State v. Jason Nickerson

Supreme Court
No. 2012-342-C.A.
(P1/11-1596A)
State :
v. :
Jason Nickerson. :
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. 2012-342-C.A.
(P1/11-1596A)
State :
v. :
Jason Nickerson. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. The defendant, Jason Nickerson (defendant or
Nickerson), is before the Supreme Court on appeal from a judgment of conviction on four counts
of first-degree sexual assault, in violation of G.L. 1956 § 11-37-2, and one count of felony
assault and battery, in violation of G.L. 1956 § 11-5-2. The defendant argues that the trial justice
erred in denying his motion for judgment of acquittal and his motion for a new trial, claiming
that the state failed to prove that he was the perpetrator of these crimes. The defendant also
argues that, in violation of his constitutional rights and Rule 16 of the Superior Court Rules of
Criminal Procedure, the trial justice erred in denying the defendant’s motion to exclude the
testimony of a forensic evidence analyst who testified at trial. For the reasons set forth in this
opinion, we affirm the judgment of the Superior Court.
Facts and Travel
In June 2007, sixteen-year old Emma1 was living in a motel room in South Attleboro,
Massachusetts, with her alcoholic parents and younger sister. The family had moved to the
1
To protect her privacy, the complainant has been given a pseudonym.
-1-
motel after Emma became involved in a physical altercation with a cousin, causing her family to
leave the home they were sharing with Emma’s aunt and cousins. At the time, Emma had
dropped out of high school, but was working to obtain a GED; she also worked part-time at a
fast-food restaurant in Pawtucket, Rhode Island. Emma was on probation at the time, with an
8 p.m. curfew that had been imposed by the Family Court as a result of her having been reported
missing to the police several times.
Despite this curfew, however, on June 30, 2007, Emma’s mother drove her to a friend’s
house near Miriam Hospital in Providence at around 10 p.m., with the understanding that she
would return for her later that evening. Emma and her friend watched television, played video
games, and smoked marijuana. After a few hours, Emma repeatedly and unsuccessfully tried to
contact her mother for the promised ride back to the motel. Receiving no response, Emma made
the fateful decision to walk from Providence to South Attleboro.2
Emma had been walking on North Main Street toward Pawtucket for about ten minutes
when a car pulled up beside her and the driver asked if she needed a ride. Emma described the
driver as a dark-skinned male who was bald, between 6’2” and 6’4” tall, and weighed over two
hundred pounds; she also noted the man’s pointy noise, a distinguishing feature that she “had
never seen [on] a person of his [African-American] race.” According to Emma, she was
apprehensive about getting into the car with the stranger, and asked the man “[a]re you going to
hurt me? Is everything going to be all right?” The man responded “[y]es, I’m not going to hurt
you, everything will be all right.” Emma—discouraged by the long walk ahead of her—accepted
what she thought to be “a nice gesture,” and got into the car.
2
Although she testified that “[i]t’s kind of ridiculous” to walk from Providence to South
Attleboro, and that the trek would take a “few hours,” Emma admitted that she “didn’t have any
other way to get there besides walk” and “[t]o me, it wasn’t serious because [walking] was
something I did all the time to get to wherever I needed to go.”
-2-
As they drove, the man asked her name, and Emma, deciding that her real name was none
of his business, told him her name was Jasmine. He also asked if she smoked marijuana, and she
disclosed that she had some with her. According to Emma, the man then drove to a parking lot
in Pawtucket in order to smoke the marijuana; however, the presence of people nearby made the
man uncomfortable and they left. The man then drove through a maze of side streets until Emma
realized that the car was no longer traveling toward the motel. When Emma voiced her
concerns, the man explained that they were going to his house to smoke the marijuana.
The car, however, came to a stop in a small parking area—surrounded on three sides by a
chain link fence—where the man tried to kiss Emma. When she resisted, the man forced her to
kiss him; he bit her collarbone and began to pull off her pants. Emma testified that the man
continuously hit her in the face as she struggled and tried to escape. According to Emma, the
man began to penetrate her vagina with his fingers, and forced her to perform oral sex. She
attempted to escape by crawling into the backseat, but the man climbed on top of her and
penetrated her both vaginally and anally. Emma testified that as she tried to escape from the
backseat the man choked her until she almost lost consciousness. Emma testified that, at one
point during the attack, she felt a knife against her ribs and realized that resistance was futile.
She stopped struggling and began pleading with the man to let her go.
When the ordeal ended, the man took a towel and wiped her thoroughly in the vaginal
and anal areas where he had ejaculated. He took her cell phone from her purse and removed the
battery; he gave Emma the phone, but refused to return her purse. The man started the car, at
which point Emma noticed that it was almost 4 a.m. He then ordered Emma to get out of the car
and lie face down on the ground, threatening to back the car over her if she looked at him, his
vehicle, or his license plate. He also threatened to kill her and her family if she reported the
-3-
incident to police.
After the man drove away, Emma stood up and ran toward the street. A woman driving
by asked Emma if she needed help, and offered her a ride. Emma accepted and told the woman
what had happened to her; however, she refused the woman’s attempt to go to the police station,
insisting that she go home to be with her family.3 When the woman was unable to find the motel
where Emma’s family resided, she left Emma at a Walgreens store in Pawtucket with enough
money to buy water. Emma was met there by Pawtucket Police Officer Richard LaForest (Det.
LaForest),4 who was responding to a report—from a woman who went to the Pawtucket police
station—suggesting that the police check on the well-being of an injured woman at Walgreens.5
Emma disclosed to Det. LaForest that she had been raped, and, despite Emma’s desire to return
home, an ambulance was summoned to transport her to Hasbro Children’s Hospital.
At the hospital, Emma was seen by Dr. Amy Goldberg (Dr. Goldberg), a specialist in
child abuse pediatrics. According to Dr. Goldberg, it was immediately apparent that Emma “had
very obvious physical trauma,” to her face and neck; Emma’s left eye was swollen shut, there
was a cut on her mouth, and her neck was red and swollen. Emma told Dr. Goldberg that she
had been physically and sexually assaulted by a man who penetrated her vaginally, anally, and
orally over a period of about three hours, and explained that when she tried to resist, her assailant
punched her in the face and body, and he bit her and choked her almost to the point of
unconsciousness.
3
Despite her unstable home environment, Emma testified that following the attack she just
wanted to be at home with her family, craving “some sense of closeness” in the aftermath of her
ordeal.
4
At the time of the incident, Det. LaForest held the rank of patrolman.
5
The woman who picked up Emma and presumably reported the incident to the Pawtucket
police was never identified.
-4-
Doctor Goldberg testified that her examination was consistent with Emma’s description
of the assault; it revealed extensive bruising and petechial hemorrhaging—which occurs when
vessels in the skin release blood due to pressure or trauma—on Emma’s face. Doctor Goldberg
testified that the pervasive petechial hemorrhaging around Emma’s eyes and neck corroborated
the girl’s account of being choked. Additional petechial hemorrhaging was evident on Emma’s
back, and Dr. Goldberg noted bruising and “suction” injuries on Emma’s chest, consistent with
Emma’s claim of having been bitten by the assailant. According to Dr. Goldberg, all of Emma’s
injuries were recently inflicted.6
Doctor Goldberg also conducted a genital examination, noting that except for the area
outside of her vagina, which exhibited erythema, or extreme redness, the examination was
normal. Doctor Goldberg explained that erythema was consistent with trauma; however, she
noted that there was no bleeding, tearing, fissures, or other acute signs of traumatic injury to the
vaginal or anal areas. According to Dr. Goldberg, such observations did not conflict with
Emma’s account of having been sexually assaulted, because girls of Emma’s age are “fully
estrogenized,” which makes vaginal tissue “extremely lubricated, thick and flexible.” It is for
this reason, Dr. Goldberg clarified, that outward signs of genital trauma are uncommon and
exhibited in no more than 5 to 10 percent of sexual assault cases. The doctor further explained
that signs of damage to the anal cavity are even more rare, with no physical manifestations in
more than 99 percent of sexual assaults involving anal penetration.
Doctor Goldberg also collected various biologic samples to include in a forensic evidence
6
Doctor Goldberg testified that although she photographed Emma’s injuries during the
examination conducted in the early morning hours of July 1, 2007, those photographs were
unavailable at trial due to a technical computer issue. During her testimony, Dr. Goldberg
instead referenced photographs taken during Emma’s follow-up examination on July 2. Doctor
Goldberg, however, testified that during the initial examination, Emma’s injuries appeared
“much more severe” than what was depicted in the photographs admitted into evidence.
-5-
collection kit, including swab samples from inside Emma’s mouth, vagina, and rectum. Emma’s
clothes were collected and placed into a bag, except for her underwear, which was placed in a
separate bag. The forensic evidence kit was later examined by Sharon Mallard (Mallard), a
forensic scientist at the Rhode Island Department of Health Laboratory. Mallard noted five
visible stains on the underwear, and further testing of the garment revealed the presence of
sperm. A small amount of sperm also was detected on both the vaginal and rectal slides, which
were created by swiping the corresponding swab across a single slide.7
The evidence kit was then sent for DNA testing to ReliaGene Technologies lab in New
Orleans, Louisiana, where it was tested by forensic DNA analyst Teresa-Lynne Jones (Jones). A
cutting from Emma’s underwear confirmed the presence of sperm cells and yielded a DNA
profile from a single, unknown male. The swabs and slides contained in the evidence kit were
not tested for DNA, and it was only the biological material from Emma’s underwear that Jones
used to develop the DNA profile. This DNA profile, developed solely from testing conducted on
the underwear, was submitted to the Combined DNA Indexing System (CODIS) on
November 19, 2007, but there were no matches with anyone registered in the system at that time.
Notably, a cutting from Emma’s underwear was the only clothing submitted to ReliaGene for
testing. The other garments that Emma was wearing were transferred from the Department of
Health to the Providence Police Department, where it subsequently was lost after an evidence
viewing session by defense counsel and a paralegal from the Office of the Attorney General.8
7
Mallard testified that, because the slides and underwear revealed the presence of sperm, the
other articles of clothing that Emma was wearing at the time of the attack were not tested. She
explained that this was according to protocol; had the results from the samples in the evidence kit
come back negative, further testing would have been conducted.
8
Detective John Muriel, who examined the garments before they went missing, later testified
that he did not notice any obvious damage to the clothing, such as tears or bloodstains.
-6-
The police investigation conducted after the assault also produced no leads. On July 2,
2007—the day after the incident—Providence Police Det. John Muriel (Det. Muriel) interviewed
Emma. Detective Muriel drove with Emma through various neighborhoods in Providence
attempting to locate the crime scene, without success. Emma also was shown a photo array of
six photographs, but was unable to identify any of the men as her attacker. One week later,
Emma and Det. Muriel again drove around various neighborhoods in Providence, and this time
Emma was able to identify a parking lot near Cranston Street as the location where the attack
occurred. Detective Muriel’s attempts to speak with any occupants of the homes adjoining the
lot were unsuccessful.
Time passed. In July 2009—two years after the attack—Det. Muriel showed Emma a
second photo array; again, she was unable to identify any of the subjects as her attacker. In
January 2011, the Providence police were notified that there was a match between the DNA
sample produced from Emma’s evidence kit and a DNA profile recently submitted to CODIS.
The suspect was identified as Jason Nickerson (Nickerson or defendant). Upon receiving this
information, Det. Muriel attempted to locate Emma, and on March 9, 2011—almost four years
after the attack—Det. Muriel showed Emma yet another photo array, this time containing a
picture of Nickerson. However, Emma did not identify any of the men in the photo array.
Detective Muriel proceeded to obtain a search warrant and perform a buccal swab on
Nickerson, who was being held at the Adult Correctional Institutions (ACI) on an unrelated
charge. Detective Muriel delivered the swab to the Rhode Island Department of Health
laboratories, where Cara Lupino (Lupino), supervisor of forensic biology and DNA laboratories,
tested the sample. In accordance with the lab’s protocol, Lupino first retested the original
sample that was taken from the forensic evidence kit, and obtained the same result. Next,
-7-
Lupino tested the buccal swab obtained from Nickerson pursuant to the search warrant. After
comparing the two samples, Lupino concluded that the profile developed from the sample taken
from Emma’s underwear matched the profile developed from Nickerson’s buccal swab to a
probable certainty of one in 5.6 quadrillion people, which Lupino explained was one in a million
times the earth’s population.
Nickerson subsequently was indicted on seven felony counts, including four counts of
first-degree sexual assault in violation of § 11-37-2, consisting of penile-vaginal penetration
(count 1), digital-vaginal penetration (count 2), penile-anal penetration (count 3), and fellatio
(count 4). Nickerson was also charged with assault with a dangerous weapon—namely, choking
with hands—in violation of § 11-5-2 (count 5); second-degree robbery in violation of G.L. 1956
§ 11-39-1 (count 6); and assault with a dangerous weapon—a knife—in violation of § 11-5-2
(count 7).
A jury trial commenced on April 2, 2012. At trial, Nickerson testified on his own behalf
and gave a widely divergent account of his encounter with Emma. Nickerson admitted that he
had sexual relations with Emma; however, he claimed that it was a consensual encounter that did
not occur on the day that Emma was brutally attacked. According to Nickerson, on a weekday
afternoon the week before the assault, he was driving on Main Street in Pawtucket—in an area
he claimed is known for prostitution—when he saw a young woman dressed in tight-fitting,
provocative clothing. Assuming the woman was a prostitute, Nickerson testified that he stopped
and asked the woman how she was doing, and told her that she looked cute. Nickerson testified
that the woman leaned into the car and told him that she was looking to make some money.
Nickerson, who testified that he had engaged the services of a prostitute on at least two previous
-8-
occasions, invited the woman into the car.9
Nickerson claimed that after driving for two to three minutes, he drove into an alley,
where the woman told him her name was either Jackie or Jasmine and that it would cost $20 for
oral sex or $60 for vaginal intercourse. Nickerson testified that he paid the woman $60, at which
point he moved to the backseat of the vehicle and the woman climbed over the front seat into the
backseat, and proceeded to unbutton and unzip his pants. He testified that she then performed
oral sex for approximately five minutes.10 Nickerson testified that the woman then removed her
pants and underpants, and the two engaged in vaginal intercourse while they both faced the rear
passenger side window. Nickerson claimed that after about fifteen minutes he ejaculated onto
her lower back, at which point he pulled up his pants and returned to the front seat. He retrieved
the woman’s purse from the floor in front of the passenger seat and handed it to her. He testified
that the woman removed “a white cottonish thing” from her bag, and wiped her back before she
dressed and exited the car. According to Nickerson, he did not penetrate the woman anally or
digitally, nor did he hit, bite, choke, or otherwise harm her.
Although Nickerson acknowledged that he had a sexual encounter with Emma on a day
earlier in the week that she was assaulted, he insisted that it could not have been on June 30, the
night that she was brutally attacked. Nickerson—who had been adopted as a child after spending
years in foster care—testified that he spent that entire day preparing to attend a long-awaited
family reunion on Sunday, July 1, 2007, where he was to meet many of his relatives for the first
9
Although defendant admitted to using the services of a prostitute “about three times” in the
past, on cross-examination he could not recount in any detail where these transactions occurred,
how much he had paid, or what services he received—in stark contrast to the detailed account of
his encounter with Emma.
10
When asked on cross-examination about the discrepancy in his testimony regarding the quoted
price of services, what he paid, and what services he received, defendant explained that it was all
according to a “code” that prostitutes frequently use.
-9-
time. According to Nickerson, he spent all of June 30 shopping and preparing for the family
barbecue. He claimed that he picked up his mother-in-law, Yula Walker (Walker), who spent the
night at Nickerson’s home. He further testified that at around 10 p.m., his cousin Derek
Richardson (Richardson) arrived and the two played video games until around 2 a.m., at which
point Nickerson went to bed.
One month before trial, defense counsel disclosed that Nickerson intended to rely on an
alibi defense. Defense counsel indicated that Walker and Richardson could be called to
corroborate Nickerson’s claim that he spent the entire evening of June 30 into July 1 at home
with his relatives—a location that was approximately half a mile from the house that Emma
visited that evening. Significantly, although both Walker and Richardson had given this account
to the state’s investigators prior to trial, after the trial commenced and after she spoke to
Richardson, Walker changed her version of the events and claimed that she was mistaken about
the address at which the family gathered. Walker recalled that the family actually had spent that
evening with Nickerson at a different address in Pawtucket, approximately one mile from
defendant’s home. Faced with this development, the prosecutor argued that the notice of alibi
was fatally flawed; defense counsel, however, assured the court that no alibi witness would be
called to testify in a manner inconsistent with the information provided in the original alibi
notice, which referenced defendant’s home as the place where the family spent the evening.
Consequently, although Nickerson testified that he was home that evening, and the trial justice
did not preclude the defense from calling any witness, neither Walker nor Richardson testified
about defendant’s purported alibi. Instead, Nickerson testified in his own defense and
maintained that, although he had sex with Emma earlier in the week, it was consensual and that
the injuries she suffered on June 30 were consistent with having been in a fight, and not the
- 10 -
victim of a sexual attack.
On April 11, 2012, the jury found Nickerson guilty on five counts in the indictment, and
he was acquitted on count 6—second-degree robbery—and count 7—assault with a dangerous
weapon, to wit, a knife. On June 4, 2012, the trial justice heard and denied defendant’s motion
for a new trial. The trial justice sentenced Nickerson to concurrent terms of sixty years at the
ACI, with fifty years to serve and ten years suspended with probation. Concerning count 5, the
trial justice sentenced defendant to twenty years to serve concurrently with the sentence imposed
on the first four counts.11 The defendant timely appealed to this Court.
Analysis
Alleged Rule 16 and Brady Violations
On appeal, defendant argues that the trial justice erred in denying his motion to exclude
the testimony of Sharon Mallard, the analyst from the Department of Health, based on an alleged
violation of defendant’s constitutional rights and his right to discovery in accordance with
Rule 16 of the Superior Court Rules of Criminal Procedure. The defendant bases this argument
on the fact that Mallard’s handwritten bench notes, taken during her examination of Emma’s
forensic evidence kit, were not disclosed to defense counsel until trial had commenced. The
defendant claims that this evidence was material and favorable, and was withheld in violation of
Nickerson’s constitutional right to due process and the state’s discovery obligation under
Rule 16. The state denies that a due process violation occurred because, the state contends, the
content of Mallard’s notes was neither exculpatory nor material. The state also argues that
defendant’s reliance on Rule 16 is misplaced, because Nickerson failed to show bad faith on the
part of the prosecutor or show that he was prejudiced by the late disclosure of information
11
Nickerson was also ordered to have no contact with Emma, register as a sex offender, undergo
sex offender and anger management counseling, and to participate in substance abuse treatment.
- 11 -
contained in Mallard’s bench notes.
Under Rhode Island law, a criminal defendant may obtain pretrial discovery pursuant to
Rule 16 of the Superior Court Rules of Criminal Procedure.12 This Court previously has
explained that the “overarching purpose” of Rule 16 is “to ensure that criminal trials are
fundamentally fair.” State v. McManus, 941 A.2d 222, 229 (R.I. 2008) (quoting State v. Briggs,
886 A.2d 735, 754 (R.I. 2005)). In fact, “[t]he primary purposes of the rule are to eliminate
surprise at trial and ‘to ensure that both parties receive the fullest possible presentation of the
facts prior to trial.’” State v. Garcia, 643 A.2d 180, 186 (R.I. 1994) (quoting State v. Concannon,
457 A.2d 1350, 1353 (R.I. 1983)).
In determining whether a Rule 16 violation has occurred, a trial justice should consider
“(1) the reason for nondisclosure, (2) the extent of prejudice to the opposing party, (3) the
feasibility of rectifying that prejudice by a continuance, and (4) any other relevant factors.” State
v. Stravato, 935 A.2d 948, 951 (R.I. 2007) (quoting State v. Coelho, 454 A.2d 241, 245 (R.I.
1982)). If, however, the state deliberately failed to disclose evidence, “the defendant is entitled
to a new trial, and no inquiry is needed into the presence of the other three factors.” McManus,
941 A.2d at 229 (quoting Stravato, 935 A.2d at 951). Otherwise, it is within the sound discretion
of the trial justice to “determine whether any harm has resulted from noncompliance with
12
In pertinent part, Rule 16(a) of the Superior Court Rules of Criminal Procedure provides:
“Discovery by Defendant. Upon written request by a defendant,
the attorney for the State shall permit the defendant to inspect or
listen to and copy or photograph any of the following items within
the possession, custody, or control of the State, the existence of
which is known, or by the exercise of due diligence may become
known to the attorney for the State:
“* * *
“(5) all results or reports in writing, or copies thereof, of
physical or mental examinations, and of scientific tests or
experiments made in connection with a particular case * * * .”
- 12 -
discovery motions, and whether the harm can be mitigated.” Briggs, 886 A.2d at 757 (quoting
Coelho, 454 A.2d at 244-45).
In addition to Rule 16, “the due process clause of the United States Constitution requires
that the state provide a criminal defendant with certain information.” McManus, 941 A.2d at 229
(citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). “In accordance with Brady, if a prosecutor
has suppressed evidence that would be favorable to the accused and the evidence is material to
guilt or punishment, the defendant’s due-process rights have been violated and a new trial must
be granted.” DeCiantis v. State, 24 A.3d 557, 570 (R.I. 2011) (quoting McManus, 941 A.2d at
229-30). The Brady doctrine, however, “has its limits and does not ‘extend an open invitation to
criminal defendants to comb prosecution files for any or all information that might be remotely
useful.’” Cronan ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I. 2001) (quoting State v. Wyche,
518 A.2d 907, 908 (R.I. 1986)). Any nondisclosed information subject to Brady must “be
material in the sense that its ‘high value to the defense could not have escaped * * * [the
prosecution’s] attention.’” Id. (quoting Wyche, 518 A.2d at 910). A defendant, therefore, has
the burden of showing that “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” State v.
Burnham, 58 A.3d 889, 900 (R.I. 2013) (quoting McManus, 941 A.2d at 230). Notably,
however, the prosecution cannot be held responsible “for delivering information that is not
within its custody or control.” Id. (citing Wyche, 518 A.2d at 909).
“When reviewing a trial justice’s decision with respect to whether a violation of Rule 16
or Brady occurred, this Court affords great deference to the trial justice and will not disturb that
ruling unless he or she has committed clear error.” McManus, 941 A.2d at 229 (citing Briggs,
886 A.2d at 755). This is because “[w]e long have recognized that ‘the trial justice is in the best
- 13 -
position to determine whether any harm resulted from noncompliance with discovery motions
* * * .’” Id. (quoting State v. Brisson, 619 A.2d 1099, 1102 (R.I. 1993)).
In the case at bar, the record reflects that, prior to trial, the prosecution complied with
defendant’s initial discovery request by providing Mallard’s report of her analytical findings
concerning the testing performed on the forensic evidence kit, and by informing the defense that
Mallard would testify as to her conclusions regarding the report in order to establish that the
evidence kit traveled along an unbroken chain of custody. Mallard’s report, detailing her
conclusions, was entered into evidence as exhibit No. 22. Before Mallard was called to testify
on the afternoon of April 3, 2012, however, she provided the prosecutor with three pages of
handwritten bench notes that were created while performing testing on the evidence kit. The
prosecutor immediately gave the notes to defense counsel, who then moved to preclude Mallard
from testifying as to her findings because of the late disclosure of the notes. Alternatively,
defense counsel requested an overnight continuance to review the content of the notes, which
consisted of shorthand markings and sketches, for “potentially exculpatory information
contained therein.” The trial justice reserved ruling on the motion to exclude the evidence, but
she granted the requested recess to allow counsel to review the notes.
When trial commenced the following morning, the defense renewed its motion to
preclude Mallard from testifying as to her findings. Counsel acknowledged that she had
reviewed the notes with Mallard the previous afternoon, but contended that, based on the late
disclosure, defendant was deprived of an opportunity to thoroughly explore what could
potentially be exculpatory evidence with an expert in forensic pathology. Defense counsel
maintained that, upon reviewing Mallard’s notes, she determined that the samples played a role
in the defense’s case and that she felt the need to hire an expert. Defense counsel argued that,
- 14 -
based on defendant’s account that he had sex with Emma the week before she was attacked, the
relatively small quantity of sperm found by Mallard on the slides and smears was probative as to
when the sperm was deposited, and thus the late disclosure and alleged inability to consult an
expert witness deprived defendant of a meaningful opportunity to cross-examine Mallard
concerning the test results.
The prosecution responded that the state had been unaware of Mallard’s bench notes, and
had turned them over to the defense immediately upon receiving them. Moreover, the state
argued that defense counsel had notice that Mallard would be called to testify, and was provided
with the document containing the summary of her analytical findings, marked as exhibit No. 22,
which noted that a “[m]icroscopic examination revealed the presence of spermatozoa and/or
partially intact spermatozoa on the vaginal and rectal samples,” as well as on Emma’s
underwear—from which the DNA sample was developed. The prosecutor acknowledged
defendant’s right to cross-examine Mallard concerning the age and quantity of the sperm
discovered on the tested samples, and noted that Mallard was being called for chain of custody
purposes—to “show the integrity of the DNA that went all the way to ReliaGene”—where the
DNA testing actually occurred. The state contended that the defense’s argument was without
merit, because the defense was well aware that “this case comes down to DNA,” but at no time
had defendant sought to hire his own experts to either retest the evidence or analyze the
conclusions of any witness. As a result, the prosecution argued that Nickerson was not
prejudiced by the late disclosure of Mallard’s notes.
After hearing the parties’ arguments, the trial justice determined that there was no
evidence that Mallard’s notes—marked exhibit No. 30 for identification—were purposely
withheld from the defense. The trial justice further noted that, although the defense was
- 15 -
provided with the summary of Mallard’s findings as to the presence of spermatozoa on the
samples, the defense failed to seek production of notes or documents relating to the report or to
pursue any independent investigation of the DNA evidence. The trial justice indicated that she
had granted a continuance to permit counsel to review the notes with the witness. The trial
justice also stated that the defense could have hired an expert to analyze Mallard’s findings and
had failed to do so. The trial justice declared that she “d[id] not believe that the mere failure to
produce the underlying notes to their report preclude[d] the defense from retaining an expert in
order to properly meet even the findings of Ms. Mallard contained within that report.” As such,
the trial justice determined that defense counsel’s position was “really a strategic argument,” and
that defendant was not prejudiced by the late production of the bench notes, because defense
counsel “could have inquired into these matters further with a consulting expert if it so desired.”
Reviewing this ruling through our deferential lens, we are satisfied that the trial justice
conducted the appropriate analysis in accordance with Rule 16, by first determining that the
state’s failure to produce Mallard’s notes was inadvertent, and then concluding that Nickerson
suffered no prejudice by the “mere failure to produce the underlying notes,” because defendant
was in possession of Mallard’s conclusions as set forth in her report—which, we note, did not
deviate from her bench notes—and had ample opportunity to further investigate those findings.
In fact, defendant was aware that this case hinged on the outcome of forensic testing, because
Emma was never able to identify her assailant. We also note that defendant only sought to
exclude Mallard’s testimony and did not move for a mistrial. Accordingly, we are unpersuaded
by defendant’s argument that he was prejudiced by the late disclosure of Mallard’s bench notes,
and we are satisfied that the trial justice did not err in finding that Rule 16 had not been violated
in the context of this case.
- 16 -
Moreover, we are equally satisfied that the trial justice correctly found that a Brady
violation did not occur in this case. When addressing this facet of defendant’s argument,13 the
trial justice observed that the defense did not ask to pass the case based on the alleged late
disclosure. The trial justice declared that she was convinced that defendant had notice of
Mallard’s conclusions—and what would be testified to—in advance of trial. The trial justice
determined that, not only was the defense able to address Mallard’s conclusions at trial, but “in
fact, exploited that evidence during the course of trial as well,” by eliciting from Mallard that it
was impossible to determine the age of the sperm or when it was deposited on Emma’s
underwear, and that, despite the samples tested by Mallard, the only evidence that incriminated
Nickerson was discovered by DNA testing conducted on the underwear cutting by another
witness. For these reasons, the trial justice determined that further investigation of Mallard’s
bench notes would not have changed the result of the proceeding. Accordingly, because we are
satisfied that the trial justice conducted the appropriate analysis, we decline to disturb this
finding on appeal. See Burnham, 58 A.3d at 900 (the defendant has the burden of showing that
“there is a reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different”) (quoting McManus, 941 A.2d at 230).
13
When defendant’s argument regarding the alleged Brady violation was initially raised—prior
to Mallard testifying as to her conclusions—the trial justice did not address it as such, and
instead focused her ruling on defendant’s argument that Rule 16 had been violated. However,
we are satisfied that the trial justice appropriately addressed this argument—and that it was
preserved for review—when it was raised again by defendant during his motion for a new trial.
- 17 -
Motion for Judgment of Acquittal
and
Motion for a New Trial
On appeal, defendant argues that the trial justice erred in denying his motion for
judgment of acquittal and motion for a new trial, claiming that (1) the prosecution failed to
prove, beyond a reasonable doubt, that defendant was the perpetrator of the assaults against
Emma, and that (2) the chain of custody of the evidence kit was not sufficiently established by
the state and therefore, the evidence should have been excluded. The defendant also argues that
the trial justice incorrectly denied his motion for a new trial based on the aforementioned alleged
violations of Rule 16 and defendant’s constitutional rights resulting from the disclosure of
Mallard’s technical notes at trial.
It is well settled that “[i]n reviewing a challenge to a trial justice’s rulings on a motion for
judgment of acquittal and a motion for a new trial, this Court ‘first conducts a review of the new-
trial motion.’” State v. Buchanan, 81 A.3d 1119, 1127 (R.I. 2014) (quoting State v. Gaffney, 63
A.3d 888, 893 (R.I. 2013)). This is “because both motions simultaneously raise a ‘challenge to
the [legal] sufficiency of the evidence,’ and thus, ‘we begin our review by conduct[ing] the more
exacting analysis required for review of a ruling on a motion for a new trial.’” Id. (quoting
Gaffney, 63 A.3d at 893).
When passing on a motion for a new trial, “the trial justice must determine ‘whether the
evidence adduced at trial is sufficient for the jury to conclude guilt beyond a reasonable doubt.’”
State v. Baptista, 79 A.3d 24, 29 (R.I. 2013) (quoting State v. Staffier, 21 A.3d 287, 290 (R.I.
2011)). In making this determination, “the trial justice acts as a thirteenth juror, exercising
‘independent judgment on the credibility of witnesses and on the weight of the evidence.’” Id.- 18 -
(quoting Staffier, 21 A.3d at 290). This undertaking requires the trial justice to “(1) consider the
evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and
the weight of the evidence, and then (3) determine whether he or she would have reached a result
different from that reached by the jury.” Id. (quoting State v. Paola, 59 A.3d 99, 104 (R.I.
2013)). “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.” Buchanan, 81 A.3d at 1127 (quoting State v. Otero, 788 A.2d
469, 472 (R.I. 2002)). Furthermore, “[i]f the trial justice has complied with this procedure and
articulated adequate reasons for denying the motion, his or her decision will be given great
weight and left undisturbed unless the trial justice overlooked or misconceived material evidence
or otherwise was clearly wrong.” Id. (quoting State v. Horton, 871 A.2d 959, 967 (R.I. 2005)).
We employ such a “deferential standard of review because ‘a trial justice, being present during
all phases of the trial, is in an especially good position to evaluate the facts and to judge the
credibility of the witnesses.’” Baptista, 79 A.3d at 29-30 (quoting Paola, 59 A.3d at 104).
In the case at bar, the trial justice declared that defendant’s motion for a new trial “asks
this [c]ourt principally to determine whether the weight and credibility of the evidence at trial
was sufficient to support the jury’s verdict in this case.” The trial justice proceeded to
thoroughly detail all of the evidence and testimony presented at trial, noting that Emma’s
testimony “was very credible.” The trial justice recounted that although the defense had the
opportunity to vigorously cross-examine her, Emma gave her account of the assault “in measured
tones,” and “completely dispelled” any notion that the attack was fabricated. In fact, the trial
justice found that after the assault, Emma’s description of what transpired never wavered, and
that the state “effectively corroborated” Emma’s account with the testimony of others who saw
- 19 -
her in the immediate aftermath of the assault.
The trial justice specifically recounted the “credible” testimony of Dr. Goldberg, noting
that the doctor’s conclusions supported the physical and sexual assaults testified to by Emma,
and discounted defendant’s assertion that Emma’s injuries were more consistent with having had
been in a fight than the victim of a sexual assault. The trial justice detailed that the forensic
testing conducted on the samples taken by Dr. Goldberg corroborated Emma’s story, and
specified that she saw no issues with the forensic evidence in the case, declaring “that there was
no break in the chain of custody and no evidence of contamination such that the results of that
testing and the match reference w[ere] accurate and reliable evidence for the jury to depend
upon.”
The trial justice also found that the photographs and evidence presented at trial
corroborated Emma’s account of the attack. The trial justice specifically discounted the
defense’s criticism of Emma’s clothing having been lost; she noted that the defense had the
opportunity to photograph the clothing before it went missing, and that, because there was no
forensic testing conducted on the clothing, there was no loss of evidence “of any evidentiary
significance.” The trial justice concluded that, “[c]onsidering the credible trial testimony of
[Emma] and the corroborative physical evidence and other testimonial evidence,” she was
satisfied that the jury reached the correct verdict.
The trial justice also stated that she was “satisfied that the [s]tate proved the identity of
the perpetrator beyond a reasonable doubt.” The trial justice detailed that, although Emma had
given an accurate description of her assailant to Det. Muriel, defendant’s true identity could not
be established before 2011—when his DNA was entered into CODIS—because she did not
know him and had never seen him before the attack. The trial justice commented that, in her
- 20 -
opinion, there were no photos of anyone resembling Nickerson in the first two photo arrays
shown to Emma, and further, although Nickerson matched Emma’s initial description of her
attacker, Emma could not be faulted for failing to identify him in the final photo array that
contained his photograph.14 The trial justice concluded that the forensic evidence presented at
trial “squared” with Emma’s account of the assault, and, with her testimony and the other
evidence presented, “establish the defendant as the perpetrator of the sexual and physical assaults
beyond a reasonable doubt.”
The trial justice also commented on defendant’s defense of consent and alibi, describing
it as “perfect.” However, she noted that the jury rejected this defense “wholeheartedly,” and
with “good reason to do so.” The trial justice explained that “defendant’s story [was] engineered
[and] self-serving[,] was not corroborated[,] and lacked credibility.” She further detailed that
Nickerson’s testimony “was too carefully contrived to explain away the physical evidence and
take advantage of other evidence,” and noted that, on cross-examination, defendant “had
difficulty sticking to his story.” After a thorough recitation of Nickerson’s testimony, the trial
justice concluded that “the jury was within its rights and indeed correct to reject the defendant’s
testimony.” The trial justice denied defendant’s motion for a new trial based on insufficient
evidence, and also denied—citing the analysis of her previous rulings—defendant’s motion for a
new trial based on alleged errors occurring at trial.
After careful review of the record before us, this Court is satisfied that the trial justice
correctly addressed defendant’s motion for a new trial and, based on her reasoning and thorough
review of the evidence in this case, we refuse to disturb the trial justice’s decision. The trial
justice independently assessed the credibility of each witness and commented upon the weight of
14
The trial justice, after closely examining the photo, explained that “it was not readily apparent
to the [c]ourt which picture was his even with the defendant in court sitting feet away.”
- 21 -
the evidence before agreeing with the jury verdict. We also discern no error with respect to the
trial justice’s conclusion that the state effectively established an unbroken chain of custody of the
evidence that was tested for, and found to contain, defendant’s DNA. Moreover, we are satisfied
with the trial justice’s analysis regarding defendant’s claim of Rule 16 and Brady violations, and
are of the opinion that she correctly denied defendant’s motion for a new trial on these grounds.
Accordingly, based on our review of the record before us, we conclude that the trial justice did
not err when she rejected defendant’s motion for a new trial.
Turning now to defendant’s motion for judgment of acquittal, “it is well settled that when
passing on ‘a trial justice’s denial of a motion for judgment of acquittal, this Court applies the
same standard as the trial justice.’” Buchanan, 81 A.3d at 1128 (quoting State v. Long, 61 A.3d
439, 445 (R.I. 2013)). Thus, “[a] motion for a judgment of acquittal should be granted only if
the evidence, viewed in the light most favorable to the prosecution, is insufficient to establish the
defendant’s guilt beyond a reasonable doubt.” Id. at 1128-29 (quoting Long, 61 A.3d at 445).
“If, however, a reasonable juror could find the defendant guilty beyond a reasonable doubt, the
motion should be denied.” Id. at 1129 (quoting Long, 61 A.3d at 445).
In this case, the trial justice denied the defendant’s motion for judgment of acquittal at the
close of the state’s case after a detailed recitation of the evidence and witness testimony that had
been presented up to that point. The trial justice unequivocally determined that, in addition to
other testimony and evidence presented, Emma’s testimony alone was sufficient to support all
counts of the indictment beyond a reasonable doubt. Addressing the defendant’s argument that
the chain of custody was flawed, the trial justice recounted the travel of the evidence tested,
concluding that it had been properly collected and transported, and specified that there was no
indication of a break in the chain of custody of the underwear “sufficient to undermine its
- 22 -
reliability.”15 When the defendant renewed his motion for judgment of acquittal at the close of
evidence, the trial justice—citing to the same reasoning—denied this motion as well. Because
we conclude that the trial justice’s decision is without error, any further analysis of the trial
justice’s denial of the defendant’s motion for judgment of acquittal is unnecessary in light of our
analysis and opinion regarding the defendant’s motion for a new trial. See Buchanan, 81 A.3d at
1127 (noting that, when faced with a challenge to rulings on both a motion for a new trial and for
judgment of acquittal, this Court first conducts “the more exacting analysis required for review
of a ruling on a motion for a new trial”) (quoting Gaffney, 63 A.3d at 893). Accordingly, we see
no reason to disturb the trial justice’s decision regarding the defendant’s motion for judgment of
acquittal.
Conclusion
For the reasons set forth in this opinion, we deny and dismiss the defendant’s appeal and
affirm the Superior Court’s judgment of conviction. The papers in this case may be returned to
the Superior Court.
15
Although defendant asserts that the trial justice erred in disregarding a purported missing link
in the chain of custody of the underwear—namely, why it took so long for the samples to be
tested and who transported the evidence kit from the hospital to the Department of Health—we
are satisfied that the trial justice addressed this contention during her rulings on defendant’s
motion for judgment of acquittal and motion for a new trial, determining that there was no
indication that the evidence had been tampered with or contaminated. To the extent that
defendant posits this as a separate argument on appeal, we are equally satisfied that the trial
justice did not err in finding that the state had established that the evidence had not been
disturbed. See State v. Nelson, 982 A.2d 602, 612 (R.I. 2009) (noting that a showing of a
continuous chain of custody is not necessary and that the state need not eliminate all possibility
of tampering, but rather that evidence may be admitted upon a showing that “in all reasonable
probability the evidence has not been subjected to tampering”) (citing State v. Bracero, 434 A.2d
286, 290 (R.I. 1981)).
- 23 -
RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Jason Nickerson.
CASE NO: No. 2012-342-C.A.
(P1/11-1596A)
COURT: Supreme Court
DATE OPINION FILED: July 10, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Maureen McKenna Goldberg
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Judith C. Savage
ATTORNEYS ON APPEAL:
For State: Jane M. McSoley
Department of Attorney General
For Defendant: Lara E. Montecalvo
Office of the Public Defender