                                                  Supreme Court

                                                  No. 2010-361-C.A.
                                                  (P1/09-1119A)



     State                     :

       v.                      :

Mustapha Bojang.               :




 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
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                                                                 Supreme Court

                                                                No. 2010-361-C.A.
                                                                (P1/09-1119A)
                                                    (Dissent and concurrence begin on Page 22)



                   State                     :

                    v.                       :

            Mustapha Bojang.                 :


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

                                         OPINION

       Justice Goldberg, for the Court. After a six-day trial, a Superior Court jury convicted

the defendant, Mustapha Bojang (defendant), of two counts of first-degree child molestation

sexual assault. The defendant contends that the trial justice committed three errors that require

this Court to vacate those convictions: (1) the denial of the defendant’s motion to suppress

statements made to police during a post-arrest interrogation; (2) the refusal to allow the

defendant to inquire into a false accusation of physical abuse by the complainant against her

mother; and (3) the denial of the defendant’s motion for a new trial. For the reasons set forth

below, we remand the case to the Superior Court with directions to the trial justice to make

additional findings of fact and credibility determinations concerning the voluntariness of the

defendant’s confessions.

                                       Facts and Travel

       The defendant came to the United States from West Africa in 2005 on a student visa.

After brief stays in Maryland and Missouri, defendant settled in Woonsocket with the Manneh

family. Mrs. Manneh (Jainoba) was the cousin of defendant’s wife, who remained in Africa

                                              -1-
while defendant traveled to the United States. Jainoba1 lived in a second-floor apartment with

her husband, Abou Manneh, and their three children, including the complainant, Jasmine.2 The

defendant lived with the Manneh family from January 2005 until December 2007; a number of

other adult males also lived in the apartment with the Mannehs from time to time.3 Because he

was home in the afternoon, defendant would sometimes babysit Jasmine if neither Abou nor

Jainoba was home.

       The sexual abuse that is the subject of this case occurred in 2007, when Jasmine was

eight years old. Jasmine first disclosed the sexual molestations to her fourth-grade teacher and a

school guidance counselor in January 2009. After Jasmine reported defendant’s alleged abuse,

the school officials contacted the Department of Children, Youth and Families (DCYF). When

DCYF investigator Sue Kalo (Kalo) interviewed Jasmine, she disclosed that she was raped twice

by defendant. Soon after that interview, Jasmine was examined by Dr. Christine Barron (Dr.

Barron); the child indicated two separate instances of sexual abuse to Dr. Barron. Doctor

Barron’s examination was normal, revealing no evidence of physical trauma.

       When Jasmine’s father learned about her disclosures, he met with Kalo and reported the

sexual abuse allegations to the Woonsocket police on January 27, 2009.             Based on the

information provided by DCYF and a Child Advocacy Center (CAC) interview, Woonsocket

Police Det. Kevin Hammann (Det. Hammann) obtained an arrest warrant for defendant. At the


1
  For clarity, the Court refers to members of the Manneh family by their first names; no
disrespect is intended.
2
  Because the victim was a minor when the alleged offenses occurred, we use a pseudonym to
protect her privacy. See G.L. 1956 § 11-37-8.5 (mandating confidentiality of records concerning
victims of child molestation sexual assault).
3
  Additionally, other members of the Manneh family lived in apartments on the first and third
floors of the tenement building.

                                              -2-
time, defendant was living with Abou’s brother at another location in Woonsocket. Detective

Hammann and Woonsocket Police Det. Ronald LaBreche (Det. LaBreche) arrested defendant at

that site on February 2, 2009.       Woonsocket Police Officer Anthony Conetta transported

defendant to the Woonsocket police station. For clarity, we recount the evidence concerning the

voluntariness of defendant’s statements as gleaned from the entire trial record and not simply the

suppression hearing.

       Once at the police station, Dets. Hammann and LaBreche conducted two interviews with

defendant: an initial unrecorded interview followed by a recorded confession.4 The detectives

first placed defendant in the juvenile conference room, which has no recording equipment.

During that interview, defendant agreed to waive his Miranda rights and signed a rights form.

The testimony at trial produced divergent accounts of the events in the first interview room. At

trial, the detectives testified that the interview was largely calm, although Det. LaBreche raised

his voice and pounded on the table to get defendant’s attention.             While the detectives

acknowledge raising defendant’s immigration status during the interview, each officer denied

threatening deportation if he refused to cooperate.5 On the other hand, defendant testified at trial

that, after he accused Jasmine of lying, Det. LaBreche responded, “Kids don’t lie” and struck

him in the head. According to defendant, after he expressed a willingness to take a lie detector

test, Det. LeBreche hit him again and said, “This is your lie detector test. Shut the f*** up.”



4
  The Woonsocket Police Department’s policy gives the detective in charge of an investigation
the discretion as to whether to use the interview room with recording capabilities. Detective
Hammann testified that officers in his unit typically begin interviewing suspects or victims in the
juvenile conference room, which lacks recording capabilities, because it is closer to their
cubicles than the interview room with recording capabilities.
5
 At trial, defendant testified that his visa had expired about two months before he was arrested.
Although he had applied for permanent resident status, he had not yet received a response.

                                               -3-
The defendant also alleged that the detectives told him that he would be deported if he refused to

cooperate.

       Detective Hammann testified that, after first denying the allegations against him,

defendant admitted that he kissed Jasmine on the lips and that on one occasion he stuck his

finger in Jasmine’s vagina. Detective LaBreche initially testified that, after defendant admitted

to kissing Jasmine on the lips, the detectives decided to bring him to the interview room with

recording capabilities.   After having his recollection refreshed by Det. Hamman’s witness

statement, however, Det. LaBreche testified that, in the first interview, defendant also confessed

to sticking his finger in Jasmine’s vagina and rubbing up against her on two occasions, once

when she was clothed and the other unclothed.

       According to Det. Hammann, after the verbal admissions, he requested that defendant

provide a video and audio interview, and defendant agreed. The detective brought defendant to a

different room with recording capabilities. Once again, defendant signed a form waiving his

Miranda rights. In the recorded interview, defendant admitted to assaulting Jasmine multiple

times. He admitted to kissing her three times and rubbing against her while clothed “a couple of

times.” He admitted to penetrating her vagina digitally, while in the family sitting room, when

Jasmine was home sick from school. Finally, defendant admitted to rubbing his naked body

against hers, while on his bed, until he ejaculated. We pause to note that, although defendant

argued, both in the papers and again at oral argument, that the jury’s verdict related only to the

crimes to which he confessed, such is not the case. The defendant never admitted to penile




                                                -4-
penetration, yet the jury found him guilty of count 8, which charged defendant with “[First]

degree child molestation sexual assault, to wit, penis to vagina * * *.”6

       Prior to trial, defendant moved to suppress all statements to the police, arguing that use of

those statements would violate the Fifth and Fourteenth Amendments to the United States

Constitution and article 1, section 6 of the Rhode Island Constitution because the statements

were “the result of physical, psychological coercion and also because of the State’s or the police

department’s failure to record the interrogation in its entirety.”7         After a two-day hearing,

however, the trial justice denied the motion. In his bench decision, he noted the difference in

dynamics of Det. Hammann’s direct examination and cross-examination testimony, as well as

the witness’s professed failure of memory about portions of the first interrogation. Specifically,

Det. Hammann could not remember whether a table was pounded or whether Det. LeBreche

struck defendant in the head.       However, the trial justice failed to make any credibility

determinations concerning Det. Hammann’s testimony.

       Turning to the videotaped confession, however, the trial justice found that defendant was

relaxed and not apprehensive. Ultimately, the trial justice declared that the state had proven by

clear and convincing evidence that the confession obtained during the second interview was not

the product of coercion and that defendant knowingly, intelligently, and voluntarily waived his

Miranda rights.

       At trial, the videotaped interview was admitted into evidence and played for the jury,

over defendant’s renewed objection. Detective LaBreche—who did not testify at the suppression

6
 The jury instructions for first-degree child molestation sexual assault required proof of sexual
penetration, defined as “any intrusion, however slight, by any part of one person’s body into the
genital openings of another person’s body.”
7
  The challenge to admissibility based on the failure to record the entire interview is not before
this Court and is therefore deemed waived.

                                                -5-
hearing—testified about incriminating statements defendant also made during the first interview.

Detective Hammann also gave similar testimony about the first interview. The record discloses

that both detectives were subject to vigorous cross-examination respecting the voluntariness of

defendant’s confessions.

       At trial, Jasmine described a number of sexual assaults by defendant. She testified that,

when she was eight years old and in second grade, defendant pulled her into his room, locked the

door, shut off the light, and took her clothes off. He then pushed her onto his bed and engaged

in vaginal intercourse with her.     Jasmine testified that during this molestation, defendant

threatened to kill her or beat her up if she told anyone. After the intercourse ended, Jasmine

noticed something white and wet in the middle of the bed, and defendant asked her to get a

napkin for him. Jasmine then went to the bathroom, where she noticed blood on her vagina and

underwear.

       Next, Jasmine testified to another similar assault where defendant carried her from the

living room to his bedroom and forced her to engage in sexual intercourse while her parents were

not home. Again, she noticed blood. The child also liked to play online games on defendant’s

computer. One day, when she asked to use his computer, he told her she had to come into his

room. Although she refused, Jasmine testified that defendant pulled her into his room anyway

and again engaged in sexual intercourse with her.

       Jasmine testified to five other instances of forced sexual intercourse. One instance

occurred on the couch when she was home sick from school; another assault occurred in his

bedroom after she returned from her aunt’s house; another assault occurred in her bedroom; and

two more assaults occurred in defendant’s bedroom. Additionally, Jasmine testified that during

one of the assaults in defendant’s bedroom, he also digitally penetrated her vagina.



                                               -6-
       Doctor Barron also testified during the state’s case-in-chief.        As noted above, her

physical examination of Jasmine was normal and showed no signs of trauma.               However,

Dr. Barron testified that a normal examination does not rule out sexual abuse and that “95

percent of children will have a normal exam, particularly if they’re examined [more than] two

weeks outside of the incident.” At the time of Dr. Barron’s examination, on January 27, 2009,

Jasmine’s allegations of sexual abuse related to events which allegedly occurred a year earlier.

She therefore concluded that the medical examination neither ruled out nor confirmed the

possibility of sexual abuse.

       In accordance with this state’s Humane Practice Rule, the trial justice’s charge to the jury

included an instruction that, in order to consider defendant’s custodial interrogation, the jury

must find that the prosecution had proved by clear and convincing evidence that defendant

knowingly and voluntarily waived his Miranda rights. The jury returned a verdict of guilty on

two counts, one for digital penetration (count 7) and one for penile penetration (count 8), but

found defendant not guilty on the remaining counts of penile penetration.8

       After trial, defendant filed a motion for a new trial. The arguments focused on the

consistency or inconsistency of Jasmine’s testimony as well as the testimony of other witnesses.

In his bench decision, the trial justice recounted much of the salient testimony. Again referring

to the testimony from the suppression hearing, the trial justice acknowledged that he made no

finding on whether defendant had been struck by a police officer in the first interrogation; but,

noting defendant’s demeanor in the second, recorded interview, he was satisfied that defendant

was not coerced into making his statement:


8
  Counts 1-6 and count 8, in the indictment as well as set forth on the verdict form, recite
identical charges of first-degree child molestation sexual assault for penile-vaginal penetration.
No bill of particulars was filed in this case.

                                               -7-
               “I’ve noted on the record prior to this that I did observe Mr.
               Bojang to have some degree of comfort as the video progressed.
               Even if the police officer had, in fact, struck Mr. Bojang, and I
               made no finding on that issue, but it did not appear Mr. Bojang on
               the videotape was coerced into giving that statement.”

Based on his review of the evidence, the trial justice denied the motion for a new trial. The trial

justice sentenced defendant to thirty years, twenty years to serve, ten years suspended with

probation on each count, running concurrently.

                                 Motion to Suppress Confession

       The defendant contends that the trial justice erred by denying his motion to suppress his

statements to police obtained during a custodial interrogation. “Both the Rhode Island and the

United States Constitutions bar the use of a defendant’s involuntary statements in a criminal

trial.” State v. Bido, 941 A.2d 822, 835 (R.I. 2008) (citing State v. Humphrey, 715 A.2d 1265,

1274 (R.I. 1998)). In order for the trial justice to admit a defendant’s statement at trial, “the state

must establish, by clear and convincing evidence, that the defendant knowingly and intelligently

waived his or her right against self-incrimination and that the statement was voluntary.” State v.

Monteiro, 924 A.2d 784, 790 (R.I. 2007) (citing Humphrey, 715 A.2d at 1274). This inquiry

“requires an analysis of the ‘totality of the circumstances surrounding the interrogation.’” State

v. Jimenez, 33 A.3d 724, 734 (R.I. 2011) (quoting State v. Leuthavone, 640 A.2d 515, 519 (R.I.

1994)). “A voluntary statement is a product of free will and rational choice, whereas a statement

is deemed involuntary when the defendant’s will was overcome by coercion, threats, violence, or

undue influence.” Monteiro, 924 A.2d at 790 (citing Humphrey, 715 A.2d at 1274). If the trial

justice is satisfied, by clear and convincing evidence, that the defendant’s will was not overcome

by coercion, threats, violence, or other undue influence and the confession was the product of his

rational choice, the motion to suppress must be denied. See id. This Court applies the following

two-step review of a trial justice’s finding of voluntariness:
                                                 -8-
               “First, we review the trial justice’s findings of historical fact with
               deference, and we will not overturn those findings unless they are
               clearly erroneous. * * * Second, because this issue is of
               constitutional dimension, we accept the historical facts and
               credibility determinations, and we then conduct de novo review of
               the trial justice’s conclusion that the confession was voluntary.”
               Id. (citing State v. Kryla, 742 A.2d 1178, 1183 (R.I. 1999)).

In this analysis, we consider the totality of the circumstances. Id. at 791; see also Jimenez,

33 A.3d at 734.

       In addition to this constitutional analysis, in this jurisdiction we employ the Humane

Practice Rule, under which the trial justice first makes his or her own determination on the

voluntariness of the confession. State v. Tassone, 749 A.2d 1112, 1118 (R.I. 2000). If the trial

justice determines that the statement was made voluntarily, he or she

               “is required to instruct the jury that, based on the totality of the
               circumstances, ‘it must find by clear and convincing evidence that
               the defendant’s confession was voluntary, and that [the] defendant
               had been advised of his constitutional guarantee against self-
               incrimination (the Miranda Rights so-called), before the jury may
               consider the statement as evidence.’” State v. Aponte, 800 A.2d
               420, 427 (R.I. 2002) (quoting Tassone, 749 A.2d at 1118).

Thus, under the Humane Practice Rule, both the trial justice and the jury must separately find, by

clear and convincing evidence, that a confession was voluntary before it may be considered as

evidence to support a conviction. See id.

       In his bench decision on the motion to suppress, the trial justice failed to adequately

perform his factfinding analysis regarding the first interview. Although he noted that Det.

Hammann repeatedly declared that he could not remember whether Det. LaBreche pounded the

table or slapped defendant in the head during the first interrogation, he declined to rule on those

questions or address what effect that conduct, if proven, might have on the question of

voluntariness of either confession. Additionally, the trial justice noted Det. Hammann’s delayed

response time to questions posed during cross-examination, “all of which [left the trial justice]

                                               -9-
wondering exactly what went on in [the first] interview room * * *.” Summarizing his thoughts,

the trial justice stated,

                         “Based on the observations that I just put on the record, I
                 did not find any apprehension, if there was any, that was
                 manifested by the conduct that I observed in the interview. I’m not
                 sure what caused the detective to break down and be unable to
                 answer the questions in this particular case other than I understand
                 the argument about the tacit admissions, I also understand that you
                 have a police officer who may be apprehensive as well that
                 somebody could put some words in his mouth. I’m speculating. I
                 am speculating here because I don’t know. I listened and I
                 watched intently and that cross-examination went on for a great
                 deal of time. So, while I had some forty minutes to watch Mr.
                 Bojang on the video, I had an equally long time to observe
                 Detective Hammann. Even if I grant that Detective Hammann’s
                 not remembering and his failure to answer is a tacit admission, in
                 order to suppress the confession I still have to find that whatever
                 occurred in interview room (number one) where there was no
                 recording, I have to find that induced Mr. Bojang into making that
                 confession, and even if I get to the first set of inferences, and if we
                 get to a jury in this case, I’ll tell the jury what an inference is, and
                 they are free to draw inferences, and [defense counsel] is going to
                 be able to cross-examine the detective pretty much the same way
                 he did here in the courtroom * * * .”

However, regarding the second, recorded interview, the trial justice concluded that defendant

was relaxed, not overly apprehensive, and became increasingly comfortable as the interview

progressed.     Notwithstanding his observations about the first interview, the trial justice found

that the recorded confession was not the product of coercion and denied the motion to suppress:

                         “Now, all of that being said, I find that the State has proven
                 by clear and convincing evidence that the confession was not the
                 product of coercion, and I also find that Mr. Bojang knowingly,
                 intelligently, and voluntarily waived his constitutional rights that
                 are expressed in the case of Miranda versus Arizona, and my
                 findings are based on the articulations that I just made in the past
                 several minutes and especially my watching of Mr. Bojang as he
                 read the form during interview number two. He took some time to
                 read that form, checked off various parts of it, and affixed his
                 signature at the end.



                                                  - 10 -
                      “I will note the defendant’s exception to the Court’s ruling.
               I’m going to deny the motion to suppress.”

                                     The State’s Concession

        Before this Court, the state has conceded that the trial justice failed to make the findings

of fact and credibility determinations that are essential to support his ultimate finding of

voluntariness. The state argues that the case should be remanded for either a new evidentiary

hearing or, at least, additional findings on defendant’s motion to suppress.9 In the wake of this

concession, defendant altered course respecting the relief he seeks.         In his opening brief,

defendant argued that he was entitled to a new evidentiary hearing to determine the voluntariness

of his statement; however, in his reply brief he has abandoned that argument and now he

contends that this Court must vacate the convictions, suppress the statements, and grant him a

new trial.10

        Our case law in this area is clear and unwavering; the appropriate procedure in this

circumstance is to remand the case to the Superior Court so that the trial justice can make the

appropriate findings of fact and conclusions of law. In Andrews v. Langlois, 105 R.I. 456, 458,

252 A.2d 450, 452 (1969), this Court reviewed a petition for habeas corpus stemming from a

conviction after a trial in which the trial justice failed to conduct a preliminary hearing on the

issue of the voluntariness of the petitioner’s confession. The trial justice admitted into evidence

a signed statement and a tape recording of an oral statement at trial; the defendant was convicted


9
  Although the state’s brief requests a new evidentiary hearing, when asked at oral argument
whether the state was seeking a new evidentiary hearing or additional findings based on the
current record, the state declined to take a position.
10
   At oral argument, when asked whether defendant preferred a new evidentiary hearing or
merely additional findings based on the current record if the case was remanded, defense counsel
responded that a remand should be limited to additional findings based only on the record of the
suppression hearing. Notably, defendant did not testify at the suppression hearing.

                                               - 11 -
of second-degree murder and sentenced to life imprisonment. Id. at 457, 458, 252 A.2d at 451,

452. In the face of this error, this Court laid out a procedural roadmap for similar situations; the

Court stated,

                “If the jury had been properly instructed on the law governing the
                issue of voluntariness, we would remit this case to the [S]uperior
                [C]ourt for a limited hearing on [the issue of the voluntariness of
                his confession] alone. If at such hearing it was determined that the
                confession was voluntary and admissible in evidence, a new trial
                on the question of guilt or innocence would not necessarily be
                required because petitioner has already been tried by a jury and
                been found guilty. If, on the other hand, at the limited hearing it
                was determined that the confession was involuntary, there would
                have to be a new trial on guilt or innocence, without the
                confessions being admitted in evidence.” Id. at 461-62, 252 A.2d
                at 454 (emphases added).

Ultimately, the Court granted a new trial to the defendant because of “an erroneous [jury] charge

on the question of voluntariness.” Id. at 462, 252 A.2d at 454. Here, however, defendant does

not allege that the trial justice’s Humane Practice instruction to the jury on voluntariness was

erroneous. Thus, the procedure mandating a limited remand is appropriate.

       Since our decision in Andrews, this Court has employed the same procedure in cases in

which there has been a flawed suppression hearing. In State v. Brown, 468 A.2d 914, 914 (R.I.

1983), the sole issue raised on appeal was the denial of the defendant’s motion to suppress a

statement given to police following his warrantless arrest. The defendant asserted that the police

officer lacked probable cause to arrest him, but the trial justice sustained an objection to a

question posed to the arresting police officer on hearsay grounds at the suppression hearing. Id.

On appeal, this Court noted that probable cause may be established by hearsay evidence, and

“[o]nly with this information in the record could the trial justice initially, and this court now,

determine whether or not the officer or officers who arrested the defendant had probable cause to

do so.” Id. at 915. We thereupon remanded the case “for an evidentiary hearing and for findings


                                               - 12 -
of fact on the issue of probable cause for [the defendant’s] arrest.” Id. Likewise, in State v.

Mastracchio, 672 A.2d 438, 442 (R.I. 1996), the defendant sought to suppress the fruits of an

allegedly illegal search under the knock-and-announce rule. However, “the trial justice * * * did

not articulate any factual findings either in speech or in writing in regard to his ruling denying

defendant’s motion to suppress in the first instance,” id. at 443, and this Court vacated the

decision and remanded the case “in order to allow the trial justice to enter findings of fact and to

make the determination in the first instance of whether the unannounced entry by police was

reasonable under the Fourth Amendment.” Id.

       More recently, in State v. Verrecchia, 766 A.2d 377, 380 (R.I. 2001), the trial justice

found that the defendant had no legitimate expectation of privacy in a garage that he rented; thus,

the trial justice did not analyze whether a search of that garage was reasonable. On appeal, this

Court held that the defendant did have an expectation of privacy in the garage and remanded the

case “for a hearing on [the defendant’s] motion to suppress so that the court can determine

whether the police violated any of [the defendant’s] constitutional rights by searching his garage

and by seizing certain property found therein as evidence of his criminal acts.” Id. at 384. In our

mandate to the Superior Court, this Court directed,

               “If the motion justice concludes after conducting this hearing that
               the evidence should not be suppressed, he or she should enter an
               order to that effect and the convictions shall stand as affirmed,
               subject to any appeal concerning this ruling. If, on the other hand,
               the motion justice decides to grant the motion to suppress, then he
               or she shall vacate [the defendant’s] convictions and conduct a new
               trial.” Id. at 391.

       This procedure reflects our longstanding reluctance to engage in factfinding or to make

credibility determinations in the first instance. See, e.g., Brown, 468 A.2d at 915 (“With the

present state of the record, we are unable to consider this appeal.”). The trial justice is uniquely

positioned to make findings of fact. See State v. Chum, 54 A.3d 455, 460 (R.I. 2012) (noting
                                               - 13 -
that deference is given to a trial justice’s factual findings). Conversely, “[t]he cold record does

not enable an appellate court to evaluate how the witness’s demeanor may have affected his

credibility.” State v. Young, 456 A.2d 739, 741 (R.I. 1983).

       Therefore, we remand the case for the trial justice to make additional findings of fact and

credibility determinations regarding the first interview.

                                    The Scope of the Remand

       The dissent’s only point of disagreement is the scope of the remand. The dissent would

limit the remand to the record of the suppression hearing. We, however, leave to the trial justice

the decision to permit or disallow additional evidence or to limit his analysis to the trial

testimony. None of the cases cited by the majority are inapposite; these holdings support the

well settled mechanism of a limited remand. While the dissent is correct that the cases we cite

do not present precisely the same situation that we have here, in none of those cases did the

Court explicitly strip the trial justice of the discretion to permit additional evidence. We decline

to do so today.

       The cases cited by the dissent do not compel this Court to change its practice of vesting

trial justices with the discretion to conduct proceedings as they see fit. The justices of the

Superior Court are in a far better position than this Court to determine the best procedure to

justly resolve the issues that confront them. The dissent cites United States v. Kithcart, 218 F.3d

213 (3d Cir. 2000), for its holding that the trial court erred by permitting additional evidence

after a remand of a suppression issue. The Third Circuit, however, concluded that the error was

“in admitting additional evidence upon remand without the explanation that is required” under

the Third Circuit’s precedent United States v. Vastola, 915 F.2d 865, 876 (3d Cir. 1990).

Kithcart, 218 F.3d at 221 (emphasis added). The Third Circuit declared, “the question of



                                               - 14 -
whether the government may augment the record at a suppression hearing after a remand is

analogous to the question of whether the government may reopen its case after resting. Such

decisions are traditionally within the discretion of the district court.”11 Id. at 219 (citing Vastola,

915 F.2d at 876) (emphasis added). Vesting the trial justice with such discretion is similarly the

practice of this state. Cf. State v. Benevides, 420 A.2d 65, 68 (R.I. 1980) (“[A] motion to reopen

a case to introduce additional evidence is addressed to the discretion of the trial justice and a

decision made in the exercise of such discretionary power will not be disturbed by this court on

appeal absent a showing of an abuse of that discretion.”).

         Additionally, Southern v. State, 807 A.2d 13 (Md. 2002) is unpersuasive for two reasons.

First, the holding is grounded in a unique rule of appellate procedure in Maryland and Maryland

case law. See id. at 24 (relying on “the intent of [Md. Rule 8-604(d)(1)] and Maryland case law

reviewing this rule”). Second, the facts are widely divergent. In Southern, 807 A.2d at 21, the

court stated,

                “This is not a case where the motions hearing judge simply did not
                rule, it is a case where the State, which had the burden of proof on
                the constitutionality of the initial detention at the suppression
                hearing, admits that it did not present sufficient evidence to
                support the constitutionality of the stop.” (Emphasis added.)

In the case before us, the trial justice “simply did not rule.”

         Finally, the Court notes that there was extensive testimony at trial respecting the

voluntariness of the confession in accordance with this state’s Humane Practice Rule. Thus, the

trial justice heard a great deal of evidence relating to the issue on remand. We decline to direct a

justice of the Superior Court to ignore hundreds of pages of testimony in deciding this discrete

issue.

11
   Notably, the dissent employs the first sentence of this quotation, but omits the second. It also
lacks any discussion of this state’s analogous practice on motions to reopen.

                                                 - 15 -
       Therefore, we leave to the trial justice the decision to permit or disallow additional

evidence or to limit his analysis to the trial testimony.

                               Exclusion of Prior False Accusation

       The defendant contends that the trial justice erred by refusing to allow defendant to

inquire into the complainant’s prior false accusation of physical abuse against her mother. In a

voir dire hearing, Jasmine testified, on cross-examination, that—about a month before she first

disclosed the sexual abuse at issue here—she was intimidated by a bully at school, who told her

to tell the teacher that her mother abused her, or the bully would kill her; Jasmine admitted that

her mother did not abuse her. The defendant argues that the evidence was admissible under

Rules 608(b) and 404(b) of the Rhode Island Rules of Evidence and that, to the extent this issue

was preserved,12 the exclusion violated the Confrontation Clause of the Sixth Amendment to the

United States Constitution. “We review a challenge to a trial justice’s limitation on cross-

examination under an abuse of discretion standard, and we will not disturb the exercise of that

discretion absent a clear abuse of discretion.” Chum, 54 A.3d at 460. The ruling must amount to

“prejudicial error” to constitute a clear abuse of discretion. Id. “Nonetheless, we have held that

the trial justice’s ‘discretion must be exercised in a manner consistent with the constitutional

guarantees involved.’” State v. Lomba, 37 A.3d 615, 621 (R.I. 2012) (quoting State v. Patriarca,

112 R.I. 14, 37, 308 A.2d 300, 315 (1973)).

       Rule 608(b) provides,

                       “Specific instances of the conduct of a witness, for the
               purpose of attacking or supporting the witness’ credibility, other
               than conviction of crime as provided in Rule 609, or, in the
               discretion of the trial judge, evidence of prior similar false
               accusations, may not be proved by extrinsic evidence. They may,
12
   At oral argument, despite a record devoid of a direct reference to the Sixth Amendment or the
right of confrontation, the state conceded that the Sixth Amendment argument was preserved.

                                                - 16 -
               however, in the discretion of the court, if probative of truthfulness
               or untruthfulness, be inquired into on cross-examination of the
               witness (1) concerning the witness’ character for truthfulness or
               untruthfulness, or (2) concerning the character for truthfulness or
               untruthfulness of another witness as to which character the witness
               being cross-examined has testified.”

In this case, the trial justice found that Jasmine’s allegations of physical abuse against her mother

were not sufficiently similar to the sexual abuse allegations against defendant. We agree. A

prior allegation of sexual assault by someone other than the accused differs markedly from an

allegation of physical assault against one’s parent.       Although not directly addressing Rule

608(b), in State v. Botelho, 753 A.2d 343, 346-47 (R.I. 2000), this Court acknowledged our prior

cases that permitted cross-examination into previous sexual assault allegations in sexual assault

prosecutions, but concluded that a complainant’s “complaint of excessive discipline, purportedly

lodged against her father and her mother’s former boyfriend, is fundamentally different from a

complaint of sexual molestation.” Accordingly, we are of the opinion that the trial justice did

not abuse his discretion under Rule 608(b) by preventing cross-examination into Jasmine’s prior

allegation against her mother.

       Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts” may be

admissible to prove “motive[.]” On appeal, defendant contends that Jasmine’s accusations of

rape were “motivated by [Jasmine’s] fear of [a] sadistic bully.” We reject this contention.

Although Jasmine did testify in the voir dire hearing that a bully at school told her to make an

allegation of abuse against her mother, there is no suggestion that the bully told Jasmine to make

a rape allegation. Indeed, Jasmine testified that the bully did not tell her to make a rape

allegation, nor did the bully even know about the abuse:

               “Q: Did [the bully] ever tell you something like, you should tell
               that somebody raped you?

               “A: No, she didn’t know about it.”

                                               - 17 -
Thus, there is no evidence that Jasmine’s fear of the bully motivated her to allege sexual abuse

against defendant.

          We pause to note that the exclusion of this evidence precisely reflects policy

considerations that underlie Rule 403 of the Rhode Island Rules of Evidence, which provides for

the exclusion of evidence when “its probative value is substantially outweighed by the danger of

* * * confusion of the issues, or misleading the jury * * *.” See State v. Gaspar, 982 A.2d 140,

147-48 (R.I. 2009) (noting that “Rule 403 cuts across the rules of evidence and is always a

consideration in a trial justice’s ruling on the admissibility of Rule 404(b) evidence”).

Accordingly, the trial justice did not abuse his discretion under Rule 404(b) by preventing cross-

examination into Jasmine’s prior allegation against her mother.

          The Confrontation Clause secures the right to cross-examine witnesses. Botelho, 753

A.2d at 345 (“The right to cross-examine witnesses is a primary interest secured by the

[C]onfrontation [C]lause.”).    A criminal defendant has a “well-established, constitutionally-

protected right * * * to [an] effective cross-examination of the prosecution’s witnesses.” State v.

Dubois, 36 A.3d 191, 198 (R.I. 2012). That right is not absolute. Id. “[T]rial justices retain a

considerable degree of discretion to impose reasonable limitations on cross-examination in order

to prevent, inter alia, harassment, prejudice, confusion, or repetitive testimony.”         State v.

Tiernan, 941 A.2d 129, 134 (R.I. 2008).           “To satisfy the constitutional right of cross-

examination, ‘the trial justice is required to afford the accused “reasonable latitude” to establish

or reveal bias, prejudice, or ulterior motives as they may relate to the case being tried.’” State v.

Clark, 974 A.2d 558, 575 (R.I. 2009) (quoting State v. Bustamante, 756 A.2d 758, 765 (R.I.

2000)).




                                               - 18 -
       Here, defendant was provided with an ample opportunity to cross-examine Jasmine; he

deftly tested the consistency of her testimony at trial and in her prior statements. Furthermore,

during the voir dire hearing, Jasmine denied that the bully told her to make a rape allegation. It

was appropriate for the trial justice to draw the line and not allow inquiry into the prior

accusation because it would have served only to confuse the jury. See Botelho, 753 A.2d at 347

(admission of certain evidence “would have served only to confuse and mislead the jury”).

Therefore, the trial justice’s refusal to allow cross-examination on Jasmine’s allegations against

her mother did not violate the Confrontation Clause.

                                     Motion for a New Trial

       Finally, defendant contends that the trial justice overlooked and misconstrued material

evidence and clearly erred in denying the motion for a new trial.           Specifically, defendant

contends that there was insufficient evidence to support the verdict because Jasmine was not a

credible witness and, he argues, because the evidence established that defendant’s confession

was coerced and unreliable.      The defendant also contends that the verdict is against the

preponderance of the evidence and fails to do substantial justice between the parties.

       “When ruling on a motion for a new trial, the trial justice acts as a thirteenth juror,

exercising ‘independent judgment on the credibility of witnesses and on the weight of the

evidence.’” State v. Heredia, 10 A.3d 443, 446 (R.I. 2010) (quoting State v. Imbruglia, 913 A.2d

1022, 1028 (R.I. 2007)). “Specifically, ‘the trial justice must (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. Texieira, 944 A.2d 132, 140 (R.I. 2008)). “If,

after conducting such a review, the trial justice reaches the same conclusion as the jury, the



                                               - 19 -
verdict should be affirmed and the motion for a new trial denied.” Id. (citing State v. Snow, 670

A.2d 239, 244 (R.I. 1996)).

          In this case, the trial justice considered the evidence, independently assessed the

credibility of the witnesses and the weight of the evidence, and concluded that he would have

reached the same result as the jury on the guilty counts.13 Because the trial justice agreed with

the jury, his analysis was complete. See State v. Staffier, 21 A.3d 287, 290 (R.I. 2011) (“If the

trial justice agrees with the jury’s verdict, the inquiry is complete and the motion for a new trial

should be denied.”). To the extent that the defendant argues that a new trial should be granted

based on an error of law by the trial justice, that argument was not presented below; therefore it

is waived. See Bido, 941 A.2d at 828-29 (“It is well settled that a litigant cannot raise an

objection or advance a new theory on appeal if it was not raised before the trial court.”). The

defendant’s motion for a new trial raised three grounds: “Said verdict is against the law”; “Said

verdict is against the evidence”; and “Said verdict is against the law, the evidence and the weight

thereof.” None of these grounds alleged that a new trial should be granted because the trial

justice committed an error of law by not suppressing the confessions. Stating that the verdict is

“against the law” is a general challenge addressing the conformity of the evidence to the law in

the case; it is not an argument that a specific ruling constituted an error of law requiring a new

trial. Therefore, the trial justice did not err by denying the defendant’s motion for a new trial.

                                              Conclusion

          For the reasons stated above, we affirm the trial justice’s denial of the motion for a new

trial and discern no error arising from his evidentiary rulings. However, we remand the case to

the Superior Court in order for the trial justice to make additional findings of fact and credibility


13
     The trial justice stated that he may have found defendant guilty on all eight counts.

                                                 - 20 -
determinations concerning the voluntariness of the defendant’s confessions. The trial justice

may permit additional evidence or decide this issue based on the current record. If the trial

justice concludes that the motion to suppress should be denied, the trial justice should enter an

order to that effect and the convictions shall stand as affirmed, subject to any appeal concerning

that ruling by the trial justice. If the trial justice decides to grant the motion to suppress, then he

shall vacate the defendant’s convictions and conduct a new trial without the confessions.

       The papers in this case may be remanded to the Superior Court.




                                                - 21 -
       Justice Flaherty, with whom Justice Robinson joins with the exception of footnote

seven, dissenting in part and concurring in part. I respectfully dissent from that part of the

Court’s opinion remanding this case to the trial justice for “additional findings of fact and

credibility determinations regarding the first interview,” but also leaving the trial justice with the

discretion to allow further testimony. In my opinion, the remand should be limited to fact-

finding and credibility determinations based solely on the record of the suppression hearing.

       To support its mandate, the majority cites four previous holdings of this Court. However,

after reviewing those decisions, it is my opinion that each is either inapposite or otherwise does

not supply a foundation for the majority’s reasoning. I agree with the majority that the remand

should be for the limited purpose of requiring the trial justice to make findings of fact and a

conclusion as to the issue of voluntariness based on the totality of the circumstances. However,

none of the cases cited by the majority opinion supports reopening a hearing that already has

occurred and that has been concluded. In contrast, those decisions support remanding for an

evidentiary hearing when an error by the trial justice prevented a hearing from being held in the

first instance. Because the parties in this case were afforded a full hearing, during which they

were free to present and question any witness whom they wished to present or question, the

remand in this case should prohibit the taking of new evidence rather than leaving the definition

of the scope of the remand to the trial justice’s discretion.

       The majority cites Andrews v. Langlois, 105 R.I. 456, 252 A.2d 450 (1969); however, in

that case, this Court, when it reviewed the denial of a petition for a writ of habeas corpus,

vacated a defendant’s conviction because the trial justice never made a preliminary

determination that a confession was voluntary but instructed the jury that “even if the confession

were not petitioner’s free act and deed, the jury had a right to weigh the confession as to its truth



                                                - 22 -
or falsity. This was an erroneous statement of the law.” Id. at 461, 252 A.2d at 453. Thus, in

light of the erroneous instruction, the Court concluded that a new trial would be necessary. Id. at

461, 252 A.2d at 454. Significant to this case, the Court in Andrews said that, but for the

egregiousness of the faulty instruction, the appropriate remedy would have been a remand to the

trial court for a hearing limited solely to the voluntariness of the confession because such a

hearing had never been held. See id.

       In State v. Brown, 468 A.2d 914 (R.I. 1983), the primary issue before the Court was the

presence or absence of probable cause to arrest the defendant. The defendant argued that his

confession should have been suppressed, not because it was involuntary, but because there was

no probable cause to arrest him in the first place. Id. at 914. However, during a hearing to

suppress the confession on that ground, the trial justice sustained an objection because a question

posed to a police officer by the prosecutor called for a hearsay response. Id. Reasoning that

probable cause may be established by hearsay evidence and determining that it could not

consider the appeal based on a record that was restricted by the erroneous evidentiary ruling, the

Court remanded the case to the trial court “for an evidentiary hearing and for findings of fact on

the issue of probable cause for Brown’s arrest.” Id. at 915. Brown bears little resemblance to

the considerations before the Court in this case.

       The issue before the Court in State v. Mastracchio, 672 A.2d 438 (R.I. 1996), was

whether a search was reasonable under the knock-and-announce rule or, in the alternative,

whether the search violated the defendant’s rights under the Fourth Amendment to the United

States Constitution. Id. at 442. The case was remanded to the trial justice with directions that he

“enter findings of fact and to make the determination in the first instance of whether the

unannounced entry by police was reasonable under the Fourth Amendment.” Id. at 443. The



                                               - 23 -
Court did not direct that an evidentiary hearing be held or that the record be expanded in any

way. Id.

       Finally, in State v. Verrechia, 766 A.2d 377 (R.I. 2001), the fourth case cited by the

majority, the Court addressed the appeal of a criminal defendant who argued that the fruits of a

search of a garage that he leased should be suppressed. Id. at 380. In that case, the trial justice

declined to address the merits of the defendant’s motion to suppress because he found that the

defendant had no expectation of privacy in the searched premises. Id. This Court disagreed, and

it remanded the case for a “determination of whether the garage search violated [the defendant’s]

constitutional rights against unreasonable searches and seizures * * * .”        Id. at 381.    In

Verrecchia, a new hearing on remand was required, because, based on his finding of no

expectation of privacy, the trial justice had declined to afford a hearing to the defendant on the

propriety of the search. Id. at 384.

       The four just-discussed cases are simply not sufficiently analogous to the situation that

confronts us in our consideration of this appeal. Here, a full hearing was conducted, and the

parties had ample opportunity to develop the record. The difficulty here, as the majority has

correctly pointed out, is that the trial justice did not make the appropriate credibility

determinations and findings of fact before he determined that the state had proved that

defendant’s confession was voluntary by clear and convincing evidence.

       In my opinion, to reopen the suppression hearing and allow an expanded evidentiary

hearing, in effect to allow a “do over” or “second bite at the apple,” is manifestly unjust. There

is a substantial body of law that supports this position.

       In Southern v. State, 807 A.2d 13, 15 (Md. 2002), the Court of Appeals of Maryland held

that “it was improper for the Court of Special Appeals to remand and reopen the suppression



                                                - 24 -
proceeding in order to provide the [s]tate with a second opportunity to present new evidence on

the constitutionality of the initial stop.” In Southern, the defendant had filed a motion to

suppress; at the hearing on that motion, evidence was presented about an interrogation and a

post-apprehension show-up identification. Id. at 15-18. However, the prosecution failed to

present any evidence that would justify the initial traffic stop. Id. at 17. The intermediate

appellate court held that the trial judge had ruled on the other issues, but “fail[ed] to rule on the

issue of the propriety of the initial stop.” Id. at 18. In Maryland, remand of appellate cases is

governed by a specific rule of appellate procedure,1 but the Court of Appeals said that the rule

was “neither an ‘antidote’ for the errors of the [s]tate or of counsel nor a method to correct errors

committed during the trial itself.” Id. at 19. The Southern court thus concluded that the

intermediate appellate court erred when its remand allowed for the presentation of additional

evidence, pointing out that “[t]he purpose of the remand was not to correct a procedural error,

but to afford the [s]tate an additional opportunity to do that which it previously failed to do—




1
  I disagree with the majority that Maryland’s rule makes that jurisdiction an outlier. Rule 8-604
of the Maryland Rules provides in pertinent part:
                “(d) Remand. (1) Generally. If the Court concludes that the
                substantial merits of a case will not be determined by affirming,
                reversing or modifying the judgment, or that justice will be served
                by permitting further proceedings, the Court may remand the case
                to a lower court. In the order remanding a case, the appellate court
                shall state the purpose for the remand. The order of remand and
                the opinion upon which the order is based are conclusive as to the
                points decided. Upon remand, the lower court shall conduct any
                further proceedings necessary to determine the action in
                accordance with the opinion and order of the appellate court.”
Despite the fact that remand in Maryland is addressed by a specific rule, a review of that rule
leads me to conclude that that state’s treatment of remand does not depart significantly from
generally accepted principles regarding remand.

                                               - 25 -
present evidence on the initial [traffic] stop.” Id. at 21.2 The court therefore reversed and

ordered a new trial. Id. at 24.

       In 2004, the Maryland Court of Special Appeals treated as settled law the fact that a

remand following a trial judge’s failure to make findings of fact when denying a motion to

suppress a confession is cured by a remand for findings, without the taking of additional

evidence. Perez v. State, 841 A.2d 372, 386 (Md. Ct. Spec. App. 2004) (“[I]f the problem were

only a lack of specific findings, an option that we would have to address is whether to remand,

without vacating the convictions, for the court to make findings on the existing record.” (citing

Southern v. State, 807 A.2d 13 (Md. 2002) (emphasis added)).3

       The Wyoming Supreme Court remanded a case in which a trial judge articulated no

findings of fact or conclusions of law, but the remand similarly was for the limited purpose of an

order to make the requisite findings and conclusions. Johnson v. State, 214 P.3d 983, 989 (Wyo.

2009). A new evidentiary hearing was not permitted; the Supreme Court reasoned that it was the

trial court’s responsibility to make findings necessary to allow for appellate review. Id. at 986,

989.

       The Alabama Supreme Court has held that remanding a case for the admission of new

evidence in a reopened suppression hearing violated the Double Jeopardy Clause of the United

States Constitution. Ex parte Hergott, 588 So. 2d 911, 912-15 (Ala. 1991) (citing Burks v.

United States, 437 U.S. 1, 4 (1978)). There, a defendant challenged evidence that had been




2
  That court also noted that an order allowing the reopening of the suppression hearing invited
the logical question: “‘What if the [s]tate fails to perceive and meet its burden at the reopened
suppression hearing?’ Does it get another chance, and another chance?” Southern v. State, 807
A.2d 13, 21 n.4 (Md. 2002).
3
  The Perez court vacated the conviction at issue on other grounds. Perez v. State, 841 A.2d 372,
386 (Md. Ct. Spec. App. 2004).
                                              - 26 -
seized, but the trial court denied his motion to suppress based on the “open field[s]” doctrine.4

Id. at 912. The defendant entered a conditional guilty plea pending the appeal of the motion to

suppress. Id. The intermediate appellate court was unable to determine whether the warrantless

search overcame the presumption of unreasonableness, so it remanded the case to the trial court

for a determination of whether the evidence was seized from within the curtilage of the home.

Id. at 913.

        After remand, the trial judge personally inspected the property and found that the

evidence was seized from a location 100 yards from the defendant’s house, and not seventy-five

yards as a police officer had testified during the suppression hearing. Ex parte Hergott, 588 So.

2d at 913. Based on this new finding, the trial judge found that the evidence had not been

discovered within the curtilage of the home, and he denied the motion to suppress. Id. However,

because the defendant had entered a conditional plea of guilty, jeopardy had attached; the

Supreme Court held that “[o]nce jeopardy has attached, the [s]tate is not given a second chance

to supply evidence that it failed to provide on the first opportunity.” Id. (citing Burks, 437 U.S.

at 11). The court noted that the prosecution could have presented additional evidence at the

initial hearing, but chose instead to rely on the testimony of a single officer. Id. at 914. Because

the intermediate appellate court concluded that the state had failed to meet its burden during the

suppression hearing, it reasoned that the case should not have been remanded. Id.

        Several decisions of United States Circuit Courts of Appeals similarly favor limited

remands rather than the reopening of suppression hearings. See, e.g., United States v. Fields,

4
 “The ‘open fields’ doctrine, first enunciated by th[e Supreme] Court in Hester v. United States,
265 U.S. 57 (1924), permits police officers to enter and search a field without a warrant.” Oliver
v. United States, 466 U.S. 170, 173 (1984). However, “the area ‘immediately surrounding and
associated with the home’” is called the curtilage and is protected as “part of the home itself for
Fourth Amendment purposes.” Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (quoting
Oliver, 466 U.S. at 180).
                                               - 27 -
371 F.3d 910, 917 (7th Cir. 2004); United States v. Kithcart, 218 F.3d 213, 219-21 (3d Cir.

2000). In Kithcart, 218 F.3d at 219, a suppression hearing was held, after which the trial judge

determined that there was probable cause to seize a gun from an automobile. Id. at 215-16. On

appeal, the Third Circuit held that there was insufficient evidence to warrant probable cause,

holding that the trial judge had relied on the vehicle’s occupants’ race and certain imprecise

similarities between the stopped car and the suspects’ car. Id. at 216-17. As a result, the court

remanded for a consideration of whether there had been reasonable suspicion that would have

supported an investigative stop. Id. at 217.

       On remand, the trial judge reopened the suppression hearing and allowed more evidence,

including testimony by officers who had been involved in seizing the evidence but who had not

testified at the first hearing. Kithcart, 218 F.3d at 218. After the hearing ended, the trial judge

ruled that the stop had been justified, and he refused to suppress the evidence, sparking a second

appeal. Id. at 218-19.

       When the case again came before the Third Circuit, the court relied on an earlier case in

which it held “that the question of whether the government may augment the record at a

suppression hearing after a remand is analogous to the question of whether the government may

reopen its case after resting.” Kithcart, 218 F.3d at 219 (citing United States v. Vastola, 915

F.2d 865, 876 (3d Cir. 1990)). The only reasons that the Third Circuit offered as potentially

overcoming courts’ “extreme[] reluctan[ce]” to reopen suppression hearings were situations in

which the “evidence was either newly discovered or [previously] unavailable.” 5 Id. at 219, 220.

In determining that the remand should have been limited to the existing record, the court noted

5
  Although the majority rests on a sentence saying that “[s]uch decisions are traditionally within
the discretion of the district court,” Kithcart is clear that the discretion should be exercised in
extremely limited circumstances, none of which is present here. See United States v. Kithcart,
218 F.3d 213, 220 (3d Cir. 2000).
                                               - 28 -
that, at the first hearing, the state had chosen not to offer the testimony of the officer who

actually made the traffic stop, that it failed to offer an explanation of why the evidence was not

presented at the first suppression hearing, and that it produced “nothing to suggest that evidence

was either newly discovered or unavailable during the first hearing.” Id. at 220. As the court

explained, “[n]ot surprisingly, the government’s new testimony nicely filled the lacunae of the

first hearing” and “neatly spackled over each of the cracks in the foundation of proof that [the

Third Circuit] pointed out” in the first appeal. Id. at 218.

       In Fields, 371 F.3d at 912-13, the Seventh Circuit considered the denial of a motion to

suppress a gun after hearing testimony about how officers had gained entry into an apartment.

When the trial judge denied the motion to suppress, she nonetheless said that she “would ‘not

disguise [her] skepticism about the sequence of events as testified to by [a police officer],” who

was the only officer who testified as to the method of entry. Id. at 913. However, because the

trial judge failed to make findings as to the officers’ initial entry into the apartment, the Seventh

Circuit remanded, stating that “[a]bsent a compelling reason otherwise, these determinations [of

the constitutionality of a search and the extent of the exclusionary rule] should be based on the

existing record and limited to the testimony and other evidence already presented.” Id. at 913,

917.

       In this case, it is my firm opinion that the remand should be channeled by the existing

record of the suppression hearing. I agree with those courts that have held that the state should

have only one opportunity to present the evidence that is necessary to meet its burden. The

considerations in Kithcart, 218 F.3d at 219-21, are similar to those confronting us here. In

Kithcart, the officer who actually made the traffic stop did not testify at the suppression hearing

and nothing suggested that any post-remand evidence was “either newly discovered or



                                                - 29 -
unavailable during the first hearing.” Id. at 220. In this case, Det. LaBreche, whose conduct is

being scrutinized, did not testify at the suppression hearing, but the state has not argued that there

was any reason why he could not have done so.6 Nor is there any indication that there is any

evidence that is now available that was not available when the motion to suppress the confession

was heard.

       The only apparent purpose for allowing additional testimony would be to remedy the lack

of evidence about what happened when the defendant incriminated himself prior to the recording

of the second confession. In my opinion, if the trial justice is unable, based upon the record of

the suppression hearing, to find that, under the totality of the circumstances, the confession was

voluntarily made, then the confession should be suppressed. Any shortcomings or inadequacies

should not be washed over with a reopened hearing. By the same token, if the trial justice finds

that the confession was voluntary, based on that same existing record, then the defendant’s

decision not to testify or to present any evidence at the suppression hearing of the alleged

coercion may prove to have borne fateful consequences.7




6
  Both Det. LaBreche and defendant testified at trial about the circumstances surrounding the
confession.
7
  This case is a textbook example of the inherent difficulties that are present with an unrecorded
confession. In State v. Barros, 24 A.3d 1158 (R.I. 2011), I dissented in part because I am of the
firm opinion that confessions should be recorded. At the time of that decision, fourteen states
and the District of Columbia required that confessions be recorded. Id. at 1187 (Flaherty, J.,
dissenting in part and concurring in the result). Since then, our sister states of Arkansas and
Connecticut have joined the growing group of states that have obligated the recording of
confessions or required the heavy scrutiny of confessions that were not recorded. See Ark. R.
Crim. P. 4.7 (allowing the lack of recording to be considered when determining the admissibility
of a custodial statement); Conn. Gen. Stat. Ann. § 54-1o(b) (West 2014) (presuming that an
unrecorded custodial statement is inadmissible). In New Hampshire, the Supreme Court held
that confessions, when recorded, must be recorded in their entirety. State v. Barnett, 789 A.2d
629, 632 (N.H. 2001).
        In this day and age, a person cannot avoid being videotaped when he enters an office
building or retail establishment, or even when he cashes a check. That being the case, it is
                                                - 30 -
perplexing to me that he can confess to a capital crime without the benefit of having his
statement recorded, even when the necessary equipment is readily available.
                                          - 31 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Mustapha Bojang

CASE NO:              No. 2010-361-C.A.
                      (P1/09-1119A)

COURT:                Supreme Court

DATE OPINION FILED: January 30, 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 William E. Carnes, Jr.

ATTORNEYS ON APPEAL:

                      For State: Lauren S. Zurier
                                 Department of Attorney General

                      For Defendant: Kara J. Maguire
                                     Office of the Public Defender
