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State v. Austin

Supreme Court of Rhode Island

May 1, 2015

Robert Austin

Page 88

Appeal from Providence County Superior Court. (P2/11-160-A). Associate Justice William E. Carnes, Jr.

For State: Jane M. McSoley, Department of Attorney General.

For Defendant: Lara E. Montecalvo, Office of the Public Defender.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


Page 89

Gilbert V. Indeglia, Justice.

Robert Austin (Austin or defendant) appeals from a Superior Court judgment of conviction after a jury verdict finding him guilty of one count of second-degree sexual assault. On April 2, 2015, this case came before the Supreme Court for oral argument, sitting at Rhode Island College in the City of Providence, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be decided without further briefing and argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Travel

Sometime around 1 p.m. on November 29, 2010, the complaining witness, Laura

Page 90

(complainant or Laura),[1] boarded the Rhode Island Public Transit Authority (RIPTA) Route 60 bus in Kennedy Plaza in Providence. Identified as number 0545, the bus was to head south along Route 114, passing through Barrington on its way to Newport. Laura selected a driver's side window seat toward the back of the bus. A man carrying a black duffel bag sat down in the seat next to her and unsuccessfully attempted to start a conversation.

As the bus approached the white church in Barrington,[2] the man put his hand between Laura's legs and grabbed her vaginal area over her clothes. Despite Laura's attempts to push his hand away and her order to " stop," the man continued to grab her in the same area. When she turned to look at the man, she observed tat he was emotionless. After failing to receive help from fellow passengers, Laura informed the man that the bus was approaching her stop and that she needed to get off the bus. The man turned away from her, moved his duffel bag out of the way, and permitted her to reach the aisle. After her complaint was ignored by the bus driver, she sat down in the front aisle-facing seat. She observed the man ducking behind the back of a seat in order to avoid detection, and she made notes recording the details of the incident, including the bus and route number, as well as the time of day and a description of the man. Soon afterward, at another Barrington stop, the man got off the bus from the front door, hiding his face behind his jacket as he passed Laura, who was still seated.

Laura got off at a stop in Bristol, where she went directly to the Bristol police station to report the incident. Once there, the Bristol police drove her to the Barrington police station, where she spoke with Detective Benjamin Ferreira (Det. Ferreira). Laura described her assailant as a white male over six feet tall and weighing approximately 230 pounds. She noted that he was clean shaven, had short grayish-brown hair, carried a black duffel bag, and wore a gray sweatsuit as well as a purple and yellow sports jacket.[3] Finally, she stated that her assailant was somewhere between the ages of thirty and fifty.

After Laura left the station, Det. Ferreira sent out a department-wide BOLO[4] with a description of the assailant. As a result, on November 30, 2010, Patrolman Mark Haddigan detained a man wearing a purple and yellow Minnesota Vikings jacket on Maple Avenue in Barrington. That man, whom we will refer to only as " McGill," was informed of the sexual assault involving Laura the previous day and voluntarily accompanied officers back to the police station, where he produced a RIPTA bus pass and agreed to be photographed. He was released shortly thereafter.

On December 1, 2010, while sitting in a park-and-ride adjacent to the white

Page 91

church, Patrolman Michael Gregorezek (Ptlm. Gregorezek) observed another man fitting Laura's general description waiting for a RIPTA bus. The man, identified as Robert Austin, was wearing a gray sweatsuit and a purple and yellow Vikings jacket; he was also carrying a black duffel bag. When asked if he was willing to go to the station and answer questions, Austin cooperated. At the station, Det. Ferreira asked Austin whether he had traveled through Barrington on a RIPTA bus on November 29, 2010, to which he replied that he had not. Austin admitted that he had boarded a bus that day, but that the bus he was on was headed to Warwick. He further informed the police that he was the only person in possession of his bus pass. When the officers asked for his bus pass, he complied and was allowed to leave the station.

Detective Ferreira then transferred the serial numbers from the bus passes of Austin and McGill to RIPTA Assistant General Manager, James Dean (Dean). As Dean explained to the jury at trial, a scan of the serial numbers revealed no activity on McGill's pass on November 29. A scan of Austin's pass, however, showed that it was used twice on that date during the relevant time period, once at 12:59 p.m. to board a Route 30 bus to Warwick, and again at 1:06 p.m. to board a Route 60 bus to Newport.[5] The number of the bus running Route 60 at that time was 0545, matching the number recorded in Laura's notes.

Later on December 1, 2010, Det. Ferreira telephoned Laura and arranged for her to view a photo array at the Bristol police station. The array consisted of seven photographs, which she was shown in sequential order after reading and initialing the Barrington police department procedure on how to view a photo array. The instructions noted that the array " may or may not contain a picture of the person who committed the crime." Photograph No. 1 was of McGill, photograph No. 3 was of Austin, and the remaining five photographs were taken from the Adult Correctional Institutions WINFACTS computer database.[6] Detective Ferreira compiled the list by entering genetic search parameters including gender, age, and weight. He did not include photographs of any bald or mustached men, nor any non-Caucasian men. Both McGill and Austin were fifty-one years old as of the date of the photographs, and the remaining men in the array were aged thirty through forty-two years old.

Laura went through all seven photographs at the station, explaining later at trial that she did not " want to send an innocent person to jail." On completion, she asked to again view photographs No. 1 and No. 3 and to be shown side-view photographs of these two men. After viewing the side-view photographs of McGill and Austin, Laura immediately identified No. 3, Austin, as " the person who assaulted her on the RIPTA bus." Confident in her selection, she later testified that the side-view profile photograph of Austin brought his chin and fuller face into focus, and that " [r]ight away [she] knew which ...

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