Providence County Superior Court (P1/14-403A) Associate
Justice Stephen P. Nugent
State: Aaron L. Weisman Department of Attorney General
Defendant: Angela M. Yingling Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Gilbert V. Indeglia, Associate Justice.
jury indicted Andre Marizan (Marizan or defendant) on
February 14, 2014 on two counts of first-degree sexual
assault in violation of G.L. 1956 §§ 11-37-2(1) and
11-37-3. After a jury trial in Providence County
Superior Court, the defendant was convicted on January 23,
2015. On appeal, the defendant argues that the
prosecutor's closing argument improperly commented on the
defendant's failure to testify, thereby violating his
Fifth Amendment constitutional rights. Additionally, the
defendant contends that the trial justice erred in admitting
the defendant's photograph into evidence and also by
denying his motion for new trial. For the reasons set forth
herein, we affirm the judgment of the Superior Court.
complaining witness, Alicia,  testified at trial. She recalled
that, on August 18, 2012, after a night of drinking with
friends, she woke up next to one of her sister's friends,
Marizan. The previous day, Alicia and her sister, Lauren, had
gone to a South County beach for a few hours. While there,
they consumed Hennessy liquor; and, when the beach closed, they
went to Lauren's ex-boyfriend's house in Providence
and continued drinking there with a group of Lauren's
8:00 p.m., Alicia, Lauren, defendant, and another friend
drove to a clothing store in the Olneyville section of
Providence. After shopping, the group went to a liquor store
and also picked up some food before returning to the house to
join the others. The group of six friends continued drinking
well into the night, and Alicia testified that she had
planned to sleep at the house.
party eventually moved from the living room to a bedroom. At
some point after 11:00 p.m. but before 3:00 a.m., the group
purchased alcohol from a bootlegger. After smoking marijuana and
continuing to drink alcohol, Alicia testified that she
vomited and later "passed out" on the bed in the
Alicia woke up around 7:00 a.m., she testified that she was
not wearing pants or underwear, and she recalled that she
also felt a wet substance on her leg. She saw defendant at the
corner of the bed and subsequently began "flipping
out" on him. Alicia stated that defendant told her she
was "bugging" and nothing happened between
them—he said that the substance on her leg was urine.
Alicia said that defendant told her she had removed her
clothing after urinating on herself.
went to the living room, where her sister and a couple of
friends were sitting. Lauren assisted in finding Alicia's
clothes. Alicia—who had been a professional
boxer— testified that, before she put her clothes back
on, she attempted to attack defendant, but was stopped by the
friend who lived there. Alicia remembered leaving the house
with her sister, who drove her to Women & Infants
Hospital in Providence, where a sexual-assault examination
trial, Lauren also testified. She recalled that, a little
after 3:00 a.m., she and a few of the friends present that
evening had played the prank on Alicia and defendant while
they were sleeping, and one person had recorded it on
Lauren's cell phone. In the video, three individuals are
visible: Lauren, Alicia—who appeared to be passed
out—and a third person, whom Lauren identified as
defendant. Lauren recalled that, after the video was taken,
defendant got out of bed and went to the bathroom to wash his
testified that, when defendant returned to the bedroom, she
and two of her friends went back to the living room. Lauren
recalled that, after about ten to fifteen minutes, one of her
friends attempted to open the bedroom door, but it was
locked. When the friend finally found the key to the room,
Lauren remembered, she went into the bedroom and found Alicia
without her pants on and still asleep. Lauren testified that
she observed defendant wearing only boxer shorts, although he
had "regular" shorts on earlier in the night.
stated that, even though she was concerned at that point, she
left the room and stayed in the living room until around 6:00
a.m., when she left the house to go to a restaurant with her
friends for something to eat. After about thirty minutes to
an hour at the restaurant, she returned to the apartment and
woke Alicia. At this point, Lauren testified, Alicia started
attacking Marizan, and Lauren heard Marizan tell Alicia that
she had urinated in a cup and that "nothing
happened." Soon after, Marizan left, and Lauren and
Alicia went to the hospital.
Corrado was the nurse in the emergency room at Women &
Infants Hospital in Providence that day. Corrado testified
that she performed a sexual-assault exam on Alicia. She
recalled that Alicia had told her that she had showered but
was wearing the same clothes she had been wearing the night
before. Corrado used swabs to take samples from Alicia's
body. She did not find any injuries on her body. Corrado
notified the police on Alicia's behalf.
trial, Detective Joseph Villella testified that he responded
to a house in Providence to investigate a suspected sexual
assault. Detective Villella collected the bedding from the
scene for testing at the Rhode Island Department of Health.
Detective William Corrigan also testified regarding his
involvement in the case and recalled taking formal statements
from both Alicia and Lauren on August 21, 2012. When she gave
her statement at the police station, Alicia also identified
defendant from a "mug shot" shown to her. A few months
later, on October 12, 2012, Det. Corrigan received
Marizan's consent to take a buccal swab of his mouth.
Det. Corrigan did not obtain an arrest warrant until January
2013, and Marizan was not arrested until August 2013.
Moreover, Det. Corrigan testified that he had not taken
witness statements from three men who were at the house
during the evening of the alleged assault because Alicia
warned him that the men were defendant's friends and
would not cooperate.
trial, Cara Lupino, the supervisor of the Rhode Island
Department of Health Forensic DNA Laboratory, also testified
for the state. She explained that the only swab from the
sexual-assault examination performed on Alicia at the
hospital that tested positive for seminal fluid was the
vaginal swab. However, Lupino noted that the seminal fluid
did not contain any sperm cells. She also testified that the
department received the bedding from the Providence police,
and the laboratory tested what was determined to be a
bloodstain on a bed sheet for DNA; she concluded that the
blood came from a male donor.
addition, Lupino testified that the laboratory used reference
samples from the buccal swab of Marizan and from Alicia's
sexual-assault examination. Lupino explained that, in
December 2012, the DNA test done on the vaginal swab did not
reveal whether the small amount of seminal fluid on the swab
was consistent with defendant's DNA profile.
Subsequently, however, the laboratory acquired the capability
to perform Y-STR testing, which Lupino considered an
effective method for this case due to the lack of sperm in
the seminal fluid sample and the overwhelming amount of
female cells on the vaginal swab. After the testing was
conducted, Lupino testified, the results showed that the
Y-STR DNA profile from the vaginal swab was consistent with
Marizan's Y-STR DNA profile.
closing arguments, defendant moved for a mistrial, arguing
that one of the prosecutor's comments violated his Fifth
Amendment right to not testify. The trial justice reserved
decision on the motion for a mistrial. After the trial
justice gave general instructions, the jury deliberated,
returning with a guilty verdict. Immediately following the
verdict, the trial justice denied defendant's motion for
defendant then moved for a new trial. The trial justice
denied the motion and sentenced defendant to forty years,
with twenty-five years to serve and fifteen years suspended
with probation. He was also required to register as a sex
offender and obtain counseling. The defendant timely appealed
to this Court.
the various issues raised on appeal, we outline the standard
of review for each issue in turn.
when this Court reviews a trial justice's ruling on a
motion for a mistrial, we afford the decision "great
weight" and reverse only "if it was clearly
wrong." State v. Fry, 130 A.3d 812, 828 (R.I.
2016) (quoting State v. Tucker, 111 A.3d 376, 388
(R.I. 2015)). We acknowledge that a trial justice "has a
'front row seat, ' allowing him or her to 'best
determine the effect of the improvident remarks upon the
jury.'" State v. McRae, 31 A.3d 785, 789
(R.I. 2011) (quoting State v. Tempest, 651 A.2d
1198, 1207 (R.I. 1995)). As such, when a trial justice rules
on a motion for a mistrial, he or she "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. Enos, 21 A.3d
326, 332 (R.I. 2011) (quoting State v. Luciano, 739
A.2d 222, 228 (R.I. 1999)). However, "with respect to
questions of law and mixed questions of law and fact
involving constitutional issues, " we employ a de
novo review. State v. Snell, 892 A.2d 108, 115
rulings, on the other hand, are reviewed for abuse of
discretion. State v. Whitfield, 93 A.3d 1011, 1016
(R.I. 2014). Moreover, we "will not disturb the trial
justice's ruling unless the abuse of discretion resulted
in prejudicial error." State v. Moore, 154 A.3d
472, 481 (R.I. 2017) (quoting State v. Williams, 137
A.3d 682, 686 (R.I. 2016)).
respect to the motion for new trial, this Court "give[s]
'great weight' to a trial justice's ruling when
[he or] she 'articulate[s] sufficient reasoning in
support of the ruling.'" State v. Withers,
172 A.3d 765, 768 (R.I. 2017) (quoting State v.
Kizekai, 19 A.3d 583, 589 (R.I. 2011)). "A party
may base a motion for a new trial 'on the grounds that
the weight of the evidence was not adequate to convict a
defendant.'" Moore, 154 A.3d at 480
(quoting State v. Lopez, 129 A.3d 77, 83 (R.I.
2016)). "If the trial justice has articulated adequate
grounds for denying the motion, his or her decision is
entitled to great weight and will not be overturned by this
Court unless he or she has overlooked or misconceived
material evidence or was otherwise clearly wrong."
State v. Florez, 138 A.3d 789, 793 (R.I. 2016)
(quoting State v. Bunnell, 47 A.3d 220, 233 (R.I.
2012)). The trial justice acts as a
"'superjuror' who independently weighs the
evidence and assesses the credibility of the witnesses."
State v. Breton, 138 A.3d 800, 803 (R.I. 2016)
(quoting Battle v. State, 125 A.3d 130, 132 (R.I.
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