Supreme Court
N o. 2013

- 110

- C.A. (P2/11

- 779A)

State :

v. : Joseph Armour. :

NOTICE : This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222

- 3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.- 1

- Supreme Court
N o. 2013

- 110

- C. A. ( P2/11

- 779A )

State :

v. : Joseph Armour. :

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

O P I N I O N Justice Goldberg , for the Court. This case came befor e the Supreme Court on February 3, 2015, on appeal by the defendant, Joseph Armour (defendant), from a Superior Court judgment of conviction following a jury verdict of guilty of one count of second

- degree child molestation. The defendant contends that the trial justice erred in: (1) denying his motion to

s uppress an incriminating confession he gave to the police; (2) permitting Dr. Amy Goldberg (Dr. Goldberg) to testify regarding the explanation of a normal examination over defense counsel’s objection; and (3) denying the defendant’s motion for judgment o f acquittal. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel In 2010, six

- year - old Sarah 1 lived with her mother and defendant in a multifamily home in East Providence, Rhode Island. The defendant had been rent ing a bedroom on th e second

1 In order to protect the child’s privacy, she has been given a pseudonym.- 2

-

floor, while the child and her mother lived on the first floor. 2 On January 29 , 2011, at approximately one o’ clock in the morning, Sarah awakened to defendant touching her vagina

. After Sarah’s mother saw defenda nt r un out of Sarah’s room, she went into her daughter’s room, turned on the light, and noticed that the blankets covered her daughter’s head. When Sarah’s mother moved the blankets, she saw that her daughter’s jeans and underwear had been pulled
down bel ow her waist. Sarah’s mother immediately took the child into her own bedroom , locked the door, and asked her “Did he touch your cookie ? ” 3 Sarah answered “yes[,]” and her mother subsequently called the East Providence police. When the police arrived, Sara h ’s mother explained wh at had happened, and Sarah was taken to Hasbro Children’s Hospital (Hasbro) for

an examination , which was performed by Dr. Goldberg

. The following day the police arrested
defendant. On March 18, 2011, a criminal information was file d against defendant in Providence County Superior Court, alleging one count of second

- degree child molestation in violation of G.L. 1956 § 11

- 37

- 8.3 and § 11

- 37

- 8.4. A jury trial was held in September 2012. The jury
returned a verdict of guilty, and the trial justice sentenced defendant to thirty years at the A dult
C orrectional I nstitution s , with ninety months to serve and two hundred and seventy months suspended with probation. The defendant timely appealed. Motion to Suppress On appeal , d efendant argue s that the trial justice erred when she denied de fendant’s motion to suppress an incriminating statement he gave to the East Providence police while in custody

. It was defendant’s contention that the confession was obta ined in violation of his

2 The child’s mother had known defendant for over twenty years and had “thought of him as family.”

3 Sarah and her mother testified that “cookie” is the word th ey used to r efer to the child’s vagina.- 3

-

constitutio nal right s against self

- incrimination and his right to counsel

. A pretrial hearing on the
motion was held, which featured the testimony of two East Providence police officers, defendant, defendant’s mother, defendant’s cousin, and an attorne y who had been contacted by defendant’s
cousin

. Detective Mark Jones (Det

. Jones) of the East Provide nce police department was the first
witness . Detective Jones was on duty on January 29, 2011 and spoke with d efendant the following day , after defendant’s arrest . A cc ording to Det

. Jones , he and another officer, Det

. Michael Spremulli (Det

. Spremulli), first spoke to defendant while in the department cellblock
and , after he agreed to speak with them , defendant was moved to an interview room . Detect i ve Jones stated tha t he “asked [defendant] if he understood, if he could read English, if he could read period, and [defendant] said yes.” Detective Jones testified that he provided defendant with a rights for m and advise d defendant of h is constitutional rights , as set fort h on the form

. The
d efendant then initialed each numerically listed item on the rights form a nd signed the form

. Next, Det

. J ones testified that , although defendant was alert, he appeared “subdued but nervous[,]” which the detective characterized as nor mal behavior

. Detective Jones acknowledged that defendant stated that he had vomited some sleeping pills which he ingested prior to being arrested while purportedly attempting suicide, but the officer testified that he did not observe anything that would suggest defendant had taken sleeping pills. Detective Jones testified that defendant stated the following:

“He said that night of the incident, he was in Cranston * * * doing shots. He got home, he thinks it was around midnight or so, took a sleeping pil l, and then he said he went into [Sarah’s] bedroom to check on her. And he said he saw that she had a pair of jeans, she seemed uncomfortable. So he decided to pull her pants down, and while doing so her underwear came down as well. Then he said when he saw her vagina he got curious as to what it would feel like. So at that time, he said he touched her vagina, got nervous,- 4

- realizing what he did was wrong, and then left the room.” After the interview, Det

. Jo nes typed the statement, asked defendant to r ead the statement , and
then as ked him if there were any inconsistencie s in the statement or anything he wished to change . Detective Jones testified that defendant never indic ated that the statement was incorrect

or that it was incomplete in any way . The defendant then signed the statement. Detective Jones noted that at no time during his interaction with defendant did defendant ever ask to speak to an attorney , n or did defendant request that he be allowed to make a phone call. 4 Detective Spremulli also t estified at the suppression hearing . Detective Spremulli’s testimony corroborated the testimony of Det

. Jones. Specifically, Det

. Spremulli testified that he was present when defendant read the rights form, indicated to the officers that he understood th e contents of the form , and initialed and signed the rights form. Detective Spremulli’s recollection of defendant’s confession was substantially the same as that of Det

. Jones . Detective Spremulli also testified that he did not recall defendant asking fo r a lawyer, nor did he recall anyone coming into the interview room to tell the officers about a telephone call.
The defendant ’s version was at variance with the testimony of the police detectives. According to defendant, after he was first arrested and w hile still in handcuffs, ten to fifteen officers “kept saying[,] * * * did you resist arrest? Did he resist arrest? * * * I hope he does, I hope he does, I’m really in the mood to mess him up. They kept saying, I want to mess him up, I
want to fuck him u p.” He testified that the officers were “fingering their Billy clubs and putting their hands on their guns and stuff * * *.” The defendant stated that he “was afraid they were going to beat the hell out of [him]” and that he felt “ intimidated.” The defe ndant testified that , when he arrived at the station , officers further threatened him about what he could expect from

4 Detective Jones did, however, testify that the booking sheet was marked “phone call, no[,]” indicating , according to the officer, that defendant “didn’t choose to make a phone call.”- 5

-

the other inmates at the prison, which made him think that he “was going to die.” The d efendant stated that, while at the police station, he asked an officer if he could make a phone call; however, because the telephone number of the person he wished to call was on his mobile phone,
the officer allowed defendant to make one phone call from h is mobile phone . The defendant
testified that he called his mother and asked her to call his cousin and ask the cousin to obtain a lawyer for him

. The defendant’s testimony concerning the interview with Det

. Jones and Det

. Spremu lli also differed from that of the detectives. He testified that, numerou s times before he was shown the rights form, he asked for a lawyer . He testified that Det

. Jones ignored his requests and kept pestering him about the incident. The defendant testified that he signed the rights form because he was scared, tired, and “afr aid that the judge was going to decide [he] was guilty if [he] didn’t give [his] side of the story.” He also told the court that, while being questioned, another officer came into the room where he was being questioned and said something to Det

. Jones abo ut a phone call. The defendant admitted to giving a statement to the police and signing it , but he
stated that he never read it and only signed it because he “was afraid not to.” However, on cross

examination, defendant admitted that he understood he did not have to say anything to the officers but spoke with Det

. Jones anyway. The defendant’s mother also testified at the suppression hearing. She testified that, on January 30, 2011, she received a call from defendant, requesting that she obtain a lawyer for him.
She testified that she told defendant that she would contact his cousin to obtain a lawyer for him ; she then called defendant’s cousin, who agreed to help . The defendant’s cousin also testified and
stated that she contacted Attorney Priscilla Di Maio (Attorney DiMaio), who agreed to represent
defendant.- 6

-

Lastly, Attorney DiMaio testified. Attorney DiMaio testified that, on January 30, 2011, at approximately 9:45 in the morning , she called the East Providence police department,
identified herself as an attorney who was trying to contact defendant, and asked to speak to a
detective. She stated that she also asked to speak with defendant, but her request was denied.
She testified that she told a detective “ to let [defendant] know that [she had ] ca lled, and * * * not to give a statement.” We note that the record discloses that defendant signed the waiver of rights
form at 9:40 that morning

. At the conclusion of testimony and a fter hearing counsels’ arguments, the trial justice
rendered a bench deci s ion. The trial justice denied the motion to suppress , declaring that , based on the record before her, defendant’s statement was voluntary and that defendant had no t been deprived of his right to counsel. W ith respect to whether the statement was volunta ry, the trial justice found defendant’s testimony “implausible,” “unbelievable , ” and “far

- fetched. ” “V iewing
all the evidence and und er the totality of the circumst a n ces[,]” the trial justice found that defendant’s statement was not coerced and that defen dant knowingly, intelligently, and voluntarily waived his rights. Also , with respect to defendant’s argument that he was deprived of his right to counsel, the trial justice, citing State v. Burbine , 451 A.2d 22 (R.I. 1982), noted “that the effort by third parties to retain counsel for the defendant is entirely irrelevant to whether the defendant asked for and was denied the right to counsel.” See id. at 27

- 28. The trial justice went on to find “the detectives to be more credible than the defendant in test ifying that the defendant never did request counsel.” Specifically, the trial justice found “it incredible that such numerous requests [for a lawyer] were made * * * and fell on deaf ears * * *.” The trial justice
determi ned that the state had establishe d by clear and convincing evidence that defendant did not request an attorney and, therefore, was not deprived of his right to counsel.- 7

-

Before this Court , defendant asserts that the trial justice erred in denying his m otion to suppress his statement to pol ice, arguing that his statement was not voluntary

. “Both the Rhode Island and the United States Constitutions bar the use of a defendant’s involuntary statements in a criminal trial.” State v. Bojang , 83 A.3d 526, 532 (R.I. 2014) (quoting State v. Bido , 9 41 A.2d 822, 835 (R.I. 2008)). “In order for the trial justice to admit a defendant’s statement at trial, ‘the state must establish, by clear and convincing evidence, that the defendant knowingly and intelligently waived his or her right against self

- incr imination and that the statement was voluntary.’” Id. at 533 (quoting State v. Monteiro , 924 A.2d 784, 790 (R.I. 2007)). “This inquiry ‘requires an analysis of the totality of the circumstances surrounding the interrogation.’” Id. (quoting State v. Jimene z , 33 A.3d 724, 734 (R.I. 2011)). “This Court applies the following two

step review of a trial justice’s finding of voluntariness:

‘ First, we review the trial justice ’ s findings of historical fact with deference, and we will not overturn those findings u nless they are clearly erroneous. * * * Second, because this issue is of constitutional dimension, we accept the historical facts and credibility determinations, and we then conduct de novo review of the trial justice ’ s conclusion that the confession was v oluntary .’” Id. (quoting Monteiro , 924 A.2d at 790). After examining the record in this case, we are satis fied that defendant’s confession was voluntary and that the trial justice did not err w hen she r efused to suppress the confession . The evidence pres ented at the suppression hearing disclosed that Det

. Jones advised defendant of his rights, both orally and in writing. The defendant initialed and signed the waiver of rights form
that was introduced into evidence . Detective Jones testifie d that defenda nt appeared alert , and
both Det

. Jones and Det

. Spremulli tes tified that defendant acknowledged that he unde rstood his rights. Finally, defendant himself testified that he knew he did not have to say anything to the detectives, but he nevertheless proceed ed to speak with the detectives and then to sign the

statement

.- 8

-

Although t he trial justice set forth her decision i n a comprehensive bench ruling, she did

err when she stated that “defendant never testified that his mother, aunt, an d /or cousin were in
the process of retaining an attorney * * * [n]or did the defendant testify that he, in fact, had already made a call to his mother requesting that sh e procure an attorney for him.” The record
reveals that defendant did testify about the phone call to his mothe r
. Nonetheless , this error was
not material and has no impact on our decision given the appropriate factual findings and credibility determinations made by the trial justice in view of the totality of the circumstances. 5 The trial justice specifically fo und that de fendant did not invoke his right to counsel. The trial justice rejected defendant’s argument that the police officers threatened him or deprived him of his right to counsel. The trial justice concluded , after analyzing the totality of the circ umstances, that defendant knowingly, intelligently, and voluntarily waived his rights and spoke to the police

. In light of the trial justice’s findings of historical fact and credibility determinations , which we review with deference, we are satisfied th at the trial justice did not misconceive or
overlook material evidence , nor did she err in her conclusions

. Our de novo review also satisfi es us that defendant’s confession was given voluntarily. Finally, we pause to note that defendant also argued that the trial justice erred in denying his motion to suppress because he “was denied his right to a confidential phone call purs uant to R.I.G.L. § 12

- 7

- 20.” General L aws 1956 § 12

- 7

- 20 provides that a person who is arrested “shall be afforded, as soon after bein g detained as practicable , * * * the opportunity to make use of a telephone for the purpose of securing an attorney * * *.” Here, defend ant testified that, after he

5 The defendant testified that he was given an opportunity to make a phone call and did make a phone call. The detectives testified that the booking sheet was marked “phone call, no[,]” indicating that defendant “didn’t choose to make a phone call.” Whether or not the notation on the booking shee t meant that defendant did not make a phone call from a police phone is irrelevant to our analysis. It is not disputed that defendant did in fact make a telephone call to his mother.- 9

-

was arrested and transported to the East Providence police station, he made a phone call t o his
mother and requested that she assist him in obtaining a lawyer by contacting a cousin

. According ly, we deem this argument without merit. Testimony of Dr. Goldberg Next, defendant asserts that the trial justice erred when she allowed Dr. Goldberg to testify regarding what defendant characterized as “physical examination, diagnosis, and treatment of penetrativ e first degree sexual assault[,] ” as contrasted with the second

- degree
sexual assault of which he was accused. During trial, the state sought t o introduce the testimony of Dr. Goldberg, an attending physician in the Child Protection Program at Hasbro who had
examined Sarah on the night of the incident. At trial, Dr. Goldberg discuss ed her examination of
the child , present ed certain disclosures t hat Sarah made during her examination, and e xplain ed
what was meant by an examination that was found to be normal

. D octor Goldberg testified that , on January 29 , 2011, Sarah , in describing the incident and her physical condition, had told her

“ she felt we t,” a symptom which , Dr. Goldberg explained , prompted her to evaluate the child for
an acute sexual assault. Next, Dr. Goldberg testified that Sarah had some redness in her genital
examination but that the rest of her physical examination appeared to be n ormal, which she explained to the jury meant that she saw no specific abnormalities. Doctor Goldberg went on to explain that a normal finding does not necessarily mean that the child was not abused. Although
d efense counsel objected numerous times throug hout Dr. Goldberg’s testimony , these objections were grounded on lack of materiality. Significantly, the witness was asked, without objection :

“ [a] nd that normal examination in your mind at the time, can you say for certain whether or not
she was touched in the manner that you understood ? ” To which Dr . Goldberg replied, “[Sarah ’s] normal examination does not exclude the possibility of sexual abuse, or even penetration, in my- 10

-

mind.” Not only was there no objection to this question, t here was no motion to strike this

answer. On appeal, defendant contends that the trial justice erred in admitting this testimony
because it was irrelevant, beyond the scope of proper expert testimony, and substantially prejudicial. It is well settled that this Court will “revi ew a trial justice’s decision admitting or excluding evidence under an abuse of discretion standard.” State v. Covington , 69 A.3d 855, 862 (R.I. 2013) (quoting State v. Brown , 42 A.3d 1239, 1242 (R.I. 2012)). “We will reverse a trial justice’s ruling on t he admissibility of evidence only where ‘it constitutes a clear abuse of discretion.’” Id. (quoting Brown , 42 A.3d at 1242).
After a thorough examination of the record, this Court concludes that defendant failed to preserve this issue for appellate review

. We note at the outset that, p rior to Dr. Goldberg’s testimony, defense coun sel expressly agreed that “[Dr. Goldberg could] testify as to what the absence of any injuries means , and [could] also testify as to the result of her examination.” During Dr. Go ldberg’s direct examination she was asked, “ [a] nd that normal examination in your mind at the time, can you say for certain whether or not she was touched in the manner that you understood?” To which Dr. Goldberg answered, “ [h] er normal examination does n ot exclude the possibility of sexual abuse, or even penetration, in my mind. ” As noted, d efense counsel did not object to the question, or move to strike the answer. Therefore, according to this Court’s “raise

or - waive” doctrine, we deem defendant’s argu ment that the trial justice erred in permitting Dr. Goldberg to testify waived. 6 However, were this issue properly preserved before the Court, we are convinced that Dr. Goldberg’s testimony

— which was equivocal at best

— was not unduly

6 See Berard v. HCP, Inc. , 64 A.3d 1215, 1219 n.2 (R.I. 2013) (noting th at the Court “shall ‘not review issues that were not presented to the trial court in such a posture as to alert the trial justice to the question being raised [.] ’” quoting State v. Kluth , 46 A.3d 867, 876 (R.I. 2012)).- 11

-

prejudicial or implied that defendant engaged in sexual penetration, as the trial justice instructed the jury “that there is no evidence in this case of the type of conduct t hat this doctor just referred
to * * * .” It is also significant that defendant was not charged with fir st

- degree sexual assault and that he, through his confession, admitted to improperly touching Sarah, the act that led to the charge of second

- degree child molestation for which he was convicted. In addition, “ because the state bears the burden of proving e ach element of the charge beyond a reasonable doubt, it has the right to present evidence establishing those elements in its case in chief.” State v. Marmolejos , 990 A.2d 848, 852 (R.I. 201 0 ). Here, the child’s disclosure
to Dr. Goldberg , about feeling “w et,” prompted the physical examination about which the
witness testified . Thus, t he state was within its right s to present testimony about the
examination.
Motion for Judgment of Acquittal Lastly, defendant asserts that the trial justice erred in denying his motion for judgment of acquittal. “When passing on ‘a trial justice’s denial of a motion for judgment of acquittal, this Court applies the same standard as the trial justice.’” State v. Long , 61 A.3 d 439, 445 (R.I. 2013) (quoting State v. Lynch , 19 A .3d 51, 56 (R.I. 2011)). “A motion for a judgment of acquittal should be granted only if the evidence, viewed in the light most favorable to the prosecution, is insufficient to establish the defendant’s guilt beyond a reasonable doubt.” Id. (quoting State v. Heredia , 10 A.3d 443, 446 (R.I. 2010)). “If, however, a reasonable juror could find the defendant guilty beyond a reasonable doubt, the motion should be denied.” Id. (quoting Heredia , 10 A. 3d at 446). Viewing the evidence “in the light most favorable to the state” and “giving full credibility to the state’s witnesses,” we conclude that sufficient evidence existed to prove, beyond a- 12

-

reasonable doubt, that the defendant committed one count of second

- degree child molestation, in violation of § 11

- 37

- 8.3. See Lynch , 19 A.3d at 56 . In this case, the six

- year - old child took the
stand at trial and testified tha t, on the night of the incident, she woke up, felt something on her vagina, and opened her eye s to the defendant standing at her bed

. Sarah’s mother also testified at

tr ial and corroborated the child’ s stat ements and the events of that night . According to Sarah ’s mother, on January 29 , 2011 , she h ad put her daughter to bed with her jeans and underwear pulled up to her waist

. At approximately one o’cl ock in the morning , she saw some one leaving her daughter’s room; and , when she went into the room, she discovered that her daughter’s pants and underwear had been pulled down below her wa ist

. She testified that she took Sarah into her room, locked the doo r, and asked her if the defendant touched her, to which Sarah replied, “yes.”
D octor Goldberg testified that Sarah told her that the defendant had been in her room that night and that “she felt wet.” Further, Det

. Jones also testified at trial and read t he defenda nt’s sworn statement, which stated:

“On January 28, 2011, I was out drinking * * *. The n I went to check on [Sarah ]. I noticed that she had jeans on, and she looked very uncomfortable. * * * I went over to [her] and pulled her jeans down. The jeans were so tight that her underpants came down with the jeans. * * * I was always curious if a young girl felt the same as a woman. * * * After [Sarah ’s] underpants came down with her jeans, I saw her vagina. * * * So I touched the outside of [her] vag ina with my hand.” “A person is guilty of a second degree child molestation sexual assault if he or she engages in sexual contact with another person fourteen (14) years of age or under.” Section 11

- 37

- 8.3. Because we are satisfied that the state present ed ample evidence that Sarah was six years old when the defendant touched her vagina, in violation of § 11

- 37

- 8.3, we conclude that there
was sufficient evidence to withstand the defendant’s motion for judgment of acquittal and to support the conviction

. Accordingly, the trial justice did not err when s he denied the defendant’s- 13

-

motion for a judgment of acquittal.
Conclusion For the reasons articulated in this opinion, we affirm the judgment below. The papers in this case may be remanded to the Superior Court.

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE 

### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: State v. Joseph Armour. CASE NO : No. 20 1 3

- 110

- C.A

. ( P 2/11

- 779A) COURT: Supreme Co urt DATE OPINION FILED: March 17, 2015 JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia , JJ.
WRITTEN BY: Associate Justice Maureen McKenna Goldberg SOURCE OF APPEAL: Providence County Superior Court JUDGE FROM LOWER COURT : Associate Justice Kristin E. Rodgers ATTORNEYS ON APPEAL : For State : Lauren S. Zurier Department of Attorney General
For Defendant : Kara J. Maguire Office of the Public Defender