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Supreme Court No. 2004-163-C.A. (P2/03-2163A)

State v. Antonio Bryant.

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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 2223258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Supreme Court No. 2004-163-C.A. (P2/03-2163A)

State v. Antonio Bryant.

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Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ. OPINION Justice Robinson for the Court. After a jury trial in Superior Court, the defendant, Antonio Bryant, was convicted of simple domestic assault -- his third conviction of a domestic offense. As a result of this conviction, the defendant was sentenced to a term of seven years -eighteen months to be served at the Adult Correctional Institutions and five and a half years suspended, with probation. On appeal, defendant contends (1) that the trial justice erred in refusing to allow defense counsel the opportunity to make an opening statement prior to the introduction of evidence by the state; (2) that the trial justice abused his discretion in refusing to strike the testimony of a young witness, Meraly R., for lack of personal knowledge on her part; and (3) that his constitutional right to due process was violated when the trial justice refused to declare a mistrial after the state attempted to elicit certain testimony from Officer Nichole Leboeuf. This case came before the Supreme Court for oral argument on December 5, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and reviewing

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the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. Facts and Travel On April 4, 2003, at approximately 9 p.m., the Central Falls police were asked to respond to an "unknown problem" at a multi-tenant residence at 239 Cowden Street in that city. Lissette Cuadras, the alleged victim in this case, lived on the second floor of that residence with defendant1 and her four children, Cheyene, Thomas, Lynese, and Ebony.2 Officer Nichole Leboeuf, a police officer and domestic violence instructor in the Central Falls Police Department, testified that when she arrived at the residence on the night in question she was directed to the second floor by Ms. Cuadras's frantic mother3 and a group of crying children who were standing in the main doorway of the apartment building. Officer Leboeuf testified that, when she went up to the second-floor apartment, she encountered Ms. Cuadras and defendant and a different group of children, who also were crying. According to the testimony of Officer Leboeuf, Ms. Cuadras was angrily demanding that defendant leave the house because he had been drinking and because they had been arguing. Officer Leboeuf testified that Ms. Cuadras and defendant were yelling loudly at each other and that she asked the children's grandmother to take the children upstairs.

Ms. Cuadras testified that defendant lived in the apartment "on and off" -- which we understand to mean that there were some occasions when he was at the residence and some when he was not. Ms. Cuadras further testified that, at the time of the incident in question, defendant had not been at the apartment for a couple of days.
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Ebony is the daughter of Ms. Cuadras and defendant.

Evelyn Santiago, Ms. Cuadras's mother, lived on the third floor of the apartment building. -2-

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When Sgt. Rene Ogni, Officer Leboeuf's supervisor and a domestic violence instructor in the Central Falls Police Department, arrived at the scene, he went up to the third floor to speak with the children while Officer Leboeuf remained on the second floor with Ms. Cuadras and defendant. Officer Leboeuf testified that, although Ms. Cuadras seemed upset, she refused to tell the police anything with respect to physical contact between herself and defendant. Nevertheless, based upon the information that was gathered by Sgt. Ogni during his conversations with the children on the third floor, defendant was placed under arrest. On this particular day, Meraly R., Ms. Cuadras's thirteen-year-old niece, and Meraly's sister Lillian were spending the night at Ms. Cuadras's home. Meraly testified that, at some point that night, defendant telephoned Ms. Cuadras, who looked angry and upset during the conversation. Meraly further testified that, a few hours later, around 9 or 9:30 p.m., they heard someone banging on the main door of the apartment building, but her aunt told her to ignore the banging. At this time, Meraly testified, she was in her aunt's bedroom with her aunt, her cousins Thomas and Cheyene, and her sister. According to the testimony of Meraly, defendant then

climbed up the fire escape and entered the bedroom through one of the windows. Meraly testified that, as defendant was opening the bedroom window, Ms. Cuadras told Lillian to go upstairs and call the police, at which point Lillian ran out of the room and upstairs to her grandmother's apartment. Meraly testified that, upon entering the bedroom, defendant grabbed Cheyene by her hair and put her into her own bedroom. Meraly further testified that, as defendant was grabbing Cheyene, her aunt approached defendant, who pushed her to the floor. According to Meraly's testimony, her aunt and defendant then moved into the kitchen, where defendant pushed Ms. Cuadras into the refrigerator several times, causing her to sustain bruises. Meraly further

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testified that defendant took Ms. Cuadras's glasses off and threw them into a pot. Meraly said that defendant then pushed Ms. Cuadras into the master bedroom and onto the bed, getting his hand tangled in her hair. According to Meraly's testimony, at some point during this argument, defendant told Ms. Cuadras that if she told the police what had happened she would be in big trouble. During cross-examination by defendant's attorney, Meraly admitted that the testimony that she had given was half based on what she had observed on the night in question and half based on what she had heard the other children tell Sgt. Ogni when he questioned them that night. Meraly stated that when Sgt. Ogni interviewed the children they were all together and were listening to each other's conversations with the officer. However, on redirect examination, Meraly testified specifically as to what she remembered seeing on the night of the alleged incident: "I saw him come in, and then I saw him take my cousin, then I saw him pushing my aunt a little bit; and when they were in the room, all I saw was like him pushing her on the bed and that's it." At the conclusion of Meraly's testimony, defense counsel moved to strike her testimony in its entirety for lack of personal knowledge. The trial justice denied the motion to strike, stating that "[t]he jury is sophisticated enough to separate what she saw and didn't see based on the testimony that you both have elicited." Cheyene B., Ms. Cuadras's ten-year-old daughter, and Thomas B., her eight-year-old son, both gave testimony that was similar to Meraly's testimony. Cheyene testified that when

defendant entered the house on the night in question he pulled her hair and then pushed her and her mother. Likewise, Thomas testified that he saw defendant grab Cheyene by the hair and then push Cheyene and his mother. Thomas further testified that he saw defendant push his mother

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against the refrigerator. Cheyene and Thomas also both testified that the children were all together when they spoke with Sgt. Ogni in their grandmother's apartment. Ms. Cuadras testified that, on the night in question, she was "pissed off" at defendant because he had not been home in two days, and when defendant entered her bedroom through the window,4 she yelled at him, called him names and "went nuts." Ms. Cuadras testified that she told Lillian to go upstairs and get her mother because her mother was a mediator, and she did not want the incident to escalate into a big argument between defendant and her. Ms. Cuadras further testified that, when the police arrived at her apartment that night, she told them that she was sick of defendant and wanted him out of her house. It should be noted, however, that, although Ms. Cuadras testified that she and defendant were arguing, she also testified that he never shoved her, pulled her hair or hit any of her children. In fact, Ms. Cuadras continued to deny that defendant had assaulted her -- even though, according to her testimony, one of the police officers who came to her apartment told her that if she did not tell them that defendant hit her they would take her children away from her. Sergeant Ogni testified that, when he interviewed Cheyene, Thomas, and Meraly on the night of the alleged assault, they told him that defendant had come in through the window and had then hit, pushed, and grabbed Ms. Cuadras by the hair. Sergeant Ogni testified that Thomas also told him that defendant had threatened his mother by saying: "If the police come and you tell them that I hit you, when I get out of jail, it will be even worse for you." Sergeant Ogni further testified that, after speaking with the children, he told Officer Leboeuf to place defendant under arrest for domestic assault.

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According to Ms. Cuadras's testimony, it was not uncommon for defendant to enter the apartment through the window. Moreover, Ms. Cuadras testified that on the night of the alleged incident she had left her bedroom window open so that defendant could come in. -5-

According to Sgt. Ogni's testimony, he then spoke to Ms. Cuadras about what the children had told him, and she asserted that what the children had described to him did not actually happen. On the other hand, Sgt. Ogni testified that Ms. Cuadras also told him that "[m]y children do not lie." Sergeant Ogni further testified that Ms. Cuadras refused to give the police a statement, sign any paperwork, or tell them that defendant had assaulted her. The defendant, who had two previous domestic offense convictions, was charged with simple domestic assault in violation of G.L. 1956

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