Background
Francisco Vasquez was convicted by a Kent County Superior Court jury of one count of first-degree sexual assault and sentenced to twenty-five years at the Adult Correctional Institutions, with twelve years to serve and thirteen suspended with probation. The charge arose from events on the night of March 5–6, 2021, when the complainant testified she was taken to a Motel 6 and sexually assaulted by Vasquez while incapacitated from alcohol. Vasquez admitted to having sex with the complainant but maintained it was consensual and that she was conscious throughout.
At trial, the state presented DNA evidence through Cara Lupino, supervisor of the Rhode Island Department of Health’s Forensic Biology and DNA Laboratory. Lupino had reviewed, approved, and co-signed the laboratory reports prepared by forensic analyst Rachel Vele, who performed the actual testing. Lupino testified that DNA consistent with Vasquez’s profile was found on the complainant’s underwear, vaginal swabs, and bra. Defense counsel did not object on Confrontation Clause grounds during Lupino’s testimony, but after a recess moved to strike her entire testimony, arguing that Vele — not Lupino — had performed the testing and that Lupino’s testimony therefore violated Vasquez’s Sixth Amendment right to confront witnesses.
The trial justice denied the motion to strike, noting that the objection was untimely and citing the court’s prior decision in State v. Lopez, 45 A.3d 1 (R.I. 2012), which had approved testimony by a supervisory DNA analyst who reviewed but did not personally perform the testing. Vasquez appealed, arguing on appeal that the U.S. Supreme Court’s intervening decision in Smith v. Arizona, 602 U.S. 779 (2024), announced a novel constitutional rule that should excuse his failure to timely preserve the issue.
The Court’s Holding
The Rhode Island Supreme Court affirmed the conviction unanimously. Writing for the court, Justice Lynch Prata held that Vasquez’s Confrontation Clause argument was not preserved for appellate review under the state’s well-settled raise-or-waive rule, which bars issues not timely presented to the trial court from being raised for the first time on appeal. The court acknowledged the narrow exception recognized in State v. Moten, 64 A.3d 1232 (R.I. 2013), which permits review when an intervening decision establishes a genuinely novel constitutional rule that counsel could not reasonably have known at the time of trial.
The court held that Smith v. Arizona did not qualify as such a novel rule. Vasquez himself had explicitly invoked Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), in his motion to strike — the very same cases that underpin the surrogate-testimony prohibition. The court reasoned that Smith analyzed and built upon those same precedents (abrogating only Williams v. Illinois), and did not alter the contours of Melendez-Diaz or Bullcoming. Because the legal basis for the objection was available to counsel at the time of trial, the Moten exception did not apply.
The court noted that the area of law may remain somewhat unsettled and signaled that Lopez may warrant reexamination in a future case properly presenting the issue, but declined to revisit it on the record before it.
Key Takeaways
- Rhode Island’s raise-or-waive rule applies strictly to Confrontation Clause objections: failure to object during testimony — not merely after a recess — forfeits the issue on appeal.
- The narrow Moten exception for intervening novel constitutional rules does not apply where the defendant’s own trial argument already relied on the same precedents the new decision builds upon; Smith v. Arizona did not create a novel rule distinct from Melendez-Diaz and Bullcoming.
- The court left open whether its earlier decision in State v. Lopez — permitting supervisory DNA analyst testimony — remains good law in light of Smith v. Arizona, signaling that issue is ripe for a future properly preserved challenge.
- Defense counsel choosing not to cross-examine a DNA supervisor who reviewed but did not perform testing does so at their peril if no contemporaneous Confrontation Clause objection is lodged.
Why It Matters
This decision reinforces how strictly Rhode Island enforces its raise-or-waive doctrine even in constitutional cases, and clarifies the limits of the Moten exception: a defendant cannot bootstrap an untimely objection onto an intervening Supreme Court decision when the legal theory was already available at trial. Criminal defense attorneys handling cases involving forensic laboratory witnesses must lodge Confrontation Clause objections contemporaneously — waiting until after testimony concludes risks permanent waiver.
The court’s pointed suggestion that State v. Lopez may need revisiting in light of Smith v. Arizona is also significant for practitioners. A future defendant who timely objects to supervisory-analyst testimony could potentially obtain a different result, making this opinion as noteworthy for what it leaves unanswered as for what it decides.