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State v. Roscoe

Supreme Court of Rhode Island

January 9, 2019

David Roscoe

          Kent County Superior Court (K1/15-784A) Associate Justice Brian P. Stern

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

          For Defendant: Kara J. Maguire Office of the Public Defender.

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



         The defendant, David Roscoe, appeals from a judgment of conviction after a jury found him guilty of first degree sexual assault and murder. The trial justice sentenced Roscoe to two concurrent sentences of life imprisonment. The defendant timely appealed. After thoroughly reviewing the record and after carefully considering the arguments of the parties, we vacate the judgment of conviction.

         I Facts and Travel

         In August 1990, Richard Mouchon arrived at the West Warwick home of his grandmother, eighty-five year old Germaine Mouchon, intending to bring her to a birthday party for one of her great-grandchildren. When Mrs. Mouchon did not answer the locked door, Richard decided to check to see if she was doing laundry in another building of her elderly-housing complex. As he walked around the building outside her apartment, he peered through a window and was horrified to see his grandmother lying naked and in a perpendicular position on her bed. He immediately asked Mrs. Mouchon's neighbor to call the police and the fire department. When first responders arrived, they found that the deadbolt on the apartment door was locked from the inside and, consequently, they were required to remove an intact screen from the apartment window to gain access into the apartment.

         Detective Dennis Bousquet of the West Warwick Police Department arrived shortly thereafter and found that there had been no forced entry and, further, that the apartment was in relative order, aside from a woman's slip or housecoat that had been discarded on the living room floor and an overturned plastic end table. A cigarette lighter and a small brown leather belt were discovered next to Mrs. Mouchon's body.

         The medical examiner, Francis Garrity, M.D., pronounced Mrs. Mouchon dead at the scene, and he also conducted a cursory external examination of her body. Upon a more detailed examination at the medical examiner's facility, he catalogued injuries to Mrs. Mouchon's head and face, including bruises and a lacerated upper lip. There was another bruise on her left breast. Doctor Garrity used cotton swabbing to sample tissues from the decedent's mouth, anus, and vagina, sealed the samples in an evidence collection kit, and sent them to a laboratory for testing. The next day, Dr. Garrity performed an autopsy, which revealed fluid around Mrs. Mouchon's lungs, an enlarged heart, and other indicators of a failing cardiovascular system. Significantly, there were no vaginal injuries and no defensive wounds, such as blood or skin under her fingernails or fresh injuries to her hands. However, the autopsy did uncover that Mrs. Mouchon had been suffering from a urinary tract infection. Based on those observations and findings, Dr. Garrity determined that Mrs. Mouchon's cause of death[1] was "a heart attack or a cardiac arrest following a traumatic event[, ]" namely "[m]ultiple blunt force injuries about the face, left breast." At trial, Dr. Garrity testified that a single fall was unlikely to have caused Mrs. Mouchon's "constellation" of injuries, but that he could not medically rule out that possibility.

         Doctor Garrity was unable to determine the manner of death at the time of his examination. However, when he later learned that laboratory testing on the evidence collection kit had revealed the presence of sperm, Dr. Garrity contacted Det. Bousquet to inquire as to whether Mrs. Mouchon had been involved in a relationship at the time of her death. Detective Bousquet questioned Mrs. Mouchon's son George, her grandson Richard, and two of her friends, Anna Blais and Henriette Van Coughen.[2] After completing these tasks, Det. Bousquet advised Dr. Garrity that Mrs. Mouchon had not been involved in a relationship. Now believing Mrs. Mouchon to have "died as a result of actions of another[, ]" Dr. Garrity changed his opinion as to the manner of Mrs. Mouchon's death from "undetermined" to "homicide."

         Nearly twenty-five years later, Richard discovered Mrs. Mouchon's death certificate among his late father's belongings, and he was surprised when he discovered that his grandmother's manner of death had been determined to be homicide. He contacted Detective Thomas Nye of the West Warwick police, who reopened what had become a cold case. Detective Nye got in touch with Cara Lupino at the Rhode Island Department of Health Forensic Laboratory, who was able to locate the evidence collection kit that had been created decades earlier by Dr. Garrity. Lupino tested the preserved cotton swabs inside the kit and successfully obtained a male DNA profile. She ran that profile through a DNA database and obtained a potential match for defendant. Pursuant to a search warrant, West Warwick police collected a buccal swab[3] from Roscoe, which also matched the male DNA profile obtained from the evidence collection kit.

         On December 16, 2015, Roscoe was charged by indictment with one count of murder, in violation of G.L. 1956 § 11-23-1, and one count of first degree sexual assault, in violation of G.L. 1956 § 11-37-2. A jury found Roscoe guilty on both counts after a six-day trial. The trial justice denied Roscoe's motion for new trial and later sentenced him to two concurrent life sentences.

         Before this Court, defendant argues that the trial justice erred by (1) failing to order a mistrial after the prosecutor made improper remarks to the jury during closing argument; (2) allowing the medical examiner's determination as to the decedent's manner of death to be presented to the jury; and (3) allowing statements of deceased declarants to be admitted into evidence, in violation of the Confrontation Clause of the United States and Rhode Island Constitutions. Further, defendant argues that his convictions for both felony murder and the predicate offense of first degree sexual assault violated the prohibition against double jeopardy in the United States and Rhode Island Constitutions.

         II. Discussion

         A. The Prosecutor's Closing Argument

         The defendant argues that the trial justice erred by failing to declare a mistrial after the prosecutor made inappropriate, pungent, vulgar, and inaccurate remarks during the course of his closing argument. In this regard, defendant argues that the prosecutor strayed beyond the bounds of proper conduct during his closing arguments in three separate instances: (1) the prosecutor referred to the rules of hearsay as the reason he "couldn't say things[, ]" (2) the prosecutor misstated the medical examiner's testimony, and (3) the prosecutor claimed multiple times that defense counsel had referred to Mrs. Mouchon as a "slut" and a "whore[, ]" and he expressed his personal outrage at those characterizations during his closing statement.

         "It is well settled that a decision to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice." State v. Dubois, 36 A.3d 191, 197 (R.I. 2012) (quoting State v. Barkmeyer, 949 A.2d 984, 1007 (R.I. 2008)). "We often have stated that 'the trial justice has a front row seat during the trial so that he can best evaluate the effects of any prejudice on the jury.'" Id. (quoting Barkmeyer, 949 A.2d at 1007). "The ruling of the trial justice * * * is accorded great weight and will not be disturbed on appeal unless clearly wrong." Id. (quoting Barkmeyer, 949 A.2d at 1007). "[T]here is no formula in law which precisely delineates the proper bounds of a prosecutor's argument * * *." State v. Tucker, 111 A.3d 376, 388 (R.I. 2015) (quoting State v. Boillard, 789 A.2d 881, 885 (R.I. 2002)). Prosecutors enjoy "considerable latitude in closing argument, as long as the statements pertain only to the evidence presented and represent reasonable inferences from the record." Barkmeyer, 949 A.2d at 1007 (quoting Boillard, 789 A.2d at 885). "If the trial justice provides a cautionary instruction to the jury, this Court must assume that the jury has complied with it unless some indication exists that the jury was unable to comply with the instruction." Barkmeyer, 949 A.2d at 1007; see State v. Powers, 566 A.2d 1298, 1304 (R.I. 1989).

         1. Reference to Hearsay Rules in Closing Argument

         Roscoe first takes issue with the prosecutor's statement during the state's closing argument that:

"[Ms. Lupino] also retested the blood in the kit to make sure that the blood in the kit matched the non-spermatazoa [sic] D.N.A. and then she matched the sperm D.N.A. with the swab that she took of his cheek. Because of the hearsay rules, we couldn't say things but I hope everybody was following with how it was working. I know it got to be a little technical because we were talking about the blood tube in the kit matched the non-spermatazoa [sic] portion and then we talked about the spermatazoa [sic] portion in the kit matched the buccal swab that they took from him. Because of the rules, that's just the way it is. In voir dire you said you would apply the rules so that's what we did." (Emphasis added.)

         Roscoe argues that those references to the rules of hearsay left the jurors with the impression that inculpatory evidence existed that was known to the state but was kept from them.

         To support his argument, Roscoe cites Commonwealth v. Bolden, 323 A.2d 797 (Pa. Super. Ct. 1974), in which the Superior Court of Pennsylvania awarded the defendant a new trial after the prosecutor remarked during his closing argument that "there are certain things that I cannot tell you referring to this case." Bolden, 323 A.2d at 798. The court held that "the implication is clear that there existed other incriminating or sinister facts which either were inadmissible or could not be produced. The reference could only lead to wild speculation by the jury in their determination of guilt." Id. at 799.

         While we agree that, at first blush, the comments by the prosecutor in the present case may resemble those made in Bolden, the prosecutor's remarks here are distinguishable. As the trial justice ruled, when read in context, it is clear that the prosecutor was merely attempting, albeit ineloquently, to explain the complex and potentially confusing process by which sperm was matched with DNA taken from buccal swabs and other samples. To us, that is quite different from the direct appeal to "wild speculation" that was found to be the case in Bolden. Here, the trial justice discerned no error in the prosecutor's remarks, stating that, while "the [c]ourt's ears went up" at the mention of hearsay, "what [the prosecutor] was trying to do is explain to the jury what the different swabs were and the different testing process that [the jury] heard or didn't hear certain things." The trial justice was in the best position to evaluate any prejudice that the prosecutor's remarks might have engendered, sitting, as he was, in a "front row seat" during the trial. See Dubois, 36 A.3d at 197. He determined that there was no prejudice to defendant, and, as noted above, "[t]he ruling of the trial justice * * * is accorded great weight and will not be disturbed on appeal unless clearly wrong." Id. We can see no error in his ruling about the prosecutor's remarks regarding the rules of hearsay.

         2. Inferences Drawn from the Expert Testimony

         The defendant also argues that the trial justice erred when he allowed the prosecutor to mislead the jury by misstating the testimony of the medical examiner. We do not agree.

         During the trial, the prosecutor posed this hypothetical to the medical examiner on redirect examination: "a person who has a serious heart condition, who is sexually assaulted and assaulted, what impact would you believe that the assault and the sexual assault would have on that person who has that type of heart condition?" The medical examiner's response to this question was, "I believe it would cause an extreme risk to life. I think the individual, the decedent, would have suffered a cardiac arrest as a result of the stress, the panic, and the pain."[4]

         There can be no argument that posing a hypothetical question to an expert witness is appropriate. See State v. Feliciano, 901 A.2d 631, 643 (R.I. 2006). Roscoe assigns error, however, to the manner in which the prosecutor characterized the answer to that question in his closing argument to the jury. The prosecutor told the jury:

"The next question for you is if you find there was a sexual assault, the next question did she die as a result of the sexual assault. And I am going to direct your attention back to Dr. Garrity, the expert in this case, 'The pain, the panic, the anxiety of the sexual assault pushed this woman over the edge.'"

         Roscoe argues before this Court, as he did below, that with those remarks the prosecutor purported to directly quote Dr. Garrity, but in fact he blatantly misrepresented the medical examiner's testimony.

         After reviewing the trial transcripts, we agree with the trial justice that the prosecutor was not engaged in an effort to directly quote Dr. Garrity. Rather, the prosecutor called attention to Dr. Garrity's testimony and attempted to draw what seems to us to be a fair inference that could be gleaned from that testimony. In State v. Fortes, 922 A.2d 143 (R.I. 2007), a police officer who responded to the scene of a sexual assault discovered a chicken bone outside the victim's home. Fortes, 922 A.2d at 148. The officer testified during trial that it was his belief that someone had removed some leftover chicken from the victim's home and consumed it prior to leaving. Id. at 150. During closing argument, the prosecutor told the jury, "[B]efore [the defendant] left, what did he [do]? * * * he * * * grabbed a piece of chicken after he rapes his wife, walks outside, discards the chicken, gets in the car and takes off. That is exactly what happened." Id. at 148. We held that the prosecutor was permitted to suggest that the defendant had been the person who consumed the chicken because such a suggestion was a reasonable inference from the testimony that had been offered by the officer and the complaining witness. Id. at 151.

         In our opinion, it was permissible here for the prosecutor to suggest a reasonable inference that could be gleaned from the trial testimony. Doctor Garrity testified that, in his opinion, a person with a serious heart condition who was assaulted "would have suffered a cardiac arrest as a result of the stress, the panic, and the pain." It is well settled that prosecutors enjoy "considerable latitude in closing argument, as long as the statements pertain only to the evidence presented and represent reasonable inferences from the record." Barkmeyer, 949 A.2d at 1007 (quoting Boillard, 789 A.2d at 885). As the trial justice noted, the prosecutor's remarks were not "so outside of what the evidence was." What is more, the trial justice reminded the jury that closing arguments are not evidence. He cautioned the jury that:

"[W]hat was said by the attorneys in their closing arguments is not evidence and should not be considered in evidence. For example, if something was said during closing argument and your recollection or notes of what the testimony was during the trial are different, you are to rely on your memories and your notes and not what was said. * * * [T]he only evidence in this case are the responses of the witnesses on the witness stand during their direct and cross-examination and any full exhibits that are in evidence."

         After closely examining the prosecutor's closing remarks in light of the record, and after considering the cautionary instruction imparted by the trial justice, it is our opinion that the prosecutor did not drift outside the bounds of proper prosecutorial conduct by suggesting that the jury draw a reasonable inference from the medical examiner's testimony.

         3. The Prosecutor's Characterization of ...

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