Chief Justice SUTTELL, for the Court.
The defendant, John Ford, appeals from a Superior Court judgment of conviction declaring him to be in violation of his probation and executing thirty months of his previously imposed suspended sentence. On appeal, the defendant argues that, at his violation hearing, the hearing justice erred in refusing to admit a letter written and sent to him by the state's complaining witness. Additionally, the defendant asserts that the hearing justice improperly precluded testimony concerning past arguments between him and the complaining witness about the latter's drug use and about whether the complaining witness had brought him drugs when he was in a drug-treatment program. Finally, the defendant avers that the hearing justice's decision to credit the complaining witness's testimony over his own was unsupported by the record and that, therefore, the hearing justice acted arbitrarily and capriciously in finding a violation. This case came before the Supreme Court pursuant to an order directing the parties to appear and 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.
In 2005, defendant entered pleas of nolo contendere to one count of possession of a stolen motor vehicle or parts and to one count of reckless driving. For the stolen motor vehicle count, defendant was sentenced to ten years at the Adult Correctional Institutions (ACI), consisting of eighteen months to serve and 102 months suspended, with probation. For the reckless-driving count, defendant was sentenced
On October 27, 2010, while defendant was still on probation, he was arrested by the Warwick police because of a domestic-assault complaint initiated by Tina Bartholomew, defendant's then-girlfriend. At some point during that evening, defendant also suffered an injury to his forehead, but the source of the injury is a point of dispute. The next day, the state filed a probation-violation report under Rule 32(f) of the Superior Court Rules of Criminal Procedure.
Ms. Bartholomew testified that, after spending much of the afternoon and early evening of October 27 with defendant and her daughter at defendant's apartment and after consuming roughly four beers, she left the apartment to make a trip to a nearby Burger King with her daughter and a friend. Bartholomew testified that defendant was not at the apartment when she returned, but that he returned a few minutes later, with "blood on his shirt, a fat lip, [and] scrapes." She further stated that when she returned from walking her daughter out to her father's car (he had come to pick her daughter up), defendant "c[a]me out of nowhere," and "just snapped," throwing her to the pavement outside the apartment and hitting her on her face and body. Bartholomew testified that, after he attacked her, defendant calmed down and fell asleep, at which point she went to the apartment upstairs to call 9-1-1.
The defendant testified at the hearing to his version of events. He stated that on October 27, 2010, Bartholomew consumed about eight beers and that she "was acting very erratic." He testified that Bartholomew left the apartment with her daughter at some point during the evening and that he fell asleep while she was gone. According to defendant, when Bartholomew returned to his apartment, she requested his assistance in procuring drugs for her, which he declined to do.
The defendant also attempted to introduce an eight-page, handwritten letter from Bartholomew that she sent him after his arrest in which she professed loving feelings towards him and expressed her desire to share a life with him. At the hearing, he argued that the letter was admissible both to show that Bartholomew's reading and writing skills exceeded her own representations, casting doubt on the veracity of her statement to police, and to contradict Bartholomew's in-court statements about her relationship with defendant. The hearing justice refused to admit the letter after clarifying with defendant that he was "not * * * offering it for the truth of the matter asserted," but rather "to impeach [Bartholomew's] credibility based on the fact that she said she couldn't write, and that she could, in fact, write."
At a probation-violation hearing, "[t]he sole issue for a hearing justice * * * is whether or not the defendant has breached a condition of his or her probation by failing to keep the peace or remain on good behavior." State v. English, 21 A.3d 403, 406 (R.I.2011) (quoting State v. Christodal, 946 A.2d 811, 816 (R.I.2008)); see also State v. Washington, 42 A.3d 1265, 1271 (R.I.2012). Probation-violation hearings are "not part of the criminal prosecution," State v. Kennedy, 702 A.2d 28, 31 (R.I.1997); and, as a result, the "burden of proof at a probation-violation hearing is `much lower' than the standard of beyond a reasonable doubt" used in criminal trials.
"To determine whether the defendant has committed a violation, the hearing justice `weighs the evidence and assesses the credibility of the witnesses.'" English, 21 A.3d at 407 (quoting State v. Pena, 791 A.2d 484, 485 (R.I.2002) (mem.)). In reviewing the hearing justice's determination, "[t]his Court gives the trial justice's assessment of the credibility of witnesses `great deference.'" Id. (quoting Christodal, 946 A.2d at 816). "[T]his Court will not `second-guess' supportable credibility assessments of a hearing justice in a probation-revocation hearing," State v. Jackson, 966 A.2d 1225, 1229 (R.I.2009) (quoting State v. Johnson, 899 A.2d 478, 482 (R.I.2006)), and instead "[our] `review of a hearing justice's decision in a probation-violation proceeding is limited to considering whether the hearing justice acted arbitrarily or capriciously in finding a violation.'" English, 21 A.3d at 407 (quoting State v. Sylvia, 871 A.2d 954, 957 (R.I. 2005)).
The defendant argues on appeal that the hearing justice erred in excluding Ms. Bartholomew's letter, testimony about prior arguments between the two, and testimony about Bartholomew's "efforts to undermine and sabotage [defendant's] efforts to stay clean and to succeed in drug treatment." Additionally, defendant asserts that the hearing justice's credibility determinations were "so unsupported by the record as to amount to arbitrary and capricious factfinding."
The defendant advances two bases of error related to the hearing justice's decision to exclude Bartholomew's letter to defendant from evidence. First, defendant asserts that the letter is admissible as substantively relevant because it undermined her testimony, "strongly tended to prove that [defendant] did not viciously assault * * * Bartholomew[,] and * * * suggests that she was remorseful for having split his head open and wrongfully landed him in jail." Second, defendant argues that the letter should have been admitted for impeachment purposes because it tends to show that Bartholomew had stronger reading and writing abilities than she represented. The state counters that even if the letter were substantively relevant, defendant's final proffered objection to its exclusion at the hearing was that it was admissible for impeachment, not substantive purposes, triggering the raise-or-waive rule concerning this new argument. Additionally, the state argues that the decision to exclude the letter for impeachment purposes was within the sound discretion of the hearing justice.
As to defendant's latter argument — that the hearing justice abused his discretion in excluding the letter for impeachment purposes — we note the well-established principle that the decisions of the hearing justice "concerning the admissibility of evidence are `within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of that discretion is apparent.'" State v. Gaspar, 982 A.2d 140, 147 (R.I.2009) (quoting State v. Mohapatra, 880 A.2d 802, 805 (R.I. 2005)).
Here, the record demonstrates that the hearing justice considered, and even clarified,
Concerning the first of defendant's arguments — that the evidence was substantively relevant to demonstrate the tone and nature of the relationship between defendant and Bartholomew — we conclude that the raise-or-waive rule precludes our consideration. "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. Brown, 9 A.3d 1240, 1245 (R.I.2010) (quoting State v. Bido, 941 A.2d 822, 828-29 (R.I.2008)). Under this principle, a litigant must make a timely and appropriate objection at trial, and the "assignments of error must be alleged with sufficient particularity so it will call the trial justice's attention to the basis of the objection." State v. Grant, 840 A.2d 541, 546-47 (R.I.2004). The hearing justice specifically asked for clarification about the letter's evidentiary purpose, and defendant ultimately conceded that he sought to introduce the letter only to impeach Bartholomew's testimony about her reading and writing abilities.
Moreover, even were we not to apply the raise-or-waive rule in this instance, we would conclude nonetheless that the hearing justice did not abuse his discretion in excluding the letter for substantive purposes as irrelevant to the material issues at the violation hearing. The defendant acknowledged at the hearing that there are no specific references in the letter to the events of October 27, 2010, but he now argues that the letter nevertheless
The defendant next contends that the hearing justice improperly precluded testimony about whether Bartholomew was upset with defendant on the day in question for refusing to help her procure drugs, whether she had attempted to interfere with defendant's drug treatment, whether the couple had argued about her drug use on other occasions, and whether she previously had brought drugs to defendant's apartment. In making these arguments, defendant relies on language from this Court's opinion in State v. Chartier, 619 A.2d 1119, 1122-23 (R.I.1993), where we explained that a defendant's prior wrongful or criminal acts are admissible under Rule 404(b) of the Rhode Island Rules of Evidence when those prior acts are "interwoven with the offense for which the defendant is being tried." The state responds that although the hearing justice precluded testimony about unrelated past incidents, he did permit similar testimony about Bartholomew's alleged attempts to obtain drugs on the night in question.
The situation here is readily distinguishable from that in Chartier. There, the defendant allegedly had participated in a string of attempted and completed robberies over the course of a single evening, but was tried in connection with only two of the three incidents. Chartier, 619 A.2d at 1121-22. The defendant there sought to exclude all evidence pertaining to the uncharged incident, but the trial court denied this request, reasoning that, under Rule 404(b), the circumstances surrounding the uncharged incident tended to show the defendant's knowledge of his confederates' plans — an issue that was directly material to the charges levied against him. Chartier, 619 A.2d at 1122-23. This Court affirmed, noting that, notwithstanding Rule 404(b)'s general prohibition of evidence of other crimes or bad acts, "other acts and conduct of the defendant at different times may be admissible at trial when they are interwoven with the offense for which the defendant is being tried * * *." Chartier, 619 A.2d at 1122-23.
In contrast, here, drug purchases and arguments that allegedly occurred in the days, weeks, or months before the events in question are not directly relevant to any material issue. Moreover, the hearing justice did permit testimony about Bartholomew's alleged attempts to obtain drugs on October 27, 2010 — evidence that would tend to support defendant's assertions that the couple quarreled. We conclude, therefore, that the hearing justice did not abuse his discretion in limiting this testimony.
The defendant's final argument is that the hearing justice's decision to credit Ms. Bartholomew's testimony over his own amounts to arbitrary and capricious fact-finding. In probation-violation proceedings, "the state need only show that reasonably satisfactory evidence supports a finding that the defendant has violated his or her probation." English, 21 A.3d at 407 (quoting Bouffard, 945 A.2d at
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The papers in this case may be returned to the Superior Court.
The statement was not entered as a full exhibit.