Opinion
PM 2015-5207 P1-2011-3317A
02-09-2018
CHRISTOPHER SWIRIDOWSKY v. STATE OF RHODE ISLAND
ATTORNEYS: For Plaintiff: Christopher Swiridowsky; Kenneth C. Vale, Esq. For Defendant: Daniel Guglielmo, Esq.
DECISION LANPHEAR , J.
I
Facts and Travel
During the early morning hours of October 28, 2007, the complainant was walking home from downtown Providence after working in a restaurant and meeting with some friends. As she neared her apartment, a car approached and the driver asked if she needed a ride. She alleges that Christopher Swiridowsky forced her into the car, took out a gun, raped her, leaving her naked and grabbing for her clothes on the street. At trial, Mr. Swiridowsky testified that the events were consensual, and that he traded drugs for sex.
When she reached her home, the police were promptly contacted and within two hours the complainant was at the Women and Infants Hospital for an extensive examination. She did not know the man's name, but four years later when Mr. Swiridowsky was held for another crime, a DNA match identified him as the alleged rapist. Mr. Swiridowsky was indicted on one count of kidnapping, three counts of first degree sexual assault and one count of assault with the intent to commit a sexual assault. After a five day trial in July 2013, a Providence County jury convicted Mr. Swiridowsky on all counts except for the kidnapping.
On November 18, 2015, Mr. Swiridowsky filed a petition for post-conviction relief. The case was tried over many days from September 2016 through October 2017, without a jury. Mr. Swiridowsky elected to represent himself. Post-trial statements and memoranda were submitted.
Mr. Swiridowsky's complaints are multi-faceted, but parsing his closing arguments, Mr. Swiridowsky focuses on his allegation that his attorney failed to represent him effectively.
Mr. Swiridowsky may also be claiming that the trial court failed to protect his appellate rights by not returning to his motion for mistrial. This issue is discussed at pp. 20-21 herein.
II
Standard of Review
Pursuant to G.L. 1956 §§ 10-9.1-1 et seq., '"post-conviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights that the state or federal constitutions secured to him."' Torres v. State, 19 A.3d 71, 77 (R.I. 2011) (quoting Otero v. State, 996 A.2d 667, 670 (R.I. 2010)). The applicant for postconviction relief bears '"the burden of proving, by a preponderance of the evidence, that postconviction relief is warranted."' Page v. State, 995 A.2d 934, 942 (R.I. 2010) (quoting Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007)).
The landmark case of Strickland v. Washington, 466 U.S. 668 (1984) established the standard for ineffective assistance of counsel. Our Supreme Court has repeatedly adopted the Strickland rationale. See, e.g., LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). The applicant "is saddled with a heavy burden, in that there exists a strong presumption that an attorney's performance falls within the range of reasonable professional assistance and sound strategy." Rice v. State, 38 A.3d 9, 17 (R.I. 2012), internal citations omitted.
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, 521 (R.I. 1999). "[A] strong, (albeit rebuttable) presumption exists that counsel's performance was competent." Gonder v. State, 935 A.2d 82, 86 (R.I. 2007). Hence, "[t]his prong can be satisfied only by a showing that counsel's representation fell below an objective standard of reasonableness." Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011), internal quotations omitted.
If counsel's performance is found to be deficient, the petitioner must still clear a second hurdle in the Strickland analysis: He must then demonstrate that his attorney's shortcomings "prejudiced" his defense. Strickland, 466 U.S. at 687. This prong is satisfied only when an applicant demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. As Justice O'Connor wrote:
"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, 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.
"These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91.
An applicant must overcome both Strickland steps in order to mount a successful ineffectiveness claim. Hazard v. State, 968 A.2d 886, 892 (R.I. 2009). ("[T]he applicant's failure to satisfy either prong will result in the denial of the claim of ineffective assistance of counsel.").
III
Analysis
Mr. Swiridowsky made a variety of different arguments—all to suggest that he should be granted post-conviction relief. These were raised in a variety of hearings that were held over the course of a year, often leaving the Court and the State to query which issue was being raised. Therefore, the Court will address all of the arguments in turn in the order in which Mr. Swiridowsky discussed them in his final argument.
A
Bruising
First, Mr. Swiridowsky claims that the bruises on the victim were incurred prior to the night of the molestation, and that his counsel was ineffective for failing to hire an expert witness on bruising. Rather than presenting expert evidence, plaintiff references an article (Sophie E. Grossman, A. Johnston, P. Vanezis and D. Perrett, Can we assess the age of bruises? An attempt to develop an objective technique, Medicine, Science and the Law 170 (2011) (Pl.'s Ex. A). Mr. Swiridowsky failed to obtain an expert witness's testimony, and no expert testimony was admitted at the trial or the post-conviction hearing. Several of the comments in the article seem to disprove Mr. Swiridowsky's claim:
• "Many studies have been carried out investigating the ability of forensic or medical experts to accurately assess the age of a bruise visually, but the consensus is that this is a highly inaccurate method and should therefore not be relied upon in court." Ex. A at 170.Nevertheless, Mr. Swiridowsky claimed in his final argument:
• [After photos were enhanced by Adobe Photoshop CS4] "the individual trend for each bruise over time was highly variable and there was found to be no relationship between the change in RGB [red, green and blue] value and the age of the bruise." Id. at 174.
• "In conclusion, these studies have confirmed the unreliability of expert visual assessment of bruise age, and that RGB analysis of JPEG images corrected for colour balance did not assist with determining the age of bruises. However, the possibility for objective assessment of colour for the purpose of ageing bruises has not been completely rejected owing to the comparable changes in bruise colour seen within subjects." Id. at 176.
"The images of green and yellow bruises on [the victim's] body are images indicative of injuries sustained at least 18 hours prior to evidence collection. This position is now supported by scientific documents finally submitted in these post-conviction proceedings by myself and the State on file as Plaintiff's Exhibit 1, State's Exhibit A, documents [my trial counsel] failed to provide my jury with in 2013 . . ." Tr. 10, Oct. 5, 2017.
The medical article which Mr. Swiridowsky submitted to the Court establishes that the claim Mr. Swiridowsky made during his final argument cannot be scientifically established.
Nurse Corrado, the sexual assault nurse examiner at Women and Infants Hospital who examined the victim, testified regarding the bruises on the morning of the incident. She was never asked, and did not opine on the age of the bruises. She testified that she observed bruising, took photos (Tr. 176, 179, July 17, 2013), measured them (Id. at 182), and asked the victim about them (Id. at 177). Nurse Corrado concluded "everybody is different, and bruising can show up at different periods" which varies from person to person. Id. at 185:16-17. When examined on cross about the age of a bruise, she repeated "I'm not an expert in bruising. Everybody is different." Id. at 211. Her testimony was consistent with the article's conclusions.
At the post-conviction trial, counsel testified that he reviewed copies of the photographs with Mr. Swiridowsky pretrial, and reviewed the color photos with Mr. Swiridowsky at the trial, and does not recall the defendant requesting an expert for the bruises (untranscribed testimony, May 10, 2017). While trial counsel may have attempted to offer an article from the internet, pressing for introduction of an unauthenticated document would have been challenging. Extracting an expert opinion without an expert would have been impossible. Further, it disproves his client's contention.
If Mr. Swiridowsky is trying to assert that the photos could have been tested to show the age of the bruises, he hasn't made his point. No proof has been submitted that such an analysis is possible. Moreover, the photos were taken in 2007 and at the 2013 trial they were and are faded. "[The bruises] were much brighter." Tr. 182, 184, July 17, 2013. The State did not assert that the bruising in the photos established anything. Finally, they are faded Poloroids, aging and fading before Mr. Swiridowsky could be located, identified and charged.
Mr. Swiridowsky then notes his counsel's failure to object to the photos at trial. Ms. Corrado, the sexual assault nurse examiner, testified the bruises were red and purple on the morning of the incident. (Id. at 182-85). The photos were faded at trial (Id. at 182, 184). Counsel tactically decided not to question the admission of the hospital records, which were likely to come in at some point. Trial counsel effectively cross-examined the nurse on the age of the bruising (getting Ms. Corrado to acknowledge that the bruises appeared yellow, red and brown at trial) (Id. at 210) and reminded the jury of the issue at closing. Counsel performed competently on this issue.
Mr. Swiridowsky was paying his attorney's bill directly at the time (having released a public defender), and never informed the Court of any financial need or need for an expert until days before trial. Mr. Swiridowsky fails to reference any other case demonstrating that bruises can be aged by their color. As the limited efficacy of an expert for bruising has already been discussed, the Court need not delve into the issue of there being no money to pay an expert.
B
Missing Witnesses
Mr. Swiridowsky suggests his trial attorney failed to locate witnesses, and failed to ask for a continuance to locate them. While the record may show no requests for continuance, counsel clearly indicated his precarious situation to the Court. When the case was reached for trial in July 2013, Mr. Swiridowsky had stopped paying his attorney and had previously refused the assistance of the Public Defender. Mr. Swiridowsky continued to assure his trial attorney that payment would be made. On the eve of empanelment, the Court refused counsel's request to withdraw but reserved its ruling on compensating counsel as a court-appointed attorney. (Tr. 7, July 3, 2013). In sum, the defense attorney was limited in resources because of Mr. Swiridowsky's actions.
Apparently, Mr. Swiridowsky was held as a bail violator for an unclean urine scan, and his bail had been increased.
After the trial, Charles Galligan, a private investigator, was able to locate several witnesses for Mr. Swiridowsky over several months after he was compensated by Mr. Swiridowsky. Although some were located, it is unclear what Mr. Swiridowsky could have accomplished with their "ever-so-needed" testimony. Tr. 12, Oct. 5, 2017.
Mr. Kapp, now in Nashville, was cooperative with Mr. Galligan, "fuzzy on details," and did not appear at the post-conviction hearing. It does not appear he had anything startling to offer. It is unclear what facts he would have been called to testify to. Mr. Swiridowsky seems to suggest that he may have been offered to establish that the victim had been drinking earlier in the night, but that has no probative value to the rape. See Handy v. Geary, 105 R.I. 419, 252 A.2d 435 (1969).
Mr. Phillips was also located but did not testify at the post-conviction hearing. While he dated the victim at one time, he was not dating her at the time of the incident. If the defense was to offer him to show the prior sexual activity of the victim, the probative value and likelihood of being able to use the testimony at trial are highly questionable, given the State's "Rape Shield Law" and recent cases. G.L. 1956 § 11-37-13; State v. Lynch, 854 A.2d 1022 (R.I. 2004). Using his testimony to question ongoing drug use would not have been probative, given Mr. Phillips' limited knowledge of the victim at the time of the assault—he did not see her that night.
State v. Martinez, 824 A.2d 443, 449 (R.I. 2003) illustrates how the combination of the Rape Shield Law and Rule 608(b) of the Rhode Island Rules of Evidence work together to limit the introduction of extrinsic evidence concerning prior sexual behavior. As our high court has repeatedly stated, the purpose of the statute is "to encourage victims to report crimes without fear of inviting unnecessary probing into the victim's sexual history." State v. Rivera, 987 A.2d 887, 905 (R.I. 2010); State v. Manning, 973 A.2d 524, 535, n.11 (R.I. 2009); Lynch, 854 A.2d at 1035.
Mr. Galligan also located Ms. Honick, one of the victim's former roommates. She was in another state, somewhat transient and uncooperative with Mr. Galligan. Mr. Swiridowsky claims her testimony would shed light on the victim's alleged drug use and relationship with a drug dealer. Such statements are unlikely to be admitted pursuant to Rules 401 and 402 of the Rules of Evidence. Further, suggesting that she would change her version of the events from those given to the detective the day after is mere speculation. Frankly, Ms. Honick seems to be a questionable witness for the defendant to call, and likely to be more damaging than helpful. Tactically, calling Ms. Honick would be quite risky. The trial attorney testified that he interviewed Ms. Honick prior to trial, and reasonably concluded that some of her testimony could be quite harmful to the defense. In Bustamante v. Wall, 866 A.2d 516, 524 (R.I. 2015), the Rhode Island Supreme Court reiterated, "[t]his Court has made clear that 'mere tactical decisions, though ill-advised, do not by themselves constitute ineffective assistance of counsel."' Toole v. State, 748 A.2d 806, 809 (R.I. 2000). In State v. D'Alo, 477 A.2d 89, 92 (R.I. 1984), we explained '"a choice between trial tactics, which appears unwise only in hindsight, does not constitute constitutionally-deficient representation under the reasonably competent assistance standard."' (quoting United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978)). Bustamante has put forth no evidence demonstrating that these tactical decisions were so prejudicial to his defense as to amount to a deprivation of the applicant's right to a fair trial.
The Court is not convinced that counsel's failure to call these witnesses was deficient conduct and, it is unconvinced that the failure to seek these witnesses out would have changed the result of the trial.
C
Detective Allin
Next, Mr. Swiridowsky questioned his trial attorney's cross-examination of Detective Allin. It was appropriate to question the victim's identification of Mr. Swiridowsky in a photographic lineup. Although the detective indicated the source of the photos was the Connecticut Department of Corrections, the answer was neither anticipated nor critically harmful to Mr. Swiridowsky. It did not infer a Connecticut conviction and, given how counsel moved quickly along, and the Court's instructions on the presumption of innocence, the Court will not infer that this was a fatal error. Moreover, Mr. Swiridowsky was anxious to testify on his own behalf at the outset, and actually did testify, even when it was clear his significant criminal history would be raised. Casting the specter of prejudice on the trial counsel is not only unfair, it mischaracterizes what occurred.
D
Pretrial Preparation
Four years after the trial, Mr. Swiridowsky questioned whether the trial counsel had adequately prepared. He does so by questioning the number of visits to Mr. Swiridowsky at the prison, counsel's inability to document his time clearly or to be descriptive of his work. Having handled many, many clients since this trial, the trial counsel was not detailed on his pretrial work. Nevertheless, the Court cannot simply infer that counsel's representation was less than adequate, or some stone was left unturned. Just days before the trial, Mr. Swiridowsky asked the Court to pay his attorney as he continued to "have a lot of faith" in the attorney (Tr. 6, July 3, 2013) expressing complete confidence in his continued representation. The Court was of the impression that before and during the trial, Mr. Swiridowsky had confidence and was working with counsel and appreciated counsel's effort and work.
Mr. Swiridowsky labelled his trial counsel's failure to open and review the rape kit as "a huge discovery violation." Tr. 17:21, Oct. 5, 2017. He alleged that the State denied the existence of any hair, and trial counsel should have checked the sealed box. Even though an experienced defense attorney was called by Mr. Swiridowsky during the post-conviction trial, she never testified on whether the failure to review the box was a departure from the norm, or a departure from an objective standard. Nor was it explained what a review of the rape kit would have yielded, as described more fully below.
The evidence collection overseen by Nurse Corrado at Women and Infants Hospital is referred to as the rape kit.
E
Hair Test
During the post-conviction trial, the rape kit was brought to the Court and opened by Detective Allin. There is no question that this resulted from Mr. Swiridowsky's persistence in having the rape kit delivered to the Court, opened, and its contents revealed. A single short body hair, perhaps from an eyelash, was found inside. Although no hair was referenced at the trial, the box was never opened at or before the criminal trial. Further, there was no indication that the single hair would have yielded any probative evidence. Mr. Swiridowsky asserts that the single hair could have been tested for prior drug use, using the article attached to Plaintiff's Motion to Submit Additional Literature into Evidence filed December 5, 2017, Samuel B. Wainhaus et al., Fast Analysis of Drugs in a Single Hair (1998), PCR Trial Ex. 37. No expert testified to establish the scientific certainty of the study quoted by Mr. Swiridowsky, so no expert could be cross-examined. There was no evidence that the study was adopted or used by others (although use of controlled substances is a chronic problem in our country) and the study fails to indicate whether the test can show, with any precision, when the controlled substances were ingested. The state asserts that a single hair, without a follicle is not enough for testing, and tenders State's Exhibit E, a memorandum from Laurie Ogilvie, a Forensic Toxicologist at the Rhode Island Department of Health. This memorandum establishes the need for a larger sample, as does Exhibit F. Since July 2016, Mr. Swiridowsky has asserted that testing the single hair would yield the basis for a new trial. Though the State provided substantial rebuttal evidence, Mr. Swiridowsky failed to meet his initial burden of proof. In short, what an analysis of the single hair may have yielded is still unknown.
At trial, Amy Corrado, a Sexual Assault Nurse Examiner at Women and Infants Hospital, testified about the evidence collection kit, and had an unused kit with her to explain her examination process. (Tr. 158-160, 164-169, July 17, 2013). She testified on cross-examination that "hair samples" were not collected from the victim. She acknowledged that a pubic combing was done. Id. at 206.
Such a test may have demonstrated that she actually used drugs in the past—perhaps damaging her credibility, but there was no expert to establish that. Even with that evidence, the Court cannot conclude that her credibility would have been substantially harmed.
Mr. Swiridowsky assumes that the hair was the victim's, even though he admitted having sexual contact with her. Tr. 356-58, July 18, 2013. Hence, the hair may be his, could have established that there was sexual contact, may have shown the victim's drug use, may have shown Mr. Swiridowsky's drug use, or may have shown nothing of relevance.
Mr. Swiridowsky never questioned that the laboratories in the area that may perform the testing require a much larger sample.
Mr. Swiridowsky also argued that the State and his trial attorney had the duty to check the rape kit, and as a result "they, themselves, could not have known that the sample was too small to test . . ." Tr. 18:15-16, Oct. 5, 2017. Mr. Swiridowsky did not establish any actual prejudice resulting from any such breach of duty, if there was a duty. If there was not enough to test, there was no prejudice.
F
Presentence Report
Mr. Swiridowsky's next concern was that the presentence report did not disclose his alleged mental health infirmities. He claimed there are other errors, but does not identify them. (Tr. 20, Oct. 5, 2017).
The presentence report was prepared after Mr. Swiridowsky was convicted. Mr. Swiridowsky never established that he notified the Division of Probation and Parole investigator of this history, though he did meet with an investigator after the trial but apparently did not disclose any mental health issues.
G
Mr. Swiridowsky's Testimony
Mr. Swiridowsky claims that his attorney's "error here interfered with my right and/or choice to testify." Tr. 21:21-22, Oct. 5, 2017. He claims his trial counsel declared he would testify during his opening statement, locking Mr. Swiridowsky to testify even when the issue of whether brutal prior convictions could be used was still uncertain. Mr. Swiridowsky claims his trial counsel promised the jury that he would testify, citing the case of Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002). In that case "the lawyer promised—not once, but four times—that the petitioner would testify." Id. at 22. Mr. Ouber never testified. Here, trial counsel did not "promise," but instead told the jury during the opening that
In Ouber, the defendant did not testify, breaking her "promises." Here, Mr. Swiridowsky did testify. In Ouber, Judge Selya commented that "in the absence of unforeseeable events forcing a change in strategy," the sequence would be an error, and there was nothing unforeseeable as trial counsel had tried the same case twice before. Ouber, 293 F. 3d at 27. There was no previous trial in the case at bar, Mr. Swiridowsky never made a promise, and the Court modified its prior rulings concerning which prior crimes could be used.
Defendant also cites Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988). Anderson is readily distinguishable as the defense assured the jury a witness would testify who was never called. Here, Mr. Swiridowsky did testify. The dissent of Judge Breyer in Anderson is particularly noteworthy, first by finding that, (particularly where the situation has changed during trial), "Surely, counsel need not, in order to render 'effective assistance,' produce a previously mentioned witness at all costs." Id. at 20. Second, he notes that referencing witnesses is a "plausible option" even if they do not testify because of a change of strategy during trial. Id. at 21. Third, he notes that there was no showing of prejudice to defendant at trial. Id. at 22.
"He does not have to say anything. He's presumed innocent and has an absolute right to remain silent. But Chris Swiridowsky will not remain silent. He wants to tell you guys the story, and he is looking forward to testifying before you to explain the events of that night." Tr. 16:8-13, July 16, 2013.This was not a promise to testify, it was an indication that Mr. Swiridowsky wanted to tell his story. Without the issue being raised on appeal, Mr. Swiridowsky seeks to press this claim through post-conviction relief.
Mr. Swiridowsky fails to mention that the jury was repeatedly instructed that he need not testify and the burden of proof was never upon the defendant. He also fails to note that his trial counsel advised him not to testify (trial counsel's testimony of Apr. 16, 2017, untranscribed), but he chose to testify anyway. Can counsel truly be faulted when the client opts to do that which the attorney recommends against?
Mr. Swiridowsky testified even after the Court revealed, in reserving on the motion for mistrial, that the Court was unsure if Mr. Swiridowsky was prejudiced, as the Court was unsure that Mr. Swiridowsky would testify anyway (Tr. 228, July 17, 2013). While Mr. Ouber never testified, Mr. Swiridowsky then chose to do so against advice, knowing that past convictions would be used and compounding the damage.
As shown by interruptions at both trials, Mr. Swiridowsky was not a shy fellow. He was outspoken throughout, and persisted in attempting to control every decision. Prior to the criminal trial, he dismissed his public defender to retain private counsel. He made the decision to testify against counsel's advice. When he called his appellate attorney to testify during the post-conviction trial, she revealed that during their discussions he was strident, self-assured, he often disagreed with her, and the case was a difficult one. "[H]e's a talker and he always wanted to explain." (Testimony of Oct. 5, 2017, untranscribed). Trial counsel testified to a similar description of Mr. Swiridowsky, as being self-confident, always offering direction, wanting to testify and wanting to explain the convictions upfront. While their plan was to portray the evening as a "drug fueled interaction," Mr. Swiridowsky displayed his strong-minded personality on the stand. At one point on direct examination, he strayed from a question on DNA and interjected on his own that "If anything, and I don't mean to be conceited, but I'm pretty good with women. You know, I'm pretty good with talking. I'm pretty confident." Tr. 333, July 18, 2013. Even before cross-examination, Mr. Swiridowsky had damaged his own credibility and the weight a factfinder would place in his testimony. Counsel was not to blame—Mr. Swiridowsky did this on his own.
From the evidence presented at the post-conviction hearing, it is clear that Mr. Swiridowsky wanted to testify from the outset. Given the significant proof which the State had (the testimony of the victim, the forensic testimony, the testimony of a roommate who found the victim naked and bruised on her front step, and the police testimony), and Mr. Swiridowsky's firm belief that he possessed an uncanny ability to persuade others, Mr. Swiridowsky elected to testify and intended to testify from the outset. He desired to control his own destiny.
Note the odd colloquy between the Court and Mr. Swiridowsky (Tr. 2-7, July 15, 2013) where the Court simply attempted to ensure that the defendant himself had knowledge of the proposed plea bargain and rejected it himself. Mr. Swiridowsky insisted on explaining his opinion, attempting to convince the Court, and refused to go through counsel, even though the Court encouraged him to do so and his attorney was standing right next to him. Later, at the post-conviction trial, Mr. Swiridowsky refused the representation of court-appointed counsel, though the Court ordered counsel to be available through the hearing.
As Mr. Swiridowsky turned and told the jury, when discussing striking the man on Route 95, "I just needed you guys to know this. You guys probably wouldn't have known." Tr. 329:20-21, July 18, 2013.
Pretrial, the Court heard a number of motions to exclude evidence, including the substantial criminal history of Mr. Swiridowsky. After an extensive hearing on July 15, 2013, the Court allowed the use of his Connecticut assault conviction (Tr. 19), while limiting the use of the 2010 larceny charge and the use of the leaving the scene of an accident conviction (Tr. 20). The Court noted ". . . At this point, it is suppressed. It may not be used. The Court may revisit that. I don't see its probative value as outweighing the prejudice here. The Court may revisit that." Id. at 20. Soon thereafter the Court added "At this point none of those items may be used. The motion to suppress is granted, at least during voir dire. The Court will reconsider it later on in the trial if the State wishes to do so. I think I need more information on the larceny." Tr. 22.
The prosecution continued to press for use of the prior convictions, and the Court continued to consider the issue. In its initial ruling, the Court was focused on the ability of the state to impeach Mr. Swiridowsky's credibility, if he testified (Tr. 20-23). The Court focused on the dates and the probative value of "the motor vehicle accident," Tr. 17. Armed with a new memorandum from the State, having an opportunity to review the dates of the incident and the significant fact pattern of the driving to endanger, and concerned that the defendant should be informed of any change in the Court's decision before he testified, the Court modified its ruling. (Tr. 191, July 17, 2013.) The issue was much greater, as the Court noted its concern that the jury had an opportunity to weigh whether Mr. Swiridowsky repeatedly violated society's rules when he testified under oath. The Court was also concerned about "masking the truth" (Tr. 192) by keeping this information from the factfinders.
When the Court allowed the details of the prior driving conviction it gave a limiting instruction. State v. Swiridowsky, 126 A.3d 436, 441-42 (R.I. 2015).
Finally, Mr. Swiridowsky elected to testify, knowing that the cross-examination may be harmful, and after his trial counsel recommended privately and in open court that he not testify. Mr. Swiridowsky knew the risks and accepted them, explaining his rationale for testifying directly to the jury:
Mr. Swiridowsky elected to testify even when the Court first handled the motion for mistrial. The Court reasoned:
"You said that this may force him not to testify, which leads me to believe that I don't know whether he's prejudiced yet, because I don't know whether he's going to testify. My hunch is that he may still desire to testify. If so, knowing the risk, and he testifies, I'm not sure there's any prejudice." Tr. 228, July 17, 2013.So Mr. Swiridowsky knew the Court was unlikely to grant a mistrial if he testified, but held the motion until he decided how to proceed. He opted to testify which made a challenging situation worse.
"I feel confident. You know, I'm innocent to begin with. I figured you should know where I've been, good, bad, all of it. Because what I'm being accused of doesn't match up to things I've done in my past." Tr. 315:15-19, July 18, 2013.
***
"Q. But you do have a record, Chris. I want to get into a couple of things you have on your record.
A. That's the purpose of my testimony. I want them to know too." Id. at 316:6-9.
Later in his argument, Mr. Swiridowsky asserts that his trial counsel did not need to go beyond the facts of his criminal history. Clearly counsel, in a reasonable tactical move, was simply attempting to detail Mr. Swiridowsky's life to show his troubled childhood, and his attempts to reform. Going into the detail of his crimes was a reasonable effort to lay the facts on the table before the prosecutor's cross-examination. Trial counsel had discussed this with Mr. Swiridowsky beforehand.
H
Sequestration
Next, Mr. Swiridowsky alleges that the Court failed to sequester witnesses. No party requested sequestration; rather, Mr. Swiridowsky alleges that the victim's testimony was tainted because she could hear the opening statements. He presumes that there was no other reason for her to be teary at the start of her testimony. However, the victim was not in the courtroom, she was in the hallway. (Tr. 24, July 16, 2013). What she was able to hear is mere speculation. No prejudice to Mr. Swiridowsky was demonstrated. Frankly, it was not surprising at all that she was teary when approaching the stand.
I
Past Behavior of the Victim
Mr. Swiridowsky then alleges that his trial counsel failed to sufficiently establish the victim's use of controlled substances. Apparently, Mr. Swiridowsky uses this example to argue that his trial counsel had failed to investigate facts pretrial, though he is not specific about what discovery may have yielded. As discussed above, even when Mr. Swiridowsky's investigator located some witnesses, it is unclear what pivotal facts they would have brought to the trial. If the trial attorney's performance was shown to be defective, Mr. Swiridowsky must describe the prejudice to him. He has not done so. Moreover, counsel was cross-examining an alleged rape victim who had already admitted having four or more drinks during the evening. Trial counsel needed to tread cautiously, and did so. Discussion of controlled substances would certainly have resulted in objections. The relevance of the controlled substances, if any, was not established until Mr. Swiridowsky's examination. Trial counsel made a reasonable tactical decision: He opted to stay away from the issue of her drug use during the evening to see if she left it out. Mr. Swiridowsky would raise it later. After all, there were no other witnesses likely to testify on the victim's drug use that evening.
While cross-examination may seem like an unbridled opportunity to defeat the enemy, it is no easy task. Cross-examination of a witness who has just detailed the events of a brutal rape at gunpoint, after showing some emotion, but effectively detailing the events on direct examination, is clearly a challenge for the most seasoned of defense attorneys. Even if well-planned, and well executed, it is one of the more risky and volatile events of the trial. See Brown v. State, 841 A.2d 1116, 1123 (R.I. 2004). It is easy for the defendant, courts and even the attorney to reconsider what was done, and to ponder if it could have been done differently. This particular examination was not easy but necessary. Delving into controlled substances or use of alcohol may have been seen as criticism of a victim who should not be raped whether under the influence or not. It may have resulted in an instruction for the jury regarding the limited use of intoxication. It may have evoked sympathy, without landing a punch.
For post-conviction relief, deficient performance of counsel and resultant prejudice are required. In examining the victim, they were not shown. Without something more, this Court will not "second-guess every decision made by defense counsel at trial." Chalk v. State, 949 A.2d 395, 399 (R.I. 2008).
J
The Details of the Past Crimes
Mr. Swiridowsky claims that his trial attorney failed to object to the State's questioning of Mr. Swiridowsky at trial. He later complains that his trial attorney reviewed too many of the details of his past crimes. Again, it was an important tactical decision to plan how the details of prior criminal conduct would be revealed.
Mr. Swiridowsky objects to his trial attorney reviewing many of the details of his convictions, stating during his final argument:
"There was simply no reasonable explanation for divulging the facts behind these prior convictions to my jury. For example, leaving the scene of an accident conviction could have been a fender-bender for all the jury knew. Tr. 30, Oct. 5, 2017.
"Adding insult to injury, the facts behind those convictions were brazenly used by [the prosecutor] without regard to your Honor's ruling on the matter during his closing." Id. at 31.
While Mr. Swiridowsky pled to three counts of driving to endanger, the detailed facts reveal much more than the cold plea form. On October 25, 2009, Mr. Swiridowsky was driving a Honda Civic on Route 95 south in Pawtucket at night in a heavy rain. He admits he could not see what was in front of him. As he neared an accident, he realized he could not stop in time to avoid hitting the car in front of him. Instead, he darted into another lane. At that point, he struck something. His airbags activated and his windshield cracked completely white. Knowing he already had a warrant out for him, he did not stop but drove with his head out the window, in the rain. He continued to drive for several miles, exiting at Branch Avenue. He had actually hit three different people, and one continued to have his head in the windshield of the Swiridowsky car. One victim died. After running from the car (with a person still on it), Mr. Swiridowsky ran some distance then hid in a dumpster at the KFC. Later, he told the police that the car was stolen, even though he had borrowed it from his girlfriend. Tr. 325-29; 373-75, July 18, 2013.
Clearly the facts are far more telling than the simple admission that he had three driving charges. The detailed facts are relevant to Mr. Swiridowsky's credibility and his repeated refusal to comply with society's rules. Had defense counsel glossed over these facts on direct, the prosecutor would have gone through them in depth on cross, as he did in part. It was not just an appropriate tactical decision for the defense attorney to inquire on direct, it was a wise choice.
The same can be said for Mr. Swiridowsky's larceny and brutal assault convictions. These have been previously addressed on appeal. Swiridowsky, 126 A.3d at 444.
K
Preservation of Grounds for Appeal
Mr. Swiridowsky's appellate counsel testified at the post-conviction trial that not all issues were adequately preserved at trial. For example, the Court failed to return to the motion for mistrial, and trial counsel never requested a final ruling. While the trial court indicated that "the Court is inclined to deny" (Tr. 229, July 17, 2013), a clear objection or final ruling may have brought the issue to the appellate court. The appellate attorney also conceded that the trial court ruling would be reviewed on an abuse of discretion standard referencing State v. Tully, 110 A.3d 1181 (R.I. 2015). By the end of the trial, Mr. Swiridowsky had testified at length about his various crimes.
Appellate counsel never testified that failing to return to the mistrial motion was necessarily defective or prejudicial. She noted that a trial attorney has many different issues at hand, including timing, and often issues are not sufficiently preserved. Several cases were cited during her examination. Moreover, it was never established that the failure to rule on the motion for mistrial prejudiced Mr. Swiridowsky.
The Court's delay in finalizing the ruling on the admission of some evidence of prior crimes was not misleading to the defense as the Court had warned that it may reconsider the issue. When the Court considered the merits and the complex facts of the driving to endanger charges, it reasoned that the date of the driving crime was after the conduct alleged in the immediate case, but that the conduct of Mr. Swiridowsky that evening would be significant evidence in demonstrating his disregard in following rules of society and the law. The trial court gave a limiting instruction, and warned of its change before the defendant testified.
While the failure to preserve the motion for mistrial limited the issue from being raised on appeal, Mr. Swiridowsky failed to establish that the appeal would have been successful, or that he was prejudiced. Given that the trial court had reconsidered the request to use the driving charge and explained its grounds for doing so carefully, it was unlikely that the trial court would grant a mistrial. On appeal, the high court affirmed the ruling of the trial court on the motions to suppress holding "the prejudicial effect of the testimony was not substantial." Swiridowsky, 126 A.3d at 445. With this backdrop, Mr. Swiridowsky cannot establish that the motion for a mistrial would have been successful, hence he cannot establish prejudice.
The Rhode Island Supreme Court has recently found that the failure to press for a mistrial may be an appropriate tactical decision of counsel. Rivera v. State, 58 A.3d 171, 181 (R.I. 2013).
Trial counsel is empowered to make tactical decisions. With many other issues being pressed and Mr. Swiridowsky still firm in his desire to testify to the jury, Mr. Swiridowsky cannot establish that his trial counsel's failure to press his motion for a mistrial fell beneath the objective standard for attorneys.
L
Release on Bail and Other Claims
Mr. Swiridowsky also complains that his trial attorney failed to have him released on bail, as promised. Mr. Swiridowsky never established that a promise had been made. Further, if any commitment were made, the issue does not directly relate to whether post-conviction relief should be granted. Mr. Swiridowsky also alleges that the trial counsel failed to complete tasks which Mr. Swiridowsky wrote down for him to do. The tasks were not specifically detailed at the post-conviction trial.
As our high court held:
"Bustamante also avers that his appellate counsel provided ineffective assistance of counsel on his direct appeal by failing to raise every issue that he asked her to raise. Again, Bustamante has failed to provide any evidence about the 'nonfrivolous' issues that he alleges his appellate counsel failed to raise." Bustamante, 866 A.2d at 523-24.
"The Sixth Amendment provides no right to counsel 'who would blindly follow [a defendant's] instructions.'" State v. Thornton, 800 A.2d 1016, 1029 n.14 (R.I. 2002) (quoting McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.), cert. denied, 474 U.S. 852, 106 S. Ct. 152, 88 L. Ed. 2d 125 (1985)).
"A defendant is entitled to counsel capable of rendering competent, meaningful assistance in the preparation and trial of the pending charges, including appropriate evaluation and advice with reference to a plea of guilty. A defendant is not entitled to an attorney who agrees with the defendant's personal view of the prevailing law or the equities of the prosecutor's case. A defendant is entitled to an attorney who will consider the defendant's views and seek to accommodate all reasonable requests with respect to trial preparation and trial tactics. A defendant is entitled to appointment of an attorney with whom he can communicate reasonably, but has no right to an attorney who will docilely do as he is told. Every defendant is entitled to the assistance of counsel dedicated to the proposition, and capable of assuring that, the prosecution's case shall be presented in conformity with the Constitution, rules of evidence and all other controlling rules and practices. No defendant has a right to more." United States v.
Moore, 706 F.2d 538, 540 (5th Cir. 1983); Bustamante, 866 A.2d at 524.
Mr. Swiridowsky is clearly misjudged that his attorneys should serve as his investigators, messengers and paralegals. Trial counsel clearly sought to keep his client satisfied, and followed many of the leads which his client gave him. Attorney and client were friendly with one another: they each referred to the other by first names throughout the post-conviction trial. Clearly, Mr. Swiridowsky was not an easy person to keep pleased, but trial counsel did what was reasonable to research the facts, and to appease his client. More importantly, Mr. Swiridowsky failed to demonstrate either an objective lack of competence or prejudice to his case by his trial counsel.
IV
Conclusion
This was not an easy case to try. Not only was the complaining witness convincing, but Mr. Swiridowsky insisted on testifying. He did so knowing that his startling criminal behavior would be described to the jury. Mr. Swiridowsky wished to describe his innocence directly to the jury, contradicting his attorney's recommendations. On his own, during the trial on kidnapping and molestation, he deviated from his attorney's question and told the jury, "If anything, and I don't mean to be conceited, but I'm pretty good with women. You know, I'm pretty good with talking. I'm pretty confident." Tr. 333:19-21, July 18, 2013.
Mr. Swiridowsky has failed to demonstrate that his trial counsel's performance was deficient as he did not establish that counsel made significant errors. He did not show that his trial counsel's representation fell below an objective standard of reasonableness. Moreover, he was unable to demonstrate prejudice from any shortcomings of the attorney. He failed to show that, but for any unprofessional errors of counsel, the result of the proceeding would have been different.
Mr. Swiridowsky's request for post-conviction relief is denied. Judgment shall enter for the State of Rhode Island.
ATTORNEYS:
For Plaintiff: Christopher Swiridowsky; Kenneth C. Vale, Esq. For Defendant: Daniel Guglielmo, Esq.