State v. Oliveira
| Citation | 961 A.2d 299 |
| Decision Date | 19 December 2008 |
| Docket Number | No. 2007-30-C.A.,2007-30-C.A. |
| Parties | STATE v. James OLIVEIRA. |
| Court | United States State Supreme Court of Rhode Island |
Jane McSolely, Office of the Attorney General, for Plaintiff.
Catherine Gibran, Office of the Public Defender, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
Justice SUTTELL, for the Court.
The dispositive issue in this appeal is whether a jailhouse interview by a child protective investigator concerning an allegation of child molestation implicates the right to counsel of a defendant already charged with committing the same act of molestation. In the context of this case, we conclude that it does, and thus we hold that the trial justice improperly admitted at the defendant's trial the statement that the defendant made during the interview.
The defendant, James Oliveira, was convicted by a jury of first-degree child molestation. He appeals from the judgment on three grounds. First, he contends that the trial justice erred by not excluding from evidence a statement that a child protective investigator obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution and under article 1, sections 10 and 13, of the Rhode Island Constitution. Second, he argues that the trial court erred in allowing into evidence hearsay statements that the alleged victim made to his mother. Third, he asserts that he was denied the right to a speedy trial under the Sixth Amendment and article 1, section 10, of the Rhode Island Constitution. For the reasons set forth in this opinion, we vacate the judgment of conviction and remand the case to the Superior Court for a new trial.
In August 2004, defendant was residing with his daughter, Barbara, his daughter's boyfriend, Richard, and their two young sons, six-year-old Phillip and one-year-old Thomas, in Pawtucket, Rhode Island.1 The defendant often shared a double bed with Phillip in the boys' bedroom; Thomas still slept in a crib.
On the evening of August 11, 2004, Phillip's parents went grocery shopping, leaving their sons with defendant. This was fairly common, according to Barbara, who testified that her father frequently baby-sat her children and enjoyed a good relationship with Phillip. Phillip also testified that he was fond of spending time with defendant, who played games and took bike rides with him.
Phillip told the jury that after his parents left the house that night and as he was lying in bed, his grandfather came into his room, laid down on the bed, and "put his finger in my bum." Phillip said he told his grandfather to stop because it hurt, and defendant did so. He also testified that the next morning he was awakened when he again felt something penetrate him. This time he said nothing to his grandfather, who left shortly thereafter for work, at about 7 a.m.
On the morning of August 12, 2004, at around 9:30 or 10 a.m., while Barbara still was in bed, Richard told her that he had come out of the bathroom and saw Phillip in the kitchen wiping his behind with a paper towel. Barbara testified that she summoned Phillip to her bedroom to ask him for an explanation for his behavior, and he replied that he felt like he needed to go to the bathroom, but was able to void only water. Barbara testified that Phillip appeared scared and nervous, that he was "pulled back, really quiet, almost like he was afraid to talk," with "big eyes." She admonished the child that such behavior was inappropriate in the kitchen and should be confined to the bathroom and then sent him to his room.2
Disturbed by her son's behavior, Barbara shortly thereafter followed him into his bedroom, where she found him sitting on his bed with his baby brother. After his mother urged him to tell her whether something was wrong,3 Phillip responded that she was "going to be mad at grandpa." According to his mother, Phillip said that when he was lying in bed, his grandfather "was hugging him," then pulled his pants down and rubbed his leg, before "[his grandfather] licked his thumb and then stuck it in [Phillip's] bum." Barbara immediately called the police.
Pawtucket Police Detective John McIlmail arrived at their home around noon. After speaking with Barbara and Phillip about what allegedly had happened and asking Barbara to write out a witness statement, Det. McIlmail had Barbara call her father on a pretext so that the police could question him. Barbara called defendant at work and asked him to come home to drive her to an eye doctor's appointment. She then took her son to Hasbro Children's Hospital for an evaluation.
When Mr. Oliveira arrived at his daughter's residence, the officers placed handcuffs on him and took him to the police station. At the station, Det. McIlmail informed defendant of his Miranda rights,4 and defendant gave a written statement in which he expressed remorse for having inserted his index finger into Phillip's anus.
Christine Barron, M.D., a pediatrician at Hasbro Children's Hospital and a clinical director of the Child Protection Program, examined Phillip. Despite Phillip's disclosure of anal penetration to her, she concluded that the anal examination of the child was normal, a result that neither confirmed nor eliminated the possibility of abuse.5 Doctor Barron obtained a rectal swab from Phillip and submitted it to the Rhode Island Department of Health Laboratory. Tests conducted there by forensic biologist Sharon Mallard revealed the presence of seminal fluid in the swab. Ms. Mallard later concluded, after obtaining defendant's DNA sample, that the DNA extracted from the seminal fluid matched defendant's DNA profile.
The state filed a complaint against Mr. Oliveira on August 13, 2004, the same day on which he was presented in District Court, referred to the Public Defender's Office, and held without bail.6 The court also entered a no-contact order and referred the matter to a grand jury. On October 29, 2004, defendant was indicted on two counts of first-degree child molestation in contravention of G.L.1956 §§ 11-37-8.1 and 11-37-8.2. Count 1 charged that sometime on August 11-12, 2004, defendant committed an act of "sexual penetration, to wit, anal intercourse," with a person fourteen years of age or under. Count 2 charged him with committing the same act between August 1-10, 2004. Mr. Oliveira was arraigned in Superior Court on November 17, 2004.
The trial justice heard pretrial motions on September 13 and 14, 2006. He considered defendant's motion to suppress his custodial statements to the Pawtucket police after his arrest,7 his motion to exclude statements he gave to a child protective investigator with the Department of Children, Youth and Families (DCYF) at the Adult Correctional Institutions (ACI), and his motion to exclude evidence of his prior conviction for second-degree child molestation if he chose to testify.8 The trial justice denied all motions.
The trial commenced and, on September 19, 2006, the jury returned a guilty verdict on count 1 and an acquittal on count 2. On September 29, 2006, the trial justice heard and denied defendant's motion for a new trial, and he subsequently sentenced Mr. Oliveira to sixty years imprisonment, with forty years to serve, the remainder suspended, with probation. The defendant timely filed a notice of appeal.9
Additional facts will be discussed in the context of the issues raised on appeal.
statement Obtained by Child Protective Investigator
If DCYF has reasonable cause to suspect child abuse or neglect, it is required by statute to forward any related information to the appropriate law enforcement agency. Section 40-11-7(f).
On August 24, 2004, Ms. Moriarty went to the Child Advocacy Center (CAC), where she interviewed Phillip and his mother, and met with the detectives and prosecutor involved in this case.11 At the CAC, Ms. Moriarty gave Det. McIlmail the names of other families and victims who might have been abused by Mr. Oliveira, and the detective gave her a copy of the police report concerning defendant. In her report, Ms. Moriarty stated that, based on the CAC interviews, "[t]here appears to be enough evidence for the attorney general's office to press charges."
The next day, August 25, 2004, Ms. Moriarty went to the Intake Center at the ACI to interview defendant. Before speaking with him, she neither...
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