Justice ROBINSON, for the Court.
The defendant, Darnell Hie, appeals to this Court from a November 17, 2011 judgment of conviction after a jury found him guilty of two counts of second-degree child molestation sexual assault in violation of G.L.1956 § 11-37-8.3. On appeal, the defendant contends that the trial justice erred in refusing to declare a mistrial and in denying his motion for a new trial. 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 be summarily decided. After a close review of the record and careful consideration of the
For the reasons set forth in this opinion, we affirm the Superior Court's judgment of conviction and its denial of defendant's motion for a new trial.
The complaining witness, Jessica,
On May 21, 2010, a Providence County grand jury indicted defendant on four counts of first-degree child molestation sexual assault in violation of § 11-37-8.1 and ten counts of second-degree child molestation sexual assault in violation of § 11-37-8.3. The charged offenses were alleged to have occurred between September of 2002 and June of 2003. Counts Eight and Fourteen alleged "Penile to Vaginal Penetration;" Counts Five and Eleven alleged "Penile to Anal Penetration;" Counts One, Four, Seven, Ten, and Thirteen alleged "Hand to Vagina;" and Counts Two, Three, Six, Nine, and Twelve alleged "Hand to Breast."
In due course, a jury trial was held over four days in November of 2011. We summarize below the salient aspects of what transpired at that trial.
Jessica testified that, at the time of the assaults, she lived in an apartment on Charles Street in Providence with her mother, her older sister, Adriana, her less than one-year-old half-sister, Daria, and defendant, whom she had known, "[her] whole life." She stated that she shared a bedroom with her sisters and that her mother and defendant slept in another bedroom. At trial, Jessica described five separate incidents that she testified took place over a ten-to-twelve week period, during which defendant came into her room during the night, assaulted her, and left.
Jessica testified that during the first incident (Counts One & Two), defendant "came into [her] room and he laid under the covers with [her] and touched [her] under and over [her] pajamas." She stated that she was awake during this incident, but that she kept her eyes closed
Jessica testified that the second incident (Counts Three, Four & Five) took place approximately two weeks later. She stated that she was sleeping in her bed, lying on her stomach, and awoke to the touch of defendant's hands on her breast and vagina "over and under [her] pajamas." She stated that she opened her eyes this time and, "[t]hrough the corner of [her] eye," saw defendant on top of her. She testified: "At first he was touching me and then he inserted his penis in my rear end."
It was Jessica's testimony that the third incident (Counts Six, Seven & Eight) took place approximately two weeks after the second incident. She stated that she was sleeping in her bed, this time on her back, and awoke to the touch of defendant's hands on her breast and vagina "over and under [her] pajamas." She stated that she opened her eyes and saw defendant on top of her. This time, she further stated, "[defendant] actually inserted his penis inside my vagina."
The fourth incident (Counts Nine, Ten & Eleven), Jessica testified, was similar to the second incident. She stated that she was sleeping in her bed, lying on her stomach, and awoke to the touch of defendant's "rough" hands on her breast and vagina "over and under [her] pajamas." She further stated that, when she opened her eyes, defendant was "on top of [her] with his hands underneath [her] from behind." Then, Jessica stated, defendant penetrated her anally.
During the fifth incident (Counts Twelve, Thirteen & Fourteen) concerning which Jessica testified, she was sleeping in her bed, on her back, and awoke to the touch of defendant's hands on her breast and vagina "over and under [her] pajamas." Then, she stated, defendant "insert[ed] his penis inside my vagina."
Jessica testified that she did not tell anyone about the incidents when they occurred because "[defendant] was still in the house" and "[she] didn't feel safe." On cross-examination, Jessica testified that defendant did not threaten her and never said anything to her during the incidents that she had described. She had testified on direct examination, however, that "[w]hen [she] would see [defendant] around the house," "[h]e would give like little side smiles here and there."
In her testimony, Jessica estimated that each incident lasted "[a]bout 20 to 30 minutes." She stated that each of the incidents occurred while her sisters, Adriana and Daria, were sleeping in the same room. She further stated that she did not "call[] out" to Adriana or to her mother and never told defendant to "stop" or "get away." When Jessica was asked by defense counsel whether she had any type of discharge or blood after the second or third incident, she replied "[n]ot that know of."
Jessica acknowledged in her testimony that six to seven years had passed between defendant's assaults and her reporting about them. During this time, she stated, her mother and defendant "had an okay relationship" but "[t]hey had their ups and downs." She further stated that, although her mother and defendant "broke up and [defendant] left the house for good" in 2007, her mother and defendant continued to see each other. Jessica testified that only when she knew defendant "was gone for good," after her mother filed for divorce, did she feel "safe enough to talk about it."
Jessica testified that, after she revealed to her mother (at the office of the principal
Jessica's mother, Yvonne, testified that she had known defendant since 1994, when she was twenty-four years old; she added that she married him in 1999. Yvonne further testified that, at the time of the assaults, she lived with defendant in an apartment on Charles Street in Providence along with her daughters — Adriana, Jessica, and Daria. Yvonne stated that, since Daria was one month old, she "would * * * spend the night in [Adriana]'s bed a lot of the time."
Yvonne testified that her daughter Adriana told her one morning that "she awoke in the middle of the night and saw [defendant] * * * in their bedroom * * * looking out the window." Yvonne further testified that, when she asked defendant to explain what he had done in the girls' room, "[h]e said he had heard something [and he] wanted to make sure the windows were locked." Yvonne stated that she found defendant's behavior "odd" and that it "kind of upset [her] a little." It was Yvonne's testimony that, after that incident, she installed a lock on Adriana and Jessica's door; she described the lock as being "one of those that you buy at any hardware store and screw it into the wall." She stated that she wanted to put a lock on their door so that "they can lock their door and feel safe at night." Yvonne further stated that she asked her daughters to lock their bedroom door at night.
It was Yvonne's testimony that defendant "didn't understand why there was a lock on the door" and "would say things like what if there was a fire, or what if something happens, how are we going to get to them." Yvonne testified that, a week or two after she installed the lock, defendant "pushed the door in and broke the lock." She summarized as follows defendant's explanation as to why he broke the lock:
Yvonne stated that, when defendant came through the door, no one other than Adriana and Jessica was in the room; she added that they were in bed and that they "jumped up, scared." It was further her testimony that there was never another adult male in the house overnight and that, during the time period in which the assaults occurred, Jessica "seemed nervous all the time."
On cross-examination, Yvonne testified that the first time she heard that defendant was assaulting Jessica was in 2009, when Jessica told her at her school that defendant had "raped [her]." Yvonne added that Jessica never disclosed any further details of what happened to her and that, even at the time of trial, she still had "no idea of what actually happened other than that [Jessica] told [her] that she was raped by [defendant]." It was her testimony that she "explained to [Jessica] what rape was" and Jessica confirmed that she had been raped, stating, "`Yes, he raped me.'" Yvonne reiterated that her daughter had never spoken to her about any details.
At that point, defense counsel objected, but Yvonne proceeded to answer in the negative. A sidebar conference, out of the hearing of the jury, then took place; defense counsel addressed the trial justice as follows: "[T]he witness is totally broken down on the stand. She is crying uncontrollably. It's through no question that I asked her. It's through the prosecutor's redirect." Defense counsel asked the trial justice to pass the case (i.e., declare a mistrial), arguing that the prosecutor "went after" Yvonne "as a total adverse witness against the rules of redirect;" he added that "[t]o have her breakdown [sic] to the point where the jury can feel nothing but sympathy, I think it's prejudicial to my client." The trial justice characterized the prosecutor's questioning as a "very grave error," "totally inappropriate," and "totally improper." He further chastised the prosecutor at sidebar as follows:
Despite his criticism at sidebar of the challenged questions by the prosecutor, the trial justice nonetheless decided not to pass the case; and he denied defense counsel's motion to that effect. Instead, the trial justice provided a curative instruction to the jury as follows:
The following exchange between the trial justice and Yvonne then took place:
The trial justice then further addressed the jury in the following words:
At that point the questioning of Yvonne ceased, and Jessica's sister Adriana was called to the stand.
Adriana, Jessica's older sister, was next called by the prosecution; she stated that she remembered defendant being in the bedroom which she shared with Jessica at the apartment on Charles Street during the night on two occasions. It was her testimony that, on one of those occasions (which she stated that she told her mother about), defendant was "looking out the window, the bedroom window." It was further her testimony that, on the other occasion, she "woke up" and saw defendant "getting out up from [Jessica's] bed;" she added that she pretended to be asleep and that defendant walked over, "sat on the end of [her] bed and then he left the room." Adriana testified that she did not tell her mother about the second incident.
After Adriana's testimony, the prosecution rested, and defendant (after unsuccessfully moving for a judgment of acquittal) likewise rested without calling any witnesses. In the course of giving his final instructions to the jury, the trial justice stated:
After a day of deliberating the jury sent a note to the trial justice stating that it had reached a consensus on "12 of the 14 counts but [was] struggling to come up to a consensus on the other two." After receiving that note from the jury, the trial justice repeated his instructions concerning the issues to which the jury had pointed. That same day, the jury returned a verdict of guilty on two counts of second-degree sexual assault, both of which arose from the first incident about which Jessica
The defendant moved for a new trial, which motion was heard on December 2, 2011. The defendant argued that the jury's verdict was "inconsistent" with the evidence presented at trial. It was his contention that there was "really * * * nothing different between" Jessica's testimony about the first incident of alleged sexual molestation and her testimony about the other incidents. Accordingly, defendant argued that, if the jury found Jessica to be a credible witness, it should have found him guilty on "all counts" and if it did not find her to be a credible witness it should have "acquitted him" on all counts. The defendant also pointed out that the first incident had the least evidentiary support since Jessica testified that she had "her eyes closed" and knew defendant only by his "rough hands." The defendant characterized Jessica's testimony as "robotic;" he added that her description of what had occurred was "done basically without any type of emotion[,] * * * almost in a script * * *."
The trial justice denied defendant's motion. He found Jessica's testimony to be "unemotional" but nevertheless "credible." With respect to Yvonne, the trial justice stated that he found her to be "extremely credible particularly after she was made aware" of the specific allegations against defendant. The trial justice expressed his "surprise" that the jury convicted on only two of fourteen counts, and he found the verdict to be inconsistent. However, he declined to "disturb the finding of guilty on the first two counts." The trial justice stated that the jury "understood the charge, and took their time." He further stated that there could have been "some compromise" among the jurors or that the jury may not have believed that a "child of tender years" could have experienced the type of penetration Jessica described without "cry[ing] out." The trial justice stated that a "reasonable inference[]" could be drawn from Jessica's testimony that the perpetrator of the first incident of sexual assault (Counts One & Two) was defendant because he was the only adult male in the household.
On appeal, defendant contends: (1) that the trial justice erred in failing to grant his motion to pass the case subsequent to the prosecutor's questioning on redirect examination of Yvonne with respect to the details of the assaults that defendant allegedly committed against Jessica (which questioning the trial justice characterized as "totally improper"); and (2) that, in denying defendant's motion for a new trial, the trial justice overlooked and misconceived material evidence and inappropriately relied on Yvonne's emotional response to the prosecutor's questioning on redirect examination, which he had instructed the jury not to consider.
It has been our consistent practice to review the decision of a trial justice
The defendant contends that the trial justice erred in not passing the case after the prosecutor's improper questioning which led to Yvonne's "[e]motional [b]reakdown."
A trial justice, in considering a motion to pass a case, "must determine whether the evidence would cause the jurors to be so inflamed as to make them unable to decide the case on the basis of the evidence presented." State v. Oliveira, 882 A.2d 1097, 1127 (R.I.2005). "If the prejudice is inexpiable, the motion to pass should be granted. If the prejudice can be cured, the instructions which follow must be timely and effective." Hoyle, 122 R.I. at 48, 404 A.2d at 70; see also Disla, 874 A.2d at 198. However, there is no "precise formula" to determine whether any prejudicial taint may have been cured by a cautionary instruction. Oliveira, 882 A.2d at 1127; see also Hoyle, 122 R.I. at 48, 404 A.2d at 70. Therefore, "[e]ach case must be decided on an ad hoc basis and each challenged remark must be viewed in the context in which it appeared and in light of the attendant circumstances." Hoyle, 122 R.I. at 48, 404 A.2d at 70-71. Since the trial justice decided to "utilize a cautionary instruction" in the instant case, "the question before us is whether [the trial justice's] instruction can be fairly said to have removed from [the jurors' minds], when weighing the evidence properly before them, the taint represented" by Yvonne's emotional response to the prosecutor's questions on redirect examination, which questions provided her, for the first time, with the specific details of the assaults to which her daughter was subjected. State v. Brown, 528 A.2d 1098, 1103 (R.I.1987) (internal quotation marks omitted).
We need not, and consequently we do not, make any judgment on the propriety of the prosecutor's questions to Yvonne; if we assume arguendo that those comments were inappropriate, it is nonetheless our conclusion that any prejudice which may have resulted was effectively and efficiently cured by the trial justice's instruction to the jury.
Without any evidence "that the jury was not capable of complying with the trial justice['s] cautionary instruction, this [C]ourt must assume that the jury did disregard the witness [reaction] as it was instructed to do." Disla, 874 A.2d at 198 (internal quotation marks omitted); see also Mendoza, 889 A.2d at 159. Unquestionably, "the entire rationale underlying the structure of jury trials and the lyrical deference that is paid to jury findings rests upon the proposition that jurors will obey the admonitions of the trial justice and will apply the law as given to them by
It is worth noting that the curative instruction given by the trial justice clearly and thoroughly explained to the jury that it was not to allow any sympathy which it might have for Yvonne to affect its determination as to her credibility or the credibility of the other witnesses. (We also note approvingly that the trial justice included a substantially similar instruction in his final charge to the jury.) He even reminded the jury that the case rose and fell "on the testimony of the young complaining witness." The trial justice also gave the instruction in a timely manner, immediately after the questioning at issue. See Hoyle, 122 R.I. at 48, 404 A.2d at 71. Moreover, we note that, despite Yvonne's emotional response to the questioning on redirect examination, the jury nonetheless found defendant not guilty on twelve out of the fourteen counts against him. Lastly, it is worth remarking that the information which formed the basis of the prosecutor's questions was simply cumulative to other testimony at trial, and thus it was not a situation where the jury was exposed to additional, prejudicial information.
In our judgment, after reviewing the record, considering the context in which Yvonne's emotional response was elicited, and the trial justice's curative instruction, there is no reason to believe that the jury in the instant case was not able to make an objective evaluation of the evidence against Mr. Hie. See Oliveira, 882 A.2d at 1127; Hoyle, 122 R.I. at 48, 404 A.2d at 70-71. Accordingly, we hold that the trial justice did not abuse his discretion when he denied defendant's motion to pass the case.
When ruling on a motion for a new trial, the trial justice "acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence." State v. Barrios, 88 A.3d 1123, 1128 (R.I.2014) (internal quotation marks omitted); see also State v. Baker, 79 A.3d 1267, 1273 (R.I.2013); State v. Paola, 59 A.3d 99, 104 (R.I.2013); State v. Guerra, 12 A.3d 759, 765 (R.I.2011). In fulfilling his or her role as the thirteenth juror and passing on a motion for a new trial, "the trial justice must (1) consider the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and the weight of the evidence, and then (3) determine whether he or she would have reached a result different from that reached by the jury." State v. Silva, 84 A.3d 411, 416 (R.I.2014) (internal quotation marks omitted); see also State v. Mitchell, 80 A.3d 19, 30 (R.I.2013); State v. Espinal, 943 A.2d 1052, 1058 (R.I.2008); State v. Morales, 895 A.2d 114, 121 (R.I.2006). If, after carrying out this three-step analytical process, "the trial justice agrees with the jury's verdict or determines that reasonable minds could differ, then the analysis
With respect to a trial justice's ruling on a motion for a new trial, we have stated that the "record should reflect a few sentences of the justice's reasoning on each point." State v. DiCarlo, 987 A.2d 867, 870 (R.I.2010) (internal quotation marks omitted); see also Silva, 84 A.3d at 417. Nonetheless, we have also stated that, in providing the rationale for his or her decision, a trial justice does not need to "refer to all the evidence supporting the decision; rather, he or she need only cite evidence sufficient to allow this [C]ourt to discern whether the justice has applied the appropriate standards." State v. Robat, 49 A.3d 58, 71 (R.I.2012) (emphasis in original) (internal quotation marks omitted); see also DiCarlo, 987 A.2d at 870.
We accord "great weight to a trial justice's ruling on a motion for a new trial if he or she has articulated sufficient reasoning in support of the ruling." Robat, 49 A.3d at 71 (internal quotation marks omitted); see Espinal, 943 A.2d at 1058; see also State v. Day, 925 A.2d 962, 983-84 (R.I.2007). Accordingly, we will not disturb a trial justice's decision with respect to a motion for a new trial "unless we determine that the trial justice committed clear error or that he or she overlooked or misconceived material and relevant evidence [relating] to a critical issue in the case." DiCarlo, 987 A.2d at 871 (internal quotation marks omitted); see State v. Payette, 38 A.3d 1120, 1127 (R.I. 2012); see also Harrison, 66 A.3d at 445. When conducting a review of a denial of a motion for a new trial, "we do not focus on whether this Court simply agrees or disagrees with the trial justice's credibility determinations," but rather we are "deferential to those determinations;" and "we will not overturn that decision unless the trial justice has overlooked or misconceived material evidence or was otherwise clearly wrong." State v. Clay, 79 A.3d 832, 842 (R.I.2013) (internal quotation marks omitted); see also Gonzalez, 56 A.3d at 104; Bunnell, 47 A.3d at 232-33. We have repeatedly noted that "[t]his Court affords a great deal of respect to the factual determinations and credibility assessments made by the judicial officer who has actually observed the human drama that is part and parcel of every trial and who has had an opportunity to appraise witness demeanor and to take into account other realities that cannot be grasped from a reading of a cold record." Paola, 59 A.3d at 106 (internal quotation marks omitted); see Barrios, 88 A.3d at 1130; see also DiCarlo, 987 A.2d at 872.
The defendant contends that, in denying his motion for a new trial, "the trial justice overlooked and misconceived material evidence which established doubt that [defendant] was the perpetrator of two counts of second degree child molestation." Specifically, he claims that the close quarters in Jessica's bedroom coupled with the fact that Jessica testified that she never cried out, the fact that her sisters never awoke at any point when Jessica was being assaulted, and the fact that Jessica never opened her eyes, calls "into question the
The defendant also contends that, in denying his motion for a new trial, the trial justice improperly relied upon "deeply prejudicial testimony that he ordered stricken from the record." The defendant refers to the emotional response of Yvonne to the prosecutor's questions on redirect examination, which questions disclosed the details of Jessica's assaults to her mother for the first time. It is defendant's contention that, if "an experienced, impartial jurist like [the trial justice] was so influenced by [Yvonne's] emotional outburst that he did not follow his own cautionary instruction to the jury * * * it only follows that [Yvonne's] reaction produced both passion and prejudice against [defendant] for those that observed her courtroom tears."
The state avers that defendant's argument is flawed given that it "overlooks the great weight accorded to the trial justice's ruling;" it further contends that, by finding Jessica credible, the trial justice "articulated adequate reasoning to uphold the jury's verdict and any consideration of the testimony of [Yvonne] was superfluous to the ruling."
The trial justice in the instant case properly followed the required three-step analysis in ruling on defendant's motion for a new trial. First, he considered the evidence in light of the jury charge; the trial justice addressed with specificity the multiple incidents of sexual assault alleged by Jessica, and he noted that Adriana's testimony "corroborated" Jessica's testimony. He further considered Yvonne's testimony with respect to the fact that she installed a lock on Jessica and Adriana's bedroom, and he stated that "the inference was she was somewhat suspicious of defendant as the girls got older * * *." In ruling on defendant's motion for a new trial, the trial justice considered the testimony of every witness who testified at trial. He also commented on the evidence in light of the jury charge on sexual assault. See Silva, 84 A.3d at 416.
Next, the trial justice properly weighed the evidence and addressed the credibility of the witnesses. See id. After explicitly recognizing that he had to conduct his own independent review of the evidence, the trial justice discussed Jessica's testimony. He began by noting that she was "very unemotional" and "fairly monotone;" but he added that he did not find that "totally unusual in cases like [the one before him]." He noted that, when Jessica testified regarding the assault for which defendant was convicted, she stated that she had her eyes closed but that she had felt "rough hands;" the trial justice added that a "reasonable inference" could be drawn from that testimony that defendant "perpetrated these crimes against her," because "[h]e was the only adult in the building, living there" and Jessica "knew he was living there" and "had rough hands." The trial justice concluded that Jessica was a "credible witness" and stated:
The trial justice proceeded to find Adriana to be "credible" and Yvonne to be "extremely
With relation to the third step in his analysis, the trial justice remarked that he was "surprised" by the verdict. However, he stated that there potentially might have been "some compromise" among the jurors. The trial justice concluded as follows:
Thus, it is clear that, after properly assessing the evidence and weighing the credibility of the witnesses, the trial justice concluded that he could not "disagree with the [jury's] verdict." As such, his "analysis [was] complete," and he denied defendant's motion for a new trial. Harrison, 66 A.3d at 445. We perceive no error in the trial justice's progression through the three required steps or in his conclusion that he could not "disagree with the verdict."
The defendant contends that the trial justice did not properly take into account the fact that, as defendant states, the verdicts were "inconsistent." However, the trial justice clearly addressed defendant's argument that the verdicts were inconsistent; he stated that they were in fact "inconsistent." See State v. Staffier, 21 A.3d 287, 291 (R.I.2011). But he went on to state that Jessica was a credible witness and that it is possible that the jury compromised in finding defendant guilty on two of the fourteen counts. See id. at 292 ("We also recognize that in cases in which juries reach inconsistent verdicts on different counts of the same information, the jury may reach compromises through a variety of motivations, including leniency."). Consequently, we are satisfied that the trial justice properly took into account the fact that the verdicts in this case could be characterized as inconsistent.
Finally, defendant takes issue with the trial justice's reference to Yvonne's emotional response to the questions regarding the specifics of Jessica's sexual assault. In denying defendant's motion for a new trial, the trial justice stated: "I thought the mother was extremely credible particularly after she was made aware of what the nature of the allegations was which apparently heretofore [she] had not been aware of." While it is true that the trial justice instructed the jury not to let sympathy affect their assessment of Yvonne's testimony, he did not instruct the jury to utterly disregard her reaction. He expressly stated:
In our view, in denying defendant's motion for a new trial, it would have been preferable for the trial justice to pass over in silence Yvonne's emotional breakdown on the witness stand; but there is nothing in the trial justice's comments that would
Accordingly, in our judgment, the trial justice did not misconceive or overlook material testimony and did not otherwise commit clear error in denying the defendant's motion for a new trial.
For the reasons set forth in this opinion, we affirm the Superior Court's judgment of conviction and its denial of the defendant's motion for a new trial. The record in this case may be returned to that tribunal.
Justice INDEGLIA did not participate.
Accordingly, in the instant case, since defendant has been unable to establish that the trial justice erred in denying his motion for a new trial, it follows a fortiori that he cannot establish that the trial justice erred in denying his motion for judgment of acquittal.
