State v. Francisco Vasquez

Supreme Court

No. 2024-57-C.A.
(K1/22-56A)

State :

v. :

Francisco Vasquez. :

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 opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2024-57-C.A.
(K1/22-56A)

State :

v. :

Francisco Vasquez. :

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

OPINION

Justice Lynch Prata, for the Court. The defendant, Francisco Vasquez

(Vasquez), appeals from a Superior Court judgment of conviction on one count of

first-degree sexual assault, for which he received a sentence of twenty-five years of

incarceration at the Adult Correctional Institutions, with twelve years to serve, and

thirteen years suspended, with probation. On appeal, Vasquez argues that the trial

justice erred in denying his motion to strike DNA testimony given by a laboratory

supervisor who did not perform the relevant testing. For the reasons set forth herein,

we affirm the judgment of the Superior Court.

Facts and Travel

In January 2022, a criminal indictment was filed against Vasquez charging

him and the co-defendant, Hector Ramirez (Ramirez), with first-degree sexual

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assault. On July 11, 2023, a jury trial on the charge commenced in the Kent County

Superior Court.

At trial, the complainant testified that on the night of March 5, 2021, or the

early morning of March 6, 2021, she had been sexually assaulted by Vasquez in a

room later determined to be in a Motel 6. The complainant testified that she had

been drinking at home by herself that evening when Vasquez invited her to a social

gathering. The complainant agreed to join Vasquez, who picked her up with his

friend Ramirez. The complainant and Vasquez had known each other for a couple

years, but she did not know Ramirez very well. On the way to the gathering, the

group stopped to purchase alcohol. During that stop, Vasquez bought the

complainant a bottle of tequila. The trio arrived at the gathering, and throughout the

night the complainant continued to drink more alcohol. The complainant testified

that, at one point in the evening, Vasquez escorted her to the bathroom and tried to

kiss her, but she resisted. Eventually, the complainant asked the host of the gathering

for a ride home. Earlier in the evening, Vasquez had informed the complainant that

the host would bring her home; however, the host declined so the complainant stayed

at the gathering and had another drink.

The complainant testified that the next thing she remembered was awakening

in an unfamiliar room, lying flat, and being unable to move her body. She opened

her eyes to see Vasquez down in her vaginal area. She then heard Vasquez say

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“[s]he’s waking up. Grab her.” She turned her head and saw Ramirez to her side

before she passed out. The complainant woke up again to see Vasquez atop her,

making a “sexual movement.” She felt pressure in her vagina. The complainant still

had no strength to move her body, she cried and asked Vasquez to stop, but he did

not. The complainant then passed out again.

When the complainant next awoke on the morning of March 6, 2021, she saw

Vasquez and Ramirez sitting at the end of the bed. She was unfamiliar with the room

and noticed that her clothes had been put on her haphazardly. The complainant

screamed at the two men, asking what they had done to her. Eventually, the pair

helped the complainant into Ramirez’s minivan and brought her home. Throughout

the ride, the complainant continued to yell at the two men, asking why they had

raped her.

Later that day, the complainant went to her best friend’s house and disclosed

the events of the prior evening. The complainant then drove to the hospital; and,

while in the parking lot she messaged Vasquez and Ramirez separately, asking why

they had raped her. In response to her messages, Vasquez called the complainant.

During the phone call, Vasquez denied that he had raped the complainant and

suggested that she had “dreamed it.” After the call, the complainant went to the

Women and Infants Hospital emergency room, where she later completed a rape kit

and spoke with a police officer. The complainant remained in the hospital for a few

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days. During her stay she was placed on suicide watch, which entailed

twenty-four-hour supervision. After her release, the complainant provided the police

with a statement and later provided officers the clothes she had been wearing on the

night of the incident.

The complainant asserted that, aside from the few memories she had testified

to, she could not recall what took place that night or in the early morning hours. She

denied consenting to go to a motel or consenting to having sex with Vasquez or

Ramirez. On cross-examination, the complainant maintained that she considered

Vasquez a friend, that she had not consented to sex, and that she could not recall

many particulars of the incident.

Next, an employee from the Motel 6, where the incident took place, testified

that she had checked Vasquez into a room on March 6, 2021, at 1:24 a.m. The

employee testified that shortly thereafter, during a walk-through of the premises, she

noticed that Vasquez was with another man and a woman who was “slouched over

[and] definitely intoxicated.” Specifically, the employee explained that the woman

“had her head hung down,” and one of the men was trying to kiss her neck while the

other man tried holding her up. On cross-examination, the employee stated that she

saw the woman kissing both men.

Cara Lupino (Lupino), the supervisor of the Forensic Biology and DNA

Laboratory at the Rhode Island Department of Health, then testified as an expert in

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the field of forensic science. Lupino testified that after the DNA analysis was

completed by one forensic analyst, Rachel Vele (Vele), she, acting as supervisor,

reviewed and approved the analysis. Lupino testified that she reviewed the case file,

confirmed that the results were accurate, and approved and co-signed Vele’s reports.

Lupino referenced two summaries of analytical findings involving Vasquez, one

from April 2021 and one from July 2021. Both tests were performed by Vele and

reviewed by Lupino.

The state moved for the reports to be entered into evidence as full exhibits.

Prior to ruling on the reports’ admissibility, the trial justice held a sidebar conference

and Vasquez requested that Ramirez’s name be redacted from the reports.1 The trial

justice expressed confusion at defendant’s request that the documents be redacted,

stating that it did not “make any sense to [him].” Ultimately, the state withdrew its

request to admit the reports as full exhibits and the trial justice allowed Lupino to

refer to the reports during her testimony. The trial justice then gave the jury a

limiting instruction, sua sponte, directing them not to consider Ramirez’s actions or

1
Specifically, trial counsel for Vasquez contended that any mention of Ramirez
having sexual contact with the complainant would be “extremely prejudicial” to
Vasquez because Vasquez had already conceded that he had sex with the
complainant, and, therefore “[o]f course his name’s going to be [on the report.]”
Vasquez expounds upon that same argument before this Court, arguing that the
admission of Ramirez’s DNA was crucial to the prosecution’s ability to challenge
Vasquez’s account; namely, that Vasquez had consensual sex with the complainant
and never saw Ramirez on the bed. Vasquez’s recollection of events is discussed in
more detail infra.

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inactions to form conclusions about Vasquez’s guilt, but rather as evidence of the

“state of mind or the circumstances of the events that were taking place * * *.”

Lupino continued her testimony. She described for the jury what DNA is and

how DNA analysis works, both in the abstract and as applied to the instant case. She

explained that the DNA samples, which consisted of seminal fluid and saliva, were

retrieved from the underwear the complainant was wearing at the time of the

incident, and that those samples were consistent with the reference buccal swab

obtained from Vasquez. Lupino concluded that, to a reasonable degree of scientific

certainty, the samples taken from the complainant’s underwear, as well as the swabs

taken from the complainant’s vagina and bra, contained DNA consistent with

Vasquez’s DNA profile. Subsequently, the trial broke for a recess.

After the recess but before the jury returned, Vasquez moved to strike the

entirety of Lupino’s testimony on the grounds that she was not the analyst who

performed the testing, arguing that Vele had conducted the testing “and she has not

testified in this court.” Vasquez argued that Lupino “just confirmed [Vele’s]

findings. She [did not] participate in the testing, nor did she do any of the testing”

and that, therefore, there was “a confrontation issue with her testimony” and “that

the correct person to testify should have been [Vele].”

In response, the state pointed out that Vasquez did not object on that basis

during Lupino’s testimony and that it “was very clear to the jurors” that she had not

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performed the testing herself. 2 The state contended that Lupino reviewed and

confirmed the results and was “perfectly qualified to testify” and further that

Vasquez could confront Lupino about the DNA findings the same as he could Vele.

The trial justice denied the motion to strike, noting that Vasquez did not timely

object on the basis of the Confrontation Clause prior to or during Lupino’s

testimony. The trial justice referred to this Court’s decision in State v. Lopez, 45

A.3d 1 (R.I. 2012), which he stated held “that the testimony of a supervisory DNA

analyst who was involved in the review of an examiner’s report was an appropriate

and a perfect person to testify and be available for cross-examination.” The jury

returned, and the trial continued. Defense counsel declined to cross-examine

Lupino, thus concluding her testimony.

Detective Patrick McGaffigan (Det. McGaffigan) next testified for the state,

recounting his involvement in the case as an investigating officer. Detective

McGaffigan testified that he had taken a statement from the complainant and

received her clothing and text messages as evidence. After meeting with the

complainant, Det. McGaffigan, his partner, and Sergeant Javier Cabreja, a

2
Vasquez lodged only two objections during Lupino’s testimony. The first
objection, discussed supra, was to the admission of the DNA reports. Vasquez later
objected when the prosecutor asked Lupino how a sample, which matched neither
Vasquez nor Ramirez, could have been left on the complainant’s underwear.
Vasquez objected on the basis that the question called for speculation. The trial
justice overruled that objection, and Lupino answered.

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Spanish-speaking officer who could assist with interpretation, went to Vasquez’s

home and asked him to come speak with them at the station. Vasquez cooperated,

following the officers in his own vehicle to the station for an interview. Detective

McGaffigan described his interview of Vasquez for the jury, an audio recording of

which was played, accompanied by a transcript. The state entered both the audio

recording and the transcript as full exhibits. Detective McGaffigan also took a

written statement from Vasquez, which Det. McGaffigan read into the record.3

In both his interview and written statement, Vasquez recounted many of the

same details the complainant had testified to in regard to their friendship and the

social gathering but departed substantially from her narrative in describing the latter

portion of the evening and the early morning hours. Specifically, Vasquez denied

that he had kissed the complainant outside the bathroom. Moreover, Vasquez stated

that during the car ride from the party, he and the complainant began to kiss and then

both agreed to go to a motel room. Vasquez alleged that while at the motel the two

engaged in consensual sex during which the complainant was conscious. After

Vasquez finished writing his statement, he departed the police station.

3
During the verbal interview, Vasquez spoke in some English and some Spanish.
Sergeant Cabreja acted as a translator for Vasquez, as reflected in the transcript of
the interview. Vasquez gave his written statement in Spanish. The original written
statement and an accompanying English translation were both entered as full
exhibits and given to the jury. Detective McGaffigan read from the translation.

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Detective McGaffigan next testified that later in the investigation he received

a report from the Department of Health which identified three male DNA

contributors present on the complainant’s clothing and the swabs taken from the

complainant. In response to this new information, Det. McGaffigan obtained a

search warrant for a DNA swab from both Vasquez and Ramirez, with which the

two men complied. Subsequently, Det. McGaffigan received an updated report from

the Department of Health, which showed that both Vasquez’s and Ramirez’s DNA

were present on the complainant’s clothing.

Lastly, Vasquez testified in his own defense. Vasquez described his

relationship with the complainant, explaining that the two had been friends for

several years and were planning to have a serious relationship. Vasquez conceded

that he had sex with the complainant on the night or early morning in question, but

stated it was consensual and denied ever violating her. Vasquez denied that the

complainant was ever unconscious or drunk at the motel that night.

The jury found Vasquez guilty on the single count. He received a sentence of

twenty-five years of incarceration at the ACI, with twelve years to serve, and thirteen

years suspended, with probation. A judgment of conviction and commitment

entered, from which Vasquez filed a valid, albeit premature, notice of appeal.4

4
“A notice of appeal filed after the announcement of a decision, sentence, or order
but before entry of the judgment or order shall be treated as filed after such entry

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Before this Court, Vasquez asserts one claim of error: that the trial justice erred in

denying his motion to strike all of Lupino’s testimony because she was not the

analyst who performed the DNA testing. Vasquez claims that Lupino’s testimony

violated his Sixth Amendment right to confront the witnesses against him and his

right under article I, section 10 of the Rhode Island Constitution because she was

not the analyst who performed the testing.5

Discussion

“This Court reviews de novo a party’s allegation that a constitutional right has

been infringed.” State v. Barkmeyer, 949 A.2d 984, 1002 (R.I. 2008). However,

before we reach the merits of Vasquez’s argument, we must first consider whether

it has been properly preserved for our consideration. “The raise-or-waive rule is a

fundamental precept that is staunchly adhered to by this Court.” State v. Ricker, 252

A.3d 721, 730 (R.I. 2021) (quoting State v. Parrillo, 228 A.3d 613, 623 (R.I. 2020)).

Under this well-settled rule, “issues not properly presented before the trial court may

not be raised for the first time on appeal.” Smith v. State, 327 A.3d 374, 379 (R.I.

2024) (quoting Cronan v. Cronan, 307 A.3d 183, 192 (R.I. 2024)).

and on the day thereof.” State v. Li, 297 A.3d 908, 916 n.9 (R.I. 2023) (quoting
Article I, Rule 4(b) of the Supreme Court Rules of Appellate Procedure).
5
Although Vasquez raised a violation of article I, section 10 of the Rhode Island
Constitution in his brief, he did not discuss in his papers whether article I, section 10
is meaningfully different from the Sixth Amendment. At oral argument, Vasquez
stated he was making no distinction. Therefore, we address only the Sixth
Amendment.

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The state argues that the Confrontation Clause issue is not properly preserved

for appeal, which Vasquez concedes. Nevertheless, Vasquez argues that, in light of

the United States Supreme Court’s decision in Smith v. Arizona, 602 U.S. 779

(2024), discussed infra, issued during the pendency of his appeal, the state’s failure

to present Vele as a witness violated the Confrontation Clause. 6

“When an intervening decision of this Court or of the Supreme Court of the

United States establishes a novel constitutional doctrine, counsel’s failure to raise

the issue at trial will not preclude our review.” State v. Moten, 64 A.3d 1232, 1240

(R.I. 2013) (brackets omitted) (quoting State v. Burke, 522 A.2d 725, 731 (R.I.

1987)). For this narrow exception to apply, “the alleged error must be more than

harmless, and the exception must implicate an issue of constitutional dimension

derived from a novel rule of law that could not reasonably have been known to

counsel at the time of trial.” Id. (quoting State v. Breen, 767 A.2d 50, 57 (R.I. 2001)).

6
Vasquez did not discuss waiver in his briefing before this Court. In his brief,
Vasquez argued that under Smith v. Arizona, 602 U.S. 779 (2024), this Court’s
decision in State v. Lopez, 45 A.3d 1 (R.I. 2012), is no longer controlling on the
confrontation issue and that the erroneous admission of Lupino’s testimony was not
harmless. Vasquez did not file a reply brief after the state raised waiver in its
briefing. At oral argument, Vasquez explicitly conceded that the motion to strike
made during the trial was insufficient to preserve the confrontation issue for appeal.
However, during oral argument, Vasquez argued that the narrow exception to the
waiver doctrine espoused by this Court in State v. Moten, 64 A.3d 1232 (R.I. 2013),
should apply. For the reasons discussed, we disagree.

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Vasquez argues that Smith introduced a novel rule of law of constitutional

dimension not applicable at the time of his trial. Relying on Moten, Vasquez

contends that the timing and basis of his objection at trial is immaterial because,

prior to Smith, there was no basis in the law for his objection to Lupino’s testimony.

The state argues that the Moten exception should not apply because (1) Vasquez

articulated at trial the same basis he now asserts on appeal, and (2) this Court, in

Moten, already decided that the same issue of law is not novel. We agree.

In Moten, the defendant argued that two cases decided during the pendency of

his appeal, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming

v. New Mexico, 564 U.S. 647 (2011), both issued well after and relying on Crawford

v. Washington, 541 U.S. 36 (2004), should preclude the application of the

raise-or-waive rule to his appeal. Moten, 64 A.3d at 1241. We declined to apply the

narrow exception, holding that Bullcoming and Melendez-Diaz “merely appl[ied] the

rule announced in Crawford” and therefore could not “be considered to have

established a ‘novel constitutional rule.’” Id. In analyzing both cases, this Court

pointed out that the Melendez-Diaz decision held that affidavits containing forensic

analysis were testimonial in nature under Crawford and that the Bullcoming decision

held that “surrogate testimony” of an analyst who had not actually performed the

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relevant testing “‘does not meet the constitutional requirement’ of the Sixth

Amendment.” Id. (quoting Bullcoming, 564 U.S. at 652). 7

Smith, which Vasquez contends announced a novel constitutional rule,

“concern[ed] the application of [Confrontation Clause] principles to a case in which

an expert witness restates an absent lab analyst’s factual assertions to support his

own opinion testimony.” Smith, 602 U.S. at 783. In assessing that issue, the Court

analyzed and relied upon Melendez-Diaz, Bullcoming, and Williams v. Illinois, 567

U.S. 50 (2012) (plurality opinion), ultimately abrogating only Williams.8 See id. at

7
This Court, in Moten, has already laid out in great detail the facts and analysis of
both Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New
Mexico, 564 U.S. 647 (2011), and we decline to do so to the same extent here. Moten,
64 A.3d at 1241. However, for the sake of clarity, we set forth the relevant principles
briefly. Melendez-Diaz concerned the admission of certificates of forensic analysis,
submitted into evidence by the prosecution, which stated that a substance seized
from the defendant was cocaine. Melendez-Diaz, 557 U.S. at 308. The Court held
that the certificates were testimonial in nature; and, applying Crawford v.
Washington, 541 U.S. 36 (2004), the analysts who performed the relevant testing of
the substance were witnesses whom the defendant had the right to confront at trial.
Id. at 310-11. Bullcoming concerned the admission of a laboratory report that
indicated the defendant’s blood-alcohol concentration. Bullcoming, 564 U.S. at 651.
The prosecution introduced the report through an analyst who had not performed the
relevant testing but was familiar with the laboratory’s procedures. Id. The Court
ultimately determined “that surrogate testimony of that order does not meet the
constitutional requirement [of the Confrontation Clause].” Id. at 652.
8
In short, Williams v. Illinois, 567 U.S. 50 (2012) (plurality opinion) concerned the
admission of DNA testimony introduced through a forensic specialist who did not
testify regarding how the relevant sample was tested or handled, nor did she testify
to the accuracy of the testing. Williams, 567 U.S. at 56-57. The Court, in a plurality
opinion, determined that the testimony was not entered for its truth, but rather to
explain the assumptions on which the expert based her opinions. Id. at 78-79.
Therefore, the Court reasoned, Crawford was not implicated. Id. at 79.

- 13 -
789 (“Our opinions in Williams ‘have sown confusion in courts across the country’

* * *. This case emerged out of that muddle.”) (quoting Stuart v. Alabama, 586 U.S.

1026, 1027 (2018) (Gorsuch, J., dissenting from denial of certiorari)). However, it

is clear from the record that Vasquez’s motion to strike was based on Melendez-Diaz

and Bullcoming, which remain unaffected by Smith. See id. at 799 (stating that

allowing a substitute analyst to simply read the testing analyst’s notes “would make

our decisions in Melendez-Diaz and Bullcoming a dead letter, and allow for easy

evasion of the Confrontation Clause. As earlier described, those two decisions

applied Crawford in ‘straightforward’ fashion to forensic evidence.”) (quoting

Melendez-Diaz, 557 U.S. at 312).

Specifically, after the conclusion of Lupino’s direct-examination testimony

and a recess, Vasquez stated:

“I would move to strike all [of Lupino’s] testimony on the
grounds that the person who did the testing is [Vele] and
she has not testified in this court. [Lupino] just confirmed
her findings. She didn’t participate in the testing, nor did
she do any of the testing; and I believe that we have a
confrontation issue with her testimony that the correct
person to testify should have been [Vele]. So I move to
strike all her testimony. That’s under the cases of
Bullcoming and also Melendez-Diaz.

“* * *

“Bullcoming and Melendez-Diaz and [sic] talk about
confrontational issues and surrogate witnesses; and I just
believe that in the interest of justice in the confrontation

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clause that the testimony should not be allowed to come
into evidence.”

It can hardly be said that the alleged error “implicate[d] an issue of

constitutional dimension derived from a novel rule of law that could not reasonably

have been known to counsel at the time of trial.” Moten, 64 A.3d at 1240 (quoting

Breen, 767 A.2d at 57). In his motion to strike, Vasquez explicitly relied on

Melendez-Diaz and Bullcoming. Bullcoming, as we pointed out in Moten, directly

addressed the inadmissibility of surrogate analyst testimony, which is the exact issue

Vasquez untimely raised before the trial court and now raises before us. See id. at

1241. Smith did not alter the contours of Melendez-Diaz and Bullcoming, and

therefore does not save Vasquez’s appeal. See id. at 1242 (“Certainly, at the time of

defendant’s trial, the Supreme Court had not established the precise contours of what

is and what is not ‘testimonial evidence.’ That does not mean, however, that each

Supreme Court case applying Crawford announces ‘a novel constitutional rule.’”).

We acknowledge that the area of law in question may be somewhat unsettled.

However, that a new decision arises in an unsettled area of law does not

automatically rise to the level of “a novel constitutional rule” such that our strict

raise-or-waive rule should not apply. See Moten, 64 A.3d at 1243 (“If that were the

standard, then virtually every constitutional decision of the Supreme Court would

provide defendants an opportunity to take advantage of the exception. There would

be nothing ‘narrow’ about such an outcome * * *.”). It is true that, in light of Smith,

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this Court may need to revisit Lopez in the future. However, for the reasons set forth

herein, we will not now do so on the record before us.

Conclusion

We affirm the Superior Court’s judgment of conviction. The record in this

case may be returned thereto.

Justice Goldberg participated in the decision but retired prior to its

publication.

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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. Francisco Vasquez.

No. 2024-57-C.A.
Case Number
(K1/22-56A)

Date Opinion Filed June 18, 2026

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 Luis M. Matos

For State:

Brendan P. Sullivan
Attorney(s) on Appeal Department of Attorney General
For Defendant:

John L. Calcagni, III, Esq.

SU-CMS-02A (revised November 2022)