                                                 Supreme Court

                                                 No. 2011-353-C.A.
                                                 (W2/08-179A)


    State                     :

     v.                       :

Brian Verry.                  :




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                                                                  Supreme Court

                                                                  No. 2011-353-C.A.
                                                                  (W2/08-179A)


                   State                      :

                     v.                       :

               Brian Verry.                   :


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


                                          OPINION

       Justice Goldberg, for the Court. The defendant, Brian Verry (defendant), is before the

Supreme Court on appeal from a judgment of conviction entered after a jury trial in the Superior

Court. He was convicted of one count of felony assault, for which he received a twenty-year

suspended sentence with twenty years of probation; one count of simple assault, for which he

received a one-year sentence to be served concurrently with the other sentence imposed; and one

count of first-degree child abuse, for which he received a sentence of twenty years, with fifteen

years to serve and five years suspended with five years of probation. In support of his appeal,

the defendant argues that the trial justice (1) abused his discretion in refusing to grant a

continuance, and (2) erred and violated the defendant’s right to present a defense when the trial

justice prohibited the defendant’s father from testifying in the defendant’s case-in-chief. For the

reasons set forth in this opinion, we affirm the judgment of the Superior Court.




                                               -1-
                                          Facts and Travel

          This case arose from the assault and abuse of Beth, 1 an infant less than two months of

age. Beth was born on January 11, 2006, a premature birth; her parents are defendant and Megan

Verry (Megan). On March 8, 2006, after discovering a “monstrous growth coming out of

[Beth’s] head[,]” defendant and Megan brought Beth to the Emergency Room (ER) at South

County Hospital. At the ER, Beth was seen by a triage nurse and a physician, Dr. William

Sabina (Dr. Sabina). Doctor Sabina examined Beth and interviewed defendant and Megan.

After ordering a CT scan of Beth’s head and examining her a second time, Dr. Sabina diagnosed

Beth with a subdural hematoma with cephalohematoma; she was transferred, by ambulance, to

the Emergency Department at Hasbro Children’s Hospital (Hasbro). The Department of

Children, Youth, and Families (DCYF) was notified that the infant may have been abused. 2

          At Hasbro, doctors performed a series of tests, which revealed that Beth suffered

horrifying injuries, including a large skull fracture with both fresh and old bleeding in the brain.

X-rays and an MRI also revealed small fractures near the ends of the infant’s bones, where the

bones grow; both collarbones had been fractured and were healing; the child’s ribs were

fractured in eighteen places; and her pelvis was cracked. In total, in her brief fifty-five days of

life, the infant had sustained between thirty-six and forty bone fractures, including a skull

fracture. Because of the number of fractures, Dr. Carol Jenny (Dr. Jenny), the director of the

Child Protection Team at Hasbro, consulted a geneticist, Dr. Diane Abuelo (Dr. Abuelo), to

recommend testing to determine whether Beth had an underlying bone disease, osteogenesis



1
    In order to protect her privacy, the infant has been given a pseudonym.
2
 Doctor Sabina testified that he contacted DCYF because nothing in Beth’s history explained the
causation of her brain swelling and because the CT indicated that some of the blood in Beth’s
brain could have been there days or weeks earlier.
                                                 -2-
imperfecta (OI or brittle bone disease). Hasbro subsequently sent a skin biopsy and blood

sample to a laboratory in Seattle, Washington, for genetic testing. 3

       Doctor Jenny and Dr. Kathleen McCarten (Dr. McCarten), a pediatric radiologist who

also examined the child and performed tests, testified that they did not attribute the child’s

injuries to an underlying bone disease. According to Dr. Jenny, because of the fact that Beth had

not fractured any more bones since the March 8, 2006 incident, coupled with the fact that her

bones had healed and developed “beautifully” since the initial trauma, it was Dr. Jenny’s opinion

that Beth did not have OI.       Doctor Jenny concluded that Beth’s injuries were caused by

“excessive” squeezing, “abusive rough handling[,]” and “abusive head trauma.” 4

       Because child abuse was suspected in this case, DCYF placed a forty-eight-hour hold on

Beth, and she was removed from her parents’ custody. The Narragansett Police Department

began an investigation; Det. Timothy Lackie (Det. Lackie) went to defendant’s home in order to

interview the parents. The defendant was not home when Det. Lackie arrived, and Megan was

interviewed first. The next day, on March 10, 2006, Det. Lackie interviewed defendant at the

police station, with his attorney present. The defendant told the police that Beth’s head may

have hit the arm of a rocking chair while he was holding her on the night of March 8 and that he

might have “held her too tight a couple of times.”

       A DCYF child protective investigator, Katherine Bianchi (Bianchi), also interviewed

defendant. Bianchi testified that defendant had stated that “on several occasions, in an effort to

make [Beth] stop crying, he squeezed her.” The defendant also reported that he had previously



3
  Although the genetic testing found a “sequence variant[,]” the results failed to conclude that the
infant had OI or any bone disease.
4
 Doctor Lauren Noel (Dr. Noel), Beth’s pediatrician, testified that, at the time of trial, the infant
had not broken a single bone since being discharged from Hasbro in April 2006.
                                                -3-
“hit her * * * on the changing table in an effort to make her stop crying.” The defendant further

stated that, on the night Beth was hospitalized, “he had hit [Beth’s] head on the changing table in

an effort to have her stop crying and also her head on the side of the rocking chair in an effort

* * * to make her stop crying.”

       The defendant was arrested and subsequently charged, by criminal information, with

three felony crimes: two counts of felony assault, serious bodily injury due to Beth’s skull

fracture and serious bodily injury due to Beth’s fractured ribs, in violation of G.L. 1956 § 11-5-2;

and one count of first-degree child abuse, in violation of G.L. 1956 § 11-9-5.3. In April 2010, a

jury trial commenced in Superior Court. On April 20, 2010, the trial justice granted a judgment

motion of acquittal on count two, reducing the felony assault charge concerning the fractured

ribs to the lesser-included offense of a simple assault. However, after the jury was unable to

reach a verdict, a mistrial was declared.

       A second jury trial commenced in January 2011. The defendant was convicted of all

three counts. A judgment of conviction and commitment entered on February 18, 2011, and

defendant timely filed a notice of appeal that same day.

                                             Analysis

                               Denial of Motion for Continuance

       The defendant claims that the trial justice erred by denying his motion for a continuance

in order for the defense to investigate genetic-testing results that were provided to the defense

during jury selection in the second trial. Apparently, several months before trial, in June 2010,

defense counsel asked that the state perform supplemental testing mentioned by the genetic




                                               -4-
laboratory in Seattle, Washington, in its 2006 report. 5        The record is silent as to when

defendant’s blood was drawn or sent to the laboratory. However, the laboratory received the

state’s supplemental testing request in December 2010. On January 5, 2011, day two of jury

selection in defendant’s second trial, the state provided defense counsel with a report discussing

results from the requested supplemental testing conducted in the Seattle, Washington laboratory.

After receiving the report, defense counsel asked the trial justice for a continuance of at least one

week, based on his contention that more time and information were needed in order to retain an

expert to testify about the report and explain a sentence in the report that stated, “[g]iven these

findings[,] in addition to the report of no signs of OI in your patient, the father, [defendant], we

believe it is unlikely that this variant contributes to bone fragility.” Apparently, defense counsel

had learned—recently—that when defendant was four months old, he broke his femur and that

defendant’s family may have information of “other incidents of broken bones within the

family[.]” Defense counsel requested a continuance to determine whether this new information,

in conjunction with the recently received laboratory report, could explain Beth’s injuries. After

hearing the parties’ arguments, the trial justice denied defendant’s request for a continuance.

       The decision whether to grant a continuance is solely within the trial justice’s discretion

and will not be disturbed absent an abuse of discretion. State v. Marsich, 10 A.3d 435, 438 (R.I.

2010). “In certain instances, a request for a continuance should be granted ‘in order to protect

the accused’s constitutional right to procure the attendance of such witnesses and obtain such

5
 The results of the initial testing which Dr. Abuelo ordered in March 2006 came back in July
2006 and noted a variant in the child’s blood:

       “If the sequence change is also present in DNA from unaffected relatives of your
       patient, [Beth,] it would provide additional evidence that it is a biologic variant
       rather than a disease causing mutation. If you wish to study [Beth’s] parents[,]
       please provide a DNA sample from each or 2-3 cc of blood drawn * * * and the
       family history and medical history for each parent.”
                                                -5-
evidence as may be necessary to permit a full defense.’” Id. at 438-39 (quoting State v. Levitt,

118 R.I. 32, 41, 371 A.2d 596, 601 (1977)). However, “[a] defendant is not entitled to a

continuance * * * as a matter of course.” State v. Barbosa, 908 A.2d 1000, 1005 (R.I. 2006)

(quoting State v. Barnes, 122 R.I. 451, 455, 409 A.2d 988, 990 (1979)).

       “No mechanical test exists for deciding when a denial of a request for a continuance is so

arbitrary as to violate due process.” Barbosa, 908 A.2d at 1005. “However, unless a defendant

can satisfy certain criteria warranting a delay of trial, ‘the denial of a continuance will not be

deemed so arbitrary as to constitute a due process violation * * *.’” Marsich, 10 A.3d at 439

(quoting Levitt, 118 R.I. at 42, 371 A.2d at 601). The defendant bears the burden of establishing

that: (1) “the [evidence] would be material”; (2) “[the] defendant used due diligence in

attempting to procure” the evidence; (3) “it is reasonably certain that the [evidence] would be

available on the date to which the trial was continued”; and (4) “the testimony would not be

merely cumulative.” Id. (quoting State v. Firth, 708 A.2d 526, 530 (R.I. 1998)).

       Based on the record before us, defendant has failed to meet the continuance criteria, and,

therefore, we are of the opinion that the trial justice did not abuse his discretion in denying

defendant’s motion for a continuance. In denying defendant’s motion for a continuance, the trial

justice focused on factors two and three of the continuance criteria.

       First, the trial justice noted that defense counsel “had an opportunity to investigate the

scientific reliability of the type of test going to be conducted by [the Seattle, Washington] lab

and no one ha[d] done that investigation[.]” The trial justice noted that he did not believe

defense counsel had “attempt[ed] over the last year and a half, over the last year, to develop any

evidence that the testing done by the State of Washington * * * laboratory is sufficiently

scientifically accepted[.]” Next, the trial justice determined that defense counsel was seeking a



                                               -6-
continuance to obtain evidence that was speculative and that defense counsel was “speculating

that if the experts * * * were provided with more information, their best guess might be more

conditional or may even be different[.]” The trial justice went on to find that “[t]here [wa]s

absolutely no * * * suggestion that [the evidence being discussed] [wa]s anything other than a

cutting edge, exploratory scientific inquiry,” “which [he was] not sure [had] been peer

review[ed]” and that he did not know how, under Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993), “any of this information could possibly get before the jury if * * *

defendant himself [was] describing this genetic test as a best guess.”

       “The denial of a motion for a continuance constitutes an abuse of discretion only if the

movant is able to satisfy all four of the criteria enumerated [above].” Barbosa, 908 A.2d at 1006.

As defendant has failed to do so, we are of the opinion that the trial justice did not err in denying

defendant’s motion for a continuance.

                                Testimony of Defendant’s Father

       The defendant also contends that the trial justice committed prejudicial error in declining

to allow his father to testify as a defense witness.       During defendant’s second jury trial,

defendant sought to have his father testify that, when defendant was four months old, he broke

his leg when his father lifted him up and out of his crib. After determining that defendant’s

father’s testimony was “irrelevant, confusing, and [could] lead to [an] argument about brittle

bone” disease which “both [parties agreed] * * * they w[ould] not argue[,]” the trial justice

precluded the father’s testimony. We discern no error.

       “The Sixth Amendment to the United States Constitution allows criminal defendants to

offer testimony of witnesses on their behalf.” State v. Malone, 568 A.2d 1378, 1382 (R.I. 1990).

This Court has held, however, “that there is no constitutional right to introduce irrelevant,



                                                -7-
immaterial, or prejudicial evidence * * *.” Id. Accordingly, “[a] trial justice’s decision to admit

or to exclude evidence on relevancy grounds is a discretionary decision that will not be disturbed

on appeal, as long as the trial justice adequately explained his or her reasoning and the decision

did not amount to an abuse of discretion.” Lett v. Giuliano, 35 A.3d 870, 878 (R.I. 2012).

However, a trial justice’s decision to exclude evidence on relevance grounds “must be used

sparingly. * * * It is only when evidence is marginally relevant and enormously prejudicial that a

trial justice must exclude it.” State v. Covington, 69 A.3d 855, 863 (R.I. 2013) (quoting State v.

Smith, 39 A.3d 669, 675 (R.I. 2012)).

       After careful review of the record, we are satisfied that the trial justice did not err in

precluding this testimony. We agree with the trial justice’s determination that the defendant’s

father’s testimony “would be irrelevant, confusing, and lead to argument about brittle bone

wherein both sides ha[d] told [him] on the record that they w[ould] not argue.” Therefore, we

are satisfied that the trial justice did not abuse his discretion in excluding this testimony.

                                             Conclusion

       For these reasons, we deny the defendant’s appeal and affirm the judgment of conviction.

The record may be remanded to the Superior Court.




                                                 -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Brian Verry.

CASE NO:              No. 2011-353-C.A.
                      (W2/08-179A)

COURT:                Supreme Court

DATE OPINION FILED: November 20, 2014

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Washington County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Edwin J. Gale

ATTORNEYS ON APPEAL:

                      For State: Christopher R. Bush
                                 Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
