State v. Rushlow

• Decision Date: 28 November 2011
• Docket Number: No. 2010–235–C.A.,2010–235–C.A.
• Citation: 32 A.3d 892
• Parties: STATE v. Jaimeson RUSHLOW.
• Court: Rhode Island Supreme Court

32 A.3d 892

STATE

v.Jaimeson RUSHLOW.

No. 2010–235–C.A.

Supreme Court of Rhode Island.

Nov. 28, 2011.

Lauren S. Zurier, Department of Attorney General, Providence, for State.

Janice M. Weisfeld, Office of the Public Defender, Providence, for Defendant.

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

OPINION

Justice INDEGLIA, for the Court.

The defendant, Jaimeson Rushlow, appeals from a judgment of conviction for one count of domestic first-degree sexual assault and one count of domestic assault with intent to commit sexual assault. On appeal, the defendant contends that the trial justice erred by refusing to pass the case after the complainant testified that the police issued to her a no-contact order against the defendant. The defendant also alleges that the trial justice erred by denying a second motion to pass the case when a police officer, while testifying, improperly bolstered the complainant's credibility. This case came before the Supreme Court on October 4, 2011, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the record, the written submissions of the parties, and the oral arguments of counsel, we conclude that this appeal may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

On August 29, 2008, defendant was charged by indictment with domestic burglary in violation of G.L.1956 § 11–8–1 and G.L.1956 § 12–29–5 (count 1); two counts of domestic first-degree sexual assault in violation of G.L.1956 §§ 11–37–2, 11–37–3, and § 12–29–5 (counts 2 and 3); and domestic assault with intent to commit a sexual assault in violation of G.L.1956 § 11–5–1 and § 12–29–5 (count 4). The charges stemmed from an incident between defendant and the complainant, Ms. Frances Rushlow (Frances) ¹ that transpired on the night of June 18, and into the early morning of June 19, 2008. During the trial, the state presented various witnesses, including Frances and the police officers who interviewed Frances and investigated the crime scene. The defendant testified on his own behalf.

The relevant evidence adduced at trial is set forth as follows. The defendant and Frances, a married couple and the parents of two boys, separated in the summer of 2007 but continued to share custody of their children. In June 2008, Frances lived with the couple's young sons in an apartment on Mendon Road in Cumberland. The defendant lived with his brother a short distance away in the same town. At that time, there existed a no-contact order against defendant, issued to Frances, based on an outstanding charge. Although defendant and Frances had been separated for approximately one year, and despite the no-contact order in effect between them, their relationship remained cordial. ² Because of the shared custody arrangement, the two saw each other fairly regularly when defendant came to Frances's home to pick up and drop off their sons.

At trial, Frances testified that on the night of June 18, 2008, she put the two boys to bed in her own bed and fell asleep next to them while watching television. Sometime in the early morning she was awakened by defendant pulling her off the bed by her arms. She asserted that she had not invited defendant to her apartment and that she did not know how he gained entry. Frances further testified that defendant pulled her, struggling, from the bedroom into the living room and that she made noise in an attempt to wake the boys. According to Frances, after defendant forced her down the hallway and into the living room, he pinned her to the floor and sexually assaulted her. During the course of the struggle, Frances used a lit cigarette to burn defendant. After the assault, which took approximately forty-five minutes, defendant got up and left Frances's apartment.

Finding herself alone in the living room, Frances “cleaned up a little bit,” took a shower, and went back to bed. According to Frances, she initially declined to call the police because she was scared, thought it would be “easier” not to involve the police, and “didn't want to make things worse.” However, later in the evening of June 19, Frances reported the incident to police and underwent a medical examination at Memorial Hospital in Pawtucket, Rhode Island. Police officers also came to Frances's house that night to investigate the crime scene and to interview her. She was initially interviewed by Lt. Joseph Louro, who subsequent to the interview, assisted in photographing the interior and exterior of the apartment and dusting for fingerprints.

Later that night, the police arrested defendant. Initially, defendant denied being at Frances's apartment or having any sexual contact with her on the evening in question. Sometime later, however, defendant changed his story by acknowledging he was with Frances on the night of June 18 and that any sexual contact was consensual. In defendant's version of events given at trial, he walked by Frances's apartment at approximately 1 a.m. on June 19, noticed a light on, and decided to make an unannounced visit. He testified that both the door to enter the building and the door to the apartment were unlocked. According to defendant, Frances was awake on her bed when he entered the bedroom, and upon his entry she got up and went with him into the kitchen to talk and have some wine. After discussing a job he had just started the day before that involved manually removing and hauling sprinkler pipe, they started kissing. The defendant testified that the kissing progressed until the two “ended up on the [living room] floor” having consensual sex. He denied using any force upon Frances, but he indicated that soon thereafter they began to argue loudly about another woman defendant was dating. After gathering his belongings, defendant left Frances's apartment. The defendant explained that he initially lied to the police about the incident because he feared being found in violation of the existing no-contact order.

At the conclusion of the trial, the jury found defendant guilty of domestic first-degree sexual assault (vaginal-penile penetration) and of domestic assault with intent to commit sexual assault.³ The trial justice denied defendant's motion for a new trial and sentenced him to thirty-five years, with fifteen years to serve and twenty years suspended, with twenty years probation on the count of first-degree sexual assault. As to the count of assault with intent to commit sexual assault, defendant was sentenced to twenty years, with ten years to serve and ten years suspended, with ten years probation. The trial justice ordered both sentences to run concurrently. The defendant timely appealed.

IIIssues on Appeal

The basis for defendant's appeal is two-fold. First, defendant contends that the trial justice should have passed the case when Frances testified that the no-contact order against defendant had been issued to her by the police. According to defendant, Frances's statement on the witness stand was both improper and unfairly prejudicial because it suggested prior criminal misconduct toward Frances by defendant. Although the trial justice immediately struck the comment from the record and provided a cautionary instruction to the jury, defendant maintains that “the taint [from Frances's] comment was inexpiable,” thus requiring the trial justice to pass the case.

Secondly, defendant contends that the trial justice abused her discretion when she denied a second motion to pass the case after Lt. Louro testified that Frances seemed “sincere” when she accused her husband of sexual assault during Lt. Louro's initial police interview. Instead of passing the case, the trial justice admonished the jury to disregard the officer's comment. The defendant argues that because so much of this case rested on the credibility of Frances and defendant, the police officer's testimony bolstered the complainant's credibility and necessitated that the trial justice pass the case. The defendant asserts that the trial justice abused her discretion in denying these motions and asks this Court to reverse his conviction and remand his case to the Superior Court.

IIIStandard of Review

“It is well settled that a decision to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice.” State v. Suero, 721 A.2d 426, 429 (R.I.1998); see also State v. Lynch, 19 A.3d 51, 60 (R.I.2011). This Court gives considerable deference to a trial justice's ruling on a motion to pass a case and declare a mistrial because the trial justice has a “front row seat,” allowing him or her to “best determine the effect of the improvident remarks upon the jury.” State v. Tempest, 651 A.2d 1198, 1207 (R.I.1995) (quoting State v. Pailin, 114 R.I. 725, 729, 339 A.2d 253, 255 (1975)); see also State v. Nelson, 982 A.2d 602, 607 (R.I.2009). As such, the trial justice's determinations regarding the prejudicial effect of evidence and the jury's ability to render a fair and impartial verdict are reviewed by this Court under an abuse-of-discretion standard. Nelson, 982 A.2d at 608.

IVDiscussion

AThe No–Contact Order Testimony

The defendant argues that the trial justice erred in refusing to pass the case when Frances testified that a no-contact order had been issued to her “from the police.” Prior to trial, the trial justice summarized to counsel her rulings on various motions in limine, one of which addressed the existence of a no-contact order issued to Frances that was based on an outstanding charge against defendant. The trial justice decided to “permit evidence of the no contact order itself without evidence of the charge connected with it.” Neither party objected to this ruling.

Frances was the state's first and principal witness. Shortly after commencing direct examination, the prosecutor began...