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State v. Bozzo

Supreme Court of Rhode Island

January 15, 2020

State
v.
Henry G. Bozzo.

          Providence County Superior Court K1/15-742A Associate Justice Brian P. Stern

          For State: Christopher R. Bush 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

          Maureen McKenna Goldberg Associate Justice

         The defendant, Henry Bozzo, appeals from a judgment of conviction following a jury verdict of guilty on one count of first-degree child molestation sexual assault, in violation of G.L. 1956 § 11-37-8.1. The trial justice sentenced the defendant to forty-five years at the Adult Correctional Institutions, with eighteen years to serve and the balance suspended, with probation. The defendant timely appealed. For the reasons set forth in this opinion, we vacate the judgment of conviction and remand the case to the Superior Court for a new trial.

         Facts and Travel

         In August 2015, the complainant, Veronica, [1] was seven years old. Her parents, Antonio Pina (Pina) and Kathryn Johnson (Kathryn), who never married, lived separately. On Tuesdays and Thursdays, Veronica stayed with her father, who lived across the street from defendant and his common-law wife, Denise Jones (Jones).

         The testimony at trial revealed that Pina and defendant were friends and shared a common interest in automobiles. Veronica testified that she also thought of defendant as her friend, and that defendant would hug her every time he saw her. Pina stated that Veronica would often walk across the street to defendant's house, and, whenever Veronica saw defendant or Jones, "she would run over to them" and "give them a hug and a kiss on the cheek, just being friendly."

         On August 4, 2015, Veronica and her father were playing in Pina's front yard when Jones stopped and gave Veronica a flower. Veronica and Pina then walked across the street to talk to defendant, who was standing in his yard. Veronica hugged defendant. The defendant then sat on a pile of shingles, and Veronica sat on his lap. According to Veronica, she sat on defendant's left leg with her legs inside defendant's legs and defendant's left hand against her back. When her father went to look at defendant's Chevrolet El Camino, which was parked in his driveway, out of defendant's sight, defendant put his right hand under Veronica's skirt and touched her vagina, over her underwear. Veronica testified that defendant "tapped" her vagina and then she felt his finger go inside of her. Veronica testified that she was scared and uncomfortable, and she devised an excuse to get off defendant's lap. According to Veronica, defendant smiled at her but said nothing.

         Veronica did not immediately tell Pina about the assault because she thought he would be upset. Later that evening, Veronica told her grandmother, Helene Johnson (Helene), about the incident because it was easier to talk to her grandmother and Veronica did not think that the disclosure would upset her. Helene called Kathryn at work and told her what happened. Kathryn left work and went to Helene's house to talk to Veronica-who, according to Kathryn, appeared scared and confused. Kathryn did not have an exhaustive discussion with Veronica at that time, because she was frightened and uncertain about what to say to her daughter. Kathryn did not report the assault to the police. She called Pina, but when she began to explain what happened, he "flipped out on [her, ]" and she was unable to tell him everything that Veronica had revealed to her.

         The next day, Veronica went to Pina's house and told him about the assault. Pina did not call the police, however, "[b]ecause the way I asked [Veronica], she agreed with the way I asked her and to me I took it as it was a mistake. It was an accident." Veronica testified that initially she thought the touching could be an accident, but after meeting with her counselor, she realized that it was not accidental.

         In September 2015, about a month after the assault, Pina witnessed a raid at defendant's house by multiple state troopers; he later learned on social media that it was a police investigation into defendant for possession of child pornography. Pina called Kathryn and told her about the raid, and that prompted her to report the assault to the Warwick police.

         On November 17, 2015, a grand jury indicted defendant for one count of first-degree child molestation sexual assault, in violation of § 11-37-8.1. The defendant was convicted following a jury trial in October 2016. On January 20, 2017, the trial justice sentenced defendant to forty-five years at the Adult Correctional Institutions, with eighteen years to serve and the balance suspended, with probation. The defendant filed a timely appeal.

         Issues on Appeal

         Before this Court, defendant advances four assignments of error. The defendant argues that the trial justice erred: (1) in denying defendant's motion for a mistrial based on a police officer's reference during his testimony to a polygraph examination; (2) in denying defendant's motion for a mistrial based on the prosecutor's comments during closing argument about defendant's courtroom demeanor at trial; (3) in admitting testimony about the arrest and prosecution of defendant for possession of child pornography; and (4) in failing to safeguard defendant's right to a fair trial based on various claims related to the presence of members of a motorcycle group known as "Bikers Against Child Abuse" (BACA) in the courtroom during trial. We address each contention in turn, and we will provide additional facts and procedural history as necessary.

         Motions to Pass the Case

         Standard of Review

         "When ruling on a motion to pass, the trial justice must assess the prejudicial impact of the statement in question on the jury and determine whether the evidence was of such a nature as to cause the jurors to become so inflamed that their attention was distracted from the issues submitted to them." State v. Lastarza, 203 A.3d 1159, 1165 (R.I. 2019) (quoting State v. Cipriano, 21 A.3d 408, 428 (R.I. 2011)). "The trial justice makes this determination by examining the witness's statement or remark in its factual context." Id. (quoting State v. Werner, 830 A.2d 1107, 1113 (R.I. 2003)). "Moreover, we previously have held that even prejudicial remarks do not necessarily require the granting of a motion to pass." Id. (quoting Roma v. Moreira, 126 A.3d 447, 449 (R.I. 2015)).

         "[A] trial justice's decision on a motion to pass the case is addressed to the sound discretion of the trial justice, and this Court will not disturb the ruling on such a motion absent an abuse of discretion." Lastarza, 203 A.3d at 1165 (quoting State v. Rosado, 139 A.3d 419, 423 (R.I. 2016)). "We give great deference to the trial justice in this regard because he or she has a front-row seat at the trial and is in the best position to determine whether a defendant has been unfairly prejudiced." Id. (quoting Rosado, 139 A.3d at 423).

         Reference to the Polygraph Examination

         Before the facts of this case were known to the Warwick police, defendant was interviewed by the police on two occasions concerning the child pornography investigation. During the second interview at the state police barracks, defendant underwent a polygraph examination. The circumstances of the police interviews and an inadvertent reference to the polygraph examination by a witness at trial are issues in this case.

         Before trial, defendant filed a motion in limine to preclude evidence of the polygraph examination at trial. During a hearing on that motion, the court recognized that the state had "agreed on the record to * * * redacting out anything that makes reference to a polygraph examination." Indeed, the prosecutor stated: "The state does not intend to introduce any evidence related to the polygraph. I have no issue redacting anything * * * relating to a polygraph or any mention thereof[.]" At trial, however, Detective Kevin Petit, the police officer who had administered the polygraph examination to defendant, referenced the polygraph while testifying on cross-examination. Detective Petit testified that he initially interviewed defendant at his home, and then conducted a follow-up interview at the state police barracks. Defense counsel then asked Det. Petit how long the follow-up interview lasted, and the following colloquy ensued:

"[DEFENSE COUNSEL]: Do you know how long that interview took place?
"[DETECTIVE PETIT]: A couple of [sic] three hours I believe. In the interim there was a polygraph exam given so I didn't have-
"[DEFENSE COUNSEL]: Objection.
"THE COURT: Sustained. The jury will disregard."

         Defense counsel requested a sidebar and immediately moved to pass the case, arguing that the polygraph reference warranted a mistrial, and that a curative instruction would not be sufficient to cure the prejudice caused by its reference. The state argued that a curative instruction would be sufficient because Det. Petit did not reveal the results of the polygraph examination, but only that one had been administered to defendant.

         The trial justice declined to grant a mistrial, stating:

"Counsel, the [c]ourt is going to decline your motion to pass. You have preserved the record at this point. The [c]ourt will at some point give a curative instruction and has instructed the jury to disregard the answer."

         The defendant did not object to the failure to give an immediate cautionary instruction, nor did he proffer any suggestions about the substance of the instruction. After the cross-examination, redirect, and recross of Det. Petit concluded, the trial justice gave the following curative instruction to the jury:

"[A]t the very beginning of the trial I told you that when the [c]ourt has an objection and will overrule or sustain it. When I overrule an objection, it's very easy. You can consider the answer as evidence. If I sustain an objection to a question that was not answered, you're never hearing the answer so there is no evidence to consider, and, as I told you, you can't read into the question itself. There have been times during this witness' testimony and others where the witness said something, there was an objection afterwards and I sustained the objection. I want to remind the jury again, as I did initially, you cannot consider either the question or the answer given by the witness. It cannot have any weight or any evidentiary value one way or another. You can't make any inferences as to what you heard. You ...

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