Supreme Court

No. 2010-410-C.A.

(K1/06-662A)

State :

v. :

Robert Burnham. :

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 Tel. 222-3258 of any typographical or other 

formal errors in order that corrections may be made before the opinion is 

published.
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Supreme Court

No. 2010-410-C.A.

(K1/06-662A)

State :

v. :

Robert Burnham. :

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

O P I N I O N

Justice Flaherty, for the Court. This case came before the Supreme Court on appeal 

from a judgment of conviction after a jury found the defendant, Robert Burnham, guilty of two 

counts of second-degree child molestation. The defendant filed a motion for new trial, but on 

November 26, 2008, the trial justice issued a written decision in which he denied the motion. He 

then sentenced the defendant to a term of thirty years, six to serve and the balance suspended, 

with probation. Before this Court, the defendant asserts that the trial justice erred: (1) when he 

denied his motion for new trial, which motion was founded on a claim that he was deprived of 

pretrial access to certain relevant hospital records and police reports; (2) when he failed to 

properly instruct the jury on the issue of the voluntariness of his police statement; and (3) when 

he improperly limited his cross-examination of the complaining witness. Because we are of the 

opinion that the defendant’s arguments are without merit, we affirm the judgment of the Superior 

Court.
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I

Facts and Travel

In 2006, defendant was indicted by a grand jury on two counts of second-degree child 

molestation and one count of first-degree child molestation. All counts involved a single female, 

and all counts were alleged to have occurred between January 1, 2006, and June 8, 2006.1

Before trial began, defendant’s pretrial counsel issued a number of subpoenas under Rule 

17(c) of the Superior Court Rules of Criminal Procedure,2 seeking medical records of the 

complaining witness, Jane,3 including records from Jane’s hospitalization at Butler Hospital. 

Pursuant to the subpoenas, records were returned to the motion justice from various social 

service and medical providers for in camera review by the motion justice. However, the motion 

justice did not review the records; rather, he followed his usual practice of allowing the attorneys 

 1 Our examination of the record is made somewhat more difficult by the fact that there were two 

justices of the Superior Court involved in this case, as well as a number of different defense 

counsel. For the purpose of clarity, we shall refer to the justice who handled the pretrial matters 

as the “motion justice,” and the justice who presided at trial and the posttrial motions as the “trial 

justice.”

Also, we will refer to the attorney who represented defendant before trial commenced as 

“pretrial counsel,” the attorney who represented defendant at trial as “trial counsel,” and the 

attorney who argued the posttrial motions as “posttrial counsel.”

2 Rule 17(c) of the Superior Court Rules of Criminal Procedure states: 

“A subpoena may also command the person to whom it is directed

to produce the books, papers, documents, or tangible things 

designated therein. The court on motion made promptly may quash 

or modify the subpoena if compliance would be unreasonable or 

oppressive. The court may direct that books, papers, documents or 

objects designated in the subpoena be produced before the court at 

a time prior to the trial or prior to the time when they are to be 

offered in evidence and may upon their production permit the 

books, papers, documents or objects or portions thereof to be 

inspected by the parties and their attorneys.” 

3 To protect the privacy of the complaining witness, we have used a pseudonym.
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to review the documents. It seems clear from the record that pretrial counsel invested 

considerable time going through the records.

On February 5 and 6, 2008, a jury trial was conducted in the Superior Court, in which 

both Jane and a detective testified for the state. Jane explained that the allegations in the 

indictment all had occurred in 2006, when she was twelve years old. She explained that 

defendant was a “friend of the family,” who once had had a relationship with her mother. She 

further testified that defendant owned a house and that defendant’s mother resided there with 

him. Jane said that she spent the night at defendant’s house on three separate occasions and that 

it was on those occasions that the three incidents occurred. According to Jane, each time she 

stayed at defendant’s house, she slept in defendant’s mother’s bedroom and she wore defendant’s 

mother’s pajamas.

At trial, Jane testified that the first time she slept at defendant’s house, she woke up to 

discover defendant on top of her while she was lying on her stomach. She explained that 

defendant had one hand near her neck and the other hand on his penis. According to her 

testimony, defendant then proceeded to pull her pajama bottoms down, and he placed his penis 

on her buttocks and vagina. She said that when he tried to insert his penis in her vagina, she 

moved her leg and he left the room.

During the second incident, Jane again was sleeping on her stomach, and she again 

awoke to find defendant on top of her. As he did in the first incident, defendant pulled her 

pajama bottoms down and placed his penis on her thigh, buttock, and vagina. She testified that 

when he tried to put his penis in her vagina, she moved and, as had occurred during the earlier 

occasion, he left the room.
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Before the third incident, Jane was at defendant’s house, but she informed him she did 

not want to stay overnight. He replied that he was not going to bring her home because the 

weather had created poor driving conditions, and her mother was unable to pick her up because 

she did not have a car. Jane went to sleep, but she woke up, this time on her back, and realized 

that defendant was pulling her pajama bottoms down and inserting his penis in her vagina. She 

felt a sharp pain and made a sound, at which time defendant ran back to his room.4 

Jane revealed to her best friend the molestation that had occurred, but she did not tell her 

mother right away “[b]ecause [Jane] used to watch America’s Most Wanted and * * * [she] 

thought they would come after [her].” She explained that after the third incident, her attitude 

toward defendant went “down hill” and that she would act “bad[ly]” around him and “[b]eat him 

up.” She said that at some point her mother asked her why she was behaving in this manner, 

and, at that time, she told her mother about the incidents. On June 8, 2006, her mother brought 

her to the Warwick Police Department to give a statement.

During cross-examination, defense counsel asked Jane a series of questions about a 

conversation Jane had with her mother about other sexual activity in which she may have been 

engaged, suggesting that this had led to the accusations that she made against defendant. The 

state objected to the line of inquiry, citing Rule 412 of the Rhode Island Rules of Evidence,5 and 

 4 During direct examination, Jane conceded that, during a meeting she had with the prosecutor 

the week before the trial, she had indicated that she had been wearing jeans when the third 

incident occurred, but the next day, she told the prosecutor that she had been wearing pajamas. 

She explained that the reason for this inconsistency was that she had had bad dreams about the 

incidents, and, in one of those nightmares, she was wearing jeans. 

5 Rule 412 of the Rhode Island Rules of Evidence provides, in pertinent part:

“If a defendant who is charged with the crime of sexual assault 

intends to introduce proof that the complaining witness has 

engaged in sexual activities with other persons, he or she shall give 

notice of his or her intention to the court and the attorney for the 

state. The notice shall be given prior to the introduction of any 
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the trial justice sustained the objection because defendant had failed to provide prior notice of his 

intention to introduce any evidence of Jane’s purported sexual activity.

The state then called Det. Timothy Grant of the Warwick Police Department, who had 

investigated the incidents in question. He explained that, after interviewing Jane, he and another 

officer went to defendant’s home and informed him that he was the subject of an investigation.

The detectives requested that defendant accompany them to the Warwick Police Department to 

assist in the investigation. Detective Grant then said that when the officers offered defendant the 

option of either driving himself to the station or riding with them, defendant chose to travel with 

the detectives. On the way to the station, defendant asked “if the case involved [Jane],” even 

though the officers had not yet referred to Jane by name. The officers brought defendant to a 

ten-foot-by-ten-foot room and read his Miranda6 rights to him. The defendant acknowledged 

that he understood his rights, and he signed his name and provided his address on the rights 

form.

Detective Grant testified that during the interview at the police station, defendant 

acknowledged that he was a friend of Jane’s family and that she had stayed overnight at his 

home on three occasions. Detective Grant observed that during the conversation about the 

sleepovers, defendant became nervous and fidgety and that he would not maintain eye contact 

with the officers. He also testified that defendant said that Jane had worn tight jeans each time 

she slept at his home, but that he later stated that he remembered Jane wearing his mother’s 

pajamas on one occasion.

 

evidence of such fact * * *. Upon receiving such notice, the court 

shall order the defendant to make a specific offer of the proof that 

he or she intends to introduce in support of this issue.”

6 Miranda v. Arizona, 384 U.S. 436 (1966).
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Detective Grant then explained that he revealed to defendant that Jane had provided the 

detectives with a police statement, and he informed defendant of what she had said in that 

statement. The defendant initially responded by asserting that he “never touched [Jane]” and that 

he had never been in the bedroom where Jane slept when she stayed overnight. To the contrary, 

defendant asserted that Jane had come into his bedroom and “came on to him,” asking him to 

massage her back and rub her hair. The defendant conceded that he was sexually attracted to 

Jane—although he knew she was only twelve—and said that if she had been thirteen years old he 

would have considered having sex with her.

Detective Grant noted that, as the interview continued, defendant made comments that he 

“didn’t want to bag himself” and that “if he had known [the detectives] were coming to talk to 

him, he would have prepared himself more for an interview.” Detective Grant also observed that 

defendant was becoming “more and more nervous visibly, * * * very fidgety in the chair, looking 

around, * * * and trembling slightly.”

Eventually, defendant conceded to the detectives that, on one occasion, he was having 

sexual thoughts about Jane and, at approximately 2:30 a.m., he went into the bedroom where she 

was sleeping. He said that he sat on the bed and watched her. He explained that he became 

aroused and rubbed against her through his shorts. He further admitted that he pulled Jane’s 

pajama bottoms down and that he “rubbed the inside of her thigh and may have rubbed against 

her vagina” with his hand. He swore to the officers that he did not penetrate Jane, but after the 

officers advised defendant about Jane’s “very detailed statement”—where she recalled him 

straddling her and attempting to place his penis inside her vagina—he responded, “I’m not 

saying she made it up,” and “[s]he’s a very smart girl.” The defendant then became teary-eyed 

and commented to Det. Grant that “if I touched her, I’m sorry.”
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At this point, after about two hours of being interviewed, defendant agreed to give a 

written statement.7 Detective Grant testified that he wrote the statement himself because 

defendant was illiterate. Detective Grant testified that he went over small segments of the 

statement—one at a time—with defendant, writing them down and reading them back to him.8

 

 7 Pretrial counsel filed a motion to suppress defendant’s statement before the trial, but the motion 

justice denied the motion after he concluded that defendant’s statement had been voluntary. The 

motion justice provided support for his reasoning for this conclusion, including that (1) 

defendant asked police whether the investigation was about Jane even though the police did not 

mention her name; (2) defendant agreed to ride with the detectives to the police station; (3) 

defendant’s fidgety and nervous demeanor and behavior prior to giving the police statement; (4) 

defendant’s signature and initials on the Miranda rights form; (5) the atmosphere and conduct of 

the police officers during the interrogation; and (6) the method by which the written statement 

was taken.

8 The statement defendant gave is as follows:

“I, Robert Burnham, have known [Jane’s] family for about seven 

years. I dated [Jane’s mother] for about five months several years 

ago. Since then I have been friends with her. Since I have lived 

in Warwick, approximately two years, I have had [Jane’s mother]’s 

children, [Jane’s brother and Jane], sleep over on occasion. [Jane] 

slept over three times alone. The children did not sleep over 

together. The last time I remember [Jane] sleeping over was in 

January of 2006. My mother Marie went to work. She worked 11 

p.m. to 7 a.m. on that night. I was alone with [Jane]. I started to 

have sexual thoughts about [Jane] after she went to sleep. [Jane] 

was sleeping in my mother’s bedroom. I went into the bedroom 

wearing shorts and sat on the bed next to [Jane]. I found [Jane] 

attractive and looked at her while she was sleeping. I was aroused 

and had a hard-on. I rubbed my penis over my pants while 

watching [Jane]. I pulled [Jane]’s shorts down just past her butt. I 

did not pull her underwear down. I put my hand on her thigh 

inside and rubbed it. I may have touched her vagina over her 

underwear with my hand. I was lying down next to her at that 

point and my penis brushed her leg under my pants. I did this for 

about 20 minutes, and I said, ‘I can’t do this.’ I pulled [Jane]’s 

pants up and left the room. I thought that she was sleeping. I 

could have penetrated her, but I did not. I did not touch her vagina 

with my penis. I did not insert my fingers in her vagina.

“On other times [Jane] has come on to me. She has asked 

me to rub her back and hair. I did this. I find [Jane] very 

attractive, and I wanted to have sex with her, but I could not get 

myself to completely do it. I found [Jane] different and I did not 
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When the statement was complete, Det. Grant read the finalized statement back to defendant, and 

he signed it.

On February 6, 2008, a jury found defendant guilty of the two second-degree counts of 

child molestation, but it was unable to reach a verdict on the first-degree charge. A mistrial was 

declared, but the state later voluntarily dismissed the remaining count of first-degree child 

molestation. On February 13, 2008, defendant retained new counsel and moved for a new trial. 

A hearing on the motion for a new trial took place on May 16, 2008. Alan B. Feinstein, a 

clinical psychologist, testified about a condition termed oppositional defiant disorder (ODD), 

with which Jane had been diagnosed at the age of four. Posttrial counsel explained that the 

ODD diagnosis was relevant to explain Jane’s “violent altercations with people,” which could 

explain why she “beat up” defendant. Posttrial counsel also sought to address the fact that Jane 

had nightmares “prior to any time when she was allegedly assaulted.” Because both the ODD 

diagnosis and the nightmares were referred to in the Butler Hospital records, counsel argued that 

the Butler Hospital records should have been provided to defendant.

Pretrial counsel then testified; he was questioned about the extent to which he had 

reviewed the records that had been subpoenaed, including the Butler Hospital records. Pretrial 

counsel explained that he issued the subpoenas in April 2007 to Butler Hospital, the Kent Center, 

the Department of Children, Youth, and Families (DCYF), and the Family Court. Although he 

recalled certain records from DCYF and the Kent Center, he explained that he did not 

“remember whether or not [he] had possession of the records from Butler Hospital.” He did 

 

feel like that towards her brother. I know what I did was wrong 

and I feel very sorry for what I did. I never meant to hurt [Jane]. I 

ask[ed] Detective Grant to write this statement out for me because 

I am illiterate. I agree with this statement.”
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remember, however, that Butler Hospital “sent a letter to [him]” that “said they would be 

forwarding the records to [the motion justice] for his review.”9 

Pretrial counsel also described that he was familiar with the motion justice’s procedure of 

conducting a review of subpoenaed medical records, whereby documents were delivered to the 

Superior Court and the attorneys would be permitted to review the records. He explained that he 

did not recall whether he was contacted by any member of the Superior Court about reviewing 

the Butler Hospital records, but he also said that he did not recall “being refused access” to the 

records. He “c[ould]n’t say that [he] did or did not have a chance to review those records,” and 

he explained that he “may have looked at them, but [he] d[id]n’t remember.” When presented 

with the Butler Hospital records for his review at the hearing, he noted that he “[did]n’t recall 

seeing these, but the information contained therein, a lot of it [wa]s in the Kent Center records. 

Diagnoses were in there that [he] saw quickly, incidents of prior conduct [were] both in DCYF 

and Kent Center records.”

Next, trial counsel was examined. He explained that he received a copy of pretrial 

counsel’s files after he assumed responsibility for the case. He testified that he did not recall 

whether there were any records from Butler Hospital, but he did take note of the Rule 17(c) 

subpoenas. He testified that he “saw there were [Rule] 17(c) motions,” but that he “paid no 

attention to what w[as] returned or not returned at that point,” and he “did not make any 

independent follow-up to seek or secure the Butler Hospital records.” He explained that he 

simply “relied upon the records [pretrial counsel] provided, assuming they were complete.” 

 9 The letter, which was marked as an exhibit and read into the record, provided that “this letter is 

to inform you that any records and treatment of [Jane], * * * at Butler, have been requested and 

will be sent directly to the Court within one week for an in-camera review by [the motion 

justice].” 
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Finally, a clerk of the Kent County Superior Court testified that the Butler Hospital 

records had been located in the motion justice’s chambers, although they later were moved to 

another justice’s chambers. He also explained that records produced for in camera review 

generally are sent to the trial justice and are not recorded in the clerk’s office. 

After the hearing, the parties submitted a stipulation about the travel of the Butler 

Hospital records, which included that the motion justice ordered the records “to be produced for 

an in camera review,” “[t]he records were mailed directly to [the motion justice] on May 7, 

2007,” “[the motion justice] never looked at any of the records himself” because “[i]t was his 

practice to provide the records to the attorneys to review and designate what they needed for 

their case,” but that “[the motion justice] recall[ed] provid[ing] some records * * * to [pretrial 

counsel] and a representative of the Attorney General’s Office.” Based on the testimony 

adduced at the hearing and the stipulation, the trial justice ultimately denied the motion for new 

trial on November 26, 2008, and final judgment was entered on January 2, 2009. This appeal 

ensued.

Before this Court, defendant raises the following issues: (1) the trial justice erred when he 

denied his motion for new trial; (2) the trial justice erred when he failed to properly instruct the 

jury on the issue of the voluntariness of defendant’s statement to the police; and (3) the trial 

justice erred when he limited defendant’s cross-examination of Jane.

II

Standard of Review

Under Rule 33 of the Superior Court Rules of Criminal Procedure, “[o]n motion of the 

defendant the court may grant a new trial to the defendant if required in the interest of justice.” 

When we review a motion for a new trial under Rule 33, “[a] trial justice’s ruling * * * will not 
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be overturned unless the trial justice was clearly wrong or unless he or she overlooked or 

misconceived material and relevant evidence that related to a critical issue in the case.” State v. 

St. Michel, 37 A.3d 95, 100 (R.I. 2012) (quoting State v. Cerda, 957 A.2d 382, 386 (R.I. 2008)). 

Further, the standard of review that this Court uses when reviewing jury instructions is 

well settled: the jury charge “need only ‘adequately cover[] the law.’” State v. Lynch, 19 A.3d 

51, 58 (R.I. 2011) (quoting State v. Cardona, 969 A.2d 667, 674 (R.I. 2009)). “Jury instructions

are reviewed ‘in their entirety to ascertain the manner in which a jury of ordinary intelligent lay 

people would have understood them * * *.’” Id. (quoting Cardona, 969 A.2d at 674). “[A]n 

erroneous charge warrants reversal only if it can be shown that the jury ‘could have been misled’ 

to the resultant prejudice of the complaining party.” Id. (quoting State v. Sivo, 925 A.2d 901, 

913 (R.I. 2007)).

Finally, “[o]ur standard of review of a trial justice’s admission of evidence is for an abuse 

of discretion.” State v. Reyes, 984 A.2d 606, 614-15 (R.I. 2009). “The trial justice’s decision 

will be upheld unless the trial justice abused his or her discretion and the admission of irrelevant 

evidence was prejudicial to a defendant’s rights.” Id. at 615 (quoting State v. Evans, 742 A.2d 

715, 719 (R.I. 1999)). “The trial justice will not have abused his or her discretion as long as 

some grounds supporting his or her decision appear in the record.” Id. (quoting Evans, 742 A.2d 

at 719).
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III

Analysis

A

Motion for a New Trial

1

Medical Records

The defendant argues that the trial justice erred when he denied his motion for a new trial 

because he was not provided with pretrial access to the Butler Hospital records, because neither 

the motion justice nor the trial justice conducted an in camera review of those records. This, he 

contends, deprived him of his rights to compulsory process and confrontation under the United 

States and Rhode Island Constitutions. Before this Court, defendant urges that he was prejudiced 

at trial because he could have used the records to attack Jane’s credibility. The state responds 

that defendant failed to meet his burden for a new trial grounded on a claim of newly discovered 

evidence because the hospital records were easily discoverable prior to the trial, and, in any 

event, the documents would not have changed the verdict at trial.

We recognize that a request for confidential health-care information about another person 

often can create tension between a criminal defendant’s right to effectively cross-examine 

witnesses and the public’s interest in securing the confidentiality of certain types of information. 

State v. Kholi, 672 A.2d 429, 436-37 (R.I. 1996). However, a defendant’s constitutional right to 

evidence does not include an unsupervised romp through another person’s confidential healthcare records or the right to make a materiality determination. Id. at 437. An in camera review of 

sensitive or personal information strikes the requisite balance between those two interests and 

satisfies due process requirements. Id.
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When he ruled on defendant’s motion for a new trial, the trial justice made a finding that 

defendant had served a Rule 17(c) subpoena on Butler Hospital, in which he sought the 

production of medical records relating to any treatment that Jane may have received. Butler 

Hospital responded with a motion to quash, which was denied by the motion justice. Thereafter, 

Butler Hospital notified pretrial counsel by letter, dated May 4, 2007, that it would provide the 

records to the motion justice. Even though Butler Hospital produced the documents to the court, 

there is no evidence that either pretrial counsel or trial counsel sought to review them. Pretrial 

counsel testified at the hearing on the motion for new trial that he did not remember whether he

reviewed the records; he did, however, recall receiving the letter from Butler Hospital informing 

him that the records would arrive at the court within a week. Further, trial counsel testified that 

he saw the Rule 17(c) subpoena when he was reviewing the case file, but he acknowledged that 

he did not follow up to determine whether the court had the Butler Hospital records.

The trial justice also found that pretrial counsel was well aware of the regular procedure 

that the motion justice followed when he received records for in camera review, which was to 

put them aside for the attorneys’ later perusal. When he weighed the merits of the motion for 

new trial, the trial justice took into consideration that pretrial counsel had, in fact, reviewed a 

number of other subpoenaed records that had been provided to the court. Indeed, the trial justice 

noted that the records that had been received in response to other subpoenas served upon DCYF 

and the Kent Center were contained in envelopes that had been examined by pretrial counsel, as 

evidenced by his signature and the date of June 14, 2007, as well as a notation on the envelopes 

containing the documents that he “examined” the records but they were “not needed.” The trial 

justice also noted that these records reviewed by pretrial counsel reflected Jane’s ODD diagnosis 

and nightmares, before, during, and after Jane’s hospitalization at Butler Hospital.
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Accordingly, we hold that defendant was not deprived of his rights to compulsory process 

or confrontation because both pretrial counsel and trial counsel were afforded access to the 

Butler Hospital records. There is no evidence that either the motion justice or the trial justice 

hindered defendant from getting access to or reviewing those records in any way.10

The defendant relies on this Court’s holding in State v. Kelly, 554 A.2d 632 (R.I. 1989), 

as support for his argument that he was deprived of his right to compulsory process and his right 

to confrontation. In that case, we held that a flat refusal by a trial justice to order the production 

of a witness’s DCYF records on the grounds of confidentiality denied the defendant his right to 

effective cross-examination. Id. at 636. Here, however, unlike in Kelly, defendant was never 

deprived of an opportunity to review the Butler Hospital records. The motion justice ordered the 

records to be produced for an in camera review, and, after its motion to quash was denied, Butler 

Hospital provided the attorneys with notice that the records were being produced in accordance 

with the court’s order. We have no hesitation in concluding that failure to take advantage of this 

opportunity should not, and does not, create a basis for a new trial.11

However, even if there had been an error based on the failure of the motion justice to 

conduct in camera review, defendant would not be entitled to a new trial, because there was no 

material prejudice to defendant. In Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987), the United 

States Supreme Court held that a new trial is warranted only if a subsequent in camera review of 

the records discloses information “that probably would have changed the outcome of [a] trial.” 

 10 In fact, it cannot be gainsaid that the motion justice’s practice of providing attorneys with the 

opportunity to review the records and determine what they needed afforded defendant greater 

protection of his rights than if an in camera review had been conducted by the judge. See

Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987).

11 Similarly, defendant cites Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995) and Ritchie, but 

these cases also are distinguishable, because, in those cases, the defendants were affirmatively 

denied access to certain records without the court’s first reviewing those records.
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In this case, the trial justice explained that he “conducted a page-by-page review of the 

subject hospital records and * * * found that none of them need[ed] [to] have been disclosed to 

trial counsel,” and “[a]fter performing the balancing test required by [G.L. 1956] §§ 5-37.3-

6.1(d) and (e), * * * any perceived need for the information contained therein does not ‘clearly 

outweigh the privacy interest of the individual’ involved * * *.” The trial justice considered the 

particular information in the Butler Hospital records about Jane’s nightmares and ODD 

diagnoses, and he found that they were “well documented throughout the records reviewed and 

copied by [pretrial counsel].” The Kent Center records, dated January 4, 2005—which were 

more proximate in time to the incidents alleged in the indictment than were the Butler Hospital 

records—refer to Jane’s “frequent bad dreams,” and the other records that pretrial counsel did 

review are replete with more than seventy references to Jane’s ODD diagnosis. As a result, the 

motion justice ultimately concluded that on this evidence he would have found defendant guilty, 

as did the jury. Accordingly, after reviewing the record before us, we conclude that the motion 

justice did not err when he rejected defendant’s motion for new trial.

2

Police Statement

The defendant next contends that the trial justice erred in rejecting posttrial counsel’s

argument that the state was required to produce certain police statements that either mentioned or 

were provided by Jane. The defendant argues that withholding Jane’s police statement from him 

violated the state’s obligations under Rule 16 of the Superior Court Rules of Criminal Procedure 

and Brady v. Maryland, 373 U.S. 83 (1963).12 The state responds that it had no obligation to 

produce those statements, that defendant did not overcome the evidentiary burden for a new trial 

 12 Brady v. Maryland, 373 U.S. 83 (1963) is the seminal case that stands for the proposition that 

the prosecuting authority must timely disclose all “exculpatory” information of which it is aware.
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because the police statements easily were discoverable prior to the trial, and that, in any event, 

the statements were not material to the issues tried before the jury.

We review a trial justice’s decision about whether a violation of Rule 16 or a Brady

violation has occurred with great deference to the trial justice, and we will not disturb his or her 

ruling unless he or she has committed clear error. State v. McManus, 941 A.2d 222, 229 (R.I. 

2008) (citing State v. Briggs, 886 A.2d 735, 755 (R.I. 2005)). When a criminal defendant 

requests discovery material concerning witnesses whom the state may call to testify at trial, Rule 

16(a)(8) obligates the state to provide “written or recorded verbatim statements, signed or 

unsigned, of such persons” it expects to call as witnesses; and failure to comply with the 

obligation may subject the state to a variety of sanctions, based on Rule 16(i). See State v. 

Chalk, 816 A.2d 413, 418 (R.I. 2002). 

Beyond the mandates of Rule 16, the due process requirements of the United States 

Constitution, as interpreted in Brady and its progeny, and the Rhode Island Constitution require 

the state to turn over information that “(1) constitute[s] either exculpatory or impeachment 

evidence and (2) [is] material to the outcome of the case or sentencing.” State v. Wyche, 518 

A.2d 907, 909 (R.I. 1986). In order to demonstrate that a Brady violation has occurred, a 

defendant has the burden of showing that “there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been different.” 

McManus, 941 A.2d at 230 (quoting Cronan ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I. 

2001)). However, the prosecution is not responsible for delivering information that is not within 

its custody or control. Wyche, 518 A.2d at 909.

At issue are thirteen police reports of the Warwick Police Department that either refer to 

or name Jane. But only two of the documents contain “written or recorded verbatim statements” 
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by Jane. See Rule 16(a)(8). Both are witness statements that Jane wrote about criminal incidents 

to which she was an eyewitness; neither relate to the allegations of the instant case in any way. 

The other documents contain non-verbatim statements—which the state is not required to 

produce under Rule 16(a)(8)—allegedly made by Jane to the police. These also pertain to 

matters not relevant to this case; two reports relate to crimes committed by third parties, one to a 

curfew/loitering/vagrancy of another juvenile who Jane was allegedly with, one to Jane’s 

unauthorized operation of a motor vehicle, five about Jane being missing or a runaway, one 

about Jane being “extremely disrespectful, staying out late, * * * involved with drug use, and * * 

* sexually active with older boys,” and one to a coyote attack that Jane observed. None of the 

reports, however, relates to the incidents that were the subject of the trial. Other than generally 

suggesting that these police reports somehow might indicate that Jane was a troubled child, 

defendant has failed to specifically indicate any way in which the reports might be considered to 

be material or that the outcome of the trial might have been different had defendant been 

provided access to them before the trial.13 Therefore, we agree with the trial justice’s 

determination that the police reports were not discoverable under Rule 16.

 13 We note that defendant does argue that at least one police report, which was unrelated to the 

underlying sexual assault, demonstrates Jane’s propensity to tell inconsistent and untruthful 

stories to the police and might warrant an inference against her credibility. Although the police 

report indicates that Jane “changed her story several times and there were inconsistencies with 

her observations at the scene,” there is no nexus between Jane’s sexual assault and the crime 

Jane described in the police report on December 16, 2006, which occurred almost six months 

after the last sexual assault was alleged to have occurred. Accordingly, we conclude that the trial 

justice did not abuse his broad discretion in finding that it was “incomprehensible” as to how the 

“perceived inconsistencies” in the police statement could be properly used to impeach her and 

that, therefore, the police report was “clearly not relevant.” See Rules 401 and 402 of the Rhode 

Island Rules of Evidence. Indeed, this Court has consistently held that “[a] witness may not be 

impeached on collateral matters by the introduction of extrinsic evidence.” State v. Viveiros, 45 

A.3d 1232, 1243 (R.I. 2012) (quoting State v. Tutt, 622 A.2d 459, 462 (R.I. 1993); see Rule 

608(b) of the Rhode Island Rules of Evidence (“Specific instances of the conduct of a witness, 
- 18 -

With regard to the alleged Brady violation, there also was no evidence that the state 

possessed the reports prior to trial, or even that the state was aware of their existence. The trial 

justice performed a document-by-document review of all the police records, described each 

document in detail, and found that the statements were not exculpatory. He observed that 

defendant produced no evidence, nor was there any support in the record, that would indicate 

that the state deliberately failed to disclose the police reports. Further, the motion justice 

observed that a number of the incidents that were reported in the police statements also were 

referred to in the Kent Center and DCYF records, which pretrial counsel reviewed and copied. 

Accordingly, we hold that the trial justice did not err when he held that none of the information 

constituted exculpatory evidence that the state had an obligation to produce under Brady.

B

Jury Instructions

The defendant further contends that the motion justice failed to correctly instruct the jury 

on the “Humane Practice Rule” with respect to the voluntariness of his police statement.14 “It is 

axiomatic that ‘this [C]ourt will not consider an issue raised for the first time on appeal that was 

not properly presented before the trial court.’” State v. Castellucci, 771 A.2d 902, 903 (R.I. 

2001) (mem.) (quoting State v. Saluter, 715 A.2d 1250, 1258 (R.I. 1998)). “A failure to object to 

a jury instruction precludes review of the instruction on appeal.” State v. Hallenbeck, 878 A.2d 

992, 1007 (R.I. 2005) (quoting State v. Ibrahim, 862 A.2d 787, 795 (R.I. 2004)). 

 

for the purpose of attacking or supporting the witness’ credibility * * * may not be proved by 

extrinsic evidence.”).

14 The Humane Practice Rule provides an important procedural safeguard with respect to the 

constitutional rights of criminal defendants. See State v. Dennis, 893 A.2d 250, 261-62 (R.I. 

2006). Our “Humane Practice Rule requires that judge and jury make separate and independent 

determinations of voluntariness * * *.” Id. at 262. In other words, the Humane Practice Rule

provides that any statement of a criminal defendant “may not serve as a basis for conviction 

unless both judge and jury determine that it was voluntarily made.” Id.
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The record in the present case is devoid of any evidence whatsoever that defendant raised 

an objection to the jury instructions.15 Indeed, before he instructed the jury, the trial justice met 

with the attorneys and asked whether “either attorney ha[d] any current objections to the 

proposed charge or any additions that they want [him] to consider,” or whether there were “any 

issues we need to discuss prior to bringing in the jury for purposes of final argument and 

charge.” Defense counsel replied, “No, Your Honor.” After he instructed the jury, the trial 

justice again asked the attorneys whether there were “any objections or requested additions to the 

charge that I’ve given to the jury,” to which trial counsel responded, “neither an objection nor 

exception.” Because defendant did not object to the finalized jury charge, this argument has 

been waived on appeal, and we shall not consider it. See Hallenbeck, 878 A.2d at 1007.

 15 A portion of the trial justice’s final charge to the jury relating to the voluntariness issue is as 

follows:

“As you are aware, the defendant made statements to the 

police while he was in their custody. You may not consider those 

statements as substantive evidence, however, unless you are 

satisfied in the first instance that the State has demonstrated by 

clear and convincing evidence; that is to say, by a high probability, 

that before making those statements, the defendant had been 

advised of certain constitutional rights, the so-called Miranda

rights; namely, that the defendant had a right to remain silent; that 

anything he said could and would be used against him in court; that 

he had the right to have an attorney present before and during any 

questioning by the police and that if he desired an attorney at that 

time and could not afford one, an attorney would be appointed for 

him.

“The State must also demonstrate from a totality of the 

circumstances that it is highly probable the defendant understood 

those rights and that thereafter he voluntarily wa[i]ved those rights 

in an intelligent and informed manner without threats or coercion 

or promises by the police.”
- 20 -

C

Cross-Examination

Finally, defendant argues that the trial justice erred in limiting defendant’s crossexamination of Jane about her refusal to undergo a physical examination in connection with her 

allegations of child molestation. Specifically, defendant argues that Jane’s assertion that she did 

not want to be touched was manifestly untrue, based upon information available to defendant 

that her allegations first arose during a conversation with her mother about her sexual history. 

The state contends that defendant failed to adhere to the prerequisites of Rule 412 of the Rhode 

Island Rules of Evidence, as well as the requirements of G.L. 1956 § 11-37-13, before he crossexamined Jane about her purported prior sexual activity with third parties. Therefore, the state 

stresses, the trial justice properly decided to preclude trial counsel from going any farther 

concerning this line of inquiry.

“Inherent in a criminal defendant’s constitutional right to confront witnesses against him 

or her—found in both article 1, section 10, of the Rhode Island Constitution and the Sixth 

Amendment to the United States Constitution—‘is the fundamental right of the criminal 

defendant to cross-examine his or her accusers.’” State v. Rivera, 987 A.2d 887, 906 (R.I. 2010) 

(quoting State v. Drew, 919 A.2d 397, 411 (R.I. 2007)). This right to cross-examine, however 

“is not unbounded.” Id. (quoting Drew, 919 A.2d at 411). “[T]rial justices are accorded wide 

discretion to curtail cross-examination after there has been ‘sufficient cross-examination to 

satisfy the Sixth Amendment.’” Rivera, 987 A.2d at 906 (quoting Drew, 919 A.2d at 411). This 

Court reviews “[a] trial justice’s decision to limit the scope of cross-examination * * * for clear 

abuse of discretion; the decision will be overruled ‘only if such abuse constitutes prejudicial 

error.’” Id. (quoting Drew, 919 A.2d at 411).
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Significantly, Rule 412, which is almost identical to § 11-37-13, provides, in pertinent 

part:

“If a defendant who is charged with the crime of sexual assault 

intends to introduce proof that the complaining witness has 

engaged in sexual activities with other persons, he or she shall give 

notice of his or her intention to the court and the attorney for the 

state. The notice shall be given prior to the introduction of any

evidence of such fact * * *.” (Emphasis added.)

The statute and the evidentiary rule both require a defendant to provide notice, outside the 

presence of the jury, of his intent to inquire about the complainant’s sexual activity with others. 

After notice is given, the trial justice “shall order the defendant to make a specific offer of the 

proof that he or she intends to introduce in support of this issue.” Rule 412; § 11-37-13.

In this case, the defendant failed to provide any notice either to the court or to the state 

before he sought to cross-examine Jane about her alleged previous sexual conduct. By 

prohibiting this line of inquiry, the trial justice acted completely in accord with his 

responsibilities in light of the statutory provision and the rule of evidence. Moreover, the record 

reveals that the defendant was permitted to engage in extensive cross-examination: counsel 

vigorously explored Jane’s relationship with the defendant, her visits to his home, the three 

incidents of sexual molestation, and her refusal to allow an examination by medical staff after the 

assaults.16 Further, the trial justice found that Jane’s “testimony regarding her refusal to consent 

to a gynecological examination may very well [have] lead to the jury’s failure to agree on a 

verdict as to the count alleging sexual penetration, [but] the results of the examination, if any, 

would not have been probative as to the two counts of sexual contact.” He also found that Jane’s 

“consensual sex with other children, if any, would have been irrelevant and therefore 

 16 Specifically, when asked why she refused to undergo a physical examination by a doctor after 

the incidents, Jane explained that it was “’[c]ause [she] d[id]n’t want no one [sic] touching 

[her].”
- 22 -

inadmissible,” and her unwillingness to have an “unfamiliar doctor examine her body’s most 

private parts was understandably more than [she] could bear.” Accordingly, we hold that the 

trial justice did not abuse his discretion when he limited the defendant’s cross-examination of 

Jane about her refusal to undergo a physical examination.

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of conviction in this 

case. The record shall be returned to the Superior Court.

Justice Indeglia did not participate.
RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: State v. Robert Burnham.

 

CASE NO: No. 2010-410-C.A.

(K1/06-662A)

COURT: Supreme Court

DATE OPINION FILED: January 18, 2013

JUSTICES: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

WRITTEN BY: Associate Justice Francis X. Flaherty

SOURCE OF APPEAL: Kent County Superior Court

JUDGE FROM LOWER COURT:

 Associate Justice Edwin J. Gale

ATTORNEYS ON APPEAL:

 For State: Christopher R. Bush

 Department of Attorney General

For Defendant: Thomas M. Dickinson, Esq.