State v. Ramos, 87-400-C

• Citation: 553 A.2d 1059
• Decision Date: 02 February 1989
• Docket Number: No. 87-400-C,87-400-C
• Court: Rhode Island Supreme Court
• Parties: STATE v. Jose RAMOS. A.

Page 1059

553 A.2d 1059

STATE v. Jose RAMOS.

No. 87-400-C.A.

Supreme Court of Rhode Island.

Feb. 2, 1989.

James E. O'Neil, Atty. Gen., Nicholas Trott Long, Jeffrey Greer, Asst. Atty. Gens., for plaintiff.

Richard Casparian, Public Defender, Barbara Hurst, Asst. Public Defender, for defendant.

OPINION

MURRAY, Justice.

In this criminal case a Superior Court jury convicted the defendant, Jose Ramos, of first degree sexual assault, first degree child molestation, and assault with a dangerous weapon. He appeals.

The testimony adduced at trial concerning the alleged criminal assaults occurring between February and October of 1984, much of which testimony required the aid of an interpreter, is frequently contradictory. Consequently for the purposes of this appeal only we shall extricate a compendium of the victim's version of the facts. The complainant, hereafter known by the fictitious name Mary, was born in Puerto Rico on January 20, 1972. In December of 1983 Mary moved from her native homeland to the United States with her mother, brother, sister, and her mother's long-time boyfriend, defendant Jose Ramos (Ramos). They leased a first-floor apartment in a building located at 18 Sumter Street in Providence. This flat had two bedrooms. These rooms were connected by a bathroom with doorways leading into both. The three children slept in one bedroom while the two adults occupied the other.

Mary claimed that in February of 1984, while her sister, Maria, lay sleeping on a mattress placed on the floor beside her bed, defendant crept into the bedroom through the bathroom passageway, put a knife to her throat, and forced her to engage in sexual intercourse. Mary, to no avail, pleaded with Ramos to stop. After performing the act but before leaving the room, Ramos, still brandishing the knife in his hand, threatened to kill everyone in the household if Mary revealed the incident to anyone. The defendant then returned to his bedroom via the bathroom. Mary remembered the February date, she stated, because the Department for Children and Their Families had recently placed her brother in a foster home.

Mary also testified that during the summer of 1984, while her mother and sister were both in the hospital, Ramos again raped her. According to Mary, defendant entered the bathroom while she was urinating and ordered her to stand up against the wall. He then forced Mary to engage in painful vaginal intercourse at knife point. Before departing, defendant again renewed his threat to murder members of her immediate family if she told anyone of his activities.

On October 24, 1984, the day before she returned to Puerto Rico to live with her mother's family, Mary awoke to find Ramos already engaging in sexual intercourse with her. She stated that defendant wielded the same knife used in the prior rapes. The defendant then issued his final warning to Mary not to disclose his actions to anyone. ¹

When questioned by her mother about whether she was being sexually abused by Ramos, Mary denied any wrongdoing on defendant's part. Two months after she arrived in Puerto Rico, however, Mary informed her grandmother and her aunt about the sexual attacks. A Providence County grand jury returned an indictment charging Ramos with one count of assault with a dangerous weapon, one count of assault with intent to commit sexual assault, one count of child molestation, and two counts of sexual assault.

At trial the state called Laura Nevel, M.D., an obstetrician and gynecologist, as an expert witness. Doctor Nevel testified that she examined Mary on January 22, 1985, for evidence of vaginal penetration. Based upon the examination, the doctor found "penetration possible but not definite." Although the hymen of a thirteen-year-old girl normally covers about 50 percent of the vaginal entrance so that one finger may be admitted with some difficulty, Dr. Nevel testified that she could easily insert two fingers into Mary's vagina during the examination without any resulting discomfort. The state's expert physician stated that although she found no obvious caruncle or torn edges of the hymen generally associated only with childbirth or very traumatic intercourse, Mary's hymen was stretched, allowing for easy penetration into her vagina. Thus, comparing her examination of Mary to vaginal examinations performed on other thirteen-year-old females, Dr. Nevel concluded that she was "fairly certain" Mary's vagina had been penetrated.

The jury found defendant guilty of assault with a dangerous weapon (count 1), first degree sexual assault (count 3), and first degree child molestation (count 4). The trial justice denied his motion for a new trial and sentenced Ramos to the following: eighteen months' imprisonment on count 1; ten years' imprisonment on count 3, five years to serve and five years suspended; and twenty years' imprisonment on count 4, five years to serve and fifteen years suspended. The sentences were to run consecutively. On appeal, defendant asserts several arguments in his favor, one of which is dispositive of the case. In the interest of providing guidance to counsel to assist in the administration of justice, we shall address these contentions, supplementing additional facts when necessary. The defendant's initial argument presents a question of first impression.

COURT-ORDERED PHYSICAL EXAMINATIONS

OF COMPLAINING WITNESSES

The defendant contends that the trial court abused its discretion in refusing to order Mary to submit to an independent medical examination when there was reason to believe that she was still a virgin and that the alleged sexual assaults never occurred. This court has never considered whether a trial justice may compel a complaining witness in a criminal trial to undergo such a physical examination. A number of courts, however, have held that a trial justice has discretionary power to order a witness in a criminal trial to submit to a psychiatric examination. See, e.g., State v. Lovelace, 191 Conn. 545, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984); State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958); State v. Carlson, 392 N.W.2d 89 (S.D.1986). This court in State v. Johnson, 119 R.I. 749, 383 A.2d 1012 (1978), upheld the court-ordered psychiatric examination of a criminal defendant who had pleaded the defense of insanity. Courts have also ordered parties to undergo blood tests in order to determine whether they had contracted an infectious disease such as AIDS (acquired immune deficiency syndrome). See People v. Cook, 143 A.D.2d 486, 532 N.Y.S.2d 940 (1988); People v. Thomas, 139 Misc.2d 1072, 529 N.Y.S.2d 429 (1988); Mosele v. Bures, 139 Misc.2d 409, 528 N.Y.S.2d 976 (1988); see also Haywood County v. Hudson, 740 S.W.2d 718 (Tenn.1987). But see Guardianship of Anthony, 402 Mass. 723, 524 N.E.2d 1361 (1988) (reversing Family Court order directing medical staff at school for mentally retarded to conduct AIDS tests on residents allegedly engaging in sexual activity); Anne D. v. Raymond D., 139 Misc.2d 718, 528 N.Y.S.2d 775 (1988) (husband's allegation that wife engaged in extramarital affairs insufficient to support court-ordered physical examination and AIDS test).

Although no court rule, statute, or case law in Rhode Island authorizes court-ordered physical examinations of complaining criminal witnesses, there are provisions on point in the civil area. Prior to 1987, the General Laws permitted a trial justice to require a reasonable physical examination of the injured party in personal injury cases. G.L.1956 (1985 Reenactment) § 9-17-21 (repealed 1987). Rule 35(a) of the Superior Court Rules of Civil Procedure similarly allows the trial court to order a party to submit to a physical or mental examination if the physical or mental condition of that individual is in controversy and good cause has been shown. See Raymond v. Raymond, 105 R.I. 380, 385, 252 A.2d 345, 348 (1969); see also Fed.R.Civ.P. 35(a).

We hold that a trial justice has discretionary power to require a witness in a criminal trial to submit to an independent physical examination only under the most compelling of circumstances. In situations in which the defendant has shown substantial need and justification and no violation of substantial rights will result, the trial justice has discretionary power to order the complainant to undergo a physical examination. The practice of granting physical examinations of criminal witnesses must be approached with utmost judicial restraint and respect for an individual's dignity. In determining whether to order an independent medical examination, the trial justice should consider (1) the complainant's age, (2) the remoteness in time of the alleged criminal incident to the proposed examination, (3) the degree of intrusiveness and humiliation associated with the procedure, (4) the potentially debilitating physical effects of such an examination, and (5) any other relevant considerations.

In the case at bar defendant sought the trial court's permission to have a gynecological examination performed on a minor. It goes without saying that this type of examination is both intrusive and embarrassing, especially for children. Approximately four years had elapsed since the rapes allegedly took place. The defendant argues that an independent physical examination was necessary to show that Mary's hymen was still intact. The trial justice, however, correctly noted that the state, in order to sustain a conviction in sexual assault cases, need not prove that the victim's hymen had been ruptured. This court has stated that the testimony of a competent complaining witness about a violative act of sexual intercourse in itself is sufficient to prove penetration. State v Pettis, 488 A.2d 704, 707 (R.I.1985). There is no indication that Mary failed to comprehend forced sexual penetration. In light of the foregoing analysis, we conclude that the trial justice committed no abuse of...