The Grand Jury charged Miguel Tebalan Rivera (Rivera) in a two-count Indictment: Count I, second-degree murder of Julio Perez (Perez), in violation of G.L. 1956 § 11-23-1; and Count II, committing a crime of violence while having in his possession a knife with a blade more than three inches long, in violation of G.L. 1956 § 11-47-59. This trial justice found Rivera guilty on both charges following a two-day, jury-waived trial. In that case, P1-2016-1271A, the Court sentenced Rivera on Count I to sixty years at the Adult Correctional Institutions, fifty to serve, the balance suspended with probation; and, on Count II, to a concurrent term of five years to serve. Rivera brings this application for postconviction relief asserting that he received ineffective assistance of counsel. For the reasons set forth herein, the Court grants the application and vacates the sentence and conviction.

Background and Travel

On December 23, 2015, Rivera appeared at a police substation yelling in Spanish that he had killed someone. He was very upset, hysterical. According to the police officers at the substation, he said something to the effect that they made him do it because they weren't giving him a job and that they did something to his family in Guatemala. Police officers accompanied him back to the scene of the crime where they discovered Perez's dead body lying on the kitchen floor having been stabbed multiple times with a large kitchen knife which they discovered on top of the refrigerator.

The police took Rivera to the police station to question him. Providence Police Detective Daniel O'Connell interviewed the Spanish speaking witness with the assistance of Patrolman Eduardo Curi who translated the questions into Spanish and Rivera's responses into English. The Court notes that rather than act as a true interpreter, Officer Curi often reported, "he said … or he is saying" when communicating to Det. O'Connell what Rivera had said.

After receiving his Miranda warnings at 9:35 p.m., Rivera had just begun to answer the officers' questions when he decided that he did not want to continue with the interview. The record reveals the following exchange:

Miranda v. Arizona, 384 U.S. 436 (1966).

At 9:36:27 p.m., less than a minute and a half into the interview, Rivera stated, "I don't want to talk nothing right now. No I don't want to talk nothing right now." The officers persisted.

Rivera repeated, "In reality, I don't want to talk right now … I don't want to talk nothing, nothing, nothing." The officers continued with the interview.

At 9:40:41 p.m., Rivera stated, "I don't want to talk. I prefer to be quiet. To contract a lawyer, and I will explain to the lawyer what happened."

At 9:41:05 p.m., when the officers asked if he had a lawyer, Rivera responded, "No I don't have a lawyer, but maybe you guys can grant me a lawyer, like it says in the instructions."

Six seconds later at 9:41:11 p.m., Rivera added, "It can be a social lawyer or one that I can pay."

The officers replied, "Of course. Of course[, ]" but it is clear that Det. O'Connell had no intention of honoring his request. He continued with the interview as though Rivera had not invoked his constitutional rights.

At 9:41:16 p.m., Rivera asked, "Do you understand me?" Detective O'Connell ignored him and continued.

At 9:41:34 p.m., Rivera persisted, "The issue is like I read in the paper, that if I talk, it will be against me, I can't do that."

Officer Curi clearly was uncomfortable and told Det. O'Connell, "He keeps saying that because he read that…"

Detective O'Connell and Officer Curi replied, "Yeah. We have to give you your rights. It's your constitutional rights;" "It's automatic;" "Everybody no matter if you are not a citizen or not, everyone gets their constitutional rights;" "It's like, like when you're drunk, they read, your drunk and they read you your rights, it's the same." The interview continued. (Tr. of police interview of Rivera, Dec. 23, 2015.)

There is no question that the conduct of the officers was illegal, outrageous, and abusive. At no time did the officers even hint that they would stop the interview and honor Rivera's request for an attorney. The man had invoked his Miranda rights over and over, and they ignored him.

Rivera's first attorney negotiated a plea of nolo contendere to second-degree murder, and Rivera appeared in Court for the purpose of disposing of the case and receiving a term of sixty years to serve. It is undisputed that Rivera rejected the plea because he insisted that he had committed the crime in self-defense and wanted to present that theory at trial. On May 9, 2017, on the record, in open Court, his first attorney withdrew his appearance, and the Court appointed the attorney whose trial representation is the subject of this application. On June 7, 2017, the parties appeared before the same trial justice at which time Rivera waived his right to a jury trial. He further admitted the following as articulated by his trial counsel:

It is clear that their relationship had broken down over Rivera's rejection of the negotiated plea agreement and insistence on proceeding to trial to claim self-defense.

"[T]hat on December 23rd, 2015, . . . that he did stab Julio Machio Perez … [h]e stabbed him multiple times with a kitchen knife that was later recovered from that location and that stabbing was the proximate and actual cause of Mr. Perez's death. He is making that admission, your Honor. That will be evidence in the case that your Honor is to hear." (Hr'g Tr. 6:16-24, June 7, 2017.)

On June 7, 2017, it was then assumed that the trial justice who accepted the jury trial waiver and admissions would in fact preside over the case. The matter was later transferred to this trial justice. Trial counsel never moved to withdraw the waiver or the admissions made in Court on June 7, 2017.

The aforementioned stipulation established a prima facie case of second-degree murder. See § 11-23-1. It is undisputed that throughout trial counsel's representation of Rivera, her client expressed an intent to assert at trial that he stabbed and killed Perez in self-defense. Absent credible evidence that the killing was committed in self-defense, Rivera literally admitted guilt when he appeared in Court on June 7, 2017.

The case was reached for trial before this trial justice on October 17, 2018 and concluded on October 18, 2018. The State presented several witnesses who testified as to the nature of the injuries suffered by Perez and as to the presence and location of blood splatter. Based upon testimony of the officers who viewed the scene and the photographs of the scene, the evidence suggested that the wounds initially were inflicted while decedent was upright, before he fell to the floor. It further appeared that one of the wounds may have been a defensive wound, indicating a struggle and the decedent's unsuccessful attempt to defend himself. The Medical Examiner's testimony explained that Rivera plunged the knife into the decedent with significant and deadly force.

The State rested, and as trial counsel recalled at her deposition, the Court took a lunch recess, giving her an opportunity to discuss trial strategy with her client. She claims that she said to him:

"Mr. Rivera, now you have to decide what you're going to do, are you going to testify or not, and I was very scrupulous not to influence that decision at any point. That was his decision entirely. I was apprehensive if he were to testify, and the statement were to be used to impeach him, but I didn't influence his decision." (Dep. Tr. of Susan Iannitelli 46:7-14, Sept. 24, 2020.)

In spite of her contention that she left the decision of whether to testify up to Rivera, it is clear from her deposition testimony that Rivera's decision not to testify was consistent with her strategy because she was overly concerned about the impeachment value of the police interview. It is likewise clear that she never told Rivera that by failing to testify, he would be waiving his plan to assert that he killed Perez in self-defense. Rivera would be conceding the case, something he consistently claimed he did not want to do. This Court finds that Rivera would not have waived the right to testify if he had been advised adequately of the ramifications of that decision, making his decision less than knowing, voluntary, and intelligent.

At her deposition, trial counsel rejected the suggestion that if Rivera testified he would at least have had a chance of an acquittal. The following exchange between Rivera's current attorney and this trial counsel is revealing:

"Q. But if he testified, he at least had a shot of an acquittal, right?

"A. Not if he were impeached with the statement he gave to the police.

"Q. Well, I mean, as a matter of law, he at least had a shot if he testified?

"A. In the real world, no.

"Q. But as a matter of law, if he testified, he would have had a shot, right?

"A. As a matter of law, if he testified, he would have been impeached. So we're dancing on the head of a pin here, Mr. Peckham. He had no good choice before him." Id. at 70:3-15.

The Court finds that trial counsel gave undue importance to the impeachment value of the police interview and failed to explain to her client that his silence would seal his fate and result in a conviction. She acknowledges sharing her concerns with Rivera about the police interview, and those concerns clearly drove her client's decision not to testify. Under her theory of the case, it was preferable to concede guilt and waive any defense than to risk having Rivera's credibility questioned on cross-examination. The existence of the interview was not a surprise to trial counsel. She undertook his defense knowing that Rivera was adamant that he wanted to claim self-defense and that his insistence on pursuing that defense led to the conflict that prompted his first attorney to withdraw. Id. at 17, 18

Of note, trial counsel never moved to suppress the interview claiming now that to do so would be pointless since an illegally obtained interview still could be used to impeach a defendant if he chooses to testify. See State v. Pona, 926 A.2d 592 (R.I. 2007). The State did not offer the interview in its case in chief. Even if trial counsel chose not to file a motion to suppress the statement, she certainly should have filed a motion in limine to argue against allowing it even for impeachment purposes. After obtaining a ruling on that motion, she would have been in a better position to advise her client as to the pitfalls he might face if he testified.

Her failure to file a motion in limine further demonstrates that she provided Rivera with less than a vigorous defense. In light of the outrageous conduct of the police officers, this trial justice candidly can state that she would have exercised her discretion and precluded use of the interview altogether. In the unlikely event that the State had been allowed to offer evidence of inconsistencies between Rivera's trial testimony and the police interview, the Court would have discounted or totally disregarded the evidence due to the deliberately illegal manner in which the interview was obtained. The trial was heard before the Court sitting without a jury. "It has long been a presumption of law that a trial justice, unlike a jury, can disregard prejudicial material if and when he or she determines that material to be inadmissible." State v. Notarantonio, 622 A.2d 457, 458 (R.I. 1993).

Additionally, now having read that interview, this Court is unconvinced that it was as damaging to Rivera's self-defense claim as his trial counsel contends. Certainly, nothing contained in that statement justified abandoning his self-defense claim. Her view of the case which she communicated to Rivera not only was contrary to the clear and unambiguous desire of Rivera to present his claim of self-defense, it was uninformed. If trial counsel was so concerned about the damaging effect of the interview, she certainly should have challenged its admissibility in advance of addressing with her client whether or not he should testify.

Rivera rested without testifying, thereby assuring a conviction. In arguing for an acquittal, trial counsel actually suggested that "Mr. Rivera may well have acted in justifiable self-defense." (Trial Tr. 210:4-5, Oct. 18, 2018.) Any claim of self-defense at that point would have been based upon pure speculation and conjecture.

In fact, the defense of the case was tantamount to entering an open-ended plea, giving the Court discretion as to what sentence to impose. However, it is absolutely clear that if the Court had attempted to put through an open-ended plea, the effort would have failed because when offered the opportunity to address the Court, Rivera clearly would have claimed self-defense, and the trial justice would have rejected the plea. In other words, trial counsel's defense accomplished what his prior attorney could not accomplish, an admission of guilt and a waiver of his constitutional rights.

If there was any doubt that Rivera always expected to have the opportunity to present a defense, the Court was convinced of it after reading the pre-sentence report in which Rivera made a statement to the Probation Officer that would have supported a claim of self-defense. Later, when Rivera addressed the Court at his sentencing, he elaborated on that claim. At the sentencing, Rivera stated:

"What happened is that this man, he was asking for money from me because of the job that he had gotten for me. So I told this man that I still hadn't been paid money for my work. So he became furious and he said to me, he said, [n]ow I'm going to kill you. When I saw that he stood up, he said it in a serious way and he stood up. I felt very afraid. And I looked for the door, trying to get to the door. He grabbed me from behind by the shirt and he put me in front of him. I felt that he was a very strong man, and I thought what am I going to do at this moment. I remembered a knife that was over the freezer. So when he put me in front of him and he raised his hands toward my throat, I grabbed the knife and I stabbed him one time in the chest. When he felt the stab, he said to me, [t]oday you screwed me up, but I'll kill you too. And he grabbed me strong. And so when I felt that he grabbed me so strongly, I gave him another one, and maybe more that I don't remember. I remember that the last one, when I gave him the last stab, he lowered his hand and that's when he wounded his arm. It wasn't that he was trying to defend himself. And when he was on the ground, I lost my mind. I was so desperate. Because what happened was something terrible, and this was going to cause problems in my life and for my family, so I didn't think of calling the ambulance. I just didn't. All I thought was getting outside. And once I was outside, all I thought of was going to the police." (Tr. 11:16-12:20, Jan. 16, 2019.)

The Court sentenced Rivera on Count I, second-degree murder, to sixty years at the Adult Correctional Institutions, fifty to serve and the balance suspended with probation; and on Count II, commission of a crime of violence while having in his possession a knife with a blade more than three inches long, to five years to serve, to run concurrent with the sentence imposed in Count I. In sentencing Rivera, this trial justice noted that the Court was baffled and never had seen a case tried the way this case was presented. The Court stated that "[it] almost was as though it was presented as a plea, but the only one in the room who didn't understand that was the Defendant. I don't know. It was troubling while it was being presented. It was troubling in light of the presentence report and the statements today." Id. at 18:6-12.

Rivera initially filed an appeal to the Rhode Island Supreme Court docketed as SU-2019-0141-CA but withdrew the appeal without waiving his right to pursue an application for postconviction relief. (Aff. of Rivera, July 29, 2019.)

He filed this application for postconviction relief on August 1, 2019 seeking to have the Court vacate his conviction and sentence based upon a claim of ineffective assistance of counsel.

Rivera initially filed his application for postconviction relief in the criminal case, P1-2016-1271A. The within file was opened on December 28, 2020, after current counsel for Rivera already had deposed Rivera's trial counsel and after both parties had submitted their briefs in support of their respective positions with regard to the application for postconviction relief.

Standard of Review

The court assesses ineffective assistance of counsel claims under a two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Bido v. State, 56 A.3d 104, 110 (R.I. 2012); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); Barboza v. State, 484 A.2d 881, 883-84 (R.I. 1984). This test requires the applicant seeking postconviction relief to first "establish that counsel's performance was constitutionally deficient; '[t]his requires [a] showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed * * * by the Sixth Amendment.'" See Bido, 56 A.3d at 110-11 (quoting Neufville v. State, 13 A.3d 607, 610 (R.I. 2011)); see also Strickland, 466 U.S. at 687. To satisfy the performance prong, "the [applicant] must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Courts evaluate counsel's performance "in a 'highly deferential' manner," Bido, 56 A.3d at 111 (quoting Lynch v. State, 13 A.3d 603, 606 (R.I. 2011)), employing "a strong presumption that counsel's conduct falls within the permissible range of assistance." Id. (quoting Neufville, 13 A.3d at 610). See also Strickland, 466 U.S. at 689.

The second prong of the Strickland standard requires an applicant to '"show that he [or she] was prejudiced by this deficient performance."' Bido, 56 A.3d at 111 (quoting Lynch, 13 A.3d at 605). To satisfy the prejudice prong, "[t]he [applicant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Bido, 56 A.3d at 111.

III

Analysis

In this case, as set forth in this Decision, trial counsel failed to advise Rivera that by waiving his right to testify, he would be waiving his right to present his claim of self-defense. It is clear that she discouraged him from testifying by focusing on the dangers that awaited him if he did so because he would be confronted with his police interview. She never attempted to block the State from using the interview at trial and overemphasized its impeachment value. These errors were so serious that she failed to function as counsel guaranteed by the Sixth Amendment. She waved the white flag when her client clearly wanted to present a defense.

The State proved the criminal offense of murder by showing an intent to kill, that Rivera willfully caused the death of Perez with malice aforethought. "[S]pecific intent to kill can be inferred from the nature of the killing." State v. Ros, 973 A.2d 1148, 1162 (R.I. 2009). Alternatively, the evidence supported a conviction by proof that Rivera stabbed Perez with a conscious disregard for the possibility of death or great bodily harm and that Rivera committed an inherently dangerous felony that resulted in the death of another.

The State did not offer evidence to support a conviction for first-degree murder; to wit, that the intent to kill existed for more than a mere moment. See § 11-23-1; State v. Gillespie, 960 A.2d 969 (R.I. 2008).

Had Rivera testified and presented a version of events consistent with his allocution at sentencing, there exists a reasonable probability that the result of the proceeding would have been different. His version of events is buttressed by the fact that he did not flee after the killing but ran to the police station confessing the killing and urging them to accompany him to the scene. His allocution was very compelling, and he had no prior criminal record that could have been used to impeach him if he testified. For the reasons articulated in this Decision, it is reasonably probable that this trial justice may have accepted his claim of self-defense. Certainly, he should have been given the opportunity to present that claim. Trial counsel's errors undermine confidence in the outcome of the case.

The Court cannot help but reflect on the manner in which Rivera was treated in the criminal justice system. The police blatantly refused to honor his multiple requests to exercise his constitutional rights under Miranda v. Arizona, 384 U.S. 436. Then, his attorney either disregarded her client's desire to claim self-defense or misunderstood that he could not do so unless he testified on his own behalf. "With individual liberty … at stake, it is the defendant's prerogative, not counsel's, to decide on the objective of his defense." McCoy v. Louisiana, 138 S.Ct. 1500, 1505 (2018).

Conclusion

For the reasons set forth in this Decision, the Court grants Rivera's application for postconviction relief and vacates his conviction and sentence. In light of prior credibility findings made by this trial justice, this case is hereby referred to Courtroom 4 to be assigned to another associate justice of this Court for trial. Counsel shall submit an appropriate order consistent with this Decision.

Rivera v. State

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Rivera v. State

Rivera v. State

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Rivera v. State

Opinion

Rivera v. State

Rivera v. State

Case Details

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