State v. Lisa Ricker

S
June 10, 2021

                                                          Supreme Court

                                                          No. 2018-293-C.A.
                                                          (K3/16-488A)


                     State                  :

                       v.                   :

                  Lisa Ricker.              :




                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
                (401) 222-3258 or Email: [email protected], of any
                typographical or other formal errors in order that corrections may
                be made before the opinion is published.
                                                        Supreme Court

                                                        No. 2018-293-C.A.
                                                        (K3/16-488A)
                                                        (Dissent begins on Page 22)

                 State                   :

                   v.                    :

              Lisa Ricker.               :


      Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

                                   OPINION

      Justice Lynch Prata, for the Court. This case came before the Supreme

Court on March 31, 2021, on appeal by the defendant, Lisa Ricker, from a judgment

of conviction entered in the Superior Court following a jury verdict of guilty on one

count of driving under the influence, in violation of G.L. 1956 § 31-27-2. This

prosecution arose from a motor vehicle stop that occurred on May 31, 2016.

      On appeal, the defendant argues that the trial court erred in limiting

cross-examination of a witness and abused its discretion in denying her motion for

a new trial. The defendant also raises two purported errors of law related to a jury

instruction and the verdict form. For the reasons set forth in this opinion, we affirm

the judgment of conviction.




                                        -1-
                                    Facts and Travel

       The testimony at trial revealed that defendant visited the Coventry Police

Department on the afternoon of May 31, 2016, in order to seek assistance from the

police regarding several matters. Officer Jadine Ferri was called in from patrol to

speak with her.1 The two conferred in the “counsel chambers” for ten to fifteen

minutes, during which defendant stood and paced, eventually becoming upset.

Then, abruptly, defendant left.

       Afterwards, Officer Ferri, who was nearing the end of her shift, proceeded to

her car. At trial, she testified that it was her practice to refill her police cruiser’s gas

tank before a shift change. Another car, driven by defendant, was also pulling out

of the parking lot in front of Officer Ferri. The officer drove behind defendant’s

vehicle for less than a mile, later testifying that she observed defendant driving

between five and ten miles an hour below the speed limit and swerving across both

the inner and outer lines of the lane in which she was traveling. At that point, Officer

Ferri turned on her emergency lights and pulled defendant’s vehicle over.

       At defendant’s car, Officer Ferri did not ask her for identification or

registration but noted that defendant had been crying. When asked why she was


1
  At trial, Officer Ferri testified that defendant reported the theft of pages from her
diary, the disappearance of her old driver’s license which she claimed later
reappeared, and that her daughter had run away. According to Officer Ferri,
defendant’s daughter had not run away, but was living with her father, and the
Coventry police were aware of this from a prior incident.

                                           -2-
traveling west on Flat River Road, defendant told Officer Ferri that it was “none of

[her] business.” The defendant claimed to the officer that she had not been drinking

although, Officer Ferri testified, defendant’s eyes were bloodshot and watery, she

spoke loudly and slurred her words, and the officer detected a faint odor of alcohol.

      After backup arrived, Officer Ferri asked defendant to step out of her car,

observing that, as she did so, defendant was leaning on the car to maintain her

balance. Officer Ferri then asked defendant to perform three standard field sobriety

tests—the horizontal gaze nystagmus test, the walk and turn test, and the one leg

stand test. At trial, Officer Ferri testified that defendant, in her performance of these

tests, exhibited multiple indicators that she was under the influence of an intoxicant.

Then-Sergeant Kenneth Gebo, also present, asked defendant to perform two

additional tests, the lack of convergence test and the Romberg balance test, later

testifying that defendant’s performance on these tests also indicated likely

intoxication. At this point, Officer Ferri placed defendant under arrest and returned

to the Coventry police station.

      After making a phone call, defendant consented to a breath test. Officer Ferri,

who was certified to operate the Intoxilyzer 9000,2 observed defendant for the


2
  William Swierk, an inspector of breath analysis with the Rhode Island Department
of Health (DOH), testified at trial that he tested the Coventry Intoxilyzer 9000 for
accuracy and certified its compliance with DOH regulations on May 26, 2016, five
days prior to defendant’s test. See State v. Cluley, 

808 A.2d 1098

, 1102 (R.I. 2002)
(“In any DUI prosecution, before breath-test results can be admitted as evidence of

                                          -3-
requisite fifteen-minute period to ensure an accurate test, and then took two breath

samples. The first sample showed a blood-alcohol content (BAC) of .083 grams of

alcohol per 100 milliliters of blood and the second sample showed a BAC of .080.

The defendant denied having had anything to drink that day but stated she had

consumed a “big Bloody Mary” the prior evening and had taken some prescription

medications.

      On June 10, 2016, the Coventry Police Department charged defendant in the

Third Division District Court with driving under the influence of alcohol, a

misdemeanor, under § 31-27-2.3 After she was found guilty at her District Court



a driver’s alleged intoxication, qualified DOH agents must have tested the equipment
in question for accuracy no more than thirty days before the police administer the
breath test to any given suspect.”) (citing G.L. 1956 § 31-27-2(c)(5)).
3
  When defendant was arrested and charged in 2016, § 31-27-2, which has since been
slightly reworded, read as follows, in pertinent part:

                   “(a) Whoever drives or otherwise operates any vehicle
               in the state while under the influence of any intoxicating
               liquor, drugs, toluene, or any controlled substance as
               defined in chapter 28 of title 21, or any combination of
               these, shall be guilty of a misdemeanor * * * and shall be
               punished as provided in subsection (d) of this section.
                   “(b)(1) Any person charged under subsection (a) * * *
               whose blood alcohol concentration is eight
               one-hundredths of one percent (.08%) or more by weight
               as shown by a chemical analysis of a blood, breath, or
               urine sample, shall be guilty of violating subsection (a) of
               this section. This provision shall not preclude a conviction
               based on other admissible evidence. Proof of guilt under
               this section may also be based on evidence that the person
               charged was under the influence * * * to a degree that

                                          -4-
bench trial in August 2016, defendant exercised her right to a de novo trial in the

Superior Court, which took place in January 2018.

      During trial, on January 10, 2018, at the end of defendant’s cross-examination

of Officer Ferri, the state objected to a line of questioning regarding a refusal

affidavit included in Officer Ferri’s police report, which had been offered by the

state for identification only. The record shows that, despite her testimony that

defendant had submitted willingly to the breathalyzer test, Officer Ferri also

completed a notarized affidavit which stated that defendant had refused to comply.

The state argued that cross-examination should be limited with regard to this

affidavit, because it would confuse the jury. The state also explained to the trial

justice and defense counsel at sidebar that it was the regular practice of the Coventry

Police Department to complete such affidavits in every case, regardless of whether

or not defendants had actually refused the test. The trial justice asked defense

counsel where she was going with this line of questioning, and counsel replied that

it was being offered “[j]ust to point out on that sheet it says, they can take it for

whatever it is worth.” Defense counsel also stated that it was her last question. The

trial justice then sustained the state’s objection, citing his “concern for misleading




             rendered the person incapable of safely operating a
             vehicle. * * *” Section 31-27-2 (as amended by P.L. 2014,
             ch. 230, § 1; P.L. 2014, ch. 326, § 1).

                                         -5-
and confusing the jury[,]” and cross-examination of Officer Ferri continued as to

other matters.

       Both the state and defendant rested on January 10, 2018. The following

morning, before the trial justice gave the jury its instructions, defendant objected to

the verdict form “with respect to the fact that on the verdict sheet we have the two

options for a guilty verdict.” The verdict sheet allowed the jury to “check one or

both” of the following three options: “GUILTY because she was under the influence

of intoxicating liquor and/or drugs to a degree that rendered her incapable of safely

operating a motor vehicle”; “GUILTY because she was operating a motor vehicle in

the state of Rhode Island with a blood alcohol level of 0.08%”; or “NOT

GUILTY[.]” The defendant’s objection was based on the fact that the criminal

complaint stated only one charge: driving under the influence as evidenced by her

BAC.4 The trial justice disagreed, finding that the complaint could reasonably be

read to include both theories. Consequently, the trial justice found the verdict sheet

to be appropriate and left it intact.

       When the jury entered the courtroom, the trial justice proceeded to instruct

them on the law. Included was an instruction that, “if you find that the breathalyzer


4
  The criminal complaint filed in District Court described defendant’s infraction as
follows: “‘Being then and there under the influence of intoxicating liquor and/or
drugs to a degree which rendered her incapable of safely operating a motor vehicle,
[defendant] did drive a motor vehicle within this state upon a public highway within
the town of Coventry, to wit: Main Street, so called.’ B.A.C. = .083/.080[.]”

                                         -6-
test was administered within a reasonable time after the accident you may draw the

inference that the blood alcohol level of the defendant at the time she was driving

was as reported by the breathalyzer test.” After the trial justice completed his

instructions, defendant and the state pointed out an error in the instruction to the trial

justice, i.e., the use of the word “accident” in a case where there had been no

accident, and the trial justice corrected the charge to the jury, asking that they

substitute “motor vehicle stop” for the term “accident.” The defendant made no

other objections to the jury instructions.

      Initially, the jury was unable to reach a unanimous verdict. However, after

receiving an Allen charge5 and submitting several questions to the trial justice, the

jury returned a verdict. The jury foreperson first reported the verdict as not guilty,

but after the trial justice looked at the completed verdict form, he noted that it was

not in conformity with that statement. In fact, the jury unanimously found defendant

guilty under the “second theory of intoxication,” based on the blood-alcohol reading

from the breathalyzer.6


5
  Called an Allen charge in reference to Allen v. United States, 

164 U.S. 492

 (1896),
these charges by a trial justice to a deadlocked jury instruct such jury to return to
deliberation and try again to reach a unanimous verdict. Allen, 

164 U.S. at 501, 502

(finding no error in lengthy instructions to jurors struggling with unanimity, stating
that “it was [the jury’s] duty to decide the case if they could conscientiously do so;
that they should listen, with a disposition to be convinced, to each other’s
arguments”).
6
  However, the jury was not unanimous in finding defendant not guilty under the
first theory, i.e., being incapable of safely operating a motor vehicle.

                                          -7-
         The defendant filed a motion for a new trial, which the trial justice heard and

denied.     The trial justice then sentenced defendant to one year at the Adult

Correctional Institutions, with three months to serve in the home-confinement

program and the remaining nine months suspended, with probation. The trial justice

also suspended defendant’s license for six months and ordered her to pay a $100

fine, perform ten hours of community service, undergo a substance-abuse

evaluation, and abide by any treatment or counseling recommendations made by her

probation officer. Thereafter, defendant timely appealed her conviction to this

Court.

                                       Discussion

         Before this Court, defendant argues that the trial justice erred in limiting her

cross-examination of Officer Ferri. Additionally, defendant contends that the trial

justice erred in denying her motion for a new trial. Finally, defendant argues that

there were errors of law regarding a jury instruction and the verdict form that merit

a new trial.

                           Limitation of Cross-Examination

         The defendant argues that the trial justice erroneously limited her

cross-examination of the arresting officer by refusing to allow questioning about the

officer’s sworn affidavit, which contained a false statement.




                                           -8-
      “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. Drew, 

919 A.2d 397

, 411 (R.I. 2007) (quoting State v. Stansell, 

909 A.2d

505

, 509 (R.I. 2006)).      However, “[w]hile criminal defendants possess the

constitutional right ‘to cross-examine prosecution witnesses,’ such a right ‘is far

from absolute.’” State v. Danis, 

182 A.3d 36

, 40 (R.I. 2018) (quoting State v.

Manning, 

973 A.2d 524

, 530 (R.I. 2009)). “This constitutional right ‘is tempered by

the dictates of practicality and judicial economy; trial justices are authorized to

exercise sound discretion in limiting the scope of cross-examination.’” 

Id.

 (quoting

Manning, 

973 A.2d at 530

). “As long as there is an opportunity for ‘sufficient

cross-examination to satisfy a defendant’s constitutional confrontation rights, the

trial justice may exercise [their] sound discretion in limiting further

cross-examination.’” 

Id. at 41

 (quoting Manning, 

973 A.2d at 531

). Accordingly,

“we have previously stated that ‘the exercise of discretion by the trial justice in

limiting the scope of cross-examination will not be disturbed absent a clear abuse of

that discretion.’” State v. Ogoffa, 

159 A.3d 1043

, 1049 (R.I. 2017) (quoting State v.

Walsh, 

731 A.2d 696

, 698 (R.I. 1999)).




                                         -9-
      Before this Court, defendant asserts that her trial counsel sought to impeach

the arresting officer by cross-examining the officer regarding her sworn affidavit.

However, defendant’s contention regarding the probative value of this inquiry was

equivocal at best. At trial, defendant’s counsel claimed that the testimony was being

elicited “[j]ust to point out on that sheet it says, they can take it for whatever it is

worth.” The suggestion by counsel that the jurors ought to be able to “take it for

whatever it is worth” does not clearly implicate defendant’s Sixth Amendment right

to confrontation.

      Additionally, at the sidebar conference, the prosecutor made clear to the trial

justice that the single-page “refusal affidavit” contained in the police report reflected

the practice or procedure for all officers of the Coventry Police Department to

complete such an affidavit in every case, even where the driver submits to the

breathalyzer test. The defendant had no response to this assertion. In our view, the

trial justice did not abuse his discretion by limiting this inquiry, stating:

             “I think it is confusing.

             “* * *

             “I’m not sure what real benefit you get from that other than
             that it is a strange procedure why they would include a
             form that is completely inapplicable to the circumstances
             in this case. * * * I think it is going to just be confusing to
             this jury and I don’t think that it adds that much value to
             your cross. * * *”




                                          - 10 -
Based on this analysis, the trial justice then sustained the objection, “out of [his]

concern for misleading and confusing the jury.” Rule 403 of the Rhode Island Rules

of Evidence specifically provides for the exclusion of evidence “if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury[.]” R.I. R. Evid. 403 (emphasis added).

      This Court has repeatedly held that a trial justice cannot be required to

intuitively decipher the unvoiced bases of counsel’s objections. See, e.g., State v.

Doyle, 

235 A.3d 482

, 495 (R.I. 2020) (requiring a specific objection in order to bring

the purported error to the trial justice’s attention). If defense counsel’s strategy was

to use the affidavit to question the witness’s credibility, defense counsel ought to

have made that argument to the trial justice. Having failed to do so, defendant does

not convince us that the trial justice abused his discretion by limiting

cross-examination as to the affidavit in question. See Ogoffa, 

159 A.3d at 1052

; see

also Crane v. Kentucky, 

476 U.S. 683

, 688 (1986) (holding that judges in criminal

cases who make decisions on the admissibility of evidence are entitled under the

constitution to “‘wide latitude’ to exclude evidence that is ‘repetitive * * *, only

marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion

of the issues’”) (quoting Delaware v. Van Arsdall, 

475 U.S. 673

, 679 (1986)).

      The defendant argues that the limitation of her cross-examination of the

arresting officer prejudiced her defense because impeaching the credibility of the


                                         - 11 -
state’s primary witness was vital to her case. Yet our examination of the record

shows that the cross-examination of Officer Ferri that did occur successfully raised

other examples of discrepancies between her reports and her testimony, giving the

factfinder adequate grounds to question her credibility if inclined to do so.

Furthermore, while the arguments of counsel are not evidence, defense counsel’s

closing argument drew the jury’s attention to notable absences in Officer Ferri’s

testimony, such as the fact that no testimony suggested that defendant was

intoxicated at the station, despite Officer Ferri’s close proximity to defendant in a

small conference room. Nevertheless, both the jury and the trial justice ultimately

found Officer Ferri credible. Absent abuse of discretion, we will not disturb

credibility determinations by the factfinder. See State v. Marizan, 

185 A.3d 510

, 518

(R.I. 2018) (noting that trial justices, given their proximity to the unfolding drama

of the trial, are in “a much better position to make factual findings and credibility

determinations than we are”).

      Furthermore, because the jury found defendant guilty based on the BAC

readings and because a second witness testified to defendant’s failure to perform

additional sobriety tests, we are of the opinion that “even if the jury entirely

discredited [Officer Ferri], the overall strength of the evidence was sufficient” to

convict defendant of driving under the influence. State v. D’Alessio, 

848 A.2d 1118

,

1126 (R.I. 2004) (holding harmless any error in refusing to allow defense counsel to


                                       - 12 -
pursue a line of questioning where other evidence existed sufficient to convict).

Consequently, the trial justice’s limitation of the cross-examination here did not

constitute an abuse of discretion.

                               Motion for a New Trial

      The defendant also argues that the jury’s verdict was against the weight of the

evidence and failed to do substantial justice.

      It is well established that “when a trial justice is presented with a motion for

a new trial based on the weight of the evidence, [the trial justice] acts as a thirteenth

juror and exercises independent judgment on the credibility of witnesses and on the

weight of the evidence.” State v. Gumkowski, 

223 A.3d 321

, 328 (R.I. 2020) (quoting

State v. Johnson, 

199 A.3d 1046

, 1050-51 (R.I. 2019)). “The trial justice must

consider the evidence in light of the jury charge, then independently assess the

credibility of the witnesses and the weight of the evidence, and also ultimately

determine whether he or she would have reached a result different from that reached

by the jury.” 

Id.

 (quoting Johnson, 

199 A.3d at 1051

). “If, after conducting this

independent review, the trial justice agrees with the jury’s verdict or if the evidence

is such that reasonable minds could differ as to the outcome, the motion for a new

trial should be denied.” 

Id.

 (quoting Johnson, 

199 A.3d at 1051

). “If, however, the

trial justice finds that the state has failed to prove the defendant’s guilt beyond a




                                         - 13 -
reasonable doubt, a new trial must be ordered.” State v. Cerda, 

957 A.2d 382

, 385

(R.I. 2008).

      “This Court’s review of a denial of a motion for a new trial is deferential

because the trial justice is in an especially good position to evaluate the facts and to

judge the credibility of the witnesses.” Gumkowski, 

223 A.3d at 328

 (quoting

Johnson, 

199 A.3d at 1051

). “If the trial justice has articulated adequate grounds for

denying the motion, [the] decision is entitled to great weight and will not be

overturned by this Court unless [the trial justice] has overlooked or misconceived

material evidence or was otherwise clearly wrong.” 

Id.

 (quoting Johnson, 

199 A.3d

at 1051

).

      According to defendant, because the evidence offered at trial showed that her

BAC was within the margin of error for the Intoxilyzer 9000, neither the jury nor the

trial justice could conclude that she was guilty beyond a reasonable doubt. The

defendant implies that, had the trial justice accorded the regulations and testimony

the appropriate weight, it would necessarily follow that she would be entitled to a

new trial. The defendant essentially argues that the presence of a margin of error,

and the fact that her results fell within that margin of error, per se establish enough

doubt to defeat the state’s case against her. We do not agree.

      In State v. Lusi, 

625 A.2d 1350

 (R.I. 1993), this Court stated that, “[g]enerally

[we have] permitted the state to rely on evidence other than direct evidence as long


                                         - 14 -
as the totality of that evidence constitutes proof of guilt beyond a reasonable doubt.”

Lusi, 

625 A.2d at 1357

. In consideration of that evidentiary standard, in the context

of § 31-27-2, we held that “the plain and unambiguous language contained in the

phrase ‘other admissible evidence’ makes it unmistakably clear that the Legislature

intended to allow the state to supplement the breathalyzer-test results with other

evidence.” 

Id.

 In State v. DiCicco, 

707 A.2d 251

 (R.I. 1998), we reaffirmed that

holding, stating that § 31-27-2 expressly allowed for the state to supplement BAC

test results with “other admissible evidence, including the observations of law

enforcement personnel who responded to the call to the scene.” DiCicco, 

707 A.2d

at 254

. Then, in State v. McKenna, 

709 A.2d 1027

 (R.I. 1998), this Court rejected

the contention “that the jury failed to consider the margin of error of the breathalyzer

machine properly” and the argument that, had they done so, “both breathalyzer

readings would be below [the statutory threshold] and * * * no conviction would be

possible.” McKenna, 

709 A.2d at 1029-30

.

      As the trial justice properly instructed the jury in this case:

             “[T]he burden is upon the [s]tate to prove beyond a
             reasonable doubt that this defendant is guilty of the
             charges * * *. It is a strict and heavy burden but it does
             not mean that the defendant’s guilt must be proved beyond
             all possible doubt. * * *

             “Of course, a defendant is never to be convicted on
             suspicion or conjecture. * * * On the other hand, there are
             very few things in the world that we know with absolute


                                         - 15 -
             certainty and in criminal cases the law does not require
             proof that overcomes every possible doubt.”

The evidence as to the margin of error here may cast some doubt on whether

defendant was guilty under the statute, but the jury was not required to reject the

BAC readings, nor did this evidence negate a finding of guilt from the determination

of a reasonable factfinder. In fact, when performing his analysis as the thirteenth

juror, the trial justice explicitly considered the margin of error, noting that the

testimony from Mr. Swierk showed that “a .080 reading [could be] as high as .085

or as low as .075 based upon this margin of error.” The trial justice did not discount

or fail to consider the impact of the margin of error, instead finding that it cut both

ways. In other words, it was just as likely that the breath-test results underreported

defendant’s blood alcohol level by .005. Therefore, we find that the trial justice

adequately considered the evidence regarding the margin of error in light of the jury

charge.

      Additionally, the trial justice found all three witnesses called by the state

credible and specifically stated that he agreed with the jury’s verdict. Trial justices

occupy a position better suited to the making of factual findings and credibility

determinations than that of this Court because they “actually observed the human

drama that is part and parcel of every trial and * * * [were privy to] realities that

cannot be grasped from a reading of a cold record.” State v. Gonzalez, 

986 A.2d 235

,

242 (R.I. 2010); see Marizan, 

185 A.3d at 518

. Our review of the record shows that

                                        - 16 -
the trial justice gave a more than adequate explanation of his rationale for denying

defendant’s motion, neither overlooking nor misconceiving any material evidence.

See State v. Mendez, 

116 A.3d 228

, 247 (R.I. 2015) (holding that the “trial justice

‘need not refer to all the evidence supporting [the justice’s] decision,’ but need only

‘cite evidence sufficient to allow this Court to discern whether the trial justice has

applied the appropriate standards’”) (brackets omitted) (quoting State v. Robat, 

49

A.3d 58

, 71 (R.I. 2012)). Therefore, we discern no error in the trial justice’s denial

of defendant’s motion for a new trial based on the weight of the evidence.

                        Jury Instruction and Verdict Form

      Finally, defendant contends that both the jury instruction regarding the

breathalyzer results and the verdict form listing two separate theories of guilt

constituted errors of law, warranting a new trial.

      “The raise-or-waive rule is a fundamental precept that is staunchly adhered to

by this Court.” State v. Parrillo, 

228 A.3d 613

, 623 (R.I. 2020). “It is well settled

that a litigant cannot raise an objection or advance a new theory on appeal if it was

not raised before the trial court.” 

Id.

 (brackets omitted) (quoting Cusick v. Cusick,

210 A.3d 1199

, 1203 (R.I. 2019)). Furthermore, “[t]his Court’s raise-or-waive rule

requires a specific objection to preserve an issue for appeal.” 

Id. at 625

; see State v.

Pona, 

66 A.3d 454

, 468 (R.I. 2013) (“We require a specific objection so that the




                                         - 17 -
allegation of error can be brought to the attention of the trial justice, who will then

have an opportunity to rule on it.”).

      First, defendant contends that the jury instruction regarding the breathalyzer

results impermissibly removed the issue of the reliability of the breathalyzer test

results from the fact-finding function of the jury.         Initially, we note that the

instruction given to the jury allowed for a permissive inference, not a mandatory

one, when it stated that the jury “may draw the inference” rather than using the term

“shall” or “must.” In Lusi, cited 

supra,

 this Court noted that “[a] mandatory

[inference] * * * poses a far greater threat to the adversary system than a permissive

[inference]” because “[a] permissive [inference] allows, but does not require, the

trier of fact to infer the elemental fact from proof by the state of the base fact.” Lusi,

625 A.2d at 1356

 (pointing out that, in criminal cases, “an inference must never

‘undermine the factfinder’s responsibility at trial, based on evidence adduced by the

[s]tate, to find the ultimate facts beyond a reasonable doubt’”) (quoting County

Court of Ulster County, New York v. Allen, 

442 U.S. 140

, 156 (1979)). In other

words, because the trial justice told the jury merely that it was permitted to make an

inference does not mean that it removed any issue from the fact-finding function of

the jury, as defendant contends.

      Furthermore, while the trial justice’s phrasing of the instruction in question

could reasonably be interpreted two ways, there was no objection to this aspect of


                                          - 18 -
the wording of the jury instruction at trial.7 This is “[f]atal to defendant’s challenge”

because “Rule 30 of the Superior Court Rules of Criminal Procedure provides, in

relevant part, that ‘no party may assign as error any portion of the charge or omission

therefrom unless the party objects thereto before the jury retires to consider its

verdict[.]’” State v. Hunt, 

137 A.3d 689

, 693 (R.I. 2016) (brackets omitted) (quoting

Super. R. Crim. P. 30); see Mendez, 

116 A.3d at 243

. Therefore, “[b]ecause

defendant’s contention was not properly preserved for appellate review and there is

no issue of constitutional dimension presented, defendant has waived the issue on

appeal.” State v. Lastarza, 

203 A.3d 1159

, 1165 (R.I. 2019); see State v. Andrade,

209 A.3d 1185

, 1198 (R.I. 2019) (holding that appellate review of jury instructions

was waived where the “defendant did not raise any of these alleged errors to the trial

justice either before or after the trial justice charged the jury with the instructions”).

      The second legal error argued by defendant as grounds for a new trial, that the

verdict form confused the jury, is also unpreserved on this record. See Hunt, 

137

A.3d at 693

 (“The raise-or-waive rule similarly applies to an appellate challenge to



7
  The instruction that, “if you find that the breathalyzer test was administered within
a reasonable time after the [motor vehicle stop] you may draw the inference that the
blood alcohol level of the defendant at the time she was driving was as reported by
the breathalyzer test[,]” could mean, as defendant argued, that the timeliness of the
breathalyzer test somehow established its reliability. However, the instruction could
also reasonably be read to state the commonsense conclusion that the timeliness of
the test meant that the blood alcohol level the test revealed was comparable to the
one defendant had while driving.

                                          - 19 -
the jury-verdict form[.]”). The defendant contends that her objection to the verdict

form was preserved at trial when she very clearly articulated an objection to the

presentation of both theories of guilt to the jury due to the state’s specification on

the criminal complaint of only one theory.8 We note that defendant argued below

that, because she read the complaint as advancing only a single theory of guilt under

§ 31-27-2, she chose not to seek a bill of particulars. This Court has been very clear

in the past that the “primary purpose [of a bill of particulars] is to supply the

defendant with such particulars as are necessary in order that judicial surprise is

avoided at trial.” Hunt, 

137 A.3d at 693

 (quoting State v. Saluter, 

715 A.2d 1250

,

1253 (R.I. 1998)). “Having failed to seek a bill of particulars, a defendant should

not be heard to complain about the lack of notice of the specificity of the charge.”

Id.

      We note that defendant’s argument regarding this alleged error in her motion

for a new trial cannot cure the absence of a timely objection prior to the presentation

of the verdict form to the jury. See Mendez, 

116 A.3d at 245

 (reaffirming that, in the

context of instructions given to the jury, “it is required that the objecting party not

only voice the objection contemporaneously with the perceived error, but it is further

required that all grounds for the objection be brought to the attention of the presiding



8
  However, the trial justice rejected this argument and pointed out, twice, that the
justice’s reading of the criminal complaint would include both theories.

                                         - 20 -
judicial officer at that time”). The trial justice acknowledged this necessity when,

in ruling on defendant’s motion for a new trial, he pointed out that he had asked for

suggestions on the verdict form and provided the parties with two versions, stating,

“I didn’t get any * * * response to my invitation to help me and we agreed on this

one as the one to go to the jury and nobody said don’t do that, that is not a good

verdict sheet it is going to confuse them.”

      Notwithstanding precedent of this Court, defendant also argues that the trial

justice’s statement that the verdict sheet would “avoid[] some confusion or jumping

to conclusions or muddying of the waters” relieved her of any burden to articulate

jury confusion as a basis for her objection to the verdict form going forward. In fact,

defendant claims that “the record reveals that another such objection would have

been futile.” However, she cites no caselaw for this contention, and she cannot—

this is simply not how the preservation of issues for appellate review functions in

Rhode Island. See Hunt, 

137 A.3d at 693

 (noting that, “although a bill of particulars

is not mandatory, * * * the timely objection to jury instructions at trial is required”);

see also Mendez, 

116 A.3d at 245

.

      After a thorough review of the record, we find that neither of these alleged

errors of law was preserved for our review, and both are thus waived. See Hunt, 

137

A.3d at 693

.




                                         - 21 -
                                     Conclusion

      For the reasons articulated above, this Court affirms the judgment of

conviction. The papers in this case may be returned to the Superior Court.



      Justice Robinson, dissenting.       I respectfully dissent from the majority

opinion in this case due to my conviction that the trial justice abused his discretion

in limiting defense counsel’s cross-examination of Officer Jadine Ferri. In my

opinion, this case should be vacated on that ground and remanded for a new trial.

      Toward the end of the cross-examination of Officer Ferri, Ms. Ricker’s

counsel attempted to question Officer Ferri about the fact that she had sworn, in an

affidavit (which was marked for identification at trial), that Ms. Ricker had refused

to take the breathalyzer test. That statement in the affidavit was directly contrary to

Officer Ferri’s testimony at trial that Ms. Ricker had consented to the breathalyzer.1

The prosecutor objected on relevance grounds and suggested that this line of inquiry

had the potential to confuse the jury.2 The prosecutor explained to the trial justice


1
      I note that Ms. Ricker’s counsel first asked Officer Ferri if the fact that the
affidavit was notarized showed that she was swearing to the truthfulness of what was
contained in the document, and she answered: “Yes * * *.”
2
      The prosecutor also mentioned hearsay in the course of his objection.
However, that was not the basis for the trial justice’s ruling, and it is not an issue
which has been briefed on appeal. See Wilkinson v. State Crime Laboratory
Commission, 

788 A.2d 1129

, 1131 n.1 (R.I. 2002); State v. Vorgvongsa, 

692 A.2d
1194

, 1197 (R.I. 1997).

                                        - 22 -
at sidebar that the reason why Officer Ferri had signed the affidavit attesting to Ms.

Ricker’s supposed refusal to take the breathalyzer, in spite of the fact that Ms. Ricker

had actually consented to the breathalyzer, was because that was the procedure of

the Coventry Police Department. The prosecutor added that that procedure was

“unique to Coventry” and was “the oddest thing.” Ms. Ricker’s counsel contended

that “[t]here has been testimony that [Ms. Ricker] took the breath test and on the

officer’s report it says that she refused to take the test” and that the jury could “take

it for whatever it is worth.”3 The trial justice then ruled that allowing Ms. Ricker’s

question would be “misleading and confusing [for] the jury” and did not “add[ ] that

much value to [Ms. Ricker’s] cross.”

      Ms. Ricker contends on appeal that the question at issue was “highly relevant”

and had a direct bearing on “the trustworthiness of the testimony of a key witness

and it should not have been kept from the jury.” I wholeheartedly agree.




3
       Contrary to the majority, in my judgment, the statement by defense counsel
made it sufficiently clear that she intended to use the sworn affidavit to question
Officer Ferri’s credibility, which implicates defendant’s Sixth Amendment right to
confrontation. The sentence in the text to which this footnote relates specifically
quotes defense counsel contrasting the testimony (by Officer Ferri) that Ms. Ricker
“took the breath test” with the statement in the affidavit that “she refused to take the
test.” Those two statements are directly contradictory to one another and had the
potential to fatally undermine the credibility of Officer Ferri, who swore to the
veracity of each.
                                         - 23 -
      I certainly acknowledge, at the outset, that under Rule 403 of the Rules of

Evidence a trial justice “retain[s] a considerable degree of discretion to impose

reasonable limitations on cross-examination in order to prevent, inter alia,

harassment, prejudice, confusion, or repetitive testimony.” State v. Tiernan, 

941

A.2d 129

, 134 (R.I. 2008). Additionally, it is true that, in a context such as the one

before us, “[t]he [trial justice’s] ruling must amount to prejudicial error to constitute

a clear abuse of [that] discretion.” State v. Bojang, 

83 A.3d 526

, 538 (R.I. 2014)

(internal quotation marks omitted). However, the United States Supreme Court has

memorably stated that “this principle cannot be expanded to justify a curtailment

which keeps from the jury relevant and important facts bearing on the

trustworthiness of crucial testimony.” Gordon v. United States, 

344 U.S. 414

, 423

(1953); see also State v. Anthony, 

422 A.2d 921

, 924 (R.I. 1980) (“[Cross-

examination] is the principal means by which the credibility of the witness and the

truthfulness of his [or her] testimony can be tested.”). Indeed, this Court has also

stated that “it is the essence of a fair trial that reasonable latitude be given the cross-

examiner.” Tiernan, 

941 A.2d at 134

 (emphasis in original) (internal quotation

marks omitted); see also Anthony, 

422 A.2d at 924

. Furthermore, “the authority of

the trial justice to limit cross-examination comes into play [only] after there has been

permitted as a matter of right sufficient cross-examination to satisfy the Sixth

Amendment.” Tiernan, 

941 A.2d at 134

 (emphasis in original).


                                          - 24 -
      In my judgment, the trial justice committed an abuse of discretion in limiting

the cross-examination of Officer Ferri in this case in a manner which deprived Ms.

Ricker of her right to explore the trustworthiness of the primary witness against her.

      The Sixth Amendment to the United States Constitution “guarantees the right

of an accused in a criminal prosecution to be confronted with the witnesses against

him [or her].” 

Id. at 132

 (internal quotation marks omitted). “[T]he main and

essential purpose of confrontation is to secure for the opponent the opportunity of

cross-examination.” 

Id. at 133

 (emphasis in original) (internal quotation marks

omitted); see also Chambers v. Mississippi, 

410 U.S. 284

, 295 (1973) (“[The right

to cross-examine] is implicit in the constitutional right of confrontation, and helps

assure the accuracy of the truth-determining process.”) (internal quotation marks

omitted); State v. Ogoffa, 

159 A.3d 1043

, 1052 (R.I. 2017) (“[W]e have stated that

a criminal defendant has a well-established, constitutionally-protected right * * * to

[an] effective cross-examination of the prosecution’s witnesses.”) (internal quotation

marks omitted). In our adversary system, a criminal defendant has the constitutional

right to portray an adverse witness (and particularly an accusing witness) in a light

as unflattering as the rules of evidence will allow. See State v. Covington, 

69 A.3d

855

, 865 (R.I. 2013) (“It is well settled that [d]ue process requires that every

defendant have a full opportunity to establish the best and fullest defense available

to him.”) (internal quotation marks omitted).


                                        - 25 -
      Cross-examination is “beyond any doubt the greatest legal engine ever

invented for the discovery of truth,” and it is the “principal means by which the

credibility of the witness and the truthfulness of his [or her] testimony can be tested.”

Tiernan, 

941 A.2d at 133, 134

 (internal quotation marks omitted); see also State v.

Briggs, 

886 A.2d 735

, 745 (R.I. 2005) (stating that the right of a defendant to cross-

examine the witnesses against him or her “is the primary means by which a criminal

defendant may challenge the veracity of a witness’s testimony”). For that reason,

the “denial or significant diminution” of the right to cross-examine “calls into

question the ultimate integrity of the fact-finding process * * *.” Chambers, 

410

U.S. at 295

 (internal quotation marks omitted). Indeed, “[c]ross-examination, when

well conducted, is not a desiccated syllogistic exercise, but is rather a multifaceted

attempt at unveiling what might lie behind the direct testimony of the witness.”

Tiernan, 

941 A.2d at 133

.

      In my opinion, Ms. Ricker’s counsel should have been permitted to question

Officer Ferri about the blatant inconsistency between her sworn affidavit and her

sworn testimony at trial. That issue went directly to Officer Ferri’s credibility and

her trustworthiness as a witness. If the question had been permitted, the prosecutor

would then have been free to ask Officer Ferri on redirect examination if she

included the statement that Ms. Ricker refused the breathalyzer in her sworn

affidavit only because it was the policy of the Coventry Police Department to do so


                                         - 26 -
in every case.4 Contrary to the trial justice and the majority, I can perceive nothing

about that line of questioning which would have been confusing to the jury or would

have created any kind of unnecessary delay. A trial justice’s discretion under Rule

403 “must be exercised sparingly.” Wells v. Uvex Winter Optical, Inc., 

635 A.2d

1188

, 1193 (R.I. 1994); see also State v. Moreno, 

996 A.2d 673

, 683 (R.I. 2010)

(“This Court has stated that a trial justice’s discretion to exclude evidence under

Rule 403 must be used sparingly.”) (internal quotation marks omitted). “The

determination of the value of evidence should normally be placed in the control of

the party who offers it. Unless evidence is of limited or marginal relevance and

enormously prejudicial, the trial justice should not act to exclude it.” Wells, 

635

A.2d at 1193

; see also Boscia v. Sharples, 

860 A.2d 674

, 678 (R.I. 2004). I reiterate

that I cannot detect any prejudice or likelihood of confusing the jury in allowing the

veracity of this critical witness to be challenged by questioning her about her

contradictory sworn statements. More importantly, in my judgment, the credibility

of Officer Ferri was not just relevant, it was of supreme importance. She was the

principal accuser, and Ms. Ricker was wrongly deprived of an opportunity to

strikingly demonstrate to the jury the officer’s lack of regard for the truth.


4
       If indeed there eventually were testimony about the existence of such a policy
in Coventry, defense counsel could then follow up with a question to Officer Ferri
as to why she would knowingly swear to a falsehood even if such were the policy.
And one or more jurors might proceed to look with a jaundiced eye on an officer of
the law who so blithely would swear to such a blatant falsehood.
                                         - 27 -
      Officer Ferri testified about her observations of Ms. Ricker during their initial

interaction in the police station; she stated that Ms. Ricker was “erratic,”

“antagonistic,” “outlandish,” and “just angry.” But she did not testify that she

perceived any indications of impairment during the “10 or 15 minute[ ]” encounter.

However, it was then her testimony that, shortly thereafter, she pulled Ms. Ricker’s

vehicle over because it was traveling five to ten miles an hour below the speed limit,

crossed the double yellow line, and drove into the bike lane. Inexplicably, Officer

Ferri testified that, at that time, she saw various signs of impairment—viz., “watery

bloodshot eyes,” “slurred speech,” and “a faint odor of alcohol”—despite not having

testified to having observed those signs during their meeting at the police station.

Also, she was the only witness who observed Ms. Ricker’s driving before pulling

her vehicle over. The jury should have been permitted to determine whether or not

to find her testimony credible with the knowledge that she made an untrue statement

on a sworn affidavit—a statement that was the exact opposite of what she testified

to at trial. See generally Boscia v. Massaro, 

529 A.2d 504

, 508 (Pa. Super. Ct. 1987)

(“In our system of justice, the jury is sacrosanct and its importance is unquestioned.

The members of a jury see and hear the witnesses as they testify. They watch them

as they sweat, stutter, or swagger under the pressure of cross-examination. This

enables the jury to develop a feel for the case and its personal dynamics which cannot

be conveyed by the cold printed page of a record reproduced for appellate review.”).


                                        - 28 -
       What is more, I cannot say that the trial justice’s abuse of discretion in failing

to allow the cross-examination at issue in this case was harmless. See State v.

Oliveira, 

961 A.2d 299

, 312 (R.I. 2008). Even though the jury ultimately convicted

Ms. Ricker on the basis of her breathalyzer test results, and not on any of the other

evidence of impairment, Officer Ferri’s credibility was still very much at issue.

Officer Ferri conducted the breathalyzer test. That test requires an observation

period of fifteen minutes before administering the test, which observation period

Officer Ferri testified that she conducted. She also testified to placing a new

mouthpiece on the instrument with which the breathalyzer test is administered before

each of the breath tests; and she also testified that, in administering the test, she

followed an “operational checklist” and her training. She further testified that she

wore gloves while administering the test. As such, Officer Ferri’s credibility was

directly relevant to the breathalyzer test results.5      Accordingly, failing to allow

cross-examination of the primary witness against Ms. Ricker that was directly

relevant to that witness’s credibility was a clear abuse of discretion by the trial justice

and constituted reversible error.6


5
       Nor do I think that the fact that other discrepancies were highlighted in Officer
Ferri’s testimony somehow renders the failure to allow this particular aspect of the
cross-examination harmless.
6
        I deem it necessary to add that, in my opinion, an offer of proof was not
necessary with respect to the line of questioning at issue. It was made clear to the
trial justice at sidebar what the relevance of the questioning would be and what the
                                          - 29 -
      For the above-stated reasons, I respectfully, but emphatically and even

passionately, dissent from the majority’s opinion in this case.




expected response would be; and the document which formed the basis of the
questioning—i.e., the refusal affidavit—had been marked as an exhibit for
identification at trial. See State v. Cote, 

691 A.2d 537

, 541 (R.I. 1997) (“The purpose
of an offer of proof is to enable the court to determine the materiality, relevance, and
competence of the evidence.”) (internal quotation marks omitted); see also Sheeley
v. Memorial Hospital, 

710 A.2d 161

, 164 (R.I. 1998) (stating that “in cases in which
the ruling appealed from is one excluding evidence, the substance of the evidence
[had to be] made known to the court by offer or was apparent from the context within
which questions were asked before its exclusion can serve as a basis of error[;] [i]f,
however, the nature of the evidence offered clearly describes the relevance and
competence of the offered evidence, no such offer of proof is necessary”) (emphasis
in original) (internal quotation marks omitted). I would additionally note that we
have stated that “the doctrine of offer of proof will be relaxed where counsel is cross-
examining a witness.” Cambra v. Cambra, 

114 R.I. 553

, 558, 

336 A.2d 842

, 845
(1975).
                                         - 30 -
                                                  STATE OF RHODE ISLAND
                                        SUPREME COURT – CLERK’S OFFICE
                                              Licht Judicial Complex
                                                250 Benefit Street
                                              Providence, RI 02903

                                 OPINION COVER SHEET


Title of Case                        State v. Lisa Ricker.

                                     No. 2018-293-C.A.
Case Number
                                     (K3/16-488A)

Date Opinion Filed                   June 10, 2021

                                     Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
                                     Long, JJ.

Written By                           Associate Justice Erin Lynch Prata


Source of Appeal                     Kent County Superior Court


Judicial Officer from Lower Court    Associate Justice Daniel A. Procaccini

                                     For State:

                                     Christopher R. Bush
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Megan F. Jackson
                                     Office of the Public Defender




SU-CMS-02A (revised June 2020)

Add comment

By

Recent Posts

Recent Comments