State v. Merced

933 A.2d 172, 2007 R.I. LEXIS 99, 2007 WL 3101968
CourtSupreme Court of Rhode Island
DecidedOctober 25, 2007
Docket2006-262-C.A.
StatusPublished
Cited by8 cases

This text of 933 A.2d 172 (State v. Merced) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Merced, 933 A.2d 172, 2007 R.I. LEXIS 99, 2007 WL 3101968 (R.I. 2007).

Opinion

OPINION

Chief Justice WILLIAMS,

for the Court.

The defendant, Armando Merced (defendant), appeals from a Superior Court judgment of conviction on one count of first-degree child molestation sexual assault, in violation of G.L.1956 §§ 11-37-8.1 and 11-37-8.2, and two counts of second-degree child molestation sexual assault, in violation of §§ 11-37-8.3 and 11-37-8.4. This case came before the Supreme Court for oral argument on September 25, 2007, 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 hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that this appeal may be decided at this time. For the reasons hereinafter set forth, we affirm the judgment of the Superior Court.

I

Facts and Travel

The defendant was convicted of first- and second-degree child molestation against Molly, 1 his then ten-year-old granddaughter, after a jury trial in Providence County Superior Court. At trial Molly alleged that defendant’s abusive conduct toward her increased over a period spanning a little more than one month in the spring of 2004. Because Molly was unable to walk to school due to a leg injury, defendant, who did not five with her, began driving her to school. It was during these rides that Molly alleges defendant first “tried to touch” her. In all, Molly testified that there were about fifteen such incidents in April 2004.

Molly testified that at the end of April 2004, the month-long pattern of abuse by defendant culminated in the most serious instance of abuse. Molly arrived at home on the day of the incident to find herself alone, and decided to go across the street to buy a soda. According to her testimony, her grandfather grabbed her on the way to the market and took her into her sister’s house. Molly testified that once they were inside the house, her grandfather held her down on a bed and “took out his private and tried to put it on my butt.” Later, she testified that her grandfather’s private “[w]ent in the butt.” Molly also testified that, before she could leave, “he had threatened that if I had told anyone, that he would kill my mom and my sister.” She testified that defendant continued touching her in the car for a period thereafter, but that she was not sure how many times or for how long. Finally, on Mother’s Day of 2004, Molly told her mother and sister that she had been molested by her grandfather.

In addition to Molly’s testimony, testimony was elicited at trial from Molly’s sister and Christine Barron, M.D. (Dr. Barron), the doctor who treated her at *174 Hasboro Children’s Hospital. Doctor Barron testified that she examined Molly and took an extensive history in May 2004. Doctor Barron testified without objection that her conclusion after the examination was that “Molly was a ten-year-old who displayed a very clear disclosure of sexual abuse.”

The defendant chose not to present a case. At the close of the state’s testimony defendant’s motion for judgment of acquittal was denied, though the state agreed to reduce the second count concerning digital anal penetration from first- to second-degree child molestation. The first count remained first-degree child molestation. On December 1, 2005, after deliberating for a little more than two hours, a jury returned a verdict of guilty on all three counts. The defendant was sentenced to twenty years imprisonment, with fifteen to serve on the count of first-degree child molestation and ten years, with eight to serve on both counts of second-degree child molestation. All sentences were to run concurrently. The defendant timely appealed to this Court.

II

Analysis

On appeal, defendant alleges two errors. First, he alleges that the trial justice erred by allowing certain testimony of Dr. Barron that he claims improperly bolstered Molly’s testimony. Second, he alleges that the trial justice abused her discretion by allowing the state to ask Molly a number of leading questions during redirect examination regarding whether penetration occurred. We address each issue in turn.

A

Improper Bolstering

In response to defendant’s argument that the trial justice erred by allowing Dr. Barron to give improper bolstering testimony, the state asserts that defendant’s failure to object to this testimony at trial waived the issue on appeal.

“[Ajllegations of error committed at trial are considered waived if they were not effectively raised at trial, despite their articulation at the appellate level.” State v. Toole, 640 A.2d 965, 973 (R.I.1994). In other words, alleged errors “not specifically objected to at trial-that is, by an objection that is ‘sufficiently focused so as to call the trial justice’s attention to the basis for said objection’ — are not preserved for consideration by this court on appeal.” State v. Brown, 709 A.2d 465, 477 (R.I.1998) (quoting Toole, 640 A.2d at 972); see also State v. Farr, 29 R.I. 72, 79, 69 A. 5, 8 (1908). Our thorough examination of the record reveals that the defense did not object to Dr. Barron’s testimony on grounds that it was improper bolstering. We therefore conclude that defendant’s argument on this issue is not properly before this Court. See Brown, 709 A.2d at 477. 2

B

Leading Questions

The defendant next argues that the trial justice abused her discretion by allowing the state to ask a short series of *175 leading questions on redirect examination about whether anal penetration occurred during the incident in Molly’s sister’s apartment. 3 The defendant argues that this series of questions elicited an inconsistent response that the prosecution should not have been allowed to use in its case-in-chief.

“Although a trial justice must act judiciously when making rulings during examination of witnesses at trial, the justice is afforded considerable latitude, and we review such rulings with deference, overturning them only when there has been an abuse of discretion or substantial injury to a defendant.” State v. Boillard, 789 A.2d 881, 886 (R.I.2002). Furthermore, we will consider the entire colloquy and the full context of the state’s examination in making our determination. Id. at 886-87.

A leading question is one that suggests the desired answer. Boillard, 789 A.2d at 887. While leading questions are generally disallowed during direct examination because such questions may elicit the desired response “irrespective of actual memory,” State v. Girouard, 561 A.2d 882

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Cite This Page — Counsel Stack

Bluebook (online)
933 A.2d 172, 2007 R.I. LEXIS 99, 2007 WL 3101968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-merced-ri-2007.