                                                  Supreme Court

                                                  No. 2012-342-C.A.
                                                  (P1/11-1596A)


     State                     :

       v.                      :

Jason Nickerson.               :




 NOTICE: This opinion is subject to formal revision before
 publication in the Rhode Island Reporter. Readers are requested to
 notify the Opinion Analyst, Supreme Court of Rhode Island,
 250 Benefit Street, Providence, Rhode Island 02903, at Telephone
 222-3258 of any typographical or other formal errors in order that
 corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2012-342-C.A.
                                                                    (P1/11-1596A)


                     State                      :

                       v.                       :

               Jason Nickerson.                 :


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


                                           OPINION

         Justice Goldberg, for the Court.           The defendant, Jason Nickerson (defendant or

Nickerson), is before the Supreme Court on appeal from a judgment of conviction on four counts

of first-degree sexual assault, in violation of G.L. 1956 § 11-37-2, and one count of felony

assault and battery, in violation of G.L. 1956 § 11-5-2. The defendant argues that the trial justice

erred in denying his motion for judgment of acquittal and his motion for a new trial, claiming

that the state failed to prove that he was the perpetrator of these crimes. The defendant also

argues that, in violation of his constitutional rights and Rule 16 of the Superior Court Rules of

Criminal Procedure, the trial justice erred in denying the defendant’s motion to exclude the

testimony of a forensic evidence analyst who testified at trial. For the reasons set forth in this

opinion, we affirm the judgment of the Superior Court.

                                          Facts and Travel

         In June 2007, sixteen-year old Emma1 was living in a motel room in South Attleboro,

Massachusetts, with her alcoholic parents and younger sister. The family had moved to the



1
    To protect her privacy, the complainant has been given a pseudonym.
                                                 -1-
motel after Emma became involved in a physical altercation with a cousin, causing her family to

leave the home they were sharing with Emma’s aunt and cousins. At the time, Emma had

dropped out of high school, but was working to obtain a GED; she also worked part-time at a

fast-food restaurant in Pawtucket, Rhode Island. Emma was on probation at the time, with an

8 p.m. curfew that had been imposed by the Family Court as a result of her having been reported

missing to the police several times.

       Despite this curfew, however, on June 30, 2007, Emma’s mother drove her to a friend’s

house near Miriam Hospital in Providence at around 10 p.m., with the understanding that she

would return for her later that evening. Emma and her friend watched television, played video

games, and smoked marijuana. After a few hours, Emma repeatedly and unsuccessfully tried to

contact her mother for the promised ride back to the motel. Receiving no response, Emma made

the fateful decision to walk from Providence to South Attleboro.2

       Emma had been walking on North Main Street toward Pawtucket for about ten minutes

when a car pulled up beside her and the driver asked if she needed a ride. Emma described the

driver as a dark-skinned male who was bald, between 6’2” and 6’4” tall, and weighed over two

hundred pounds; she also noted the man’s pointy noise, a distinguishing feature that she “had

never seen [on] a person of his [African-American] race.”           According to Emma, she was

apprehensive about getting into the car with the stranger, and asked the man “[a]re you going to

hurt me? Is everything going to be all right?” The man responded “[y]es, I’m not going to hurt

you, everything will be all right.” Emma—discouraged by the long walk ahead of her—accepted

what she thought to be “a nice gesture,” and got into the car.

2
  Although she testified that “[i]t’s kind of ridiculous” to walk from Providence to South
Attleboro, and that the trek would take a “few hours,” Emma admitted that she “didn’t have any
other way to get there besides walk” and “[t]o me, it wasn’t serious because [walking] was
something I did all the time to get to wherever I needed to go.”
                                               -2-
       As they drove, the man asked her name, and Emma, deciding that her real name was none

of his business, told him her name was Jasmine. He also asked if she smoked marijuana, and she

disclosed that she had some with her. According to Emma, the man then drove to a parking lot

in Pawtucket in order to smoke the marijuana; however, the presence of people nearby made the

man uncomfortable and they left. The man then drove through a maze of side streets until Emma

realized that the car was no longer traveling toward the motel.         When Emma voiced her

concerns, the man explained that they were going to his house to smoke the marijuana.

       The car, however, came to a stop in a small parking area—surrounded on three sides by a

chain link fence—where the man tried to kiss Emma. When she resisted, the man forced her to

kiss him; he bit her collarbone and began to pull off her pants. Emma testified that the man

continuously hit her in the face as she struggled and tried to escape. According to Emma, the

man began to penetrate her vagina with his fingers, and forced her to perform oral sex. She

attempted to escape by crawling into the backseat, but the man climbed on top of her and

penetrated her both vaginally and anally. Emma testified that as she tried to escape from the

backseat the man choked her until she almost lost consciousness. Emma testified that, at one

point during the attack, she felt a knife against her ribs and realized that resistance was futile.

She stopped struggling and began pleading with the man to let her go.

       When the ordeal ended, the man took a towel and wiped her thoroughly in the vaginal

and anal areas where he had ejaculated. He took her cell phone from her purse and removed the

battery; he gave Emma the phone, but refused to return her purse. The man started the car, at

which point Emma noticed that it was almost 4 a.m. He then ordered Emma to get out of the car

and lie face down on the ground, threatening to back the car over her if she looked at him, his

vehicle, or his license plate. He also threatened to kill her and her family if she reported the



                                               -3-
incident to police.

          After the man drove away, Emma stood up and ran toward the street. A woman driving

by asked Emma if she needed help, and offered her a ride. Emma accepted and told the woman

what had happened to her; however, she refused the woman’s attempt to go to the police station,

insisting that she go home to be with her family.3 When the woman was unable to find the motel

where Emma’s family resided, she left Emma at a Walgreens store in Pawtucket with enough

money to buy water. Emma was met there by Pawtucket Police Officer Richard LaForest (Det.

LaForest),4 who was responding to a report—from a woman who went to the Pawtucket police

station—suggesting that the police check on the well-being of an injured woman at Walgreens.5

Emma disclosed to Det. LaForest that she had been raped, and, despite Emma’s desire to return

home, an ambulance was summoned to transport her to Hasbro Children’s Hospital.

          At the hospital, Emma was seen by Dr. Amy Goldberg (Dr. Goldberg), a specialist in

child abuse pediatrics. According to Dr. Goldberg, it was immediately apparent that Emma “had

very obvious physical trauma,” to her face and neck; Emma’s left eye was swollen shut, there

was a cut on her mouth, and her neck was red and swollen. Emma told Dr. Goldberg that she

had been physically and sexually assaulted by a man who penetrated her vaginally, anally, and

orally over a period of about three hours, and explained that when she tried to resist, her assailant

punched her in the face and body, and he bit her and choked her almost to the point of

unconsciousness.

3
  Despite her unstable home environment, Emma testified that following the attack she just
wanted to be at home with her family, craving “some sense of closeness” in the aftermath of her
ordeal.
4
    At the time of the incident, Det. LaForest held the rank of patrolman.
5
  The woman who picked up Emma and presumably reported the incident to the Pawtucket
police was never identified.
                                                 -4-
       Doctor Goldberg testified that her examination was consistent with Emma’s description

of the assault; it revealed extensive bruising and petechial hemorrhaging—which occurs when

vessels in the skin release blood due to pressure or trauma—on Emma’s face. Doctor Goldberg

testified that the pervasive petechial hemorrhaging around Emma’s eyes and neck corroborated

the girl’s account of being choked. Additional petechial hemorrhaging was evident on Emma’s

back, and Dr. Goldberg noted bruising and “suction” injuries on Emma’s chest, consistent with

Emma’s claim of having been bitten by the assailant. According to Dr. Goldberg, all of Emma’s

injuries were recently inflicted.6

       Doctor Goldberg also conducted a genital examination, noting that except for the area

outside of her vagina, which exhibited erythema, or extreme redness, the examination was

normal. Doctor Goldberg explained that erythema was consistent with trauma; however, she

noted that there was no bleeding, tearing, fissures, or other acute signs of traumatic injury to the

vaginal or anal areas. According to Dr. Goldberg, such observations did not conflict with

Emma’s account of having been sexually assaulted, because girls of Emma’s age are “fully

estrogenized,” which makes vaginal tissue “extremely lubricated, thick and flexible.” It is for

this reason, Dr. Goldberg clarified, that outward signs of genital trauma are uncommon and

exhibited in no more than 5 to 10 percent of sexual assault cases. The doctor further explained

that signs of damage to the anal cavity are even more rare, with no physical manifestations in

more than 99 percent of sexual assaults involving anal penetration.

       Doctor Goldberg also collected various biologic samples to include in a forensic evidence

6
  Doctor Goldberg testified that although she photographed Emma’s injuries during the
examination conducted in the early morning hours of July 1, 2007, those photographs were
unavailable at trial due to a technical computer issue. During her testimony, Dr. Goldberg
instead referenced photographs taken during Emma’s follow-up examination on July 2. Doctor
Goldberg, however, testified that during the initial examination, Emma’s injuries appeared
“much more severe” than what was depicted in the photographs admitted into evidence.
                                               -5-
collection kit, including swab samples from inside Emma’s mouth, vagina, and rectum. Emma’s

clothes were collected and placed into a bag, except for her underwear, which was placed in a

separate bag. The forensic evidence kit was later examined by Sharon Mallard (Mallard), a

forensic scientist at the Rhode Island Department of Health Laboratory. Mallard noted five

visible stains on the underwear, and further testing of the garment revealed the presence of

sperm. A small amount of sperm also was detected on both the vaginal and rectal slides, which

were created by swiping the corresponding swab across a single slide.7

       The evidence kit was then sent for DNA testing to ReliaGene Technologies lab in New

Orleans, Louisiana, where it was tested by forensic DNA analyst Teresa-Lynne Jones (Jones). A

cutting from Emma’s underwear confirmed the presence of sperm cells and yielded a DNA

profile from a single, unknown male. The swabs and slides contained in the evidence kit were

not tested for DNA, and it was only the biological material from Emma’s underwear that Jones

used to develop the DNA profile. This DNA profile, developed solely from testing conducted on

the underwear, was submitted to the Combined DNA Indexing System (CODIS) on

November 19, 2007, but there were no matches with anyone registered in the system at that time.

Notably, a cutting from Emma’s underwear was the only clothing submitted to ReliaGene for

testing. The other garments that Emma was wearing were transferred from the Department of

Health to the Providence Police Department, where it subsequently was lost after an evidence

viewing session by defense counsel and a paralegal from the Office of the Attorney General.8



7
  Mallard testified that, because the slides and underwear revealed the presence of sperm, the
other articles of clothing that Emma was wearing at the time of the attack were not tested. She
explained that this was according to protocol; had the results from the samples in the evidence kit
come back negative, further testing would have been conducted.
8
  Detective John Muriel, who examined the garments before they went missing, later testified
that he did not notice any obvious damage to the clothing, such as tears or bloodstains.
                                               -6-
          The police investigation conducted after the assault also produced no leads. On July 2,

2007—the day after the incident—Providence Police Det. John Muriel (Det. Muriel) interviewed

Emma.       Detective Muriel drove with Emma through various neighborhoods in Providence

attempting to locate the crime scene, without success. Emma also was shown a photo array of

six photographs, but was unable to identify any of the men as her attacker. One week later,

Emma and Det. Muriel again drove around various neighborhoods in Providence, and this time

Emma was able to identify a parking lot near Cranston Street as the location where the attack

occurred. Detective Muriel’s attempts to speak with any occupants of the homes adjoining the

lot were unsuccessful.

          Time passed. In July 2009—two years after the attack—Det. Muriel showed Emma a

second photo array; again, she was unable to identify any of the subjects as her attacker. In

January 2011, the Providence police were notified that there was a match between the DNA

sample produced from Emma’s evidence kit and a DNA profile recently submitted to CODIS.

The suspect was identified as Jason Nickerson (Nickerson or defendant). Upon receiving this

information, Det. Muriel attempted to locate Emma, and on March 9, 2011—almost four years

after the attack—Det. Muriel showed Emma yet another photo array, this time containing a

picture of Nickerson. However, Emma did not identify any of the men in the photo array.

          Detective Muriel proceeded to obtain a search warrant and perform a buccal swab on

Nickerson, who was being held at the Adult Correctional Institutions (ACI) on an unrelated

charge.     Detective Muriel delivered the swab to the Rhode Island Department of Health

laboratories, where Cara Lupino (Lupino), supervisor of forensic biology and DNA laboratories,

tested the sample. In accordance with the lab’s protocol, Lupino first retested the original

sample that was taken from the forensic evidence kit, and obtained the same result. Next,



                                               -7-
Lupino tested the buccal swab obtained from Nickerson pursuant to the search warrant. After

comparing the two samples, Lupino concluded that the profile developed from the sample taken

from Emma’s underwear matched the profile developed from Nickerson’s buccal swab to a

probable certainty of one in 5.6 quadrillion people, which Lupino explained was one in a million

times the earth’s population.

       Nickerson subsequently was indicted on seven felony counts, including four counts of

first-degree sexual assault in violation of § 11-37-2, consisting of penile-vaginal penetration

(count 1), digital-vaginal penetration (count 2), penile-anal penetration (count 3), and fellatio

(count 4). Nickerson was also charged with assault with a dangerous weapon—namely, choking

with hands—in violation of § 11-5-2 (count 5); second-degree robbery in violation of G.L. 1956

§ 11-39-1 (count 6); and assault with a dangerous weapon—a knife—in violation of § 11-5-2

(count 7).

       A jury trial commenced on April 2, 2012. At trial, Nickerson testified on his own behalf

and gave a widely divergent account of his encounter with Emma. Nickerson admitted that he

had sexual relations with Emma; however, he claimed that it was a consensual encounter that did

not occur on the day that Emma was brutally attacked. According to Nickerson, on a weekday

afternoon the week before the assault, he was driving on Main Street in Pawtucket—in an area

he claimed is known for prostitution—when he saw a young woman dressed in tight-fitting,

provocative clothing. Assuming the woman was a prostitute, Nickerson testified that he stopped

and asked the woman how she was doing, and told her that she looked cute. Nickerson testified

that the woman leaned into the car and told him that she was looking to make some money.

Nickerson, who testified that he had engaged the services of a prostitute on at least two previous




                                              -8-
occasions, invited the woman into the car.9

       Nickerson claimed that after driving for two to three minutes, he drove into an alley,

where the woman told him her name was either Jackie or Jasmine and that it would cost $20 for

oral sex or $60 for vaginal intercourse. Nickerson testified that he paid the woman $60, at which

point he moved to the backseat of the vehicle and the woman climbed over the front seat into the

backseat, and proceeded to unbutton and unzip his pants. He testified that she then performed

oral sex for approximately five minutes.10 Nickerson testified that the woman then removed her

pants and underpants, and the two engaged in vaginal intercourse while they both faced the rear

passenger side window. Nickerson claimed that after about fifteen minutes he ejaculated onto

her lower back, at which point he pulled up his pants and returned to the front seat. He retrieved

the woman’s purse from the floor in front of the passenger seat and handed it to her. He testified

that the woman removed “a white cottonish thing” from her bag, and wiped her back before she

dressed and exited the car. According to Nickerson, he did not penetrate the woman anally or

digitally, nor did he hit, bite, choke, or otherwise harm her.

       Although Nickerson acknowledged that he had a sexual encounter with Emma on a day

earlier in the week that she was assaulted, he insisted that it could not have been on June 30, the

night that she was brutally attacked. Nickerson—who had been adopted as a child after spending

years in foster care—testified that he spent that entire day preparing to attend a long-awaited

family reunion on Sunday, July 1, 2007, where he was to meet many of his relatives for the first

9
  Although defendant admitted to using the services of a prostitute “about three times” in the
past, on cross-examination he could not recount in any detail where these transactions occurred,
how much he had paid, or what services he received—in stark contrast to the detailed account of
his encounter with Emma.
10
  When asked on cross-examination about the discrepancy in his testimony regarding the quoted
price of services, what he paid, and what services he received, defendant explained that it was all
according to a “code” that prostitutes frequently use.
                                                -9-
time. According to Nickerson, he spent all of June 30 shopping and preparing for the family

barbecue. He claimed that he picked up his mother-in-law, Yula Walker (Walker), who spent the

night at Nickerson’s home.     He further testified that at around 10 p.m., his cousin Derek

Richardson (Richardson) arrived and the two played video games until around 2 a.m., at which

point Nickerson went to bed.

       One month before trial, defense counsel disclosed that Nickerson intended to rely on an

alibi defense.   Defense counsel indicated that Walker and Richardson could be called to

corroborate Nickerson’s claim that he spent the entire evening of June 30 into July 1 at home

with his relatives—a location that was approximately half a mile from the house that Emma

visited that evening. Significantly, although both Walker and Richardson had given this account

to the state’s investigators prior to trial, after the trial commenced and after she spoke to

Richardson, Walker changed her version of the events and claimed that she was mistaken about

the address at which the family gathered. Walker recalled that the family actually had spent that

evening with Nickerson at a different address in Pawtucket, approximately one mile from

defendant’s home. Faced with this development, the prosecutor argued that the notice of alibi

was fatally flawed; defense counsel, however, assured the court that no alibi witness would be

called to testify in a manner inconsistent with the information provided in the original alibi

notice, which referenced defendant’s home as the place where the family spent the evening.

Consequently, although Nickerson testified that he was home that evening, and the trial justice

did not preclude the defense from calling any witness, neither Walker nor Richardson testified

about defendant’s purported alibi.     Instead, Nickerson testified in his own defense and

maintained that, although he had sex with Emma earlier in the week, it was consensual and that

the injuries she suffered on June 30 were consistent with having been in a fight, and not the



                                             - 10 -
victim of a sexual attack.

       On April 11, 2012, the jury found Nickerson guilty on five counts in the indictment, and

he was acquitted on count 6—second-degree robbery—and count 7—assault with a dangerous

weapon, to wit, a knife. On June 4, 2012, the trial justice heard and denied defendant’s motion

for a new trial. The trial justice sentenced Nickerson to concurrent terms of sixty years at the

ACI, with fifty years to serve and ten years suspended with probation. Concerning count 5, the

trial justice sentenced defendant to twenty years to serve concurrently with the sentence imposed

on the first four counts.11 The defendant timely appealed to this Court.

                                            Analysis

                             Alleged Rule 16 and Brady Violations

       On appeal, defendant argues that the trial justice erred in denying his motion to exclude

the testimony of Sharon Mallard, the analyst from the Department of Health, based on an alleged

violation of defendant’s constitutional rights and his right to discovery in accordance with

Rule 16 of the Superior Court Rules of Criminal Procedure. The defendant bases this argument

on the fact that Mallard’s handwritten bench notes, taken during her examination of Emma’s

forensic evidence kit, were not disclosed to defense counsel until trial had commenced. The

defendant claims that this evidence was material and favorable, and was withheld in violation of

Nickerson’s constitutional right to due process and the state’s discovery obligation under

Rule 16. The state denies that a due process violation occurred because, the state contends, the

content of Mallard’s notes was neither exculpatory nor material. The state also argues that

defendant’s reliance on Rule 16 is misplaced, because Nickerson failed to show bad faith on the

part of the prosecutor or show that he was prejudiced by the late disclosure of information

11
  Nickerson was also ordered to have no contact with Emma, register as a sex offender, undergo
sex offender and anger management counseling, and to participate in substance abuse treatment.
                                              - 11 -
contained in Mallard’s bench notes.

          Under Rhode Island law, a criminal defendant may obtain pretrial discovery pursuant to

Rule 16 of the Superior Court Rules of Criminal Procedure.12             This Court previously has

explained that the “overarching purpose” of Rule 16 is “to ensure that criminal trials are

fundamentally fair.” State v. McManus, 941 A.2d 222, 229 (R.I. 2008) (quoting State v. Briggs,

886 A.2d 735, 754 (R.I. 2005)). In fact, “[t]he primary purposes of the rule are to eliminate

surprise at trial and ‘to ensure that both parties receive the fullest possible presentation of the

facts prior to trial.’” State v. Garcia, 643 A.2d 180, 186 (R.I. 1994) (quoting State v. Concannon,

457 A.2d 1350, 1353 (R.I. 1983)).

          In determining whether a Rule 16 violation has occurred, a trial justice should consider

“(1) the reason for nondisclosure, (2) the extent of prejudice to the opposing party, (3) the

feasibility of rectifying that prejudice by a continuance, and (4) any other relevant factors.” State

v. Stravato, 935 A.2d 948, 951 (R.I. 2007) (quoting State v. Coelho, 454 A.2d 241, 245 (R.I.

1982)). If, however, the state deliberately failed to disclose evidence, “the defendant is entitled

to a new trial, and no inquiry is needed into the presence of the other three factors.” McManus,

941 A.2d at 229 (quoting Stravato, 935 A.2d at 951). Otherwise, it is within the sound discretion

of the trial justice to “determine whether any harm has resulted from noncompliance with

12
     In pertinent part, Rule 16(a) of the Superior Court Rules of Criminal Procedure provides:

                 “Discovery by Defendant. Upon written request by a defendant,
                 the attorney for the State shall permit the defendant to inspect or
                 listen to and copy or photograph any of the following items within
                 the possession, custody, or control of the State, the existence of
                 which is known, or by the exercise of due diligence may become
                 known to the attorney for the State:
                          “* * *
                          “(5) all results or reports in writing, or copies thereof, of
                 physical or mental examinations, and of scientific tests or
                 experiments made in connection with a particular case * * * .”
                                                 - 12 -
discovery motions, and whether the harm can be mitigated.” Briggs, 886 A.2d at 757 (quoting

Coelho, 454 A.2d at 244-45).

       In addition to Rule 16, “the due process clause of the United States Constitution requires

that the state provide a criminal defendant with certain information.” McManus, 941 A.2d at 229

(citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). “In accordance with Brady, if a prosecutor

has suppressed evidence that would be favorable to the accused and the evidence is material to

guilt or punishment, the defendant’s due-process rights have been violated and a new trial must

be granted.” DeCiantis v. State, 24 A.3d 557, 570 (R.I. 2011) (quoting McManus, 941 A.2d at

229-30). The Brady doctrine, however, “has its limits and does not ‘extend an open invitation to

criminal defendants to comb prosecution files for any or all information that might be remotely

useful.’” Cronan ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I. 2001) (quoting State v. Wyche,

518 A.2d 907, 908 (R.I. 1986)). Any nondisclosed information subject to Brady must “be

material in the sense that its ‘high value to the defense could not have escaped * * * [the

prosecution’s] attention.’” Id. (quoting Wyche, 518 A.2d at 910). A defendant, therefore, has

the burden of showing that “there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” State v.

Burnham, 58 A.3d 889, 900 (R.I. 2013) (quoting McManus, 941 A.2d at 230).                  Notably,

however, the prosecution cannot be held responsible “for delivering information that is not

within its custody or control.” Id. (citing Wyche, 518 A.2d at 909).

       “When reviewing a trial justice’s decision with respect to whether a violation of Rule 16

or Brady occurred, this Court affords great deference to the trial justice and will not disturb that

ruling unless he or she has committed clear error.” McManus, 941 A.2d at 229 (citing Briggs,

886 A.2d at 755). This is because “[w]e long have recognized that ‘the trial justice is in the best



                                               - 13 -
position to determine whether any harm resulted from noncompliance with discovery motions

* * * .’” Id. (quoting State v. Brisson, 619 A.2d 1099, 1102 (R.I. 1993)).

       In the case at bar, the record reflects that, prior to trial, the prosecution complied with

defendant’s initial discovery request by providing Mallard’s report of her analytical findings

concerning the testing performed on the forensic evidence kit, and by informing the defense that

Mallard would testify as to her conclusions regarding the report in order to establish that the

evidence kit traveled along an unbroken chain of custody.         Mallard’s report, detailing her

conclusions, was entered into evidence as exhibit No. 22. Before Mallard was called to testify

on the afternoon of April 3, 2012, however, she provided the prosecutor with three pages of

handwritten bench notes that were created while performing testing on the evidence kit. The

prosecutor immediately gave the notes to defense counsel, who then moved to preclude Mallard

from testifying as to her findings because of the late disclosure of the notes. Alternatively,

defense counsel requested an overnight continuance to review the content of the notes, which

consisted of shorthand markings and sketches, for “potentially exculpatory information

contained therein.” The trial justice reserved ruling on the motion to exclude the evidence, but

she granted the requested recess to allow counsel to review the notes.

       When trial commenced the following morning, the defense renewed its motion to

preclude Mallard from testifying as to her findings.       Counsel acknowledged that she had

reviewed the notes with Mallard the previous afternoon, but contended that, based on the late

disclosure, defendant was deprived of an opportunity to thoroughly explore what could

potentially be exculpatory evidence with an expert in forensic pathology. Defense counsel

maintained that, upon reviewing Mallard’s notes, she determined that the samples played a role

in the defense’s case and that she felt the need to hire an expert. Defense counsel argued that,



                                              - 14 -
based on defendant’s account that he had sex with Emma the week before she was attacked, the

relatively small quantity of sperm found by Mallard on the slides and smears was probative as to

when the sperm was deposited, and thus the late disclosure and alleged inability to consult an

expert witness deprived defendant of a meaningful opportunity to cross-examine Mallard

concerning the test results.

       The prosecution responded that the state had been unaware of Mallard’s bench notes, and

had turned them over to the defense immediately upon receiving them. Moreover, the state

argued that defense counsel had notice that Mallard would be called to testify, and was provided

with the document containing the summary of her analytical findings, marked as exhibit No. 22,

which noted that a “[m]icroscopic examination revealed the presence of spermatozoa and/or

partially intact spermatozoa on the vaginal and rectal samples,” as well as on Emma’s

underwear—from which the DNA sample was developed.              The prosecutor acknowledged

defendant’s right to cross-examine Mallard concerning the age and quantity of the sperm

discovered on the tested samples, and noted that Mallard was being called for chain of custody

purposes—to “show the integrity of the DNA that went all the way to ReliaGene”—where the

DNA testing actually occurred. The state contended that the defense’s argument was without

merit, because the defense was well aware that “this case comes down to DNA,” but at no time

had defendant sought to hire his own experts to either retest the evidence or analyze the

conclusions of any witness.      As a result, the prosecution argued that Nickerson was not

prejudiced by the late disclosure of Mallard’s notes.

       After hearing the parties’ arguments, the trial justice determined that there was no

evidence that Mallard’s notes—marked exhibit No. 30 for identification—were purposely

withheld from the defense.      The trial justice further noted that, although the defense was



                                              - 15 -
provided with the summary of Mallard’s findings as to the presence of spermatozoa on the

samples, the defense failed to seek production of notes or documents relating to the report or to

pursue any independent investigation of the DNA evidence. The trial justice indicated that she

had granted a continuance to permit counsel to review the notes with the witness. The trial

justice also stated that the defense could have hired an expert to analyze Mallard’s findings and

had failed to do so. The trial justice declared that she “d[id] not believe that the mere failure to

produce the underlying notes to their report preclude[d] the defense from retaining an expert in

order to properly meet even the findings of Ms. Mallard contained within that report.” As such,

the trial justice determined that defense counsel’s position was “really a strategic argument,” and

that defendant was not prejudiced by the late production of the bench notes, because defense

counsel “could have inquired into these matters further with a consulting expert if it so desired.”

        Reviewing this ruling through our deferential lens, we are satisfied that the trial justice

conducted the appropriate analysis in accordance with Rule 16, by first determining that the

state’s failure to produce Mallard’s notes was inadvertent, and then concluding that Nickerson

suffered no prejudice by the “mere failure to produce the underlying notes,” because defendant

was in possession of Mallard’s conclusions as set forth in her report—which, we note, did not

deviate from her bench notes—and had ample opportunity to further investigate those findings.

In fact, defendant was aware that this case hinged on the outcome of forensic testing, because

Emma was never able to identify her assailant. We also note that defendant only sought to

exclude Mallard’s testimony and did not move for a mistrial. Accordingly, we are unpersuaded

by defendant’s argument that he was prejudiced by the late disclosure of Mallard’s bench notes,

and we are satisfied that the trial justice did not err in finding that Rule 16 had not been violated

in the context of this case.



                                               - 16 -
       Moreover, we are equally satisfied that the trial justice correctly found that a Brady

violation did not occur in this case. When addressing this facet of defendant’s argument,13 the

trial justice observed that the defense did not ask to pass the case based on the alleged late

disclosure. The trial justice declared that she was convinced that defendant had notice of

Mallard’s conclusions—and what would be testified to—in advance of trial. The trial justice

determined that, not only was the defense able to address Mallard’s conclusions at trial, but “in

fact, exploited that evidence during the course of trial as well,” by eliciting from Mallard that it

was impossible to determine the age of the sperm or when it was deposited on Emma’s

underwear, and that, despite the samples tested by Mallard, the only evidence that incriminated

Nickerson was discovered by DNA testing conducted on the underwear cutting by another

witness. For these reasons, the trial justice determined that further investigation of Mallard’s

bench notes would not have changed the result of the proceeding. Accordingly, because we are

satisfied that the trial justice conducted the appropriate analysis, we decline to disturb this

finding on appeal. See Burnham, 58 A.3d at 900 (the defendant has the burden of showing that

“there is a reasonable probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different”) (quoting McManus, 941 A.2d at 230).




13
   When defendant’s argument regarding the alleged Brady violation was initially raised—prior
to Mallard testifying as to her conclusions—the trial justice did not address it as such, and
instead focused her ruling on defendant’s argument that Rule 16 had been violated. However,
we are satisfied that the trial justice appropriately addressed this argument—and that it was
preserved for review—when it was raised again by defendant during his motion for a new trial.
                                               - 17 -
                                Motion for Judgment of Acquittal

                                                and

                                      Motion for a New Trial

       On appeal, defendant argues that the trial justice erred in denying his motion for

judgment of acquittal and motion for a new trial, claiming that (1) the prosecution failed to

prove, beyond a reasonable doubt, that defendant was the perpetrator of the assaults against

Emma, and that (2) the chain of custody of the evidence kit was not sufficiently established by

the state and therefore, the evidence should have been excluded. The defendant also argues that

the trial justice incorrectly denied his motion for a new trial based on the aforementioned alleged

violations of Rule 16 and defendant’s constitutional rights resulting from the disclosure of

Mallard’s technical notes at trial.

       It is well settled that “[i]n reviewing a challenge to a trial justice’s rulings on a motion for

judgment of acquittal and a motion for a new trial, this Court ‘first conducts a review of the new-

trial motion.’” State v. Buchanan, 81 A.3d 1119, 1127 (R.I. 2014) (quoting State v. Gaffney, 63

A.3d 888, 893 (R.I. 2013)). This is “because both motions simultaneously raise a ‘challenge to

the [legal] sufficiency of the evidence,’ and thus, ‘we begin our review by conduct[ing] the more

exacting analysis required for review of a ruling on a motion for a new trial.’” Id. (quoting

Gaffney, 63 A.3d at 893).

       When passing on a motion for a new trial, “the trial justice must determine ‘whether the

evidence adduced at trial is sufficient for the jury to conclude guilt beyond a reasonable doubt.’”

State v. Baptista, 79 A.3d 24, 29 (R.I. 2013) (quoting State v. Staffier, 21 A.3d 287, 290 (R.I.

2011)). In making this determination, “the trial justice acts as a thirteenth juror, exercising

‘independent judgment on the credibility of witnesses and on the weight of the evidence.’” Id.



                                                - 18 -
(quoting Staffier, 21 A.3d at 290). This undertaking requires the trial justice to “(1) consider the

evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and

the weight of the evidence, and then (3) determine whether he or she would have reached a result

different from that reached by the jury.” Id. (quoting State v. Paola, 59 A.3d 99, 104 (R.I.

2013)). “If, after conducting this independent review, the trial justice agrees with the jury’s

verdict or if the evidence is such that reasonable minds could differ as to the outcome, the motion

for a new trial should be denied.” Buchanan, 81 A.3d at 1127 (quoting State v. Otero, 788 A.2d

469, 472 (R.I. 2002)). Furthermore, “[i]f the trial justice has complied with this procedure and

articulated adequate reasons for denying the motion, his or her decision will be given great

weight and left undisturbed unless the trial justice overlooked or misconceived material evidence

or otherwise was clearly wrong.” Id. (quoting State v. Horton, 871 A.2d 959, 967 (R.I. 2005)).

We employ such a “deferential standard of review because ‘a trial justice, being present during

all phases of the trial, is in an especially good position to evaluate the facts and to judge the

credibility of the witnesses.’” Baptista, 79 A.3d at 29-30 (quoting Paola, 59 A.3d at 104).

       In the case at bar, the trial justice declared that defendant’s motion for a new trial “asks

this [c]ourt principally to determine whether the weight and credibility of the evidence at trial

was sufficient to support the jury’s verdict in this case.”       The trial justice proceeded to

thoroughly detail all of the evidence and testimony presented at trial, noting that Emma’s

testimony “was very credible.” The trial justice recounted that although the defense had the

opportunity to vigorously cross-examine her, Emma gave her account of the assault “in measured

tones,” and “completely dispelled” any notion that the attack was fabricated. In fact, the trial

justice found that after the assault, Emma’s description of what transpired never wavered, and

that the state “effectively corroborated” Emma’s account with the testimony of others who saw



                                               - 19 -
her in the immediate aftermath of the assault.

         The trial justice specifically recounted the “credible” testimony of Dr. Goldberg, noting

that the doctor’s conclusions supported the physical and sexual assaults testified to by Emma,

and discounted defendant’s assertion that Emma’s injuries were more consistent with having had

been in a fight than the victim of a sexual assault. The trial justice detailed that the forensic

testing conducted on the samples taken by Dr. Goldberg corroborated Emma’s story, and

specified that she saw no issues with the forensic evidence in the case, declaring “that there was

no break in the chain of custody and no evidence of contamination such that the results of that

testing and the match reference w[ere] accurate and reliable evidence for the jury to depend

upon.”

         The trial justice also found that the photographs and evidence presented at trial

corroborated Emma’s account of the attack.             The trial justice specifically discounted the

defense’s criticism of Emma’s clothing having been lost; she noted that the defense had the

opportunity to photograph the clothing before it went missing, and that, because there was no

forensic testing conducted on the clothing, there was no loss of evidence “of any evidentiary

significance.” The trial justice concluded that, “[c]onsidering the credible trial testimony of

[Emma] and the corroborative physical evidence and other testimonial evidence,” she was

satisfied that the jury reached the correct verdict.

         The trial justice also stated that she was “satisfied that the [s]tate proved the identity of

the perpetrator beyond a reasonable doubt.” The trial justice detailed that, although Emma had

given an accurate description of her assailant to Det. Muriel, defendant’s true identity could not

be established before 2011—when his DNA was entered into CODIS—because she did not

know him and had never seen him before the attack. The trial justice commented that, in her



                                                 - 20 -
opinion, there were no photos of anyone resembling Nickerson in the first two photo arrays

shown to Emma, and further, although Nickerson matched Emma’s initial description of her

attacker, Emma could not be faulted for failing to identify him in the final photo array that

contained his photograph.14 The trial justice concluded that the forensic evidence presented at

trial “squared” with Emma’s account of the assault, and, with her testimony and the other

evidence presented, “establish the defendant as the perpetrator of the sexual and physical assaults

beyond a reasonable doubt.”

       The trial justice also commented on defendant’s defense of consent and alibi, describing

it as “perfect.” However, she noted that the jury rejected this defense “wholeheartedly,” and

with “good reason to do so.” The trial justice explained that “defendant’s story [was] engineered

[and] self-serving[,] was not corroborated[,] and lacked credibility.” She further detailed that

Nickerson’s testimony “was too carefully contrived to explain away the physical evidence and

take advantage of other evidence,” and noted that, on cross-examination, defendant “had

difficulty sticking to his story.” After a thorough recitation of Nickerson’s testimony, the trial

justice concluded that “the jury was within its rights and indeed correct to reject the defendant’s

testimony.” The trial justice denied defendant’s motion for a new trial based on insufficient

evidence, and also denied—citing the analysis of her previous rulings—defendant’s motion for a

new trial based on alleged errors occurring at trial.

       After careful review of the record before us, this Court is satisfied that the trial justice

correctly addressed defendant’s motion for a new trial and, based on her reasoning and thorough

review of the evidence in this case, we refuse to disturb the trial justice’s decision. The trial

justice independently assessed the credibility of each witness and commented upon the weight of

14
    The trial justice, after closely examining the photo, explained that “it was not readily apparent
to the [c]ourt which picture was his even with the defendant in court sitting feet away.”
                                                - 21 -
the evidence before agreeing with the jury verdict. We also discern no error with respect to the

trial justice’s conclusion that the state effectively established an unbroken chain of custody of the

evidence that was tested for, and found to contain, defendant’s DNA. Moreover, we are satisfied

with the trial justice’s analysis regarding defendant’s claim of Rule 16 and Brady violations, and

are of the opinion that she correctly denied defendant’s motion for a new trial on these grounds.

Accordingly, based on our review of the record before us, we conclude that the trial justice did

not err when she rejected defendant’s motion for a new trial.

       Turning now to defendant’s motion for judgment of acquittal, “it is well settled that when

passing on ‘a trial justice’s denial of a motion for judgment of acquittal, this Court applies the

same standard as the trial justice.’” Buchanan, 81 A.3d at 1128 (quoting State v. Long, 61 A.3d

439, 445 (R.I. 2013)). Thus, “[a] motion for a judgment of acquittal should be granted only if

the evidence, viewed in the light most favorable to the prosecution, is insufficient to establish the

defendant’s guilt beyond a reasonable doubt.” Id. at 1128-29 (quoting Long, 61 A.3d at 445).

“If, however, a reasonable juror could find the defendant guilty beyond a reasonable doubt, the

motion should be denied.” Id. at 1129 (quoting Long, 61 A.3d at 445).

       In this case, the trial justice denied the defendant’s motion for judgment of acquittal at the

close of the state’s case after a detailed recitation of the evidence and witness testimony that had

been presented up to that point. The trial justice unequivocally determined that, in addition to

other testimony and evidence presented, Emma’s testimony alone was sufficient to support all

counts of the indictment beyond a reasonable doubt. Addressing the defendant’s argument that

the chain of custody was flawed, the trial justice recounted the travel of the evidence tested,

concluding that it had been properly collected and transported, and specified that there was no

indication of a break in the chain of custody of the underwear “sufficient to undermine its



                                               - 22 -
reliability.”15 When the defendant renewed his motion for judgment of acquittal at the close of

evidence, the trial justice—citing to the same reasoning—denied this motion as well. Because

we conclude that the trial justice’s decision is without error, any further analysis of the trial

justice’s denial of the defendant’s motion for judgment of acquittal is unnecessary in light of our

analysis and opinion regarding the defendant’s motion for a new trial. See Buchanan, 81 A.3d at

1127 (noting that, when faced with a challenge to rulings on both a motion for a new trial and for

judgment of acquittal, this Court first conducts “the more exacting analysis required for review

of a ruling on a motion for a new trial”) (quoting Gaffney, 63 A.3d at 893). Accordingly, we see

no reason to disturb the trial justice’s decision regarding the defendant’s motion for judgment of

acquittal.

                                           Conclusion

        For the reasons set forth in this opinion, we deny and dismiss the defendant’s appeal and

affirm the Superior Court’s judgment of conviction. The papers in this case may be returned to

the Superior Court.




15
   Although defendant asserts that the trial justice erred in disregarding a purported missing link
in the chain of custody of the underwear—namely, why it took so long for the samples to be
tested and who transported the evidence kit from the hospital to the Department of Health—we
are satisfied that the trial justice addressed this contention during her rulings on defendant’s
motion for judgment of acquittal and motion for a new trial, determining that there was no
indication that the evidence had been tampered with or contaminated. To the extent that
defendant posits this as a separate argument on appeal, we are equally satisfied that the trial
justice did not err in finding that the state had established that the evidence had not been
disturbed. See State v. Nelson, 982 A.2d 602, 612 (R.I. 2009) (noting that a showing of a
continuous chain of custody is not necessary and that the state need not eliminate all possibility
of tampering, but rather that evidence may be admitted upon a showing that “in all reasonable
probability the evidence has not been subjected to tampering”) (citing State v. Bracero, 434 A.2d
286, 290 (R.I. 1981)).
                                              - 23 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Jason Nickerson.

CASE NO:              No. 2012-342-C.A.
                      (P1/11-1596A)

COURT:                Supreme Court

DATE OPINION FILED: July 10, 2014

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Judith C. Savage

ATTORNEYS ON APPEAL:

                      For State: Jane M. McSoley
                                 Department of Attorney General

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