State v. Toole, 93-538-C
| Decision Date | 28 April 1994 |
| Docket Number | No. 93-538-C,93-538-C |
| Citation | 640 A.2d 965 |
| Parties | STATE v. James E. TOOLE. A. |
| Court | Rhode Island Supreme Court |
This case came before the Supreme Court on the appeal of the defendant, James E. Toole (Toole), from a Superior Court conviction on three counts of first-degree sexual assault on a child under the age of thirteen and two counts of first-degree sexual assault by force and coercion. The trial justice imposed a sentence of life imprisonment for each of the five counts. These sentences were to run concurrently.
A grand jury indicted Toole in 1992 on these five counts of sexual penetration of his biological daughter, to whom we shall refer using the fictitious first name Donna. At trial Donna testified that the first sexual activity with her father occurred when she was approximately four years old, to the best of her recollection. On that occasion her father made her touch his penis, and he put his penis into her mouth. She testified that between January 1, 1982, and January 1, 1984, her father would put his penis into her mouth on an almost daily basis. At that time the Toole family lived in Pawtucket, and Toole was a Pawtucket police officer who worked at night. Since Donna's mother worked during the day, Toole took care of Donna and her brothers when they arrived home from school. Toole's after-school sexual activity included his attempts to insert his fingers inside Donna's vagina approximately every week during those years. He succeeded when she was eleven years old. In addition, he would attempt anal intercourse on her by laying her on her stomach, covering her nose and mouth, and trying to insert his penis into her anus. During these attempts, Donna testified, she could not breathe. He succeeded approximately twice when she was about ten years old and continued such attempts occasionally. When Donna was twelve, Toole began inserting his penis into her vagina on an almost daily basis after school. Such sexual activity continued when the family moved to Coventry. The last sexual act between Donna and her father took place in June of 1989, when she was seventeen-and-a-half years old.
Donna testified that she She also stated that she did not ever want to have sex with her father and that she had told him so. She tried to push him off her, but when she was twelve she was about four feet tall and her father was about five feet eight inches tall and "pretty strong." She stated that "[h]e would just continue." She testified that every time he tried to have sexual intercourse with her, she fought "as much as [she] could, but [she] didn't really think [she] really had a choice."
Donna also testified that Toole always instructed her not to tell anyone and warned that telling would break up the family. The first person whom Donna told about this sexual activity was her mother in May 1990. Soon afterward, she told her boyfriend and moved out of her parents' house and into an apartment in Coventry. A couple of days after she changed residences, her father called her. He apologized for what he had done and told her not to tell the chief of police.
In the spring of 1991 Donna spoke with a counselor at Rhode Island College, where she was enrolled. The counselor referred Donna to the rape crisis center, where she started going on a regular basis. Around Christmas of 1991, she told two of her brothers, James and Steven, about her father. In January she reported her father to the State Police.
Donna's mother, Yuen Toole, testified that she had been married to Toole for about twenty years. She stated that approximately a week after her conversation with Donna in May 1990, she confronted Toole with Donna's claims of his abuse. He initially denied having abused Donna, she testified, and she challenged him to explain why his daughter would fabricate such claims. A couple of minutes later he admitted having done so but not "that many times." She then informed Donna that she had confronted Toole. She testified that Toole then tried to apologize, and Donna suggested that she move out of the house. After Donna's move, her mother had Toole sleep in Donna's room and had Donna's two youngest siblings, who were still babies, sleep in her bedroom.
Donna's brother James Toole (James), who was eighteen years old at the time of trial, testified that one day he returned home from football practice and heard Donna yelling. She then ran out of a room, and Toole followed her into the kitchen. Toole softly said he was sorry and kept repeating his apology. Donna responded by telling Toole something like he always apologized but it still happened. James testified that after Donna had told him about her claims, he asked Toole why he had not sought help. Toole replied that James did not know "the whole story[.]" James also stated that Toole subsequently requested that he try to stop Donna from pursuing her allegations.
Donna's brother Steven Toole (Steven), who was seventeen at the time of trial, testified that when Donna informed him of her allegations against her father, he recalled certain incidents from his childhood. He stated that he remembered when Donna would be in their parents' room crying and screaming, "I hate it when you do that." Toole would apologize for whatever he was doing. This occurred more than once when the family lived in Pawtucket, he stated. He also testified that after Donna left the house, his father moved into her room. Steven was told that the reason for the bedroom switch was to prevent his father from awakening the baby when he arrived home. He further testified that he and his father discussed Donna's allegations. His father stated that "he was sick, and that he[ ] [was] sorry for what he[ ] [had] done to [Donna]."
Toole did not testify and presented no witnesses. He raises several issues in his appeal. He claims that the trial justice erroneously permitted Donna to testify regarding "remote uncharged sexual crimes committed upon her by" him. Toole also contends that the prosecutor (1) "improperly embarked on a course of conduct intended to vouch for the truthfulness of [the state's] witnesses" and (2) improperly introduced evidence that Toole had been imprisoned at the Adult Correctional Institutions (ACI). He asserts that the trial justice erred by (1) not granting his motion to pass the case on the basis of prejudicial remarks in the prosecutor's closing argument, (2) permitting the prosecutor to lead Donna in her testimony without any showing that she was unable to testify through proper direct examination, and (3) unduly restricting his cross-examination of Donna.
With respect to the first issue, Toole asserts that the first evidence that was admitted concerning his criminal conduct related to uncharged sexual offenses committed seven to eleven years prior to the date of the offenses charged in the indictment. He claims that the trial justice failed to perform a balancing test in determining the admissibility of this "404(b) evidence." He also argues that none of the safety requirements set forth in State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978), was utilized, including a cautionary instruction.
The state claims that the trial justice's failure to give a limiting instruction was not prejudicial to Toole, as evidenced by his own counsel's conduct, and that it was harmless beyond a reasonable doubt. It asserts that the evidence was properly admitted under Rule 404(b) of the Rhode Island Rules of Evidence. The state also maintains that defense counsel did not object to the question regarding Donna's first memory of sexual activity between her and her father or to her answer that she was four years old at the time. The state points out that defense counsel also did not request a motion in limine or a limiting instruction with respect to this evidence. The state contends that although the prosecutor questioned Donna only once concerning "these early assaults," defense counsel questioned her repeatedly about them, asked her mother whether Donna had complained to her when Donna was four, and alluded to this evidence in his closing argument. The state also argues that defense counsel did not believe that this evidence of past acts was prejudicial enough to request a limiting instruction and that he himself used this evidence to undermine the evidence of the charged conduct. The state emphasizes that in the trial justice's charge he enumerated the dates relative to each offense charged in the indictment and that the verdict form clearly stated the charged periods.
In order to address these arguments, we must first review certain aspects of the record. Donna was born in December 1971, and the indictment charged Toole with certain crimes beginning in 1982. The testimony that defendant apparently challenges most strongly unfolded near the beginning of Donna's testimony on direct examination. After the prosecutor asked and Donna answered questions regarding her age, occupation, the names and ages of her family members, and her various residences over the years, he inquired whether Toole was present in the courtroom. Donna identified her father and then the following exchange took place:
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