State v. Joseph Stravato

Supreme Court
No. 2005-101-C.A.
No. 2004-315-C.A.
(W2/02-504A)
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.
State 	:
v. 	:
Joseph Stravato. 	:

- 1 -
Supreme Court
No. 2005-101-C.A.
No. 2004-315-C.A.
(W2/02-504A)
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. The defendant, Joseph Stravato, appeals from a judgment
of conviction on three counts of second-degree child molestation. Although the defendant raises
several grounds for appeal, we find the issue of the state’s discovery violation to be dispositive.
For the reasons set forth in this opinion, we vacate the judgment of conviction and remand the
case to the Superior Court for a new trial.
I
Facts and Procedural History
On November 29, 2002, the state charged defendant with the second-degree child
molestation of his former stepdaughter, Jane.1 The state alleged three counts: breast contact,
vaginal contact, and contact with defendant’s genitals, all in violation of G.L. 1956 §§ 11-37-8.3
and 11-37-8.4, which prohibit sexual contact with a person fourteen years of age or under.
The defendant was tried in the Superior Court in October and November 2003. 	For the
purposes of resolving this appeal, we need not recount the lurid details of Jane’s testimony.
1 In conformance with our customary practice, we identify the complaining witness, a child at the
time of the alleged molestation, by use of a fictitious name.
State 	:
v. 	:
Joseph Stravato. 	:

- 2 -
Suffice it to say she testified to a series of sexual encounters with defendant over a two-year
period, beginning when she was eleven years old. Jane was twenty years old at the time of trial.
Jane testified that she kept the molestations secret for many years, largely because she
was afraid no one would believe her and also because she did not want to disrupt her family. In
September 2002, however, Jane learned that her mother was unhappy in her relationship with
defendant, and she devised a plan to give her mother a good reason to leave the marriage. Jane
purchased a digital recorder and planned to confront defendant about the molestations while
secretly recording the conversation. 	On the morning of September 18, 2002, Jane told her
mother about defendant’s abusive conduct. 	Later that day, with her mother present, Jane
confronted defendant about the molestations while surreptitiously recording the conversation.
A few weeks after the recorded confrontation, Jane gave a written statement to the Rhode
Island State Police and presented the digital recording to two state troopers. 	The state
subsequently charged defendant with three counts of child molestation. At trial, the state relied
principally on Jane’s testimony.
At the end of the state’s case, defendant moved for judgment of acquittal and also moved
to exclude the digital recorder and tape recordings of his conversation with Jane from evidence.
The trial justice denied both motions. Subsequently, defendant, the only witness to testify for the
defense, denied all the sexual-misconduct allegations.
The jury returned guilty verdicts on all three counts. 	Soon thereafter, defendant filed a
motion for a new trial, asking the trial justice to set aside the conviction because Jane’s
testimony was unworthy of belief. 	The trial justice denied the motion on December 9, 2003.
The defendant filed a second motion for a new trial, asserting that the state had violated
defendant’s constitutional and procedural rights and had committed prosecutorial misconduct by

- 3 -
failing to disclose Jane’s medical records and one of her written statements. 	The trial justice
denied defendant’s second motion, and the judgment of conviction was entered on June 22,
2004, from which defendant timely appealed.
On appeal, defendant raises a litany of perceived errors that he argues warrant the
reversal of his conviction. 	The defendant says the trial justice committed reversible error by:
denying defendant’s second motion for a new trial based on the state’s nondisclosure of key
evidence during discovery; allowing a digital recording into evidence without establishing a
sufficient chain of custody; violating defendant’s confrontation rights by allowing evidence
outside the record to reach the jury; precluding cross-examination of the state’s witnesses on
several topics; and by making several evidentiary determinations that constitute abuses of
judicial discretion. 	Because we find the issue of the state’s discovery violation dispositive, we
do not address defendant’s remaining legal theories. 2
II
Discussion
The defendant argues that the state’s nondisclosure of evidence rises to the level of a
deliberate discovery violation of Rule 16 of the Superior Court Rules of Criminal Procedure,
thus warranting a reversal of the conviction and a new trial. 	We agree. 	At the outset, we note
that “Rhode Island has adopted one of the most liberal discovery mechanisms in the United
States.” State v. Oster, 922 A.2d 151, 163 (R.I. 2007) (quoting State v. McParlin, 422 A.2d 742,
745 (R.I. 1980)). The Superior Court promulgated Rule 16 in 1972, which substantially altered
previous criminal discovery procedures. State v. Coelho, 454 A.2d 241, 244 (R.I. 1982). “In our
adversary system, based as it is upon a single trial held on a single occasion, it is imperative that
2 Although we discuss only the violation of Rule 16 of the Superior Court Rules of Criminal
Procedure in this opinion, we are satisfied that defendant’s remaining arguments are without
merit.

- 4 -
the defense come to trial as well equipped as possible to raise reasonable doubt in the minds of
one or more of the jurors.” State v. Concannon, 457 A.2d 1350, 1352-53 (R.I. 1983). 	Rule 16
attempts to ensure that both parties receive the fullest possible presentation of facts before trial.
Concannon, 457 A.2d at 1353. 	Its overall purpose is to “contribute to the fair and efficient
administration of criminal justice by aiding in informed plea negotiations, by minimizing the
undesirable effect of surprise at trial, and by otherwise contributing to an accurate determination
of the issue of guilt or innocence.” Coelho, 454 A.2d at 244 (quoting Fed. R. Crim. P. 16
advisory comm. note); see also State v. Briggs, 886 A.2d 735, 754 (R.I. 2005) (quoting State v.
Gordon, 880 A.2d 825, 832 (R.I. 2005) (“The overarching purpose of Rule 16 is ‘to ensure that
criminal trials are fundamentally fair.’”)).
Rule 16 is designed “to eliminate surprise and procedural prejudice.” State v. Boucher,
542 A.2d 236, 241 (R.I. 1988). 	“Failure to cooperate with the spirit and letter of Rule 16
undermines the judicial process and subjects the noncompliant party to possible sanctioning.”
State v. Ramos, 553 A.2d 1059, 1067 (R.I. 1989).
A. Standard of Review
When this Court reviews a determination of whether a violation of Rule 16 occurred, “the
applicable standard [of review] is narrow: the trial justice must have committed clear error.”
Briggs, 886 A.2d at 755 (citing State v. Rice, 755 A.2d 137, 151 (R.I. 2000)); see also State v.
Motyka, 893 A.2d 267, 280 (R.I. 2006) (defining standard of review as “clearly erroneous”).
The imposition of a particular sanction for noncompliance with discovery obligations rests
within the sound discretion of the trial justice, and his or her ruling will not be overturned absent
a clear abuse of discretion. State v. Verlaque, 465 A.2d 207, 213 (R.I. 1983). The trial justice’s

- 5 -
discretion under Rule 16 is not a blank check, however, rather “[it] is limited, bounded by law,
and reviewable.” Oster, 922 A.2d at 163 (quoting Coelho, 454 A.2d at 245).
A 	trial 	justice 	examines 	four 	factors 	when 	considering 	a 	proper 	sanction 	for
nondisclosure of discovery material: “(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.” Coelho, 454 A.2d at 245. 	The first Coelho factor, the reason for the
nondisclosure, can be dispositive. State v. Brisson, 619 A.2d 1099, 1102 (R.I. 1993). When the
state’s nondisclosure is deliberate, the defendant is entitled to a new trial, and no inquiry is
needed into the presence of the other three factors. State v. Wyche, 518 A.2d 907, 911 (R.I.
1986). 	In deliberate nondisclosure cases, prejudice to the other party is presumed. State v.
Vocatura, 922 A.2d 110, 118 (R.I. 2007).
B. Rule 16 Discovery Violation
In the case under review, defendant filed two separate requests for information. The first
included a standard Rule 16 discovery request for a copy of all written statements by potential
witnesses. 	On the day of jury impanelment, defendant also filed a “Motion for Exculpatory
Evidence,” relying upon Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. In response to
defendant’s Rule 16 discovery request, the state turned over a copy of Jane’s ten-page verbatim
statement given to the Rhode Island State Police, and a copy of the State Police’s report that
summarized her witness statement. The state also produced a tape recording and transcript of the
confrontation between Jane and defendant. The state, however, did not disclose Jane’s victim-
impact statement, at least six pages of which Jane had authored before trial.3
3 The trial justice found that Jane wrote six pages of the victim-impact statement before trial and
three additional pages after trial.

- 6 -
Under article 1, section 23, of the Rhode Island Constitution “a victim [of a crime] shall
have the right to address the court regarding the impact which the perpetrator’s conduct has had
upon the victim.” 	The Victim’s Bill of Rights, originally enacted by the General Assembly in
1983, also provides certain rights to victims of criminal offenses. See G.L. 1956 chapter 28 of
title 12. 	One such right inhering in victims is “[t]o be afforded the opportunity to make a
statement, in writing and signed, regarding the impact which the defendant’s criminal conduct
had upon the victim.” Section 12-28-3(a)(14).4 Any such statement must be presented to the trial
court before the acceptance of a plea negotiation. 5 Id.; see also § 12-28-3(a)(10) (giving victims
the right to be consulted by a probation officer and to include a statement on the impact of the
defendant’s conduct on the victim in a presentence report).
Shortly before the trial commenced, the state represented to defense counsel and the trial
justice that it had fully complied with defendant’s requests for discovery. 	The following
colloquy occurred between the state and the trial justice on the day of jury impanelment:
“THE COURT: Defendant’s motion for exculpatory evidence,
even though I have not studied it, I assume that the State does not
4 General Laws 1956 § 12-28-3 reads in pertinent part:
“(a) Each victim of a criminal offense who makes a timely
report of the crime and who cooperates with law enforcement
authorities in the investigation and prosecution of the offense shall
have the following rights:
“* * *
“(14) To be afforded the opportunity to make a statement,
in writing and signed, regarding the impact which the defendant’s
criminal conduct had upon the victim. 	The statement shall be
inserted into the case file maintained by the attorney general or
prosecutor and shall be presented to the court for its review prior to
the acceptance of any plea negotiation. 	The statement shall be
submitted to the parole board for inclusion in its records regarding
the defendant’s conduct against the victim[.]”
5 The state asserts that, because defendants who agree to enter plea negotiations waive their right
to a presentence report, the state cannot rely upon the presentencing process for the creation of
victim-impact statements. According to its brief in this case, the state, as a matter of policy, asks
complainants to prepare victim-impact statements after arraignment.

- 7 -
have an objection. 	The State knows what it has to provide under
constitutional law and case authority, and the State has a continued
obligation to do that right through the end of the trial, even beyond
the end of the trial, I would submit.
“[THE STATE]: Yes, Your Honor. Everything right now, just for
the record, everything that the State has right now, the defendant
has. Nothing new has come into my possession. If it does, I will
certainly turn it over if it’s relevant to this case and discoverable.
“THE COURT: This really doesn’t relate only to discoverable
matters, but it relates to exculpatory matters; and I’m sure you, as
all good prosecutors do, err on the side of disclosure. 	If there’s
ever a question as to what to do, you can always file in camera.”
Later at trial, while discussing a specific discovery matter, the prosecutor stated, “Your Honor, I
take exception to [defense counsel] saying that this is a trial by ambush. * * * The State has
provided everything that the State knew, that it had.”
After the trial concluded, defendant learned of the existence of the victim-impact
statement. The defendant’s second motion for a new trial argued in part that the state’s failure to
disclose the statement violated Rule 16. The trial justice denied the motion, finding that the state
did not make an intentional decision to withhold relevant information contained in the victim-
impact statement. 	The trial justice noted the state’s “dangerous policy” of not routinely
disclosing victim-impact statements obtained before trial,6 but he found that the state did not
intentionally withhold information contained in the victim-impact statement because the relevant
material had been disclosed through other means. 	The court determined that the state’s
prosecution team had a good-faith belief that they had complied with defendant’s discovery
requests. The trial justice found that the state did not believe that disclosure of the victim-impact
statement was required. He also noted that the state represented to the court that it reviewed the
6 The trial justice granted defendant bail pending appeal, explaining that the state’s failure to
disclose the victim-impact statement is a “significant [issue of law] and one I hope does reach
our State Supreme Court.”

- 8 -
victim-impact statement before trial and determined it “not to contain any information not
already made part of other discovery.”
Before this Court, the state acknowledges that “the prosecutor in this case deliberately
withheld the [victim-impact statement,]” contending that “she did not do so ‘for the purpose of
obstructing,’ but simply because in good faith she did not believe” that Rule 16 required its
production. 	From the state’s viewpoint, it did not need to disclose the victim-impact statement
because it determined, and the trial justice agreed, that the statement as it existed before trial did
not contain any information not otherwise disclosed.
Rule 16 states in pertinent part:
“(a) 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:
“* * *
“(8) as to those persons whom the State expects to call as
witnesses 	at 	the 	trial 	* * * 	all 	written 	or 	recorded 	verbatim
statements, signed or unsigned, of such persons and, if no such
testimony or statement of a witness is in the possession of the
State, a summary of the testimony such person is expected to give
at the trial[.]
“* * *
“(i) Failure to Comply. If at any time during the course of
the proceedings it is brought to the attention of the court that a
party has failed to comply with this rule or with an order issued
pursuant to this rule, it may order such party to provide the
discovery or inspection, grant a continuance, or prohibit the party
from introducing in evidence the material which or testimony of a
witness whose identity or statement were not disclosed, or it may
enter such other order as it deems appropriate.”
This Court has defined a deliberate nondisclosure under Rule 16 as “‘a considered
decision to suppress * * * for the purpose of obstructing’ or where [the prosecution] fails ‘to
disclose evidence whose high value to the defense could not have escaped * * * [its] attention.’”

- 9 -
Wyche, 518 A.2d at 910 (quoting United States v. Keogh, 391 F.2d 138, 146-47 (2d Cir. 1968));
see also State v. Ibrahim, 862 A.2d 787, 799 (R.I. 2004); Brisson, 619 A.2d at 1103.
As previously noted, if the state’s nondisclosure is deliberate, neither the trial justice nor
we need examine the remaining prongs of the Coelho test; prejudice is presumed and the
defendant is entitled to a new trial. Such an outcome recognizes that the purpose of Rule 16 “is
to ferret out procedural, rather than substantive, prejudice.” Coelho, 454 A.2d at 245; see also
Boucher, 542 A.2d at 241. 	A defendant is automatically prejudiced when the state deliberately
evades its procedural obligations required by Rule 16. See Vocatura, 922 A.2d at 118 (quoting
State v. Morejon, 603 A.2d 730, 735 (R.I. 1992) (“[W]e have held that in situations in which the
record indicates a deliberate nondisclosure, a new trial will be granted without inquiring into the
degree of harm caused by the misconduct.”)). 	Stated another way, the state’s deliberate
nondisclosure of evidence properly requested under Rule 16 is the prejudice.
This Court has often stated that Rule 16 “sets forth in clear and unambiguous language
the state’s responsibilities.” Oster, 922 A.2d at 164. In Verlaque, defense counsel made a Rule
16 discovery request for a written list of the names the state expected to call at trial. 	The state
responded by not providing a list of names as requested; instead, it instructed defense counsel to
“see attached list of names in report.” Verlaque, 465 A.2d at 212. The defendant made a motion
to compel an actual list of the witnesses the state intended to call at trial; the state argued in
response that it had already complied by providing the defendant with statements and police
reports within which the defendant could find the names and addresses of witnesses. Id. The trial
justice rejected the state’s argument and ordered the prosecutor to provide the witness list as
requested. Id. 	On the eve of trial, the state produced a list of fifty-three names, but at trial the
prosecutor called only fifteen of the potential witnesses. Id. at 212-13.

- 10 -
The Verlaque Court concluded that the prosecutor deliberately failed to follow both the
letter and spirit of Rule 16:
“The language of Rule 16 is very clear. 	The prosecutor
must 	provide 	a 	defendant 	with 	specific 	information 	when
requested. The prosecutor does not have the authority to interpret
the rule and decide what constitutes substantial compliance or
equivalent compliance. Rule 16(a)(6) requires the attorney for the
state to provide a list of witnesses, not what the prosecutor thinks
is the functional equivalent of a list. 	The prosecutor should have
provided the list when it was originally requested. The list should
have named the people he expected to call as witnesses. 	A list of
witnesses means just that—the people who will testify at trial.
* * * Because we conclude that the prosecutor deliberately failed
to comply with Rule 16, it is unnecessary to consider whether or
not Verlaque suffered procedural prejudice as a result of the
noncompliance.” Verlaque, 465 A.2d at 214 (emphases added).
Similarly, in State v. Adams, 481 A.2d 718, 723 (R.I. 1984), defense counsel made a
Rule 16 discovery request for scientific reports and related tangible evidence. 	After receiving
the request, the state failed to disclose a doctor’s report and tangible evidence connected with the
report. Adams, 481 A.2d at 723. 	The state argued that it did not commit a Rule 16 violation
because the defendant learned of the tangible evidence in question well before trial through other
means, and that since the prosecutor never intended to call the doctor as a witness, the doctor’s
report was outside the scope of Rule 16. Adams, 481 A.2d at 723. The Adams Court found that
the doctor’s report was a report of a physical examination within the ambit of Rule 167 and noted
that Rule 16 does not make disclosure of physical examination records contingent upon whether
the state intends to use it at trial. Adams, 481 A.2d at 724. 	The Court reasoned that such an
interpretation would clearly defeat the letter and spirit of Rule 16, and that the prosecutor was
7 Rule 16(a)(5) of the Superior Court Rules of Criminal Procedure makes discoverable “all
results or reports in writing, or copies thereof, of physical or mental examinations, and of
scientific tests or experiments made in connection with the particular case and, subject to an
appropriate protective order * * * any tangible objects still in existence that were the subject of
such tests or experiments[.]”

- 11 -
“absolutely without authority” to interpret Rule 16 in such a way to exclude disclosure of the
doctor’s report. Adams, 481 A.2d at 724; see also Coelho, 454 A.2d at 245 (rejecting similar
argument). Adams concluded that the prosecutor’s improper interpretation of Rule 16, resulting
in the nondisclosure of the doctor’s report, was deliberate. Adams, 481 A.2d at 724; see also
Vocatura, 922 A.2d at 119 (affirming the trial justice’s finding of deliberate nondisclosure,
where defense counsel had information that contradicted the language of his discovery response
but chose not to reveal that information in a timely manner).
Rule 16(a)(8) provides that the state, upon request by a defendant, must provide “all
written or recorded verbatim statements, signed or unsigned, of such persons” whom the state
expects to call as witnesses at trial. 	Here, based on Rule 16, defendant requested copies of all
written statements by potential witnesses. 	Similar to Adams, in which the doctor’s report fell
squarely within the plain language of Rule 16, Jane’s victim-impact statement is clearly a written
statement by a witness whom the state expected to call at trial. We also are mindful that this was
a written statement of the complaining witness, whose credibility was crucial and hotly
contested. 	Disclosure of written statements by witnesses does not turn on whether the state
intends to introduce the statements at trial. 	Further, as in Verlaque, the state cannot evade a
proper Rule 16 discovery request by providing defendant with similar information found in other
sources. 	The state must follow Rule 16’s clear command and disclose properly requested
evidence in a timely manner. State v. Gonzalez, 923 A.2d 1282, 1286 (R.I. 2007) (“the state
must produce on a timely basis that which [Rule 16] requires”). While Rule 16 does not require
the state to go beyond the rule’s requirements, Gonzalez, 923 A.2d at 1286; Oster, 922 A.2d at
164-66, the state does not have the authority to interpret the rule and decide what constitutes
substantial compliance or equivalent compliance. Verlaque, 465 A.2d at 214.

- 12 -
In 	this 	case, 	the 	trial 	justice 	determined 	that 	the 	state 	knowingly 	had 	withheld
discoverable material in violation of Rule 16 because of what he characterized as its “dangerous
policy” of not routinely disclosing victim-impact statements before trial. 	He further found,
however, that the state had a good-faith belief that the information contained in Jane’s victim-
impact statement had been provided to defendant through other discovery. Thus, he concluded,
there was no “intentional non-disclosure.” We deem his conclusion to be clear error.
The fact that the state did not act in bad faith, or that the defense may have received the
same information through other means, is not determinative. The state may not evade the clear
command of Rule 16 by its own subjective assessment of the evidence. See Adams, 481 A.2d at
723-24; Verlaque, 465 A.2d at 214. Although the prosecution in this case may not have withheld
the victim-impact statement to gain a tactical advantage at trial, the effect was to deprive
defendant of a witness statement that he was entitled to receive in discovery. 	His ability to
prepare the best available defense thereby may have been impeded. See Coelho, 454 A.2d at 244.
The nondisclosure is particularly significant in a case such as this in which the prosecution relies
primarily on the testimony of the witness whose statement was withheld from defendant.
The state has a continuing duty under Rule 16 to disclose discoverable evidence.8 Here,
the state made a considered decision not to disclose Jane’s victim-impact statement. 	It then
compounded its discovery violation by informing the trial justice on the eve of trial that
“everything that the State has right now, the defendant has.” 	Even after the trial justice
8 Rule 16(h) states:
“Continuing Duty to Disclose. If, subsequent to compliance
with a request for discovery or with an order issued pursuant to this
rule, and prior to or during trial, a party discovers additional
material previously requested which is subject to discovery or
inspection under this rule, he or she shall promptly notify the other
party of the existence thereof.”

- 13 -
admonished the state that it could file documents in camera if it was uncertain about its discovery
responsibilities, the state still chose not to disclose the witness statement until after trial. This is
not a case in which a logistical mistake, such as a failure of communication between the
prosecutor and an investigator, resulted in nondisclosure. The state made a conscious decision to
suppress the statement, and it made no attempt to alert the trial justice or defense counsel about
the existence of the victim-impact statement until after trial.
We are satisfied that under these circumstances the nondisclosure of the victim-impact
statement obstructed the trial process and was deliberate. The state’s good-faith belief that it had
complied with the defendant’s discovery requests because of its subjective determination that
any information contained in the statement had been provided in other discovery is of no
moment. Equivalent compliance is not acceptable when the requested evidence falls within the
clear command of Rule 16. Accordingly, the defendant is entitled to a new trial.
III
Conclusion
For the reasons stated in this opinion, we vacate the judgment of conviction and remand
the case to the Superior Court for a new trial.

14
COVER SHEET
TITLE OF CASE: 	State v. Joseph Stravato
DOCKET SHEET NO.: 	2005-101-C.A.; 2004-315-C.A.
COURT:Supreme
DATE OPINION FILED: 	December 7, 2007
Appeal from
SOURCE OF APPEAL: 	SuperiorCounty: Washington
JUDGE FROM OTHER COURT: 	Judge Edwin J. Gale
JUSTICES: 	Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Plaintiff: 	Seth A. Perlmuttter, Esq.
ATTORNEYS:
For Defendant: 	Lauren S. Zurier, Esq.