State v. Bruce MacNeil

December 11, 2018

Supreme Court

No. 2017-90-C.A.
(K2/15-289A)

State :

v. :

Bruce MacNeil. :

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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2017-90-C.A.
(K2/15-289A)

State :

v. :

Bruce MacNeil. :

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

OPINION

Justice Robinson, for the Court. The defendant, Bruce MacNeil, appeals from a

January 23, 2017 judgment of conviction in Kent County Superior Court on one count of second-

degree sexual assault in violation of G.L. 1956 §§ 11-37-4 and 11-37-5, after a jury found him

guilty of having sexually assaulted a fifteen-year-old neighbor. He was sentenced to a term of

ten years at the Adult Correctional Institutions, with two years to serve and the balance

suspended with probation. On appeal, the defendant contends that he is entitled to a new trial

because the trial justice committed what the defendant submits were three evidentiary errors—

two of which relate to the admissibility of certain testimony, and one of which relates to the trial

justice’s having allowed a specific line of questioning by the prosecution as to whether the

defendant’s wife had contacted the alleged victim or his family.

This case came before the Supreme Court pursuant to an order directing the parties to

appear and show cause why the issues raised in this appeal should not be summarily decided.

After considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that this case may be decided without further

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briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

I

Facts and Travel

On May 1, 2015, the state filed a criminal information charging defendant with one count

of second-degree sexual assault in violation of §§ 11-37-4 and 11-37-5. In due course, a jury

trial was held in Kent County Superior Court over three days from October 17 through October

19, 2016. We summarize below the salient aspects of what transpired at that trial.

A

The Testimony of the Complaining Witness

The complaining witness, Jacob,1 testified that, on February 2, 2015, he and his mother

were driving home when they saw defendant, their neighbor, shoveling snow in his driveway.

Jacob stated that he got out of the car to assist his neighbor in clearing the snow. Having been

neighbors for a few months, Jacob and defendant knew each other. Jacob was then fifteen years

old, and defendant was in his mid-seventies. It was further Jacob’s testimony that, after the two

finished shoveling the snow, they both entered the shed located in defendant’s backyard so that

Jacob could return the shovel which he had been using. According to Jacob, once they were both

inside the shed, defendant shook Jacob’s hand and then “pulled [him] into a * * * two-handed

hug * * * and kissed” his cheek. Jacob testified that defendant then asked “if he was moving too

fast” and that, when Jacob said no, defendant told him that “he knew how [they] felt about each

other.” Jacob further testified that he had said no when defendant asked “if he was moving too

1
In order to respect the privacy of the complaining witness and that of his family, we refer
to the complaining witness pseudonymously as “Jacob.”

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fast” because defendant had “recently” told Jacob that “his son had died and [Jacob] reminded

him of his son, so [Jacob] thought he kissed [him] seeing [him] as a son figure.”

Jacob proceeded to testify that defendant then “cupped [Jacob’s] penis with his hand”

over Jacob’s jeans for five to seven seconds. According to Jacob, as defendant was acting in that

manner, defendant asked if it felt good, to which Jacob responded in the negative. After the two

of them left the shed, defendant asked for Jacob’s cell phone number, which Jacob gave him.

Jacob testified that he then returned home, told his parents what had happened, and they went to

the police station to give a statement.

During his cross-examination of Jacob, defense counsel asked him: “Now, did you seek

professional help for any reaction that you might have had?” The prosecutor objected, the trial

justice sustained the objection, and defense counsel immediately requested a sidebar, which was

granted. At sidebar, the trial justice asked defense counsel: “How is that relevant to the

elements?” Defense counsel responded:

“Part of the discovery was whether he had gone for counseling and
I was provided the name of a counselor that he went too [sic]. I
got my notes, like one page. I just wanted to make sure I have all
the correct information. It’s important whether he was telling the
truth and whether he gave the correct information to the
prosecutor. I just wanted the name.”

The trial justice then asked defense counsel: “Do you want to ask him questions before the jury

to make sure there’s [sic] no other medical providers[?]” Defense counsel responded: “I want to

make sure there is no other person that he saw for counseling. That’s all. I believe they asked

him and his family.” In response, the trial justice said: “That was something under the rules you

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could have even compelled at deposition if you wanted to under the criminal rule. The Court

will not allow that to play out in front of the jury.”2

B

The Testimony of Defendant

The defendant testified that, while he and Jacob were in the shed, defendant “gave him a

hug” with “[j]ust [his] left arm” because elevating his right arm “hurt so much from days of

shoveling that it was hard to pick it up.” He further testified that his right hand “must have

totally by accident brushed against [Jacob].” Also, referring to the hug, he testified that he asked

Jacob if he liked it. He testified that he did not kiss Jacob on the cheek or ask him if he was

moving too fast.

C

The Testimony of Defendant’s Wife

In her testimony, defendant’s wife, Johanna MacNeil, indicated that, at her husband’s

request, she had given him money to pay Jacob for having assisted with the snow shoveling and

that she told her husband to ask Jacob for his phone number in case they might need help again.

In the course of his cross-examination of Mrs. MacNeil, the prosecutor asked her if she ever tried

to go to speak to Jacob or his parents after February 2, 2015. She responded that she had not

2
In the course of pretrial discovery, defense counsel had, on March 28, 2016, filed a
motion seeking to compel the prosecution to provide the name and address of the counselor
whom the prosecution previously disclosed Jacob had seen. Defense counsel sought this
information through the motion to compel because, when the state had previously provided the
requested information to defendant, “the name and address of the counselor that the alleged
victim has seen as noted” was “illegible.” The state complied with the motion to compel on
April 11, 2016. On April 18, 2016, the trial justice additionally granted defense counsel’s oral
motion to issue a subpoena to that counselor and ordered that the counseling records be
returnable on April 27, 2016 for an in camera review by the court. However, the record
indicates that defense counsel did not pursue the matter further before trial, which began six
months later.

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done so and that the MacNeils had been “told not to have any contact” with Jacob and that she

“assumed [they] were not allowed to” talk to his parents. The prosecutor then asked: “You live

across from an elementary school; correct?” Mrs. MacNeil responded, “On the side.” Defense

counsel then objected on relevance grounds, and the trial justice overruled the objection, noting

that the fact of the proximity of the elementary school was already in evidence.3

D

The Verdict

On October 19, 2016, the jury returned a guilty verdict, and Mr. MacNeil filed a timely

notice of appeal.

II

Standard of Review

This Court accords great “latitude to a trial justice’s rulings made during examination of

witnesses at trial.” State v. Vargas, 991 A.2d 1056, 1060 (R.I. 2010) (internal quotation marks

omitted). We will “overturn such rulings only when there has been an abuse of discretion or

substantial injury to a defendant.” Id. at 1062 (internal quotation marks omitted). The scope of

cross-examination is subject to the exercise of the trial justice’s sound discretion. State v.

Anthony, 422 A.2d 921, 924 (R.I. 1980); see also State v. Husband, 162 A.3d 646, 655 (R.I.

2017) (“[I]t is well settled that [this Court] review[s] a trial justice’s decision admitting or

excluding evidence under an abuse of discretion standard.”) (internal quotation marks omitted).

However, “the exercise of this discretion must not unduly restrict a defendant’s right to cross-

examine. It is the essence of a fair trial that reasonable latitude be given the cross-examiner.”

3
In the course of his testimony on the first day of the trial, Jacob indicated that there was
an “[e]lementary school about a house away from him” in response to a question asking him to
describe defendant’s neighborhood.

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Anthony, 422 A.2d at 924. As we noted in State v. Lomba, 37 A.3d 615 (R.I. 2012), “[a] trial

justice’s exercise of discretion to limit the scope of cross-examination is not reviewable except

for clear abuse, and only if it constitutes prejudicial error.” Lomba, 37 A.3d at 621 (internal

quotation marks omitted).

III

Analysis

The defendant raises three arguments on appeal—viz., that the trial justice erred: (1) in

sustaining the prosecutor’s objection to defense counsel’s question to Jacob as to whether he had

sought “professional help for any reaction” that he may have had to the events at issue in this

case; (2) in not striking Mrs. MacNeil’s response to the prosecutor’s questions about contacting

Jacob or his family; and (3) in overruling the defense’s objection to Mrs. MacNeil’s testimony

that she and defendant lived on the side of an elementary school. We address each argument in

turn.

A

Defense Counsel’s Cross-Examination of Jacob

The defendant argues that the trial justice erred in sustaining the prosecutor’s objection to

defense counsel’s question to Jacob as to whether he sought professional help after the events at

issue in this case. The relevant portion of the trial transcript reads as follows:

“[DEFENSE COUNSEL:] Now, did you seek professional help for
any reaction that you might have had?

“[COUNSEL FOR THE STATE]: Objection, Judge.

“THE COURT: Sustained.

“[DEFENSE COUNSEL]: May we approach, Judge?

“THE COURT: Absolutely. With the court reporter.

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“(The following sidebar was held:)

“THE COURT: How is that relevant to the elements?

“[DEFENSE COUNSEL]: Part of the discovery was whether he
had gone for counseling and I was provided the name of a
counselor that he went too [sic]. I got my notes, like one page. I
just wanted to make sure I have all the correct information. It’s
important whether he was telling the truth and whether he gave the
correct information to the prosecutor. I just wanted the name.

“THE COURT: Counsel.

“[COUNSEL FOR THE STATE]: There is no good-faith basis at
this point. It’s pure speculation. We turned the information over.

“THE COURT: Do you want to ask him questions before the jury
to make sure there’s no other medical providers[?]

“[DEFENSE COUNSEL]: I want to make sure there is no other
person that he saw for counseling. That’s all. I believe they asked
him and his family.

“THE COURT: That was something under the rules you could
have even compelled at deposition if you wanted to under the
criminal rule. The Court will not allow that to play out in front of
the jury.

“(The sidebar was concluded.)” (Emphasis added.)

The defendant now asserts that the trial justice improperly sustained the state’s objection

under the Superior Court Rules of Criminal Procedure and that the error was unduly prejudicial.

He argues that his attorney posed the question in order to challenge Jacob’s credibility and that

the trial justice’s ruling was incorrectly based on the trial justice’s view that counsel could have

obtained that information by taking a deposition of Jacob. We note initially that defendant is

correct in contending that the trial justice erred in stating that defense counsel could have taken a

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deposition of Jacob before trial.4 However, after careful review of the record, we have

determined that this error was not prejudicial.

We have stated that “[i]nquiries that are potentially misleading or irrelevant, that offer

little or no probative value, or that exceed the scope of the direct examination are objectionable,

and may be restricted by the trial justice.” State v. Porter, 179 A.3d 1218, 1228-29 (R.I. 2018)

(internal quotation marks omitted). In Porter, this Court affirmed a trial justice’s decision to

limit the scope of cross-examination during a trial for second-degree murder when “defendant

could not point to even a scintilla of evidence” that there was a possibility of an unknown second

assailant and weapon. Porter, 179 A.3d at 1229; see State v. Alston, 47 A.3d 234, 249 (R.I.

2012) (holding that “when the state objected to defendant’s question, defendant did not make any

offer of proof that the examination he intended to embark upon could lead to relevant evidence”

and that, therefore, the trial justice did not commit prejudicial error in limiting defendant’s cross-

examination of a witness); see also State v. Brown, 709 A.2d 465, 474 (R.I. 1998).

In the instant case, defense counsel acknowledged at sidebar that he had received from

the state before trial the name of one counselor from whom Jacob had sought treatment and

stated that he “just wanted to make sure [he had] all the correct information * * *. [He] just

wanted the name.” Defense counsel further stated that he “want[ed] to make sure there [was] no

other person that he saw for counseling. That’s all.” There is no indication, either in the record

or in defendant’s presentation before this Court, that the state improperly withheld from defense

counsel the names of any additional counselors from whom Jacob may have sought treatment, or

4
A deposition would not have been appropriate because there had been no indication that
Jacob would be unavailable to testify at trial. See Super. R. Crim. P. 15. However, defendant
could have sought to compel further discovery before trial regarding additional counseling Jacob
may have sought if he believed that the state had withheld pertinent evidence. See Super. R.
Crim. P. 16.

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that Jacob withheld the names of any such counselors from the state. Allowing defense counsel

to question Jacob in this manner would have constituted an inquiry that was irrelevant and

offered little probative value. See Porter, 179 A.3d at 1228-29. Therefore, the trial justice’s

ruling is not reversible; he did not allow further investigation to occur in the middle of a cross-

examination, a decision entirely within his discretion. See State v. Lynch, 770 A.2d 840, 847

(R.I. 2001) (stating that “this Court can affirm the judgment of the Superior Court on grounds not

actually relied upon by the trial court to justify its ruling”); cf. Chiaradio v. Falck, 794 A.2d 494,

497 (R.I. 2002) (holding in a civil case that “[t]he trial justice should have rebuffed the

defendant’s midtrial attempt to resume discovery”). Accordingly, we perceive no reversible

error in the trial justice’s evidentiary ruling regarding defense counsel’s questioning of Jacob

with respect to professional counseling he may have received.

B

Mrs. MacNeil’s Testimony Regarding Not Contacting the Victim or His Parents

The defendant also argues on appeal that the trial justice erred in allowing the prosecutor

to ask Mrs. MacNeil: “[A]fter this incident occurred * * * did you ever go down to talk to

[Jacob]? * * * Did you go down to find out what had happened? * * * Did you talk to his

parents?” The defendant contends that those questions were “totally irrelevant to the issue of the

defendant’s guilt,” citing Rule 401 of the Rhode Island Rules of Evidence; and he further argues

that the questions “gave rise to an inference of [d]efendant’s guilt.”

This Court need not address either of those arguments, because defense counsel did not

timely object to this line of questioning at trial. See State v. Pona, 66 A.3d 454, 468-69 (R.I.

2013). In Pona, this Court held that “[a]ccording to our well settled raise or waive rule, if an

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issue was not preserved by specific objection at trial, then it may not be considered on appeal.”

Pona, 66 A.3d at 468 (emphasis in original) (internal quotation marks omitted).

The prosecutor asked Mrs. MacNeil three questions about contacting the victim and his

parents, and Mrs. MacNeil answered each one with no objection by the defense:

“[COUNSEL FOR THE STATE:] * * * So after this incident
occurred on February 2nd * * * did you ever go down to talk to
[Jacob]?

“[MRS. MACNEIL:] No, I did not.

“[COUNSEL FOR THE STATE:] Did you go down to find out
what had happened?

“[MRS. MACNEIL:] No, I did not. We were told not to have any
contact.

“[COUNSEL FOR THE STATE:] That’s fine. Did you talk to his
parents?

“[MRS. MACNEIL:] No, I did not. I assumed we were not
allowed to.

“[COUNSEL FOR THE STATE:] Okay. You live across from an
elementary school, correct?

“[MRS. MACNEIL:] On the side.

“[DEFENSE COUNSEL]: Objection, relevance.”

It was not until after the prosecutor asked Mrs. MacNeil about living across from an elementary

school that defense counsel objected. Because he did not timely object to the questions as to

whether she had attempted to contact Jacob or his parents at trial, defendant may not raise an

objection to them now on appeal.5 See Pona, 66 A.3d at 468, 469; State v. Bido, 941 A.2d 822,

5
It is true that there is a narrow exception to the “raise-or-waive” rule where the alleged
error is “more than harmless, and the exception * * * implicate[s] an issue of constitutional
dimension derived from a novel rule of law that could not reasonably have been known to

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828-29 (R.I. 2008); see also DeMarco v. Travelers Insurance Co., 26 A.3d 585, 628-29, 629

n.55 (R.I. 2011).

C

Mrs. MacNeil’s Testimony Regarding the Nearby Elementary School

Lastly, defendant contends that the trial justice erred when he did not strike Mrs.

MacNeil’s testimony that she and defendant lived near an elementary school; according to

defendant, that statement allowed for an improper inference of guilt. This issue is also waived;

in In re Jazlyn P., 31 A.3d 1273 (R.I. 2011), we held that, “if the introduction of evidence is

objected to for a specific reason, other grounds for objection are waived and may not be raised

for the first time on appeal.” In re Jazlyn P., 31 A.3d at 1280-81 (internal quotation marks

omitted). As noted above, at trial, the prosecutor asked Mr. MacNeil’s wife: “You live across

from an elementary school; correct?” Mrs. MacNeil responded: “On the side.” Defense counsel

objected: “Objection, relevance.” The trial justice overruled the objection, stating: “It’s already

in evidence. The answer will stand.” At trial, defendant raised a relevance objection to the

testimony, and the trial justice overruled it. He may not now raise an objection based on

improper inference.

In addition, the testimony that defendant and his wife lived near an elementary school

had already been admitted into evidence without objection before Mrs. MacNeil testified to that

fact;6 therefore, the objection is unavailing. See State v. Brown, 9 A.3d 1240, 1245 (R.I. 2010)

(holding that defense counsel’s later objection to testimony already in evidence was untimely

counsel at the time of trial.” State v. Breen, 767 A.2d 50, 57 (R.I. 2001). The instant case does
not fall within the parameters of that exception.
6
During Jacob’s testimony on the first day of trial, when he was asked to describe the
neighborhood in which he and defendant both lived, he stated that there was an elementary
school “about a house away from him.” See footnote 3, supra.

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and therefore waived). At that point, defense counsel raised no objection. Therefore, the trial

justice’s decision to overrule the objection during Mrs. MacNeil’s testimony three days later to

the same fact was proper because that fact was already in evidence and had not been previously

objected to.

Accordingly, we perceive no error on the part of the trial justice.

IV

Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court. We remand

the record to that tribunal.

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Title of Case State v. Bruce MacNeil.
No. 2017-90-C.A.
Case Number
(K2/15-289A)
Date Opinion Filed December 11, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice William P. Robinson III

Source of Appeal Kent County Superior Court

Judicial Officer From Lower Court Associate Justice Brian P. Stern
For State:

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

Edward M. Pepe, Esq.

SU-CMS-02A (revised June 2016)