Justice ROBINSON for the Court.
The defendant, Evaristo Rosario, appeals from a judgment of conviction entered after a jury trial in the Superior Court for Providence County. On appeal, the defendant contends that the trial justice erred by denying his motions to pass the case and by overruling an evidentiary objection.
This case came before the Supreme Court for oral argument 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 memoranda submitted by the parties, and the oral arguments of counsel, we are satisfied 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.
On June 23, 2006, defendant, Evaristo Rosario, was charged by criminal information
On November 16, 2007, defendant filed a motion in limine, whereby he sought to preclude the prosecution from introducing evidence of (1) defendant's "alleged altercations with the Providence Police" or (2) defendant's "threatening statements to Officer John Reposa or any other Providence Police Officer."
In his motion in limine, defendant argued: (1) that such alleged prior altercations or threatening statements were not necessary elements of the crime charged; (2) that the alleged prior altercations and threatening statements were inadmissible under Rule 404(b) of the Rhode Island Rules of Evidence; and (3) that the probative value of such evidence, if any, was greatly outweighed by its prejudicial effect. The defendant further contended that, if the court should allow the use of such evidence, it should be used for impeachment purposes only.
On the same day, the prosecution also moved in limine, requesting that "the State be allowed to call Providence Police Inspector Francisco Colon to give testimony during the defendant's trial as to the circumstances surrounding an incident which occurred at Rhode Island Hospital on May 24, 2003 * * *."
On December 10, 2007, just prior to the commencement of trial, the trial justice stated on the record that she had considered the two motions in limine after having conferred with counsel. The trial justice then made several rulings with respect to the two motions.
First, concerning "the incident at the hospital,"
Next, the trial justice said that she would deem admissible evidence of a complaint filed by Mr. Rosario "with Internal Affairs regarding Officer Reposa's conduct at the hospital and then a subsequent meeting and phone calls between Inspector Colon and the defendant." Focusing more specifically on defendant's complaint to Internal Affairs, the trial justice ruled (1) that she would "allow evidence that the defendant's complaint was not addressed in terms of compensation" and (2) that she would "apprise the jury that they cannot make any inference adverse to Officer Reposa regarding the outcome of the investigation [of defendant's complaint] as no such evidence has been placed before them."
The trial justice also clearly indicated that it was possible that she might have to revisit her in limine rulings; she stated: "It may be that further evidence regarding the interaction between the defendant and Inspector Colon becomes admissible depending on what the defendant says."
A jury trial was held in the Superior Court for Providence County on December 10, 11, and 12, 2007. We describe below what transpired at that trial to the extent necessary to provide context for the issues raised on appeal.
During his opening statement, the prosecutor referred to the above-referenced incident at Rhode Island Hospital in May of 2003 as an "altercation." More specifically, the prosecutor stated: "The defendant, when Officer Reposa went up to ask him to get off the phone[,] an argument ensued and [an] altercation ensued and the defendant's cell phone was broken."
At the close of the prosecution's opening statement, defense counsel moved to pass the case, alleging (1) that the use of the word "altercation" in the opening statement was not permissible in light of the trial justice's in limine ruling and (2) that the use of that word was prejudicial. Counsel contended that the word "altercation" could suggest to "lay people * * * that [defendant] was being a wiseguy [and] was out of control * * *."
In addressing defendant's motion to pass, the trial justice said that the purpose of her in limine ruling with respect to evidence of the incident at the hospital had been "to avoid * * * any reference to alcohol or intoxication * * *." She then stated:
The trial justice further observed that there "has to be some context for the broken phone." The trial justice stated that the use of the word altercation did not "[go] beyond" her prior ruling, and she denied the motion to pass the case.
Officer Reposa testified at trial that, on February 22, 2006, he was in uniform while participating in a funeral escort as part of a motorcycle unit. He testified that the funeral procession began at a funeral home on Hawkins Street in Providence and set out for St. Ann's Cemetery in Cranston. He stated that, at one particular point in the course of the trip to the cemetery, it was necessary for him to dismount from his motorcycle to stop traffic coming from a Lowe's store so that "the procession [could] continuously move on to St. Ann's Cemetery."
It was Officer Reposa's testimony that he made eye contact with the driver of the first vehicle that was in the process of leaving the Lowe's store; the officer stated that he "had the vehicle stop with [his] hands and verbal command * * *." He added that he always makes eye contact with the driver of a vehicle that he is attempting to stop, so that the driver of the vehicle knows that he is "telling that particular car to stop." The officer testified that the just-mentioned first vehicle was a black Maxima and that, when he made eye contact with the driver of the black Maxima, he recognized that the driver was Evaristo Rosario. At that point in his testimony, Officer Reposa identified defendant in the courtroom as being Mr. Rosario.
The officer further testified that, after he and defendant made eye contact, defendant looked at him and smiled. Officer Reposa stated that he was approximately thirty feet away from defendant's vehicle at the time that eye contact was made.
The direct examination of Officer Reposa then proceeded to take a brief detour from the questioning about what transpired during the funeral procession on February 22, 2006; the purpose of that detour was to elicit testimony about the officer's first encounter with defendant. Officer Reposa testified that, on May 24, 2003, he was at Rhode Island Hospital in uniform and with his badge number ("686") displayed on his uniform. Officer Reposa answered the following question from the prosecutor in the affirmative: "Did you approach regarding the cell phone and then attempt to get [defendant] to stop speaking on the phone?" Officer Reposa further testified that the result of this interaction was that defendant's phone was broken.
Officer Reposa further testified that, after the phone was broken, defendant made two comments to the officer. The officer said that defendant first stated: "Mind your f___ing business and if you take my phone from me I will sue your a___." He added that defendant then stated: "You are f___ing done. Wait until you see what I do to you when I get out of here." It was Officer Reposa's further testimony that, as a result of the Rhode Island Hospital incident, defendant filed a complaint against him; however, when asked whether he was upset that defendant filed a complaint against him, the officer responded that he was not.
Officer Reposa then proceeded to give further testimony about the February 22, 2006 funeral escort and his attempt to stop cars that were leaving the Lowe's store. As to what ensued after defendant smiled at him from his black Maxima, Officer Reposa stated:
Officer Reposa testified that he "yelled at the defendant approximately three
It was Officer Reposa's further testimony that, after defendant drove away from the scene, he continued to escort the funeral procession and did not pursue defendant; the officer added that he is not allowed to pursue vehicles when he is performing motorcycle duties. He testified that, after he completed the funeral escort detail, he went to the Cranston Police Department to report what had occurred and to indicate that he wished to press charges and file a complaint.
Providence Police Inspector Francisco Colon testified that, at the time of trial and at all times pertinent to this case, he was "the department inspector," assigned to conducting internal investigations. He said that he was responsible for "reviewing complaints filed against officers." Inspector Colon further testified that he first became acquainted with defendant during two face-to-face meetings that occurred on September 1 and 3, 2003. According to Inspector Colon, during those meetings, Mr. Rosario referred to Officer Reposa and did so by alluding to the officer's badge number—viz., "Badge No. 686." It was Inspector Colon's testimony that, when speaking of Officer Reposa, defendant's "demeanor was always * * * angry, upset and always referencing Badge 686 and often using profanity." Inspector Colon testified that, during their meetings, defendant referred to an incident involving Officer Reposa in which a cell phone "had broken or * * * got broken."
Inspector Colon then proceeded to testify about a number of voice mail messages that he received from defendant in May and June of 2004; he added that he had reviewed the phone calls prior to testifying at trial and "also had them transcribed." The inspector estimated that defendant, whose voice he recognized, left "[a]t least 20 if not more" voice mail messages during those two months.
The inspector testified that defendant would refer to "Badge 686" in his messages and "was angry, upset, [and] continued to talk about the cell phone * * * using profanity." When asked to elaborate regarding the profanity that defendant used, it was the inspector's testimony that he recalled defendant saying, among other things: "f___ing mother f___er," "f___ing police," and "f___ing Badge 686." The inspector added that defendant also referred to Badge 686 as "the devil." It was the inspector's further testimony that defendant also repeatedly referred to the complaint that he had filed regarding the cell phone incident. The inspector stated that defendant would often refer to the year and the date of the incident and would mention how much time had passed. The inspector testified as follows about one such call: "[Defendant] said '17 days and one year ago that f___ing mother f___er broke my phone' or words to that effect."
With respect to the complaint filed by defendant, Inspector Colon testified that Officer Reposa was never ordered to reimburse defendant for the broken cell phone. On cross-examination, however, Inspector Colon acknowledged that, at some point in
The defendant, Evaristo Rosario, testified that, on the morning of February 22, 2006, he drove a Nissan Maxima to the Lowe's store on Garfield Street in Cranston in order to "buy materials to fix [his] houses." He further testified that, although he did not know Officer Reposa personally, he had had a "couple of interaction[s]" with him. He testified that the first interaction occurred "in the hospital when [Officer Reposa] approached [him] and broke [his] cell phone." It was defendant's testimony that he did not recall seeing Officer Reposa at any time in February of 2006; he added that, on February 22, 2006 in particular, he was never requested to stop by a police officer, nor did he have any interactions with any police officers.
On cross-examination, defendant was asked whether or not he liked Officer Reposa. In response, defendant said: "Yes, I like him. He is an officer. I respect authority." (Emphasis added.) When the prosecutor reacted to that broad statement by directly asking defendant whether he respected authority, defendant responded: "Yes, sir."
As cross-examination continued, defendant acknowledged that he had referred to Officer Reposa in his complaint regarding the cell phone as having used his "devil hand to break [his] phone." The defendant also acknowledged that he was angry, upset, and mad at Officer Reposa "[b]ecause he broke [the] cell phone."
The prosecutor then returned to the respect for authority issue and sought to probe further into defendant's assertions about same. The following dialogue ensued:
At that point, counsel for defendant objected to the just-quoted line of questioning and made his second "motion to pass for mistrial."
In denying defendant's motion to pass the case, the trial justice observed that defendant's statement was that "he respected authority." She then noted that "[t]his line of questioning * * * goes to his credibility," which in her view was a "different issue than the motion in limine." The trial justice then specifically addressed the contention that allowing this line of questioning would contravene her earlier pretrial ruling. She stated in pertinent part:
The cross-examination of defendant then continued, with defendant acknowledging that he had in fact stated in his complaint: "I think that all Providence police officers need help because they have been acting brutal to the community in Providence." However, defendant stated that neither in his meetings with Inspector Colon nor in a voice mail message did he ever threaten to assault a Providence police officer. It was defendant's further testimony that his comment to Officer Reposa in May of 2003 that "he was going to pay for what he did," was a reference to his plan "to use legal action." The defendant denied saying to Officer Reposa: "[Y]ou're f___ing done," but he acknowledged saying: "[W]ait and see what I do when I get out of here." The defendant also acknowledged that he had said that he would "do legal action" against both the hospital and the police department. He testified that, at one point, he was informed that he would receive "restitution" for his cell phone but that he never did receive same.
The prosecutor proceeded to question defendant regarding the cell phone incident at Rhode Island Hospital and regarding a number of phone calls that he allegedly made to Inspector Colon. The defendant's response to most of these questions was either that he did not understand the question asked or that he could not recall what had transpired. However, he did recall that, at the time of the incident at Rhode Island Hospital, Officer Reposa had asked him to "shut the phone."
Inspector Colon provided testimony in rebuttal regarding defendant's denial that he ever threatened to assault a Providence police officer or that he made certain phone calls to Inspector Colon. It was the inspector's testimony that, during his September 1, 2003 meeting with defendant, defendant made a threat against members of the Providence Police Department. According to Inspector Colon, defendant
Inspector Colon also testified regarding a phone message that he received from defendant on September 19, 2003. The inspector stated that, during that message, defendant again "indicated that he was going to assault a police officer."
The prosecutor then proceeded to play excerpts from a number of voice mail messages from May of 2004 to June of 2006, which messages the inspector had recorded and in which the inspector recognized the voice as being that of defendant. The messages contain a number of expletives, mention Officer Reposa by his badge number, and refer to defendant's desire to receive compensation for his broken phone. The following is a sample of what the jury heard:
On December 12, 2007, the jury found Mr. Rosario guilty of assault with a dangerous weapon. He then filed a motion for a new trial; that motion was heard and denied on January 15, 2008. On February 8, 2008, defendant was sentenced to five years suspended, with five years of probation. Thereafter, defendant filed a timely notice of appeal.
On appeal, defendant contends that the trial justice erred in two respects. First, in defendant's view, the trial justice erred in ruling that the use of the word "altercation" in the prosecution's opening argument did not violate her pretrial ruling. He contends that, "given the inflammatory nature of that comment in the context of this case," the trial justice abused her discretion in denying the first motion to pass the case.
Second, defendant argues that "the state was improperly permitted to manufacture an issue solely for the [purpose] of impeachment with otherwise inadmissible evidence;" he contends that the trial justice committed reversible error by (1) overruling defendant's objections to these inquiries and (2) by denying his second motion to pass the case.
A trial justice's ruling on a motion to pass the case "is entitled to great weight." State v. Grant, 946 A.2d 818, 826-27 (R.I.2008); see also State v. Mendoza, 889 A.2d 153, 158 (R.I.2005); State v. Disla, 874 A.2d 190, 198 (R.I.2005). On appeal, a trial justice's ruling on a motion to pass the case "will be disturbed * * * only if he or she was clearly wrong." Grant, 946 A.2d at 827; Disla, 874 A.2d at 198. We accord such deference to the ruling of the trial justice in this context because he or she "possesses a front-row seat at the trial and is therefore in an ideal position to make such decisions." Grant,
With respect to evidentiary rulings, it is well established that "questions as to the admissibility vel non of evidence are confided to the sound discretion of the trial justice." State v. Moreno, 996 A.2d 673, 678 (R.I.2010) (internal quotation marks omitted); see also State v. Merida, 960 A.2d 228, 234 (R.I.2008). Accordingly, we "will not interfere with a trial justice's decision in that regard unless there was a clear abuse of discretion * * *." Merida, 960 A.2d at 234; see also Moreno, 996 A.2d at 678; State v. Pitts, 990 A.2d 185, 189 (R.I.2010). Furthermore, in conducting our review, "this Court is disinclined to perceive an abuse of discretion so long as the record contains some grounds for supporting the trial justice's decision * * *." Moreno, 996 A.2d at 678 (internal quotation marks omitted); see also Pitts, 990 A.2d at 189-90.
This Court has often discussed the principles relevant to motions to pass the case that are "occasioned by the intentional or accidental injection into a jury trial of extraneous matters of an allegedly harmful nature." State v. Hoyle, 122 R.I. 45, 47, 404 A.2d 69, 70 (1979); see also State v. Marrapese, 116 R.I. 1, 7, 351 A.2d 95, 98 (1976). In that regard, we have stated that "the trial justice must assess the prejudicial impact" of the allegedly harmful statements. State v. LaPlante, 962 A.2d 63, 70 (R.I.2009) (internal quotation marks omitted); see also State v. Pacheco, 763 A.2d 971, 979 (R.I.2001); State v. Toole, 640 A.2d 965, 974 (R.I.1994). Prejudice may derive from an attorney's statement when the statement "is extraneous to the issues before the jury and tend[s] to inflame the passions of the jury." State v. Monteiro, 924 A.2d 784, 792 (R.I.2007).
Accordingly, in assessing the prejudicial impact of contested evidence, the trial justice should consider whether the evidence was "of such a nature as to cause the jurors to become so inflamed that their attention was distracted from the issues submitted to them" or "prevent their calm and dispassionate examination of the evidence." LaPlante, 962 A.2d at 70, 71 (internal quotation marks and citation omitted); Pacheco, 763 A.2d at 979. As we have observed, however, "there is no fixed formula for determining prejudice." LaPlante, 962 A.2d at 70; see also Monteiro, 924 A.2d at 792. Rather, potentially prejudicial evidence must be "viewed in the context in which it appeared and in light of the attendant circumstances." LaPlante, 962 A.2d at 70-71 (internal quotation marks omitted).
The defendant contends that the trial justice clearly erred when she denied defendant's first motion to pass the case—a motion predicated on the prosecutor's use of the word "altercation" in his opening statement. According to defendant, the use of that word was a violation of the trial justice's pretrial ruling and was inflammatory in nature. We disagree.
We perceive no error in the trial justice's determination that the use of the word "altercation" did not contravene the portion of her pretrial ruling that related to the May 2003 incident at the hospital. In our view, defendant's argument that the use of the word "altercation" was violative of the pretrial ruling assigns too much pejorative connotation to that particular word. As the trial justice explained in
It follows that there was no error in the trial justice's ultimate decision not to pass the case. While the word "altercation" may suggest a more emotionally charged exchange than "interaction," we fail to see how the substitution of this word alone would inflame the passions of the jurors and prevent them from examining the evidence in a calm and dispassionate manner. Moreover, as the trial justice correctly observed, the word must be assessed in light of the surrounding words and sentences of which it was a part. In denying defendant's motion to pass the case, the trial justice noted the need for "context for the broken phone." The word "altercation" was uttered as part of the prosecution's description of the cell phone incident, and (significantly) it was unaccompanied by any suggestion as to who instigated or may have been to blame for the altercation.
We would also note that, in the course of her pretrial instructions, the trial justice explicitly instructed the jury regarding the non-evidentiary nature of opening statements. (See footnote 3, supra.) And this Court must assume "that a jury has followed a trial justice's instructions as they were given.". LaPlante, 962 A.2d at 71-72 (internal quotation marks omitted).
Because we conclude that the trial justice did not err in denying defendant's first motion to pass the case, we perceive no basis for a reversal on that ground. See Grant, 946 A.2d at 829.
The defendant's other contentions on appeal relate to the trial justice's denial of his second motion to pass the case. That motion was made when defendant was questioned by the prosecutor on cross-examination about generalized threats against the Providence police—which questioning defendant contends was in contravention of the trial justice's pretrial rulings. The defendant argues that the prosecution was "improperly permitted to manufacture an issue" so that it could then impeach defendant with otherwise inadmissible evidence. In support of his argument, defendant cites this Court's holdings in State v. O'Dell, 576 A.2d 425 (R.I.1990), and State v. McDowell, 620 A.2d 94 (R.I.1993).
In O'Dell, 576 A.2d at 429, the defendant in a sexual assault trial was cross-examined as to conversations that he had with the alleged victim's daughter. After the defendant denied having had any conversations with the daughter, the prosecution called her to testify in rebuttal. Id. The prosecution had not disclosed any intention to call the daughter as a witness, nor had it disclosed the existence of any of the defendant's statements to her—as is required by Rule 16 of the Superior Court Rules of Criminal Procedure. O'Dell, 576 A.2d at 429. On appeal, this Court recognized that the statements made to the victim's daughter "could not have been admissible as part of the state's case in chief as a result of the nondisclosure of such statements in response to discovery * * *." Id. In vacating the defendant's
In McDowell, 620 A.2d at 95, also a sexual assault case, the trial justice had ruled that the testimony of one particular person would not be admissible at trial pursuant to Rule 404(b). That person was never mentioned during the direct examination of the defendant. McDowell, 620 A.2d at 95. However, on cross-examination, the prosecution questioned the defendant about whether he had sexually assaulted or directed sexually inappropriate comments toward that very person. Id. at 95-96. When the defendant denied having engaged in such conduct, the prosecution was permitted to call that person as a rebuttal witness. Id. at 96. Citing O'Dell, this Court held that the admission of such rebuttal testimony constituted clear error and necessitated a reversal. McDowell, 620 A.2d at 96.
After carefully reviewing defendant's testimony during direct examination and the controverted questions posed during his cross-examination, we cannot agree that the instant case falls within the reach of our holdings in O'Dell and McDowell or that the trial justice abused her discretion in overruling defendant's objection. On the contrary, our review of the record convinces us that there were ample grounds to support the trial justice's decision. While defendant correctly asserts that the topic of generalized threats against Providence police officers was not raised or denied by defendant on direct examination, other facts radically distinguish the instant case from what happened in the O'Dell and McDowell cases.
On cross-examination, the prosecution merely asked whether or not defendant liked Officer Reposa—a question that strikes us as being rather innocuous and not inappropriate. Moreover, it was a question to which counsel for defendant opted not to object. In response, after asserting that he liked the officer, defendant chose to do more than answer the question that had been asked; he uttered the following broad declarative sentence: "I respect authority."
We consider the argument that the prosecution was permitted to manufacture an issue for the purposes of impeachment with otherwise inadmissible evidence to have been waived due to the fact that defendant did not interpose an objection in
Since we hold that the trial justice's decision to admit the challenged evidence was not an abuse of discretion, it follows that her decision to deny the defendant's motion to pass the case, which motion was predicated on the admission of the above-referenced evidence, was not erroneous.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The record in this case may be returned to that tribunal.
Although Mr. Rosario had not initially testified that he respected all authority and all Providence police officers, he had responded as follows to the prosecutor's question as to whether he liked Officer Reposa: "Yes, I like him. He is an officer. I respect authority." While the prosecutor's recollection about defendant's use of the word "all" was inaccurate, the clear implication of defendant's testimony was that he liked and respected authority figures in general.