Opinion
PM-2017-1034
02-14-2023
MIGUEL DAVIS v. STATE OF RHODE ISLAND
For Plaintiff: James T. McCormick, Esq. For Defendant: John M. Moreira, Esq.
For Plaintiff: James T. McCormick, Esq.
For Defendant: John M. Moreira, Esq.
DECISION
KRAUSE, J.
In this postconviction-relief application, Miguel Davis blames his trial attorney for the two consecutive life sentences he must serve for committing first degree murder. He says that his trial attorney's efforts were constitutionally flawed because he failed to (1) investigate the event and interview witnesses who would have provided exculpatory evidence; (2) confer with him and prepare him for trial; (3) investigate purported prosecutorial misconduct before the grand jury; and (4) preserve identification issues for appeal.
The Court disagrees.
Background
After a February 2013 jury trial, Davis was convicted of the first-degree murder of Dominique Gay, discharging a firearm during a crime of violence resulting in Gay's death, and unlawfully carrying a pistol without a license. As mandated by statute, this Court sentenced Davis to consecutive life terms on the first two charges and ordered him to serve a concurrent ten-year term for unlawfully carrying the firearm. See G.L. 1956 §§ 11-23-1 and -2; 11-47-3.2. The Court denied Davis's new trial motion on April 19, 2013, and his conviction has been affirmed. State v. Davis, 131 A.3d 679 (R.I. 2016). A full explication of the facts and circumstances surrounding the 2009 homicide is set forth in the Supreme Court's opinion. An abbreviated version will suffice here.
Davis and Gay had disliked each other for some years. That animosity essentially stemmed from amorous entanglements each man had with Crystal Dutra, the mother of Gay's child. Ultimately, their reciprocal resentment led to Gay's murder.
On March 20, 2009, Gay and two friends, Wilson Andujar and Dean Robinson, were walking in Providence when Andujar heard noise from the area of a nearby dumpster. When he looked, Andujar recognized Davis next to the dumpster. Davis wore a bandana which only covered his mouth and chin and a half-up black hoodie. Davis pointed a handgun at them and fired two shots, killing Gay.
Andujar and Robinson were unharmed and fled. Andujar testified that when he looked back, he saw Christopher Martinez, known by his nickname "Ucci," running behind Robinson. He said that Ucci also had a black hoodie, but nothing covered his face. Andujar was firm that Davis, not Ucci, was the shooter.
In the days following the shooting, Davis, on multiple occasions, told his friend Kevin Santiago that he had killed Gay, essentially describing it as an ambush. Corroborating Andujar's testimony, Davis told Santiago that he had hidden behind a dumpster until he saw Gay and then shot him. He also told Santiago that prior to the shooting, he had stolen some guns from a friend's family house, including a nine-millimeter handgun which he showed to Santiago. Although the State was unable to produce the murder weapon at trial, ballistic examination linked the shooting to that class of weapons.
At trial, Andujar was the only witness who identified Davis as the shooter. The State had also expected Robinson to identify Davis, but he invoked his Fifth Amendment privilege midtrial and refused to testify. Apparently satisfied with Santiago and Andujar's testimony, and that of Crystal Dutra, who provided the star-crossed jealousy motive for the murder, the State did not request that Robinson be immunized.
The State's confidence in that evidence was not misplaced, as reflected by the jury's verdict and this Court's subsequent denial of Davis's motion for a new trial. As this Court said at that hearing and referenced by the Supreme Court: "If Kevin Santiago's testimony was credible, there was no way Miguel Davis was going to avoid conviction in this case[,]" and when added to Dutra's testimony and Andujar's identification, "the evidence of guilt becomes overwhelming." Davis, 131 A.3d at 704. This Court found that testimony credible in 2019 and renews that sentiment here.
Strickland, et al.
The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984); accord, Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). Whether an attorney has failed to provide effective assistance is a factual question which a petitioner bears the "heavy burden" of proving. Rice v. State, 38 A.3d 9, 17 (R.I. 2012); Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (noting that Strickland presents a "high bar" to surmount). When reviewing a claim of ineffective assistance of counsel, the question is whether counsel's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686; Heath v. Vose, 747 A.2d 475, 478 (R.I. 2000).
A Strickland claim presents a two-part analysis. The petitioner must first demonstrate that his attorney's performance was deficient, which requires a showing that counsel made errors that were so serious that the attorney was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687; Powers v. State, 734 A.2d 508, 522 (R.I. 1999). Furthermore, a petitioner "must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and sound trial strategy." Hughes v. State, 656 A.2d 971, 972 (R.I. 1995); Strickland, 466 U.S. at 689.
Even if the petitioner can satisfy that initial step, he must also demonstrate that counsel's deficient performance was prejudicial. In other words, he is required to show that a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hazard v. State, 968 A.2d 886, 892 (R.I. 2009).
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The parties have filed memoranda and have agreed that the Court may consider trial counsel's affidavit as a substitute for his testimony. They have also agreed to forgo a hearing. Having reviewed those materials and the record of the case, the Court finds that the facts and legal contentions have been adequately presented and that further proceedings would not assist the Court.
Davis's four claims will be addressed seriatim. The first three need not detain the Court long.
Failure to Investigate and Interview Witnesses
Trial counsel has flatly rejected Davis's assertion that he failed to investigate the incident, and he recounts that he spent considerable time conferring with Davis, who failed to identify any possible witness who might assist his defense. Davis has entirely failed to carry his burden of proof, offering no evidence to support this barren claim or rebut counsel's declaration.
The State's discovery materials included a transcript of a March 20, 2009 police interview of Alisha Sousa, who said that from a nearby laundromat she had heard shots but had not seen the shooting. She simply recalled seeing someone in a dark hoodie running on Broad Street in the direction of Roger Williams Park. When shown a photospread which included the petitioner's picture, she selected someone else's photograph. Davis claims that counsel was derelict in not following that lead.
Davis's postconviction relief attorney engaged an investigator, who spoke with Ms. Sousa on March 22, 2022. She confirmed that she had not witnessed the shooting and that the individual she saw had been on Broad Street. No evidence at trial supported a theory that the shooter had been on Broad Street. He had emerged from behind a dumpster by Porter Street.
In any event, Andujar testified that even though Davis had covered his mouth and chin, he knew it was Davis, with whom he had shared middle school years as well as time at the Rhode Island Training School, who shot Gay. Just as importantly, Davis had bragged to Santiago that he had shot Gay, and this Court found Santiago's recitation of Davis's incriminating admission entirely credible. Their testimony, when coupled with that of Dutra, unquestionably foretold a guilty verdict. Davis, 131 A.3d at 704-05.
The Court agrees with the State that it is most likely that Sousa had glimpsed Ucci, whom the police eliminated as a suspect. They did not feel the need to review her recollection, and trial counsel cannot be faulted for having made that same determination. Retrospective criticism of his judgment is not at all warranted here. "As the Strickland Court cautioned, a reviewing court should strive 'to eliminate the distorting effects of hindsight.'" Clark v. Ellerthorpe, 552 A.2d 1186, 1189 (R.I. 1989) (quoting Strickland, 466 U.S. at 689); Linde v. State, 78 A.3d 738, 747 (R.I. 2013). See Rice, 38 A.3d at 17 ("This Court 'will not meticulously scrutinize an attorney's reasoned judgment or strategic maneuver in the context of a claim of ineffective assistance of counsel.'"). Id. (quoting Brennan, 764 A.2d at 173).
Failure to Prepare for trial
Davis's imprecation that his lawyer had not adequately prepared him for trial is baseless. Counsel recounts that he spent considerable time prepping him, and Davis offers no evidence which in any way negates that assertion. Davis also told counsel that he did not wish to testify at trial. Counsel carefully explored that option with him, and upon inquiry by the Court, Davis unequivocally said that he had no intention of testifying.
Trial counsel also related that he reviewed all of the evidence with Davis and that prior to trial brought him proposed dispositions which would have exposed him to markedly less incarceration than if he were to be convicted at trial. In every instance, including once in the middle of trial, Davis rejected counsel's recommendations. He even alerted Davis's mother to the proposed plea bargain to ensure that she, too, understood that her son could avoid significant penalties if he accepted the proposed disposition, but she concurred with her son's decision to decline it.
Based upon the record of this case, including the bail hearing over which this Court also presided, as well as defense counsel's exacting examination of all of the State's witnesses, along with his arguments to the Court and to the jury, this Court easily concludes that counsel defended his client at all proceedings with a high level of proficiency.
Grand Jury Irregularity
Davis's empty asseveration that the State engaged in prosecutorial misconduct before the grand jury has no legs whatsoever. Trial counsel is a veteran practitioner, completely familiar with the nature of grand jury proceedings and the proper manner and means by which they are to be conducted. He reviewed all of the witnesses's testimony, other grand jury materials, and the prosecutor's legal instructions to that independent body. He perceived no grand jury misconduct or irregularity by the State, and this Court is well satisfied that no prosecutorial overreaching occurred to secure the indictment.
Failure to Preserve Identification Issues for Appeal
First, Davis faults trial counsel for not pursuing a motion to suppress identification. This complaint gathers no traction either. Counsel was well aware that Andujar had known Davis when they were in middle school and later at the Training School. Further, he had closely examined Andujar at a bail hearing, and his identification of Davis then and at trial was steadfast.
Counsel's decision to dispense with a suppression hearing and repeat what had already been unsuccessful at a bail hearing was not a misstep. He effectively had already handed Andujar a script to study when he would be reexamined with similar questions at trial. To have pursued a redundant suppression motion and essentially replay the bail hearing would have been unwise.
Next, Davis laments that the jury did not receive an identification instruction warning them about the unreliability of eyewitness identification. He says that if trial counsel had presented scientific and professional studies which focus on the inexactness of eyewitness identification, he could have pursued an argument about the absence of such an identification instruction. He claims that this omission constituted ineffective assistance because it resulted in a waiver of his ability to pursue that issue on appeal. Davis, 131 A.3d at 693-94.
First, it must be borne in mind that trial counsel did request an identification instruction akin to the usual factors limned in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). See State v. Gatone, 698 A.2d 230, 236 (R.I. 1997). Historically, however, no identification had ever been mandated, and the Court declined to give one. Even though the "raise-or-waive" rule prevented Davis from pressing the issue on appeal, the Supreme Court nonetheless addressed it and expressed reticence to jettison thirty years of precedent.
For decades the Rhode Island Supreme Court had accorded trial judges wide discretion in deciding whether to offer an identification instruction and had never directed that one be given to a jury. State v. Andrade, 544 A.2d 1140, 1143 (R.I. 1988). As long as the jury was told that the state was required to prove beyond a reasonable doubt that the defendant was, in fact, the person who committed the offense, "a trial justice is not required to give specific instructions [on identity."] Andrade, 544 A.2d at 1143; State v. Desrosiers, 559 A.2d 641, 645-46 (R.I. 1989); State v. Maxie, 554 A.2d 1028 (R.I. 1989); State v. Gomes, 604 A.2d 1249, 1256 (R.I. 1992); State v. Payette, 557 A.2d 72, 73-74 (R.I. 1989) ("Hence it is established Rhode Island law that a specific jury instruction on identification is not mandatory and failure to give such an instruction is not reversible error [and] a general instruction is preferable on the rationale that a specific instruction may be construed to be partisan comment by the trial justice."). The Payette sentiment has been recently renewed. State v. Hampton-Boyd, 253 A.3d 418, 424 (R.I. 2021).
The Supreme Court concluded in Davis's appeal that "we do not believe this is an opportune time to reverse thirty years of precedent." Davis, 131 A.3d at 697. And although Davis observed that "the better practice would be for courts to provide the jury with more comprehensive instructions when eyewitness testimony is an issue," id. at 697, the following year, in State v. Fuentes, 162 A.3d 638 (R.I. 2017), it characterized that observation as "aspirational dictum," and reiterated that "Davis did not announce a new rule of law" mandating an identification instruction. Id. at 645 n.12.
It is inappropriate to criticize trial counsel for not having foreseen the potential frailties of eyewitness identification which, since Davis's trial ten years ago, have become better understood today. Providing "effective assistance of counsel does not involve the ability to accurately predict the future." Bell v. State, 71 A.3d 458, 462 (R.I. 2013). "The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms.'" Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690). Our Supreme Court echoed that principle in Barros v. State, 180 A.3d 823, 833 (R.I. 2018): "We would emphasize that, in evaluating an attorney's performance under Strickland, our approach is to look at the legal landscape and what was known to the attorney at the time at issue." (Emphasis in original text.)
Since an identification instruction was not even mandated at the time of Davis's trial (and still isn't), and because trial counsel did, in fact, request a Biggers instruction, he certainly cannot be charged with having rendered substandard assistance for not proposing a more expansive one.
The onus upon a petitioner in the postconviction arena, especially to prove prejudice, is a "prodigious burden," Evans v. Wall, 910 A.2d 801, 804 (R.I. 2006), and it is one that is '"highly demanding and heavy[.]"' Whitaker v. State, 199 A.3d 1021, 1027 (R.I. 2019) (citing Page v. State, 995 A.2d 934, 943 (R.I. 2010) and quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)). It is clear to this Court, as a front row observer at Davis's trial, that even if an identity instruction had been included in the Court's final charge, it would have had absolutely no impact on the jury's verdict and would not have changed the result of this case. Strickland, 466 U.S. at 694; Hazard, 968 A.2d at 892.
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Davis's application for postconviction relief is denied, and judgment shall enter in favor of the State of Rhode Island.