Opinion
C.A. WM-2014-0015
01-26-2015
HAROLD DREW v. STATE OF RHODE ISLAND
For Plaintiff: James T. McCormick, Esq. For Defendant: Stacey Veroni, Esq.
Washington County Superior Court
For Plaintiff: James T. McCormick, Esq.
For Defendant: Stacey Veroni, Esq.
DECISION
CLIFTON, J. JUSTICE/MAGISTRATE
Petitioner Harold Drew (Petitioner) filed the instant Application for Post-Conviction Relief pursuant to G.L. 1956 § 10-9.1.1 et seq. claiming that his convictions after a jury trial for murder, discharging a firearm while committing a crime of violence, and three counts of entering a dwelling with intent to commit a larceny therein must be vacated.
Petitioner advances that 1) the court erred by ordering a read back of too little testimony of the State's primary witness, and 2) his trial attorney was deficient in failing to perfect the record on that point for purposes of appeal. After considering the arguments presented, this Court is not persuaded by either claim.
In his Post-Conviction Memorandum, Petitioner wrote, "This Memorandum addresses the single issue which post-conviction counsel believes to be meritorious, that is, that the trial court erred by ordering a read back of too little of the testimony of the State's primary witness …, and that trial counsel was deficient in not perfecting the appellate record on this point." (Emphasis supplied.) Despite his statement that only a "single issue" is presented, the Court will treat these as two separate issues.
I
Facts and Travel
The facts underlying Petitioner's conviction from his criminal case were fully set forth in the Supreme Court's decision affirming his conviction. State v. Drew, 919 A.2d 397 (R.I. 2007). However, to the extent required, some of those facts will be referenced herein. Petitioner did not seek an evidentiary hearing on this Application. Instead, he submitted the case to the Court on his pleadings, his affidavit and his memorandum. Neither did the State seek an evidentiary hearing. The State, likewise, submitted the matter to the Court on their pleadings and memorandum.
During jury deliberation, the Court received a written request by the jury foreperson for a read back of some testimony. Specifically, the jury requested "Bobbie-Jo's testimony on direct, cross, and redirect as it relates to position of all individuals, Harold, Jack, Bobbie-Jo, at the time of the shot in relation to the pathway and William Reynolds Road."
The jury and the parties have used various ways of spelling Ms. Dumont's first name. Throughout this Decision, this Court will use the spelling Bobbie-Jo as used in the Opinion from the Supreme Court in State v. Drew, 919 A.2d 397 (R.I. 2007).
Here, in response to the jury request, the Court first ordered its court reporter to review her transcription record. After the court reporter isolated the portions of Bobbie-Jo Dumont's testimony responsive to the jury's request, the Court met with counsel to share the jury's request, to provide counsel with the opportunity to hear the proposed read back, and to allow counsel to be heard as to any objections they had as to what would be read by the court reporter. Tr. 1367. Counsel for the State did not have any objections or suggestions. Counsel for Petitioner informed the Court:
"It seems as if the question says that they would like Bobbie-Jo's testimony on direct, cross, and redirect as it relates to the position of all individuals, Harold, Jack, Bobbie-Jo, at the time of the shot in relation to the pathway and William Reynolds Road. I am interpreting that that they want the positions of the body, all, at the time of the shot and also in relation to the road. I think there should be more read back than what your Honor is planning to read back. We've reviewed the transcript in chambers. I have no problems with the portions that your Honor is going to read. I just think that more should be included, and I think the parts that are-that aren't included would actually have to do with all the positions, the positions of all the persons at the time of the shot, which I think is what the jury is looking for. In relation to the pathway and Williams Reynolds Road I think is an addendum. I think their question is that they want the positions of all the people at the time of the shot, as well as the relations-it relates to these people to the pathway and William Reynolds Road. So, that's my suggestion." Tr. 1367-68.
The Court did not accept Petitioner's trial counsel's interpretation of the jury's request. In ruling on trial counsel's request, the Court stated, "the Court doesn't have the ability to read the jury's mind; but as the Court reads the request, it interprets the request as the jury is asking for the testimony on direct examination, cross-examination, and redirect examination as it relates to the positions of the individuals at the time of the shooting in relationship to the pathway and to William Reynolds Road." Tr. 1369. Before providing the jury with the read back, the Court advised the parties that as there was no redirect or recross-examination of Bobbie-Jo Dumont on the subject matter requested by the jury, the read back would be limited to direct and cross-examination. Tr. 1369-70.
After reconvening in open court in the presence of Petitioner and the jury, the Court addressed the jury. "Your specific written request was Bobbie-Jo's testimony on direct, cross, and redirect as it relates to position of all individuals, Harold, Jack, Bobbie-Jo, at the time of, it says the shot, but the Court interprets that as the shooting, in relation to the pathway and William Reynolds Road. Is that your request, Madam Forelady?" The Foreperson responded, "Yes." Tr. 1370-71. Following the read back by the court reporter, the Court advised the entire jury, "Ladies and gentlemen, that is the portion of the direct and cross-examination as the Court interprets your question to the Court. If you are not satisfied that the Court has ordered the court reporter to read back the portions that you believe you are asking for, simply communicate again with the Court in writing and we'll endeavor to provide that testimony to you." Tr. 1371. No further request from the jury was received.
Nevertheless, in his Post-Conviction Memorandum, Petitioner argues that "the read back requested by the jury clearly addressed the extensively argued and hotly contested issue of whether the positions of the three individuals present at the shooting supported the State's theory that the shooter was taller than the victim and shooting downward, or whether it supported the defense position that the shooter was shorter than the victim and shooting upward." Pet'r's Mem. 3.
II
Analysis
Court Erred by Ordering a Read Back of too Little Testimony of the State's Primary Witness
There is no official record made or available of exactly what testimony was read back to the jury by the court reporter. Petitioner, nonetheless, included in his Memorandum his recollection of what was read back in an "Affidavit" (Pet'r's Ex. 3) he submitted in his motion seeking to supplement the trial record, during his appeal to the Supreme Court. Pet'r's Ex. 3. The part of the trial testimony Petitioner recalled being read back ("from p. 637, question 4, through p. 638, question 11, " Pet'r's Ex. 3, paragraph 8). Noticeably, Petitioner only points to the direct examination of Bobbie-Jo Dumont. (Pet'r's Ex. 6.) This effort on Petitioner's part is not only his self-serving attempt to bolster his arguments; his so-called recollection is also in direct conflict with what the record does reflect. The trial record clearly shows that after receiving the jury's request, the Court instructed the court reporter to read back to the jury the part of "direct [and], cross–examination" of Bobbie-Jo Dumont the jury had specifically requested. Tr. 1371.
Petitioner argues that based upon the "luxury of time and the benefit of hindsight, " what should have been read to the jury is:
"I think the parts that are-that aren't included would actually have to do with all the positions, the positions of all the persons at the time of the shot, which I think is what the jury is looking for. In relation to the pathway and Williams Reynolds Road I think is an addendum. I think their question is that they want the positions of all the people at the time of the shot, as well as the relations-it relates to these people to the pathway and William Reynolds Road." Tr. 1368.
He further suggest that when those portions are read at a "moderate pace, in question and answer format, " (Pet'r's Mem. 4) it took slightly longer than the record reflects the jury was in the court room hearing the read back and the court's additional instructions. Pet'r's Ex. 1, 1370-71.
In his Post-Conviction Memorandum, Petitioner referenced the attempt by appellate counsel to supplement the trial record while the conviction was on appeal. Petitioner, here again relying primarily on State v. Dame, 488 A.2d 418 (R.I. 1985), argues here that read back that omits testimony tending to support a claim of innocence requires reversal of a conviction. However, the facts in this matter are distinguishable from the facts in Dame. Unlike in Dame, an arson trial, where the trial justice received a request from the jury concerning an expert witness's trial testimony concerning the approximate time the fire started, and defense counsel requested that the court order a read back of both the direct and cross-examination on the point, not only did the trial justice not instruct the court reporter to provide a read back, the trial justice summarized to the jury, from her trial notes, only what the witness testified to on direct examination. Id. at 422. The Supreme Court held that the court, by providing only the summary of the direct examination, was required to grant a new trial. Id. at 424. Here, this Court did have the court reporter provide the read back on both direct and cross-examination as requested by the jury. This Court did not summarize from its own notes only the direct examination of Bobbie-Jo Dumont.
Underinclusion of testimony during a jury-requested read back has been further litigated here in Rhode Island as cited by Petitioner. State v. Pierce, 689 A.2d 1030 (R.I. 1997). In Pierce, the defendant was charged with a number of counts of first degree child molestation. The State was therefore required to prove that the act(s) constituting the crimes had occurred before the child victim had attained the age of thirteen. During the cross-examination of the child victim, inconsistencies as to when the child said the criminal acts took place were presented to the jury. During its deliberations, the jury sent two clear distinct questions:
"The first [question] is 'Count 2, {child victim's} statement. When did sexual intercourse actually start happening, first time vaginal intercourse? The second note is 'Clarification of Count 2. Are we to consider (a) only the period September 1, '89 to June 30, 1990; or (b) up to her 14th birthday, that is, up to March 31, 1991?'" Pierce, 689 A.2d at 1035.
In response to the first question, the court instructed the court reporter to read back only portions of the child victim's testimony omitting reading back parts of the cross-examination which included the dates of the alleged acts. After trial counsel voiced his objection, the court ruled because the child victim testified her memory about the events were "blurred so she wasn't giving any dates, and I didn't want to have the jury rehashing it." Id. The Supreme Court held the jury's question "went directly to the question of whether intercourse had occurred before [child victim's] fourteenth birthday" and the defendant's guilt or innocence of the charge in Count 2. Id.
As in Pierce, here a clear request was made by the jury. The jury's note requested a read back of "Bobbie-Jo's testimony on direct, cross, and redirect as it relates to the position of all individuals, Harold, Jack, Bobbie-Jo, at the time of the shot in relation to the pathway and William Reynolds Road." Although Petitioner's trial counsel suggested that more testimony should be provided, he agreed with what the Court ordered. Lastly, there was no indication by the jury that the testimony that was read back to them was not responsive to their request.
In State v. Dumas, 835 A.2d 438 (R.I. 2003), upon receiving a note from the jury and clarification by the court as to what precisely the jury was requesting, the court read back only a portion of a witness's testimony on direct. On appeal, the defendant argued that in addition to the direct examination, the court should have ordered the read back of the witness testimony on cross-examination. The Supreme Court disagreed, finding the trial justice committed, at most, harmless error, as the particular testimony on cross-examination did not undermine the witness's testimony on direct examination. Id. at 442-44. Again, here, as acknowledged by trial counsel, "I have no problems with the portions that your Honor is going to read." Tr. 1368. That portion contained both direct and cross-examination of Bobbie-Jo Dumont on the subject area requested by the jury.
"The decision whether to read back to the jury a particular witness's trial testimony-in response to a jury request-'is committed to the sound discretion of the trial justice.' State v. Dumas, 835 A.2d 438, 443 (R.I. 2003)(citing State v. Pierce, 689 A.2d 1030, 1035 (R.I. 1997) and State v. Dame, 488 A.2d 418, 422 (R.I. 1985)) [other cite omitted.] The trial justice generally should honor such a request, 'especially when it is practically possible to do so without consuming an inordinate amount of time and without misleading the jury.' Dumas, 835 A.2d at 443; see State v. Haigh, 666 A.2d 803, 804 (R.I. 1995). A read-back must be fair and impartial and must not invade the province of the jury to determine the facts of the case. Pierce, 689 A.2d at 1035." State v. Ros, 973 A.2d 1148, 1176 (R.I. 2009).
Here, the Court "tailored [the response] to the request." Ros, 973 A.2d at 1176 (citing Dumas, 835 A.2d at 443). Petitioner's argument here repeats the same arguments previously made to the Court. During closing argument from his "skillful and impassioned trial counsel" (Pet'r's Mem. 5), he argued that Bobbie-Jo Dumont was in fact the shooter, not Petitioner. Presumably the jury considered that argument during its deliberations. However, after the jury considered the entire testimony of Bobbie-Jo Dumont, and the impassioned closing argument from counsel, the jury was clear in its request for a read back. The jury did not request a read back of the testimony Petitioner's counsel thought or suggested. Simply put, the jury was not persuaded by trial counsel's arguments. Other than Petitioner's recollection, there is nothing additionally presented to support his claim that the Court erred in ordering a read back of too little, and apparently unnecessary, testimony based on the lack of a follow up request from the jury.
At his trial, Petitioner's trial counsel strategically defended the charges on, at least, two complementary theories. Primarily, he proceeded on attacking the credibility of the State's primary witness, Bobbie-Jo Dumont, and a cellmate/former friend of Petitioner, William Reis. Secondly, he proceeded to attack the forensic evidence offered by the State. Given the testimonial evidence introduced at trial that exposed serious credibility issues were present of these two State's witnesses, that trial strategy was well within that expected of a reasonable, seasoned trial attorney, and objectively this Court cannot say that strategy was clearly wrong. Despite that trial strategy, the jury, by its verdict, ultimately resolved the issues of credibility of those two witnesses in favor of the State.
For all of the above reasons, the Court denies Petitioner's claim on this issue.
III
Standard of Review
Trial Attorney was Deficient in Failing to Perfect the Record on That Point for Purposes of Appeal
The starting place for this Court, when considering a claim for ineffective assistance of counsel, is the landmark decision, Strickland v. Washington, 466 U.S. 668 (1984), which was adopted by the Rhode Island Supreme Court in Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having a just result." Strickland, 466 U.S. at 686. The U.S. Supreme Court in Strickland approved a two-part test: (1) the counsel's performance was so deficient and the errors so serious that they violate a defendant's Sixth Amendment guaranty of counsel; and (2) that this deficient performance prejudiced his or her defense and deprived the defendant of his or her right to a fair trial. Brown, 534 A.2d at 182 (citing Strickland, 466 U.S. 668).
"The question of whether an attorney has failed to render reasonably effective assistance is a question of fact, which [Petitioner] bears the burden of proving." Crombe v. State, 607 A.2d 877, 877 (R.I. 1992) (citing Pope v. State, 440 A.2d 719, 723 (R.I. 1982)). Not only does petitioner carry the burden of proof, he has a "heavy burden" in doing so. Ouimette v. State, 785 A.2d 1132, 1139 (R.I. 2001) (citing Strickland, 466 U.S. 668).
Petitioner claims his trial attorney was deficient in not perfecting for purposes of his appeal what parts of the testimony the Court ordered read-back of the testimony of the State's primary witness Bobbie-Jo Dumont. Once again, as reflected in the transcript, during deliberations the jury asked the Court in writing to provide them with a read back of Bobbie-Jo Dumont's testimony on direct, cross and redirect as it relates to position of all individuals, Harold, Jack, Bobbie-Jo at the time of the shot in relation to the pathway and William Reynolds Road. Tr. at 1370.
Before the read back was given by the court reporter to the jury, the Court first conferred with trial counsel for Petitioner as well as counsel for the State seeking their input on how the Court should respond to the jury's request. Tr. 1367. During that conference, after the parties reviewed the jury's note and after hearing from counsel for Petitioner as well as from the State, the Court ordered the court reporter to read back Bobbie-Jo Dumont's testimony on direct and cross as there was no redirect as it related to position of all individuals, Harold, Jack, Bobbie-Jo at the time of the shot in relation to the pathway and William Reynolds Road. Tr. 1369. During the conference, trial counsel interpreted the jury's request differently than did the State and the Court. Trial counsel made his position clear on the record before the read back took place. Tr. 1367-68. Trial counsel argued what he thought the jury was asking for, "that they want the positions of the body, all, at the time of the shot and also in relation to the road." Tr. 1368. Later, after agreeing with what the Court was going to order to be read back, trial counsel went on to expand upon his argument. He argued:
"I just think that more should be included, and I think the parts that are-that aren't included would actually have to do with all the positions, the positions of all the persons at the time of the shot, which I think is what the jury is looking for. In relation to the pathway and William Reynolds Road . . . I think their question is that they want the positions of all the people at the time of the shot, as well as the relations-it relates to these people to the pathway and William Reynolds Road." Id.
After reconvening with the jury present, the Court, after reading the jury's request to them asked the jury foreperson if the jury was seeking "Bobbie-Jo's testimony on direct, cross, and redirect as it relates to position of all individuals, Harold, Jack, Bobbie-Jo, at the time of . . . the shooting, in relation to the pathway and William Reynolds. Road." The foreperson responded, "Yes." Tr. 1370-71. Following the read back by the court reporter, the Court advised the jury to inform the Court in writing if they were not satisfied that the portion read back addressed their written request. Tr. 1371. After resuming their deliberation but before the jury announced its verdict, there were no additional requests from the jury.
After hearing the verbal reply "Yes" by the foreperson to the question posed by the Court, it is reasonable to conclude that it became apparent to trial counsel that his interpretation of the question was wrong; he was asking that more testimony by read back than what was requested by the jury. Further, as noted previously, to assure the parties and the Court that the foreperson's response did not misstate or mischaracterize what the other eleven jurors were seeking, the Court advised the entire jury, "[i]f you are not satisfied that the Court has ordered the court reporter to read back the portions that you believe you are asking for, simply communicate again with the Court in writing and we'll endeavor to provide that testimony to you." Tr. 1371.
Petitioner now postulates had trial counsel
"elucidate[d] his objection to the read back, and in his failure to request that the court place on the record those questions and answers which were read back…Appellate counsel would have been able to submit the issue to the Supreme Court for its review." He continues, "[b]ased upon the likelihood that the read back omitted testimony which would have supported the defense theory that Bobby (sic) Jo fired the fatal shot, had the Supreme Court decided that issue consistently with Dame, Pierce and Dumas, the likely result would have been a Supreme Court decision that the omitted testimony would have materially supported Defendant's theory, resulting in the vacating of his conviction and remand for a new trial." Pet'r's Mem. 5.
This, he argues, deprived Petitioner of his best chance for appellate review, thus satisfying the second prong of Strickland.
Petitioner hypothesizes, "that the read back omitted testimony which would have supported the defense theory that Bobby (sic) Jo fired the fatal shot." In doing so, Petitioner totally ignores the request from the jury and the obligation of the Court in this context. In complying with a request for read-back, "A read-back must be fair and impartial and must not invade the province of the jury to determine the facts of the case. Pierce, 689 A.2d at 1035." Ros, 973 A.2d at 1176. The jury's request here was limited and specific; it was not a general request for all of Bobbie-Jo Dumont's testimony, pertaining to the shooting, on both direct and cross-examination.
Had this Court granted defense counsel's request, then more testimony would have been given to the jury than they requested.
"It seems as if the question says that they would like Bobbie-Jo's testimony on direct, cross, and redirect as it relates to the position of all individuals, Harold, Jack, Bobbie-Jo, at the time of the shot in relation to the pathway and William Reynolds Road. I am interpreting that that they want the positions of the body, all, at the time of the shot and also in relation to the road . . . and I think the parts that are-that aren't included would actually have to do with all the positions, the positions of all the persons at the time of the shot, which I think is what the jury is looking for. In relation to the pathway and Williams Reynolds Road I think is an addendum. I think their question is that they want the positions of all the people at the time of the shot, as well as the relations-it relates to these people to the pathway and William Reynolds Road."
As he acknowledges, there are no Rhode Island cases on this issue. However, Petitioner offers decisions from other jurisdictions that have addressed and ruled on similar issues. In Commonwealth v. Juliano, 86 Mass.App.Ct. 1114, 17 N.E.3d 1119 (Table), 2014 WL 4957979 (Mass.App.Ct.), amongst other errors claimed, was that defendant's counsel failed to object to errors allegedly committed during trial. Juliano argued this constituted ineffective assistance of counsel. The Appellate Court disagreed:
In two of the four cases cited and supplied by Petitioner, Commonwealth v. Juliano, 86 Mass.App.Ct. 1114, 17 N.E.3d 1119 (Table), 2014 WL 4957979 (Mass.App.Ct.) and People of the State of Illinois v. Argueta, 2014 WL 1910608 (Ill.App. 1 Dist.) are "Unpublished Disposition" or "Unpublished Opinion(s)" that both contain explicit caveats. The "Opinion" in Juliano, pursuant to Massachusetts Appeal Court rule 1:28, is that its "summary decision . . . may be cited for its persuasive value but, . . . not as binding precedent" and the "Order" in Argueta, under Illinois Supreme Court Rule 23 "may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
"We reject the defendant's contention that his attorney's failure to object to these various claimed errors amounts to ineffective assistance of counsel. '[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.'" Juliano, 2014 WL 4957979, at * 3. (quoting Commonwealth v. Zinser, 446 Mass. 807, 811 (2006); quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002)).
In another case relied upon by Petitioner, a sentencing hearing took place with an unrecorded sidebar discussion between the court, the prosecutor and defense counsel "to refresh [the court's] memory" on a disputed factual point. State of Ohio v. Williams, 2014 WL 1513846 (Ohio App. 8 Dist.)(Apr. 17, 2014). After being sentenced, defendant-appellant argued three claims on appeal. The first and third claims are of no moment in this matter. Defendant-appellant argued as his second claim that he was deprived his Sixth Amendment right to counsel due to ineffective assistance in failing to preserve issues from the nonrecorded sidebar for appeal. His argument was rejected by the Appellate Court. In doing so, it is noteworthy that the Court wrote, "Williams was also represented by an experienced criminal defense attorney who advocated for the imposition of community control sanctions, rather than prison. The unrecorded sidebar was had when the court stated that it needed to 'refresh its memory' about whether Williams had a gun during the incident. Given the above, we find that any error in not recording the sidebar conference was harmless. In light of the above, the second assignment of error is overruled." State of Ohio v. Williams, 2014 WL 1513846, at * 4-5.
In the last case cited by Petitioner, the trial court ruled, during the post-conviction proceeding, "had trial counsel moved [during trial] to suppress the custodial statement for violation of Appellant's Sixth Amendment right to counsel it would have been granted." Sparkman v. State of Arkansas, 373 Ark. 45, 50, 281 S.W.3d 277, 281-82 (2008). Notwithstanding that finding, post-conviction relief was denied upon the alleged failure to meet the first prong of Strickland. The Arkansas Supreme Court reversed the ruling that trial counsel's failure in seeking to suppress the custodial statement taken after counsel was appointed to represent defendant/appellant was deficient. Here, Petitioner is claiming the failure to preserve the record for review deprived him of his "best chance for appellate relief." Pet'r's Mem. 5.
Petitioner, in his Memorandum, wrote that he generally had a "skillful and impassioned trial counsel." Id. This statement hardly supports Petitioner's obligation to prove "that counsel's performance was deficient . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment, Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Brown, 534 A.2d at 182 (citing Strickland, 466 U.S. at 687).
As noted earlier, Petitioner did not seek an evidentiary hearing on this application. Instead, he submitted the case to the Court on his pleadings, his affidavit and his memorandum. No evidence has been offered by Petitioner's former trial counsel as to his thinking or decisions at the time of trial. Simply put, without Petitioner offering some evidence of trial counsel's reason(s) for not further objecting to what testimony was read back and his failure to request that the Court place on the record those questions and answers which were read back hampers this Court's ability to find for Petitioner on this ground. An Appellate Court has noted, "We keep in mind that an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, n.5, 210 770 N.E.2d 440, 446 (Mass. 2002). For this reason alone, this Court is unable to determine if "counsel's assistance was reasonable considering all the circumstances." Brown, 534 A.2d at 182 (citing Strickland, 466 U.S. at 688).
IV
Conclusion
For all of the reasons contained herein, this Court denies the Application for Post-Conviction Relief. Judgment shall enter for the State. Counsel for the State shall provide an order consistent with this Decision.