County Superior Court (K1/15-784A) Associate Justice Brian P.
State: Jane M. McSoley Department of Attorney General.
Defendant: Kara J. Maguire Office of the Public Defender.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
FRANCIS X. FLAHERTY, ASSOCIATE JUSTICE
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.
Facts and Travel
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.
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.
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 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.
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. 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
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
from Roscoe, which also matched the male DNA profile obtained
from the evidence collection kit.
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.
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.
The Prosecutor's Closing Argument
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.
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).
Reference to Hearsay Rules in Closing Argument
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.)
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.
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.
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
Inferences Drawn from the Expert Testimony
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.
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."
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.'"
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
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
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
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
The Prosecutor's Characterization of ...