Providence
County Superior Court P1/14-2044A Luis M. Matos Associate
Justice.
For
State: Owen Murphy Department of Attorney General
For
Defendant: Lara E. Montecalvo Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
Francis X. Flaherty Associate Justice.
The
defendant, Ernest Sabourin, appeals from a judgment of
conviction after a jury found him guilty on two counts of
first-degree sexual assault. The defendant had been accused
by a woman, both of whom believed was his daughter,
[1] of sexually assaulting her at a time
when she was too intoxicated to resist. The trial justice
sentenced the defendant to twenty-five years on the first
count and twenty-five years on the second count, to run
concurrently with the first count. On appeal, the defendant
argues that the state has failed to meet its burden of
demonstrating, by clear and convincing evidence, that he
knowingly, intelligently, and voluntarily waived his
constitutional rights under Miranda v. Arizona, 384
U.S. 436 (1966), and that he thereafter made voluntary
statements. After careful consideration of the
defendant's arguments and a thorough review of the
record, we affirm the judgment of conviction.
I
Facts
and Travel
The
Incident
On the
evening of April 5, 2014, the complaining witness left
defendant's apartment to attend a party with
defendant's grandson. She had already been drinking when
she left the apartment. At the party, she consumed more
alcohol but she could not recall how many drinks she
consumed. By the time she left the party, she was stumbling
and, according to her testimony, was "pretty
drunk." She was driven back to defendant's
apartment. Upon her entry into the apartment, she went
straight for the couch.
According
to the complaining witness, defendant approached her while
she was on the couch and began to remove articles of clothing
from her body and touch her everywhere. She kept saying
"no" and telling him to "stop." She
testified that defendant then dragged her into his bedroom.
Once she was on the bed, defendant removed her jeans and her
underwear. At this point, she remembered defendant
penetrating her with his fingers. She felt his mouth and
tongue on her vaginal area. She testified that she wanted it
all to stop but because of the alcohol in her system she was
unable to move.
The
next morning, one of defendant's sons drove the
complaining witness to her mother's house. She told her
mother what had happened to her the night before. The
defendant's son later returned to bring her to the
Central Falls police station. The woman gave the police a
statement and she was brought to the hospital. The
defendant's son also spoke to the police.
The
Visit to Defendant's Apartment
After
speaking to both witnesses, a lead detective, accompanied by
another detective, went to defendant's apartment. They
were clad in civilian clothing and drove an unmarked police
vehicle.[2]
The
defendant resided on the second floor of a three-family
house. The detectives entered through the unlocked common
entryway of the house and walked up the stairs leading to the
second floor. When they reached the second floor, they
knocked on defendant's door.
When
defendant asked who was at the door, the detectives informed
him that it was the police. The defendant opened the door and
said, "I knew you guys were coming. I don't want to
go through this again." One of the detectives testified
that she believed that defendant was "basically inviting
[them] in" because he opened the door and stood back,
and, as the detectives stepped forward, he did not say
"stop." In response to defendant's statements,
one of the detectives asked him, "What do you mean by
that?" The defendant responded, "[the complaining
witness] was here last night, she was drunk, she kept taking
her clothes off, I had to make her go in my bedroom."
One of
the detectives then asked him if he would give them consent
to search his apartment. The detective testified that, as he
was trying to read the consent-to-search form to him,
defendant was continuously talking over him, trying to
explain what had occurred the night before. He kept repeating
the same story that "[the complaining witness] came to
[his] house drunk * * * [and] kept taking her clothes
off." Significantly, one of the detectives instructed
him not to say anything further. The detectives then
testified that neither of them was yelling at defendant; he
was not handcuffed, nor was he told he was under arrest. The
defendant ultimately signed the consent-to-search form.
After
signing the form, defendant asked the detectives what they
were searching for. When one of the detectives indicated that
they were going to seize the bedsheets, defendant said that
they "were not going to like what [they] found on the
sheets." The detective then asked him, "What do you
mean?" The defendant answered that the complaining
witness "was in the bedroom and had been playing with
herself."
After
seizing the bedsheets, the detectives asked defendant if he
would accompany them to the police station. He responded that
he would but that he first wanted to comb his hair. The
detectives allowed him to comb his hair in the bathroom;
neither of the detectives accompanied him there but the
bathroom door remained open. After all three of them left the
apartment, the uniformed police officer, who had remained
outside the apartment, took defendant into custody.
Once at
the police station, the lead detective asked defendant if he
would speak to her, and he agreed. At this point, defendant
was informed of his Miranda rights.[3] He initialed on the form after each of his
rights was read to him. Notably, however, defendant checked
off "no" for the part that read, "I understand
my rights." The detective, however, believed that the
"no" was applicable to the statement that came
right before that statement and read, "The police have
made no threats or promises to me." Nonetheless, she
testified that she asked him several times whether he
understood his rights; each time he indicated that he did.
The defendant subsequently agreed to give a statement.
His
statement was typed up by the detective and was reviewed with
defendant, both on the computer screen and again after it was
printed. After he read each of his responses, he initialed
each one to indicate that he read and understood it. In
addition to imparting his initials, defendant signed the
bottom of the page.
In July
2014, a grand jury indicted defendant on five counts: one
count of engaging in sexual penetration, to wit,
digital/vaginal penetration, knowing or having reason to know
that the victim was physically helpless (count 1), in
violation of G.L. 1956 § 11-37-2; one count of engaging
in sexual penetration, to wit, cunnilingus, knowing or having
reason to know that the victim was physically helpless (count
2), in violation of § 11-37-2; one count of engaging in
sexual contact, to wit, mouth to breast, knowing or having
reason to know that the ...