State v. Veluzat

• Citation: 578 A.2d 93
• Decision Date: 20 July 1990
• Docket Number: No. 89-363-C,89-363-C
• Parties: STATE v. Terril L. VELUZAT. A.
• Court: Rhode Island Supreme Court

Page 93

578 A.2d 93

STATE v. Terril L. VELUZAT.

No. 89-363-C.A.

Supreme Court of Rhode Island.

July 20, 1990.

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

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

OPINION

WEISBERGER, Justice.

This case is before us on the defendant's appeal from his conviction in the Superior Court on one count of first-degree child-molestation sexual assault and one count of second-degree child-molestation sexual assault. We reverse and remand the case to the Superior Court for a new trial. The facts of the case insofar as pertinent to this appeal are as follows.

On June 25, 1986, Florence Miller and her six-year-old daughter appeared at the North Kingstown Police Station. The child told the police that she had been sexually molested by defendant, Terril L. Veluzat, who was a part-time resident in Miller's home. After some questioning of the girl by North Kingstown detectives, she and her mother were transported to Rhode Island Hospital where the girl was examined by a pediatrician, Dr. Raymond Entwistle. Doctor Entwistle performed a general physical examination and a partial pelvic exam and took a medical history. After the examination Dr. Entwistle completed a medical report indicating that he found no obvious signs of sexual penetration or physical abuse. The only apparent abnormality the doctor noted on his report was that the words "kick me" had been scratched into the skin on the child's thigh (which the child claimed her mother had done "as a joke"). However, Dr. Entwistle did note on the report in great detail what the child had told him about the alleged incidents of molestation. Specifically, the doctor noted that the child stated that defendant had touched her and attempted sexual penetration of her "private area." She further stated that defendant had asked her to play "the lollipop game" with him, or to engage in fellatio.

The defendant was subsequently arrested and tried on charges of child molestation, but the trial ended in a mistrial. He was subsequently retried, and Dr. Entwistle's report was admitted into evidence in full under a purported exception to the hearsay rule. The defendant was convicted on both counts and sentenced to a total of forty years imprisonment, with twenty-five years to be served and fifteen years suspended thereafter.

In support of his appeal defendant raises two major issues that we shall address separately.

I The Cross-Examination of Florence Miller

The defendant asserts in his brief that Florence Miller had her daughter fabricate the allegations of child molestation made against him. Miller's reason for doing this, defendant argues, is to retaliate against him for threats made by defendant's girlfriend, who is also Miller's sister-in-law, that she would notify the authorities that Miller had made false statements on an application she had filed in order to obtain public assistance. ¹

As part of its case in chief, the state called Florence Miller as a witness. She testified about the physical layout of her home, the names and ages of her children (who lived at her house), and the events that occurred on the day she was informed by her child about the alleged molestations by defendant.

On cross-examination defense counsel attempted to question Miller about the threats allegedly made by defendant's girlfriend that she would turn Miller in for welfare fraud. The prosecutor's objection to the questioning was sustained by the trial justice. In sustaining the objection, the trial justice found:

"It's not necessary. It is irrelevant * * *. It's well beyond the scope of direct examination. Any bias this witness might have or might not have towards [defendant's girlfriend] has nothing to do with this defendant * * * ."

Effective cross-examination is an essential element of the presentation of a full and fair defense and is guaranteed by both the State and the Federal Constitutions. State v. Brennan, 526 A.2d 483, 488 (R.I.1987) (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923, 928 (1965)). Additionally the cross-examiner must be given a reasonable opportunity to explore and to establish any possible bias, prejudice, or ulterior motive that a witness may possess that might affect the witness' testimony. Id. However, the scope of cross-examination, even for the purpose of exposing bias, is not unlimited. Limiting the extent and scope of cross-examination is within the sound discretion of the trial justice, and any such ruling by a trial justice will be left undisturbed by this court absent a showing of a clear abuse of that discretion. State v. Benevides, 420 A.2d 65, 69 (R.I.1980); State v. Bennett, 122 R.I. 276, 278, 405 A.2d 1181, 1183 (1979); State v. Mattatall, 114 R.I. 568, 572, 337 A.2d 229, 232 (1975). In addition evidence that is irrelevant can always be excluded by the trial justice, even if it purports to show bias. State v. Edwards, 478 A.2d 972, 975 (R.I.1984). We agree with the trial justice in finding that the issue of Miller's harboring a grudge against defendant's girlfriend is so tenuously related, if at all, to the issue of her possible bias against defendant that the trial justice committed no error by excluding this line of questioning.

At a later point during cross-examination, defense counsel sought to impeach Miller's credibility by showing that a statement she made during direct examination was inconsistent with a statement she had made on her application for public assistance. Specifically, in her application she stated that her nephew lived in her home, and on direct examination she said that he did not. During an offer of proof defense counsel stated that he wanted to use this prior inconsistent statement for the purpose of impeaching Miller's "ability to tell the truth; testify to the truth." The trial justice rejected this offer of proof, and this line of questioning was not allowed.

In State v. Cianci, 430 A.2d 756, 762 (R.I.1981), we held:

"When a party seeks to introduce a prior inconsistent statement, the trial justice in the first instance must determine whether a statement is in fact inconsistent with the witness's testimony * * * and whether the inconsistency is in any way material to the issues involved in the case." (Emphasis added.)

It may be true that Miller's testimony on direct examination was inconsistent with a statement she made in her application for public assistance. We must agree with the trial justice, however, in his conclusion that this inconsistency was not material to any issue in this case. The facts to which Miller testified on direct examination were essentially neutral statements of historical fact. Miller's testimony did not raise any subject matter in regard to which her credibility could conceivably be at issue. We further conclude that raising the issue of whether Miller had made misstatements in her application for public assistance would serve only to harass or humiliate her and probably would not have assisted the jury in according weight to her testimony. We thus hold that the trial justice did not abuse his discretion by refusing to allow defense counsel to use this prior inconsistent statement.

II The Admission of the Doctor's Report

After the physical examination of the child Dr. Entwistle reported his findings in a form supplied by the Department For Children and Their Families pursuant to Rhode...