# State v. Lynch > Supreme Court of Rhode Island · August 12, 2004 · 854 A.2d 1022 URL: https://www.frixlaw.com/law-library/cases/9754085 ## Case - **Full name:** STATE v. Raymond LYNCH - **Court:** Supreme Court of Rhode Island - **Decided:** August 12, 2004 - **Citations:** 854 A.2d 1022; 2004 WL 1793371 - **Precedential status:** Published - **Opinion:** Concurrence by Flanders - **Judges:** Williams, Flanders, Goldberg, Flaherty, Suttell - **Cited by:** 95 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754085 ## How later opinions describe it (automated extraction) - holding jurors “would not be unduly surprised or prejudiced” by defendant’s daughter angrily rushing from the stand toward defendant because they already knew of the daughter’s allegations of defendant’s sexual abuse ## Opinion text FLANDERS, Justice, concurring. I respectfully disagree with the majority’s analysis of whether John’s hearsay statement about his consensual sexual contact with Mary, the complaining witness, was inadmissible as a statement against John’s interest within the meaning of Rule 804(b)(3) of the Rhode Island Rules of Evidence. In my opinion, John’s alleged oral admission to Sergeant Kerri Holsten of having had consensual sex with a mentally incapacitated sixteen-year old was definitely against his interest because such a statement “so far tended to subject the declarant to civil or criminal liability, * * * that a reasonable person in the de-clarant’s position would not have made the statement unless the declarant believed it to be true.” R.I. R. Evid. 804(b)(3). As the advisory committee’s note to Rule 804(b)(3) indicates, “[t]o be admissible, the statement must actually have a potential for damaging the declarant’s pecuniary, proprietary, penal, or legal interests.” (Emphasis added.) The majority acknowledges that “the sexual activities to which [John] admitted in the hearsay statements, even if consensual, would arguably subject him to liability for sexual penetration with a mentally disabled individual under [G.L.1956] § 11-37-2, as well as for sodomy, under the then-existing version of [G.L.1956] § 11-10-1.” The majority also concedes that, “as the trial justice noted, the statements were contrary to [John’s] pecuniary interest in the event that Mary became pregnant as a result of their sexual encounter.” Where I part company with the majority is when it indicates that “it is not clear from the record that a reasonable fourteen-year-old, under investigation for an alleged sexual assault, would be mindful of the possibility that Mary might have had a mental disability sufficient to transform an act of consensual sex into a sexual assault.” Respectfully, I do not believe that such knowledge on the declarant’s part is a prerequisite to admitting the statement in question under Rule 804(b)(3). In assessing whether a statement was truly against the declarant’s interest, courts have employed an objective test to determine — as the text of Rule 804(b)(3) requires — whether “a reasonable person in the declarant’s position would not have made the statement unless the declarant believed it to be true.” (Emphasis added.) See Taylor v. Commonwealth, 821 S.W.2d 72, 75 (Ky.1990); State v. Kiewert, 135 N.H. 338 , 605 A.2d 1031, 1034 (1992); City of Dayton v. Combs, 94 Ohio App.3d 291 , 640 N.E.2d 863, 872 (1993). The “usual standard” employed in determining whether the statement was against the declar-ant’s interest focuses on an objective “reasonable-person” standard, rather than a subjective focus on the actual state of mind of the declarant when he or she made the statement. 2 McCormick on Evidence § 319(e) at 329 (John W. Strong, 5th ed.1999) (although “[i]n strictest logic, attention * * * should focus on the actual state of mind produced in the declarant” the prevailing standard is an objective “reasonable-person” test). 8 In Kiewert , *1048 the New Hampshire Supreme Court explained the reason for employing an objective standard: “Rule 804(b)(3) clearly sets forth an objective standard for determining the against-interest nature of the statement. * * * This standard was adopted for practical reasons; because the initial threshold requirement for the application of the rule is that the declarant be unavailable, there will rarely be evidence of what the declarant thought.” Kiewert, 605 A.2d at 1034-35 . (Emphasis added.) Thus, Rule 804(b)(3) does not require a subjective determination of whether the declarant was, as the majority puts it, “mindful of the possibility that Mary might have had a mental disability sufficient to transform an act of consensual sex into a sexual assault.” Employing this objective standard, I believe that a reasonable fourteen-year old in John’s position would not have admitted to engaging in vaginal and attempted anal intercourse with a mentally impaired sixteen-year old — even if such behavior could somehow qualify as “consensual” — unless he believed such a statement was true. To constitute a crime under G.L.1956 § 11-37-2(1), the accused must have engaged in sexual penetration with another person and he or she must “know[] or ha[ve] reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless.” The state argued to the trial justice that John gave his statement to the police in connection with a police investigation into allegations that Mary was mentally incapacitated and therefore unable to consent to sexual intercourse. Sergeant Holsten of the Warwick Police Department testified at trial that after initially denying that he even knew Mary, John eventually admitted to having sexual intercourse with her. This admission occurred while Sgt. Holsten was questioning John, at the police station, in the presence of his father. Sergeant Holsten testified that John’s father then terminated the police interview with his son, citing legal advice that he had obtained as the reason for doing so. In this context, a reasonable teenage boy in John’s position would know that admitting to such actions — in front of the police, not to mention his father — could subject him not only to penal or criminal liability, but also to all sorts of other adverse consequences, not the least of which is civil liability, a delinquency adjudication, 9 and the potential for him and his family to face claims seeking money damages for such alleged misconduct on his part. In any event, under our familiar raise- or-waive rule, the defense waived the argument that John’s statement was not against his interest because the evidence allegedly failed to show that a reasonable fourteen-year old in John’s position would not have known or have reason to know that Mary was mentally disabled, as § 11-37-2(1) requires. Defense counsel object *1049 ed to the admission of John’s oral statement only on the basis that John asserted the sexual intercourse was consensual, and that therefore his statement was not against his penal interest. Defense counsel never objected to the admissibility of John’s oral statement on the ground that the prosecutor failed to establish that John was “mindful of the possibility that Mary might have had a mental disability sufficient to transform an act of consensual sex into a sexual assault.” Consequently, the defendant failed to preserve this contention at trial as a basis to reverse on appeal the trial justice’s decision to admit the testimony into evidence. In addition, as the advisory committee’s note to Rule 804(b)(3) (“Exception (3): Statements Against Interest”) indicates, “[t]o be admissible, the statement must actually have a potential for damaging the declarant’s pecuniary, proprietary, penal, or legal interests.” (Emphasis added.) Thus, all that is necessary to satisfy this aspect of the rule is that the declarant’s statement have a potential to damage his or her interests, including the declarant’s interest in avoiding potential civil liability. Under these circumstances, I would hold that a reasonable fourteen-year old’s admission that he engaged in sexual intercourse with a mentally disabled classmate certainly had “the potential for damaging the declarant’s pecuniary, proprietary, penal, or legal interests,” regardless of whether the record reflects any knowledge on his part about the classmate’s mental disability. Also, I believe the Court construes Rule 804(b)(3) too narrowly when it insists that a reasonable fourteen-year old would have had to be aware that the statement in question could subject him to penal liability or to some sort of financial responsibility. Rule 804(b)(3) does not require that the statement in question be contrary to the declarant’s penal or financial interest. Rather, the rule is broader, also embracing statements that merely subject the declar-ant to civil liability, such as a delinquency adjudication, or that are otherwise against the declarant’s pecuniary, proprietary, or legal interests. Indeed, the hearsay exception for statements against the declar-ant’s interest “reaches a wide range of statements that directly and immediately impair or qualify the pecuniary or proprietary interest of the speaker,” including statements that tend to subject the speaker to tort liability, to loss of employment, or to loss of employment opportunities. 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 497 at 824-25 (2d ed.1994). In short, I believe the Court takes too-narrow a view of the rule when it insists that a reasonable fourteen-year old would have had to be aware that the statement in question could subject him to penal liability or to some sort of financial responsibility. The rule is not so narrowly drawn and the Court errs, in my opinion, when it effectively redrafts it by interpretation to focus solely on the potential penal and financial consequences of the admission and on whether a reasonable fourteen-year old would have been aware of such consequences. In any event, I would hold that John’s statement was potentially damaging to his interests in avoiding potential criminal and civil liability for having sex with a mentally disabled classmate and then lying about it to the police. To constitute a crime under § 11-37-2(1), the circumstances must be such that the accused engaged in sexual penetration -with his or her accuser and that he “knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless.” This is because such a person lacks the ability to consent to the intercourse. Because John could potentially be found guilty of this offense even if Mary had *1050 “consented” to engage in sexual intercourse, his admission that he did engage in the sex acts Mary described had the potential to compromise his interest in avoiding potential civil and criminal liability for engaging in such acts. Moreover, regardless of John’s awareness of Mary’s mental disability, as the trial justice observed, the statement was contrary to John’s pecuniary interest in the event that Mary became pregnant as a result of the sexual encounter. Lastly, it was also against John’s interest in avoiding potential criminal and civil liability to give contradictory oral and written statements to the police about what happened with Mary. Martha Stewart is only the latest in a long list of defendants who have been accused — let alone convicted — of obstructing justice by lying to the authorities who were investigating their alleged misconduct. For these reasons, I would hold that John’s oral statement admitting to sexual intercourse with Mary— one that contradicted not only his previous verbal denial of even knowing Mary, but also his later written statement (“we were kissing and nothing happened”) — was potentially damaging to his penal and civil interests; that a reasonable fourteen-year old in John’s position would not have made such an admission unless it was true; and that, therefore, the trial justice did not commit reversible error when he ruled that John’s oral statement to Sgt. Holsten was admissible under Rule 804(b)(3). Moreover, as the Court acknowledges, the admission into evidence of such a hearsay statement at trial under an exception to the hearsay rule lay within the sound discretion of the trial justice. See, e.g., State v. Verrecchia, 766 A.2d 377, 390 (R.I.2001); State v. Harding, 740 A.2d 1270, 1273 (R.I.1999) (per curiam). Thus, this Court should not overturn such a decision on appeal unless the trial justice’s decision to admit or exclude such evidence was clearly erroneous. Verrecchia, 766 A.2d at 390 . I am hard pressed to say that the trial justice’s admission of such evidence— which undeniably tended to subject the declarant to civil liability at a minimum— was clearly erroneous, even if, as the majority concludes, there was no clear evidence in the record that a reasonable person in John’s position would be aware that Mary was mentally disabled. I also believe that the trial justice properly admitted Sgt. Holsten’s testimony of John’s oral statement pursuant to the curative-admissibility doctrine. The curative-admissibility doctrine, under certain circumstances, provides that “if one party offers an inadmissible fact that is received * * * the opponent afterwards may offer similar facts whose only claim to admission is that they negative, explain, or counterbalance the prior inadmissible fact.” 1 John Henry Wigmore, Evidence § 15 at 731 (rev. ed. Peter Tillers 1983). Here, it was defense counsel who first elicited testimony from Mary on his cross-examination of her concerning her allegations of previous sexual abuse by John. What the jury did not hear during this cross-examination, however, was that John admitted orally to Sgt. Holstén the details of Mary’s allegations: namely, that he had in fact had sexual intercourse with her. Defense counsel suggested, in his argument in opposition to the state’s motion in limine to prevent the defense from offering this evidence, that the evidence bore directly on Mary’s credibility. 10 The introduction of *1051 this evidence suggested that Mary had made the same type of sexual-abuse allegations that she made against her father against at least one other person (John), and that she did so falsely. This is especially true when, as here, the jury was able to observe Mary’s difficulty relating the timing and sequence of the alleged incidents of abuse by her father. In State v. Burke, 529 A.2d 621, 631 (R.I.1987), this Court recognized the doctrine of curative admissibility. In Burke , defense counsel elicited, on cross-examination of a state’s witness, a statement that a third person approached and threatened the witness. Id. at 630 . On redirect, the prosecution questioned this witness about the contents of this conversation. Id. This Court held that “[u]nder the principle of curative admissibility * * * the prior introduction of inadmissible evidence for a certain class of facts permits the trial justice to allow the introduction of answering inadmissible evidence pertaining to the same matter.” Id. at 631 . The Court went on to note, “[w]hen * * * one party seeks the admission of inadmissible evidence without objection by his opponent, the allowance of answering evidence is within the sound discretion of the trial justice.” Id. See also State v. Brash, 512 A.2d 1375, 1379 (R.I.1986) (defense did not waive objection to hearsay evidence simply because defense counsel elicited additional hearsay answers from same witnesses on cross-examination). 11 A court may apply curative admissibility, however, even when, as here, there was an objection to the initial introduction of the evidence. 1 Wigmore, § 15 at 731. Indeed, “the better rule permits use of the principle of curative admissibility even if an objection has been made in the first instance.” Id. Thus, the curative-admissibility doctrine can be an alternate ground for admitting hearsay evidence that otherwise would be inadmissible under an exception to the hearsay rule. State v. Armentrout, 8 S.W.3d 99, 111 (Mo.1999) (en banc). In Armentrout , the defendant, who was charged with a murder — the motive for which was robbery — elicited hearsay testimony during cross-examination of a state’s witness. Id. The state’s witness testified on cross-examination that the deceased victim voluntarily gave the defendant her checkbook. Id. The court employed the curative-admissibility doctrine, allowing the state to admit the testimony of a different witness who testified that the deceased victim said she was afraid that the defendant would kill her if she did not continue to fund his illegal drug purchases. Id. at 103, 111 . The court held that “where a defendant has injected an issue into the case, the state may be allowed to admit otherwise inadmissible evidence in order to explain or counteract a negative inference raised by the issue defendant injects.” Id. at 111 (quoting State v. Weaver, 912 S.W.2d 499, 510 (Mo.1995) (en banc)). See also State v. Martin, 241 Kan. 732 , 740 P.2d 577, 582-83 (1987) (admission of declarant’s out-of-court statement to police upheld as admissible “in light of [defendant] opening up the issue on cross-examination”). *1052 In State v. Johnson, 258 Kan. 475 , 905 P.2d 94, 99-100 (1995) the court held that when defense counsel elicited testimony from a witness that implied that the witness, rather than the defendant, was an accomplice to the crime, the state was entitled to admit into evidence otherwise inadmissible hearsay to rebut defense counsel’s innuendo. On cross-examination of a state’s witness, defense counsel asked whether there were “records of phone calls” between the witness and a third, unavailable person implicated in the crime. Id. at 99. Defense counsel also asked whether there was a note addressed to the witness from the same third person, warning the witness not to talk to police. Id. The court acknowledged that defense counsel knew that the note and the telephone conversations did not implicate the witness in the crimes, but sought to use their existence to “change the focus of the evidence” and imply that the witness, and not the defendant, was the co-participant in the crime. Id. at 100. The Kansas Supreme Court held that: “Once the defendant addressed the telephone conversation and the note in this manner during cross-examination, the State was entitled to rehabilitate [the witness] by introducing details of the conversation and note. The trial court was correct in permitting [the witness] to testify as to the contents of the note and his telephone conversation * * *.” Id. As in Johnson , allowing defense counsel here to admit into evidence only a portion of the relevant information about Mary’s previous sexual encounter with John would “prejudice the State’s right to a fair trial.” Id. at 99. As such, under the curative-admissibility doctrine, I would hold that the trial justice did not err in allowing the state to present Sgt. Holsten’s testimony about John’s oral admission to rebut the defendant’s suggestion that Mary’s accusations against John — and therefore her accusations against her father — were untrue. Absent the curative admission of John’s oral statement to Sgt. Holsten, the court should not have admitted the cross-examination testimony of Mary on this subject because of the misleading and incomplete impression it would have created in the minds of the jurors about the nature of the incident in question. I also concur with the Court’s analysis that the defendant waived his right to raise a Sixth Amendment claim here because he did not raise this issue at trial. I agree that, even if the trial justice erred in admitting John’s testimony — and I do not believe he did — -such an error was harmless for all the reasons the Court recites in its opinion. See Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) (holding that “the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to * * * harmless-error analysis”). Given that the evidence about John’s alleged oral statement was not harmful to him in any event, the defendant does not satisfy this aspect of the exception to our raise-or-waive rule. Moreover, by bringing up this previous incident with John on his cross-examination of Mary and by introducing John’s written hearsay statement on his cross-examination of Sgt. Holsten, defendant waived his constitutional right to confront John about the latter’s alleged oral admission to engaging in consensual sex with Mary. A defendant can waive his or her constitutional rights, including the Sixth Amendment right to confrontation. United States v. Cooper, 243 F.3d 411, 418 (7th Cir.2001); Norton v. State, 772 N.E.2d 1028, 1032 (Ind.Ct.App.2002) (defendant may waive his right to confront and cross- *1053 examine witnesses both voluntarily and through trial error) (collecting cases). See also State v. Borges, 519 A.2d 574, 578 (R.I.1986) (an accused can waive his or her constitutional right to be present at his or her trial when such an absence is voluntary); State v. Feng, 421 A.2d 1258 , 1266 n. 10 (R.I.1980) (a defendant who pleads guilty or nolo contendere to a criminal charge waives, among other constitutional rights, his Sixth Amendment right to confront the witnesses against him). Courts have frequently held that a defendant waived his or her constitutional rights with respect to a prosecutor’s use of inadmissible evidence when the prosecutor used it only to rebut the defendant’s initial introduction of similarly inadmissible evidence. United States v. Steele, 610 F.2d 504, 504, 505 (8th Cir.1979) (any error made in admitting statements defendant gave without Miranda warnings is not reversible when “defendant ‘opened the door’ and ‘invited error’ ”); People v. George, 49 Ill.2d 372 , 274 N.E.2d 26, 30 (1971) (defendant cannot complain of the prosecution’s references at trial to property allegedly seized pursuant to an invalid search warrant because it was defense counsel that first elicited testimony about the property during cross-examination of prosecution witnesses). See also Walder v. United States, 347 U.S. 62, 64-65 , 74 S.Ct. 354 , 98 L.Ed. 503 (1954) (when defendant perjures himself about his involvement in drugs, government can introduce evidence of illegally seized property solely to impeach defendant’s credibility). Moreover, when defense counsel has a legitimate, tactical reason for entering hearsay statements into evidence, and the defendant does not dissent from that decision, the defendant has waived his or her Sixth Amendment right to confrontation. Cooper, 243 F.3d at 418 ; Campbell v. State, No.2002-KA-01448-COA, — So.2d —, 2004 WL 885691 at *4 (Miss.Ct.App. April 27, 2004). Most notably, the Supreme Court of Kansas, in Johnson, 905 P.2d at 100 , held that “[b]y opening the door to otherwise inadmissible hearsay, a defendant waives the Sixth Amendment right to confrontation.” Here, as in Johnson , the trial justice properly admitted Sgt. Holsten’s testimony about John’s oral statement to rebut the suggestion by defendant’s counsel that Mary made other allegedly false accusations against John of the same kind of sexual acts that she accused her father of committing. By questioning Mary on cross-examination about the incidents with John, defense counsel opened the door to John’s otherwise inadmissible oral statement to Sgt. Holsten in which he admitted committing the sexual acts in question. In addition, defense counsel introduced into evidence John’s written hearsay statement — one in which he denied having any sexual intercourse with Mary. By cross-examining Mary about her allegations against John — for the purpose of attacking her credibility — and by introducing John’s written hearsay statement during the defense’s cross-examination of Sgt. Holsten, defendant effectively waived his Sixth Amendment right to confront John concerning his oral admission to Sgt. Holsten about engaging in this conduct. Moreover, the United States Supreme Court’s recent opinion in Crawford v. Washington, — U.S. —, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) is inapplicable to this situation. In Crawford , the Court did not express an opinion about whether the Confrontation Clause violation that occurred in that case was harmless error. Id. at 1359 n. 1. Additionally, the decision in Crawford does not affect this case because in Crawford the defendant did not open the door to the introduction of hearsay evidence and thereby waive his constitutional right to confront the declarant of such hearsay. *1054 A contrary holding would allow defense counsel to mislead the jury by selectively revealing only those details that are potentially helpful to the defense concerning such previous incidents, while leaving the jury in the dark about other material evidence concerning what really happened. Thus, having chosen to raise this previous incident in his cross-examination of Mary and to introduce John’s written hearsay statement on his cross-examination of Sgt. Holsten, I conclude that defendant waived his right to confront John about his alleged admission to Sgt. Holsten that he engaged in consensual sexual intercourse with Mary. Although the trial justice did not base the admission of this oral hearsay on the above-referenced considerations, on appeal, we can affirm the trial justice’s evi-dentiary ruling on grounds other than the ones actually relied upon to admit this testimony. See State v. Froais, 653 A.2d 735, 738 (R.I.1995) (collecting cases). For these reasons, I concur in the decision of the Court to affirm the defendant’s conviction, although, in some respects, I do so for different reasons from those relied upon by the majority. . Although some courts have employed a subjective analysis for determining the against-interest nature of a declarant’s out-of-court statement against interest, see Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir.1985) ("Hearsay under the declaration against interest exception is unreliable unless the declar-ant is aware at the time of making the statement that it is against his interest.”); People v. Morgan, 76 N.Y.2d 493 , 561 N.Y.S.2d 408 , *1048 562 N.E.2d 485, 487 (1990) (declarant must have been aware when he or she made the statement that it was contrary to his or her penal interest); Lilly v. Commonwealth, 255 Va. 558 , 499 S.E.2d 522, 533 (1998) ("the statement’s admissibility is based upon the subjective belief of the declarant that he is making admissions against his penal interest”) rev’d on other grounds, Lilly v. Virginia, 527 U.S. 116, 140 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999), I conclude that, given the "reasonable person” language of Rule 804(b)(3) of the Rhode Island Rules of Evidence, the better reasoned decisions are those that use the objective test. . This Court has applied the Rhode Island Rules of Evidence governing hearsay exceptions to juvenile delinquency proceedings. See In re Andrey G., 796 A.2d 452, 456 (R.I.2002) (per curiam). . In arguing against the state’s motion in limine, defense counsel noted: "[W]e believe that evidence of a complaining witness' prior allegations of sexual assault may be admitted to challenge effectively the complaining witness’ credibility even if those allegations were not proven false or withdrawn.” And again, in his closing statement, defense counsel sum *1051 marized the inconsistencies between John's written statement, John's oral statement to Sgt. Holsten and Mary's testimony about the incident, observing "[h]er [Mary's] testimony is not reliable” and ”[i]t doesn’t make sense because it didn’t happen.” . But see State v. Mallett, 600 A.2d 273, 277 (R.I.1991) holding that defendant did not "open[] the door” to questions about the results of a serology test on crime-scene blood when defense counsel initially inquired only whether police officers sent the blood to the FBI for testing. This Court held, however, that the trial justice’s error in allowing hearsay evidence was harmless. Id. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754085. Public record. Not legal advice.