State v. Simpson, 91-188-C

• Decision Date: 10 April 1992
• Docket Number: No. 91-188-C,91-188-C
• Citation: 606 A.2d 677
• Parties: STATE v. Howard SIMPSON. A.
• Court: Rhode Island Supreme Court

Page 677

606 A.2d 677

STATE v. Howard SIMPSON.

No. 91-188-C.A.

Supreme Court of Rhode Island.

April 10, 1992.

James E. O'Neil, Atty. Gen., Annie Goldberg, Sp. Asst. Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine Gibran, Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

KELLEHER, Justice.

This controversy comes to us on the defendant's appeal from two convictions of first-degree child molestation--violations of G.L.1956 (1981 Reenactment) § 11-37-8.1, as amended by P.L.1984, ch. 59, § 2. The defendant, Howard Simpson (Simpson), was initially indicted in November 1988 and charged with six counts of sexual assault upon a minor. These charges consisted of indecent touching, cunnilingus, and sexual penetration of a minor female between the ages of eight and eleven years. Prior to the commencement of the trial in mid-June 1990 the state dismissed four of the six counts that were lodged against Simpson pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. The jury returned guilty verdicts on the two remaining counts. Simpson was sentenced to two concurrent life sentences that would run consecutively with another sentence he was currently serving for an unrelated crime. The pertinent facts of this controversy are as follows.

The victim in this case is a young girl to whom we shall hereafter refer as Ann. Ann was eight years old when her mother began dating Simpson in 1983. At the trial Ann testified that Simpson would occasionally spend the night at the apartment she and her mother occupied. During these visits Simpson initially touched Ann by placing his hands on Ann's chest over and under her shirt. Ann testified that she remained silent about these advances because she feared Simpson and because he warned her not to tell anyone. A year later, when Ann was nine years old, she took up residence in another apartment where she lived with her mother, her sister, a cousin, and Simpson. Simpson resumed his advances toward Ann, which increased in both frequency and despicability. Ann testified that Simpson's nighttime visits continued two or three times per week until Simpson moved out of the apartment. Simpson's assaults included watching Ann shower, fondling her chest and genitals, and performing cunnilingus and penetration. By the time Simpson's abominable conduct ended, Ann was twelve years old and in the sixth grade.

One year later, when a rape-crisis counselor visited Ann's seventh-grade class and informed the students that "it was wrong" for "adults to have sex with children," Ann revealed Simpson's conduct to her guidance counselor. Ann then underwent therapy at Bradley Hospital. During this time she stated she "heard voices" relating to Simpson's activities. The counselor referred the matter to the appropriate authorities, including the Department of Children and Their Families (DCF), which action led to Simpson's subsequent indictment and conviction.

On appeal Simpson raises two questions. He contends that the trial justice erred in failing to give an appropriate cautionary instruction to the jury regarding the prosecutor's closing argument and in denying Simpson's motion in limine to preclude evidence of his prior convictions for impeachment purposes, thereby infringing upon his right to testify. We do not endorse either of these contentions. Accordingly we affirm the actions of the trial justice and uphold Simpson's conviction.

Simpson's initial issue on appeal is his contention that the trial justice's refusal to give an appropriate cautionary instruction to neutralize the prejudicial effect of the prosecutor's remarks that stated facts not in evidence to the jury warrants a mistrial. We disagree.

In his closing argument the prosecuting attorney referred to Ann's "auditory hallucinations" and noted that it was reasonable for this child to suffer mental anguish and subsequent hospitalization following Simpson's repeated atrocities, which had incidentally occurred over a four-year period. Moreover, the prosecutor stated, Ann's resulting trauma did not render her testimony either untrue or unreliable. Defense counsel objected to the implication that Simpson may have caused Ann's psychiatric problems and further noted that the fact that Ann had "heard voices" may have caused the child to fabricate her allegations of sexual assault.

In assessing the propriety of prejudicial conduct of the prosecution toward a jury, a trial justice must review the questioned statements in the context of accompanying circumstances and ascertain its meaning as a jury would understand as it listened to the prosecutor's argument and not how the court might have read it from a printed page. State v. Andrews, 120 R.I. 771, 775-76, 390 A.2d 926, 929 (1978). The decision to declare a mistrial rests within the sound discretion of the trial justice. State v. Lassor, 555 A.2d 339, 347 (R.I.1989); State v. St. Amant, 536 A.2d 897 (R.I.1988); State v. Fernandes, 526 A.2d 495 (R.I.1987); State v. Collazo, 446 A.2d 1006 (R.I.1982). Indeed, a reviewing court will not disturb the trial justice's determination unless it is clearly wrong. However, this court has not been averse to reversing convictions for prejudicial misstatements by the prosecution. See State v. Lima, 546 A.2d 770 (R.I.1988); State v. Mello, 472 A.2d 302 (R.I.1984); compare State v. Marrapese, 583 A.2d 537 (R.I.1990) (prosecutor's comments do not require mistrial when trial justice appropriately admonishes jury upon objection).

We have examined the record to determine how the jury would interpret the prosecution's questioned statement in this dispute. In his instructions, the trial justice cautioned the jury that the closing summation of either advocate was not to be considered in determining the truth of the issues. With regard to giving a curative instruction in response to the prosecutor's remarks, the trial justice observed that "they [the jurors] should have an open mind as to what, if anything, was a contributing cause to this young lady's mental aberrations" and so declined to instruct the jury otherwise. Continuing, the trial justice stated that since "she's [Ann] no longer a sufferer of those hallucinations or hearing the voices," the implication of cause and effect remained within the jury's purview to consider. The trial justice further expressed his belief that an instruction diverting the jury's attention from that question would result in a "gross injustice" both to the state and to Simpson.

Although the prosecutor did cull this inference of cause and effect from Ann's testimony at the trial, this court is of the opinion that doing so did not so drastically misstate the evidence as to warrant a mistrial. Here we adhere to the established principle set forth in State v. DeCiantis, 501 A.2d 365, 367 (R.I.1985), where we stated that

"[t]he trial justice is better able to assess the degree of prejudice created and the effectiveness of prompt curative instructions aimed at purging the potentially prejudicial statement from the jurors' minds. State v. Hoyle, 122 R.I. 45, 404 A.2d 69 (1979); State v. Freitas, 121 R.I. 412, 399 A.2d 1217 (1979). The attendant facts and circumstances of each case must be carefully evaluated; whether the trial justice exercised proper discretion is an assessment that does not lend itself to any fixed formula."

Having scrutinized the record, we believe that the trial justice's instructions to the jury were proper.

We now turn to the second and final issue posed to us by Simpson's appeal. Because Simpson's record dated from 1975, when he was nineteen years old,...