"Our long-standing rule is that a contemporaneous objection or at least a motion to strike * * * are prerequisites to an appellate review." State v. Dettore, 104 R.I. 535, 540, 247 A.2d 87, 91 (1968); see also State v. Martinez, 651 A.2d 1189, 1194 (R.I. 1994) (Weisberger, C.J.) ("defendant did not object to [the witness'] testimony on the ground of a violation of Rule 404(b), thus * * * defendant has waived the right to raise that issue on appeal"). And the trial justice cannot be charged on appeal with failing to give a Rule 404(b) instruction regarding Cifredo's bail-hearing testimony because "the trial justice was under no obligation to give a limiting or cautionary instruction in the absence of a request to be made by counsel for the defense," id. at 1195, because "[t]he present case does not deal with sexual assault."
We have often stated that Rule 404(b) is designed to prohibit the introduction of evidence that is only relevant to show that the defendant is a bad person and, therefore, likely to have committed the offense with which he is charged. See State v. Martinez, 651 A.2d 1189, 1194 (R.I. 1994); State v. Brown, 626 A.2d 228, 233 (R.I. 1993); State v. Lemon, 497 A.2d 713, 721 (R.I. 1985); State v. Acquisto, 463 A.2d 122, 128 (R.I. 1983). We have conversely held that evidence of the commission of another crime that is relevant to the proof of the crime in issue is not prohibited by Rule 404(b) or by the common law principles that preceded it.
5) ("That the drafters of the Federal Rules of Criminal Procedure have endorsed a different order of argument does not ... compel the Massachusetts courts to do the same. ... If defense counsel hears prejudicial error in the prosecutor’s closing, there is an opportunity to object, request curative instructions, or move for a mistrial."); Margraves v. State , 56 S.W.3d 673, 684 (Tex. App. 2001) (rejecting defendant’s contention that the trial court erred in allowing the State to reserve its entire closing argument for rebuttal and noting that if "the legislature intended the State to be required to open the closing arguments, it could have easily indicated that intention [in the Texas Code of Criminal Procedure]"); see also Porter v. United States , 826 A.2d 398, 409 (D.C. 2003) (recognizing that while the prosecutor should not develop new arguments on rebuttal, it "is not an inflexible rule, leaving to the trial court to determine, in its discretion, how far the rebuttal may extend"); State v. Martinez , 651 A.2d 1189, 1195-96 (R.I. 1994) ("[T]he order of argument in a criminal case lies within the sound discretion of the trial justice and is subject to review only for abuse of that discretion."). ¶38 Other jurisdictions often look to whether a defendant was prejudiced.
ALI, Model Penal Code § 4.01(1), p. 66 (Proposed Official Draft 1962) ("A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law"). Ark. Code Ann. § 5-2-312 (2006); Conn. Gen. Stat. § 53a-13 (2005); Malede v. United States, 767 A. 2d 267, 269 (D.C. 2001); Ga. Code Ann. §§ 16-3-2, 16-3-3 (2003); Haw. Rev. Stat. § 704-400 (1993); Ky. Rev. Stat. Ann. § 504.020 (West 2003); Md. Crim. Proc. Code Ann. § 3-109 (Lexis 2001); Commonwealth v. McLaughlin, 431 Mass. 506, 508, 729 N. E. 2d 252, 255 (2000); Ore. Rev. Stat. § 161.295 (2003); State v. Martinez, 651 A. 2d 1189, 1193 (R.I. 1994); Vt. Stat. Ann., Tit. 13, § 4801 (1998); State v. Lockhart, 208 W. Va. 622, 630, 542 S. E. 2d 443, 451 (2000); Wis. Stat. § 971.15 (2003-2004); Wyo. Stat. Ann. § 7-11-304 (2005). Mich. Comp. Laws Ann. § 768.21a (West 2000); State v. Hartley, 90 N. M. 488, 490-491, 565 P. 2d 658, 660-661 (1977); Bennett v. Commonwealth, 29 Va. App. 261, 277, 511 S. E. 2d 439, 446-447 (1999).
"The decision on whether evidence of other crimes is relevant to a permissible purpose is left to the sound discretion of the trial justice, 'and on appeal we shall only disturb his or her decision when it constitutes an abuse of discretion,' * * * [unless] the evidence was 'both prejudicial and irrelevant.' " Id. (quoting State v. Gabriau , 696 A.2d 290, 294 (R.I. 1997) and State v. Martinez , 651 A.2d 1189, 1194 (R.I. 1994) ).2. Analysis In denying defendant's motion in limine , the trial justice cited State v. Jalette , 119 R.I. 614, 382 A.2d 526 (1978) and, State v. Gomes , 690 A.2d 310 (R.I. 1997), for the proposition that evidence of uncharged sexual offenses committed against a complaining witness "may be introduced to show the accused's lewd disposition or intent towards the [complaining witness]."
“[H]owever, when relevance exists for purposes other than to show propensity, there are exceptions to the general rule that permit such evidence to be admitted.” Pona I, 948 A.2d at 949 (citing State v. Martinez, 651 A.2d 1189, 1194 (R.I.1994) ). “Rule 404(b) contains a list of exceptions, including when the evidence offered establishes the motive or intent of the defendant, or when it is relevant to prove a material element of the crime with which the defendant is charged.” Id. (citing Gallagher, 654 A.2d at 1210 ).
Because the trial justice “must balance the relevance of the evidence against its remoteness and the potential for improper prejudicial impact[,]” Pona II, 66 A.3d at 466 (quoting State v. Dubois, 36 A.3d 191, 200 (R.I.2012)), “[w]hen other crimes evidence is ‘prejudicial and irrelevant,’ its exclusion obviously is required[.]” Pona I, 948 A.2d at 949 (quoting State v. Martinez, 651 A.2d 1189, 1194 (R.I.1994)). In Pona I, 948 A.2d at 949–52, we considered the case of a defendant who was charged with murdering a teenaged girl who was expected to be a witness in a trial for a different murder committed by the same defendant.
Similarly, questions as to the admissibility vel non of evidence are confided to the sound discretion of the trial justice, and this Court will not interfere with a trial justice's decision in that regard unless there was a clear abuse of discretion and the evidence was both prejudicial and irrelevant. State v. Mohapatra, 880 A.2d 802, 805 (R.I. 2005); see also State v. Breen, 767 A.2d 50, 58 (R.I. 2001); State v. Gabriau, 696 A.2d 290, 294 (R.I. 1997); State v. Martinez, 651 A.2d 1189, 1194 (R.I. 1994). AnalysisIThe Right of Confrontation
When other crimes evidence is "prejudicial and irrelevant," its exclusion obviously is required; however, when relevance exists for purposes other than to show propensity, there are exceptions to the general rule that permit such evidence to be admitted. State v. Martinez, 651 A.2d 1189, 1194 (R.I. 1994). Rule 404(b) permits the admission of "other crimes" evidence when it is offered to show something apart from "a probability that he has committed the crime on trial because he is a man of criminal character."
This definition is consistent with the jurisprudence of both this Court and United States Supreme Court. See State v. Martinez, 651 A.2d 1189, 1193 (R.I. 1994) (applying competency standard as defined by forensic statute); State v. Cook, 104 R.I. 442, 447, 244 A.2d 833, 835-36 (1968) (competency requires ability to understand charges, an understanding of the purpose and object of the proceedings, and a mental capacity to assist counsel in preparing and putting forth defense); see also Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam) (test of competency is "whether [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him"). The requirement that a person be able to "assist" in his or her defense means that a defendant cannot simply be competent when the trial commences.