Rhode Island Supreme Court Reverses Conviction Due to Prosecutor’s Remarks and Jury Consideration of Inadmissible Evidence
by Douglas Ankney
The Supreme Court of Rhode Island vacated the first-degree child molestation sexual assault conviction against Henry G. Bozzo due to a remark made by the prosecutor during closing argument together with the trial court’s abuse of discretion in admitting evidence of prior bad acts.
Seven-year-old Veronica told her parents that Bozzo had placed his finger inside her vagina. She and her parents did not immediately report it to the authorities because they believed it to be an accidental touching. But when Bozzo was later arrested for possessing child pornography, they reported it. The defense claimed the touching was accidental. Prior to trial, Bozzo and the State entered into a stipulation that was read to the jury: “[O]n May 9, 2016, Henry Bozzo before a justice of the Superior Court pled nolo contendere to one count of possession of child pornography and was sentenced to four years suspended sentence and four years of probation with specific conditions of the sentence and probation.”
The Superior Court instructed the jury that they could consider the stipulation only for the purpose of determining if the touching was intentional. However, over Bozzo’s objection, the Superior Court also permitted Detective Kevin Petit to testify as to the graphic contents of the child pornography. Petit testified that Bozzo’s computer contained a video of a 4-year-old girl masturbating and several other videos of girls under the age of 10. Petit also testified that Bozzo had admitted to watching videos every day of preteen girls having sex, that he had downloaded about 100 child porn videos, and that he was attracted to girls between ages 7 and 15.
However, Bozzo had also stated to Petit: “With Veronica, it’s a look but don’t touch thing.”
During closing arguments, the prosecution stated: “This man, Henry Bozzo, molested that young girl. It wasn’t a mistake. He did it intentionally. He stared at her as she was walking out of the courtroom. He stared her down. I saw it. It was right there. That is no mistake there.”
The defense made a “motion to pass the case” (similar to a motion for a mistrial), arguing that the prosecutor was testifying. The trial court determined the remark to be improper but denied the motion — choosing instead to tell the jury to disregard the remark and reminding the jury that statements made during closing arguments are not evidence.
The jury convicted Bozzo, and he appealed. Among other things, Bozzo argued that the trial court abused its discretion when it permitted Petit to testify about the contents of the videos of child pornography and about Bozzo’s statements made during the investigation of those videos. Bozzo also argued the trial court erred when it denied his motion to pass the case.
The Rhode Island Supreme Court observed that “[w]e have not yet taken a definitive position on the employment of stipulations to preclude the use of other crimes evidence under Rule 404(b).” Rule 404(b) provides that, generally speaking, evidence of crimes — other than those being adjudicated at trial — is to be excluded subject to certain exceptions, e.g., to show intent or absence of mistake.
The Court determined that in this case it was permissible for the jury to consider the stipulation. “A stipulation ‘entered into with the assent of counsel and their clients, relative to an evidentiary fact or an element of a claim, is conclusive upon the parties and removes the issue from the controversy.’” State v. Huy, 960 A.2d 550 (R.I. 2008).
The trial court had properly instructed the jury to consider the stipulation only as evidence of intent. But the Supreme Court further stated, “By contrast, the evidence that was admitted about the child pornography case was highly prejudicial and created a real risk of juror confusion.” The Court ruled that the stipulation foreclosed evidence of the child pornography investigation and the videos and that the trial court erred in admitting the evidence. However, Bozzo’s statements were admissible because the statements were not prior bad acts.
Regarding the prosecutor’s statement during closing, the Court observed that “[t]he purpose of closing argument is to ‘sharpen and clarify the issues for resolution by the trier of fact in a criminal case.’” State v. Boillard, 789 A.2d 881 (R.I. 2002) (quoting Herring v. New York, 422 U.S. 853 (1975)). Prosecutors are given considerable latitude in closing argument as long as their statements pertain only to evidence presented and represent reasonable inferences from the record. Boillard.
In the instant case, there was no testimony or other evidence offered concerning the manner in which Bozzo may or may not have looked at Veronica. Bozzo was denied any opportunity to challenge the prosecutor’s assertion. Furthermore, Bozzo did not take the stand, so the prosecutor’s remark affected Bozzo’s Fifth Amendment right not to testify at trial. The Court concluded, “We are of the opinion that the prosecutor’s statements exceeded the ‘considerable latitude’ he was allowed because his statements were not based on evidence or testimony adduced at trial, were extraneous to the issues in the case, and had the potential for unfair prejudice.” State v. Lastarza, 203 A.3d 1159 (R.I. 2019).
Accordingly, the Court vacated the judgment of conviction and remanded to the Superior Court for a new trial. See: State v. Bozzo, 2020 R.I. LEXIS 5 (2020).
Related legal case
State v. Bozzo
|Cite||2020 R.I. LEXIS 5 (2020)|
|Level||State Supreme Court|