Justice ROBINSON, for the Court.
The defendant, Mark Ceppi, appeals from a judgment of conviction on one count of domestic felony assault, pursuant to G.L.1956 § 11-5-2 and G.L.1956 § 12-29-5, and one count of domestic simple assault, pursuant to § 11-5-3 and § 12-29-5, which judgment was entered on August 5, 2010, following a jury-waived trial in the Newport County Superior Court. The defendant contends that the trial justice erred in denying his motion to dismiss a criminal information, which motion invoked Rule 9.1 of the Superior Court Rules of Criminal Procedure and G.L.1956 § 12-12-1.7. The criminal information at issue contained two counts, on both of which the defendant was eventually convicted; he posits that the criminal information package was not sufficient to establish probable cause for either of the two counts. He further contends that the trial justice committed a number of evidentiary errors during the course of the trial. Those errors, according to the defendant, were as follows: (1) finding that certain portions of the testimony of Newport Detective Christopher Hayes were not hearsay and allowing improper bolstering of the testimony of Heather King (the complaining witness) by the testimony of Det. Hayes; (2) improperly allowing questioning of the defendant with respect to an alleged past incident of violence involving his former wife; (3) impermissibly restricting the defendant's testimony with respect to Ms. King's alleged intoxication; and (4) wrongly allowing Stephanie Bacon, the complaining witness's twin sister, to testify with respect to the complaining witness's injuries.
For the reasons set forth in this opinion, we affirm the Superior Court's judgment of conviction.
On October 6, 2009, defendant was charged by criminal information with domestic felony assault, pursuant to § 11-5-2 and § 12-29-5 (Count One), and domestic simple assault, pursuant to § 11-5-3 and § 12-29-5 (Count Two). Prior to trial, defendant filed a motion to dismiss the criminal information pursuant to Rule 9.1 and § 12-12-1.7, alleging that the criminal information package "failed to establish probable cause." On May 19, 2010, a hearing was held in Superior Court, at the close of which the trial justice denied defendant's motion to dismiss.
Heather King, the complaining witness, testified first at the trial. Ms. King testified that she had dated defendant from "either the end of July, 2007 or very early August, 2007" until May 3, 2009. She further testified that she began living with defendant in January or February of 2009. According to Ms. King's testimony, "a couple of days before" March 17, 2009, she and defendant had an argument; she did not recall what that particular argument was about, but she acknowledged that her
Ms. King next testified that, on May 2, 2009, she and defendant attended a charity event in Boston. It was her testimony that, during the drive home to their residence in Newport, they "pulled over" at a location "close to [Boston]," at which time they were arguing; she added that defendant "hit [her] in the head" in the course of their argument. Ms. King stated that the next morning (May 3, 2009), before defendant woke up, she deleted from his phone the name and phone number of a woman with whom defendant had been talking at the charity event which they had attended the night before. It was her testimony that later that morning defendant asked if she had deleted "numbers from [his] phone" and that she replied in the affirmative. She further testified that, later that same day, after taking one of defendant's sons out for breakfast, she and defendant had a "conversation" about her deletion of the phone number. She stated that "at one point, [she] got upset, [and] walked away and into the bathroom" but that defendant "followed [her] into the bathroom," "locked" the door, and "cornered" her. It was her testimony that defendant "looked at [her] with these crazy eyes" and proceeded to "hit" her "in the stomach, the arm, the leg, and then * * * [the] head;" she added that she was hit "five to seven" times and that afterwards she felt as though her head was "going to explode." It was this second incident which formed the basis of Count One.
According to Ms. King's testimony, after the May 3 assault, she felt lethargic and was just "lying in bed" "all day long;" she added, however, that the May 3 incident prompted her to decide to leave defendant.
We note that the prosecutor submitted into evidence Ms. King's medical records (including her records from Newport Hospital, Rhode Island Hospital, and U. Mass. Medical); and defense counsel, rather than simply acquiescing to their admission by remaining silent, specifically stated to the trial justice that he had no objection. We also note that, at trial, the parties stipulated that Ms. King's subdural hematoma constituted a "serious bodily injury" under § 11-5-2.
Stephanie Bacon, Ms. King's identical twin sister, testified at trial that she visited Ms. King in the hospital in Newport in May of 2009. In her testimony, Ms. Bacon confirmed that her sister's symptoms intensified while she was staying with her in Rutland. Specifically, Ms. Bacon testified that Ms. King was "vomiting uncontrollably" and that her head was filled with pressure "which now we know was the blood on the brain." Her testimony went on to confirm Ms. King's testimony with respect to being admitted to U. Mass. Medical.
During the course of Ms. Bacon's testimony, the prosecutor asked her: "Did you come to find out what kind of injury [your sister] sustained that she needed treatment at the hospital?" Ms. Bacon responded: "Yes. She had a brain bleed." Defense counsel then said: "Objection to the relevance." The trial justice stated: "It's all right."
Detective Christopher Hayes of the Newport Police Department testified that on or about May 9, 2009, he learned of an alleged assault on Ms. King; he added that he thereafter drove to Worcester to speak with her while she was at U. Mass. Medical. It was his further testimony that during his visit to U. Mass. Medical he spoke with one of Ms. King's physicians, who told him that Ms. King had a subdural hematoma and that the possibility of performing surgery on her was being debated. During his testimony, Det. Hayes also indicated that Ms. King named defendant as her assailant.
After Det. Hayes had testified that one of Ms. King's physicians told him she had a subdural hematoma, the following exchange took place:
Detective Hayes proceeded to indicate in his testimony that, in addition to the just-referenced statements made to him by Ms. King's physician with respect to her medical condition, Ms. King herself told him, when he took her statement at U. Mass. Medical, that, in addition to the subdural hematoma, she had "sustained some fractured ribs." The direct examination then proceeded as follows:
The defendant was the final witness to testify. He testified that, at some point in time after about the first eight months of his relationship with Ms. King, she became very "controlling" and "jealous." He replied in the affirmative when asked if "Ms. King's jealousy * * * manifest[ed] itself into anything physical against [him]."
He proceeded to testify with respect to an incident between Ms. King and him that allegedly took place at some time on the evening of September 11, 2008 or the early morning hours of September 12 of that year (dates which do not relate to Count One or Count Two in the instant case). Defense counsel asked: "Had you observed Ms. King become intoxicated from alcohol before September 12th, 2008?" The prosecutor objected and the trial justice told defense counsel that he was asking defendant "for a conclusion" and that he needed to refine his question. After a few more questions were posed, the following exchange took place:
Subsequently, defendant testified that, after Ms. King consumed the above-referenced drinks on September 11, 2008, she became "very aggressive," "very controlling," and "would easily get mad about little things."
Defense counsel's questioning eventually moved to the events in March of 2009 that gave rise to the domestic simple assault charge. The defendant testified that he and Ms. King had gone to a "restaurant/bar" across the street from their residence, where Ms. King started arguing with a woman who she believed was "flirting with" defendant. It was defendant's testimony that he left the restaurant and returned to the residence which he shared with Ms. King. He added that she also came back to the residence about five to
Addressing next the events of May 2 and 3, 2009 which gave rise to the felony assault charge, defendant testified that Ms. King had been drinking during the charity event in Boston and became "angry" due to the fact that he talked to two women at the event and exchanged phone numbers with one of them. He testified that, on the drive back to Newport, he and Ms. King stopped at a McDonald's to get some food and that, during a "struggle over the keys," Ms. King bit his thumb. The defendant acknowledged that the next day Ms. King complained of a headache. However, he denied ever hitting Ms. King in the bathroom.
During cross-examination, the prosecutor asked defendant: "And according to your testimony is that [sic] you never laid a hand on Ms. King, right?" The defendant responded to that question in the negative. The prosecutor then asked defendant if he was "not violent," and he replied that he was not violent. The prosecutor then proceeded to question defendant with respect to an "altercation" that he once had with his former wife. The defendant admitted to the altercation with his former wife. Defense counsel seasonably objected to the questions regarding Mr. Ceppi's "altercation" with his former wife and made a "general objection" to any questioning related to any incidents of violence between defendant and his former wife, stating that "there's no [R.I. R. Evid.] 404(b) exception, I believe, that fits into this evidence." Over defense counsel's objection, the trial justice permitted questions about the altercation as long as they did not make reference to observations made by Mr. Ceppi's two children. The prosecutor continued to question defendant regarding any arguments with his former wife which had become physical. In answering those questions, defendant denied kicking or hitting his former wife; he stated: "I never touched her in eighteen years." On redirect, defendant stated that his former wife was charged with assault and battery against him in connection with an altercation that took place on March 10, 2009.
On August 5, 2010, the trial justice issued her bench decision; she found Ms. King to be "candid," "forthright," and "totally
The criminal information charged defendant with one count of "assault and battery upon Heather King resulting in serious bodily injury" and one count of assaulting Ms. King. Attached to the criminal information was a form entitled "CRIMINAL INFORMATION FACE SHEET," which listed the exhibits attached to the criminal information. The list is typewritten except for one notation which is written by hand in blue pen. The list appears in pertinent part as follows (with the handwritten portion being indicated by the use of boldface type):
With the exception of the medical records, all of the exhibits referenced in the above-quoted list were attached to the criminal information. On October 20, 2009, defendant filed a motion to dismiss Count One in the criminal information; his motion invoked Rule 9.1 of the Superior Court Rules of Criminal Procedure
The trial justice conducted a hearing on May 19, 2010, at which the attorneys for both the state and defendant presented arguments; at the end of that hearing, the trial justice rendered a decision from the bench denying defendant's motion. In her thorough decision, the trial justice began by observing that the "threshold to support probable cause is very low" and stating that she must "draw inferences * * * in the light most favorable to the State." She held, with respect to Count Two, that there was "a substantial credibility issue" because the only account of the alleged assault contained in the criminal information package was from Stephanie Bacon, the sister of the complaining witness. However, according to the trial justice, "it is permissible for an information package to include and to rely upon an assessment of probable cause hearsay information from identified or otherwise reliable sources." Accordingly, the trial justice denied defendant's motion to dismiss with respect to Count Two.
Moving on to Count One, the trial justice, relying on this Court's opinion in State v. Clark, 974 A.2d 558 (R.I.2009), stated that this Court has held that "factual matters must be imposed [on] a factfinder who is hearing evidence." She proceeded to deny defendant's motion to dismiss, ruling as follows:
The defendant contends that the trial justice's decision to deny his motion to dismiss was in error.
When confronted with a motion to dismiss a criminal information, the Superior Court is "`required to examine the information and any attached exhibits to determine whether the state has satisfied its burden to establish probable cause * * *.'" State v. Martini, 860 A.2d 689, 691 (R.I.2004) (quoting State v. Fritz, 801 A.2d 679,
When reviewing a decision by a trial justice on a motion to dismiss a criminal information, we determine whether the trial justice's "findings are supported by the evidence or whether, in making those findings, the [trial] justice misconceived or overlooked material evidence." Martini, 860 A.2d at 691 (internal quotation marks omitted); see State v. Ouimette, 415 A.2d 1052, 1053 (R.I.1980). We accord "great weight to a trial justice's probable-cause findings; we will not set them aside `unless they are clearly erroneous or fail to do justice between the parties.'" Reed, 764 A.2d at 146 (quoting State v. Aponte, 649 A.2d 219, 222 (R.I.1994)). However, "we are required to make an independent examination of the record when there is a possibility that the defendant's constitutional rights have been violated."
The defendant posits that this Court should not review a motion to dismiss a criminal information in the same manner in which it reviews a motion to dismiss a grand jury indictment, and he avers that, unlike in cases involving a motion to dismiss a grand jury indictment, the fact that he was ultimately found guilty on both counts charged in the criminal information in the instant case should not render any errors in the criminal information harmless beyond a reasonable doubt. The defendant relies heavily on State v. Aponte, 649 A.2d 219 (R.I.1994) in support of his contention.
In order to properly address defendant's argument, we deem it necessary to discuss the well-established law in this jurisdiction relative to this Court's review of a motion to dismiss a grand jury indictment. We have stated that "dismissal of an indictment on review is an extraordinary sanction" and that, therefore, it is "reserved for very limited and extreme circumstances." State v. Simpson, 658 A.2d 522, 524 (R.I.1995) (internal quotation marks omitted); see State v. Huffman, 68 A.3d 558, 567 (R.I.2013). Very importantly, however, we have repeatedly held that a "conviction by a * * * jury[
The state contends that our case law with respect to the dismissal of a grand jury indictment should also be applied to a motion to dismiss a criminal information. In our judgment, the state's argument in this regard is eminently sensible, and we shall hew to it. If, as is the well-established rule, errors in a grand jury proceeding are rendered harmless beyond a reasonable doubt by a subsequent guilty verdict on the same charge, it follows inexorably that errors in a criminal information should be rendered harmless beyond a reasonable doubt by a subsequent guilty verdict on the same charge. That conclusion seems even more appropriate in light of the fact that a trial justice, ruling on a Rule 9.1 motion to dismiss a criminal information, is performing essentially the same function as a grand jury — namely, assessing whether or not there is probable cause to believe that the defendant committed the crime being charged. We are convinced that, since the same function is being performed in each instance, the same legal principles should be applicable.
Our conclusion is not altered by the case on which defendant relies so heavily, State v. Aponte, 649 A.2d 219 (R.I.1994). Contrary to defendant's contention, Aponte does not stand for the proposition that a defect in a criminal information is not rendered harmless even when there is a subsequent guilty verdict on the same charge following a trial. Id. at 222. In Aponte, the defendant was charged by criminal information with assault with intent to rob and possession of a weapon not a firearm, and eventually he was convicted on both charges after a jury trial. Id. at 221. On appeal, the defendant argued that the trial justice erred by denying his Rule 9.1 motion to dismiss the charge of possession of a weapon not a firearm contained in the criminal information filed against him.
Accordingly, it is our holding that any deficiency that may have existed in the criminal information package (including a lack of medical records) in this case does not rise to the level of an absence of probable cause and was harmless beyond a reasonable doubt — in light of the fact that, following a trial, defendant was eventually found guilty on both counts charged in the criminal information.
The defendant contends that there were a number of evidentiary rulings that were in error at his trial. It is a general rule that "[w]e will not disturb a trial justice's evidentiary ruling without first determining that the ruling constitutes a clear abuse of his or her discretion." State v. Johnson, 13 A.3d 1064, 1066 (R.I.2011); see State v. McManus, 990 A.2d 1229, 1234 (R.I.2010); State v. Reyes, 984 A.2d 606, 614-15 (R.I.2009); see also Votolato v. Merandi, 747 A.2d 455, 460 (R.I.2000) ("[A] court by definition abuses its discretion when it makes an error of law."). Moreover, we "will not disturb the trial justice's ruling unless the abuse of discretion resulted in prejudicial error." State v. St. Michel, 37 A.3d 95, 100 (R.I.2012); see State v. Gabriau, 696 A.2d 290, 294 (R.I.1997).
Bearing in mind our deferential standard of review, we shall address each of defendant's contentions in turn.
The defendant first contends that portions of the testimony of Det. Hayes were both hearsay and impermissible bolstering. Specifically, he argues that it was error on the part of the trial justice not to sustain defense counsel's objection to the testimony of Det. Hayes with respect to what Ms. King's physician told him about her condition and with respect to what Ms. King told him about who was responsible for the injuries she sustained as a result of the assault forming the basis of Count Two.
The state counters that, although the statements by Det. Hayes with respect to what he was told by Ms. King and her physician would "appear to constitute hearsay," their admission was "harmless error at best" because the same information was admitted as a part of Ms. King's testimony and was contained in her medical records, which were entered as an exhibit at trial. The state also points out that the fact that this was a jury-waived trial "substantially diminished" the risk of unfair prejudice. Moreover, the state argues that the testimony of Det. Hayes was clearly not bolstering because he never
We address first the issue of hearsay. It has long been established in this jurisdiction that "the admission of hearsay evidence is not prejudicial when the evidence is merely cumulative and when defendant's guilt is sufficiently established by proper evidence." State v. Lynch, 854 A.2d 1022, 1032 (R.I.2004) (internal quotation marks omitted); see State v. Micheli, 656 A.2d 980, 982 (R.I.1995). We have defined "cumulative evidence as evidence that tends to prove the same point to which other evidence has been offered." State v. Lomba, 37 A.3d 615, 622 n. 7 (R.I.2012) (internal quotation marks omitted). When assessing whether or not a piece of evidence is cumulative, "the test is a retrospective one, administered at the close of all the evidence to determine whether the admission of certain evidence was harmless in light of all the evidence admitted on that point." State v. Robinson, 989 A.2d 965, 979 (R.I.2010).
Our review of the record confirms the state's contention that, even if the testimony of Det. Hayes was hearsay, it was merely cumulative and therefore harmless. Ms. King herself testified with respect to her injuries that resulted from the incident which formed the basis of Count Two and with respect to the fact that defendant was the individual who she alleged inflicted those injuries. Moreover, any testimony by Det. Hayes with respect to the statements of Ms. King's physicians was clearly cumulative since exactly the same information was admitted when Ms. King's medical records were entered as an exhibit. The state is also correct that any potential prejudice would have been "substantially diminished" by the fact that this was a jury-waived trial. State v. Medeiros, 996 A.2d 115, 121 (R.I.2010).
We next turn to the issue of bolstering. Impermissible bolstering occurs typically "when one witness offers an opinion concerning the truthfulness of the testimony of another witness." State v. Hazard, 797 A.2d 448, 470 (R.I.2002) (internal quotation marks omitted). However, impermissible bolstering can also occur "[e]ven when a witness does not literally state an opinion concerning the credibility of another witness but his or her testimony would have the same substantive import." State v. Richardson, 47 A.3d 305, 315 (R.I. 2012) (internal quotation marks omitted). We recognize that a police officer's testimony may be given more credence by some jurors than the testimony of a lay person; however, we are simply unable to detect any reason why the testimony of Det. Hayes in this case could be considered improper bolstering. Detective Hayes merely repeated what was told to him by Ms. King and her physician. He did not make any indication of any kind (even of the most minor variety) with respect to his personal opinion about the veracity of their statements. Thus, we hold that no improper bolstering occurred.
Accordingly, defendant's contentions of error with respect to the testimony of Det. Hayes do not carry the day.
The defendant's next contention is that he was improperly asked a number
The prosecutor then made an offer of proof by presenting a police incident report, and the trial justice ruled on the objection as follows:
The prosecutor proceeded to ask questions with respect to whether defendant had ever "hit" or "kicked" his former wife. The defendant avers that "[t]he prosecutor was in effect accusing [him] of an assault on his former wife, even though the prosecution's offer of proof included a police report which contained an admission by the defendant's former wife that she assaulted the defendant." He posits that the "impermissible implication that [defendant] had engaged in violent conduct with his former wife" was inadmissible under Rule 404(b) of the Rhode Island Rules of Evidence.
In accordance with Rule 404(b), any evidence of "other crimes, wrongs, or acts" committed by defendant was not admissible to prove that defendant had a certain character and acted in accordance with his character (i.e., propensity evidence) when allegedly committing the crimes with which he was charged.
The defendant contends that the trial justice "erroneously refused to allow him to testify that [Ms. King] was under the influence of alcohol" on direct examination.
We note that the trial justice did not in fact exclude all testimony with regard to Ms. King's intoxication on various dates in question; rather, she simply required defendant to testify with respect to what he observed about Ms. King, rather than simply offering a conclusory statement that she was intoxicated. That requirement imposed by the trial justice was consistent with the relevant case law from this Court cited by defendant. See State v. Bruskie, 536 A.2d 522, 524 (R.I.1988); State v. Fogarty, 433 A.2d 972, 975-76 (R.I.1981). In our decision in Fogarty, we held that a lay witness may testify with respect to whether or not someone was intoxicated if the witness "had an opportunity to observe the person and [can provide] the concrete details on which the inference or description is founded." Fogarty, 433 A.2d at 976. The trial justice in the instant case was merely requiring defense counsel to ask about the "concrete details" which formed the basis of his conclusion that Ms. King was intoxicated. Id.; see also State v. Gomes, 604 A.2d 1249, 1258-59 (R.I.1992) (holding that a portion of a deposition which was not read into evidence at trial due to the fact that the trial justice sustained the prosecutor's objection to that portion, in which the witness stated that a certain individual was intoxicated, was properly excluded because the witness failed to provide any concrete "details" on which his determination was based).
Moreover, defense counsel was permitted to continue asking questions about defendant's observations of Ms. King's behavior after she was drinking, and defendant was permitted to testify with respect to Ms. King's behavior when she had been drinking. Therefore, there is no merit to defendant's argument that the trial justice "erroneously refused to allow him to testify that [Ms. King] was under the influence of alcohol."
The defendant objects on appeal to the complaining witness's sister having been permitted to testify that Ms. King had a "brain bleed" because, according to defendant, that statement was hearsay and was "not probative."
Any contention as to Ms. Bacon's testimony constituting hearsay is not properly before this Court since no objection on that basis was articulated before the trial justice.
Thus, we hold that the trial justice did not commit any errors with respect to the evidentiary rulings at trial which would merit reversal.
For the reasons set forth in this opinion, we affirm the Superior Court's judgment of conviction. The record in this case may be remanded to that tribunal.
The second contention is that the cumulative effect of the evidentiary errors supports reversal. Given our conclusion that any evidentiary errors that may have occurred were harmless, we need not address that contention. See Cheaters, Inc. v. United National Insurance Co., 41 A.3d 637, 646 (R.I.2012); see also Furlan v. Farrar, 982 A.2d 581, 585 (R.I.2009).
