Chief Justice SUTTELL, for the Court.
The defendant, Nakeda Brown, appeals from a judgment of conviction for one count of felony assault and one count of simple assault, both relating to a domestic altercation between him and Waysaywhein Timbo. The defendant raises three evidentiary issues that he contends warrant the reversal of the jury's verdict. First, he argues that the trial justice erred when he permitted the state to cross-examine the defendant about his physical abuse of Ms. Timbo in the past. Second, the defendant asserts that the trial justice committed error by allowing a rescue technician to testify about a statement that Ms. Timbo made concerning the cause of her injuries. Finally, the defendant challenges the trial justice's ruling to allow the state to question the defendant using a transcript of a telephone conversation, between the defendant and Ms. Timbo, that contained several "inaudible" designations.
This case came before the Supreme Court pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case 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 July 6, 2007, defendant was charged in a four-count criminal information with (1) assault with a dangerous weapon (a mirror tile); (2) assault with a dangerous weapon (a shod foot); (3) simple assault; and (4) domestic disorderly conduct. The pertinent evidence adduced at trial is set forth below.
Ms. Timbo and defendant were in a relationship from around 2001 to 2007. They lived together for five years and had a daughter in 2003, but began experiencing relationship problems in the early part of 2007. According to Ms. Timbo, she and defendant were "[n]ot really" together in May 2007; however defendant still cared for their daughter every day while Ms. Timbo worked. Ms. Timbo testified that on the evening of May 15, 2007, after defendant had dropped off their daughter at Ms. Timbo's apartment, he and Ms. Timbo began arguing about "a lot of stuff." Ms. Timbo testified that defendant accused her of sleeping with someone else, called her names, and refused to leave even though Ms. Timbo requested that he do so more than once. According to Ms. Timbo, this argument "led to an assault," where defendant "assaulted" her with a mirror, as a result of which she suffered injuries to her head and face. Ms. Timbo also testified that defendant "[p]robably" assaulted her with his hands, and she acknowledged that she had told the police that she "assumed that he used his foot, too."
Derrick Campbell, a rescue technician working for the Providence Fire Department, also testified at defendant's trial. He testified that he responded to a dispatch call to Ms. Timbo's apartment at around 11 p.m. on May 15, 2007. Upon arrival, Mr. Campbell saw a woman, who he later ascertained was Ms. Timbo, with two lacerations on her forehead and blood on her face and clothing. Mr. Campbell testified that Ms. Timbo "looked like she had been hit with something." When the state asked Mr. Campbell what Ms. Timbo
The defendant took the stand in his own defense and told a strikingly different version than Ms. Timbo of the events that took place on May 15, 2007. He testified that on that evening, he was watching cartoons with his daughter at Ms. Timbo's apartment while Ms. Timbo sat at the dining room table, when he and Ms. Timbo began arguing. According to defendant, the argument "got out of control" when he jumped up from the couch "as if [he] was going to chase [Ms. Timbo]" and Ms. Timbo "took off running" and "tripped and fell" into a mirror, which shattered as a result. The defendant said that he then helped Ms. Timbo, who was bleeding "from her face and on her arms," to stand up and got her a cold rag to wash the blood from her face. He further testified that he left approximately forty-five minutes later because Ms. Timbo told him that she was going to call for an ambulance and suggested that defendant should "leave just in case they come and they think that [Ms. Timbo and defendant] were fighting." The defendant testified that he did not punch or kick Ms. Timbo at any point on May 15, 2007.
During cross-examination of defendant, the state played several audio recordings for the jury of telephone conversations that took place between defendant and Ms. Timbo while defendant was incarcerated at the Adult Correctional Institutions (ACI). The state also provided the jury with a transcript of the telephone conversations.
On recross-examination, the state questioned defendant about his awareness of the fact that his telephone calls at the ACI were being recorded. During questioning, the state attempted to use a portion of the transcript of a telephone conversation in which Ms. Timbo asked defendant what had happened to her face and defendant replied "no, listen I can't say exactly what it was that on the phone but I will tell you when I talk to you."
The jury found defendant guilty of felony assault with a mirror and of simple assault, and not guilty of felony assault with a shod foot.
The defendant first argues that the trial justice erred in permitting the prosecution to elicit evidence from defendant that he had abused Ms. Timbo in the past. According to defendant, this evidence was not admissible as proof of "intent" or "state of mind" as ruled by the trial justice. Relying on Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993), defendant argues that the "intent exception" does not apply unless a defendant affirmatively places the question of intent at issue, which defendant did not do in this case. His defense was that he did not strike Ms. Timbo at all, not that he did so accidentally. The defendant further asserts that the trial justice erred in admitting such evidence under a "state of mind" rationale because "state of mind" is not a specifically enumerated purpose for which evidence of prior bad acts is permissible under Rule 404(b).
The state responds, first and foremost, that defendant failed to preserve this issue for appeal. The state points out that defendant did not object when recordings of telephone conversations between defendant
As this Court has made clear, the "raise-or-waive" rule precludes a litigant from arguing an issue on appeal that has not been articulated at trial. State v. Bido, 941 A.2d 822, 828-29 (R.I.2008). To effectively preserve an issue for appeal, a litigant's objection at trial has to be timely and appropriate. State v. Grant, 840 A.2d 541, 546 (R.I.2004). In addition, the objection has to be "sufficiently focused so as to call the trial justice's attention to the basis for said objection." State v. Warren, 624 A.2d 841, 842 (R.I.1993).
In the instant case, defendant raised no objection when the recording of the telephone conversation in which he said to Ms. Timbo "I put my hands on you before" was played for the jury. Nor did defendant object when the jury was allowed to read the transcript containing his statement. It was not until the state asked defendant a question about the recorded conversation that defendant objected, at which point in the trial the challenged evidence already had been placed before the jury. Because defendant did not object when a telephone conversation and a transcript, both containing defendant's statement that he "put [his] hands on [Ms. Timbo] before," were presented to the jury, defendant's later objection was untimely and thus waived.
Moreover, we previously have held that "a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court" and articulated "in an understandable manner." Bido, 941 A.2d at 829 (the defendant waived issue of motion to dismiss for lack of speedy trial when trial justice understood the defendant's motion to be motion for continuance, and the defendant did not attempt to articulate or clarify basis for his motion); see also State v. Gautier, 950 A.2d 400, 407 (R.I.2008) (the defendant waived issue that trial justice violated the defendant's constitutional right to confront
We also recognize that there is a narrow exception to the "raise-or-waive" rule where the alleged error is "more than harmless, and the exception * * * implicate[s] an issue of constitutional dimension derived from a novel rule of law that could not reasonably have been known to counsel at the time of trial." State v. Breen, 767 A.2d 50, 57 (R.I.2001). The instant case does not fall within that exception.
Because we find that defendant failed to preserve this issue for appellate review, we do not reach the merits of defendant's Rule 404(b) argument.
The defendant argues next that the trial justice erred by allowing Mr. Campbell, a rescue technician, to testify about a statement that Ms. Timbo made to him about the cause of her injuries. The defendant asserts that Ms. Timbo's statement that she was "kicked and punched repeatedly and hit with a mirror in the forehead" is hearsay that does not fall within the Rule 803(4)
The state maintains that the trial justice did not abuse his discretion when he admitted Ms. Timbo's statement under the reasoning that it "would make some difference as far as what treatment should be
We review a trial justice's admission of evidence under the deferential abuse of discretion standard. State v. Flori, 963 A.2d 932, 941 (R.I.2009). Under this standard, a trial justice's ruling will be upheld unless abuse of discretion that prejudices the complaining party is shown. Id.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted" and is inadmissible at trial unless it falls into one of the several hearsay exceptions. R.I. R. Evid. 801(c). Rhode Island recognizes an exception to the hearsay rule that allows for admission of statements made for purposes of medical diagnosis or treatment. Rule 803(4). The rationale behind the medical-diagnosis exception is that "a person will presumably be truthful to a physician from whom he expects to receive medical attention." State v. Pina, 455 A.2d 313, 315 (R.I.1983). The "test for determining admissibility `hinge[s] on whether what has been related by the patient will assist or is helpful in the diagnosis or treatment of [the patient's] ailment.'" State v. Gaspar, 982 A.2d 140, 151 (R.I.2009) (quoting In re Andrey G., 796 A.2d 452, 456 (R.I.2002)). Statements that relate "details unconnected with either diagnosis or treatment" are inadmissible under Rule 803(4). Gaspar, 982 A.2d at 151.
In the instant case, Ms. Timbo made a statement to Mr. Campbell, a rescue technician, that she was "kicked and punched repeatedly and hit with a mirror in the forehead." Because Ms. Timbo made this statement while in the rescue vehicle on her way to the hospital, she had a "strong motivation to be truthful" so that she could receive the medical care that she needed, and it was reasonable for the trial justice to conclude as such. See Rule 803(4) Advisory Committee's Note. Furthermore, Mr. Campbell related Ms. Timbo's statement to the triage nurse at the hospital; thus, it was reasonable for the trial justice to conclude that Ms. Timbo's statement made at least "some difference as far as what treatment [the hospital] rendered." The admissibility of Ms. Timbo's statement is further strengthened by the fact that the statement did not reveal the identity of Ms. Timbo's assailant, only the cause of the injuries. See State v. Lynch, 854 A.2d 1022, 1043 (R.I.2004) (physician's testimony about patient's statement concerning cause of patient's pain admissible when physician did not testify about identity of person that caused patient's pain).
We also note that defendant's assertion that Ms. Timbo's injuries were "readily apparent" to Mr. Campbell is irrelevant, even if true. The relevant inquiry when dealing with Rule 803(4) is whether the statement at issue was "made for purposes of medical diagnosis or treatment." The policy reasons behind this hearsay exception make it clear that the focus is on whether the declarant had a motivation to be truthful, not on whether the injuries were "readily apparent" to the treating party. See Rule 803(4) Advisory Committee's Note. For all these reasons, we are satisfied that the trial justice did not abuse his discretion when he allowed Ms. Timbo's statement to come in under Rule 803(4).
Lastly, defendant contests the state's use, on recross-examination, of a
The state points out that the transcript was given to the jury, with no objection from defendant, for the purpose of comprehending the audio recordings that were played in court, and that the jury did not have the transcript with them during deliberations. The state also argues that defendant did not suffer any harm from the transcript's admission because the trial justice instructed the jury that the transcript was only an approximation of the recorded conversations and that the recordings themselves were the "best evidence" of those conversations. Finally, the state points out that defendant did not cite any legal authorities for his contention that the trial justice erred in admitting the portion of the transcript that contained "inaudible" designations.
We review the trial justice's ruling under an abuse of discretion standard. Flori, 963 A.2d at 941. Here, the basis for defendant's contention that the trial justice erred in allowing the state to refer to the transcript in its recross-examination is far from clear. Nor does defendant cite any legal authority to support his summary argument on this issue.
Moreover, we are at a loss to determine what harm has been visited upon the defendant as a result of the state's use of the transcript to question him. When the state attempted to question the defendant about his awareness of the fact that his telephone calls at the ACI were being recorded, the defendant objected to the state's use of the portion of that transcript that contained Ms. Timbo asking the defendant what happened to her face. The trial justice ruled that Ms. Timbo's question was necessary to provide context to the defendant's statement that he could not tell Ms. Timbo "exactly what it was * * * on the phone." By this point in the trial, the recording of the telephone conversation already had been played for the jury, and the jury already had received a transcript of the conversation. In addition, the trial justice instructed the jury that the transcript was only an approximation of the recorded conversations and that the recordings themselves were the "best evidence" of those conversations. We are, therefore, well satisfied that the trial justice did not abuse his discretion in overruling the defendant's objection to the state's use of the transcript to recross-examine the defendant.
For the reasons stated herein, we affirm the judgment of the Superior Court in all respects. The record shall be remanded to the Superior Court.
Justice INDEGLIA did not participate.