Opinion
C.A. PM-16-0386
09-19-2016
MARIANO JIMENEZ v. STATE OF RHODE ISLAND
For Plaintiff: Mark B. Laroche, Esq. For Defendant: Jeanine McConaghy, Esq.
(P1/00-2878 AG)
For Plaintiff: Mark B. Laroche, Esq.
For Defendant: Jeanine McConaghy, Esq.
DECISION
KRAUSE, J.
In this postconviction relief application, petitioner Mariano Jimenez says that his trial attorney inadequately represented him sixteen years ago, before and during a jury trial which resulted in his conviction for first degree murder. This Court denied Jimenez' motion for a new trial on December 8, 2000, and the Supreme Court rejected his appeal and has affirmed his conviction. State v. Jimenez, 882 A.2d 549 (R.I. 2005).
At a July 7, 2016 hearing on the petitioner's application for postconviction relief (PCR), both the petitioner and trial counsel, John Ruginski, testified. No other witnesses were presented. At the conclusion of those proceedings, the parties agreed to submit the matter to the Court for decision based upon the pleadings and the record, without oral argument or further hearing. PCR Tr. at 154. For the reasons set forth herein, this Court finds the petitioner's PCR application meritless.
The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by the Rhode Island Supreme Court. LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987). 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. Heath v. Vose, 747 A.2d 475, 478 (R.I. 2000). A Strickland claim presents a two-part analysis. First, the petitioner must demonstrate that counsel's performance was deficient. That test 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).
The Sixth Amendment standard for effective assistance of counsel, however, is "very forgiving, " United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)), and "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Hughes v. State, 656 A.2d 971, 972 (R.I. 1995) ("[A] defendant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and sound trial strategy."); Bell v. State, 71 A.3d 458, 461 (R.I. 2013) ("(A)pplicants seeking postconviction relief due to ineffective assistance of counsel are saddled with a heavy burden, in that there exists a strong presumption [recognized by this Court] that an attorney's performance falls within the range of reasonable professional assistance and sound strategy * * *." Rice, 38 A.3d at 17 (quoting Ouimette v. State, 785 A.2d 1132, 1138-39 (R.I. 2001)) (internal quotation marks omitted).
Even if the petitioner can satisfy the first part of the Strickland test, he must still overcome a second hurdle by demonstrating that his attorney's deficient performance was prejudicial. By that yardstick, 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).
Ordinarily, tactical decisions by trial attorneys do not, even if hindsight proves the strategy unwise, amount to defective representation. Linde v. State, 78 A.3d 738, 747 (R.I. 2013). "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). "Thus, a choice between trial tactics, which appears unwise only in hindsight, does not constitute constitutionally-deficient representation under the reasonably competent assistance standard." United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978);
* * *
Jimenez alleges that trial counsel mishandled his self-defense and diminished capacity claims. He also asserts that counsel neglected to secure a lesser, second degree murder instruction, as well as an accident instruction. He further maintains that trial counsel failed to discuss the case with him, did not tell him of the state's disposition offer until just before trial commenced, and neither alerted him that he would have to testify nor prepared him to testify at the trial. He is mistaken on all counts.
Jimenez' complaints that trial counsel misjudged his self-defense hypothesis and failed to obtain second degree murder and accident instructions rest entirely upon accepting his professed version of events which he says led to the shooting of the decedent, Manuel Clemente. The jurors, as well as this Court at Jimenez' hearing on a new trial motion, have rejected his self-serving explications. See State v. Mattatall, 603 A.2d 1098, 1109 (R.I. 1992) (noting that the factfinders are not only free to reject the self-serving stories of vitally interested defendants, they may further conclude, instead, that the opposite of what they say is actually the truth); accord State v. Smith, 39 A.3d 669, 674 (R.I. 2012).
At trial and at the PCR hearing, Jimenez testified that the antagonism started during a social gathering in an apartment where, he claims, Clemente and a nameless friend of Clemente's started an argument with him. Heated words then prompted a physical altercation. Jimenez said that Clemente and his friend approached him menacingly and that one of them struck him with a bottle. To defend himself, he pulled out his concealed semi-automatic handgun and fired an errant shot, which struck no one.
Dania Martinez, Clemente's former girlfriend, testified at trial that she pushed Jimenez' arm aside so that he would not shoot anyone. Trial Tr. at 65.
The scuffle then moved to what Jimenez claims was an unlit hallway, where he and Clemente grappled, Jimenez getting the worst of it, he says. According to Jimenez, Clemente's companion had disappeared. Although he saw no weapon in Clemente's hands, PCR Tr. at 84-85, he tried to shoot Clemente anyway, but the gun jammed. Eventually, Clemente separated himself from Jimenez, who said at both the trial and at the PCR hearing that Clemente turned his back on him, started down the stairs, and, as he was leaving, yelled to Jimenez that he would return and kill him. As Clemente was leaving, Jimenez said that when he tried to clear his pistol, it accidentally discharged, fatally shooting Clemente in the back of his neck as he retreated down the staircase.
In denying Jimenez' motion for a new trial, this Court flatly rejected Jimenez' dissembling version of events, finding him "not at all credible." Trial Tr. at 245. The Court found, instead, that the trustworthy and reliable evidence reflected that Jimenez and Clemente, who was unaccompanied by anyone else in the apartment, were the only ones arguing, that no blows were exchanged before or after Jimenez drew his weapon, and that Jimenez was never hit by a bottle.
The Court further found that Jimenez' claim-- that he had been attacked by Clemente and another man was--"flat out prevarication." Id. at 249. The Court also rejected Jimenez' claim that the hallway was unlit. The Court accepted, as wholly credible, the testimony of Yvette Mendez, an upstairs resident in the apartment house who witnessed the hallway altercation. Assessing her testimony, this Court said:
"The state's key witness was, as Mr. Ruginski indicates, Yvette Mendez. She was an upstairs resident in the apartment building. She had absolutely no interest in the outcome of this case. She was not in any way connected to the defendant or the others who were present that night. She was a completely disinterested witness who simply and plainly recounted what she clearly observed from her vantage point on the landing above the hallway. The credible evidence, in my view, was that the landing and the hallway were well-illuminated. Miss Mendez says she saw the defendant and Mr. Clemente, who was being held down by the defendant, and she heard the defendant yell that he was going to kill Clemente. Clemente, she said, was bent over and not struggling at all. Indeed, because of Clemente's bent posture, she thought he had already been shot or seriously injured. She did not see the defendant with a weapon at that point, but she distinctly heard the defendant say to Clemente, "I'm going to kill you." She then saw Clemente free himself and start downstairs. At that point she did see the defendant with a handgun. She said he pointed it at Clemente and that the defendant ran down the stairs after Clemente and, of course, then she heard the gunshot.
"From her window she saw the defendant crossing the street, and the defendant still had the gun in his hand. Miss Mendez' testimony was straightforward, unvarnished, and unembellished. In sum, she was entirely credible. On her testimony alone, the verdict of guilty of first degree murder would have been warranted." Trial Tr. at 247-48.
This Court renews those findings, together with all of the other findings it recounted when it denied Jimenez' new trial motion. To the extent that Jimenez has repeated his version of the events and expanded them at the PCR hearing, the Court again finds them unworthy of belief.
In his direct appeal, Jimenez did not raise a claim relating to the sufficiency of the evidence, and the Supreme Court did not address it. The Court did, however, expressly note that Jimenez' claims were antithetical to Yvette Mendez' testimony. Jimenez, 882 A.2d at 551 n.4.
Accordingly, Jimenez' contentions that trial counsel fumbled a self-defense claim, as well as his contention that counsel failed to obtain a second degree murder instruction, are entirely misguided. No other assailant was in the apartment or lurking in the well-lit hallway; and the credible evidence, as recounted by Yvette Mendez, reflects that Jimenez chased Clemente down the stairs, shouted that he was going to kill him, and then shot him in the back of his neck while he retreated from the premises. In short, there existed no imminent threat of death or great bodily harm from Clemente (or anyone else in the hallway), and a self-defense theory with the use of deadly force evaporated once the scuffle had moved from the confines of the apartment to the outer hallway. State v. DiChristofaro, 848 A.2d 1127, 1130 (R.I. 2004) (holding that a self-defense instruction is not available "when there is no evidence on which a jury could find that the defendant acted in self-defense"); State v. Linde, 876 A.2d 1115, 1130 (R.I. 2005) (same).
Moreover, as Mr. Ruginski acknowledged at the PCR hearing, it was, indeed, unworkable to espouse an accidental shooting, which implies an unintentional act, while, at the same time, alternatively embracing a theory of self-defense, which acknowledges affirmative, purposeful and otherwise criminal conduct to repel perceived harm. State v. Pineda, 13 A.3d 623, 632 (R.I. 2011) ("Self-defense is not merely a denial or contradiction of evidence offered by the state * * *. Rather, it is an admission of the prohibited conduct coupled with a claim that the surrounding facts or circumstances exempt the accused from liability [, therefore a] 'justification for admitted conduct.'") (quoting State v. Grubb, 111 Ohio App.3d 277, 282, 675 N.E.2d 1353, 1356 (1996) and State v. Poole, 33 Ohio St.2d 18, 294 N.E.2d 888, 889 (1973)). "Essentially, the defendant must assert a hypothesis that encompasses the entirety of the charged crime[.]" Pineda, 13 A.3d at 632. In the context of this case, the two theories were simply incompatible with each other, as Mr. Ruginski conceded at the PCR hearing; and, in the end, as illustrated by the colloquy between the Court and Mr. Ruginski at the PCR hearing, he opted for an accident defense rather than a self-defense hypothesis.
Trial counsel also pursued that defense at the hearing on the motion for a new trial, arguing that "the shooting outside was an accident[.]" Trial Tr. at 243.
EXAMINATION BY THE COURT:
"Q. Do you recall, Mr. Ruginski, that the defendant testified, among other things, at trial that the gun had malfunctioned in some fashion?
"A. That's correct.
"Q. And that when it finally discharged, he espoused an explanation essentially of accident.
"A. That's correct.
"Q. And I take it that that was part of your defense in this case, was this was an accidental shooting, not just simply self-defense.
"A. That's correct, Judge.
"Q. As between the two theories of defense, in your estimation, in preparation for the trial, which was the more viable defense, the defense of accidental shooting or the defense of self-defense, given the factual scenario that Clemente was on his way out of the apartment with his back to the defendant?
"A. I believe when I started preparing, Judge, the self-defense was basically from when he shot the gun inside the apartment, and I was doubtful that it may have worked, even though I could weave it both together because of the two individuals, with the self-defense for the shooting outside. And then when he basically insisted that the gun jammed and that he didn't mean to shoot him, it was a mistake, I had to reconcile, well, I'll have to argue about inside. Because I remember I tried to get the self-defense instruction for the outside, in the hallway, and Your Honor cited to me, when we had a conference, that, you know, we're not going -- they don't recognize the imperfect self-defense in this state, and basically I agreed with you.
"So I had to kind of reconcile -- I mean, it was a quandary, one inside, the shooting, then I had the shooting outside, which he said basically was a mistake. And that's -- I believe I had actually argued that to the jury when I tried to put everything together, although it was -- it was a quandary because of the two separate -- the two separate shootings.
"Q. But the shooting that occurred in the apartment was a harmless shot.
"A. That's correct. That's correct.
"Q. And the shooting in the hallway, your client testified was an accident.
"A. That's correct.
"Q. And I take it that was the theory you had to go with in the hallway.
"A. Yes." PCR Tr. at 147-48.
* * *
Jimenez' complaint that trial counsel failed to explore an accident instruction is of no moment. On two separate occasions the Court expressly admonished the jury that it could not convict the defendant of murder if the shooting was the result of a mistake or accident or, for that matter, any other innocent reason. Trial Tr. at 188, 189. The Supreme Court has held that such an instruction was an adequate reference to a defense of accident. State v. Fry, 130 A.3d 812, 823 (R.I. 2016); State v. Amado, 574 A.2d 134 (R.I. 1989).
At trial and at the PCR hearing, Jimenez claimed that the shooting was accidental or "unexpected, " as well as a "mistake." PCR Tr. at 114, Trial Tr. at 159, 160.
In an inconsistent, shifting rebuke, Jimenez criticizes trial counsel for offering a diminished capacity-intoxication defense (Second PCR Application at 12, ¶ 24), while at the same time essentially faulting him for not scripting better responses during his testimony to reflect a greater level of intoxication in order to prop up the diminished capacity defense. Id. at 13, ¶¶ g, i. (Jimenez makes a similar complaint in his memorandum about his accident testimony.)
Mr. Ruginski acknowledged at the PCR hearing that although Jimenez had told him that he had been drinking all day (only beer, according to Jimenez at the PCR hearing), he was nonetheless able to recall and describe his activities during the day and that evening with specificity (conduct which the Supreme Court would later characterize as "rational and purposeful behavior, " Jimenez, 882 A.2d at 556). At trial, Jimenez testified as to the events - at least as he professed they had occurred (and as he had recounted them to trial counsel) -including his beer consumption throughout the day. He said that notwithstanding the beer he had consumed, the next day "when I woke up . . . I remember[ed] everything." Trial Tr. 152. At trial, Jimenez recounted his conduct and his measured steps throughout the day and evening, all of which, in this Court's and the Supreme Court's views, were inconsistent with a finding of diminished capacity. Jimenez, 882 A.2d at 557.
Jimenez says that trial counsel should have instructed him to skew his testimony to portray himself as having been much more intoxicated than his testimony reflected. Jimenez testified that Mr. Ruginski had instructed him "to tell what happened." PCR Tr. at 38. At the PCR hearing, Mr. Ruginski said that he had prepared Jimenez to testify, that he had told him what he had to say, how to say it, and how to comport himself before the jury and with the prosecutor. PCR Tr. at 145.
At trial, Jimenez testified that he was feeling "very comfortable, " but not acting normally or like himself, and that he was "drunk, something like that." Jimenez, 882 A.2d at 555.
Trial counsel properly fulfilled his obligations, and it is disingenuous, in hindsight, to criticize him for not encouraging Jimenez to decorate his testimony with untrustworthy installments to fit an illusory theory. If Jimenez' testimony was insufficient to develop self-defense and/or diminished capacity defenses, it was because the facts were inadequate, not because his attorney's efforts were deficient. Jimenez additionally alleges that trial counsel did not discuss the case with him. He further says that Mr. Ruginski never advised him of a proposed disposition until the day of trial and wasn't told until the trial was under way that he would be testifying in the case. This Court rejects those assertions and finds them entirely implausible. The Court fully credits Mr. Ruginski's testimony that long before the commencement of trial, and on more than one occasion, he discussed the merits of the case with Jimenez and that he had also advised him several times that he would probably have to testify: "I told him a number of times he was probably going to have to testify. I would prefer that he not have to testify, but that deal with the self-defense issue, the assault issue, and the fact that the man was running away or running downstairs, it was an issue." PCR Tr. at 139. Indeed, advocating defenses such as diminished capacity, self-defense, or accident would have been wholly impractical in this case without his client's testimony.
Petitioner also criticizes Mr. Ruginski for allegedly failing to investigate the case. No credible evidence was adduced at the PCR hearing which in any way supports such a claim. Mr. Ruginski agreed that he had not visited the scene of the shooting, but personally viewing the area would not have assisted him. A careful diagram had been prepared (Trial Exhibit 9), and a photograph of the decedent lying at the bottom of the stairwell adequately depicted the scene. Mr. Ruginski testified that he had discussed the case thoroughly with his client on more than one occasion, that he had reviewed the discovery materials, that he had studied the witness statements, and had spoken to witnesses. The petitioner's criticism of trial counsel in this regard is entirely baseless.
Moreover, Mr. Ruginski knew that he would have to deal with the statement which Jimenez had given to the police. Jimenez would have to explain, if he somehow could, why, immediately after the shooting, he had purposely discarded the gun (after first removing its magazine, which he later pitched from a taxicab window), thereby suspiciously eliminating inspection of the only items which could have possibly supported his assertion that the gun had "accidently" misfired.
The statement was a two-page typed document, each page signed by Jimenez, which Providence Det. William Carroll had prepared in conjunction with his interview of Jimenez. Also included was a Miranda rights form executed by Jimenez. At trial and at the PCR hearing, Jimenez said that he had also provided the police with a handwritten statement, which he faults his trial attorney for not retrieving. He testified at trial and at the PCR hearing that he had never read the typed statement. In denying Jimenez' new trial motion, this Court rejected any notion that Jimenez was ignorant of the contents of that statement and fully credited Det. Carroll's contrary assertion. Trial Tr. at 246. The Court also accepts the state's assertion that there never was any handwritten statement, a specious claim which even Jimenez' present attorney has apparently found lacking and has abandoned. Petitioner's Memorandum at 13.
Jimenez' claim that Mr. Ruginski failed to counsel him with respect to a plea disposition until the day of trial is simply not credible. Mr. Ruginski, a veteran of twenty-four years in the criminal defense arena at the time of the trial, testified that he had advised Jimenez to accept the state's offer to resolve the case with a plea to second degree murder and serve thirty-five years of a fifty-year sentence. Indeed, he said that because of the apparent strength of the state's case, he had advised Jimenez more than once to accept that proposed disposition. He said that he also repeated that advice on the day of trial but was again rebuffed by his client.
Sixteen years later, Jimenez continues to quarrel with Mr. Ruginski's advice, reiterating at the PCR hearing that he never would have accepted the proposed disposition because thirty-five years was too long a sentence to serve. He based that decision, he said, on discussions with other prison inmates, who had advised him that a murder charge should result in no more than fifteen or twenty years to serve in jail. Trial counsel cannot be faulted for his client's reliance on jailhouse prattle by uninformed inmates.
Lastly, Jimenez upbraids his experienced appellate counsel from the Public Defender's Office "for not raising his right to a second degree [murder] instruction[]." PCR Application at 18. This imprecation is also meritless. It is firmly established that claims of ineffective assistance of counsel should be raised in applications for postconviction relief, not in direct appeals. State v. Page, 709 A.2d 1042, 1046-47 (R.I. 1998); State v. Tooher, 542 A.2d 1084, 1088 (R.I. 1988).
In any event, it is settled that appellate counsel '"need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal."' Page v. State, 995 A.2d 934, 943 (R.I. 2010) (quoting Chalk v. State, 949 A.2d 395, 399 (R.I. 2008)).
"This Court has further stated that, in order to satisfy both prongs of the Strickland analytical scheme with respect to a claim that counsel's omission of an issue constituted the ineffective assistance of appellate counsel, an applicant must demonstrate that the omitted issue was not only meritorious, but clearly stronger than those issues that actually were raised on appeal." Id. at 943-44 (quoting Chalk, 949 A.2d at 399) (internal quotation marks omitted).
As noted earlier, there was no basis to support a second degree murder instruction. Furthermore, trial counsel specifically eschewed that lesser option (Trial Tr. at 176-77), rather than risk a compromise verdict which would still have exposed his client to as much as a life sentence. Denigrating such strategic choices by trial counsel with the "distorting effects of hindsight, " is precisely what appellate courts have admonished us to avoid. Clarke, 552 A.2d at 1189 (quoting Strickland, 466 U.S. at 689); Linde, 78 A.3d at 747 ("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.'") (quoting Rivera, 58 A.3d at 181 and Rice, 38 A.3d at 17).
See People v. Dominguez, 331 Ill.App.3d 1006, 1014-15, 773 N.E.2d 1167, 1174 (2002): "Indeed, strategic decisions are virtually unchallengeable as long as the strategy was not so unsound that it failed to subject the State's case to any meaningful adversarial testing. People v. West, 187 Ill.2d 418, 432-33, 241 Ill.Dec. 535, 719 N.E.2d 664 (1999). *** [T]he decision of whether to submit an instruction on a lesser-included offense is typically considered to be one of trial strategy, which has no bearing on the competency of counsel. * * * Defendant's attorney may have strategized that it was better for the jury not to have the choice of the lesser-included offense in the hope that they would be more inclined to acquit * * *." (quoting People v. McIntosh, 305 Ill.App.3d 462, 471, 238 Ill.Dec. 789, 712 N.E.2d 893 (1999)).
In all, Jimenez has completely failed to present any evidence which overcomes his "prodigious burden" of demonstrating that even if his attorney's efforts were somehow substandard (and this Court expressly finds that they were not), the result would have been different. Evans v. Wall, 910 A.2d 801, 804 (R.I. 2006). A review of the record in this case leads this Court unreservedly to the same conclusion which the Supreme Court reached in Anderson v. State, 878 A.2d 1049, 1050 (R.I. 2005): "The conviction in this case was not a result of petitioner's attorney but, rather, the weight of the credible evidence against [him]."
The within application for postconviction relief is denied. Judgment shall enter in favor of the State of Rhode Island.