State v. Tavares

312 A.3d 449

STATE

v.Victor TAVARES.

No. 2022-152-C.A. (P1/18-1289A)

Supreme Court of Rhode Island.

April 22, 2024

Providence County Superior Court, Associate Justice Joseph A. Montalbano

Christopher R. Bush, Department of Attorney General, for State.

Victor Tavares, pro se, for Defendant.

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

OPINION

Justice Goldberg, for the Court.

The defendant, Victor Tavares (defendant or Tavares), was convicted by a jury on two counts of first-degree sexual assault in violation of G.L. 1956 §§ 11-37-2 and 11-37-3, and one count of conspiracy to commit first-degree sexual assault in violation of G.L. 1956 § 11-1-6. Tavares, who was pro se at trial and again on appeal, raises twelve issues for our consideration. For the reasons discussed below, we affirm the judgment of conviction.

I Factual Background

On May 26, 2012, Mary, the complainant, attended a party at the home of Juanita Johnson (Juanita), commemorating Memorial Day weekend.¹ At the time of trial, Mary was thirty-seven years old and described Juanita as her mother’s best friend and someone Mary had known her entire life. Juanita had four children, most notably, Franklin Johnson (Johnson) with whom Mary grew up and was particularly close. Because of this close and longstanding family relationship, it was not uncommon for Mary to socialize with Juanita and her family members.

When Mary arrived at Juanita’s home on May 26, 2012, it was daylight and approximately thirty to forty people were in attendance. As guests continued to arrive, Mary mingled at Juanita’s home, enjoying drinks and music, and talking to Juanita, Johnson, and other party guests. Several hours after Mary arrived at the party, Johnson asked Mary to drive to Tavares’s home—approximately one mile away—and bring Tavares to the party. Mary knew Tavares through, inter alia, Johnson, and thus, she agreed.

The short ride to and from Tavares’s home was uneventful, but that soon changed. After returning to the party, Johnson asked Mary if he could make her a drink. Mary accepted and Johnson delivered an alcoholic beverage mixed with juice. Mary consumed some of the mixed concoction, but she did not finish it. Instead, Mary described feeling "drunk but overly drunk in a way that I had never felt before[, t]hings started looking funny. Colors started looking funny. I was very dizzy, very nauseous." As Mary continued feeling ill, she excused herself from Juanita’s and Johnson’s company and went to find the bathroom.

Mary recounted that during the brief journey to the bathroom her "balance was all off’ and compared the trek to "walking in a video game." When Mary entered the bathroom, she closed and locked the door. While the precise details concerning what transpired in the bathroom and for how long Mary was in the bathroom are neither certain nor material, Mary testified that she believed she passed out and was later "woken up by [Johnson] knocking on the bathroom door."

Mary testified that Johnson initially queried whether she was "okay." Thereaf- ter, Mary recounted, Johnson "said he had a surprise for me, to come with him." Mary trusted Johnson so she unlocked and opened the bathroom door; Johnson subsequently led Mary to a nearby bedroom. After Mary and Johnson entered the bedroom, Johnson closed the bedroom door behind them; Tavares was lurking behind the now-closed bedroom door.

As the party and music continued outside the house, Mary testified, Johnson pushed her onto a mattress in the bedroom, pulled her dress up, and removed her underwear. According to Mary, Tavares exposed his penis and penetrated Mary’s mouth, pulling out only after Mary bit him. Subsequently, Mary recalled that Johnson and Tavares both used condoms and penetrated her vagina. Mary testified that Tavares’s and Johnson’s actions were nonconsensual, explaining that she was "scared" and "so weak at that point" that "[n]o matter what, there [was] nothing I could do to - I knew that there was nothing I could do to help myself." Mary further recounted that Tavares and Johnson held her down against the mattress as she cried and yelled for Johnson to "[p]lease, please stop. Please make him stop." The response: Tavares and Johnson laughed, and Johnson quipped, "[d]on’t you love me, sis?"

The next morning, Mary awoke and was extremely groggy. She described finding her legs hanging off the mattress, her dress pulled up, and her underwear clenched in her hand. Mary also reported being in pain and bleeding from her anus but could not remember the sordid details from the prior evening or early morning. Mary searched the bedroom for her keys and cell phone. Although she was unsuccessful in locating those items, she did discover a used condom. Realizing that "something was wrong," Mary grabbed the condom and threw it in her bag. Mary then woke Johnson, who was asleep and propped up against the bedroom door. Mary asked Johnson about her missing keys and cell phone; Johnson replied, "[y]ou should call [Tavares]."

Mary left Juanita’s residence and headed on foot to Tavares’s home. As Mary approached Tavares’s residence, she began recalling images from the prior evening or early morning. Mary screamed, "[y]ou raped me. Come outside. You raped me." When Tavares exited his home, he approached Mary and handed her the car keys. Mary then walked back to her vehicle and drove home.

After arriving home, Mary recalled feeling "disgusting" and that her "skin was crawling." She showered four times but did not seek medical or law enforcement assistance that day because "I just wanted to forget that - I didn’t want to be at that point. I didn’t want to even be existing at that point." Mary testified that among the many emotions she experienced at that time was betrayal because Johnson was "like a brother, someone I looked up to or someone that protected me."

Three days after the party, on May 29, 2012, Mary drove herself to Women & Infants Hospital (hospital). Once at the hospital, Mary was treated by Bethany D’Amico (Nurse D’Amico), a nurse in the emergency room, who was trained in conducting sexual assault medical examinations and collecting evidence. She extensively examined Mary using a sexual assault evidence collection kit; and, as part of Mary’s medical treatment, Nurse D’Amico elicited information from Mary concerning the circumstances that brought her to the emergency room. Mary recounted the events described above and identified the two assailants as Tavares and Johnson. Mary brought the clothes she was wearing on the evening of May 26, 2012, as well as the condom she retrieved on the morning of May 27, 2012. These items were collected by Nurse D’Amico for further examination and testing. Nurse D’Amico also documented bruising to Mary’s upper left interior thigh, left exterior knee, right anterior knee, and right anterior thigh.

While at the hospital, Mary was interviewed by a police officer and identified Tavares and Johnson as the assailants. Approximately two weeks later, Mary appeared at the Providence Police Department to make an official statement. She met Detective William Corrigan and again identified Tavares and Johnson as the perpetrators, specifically detailing that Tavares penetrated her vaginally and orally.

During trial, Shawna Bradshaw (Bradshaw), a Rhode Island Department of Health (DOH) senior forensic scientist, testified concerning the analysis of several items for DNA, including swabs taken from the inside and outride of the condom. After Bradshaw obtained a DNA sample from the inside of the condom, the profile was submitted into the CODIS database.² The CODIS system generated a report indicating that the DNA profile extracted from the inside of the condom was a "match" with Johnson’s DNA profile.

Bradshaw explained that, when the DOH receives a positive report from CODIS, such as in this instance, the DOH engages in a process to confirm the DNA results. Pursuant to this confirmatory process, Bradshaw retested and reconfirmed the results taken from the swab of the inside of the condom. Additionally, Bradshaw explained, in 2018, she tested and analyzed a new and known DNA sample from Johnson. Bradshaw compared Johnson’s known DNA profile to the DNA profile extracted from the inside of the condom. A statistical analysis revealed that the probability that the DNA from inside the condom belonged to someone other than Johnson was one in 1.2 quintillion.

On or about May 21, 2018, a grand jury returned an indictment charging Tavares with two counts of first-degree sexual assault and one count of conspiracy to commit first-degree sexual assault. The same indictment charged Johnson with one count of first-degree sexual assault and one count of conspiracy to commit first-degree sexual assault.³

On May 25, 2018, the state filed a violation report against Tavares in accordance with Rule 32(f) of the Superior Court Rules of Criminal Procedure.⁴ The viola- tion report charged that on the basis of the conduct alleged in the May 21, 2018 indictment, Tavares had violated the terms and conditions of probation imposed for a prior conviction. Over the course of seven days, a justice of the Superior Court held a violation hearing, at the conclusion of which Tavares was declared a probation violator. Tavares appealed the probation-violation determination, which we affirmed. See State v. Tavares, 251 A.3d 895, 898 (R.I. 2021) (mem.).

In September 2021, a jury trial ensued relating to the sexual assault and conspiracy allegations.⁵ The defendant represented himself during the Superior Court proceedings but had the benefit of standby counsel, who was present during all trial proceedings. Following the state’s presentation of evidence, Tavares declined to present witnesses or evidence. A jury found him guilty on two counts of first-degree sexual assault and on one count of conspiracy to commit first-degree sexual assault. The trial justice sentenced Tavares to forty years at the Adult...