606 A.2d 986
No. 91-427-C.A.Supreme Court of Rhode Island.
April 24, 1992.
Appeal from the Superior Court, Newport County, Israel, J.
James E. O’Neil, Atty. Gen., Aaron Weisman, Sp. Asst. Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., for plaintiff.
Richard Casparian, Public Defender, Paula Rosin, Barbara Hurst, Asst. Public Defenders, for defendant.
PER CURIAM.
[1] This matter was before the Supreme Court pursuant to an order directing the defendant, Sean P. Riley, and the state to appear and show cause why the issues raised in this appeal should not be summarily decided. [2] The defendant had appealed from his conviction of second-degree sexual assault following a jury trial in Superior Court. [3] After reviewing the memoranda submitted by the parties and after hearing counsel for defendant and for the state in oral argument, we are of the opinion that cause has not been shown. [4] The defendant argues that the trial justice committed error when he admitted as an excited utterance under the hearsay exception a police officer’s testimony including statements made by the complaining witness. We conclude that under State v. Webster, 499 A.2d 749, 750 (R.I. 1985); State v. Crowhurst, 470 A.2d 1138, 1145 (R.I. 1984); and State v. Souza, 456 A.2d 775, 778 (R.I. 1983) the trial justice was fully justified in admitting the statements. [5] The defendant also argues that his constitutional right to due process was violated by the failure of the police to test the victim’s clothing for the presence of seminal fluid. Since defendant admitted that he masturbated on the victim but claimed it was consensual, such scientific tests would not have produced any exonerating evidence. [6] Finally the defendant claims that the trial justice erred in allowing the state to present a rebuttal witness after he had rested. We would point out that a trial justice’s determination as to the order in which witnesses testify will be disturbed by this court only if “it clearly appears that the discretion has been improperly exercised or that there has been an abuse thereof.” State v. Mathias, 423 A.2d 484, 487 (R.I. 1980). There is nothing in this record that would indicate an abuse of discretion. [7] For these reasons the defendant’s appeal is denied and dismissed, the judgment of conviction appealed from is affirmed, and the papers of the case are remanded to the Superior Court.Page 987