliveira was intercepted by Det. McIlmail and a uniformed officer in the parking lot of the apartment complex; Oliveira then accompanied the officers to the police station. After advising Oliveira of his Miranda rights at the station, Det. McIlmail began questioning defendant about Phillip's allegations. Although he initially denied any impropriety, Oliveira eventually admitted—both orally and in a subsequent written statement—that he inserted his finger into Phillip's anus.

Meanwhile, at Hasbro, Dr. Christine Barron (Dr. Barron), the clinical director for the Child Protection Program at the hospital, met with Barbara and Phillip. After speaking with Barbara, Dr. Barron ordered a forensic-evidence examination for this six-year-old, which included a rectal swab and a rectal smear. Subsequent testing by the Rhode Island Department of Health revealed the presence of seminal fluid in the rectal samples that matched Oliveira's DNA profile. Approximately one month after the events of August 11–12, 2004, in a letter to Barbara, Oliveira expressed remorse for his actions and for hurting his daughter and her family. This letter was later admitted into evidence at defendant's trial.

Oliveira was indicted on two counts of first-degree child molestation, in violation of G.L.1956 §§ 11–37–8.1 and 11–37–8.2. He was convicted by a jury on count 1.² This Court vacated that conviction, concluding that Oliveira's Sixth Amendment right to counsel was violated by the admission at trial of a statement he made during questioning by an agent of the state after his right to counsel had attached. State v. Oliveira, 961 A.2d 299, 309, 311, 319 (R.I.2008) (Oliveira I ). However, we rejected Oliveira's contentions that (1) the trial justice abused his discretion in allowing Barbara to testify about Phillip's disclosures to her; and (2) he had been denied the right to a speedy trial. Id. at 316, 319. We remanded for a new trial, id. at 319, and the record was returned to the Superior Court on January 20, 2009.³

Because the travel of this case as it relates to the speedy-trial issue is factually driven and complex, we recite in detail the events that transpired after January 20, 2009. On March 12, 2009, during a hearing on Oliveira's motion to reduce bail, at which Oliveira was represented by defense counsel—who also represented defendant in the first trial—the state indicated that it could be ready to commence defendant's retrial as early as May 2009. On April 8, 2009, defense counsel filed a motion for a speedy trial on Oliveira's behalf. However, as of May 21, 2009, the date the speedy-trial motion was heard, the defense was not ready for trial. Defense counsel made it clear that he filed the motion solely to appease his client; he informed the hearing justice that he was not ready for trial and would not be ready until the fall of 2009, at the earliest. Defense counsel explained:

"My client requested a motion for a speedy trial. I did so at his request. I indicated to Mr. Oliveira and indicated to [the prosecutor] that the case, if it does go to trial, which it probably will again, I will not be ready until sometime in the fall. I indicated to Mr. Oliveira that proviso. I indicated to him that if he wants to push it quicker, I'm unable to do so. I just needed to put that on the record. He indicated to me he does want me to represent him since I represented him at the first trial. I don't want the issue to develop down the line as to when the exact dates will be for—when I will be ready."

The Superior Court hearing justice⁴ then inquired of Oliveira whether he was "comfortable slowing this down a little bit so [defense counsel] can adequately investigate." Oliveira responded, "Yes, sir, as long as it does not continue like the last time." The hearing justice aptly captured the dilemma caused by defendant's premature speedy-trial motion: "The [c]ourt is certainly inclined to move this along but let's not go so fast as to overlook some things that need to be looked at." The hearing justice therefore denied Oliveira's speedy-trial motion without prejudice. The speedy-trial motion never was renewed. It was not until September 22, 2009 that defense counsel moved for discovery of evidence relating to DNA testing. The state provided the information on April 12, 2010.

On June 7, 2010, Oliveira filed a bevy of pro se motions, several of which asserted a violation of defendant's constitutional right to a speedy trial. During the hearing on these motions on July 6, 2010, defense counsel set forth the reasons why he was not ready to proceed to trial on this case. According to defense counsel, since he last spoke with Oliveira in April 2010, all of his time was occupied by two capital cases that had recently been resolved in Superior Court. Defense counsel further proffered that, as was the case in May 2009, his current caseload was staggering, consisting of between ninety and one hundred cases. He indicated his belief that, during the hearing on Oliveira's speedy-trial motion, "there was an agreement [with his client] not to go forward [at] that time." Nonetheless, defense counsel assured Oliveira and the hearing justice that Oliveira's case was now his "top priority." He also explained why his pretrial efforts relating to the DNA evidence against defendant, which he averred were somewhat time-consuming, were in Oliveira's best interest. Defense counsel represented that he would likely be ready for trial in October 2010. For its part, the state represented that it was ready for trial as of the date of the hearing. The hearing justice suggested to Oliveira that it would not be in his best interest to proceed to trial until his attorney was fully prepared. The hearing justice also noted the additional time that would be required to bring a new attorney up to speed on Oliveira's case. In response to Oliveira's concerns that he was unable to reach defense counsel, the hearing justice explained that defense counsel was in court each morning until the afternoon and that, because this case was now defense counsel's top priority, communication between Oliveira and defense counsel likely would be more frequent. The motions were passed, and the case was scheduled for a trial calendar call in October 2010. The hearing justice emphasized to Oliveira the importance of filing his motions through his appointed counsel.

Undaunted, less than a month later, Oliveira filed another batch of pro se motions on August 5, 2010, which included a motion that sought to discharge defense counsel and obtain new counsel. A hearing was held on September 10, 2010, but defense counsel was unable to attend; another attorney from the Office of the Public Defender appeared in his stead. The hearing justice was reluctant to decide the motion in defense counsel's absence and...