Providence County Superior Court P2/09-3192 BG
For Plaintiff: Therese M. Caron, Esq.
For Defendant: Jeanine P. McConaghy, Esq.
Petitioner Yara Chum has filed an application for post-conviction relief pursuant to R.I.G.L. § 10-9.1-1 et seq., claiming that his convictions after a jury trial for felony assaults with a firearm should be vacated. He contends that the jury's adverse verdict resulted from prejudicially deficient efforts by his trial attorney. The Court disagrees.
The factual underpinnings of the criminal case are fully set forth in the Supreme Court's decision affirming Chum's convictions. State v. Chum, 54 A.3d 455 (R.I. 2012). To the extent necessary, some of those facts will be referenced herein. Counsel in this application have waived a hearing and oral argument, submitting the case to the Court on the pleadings and the record below. For the reasons stated herein, the Court finds Chum's petition without merit.
The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by our state Supreme Court. Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). Whether an attorney has failed to provide effective assistance is a factual question which petitioner bears the "heavy burden" of proving. Crombe v. State, 607 A.2d 877 (R.I. 1992) (citing Pope v. State, 440 A.2d 719, 723 (R.I. 1982)); Ouimette v. State, 785 A.2d 1132, 1139 (R.I. 2001). Strickland presents "a high bar to surmount." Padilla v. Kentucky, 599 U.S. 356, 371 (2010).
When reviewing a claim of ineffective assistance of counsel, the inquiry 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, 521 (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 "a strong (albeit rebuttable) presumption exists that counsel's performance was competent." Gonder v. State, 935 A.2d 82, 86 (R.I. 2007).
Even if the petitioner can satisfy the first part of the test, he must still pass another sentry embodied in Strickland by demonstrating that his attorney's deficient performance "prejudiced" his defense. Thus, he is obliged to show that a reasonable probability exists that but for the deficiency the outcome of the trial would have been different. Strickland, 466 U.S. at 694; Crombe, 607 A.2d at 878. Chum cannot clear either hurdle.
I. Failure to Request Mistrial or Curative Instruction
Chum's principal complaint targets his trial attorney's failure to request a mistrial or a curative instruction when the prosecutor completed the state's case without having presented evidence he had referenced in his opening statement to the jury. The state's attorney told the jurors that a Cranston detective would recount Chum's statement after he had been arrested. The prosecutor said:
"[W]e'd also prove it with the defendant's words himself, because, when the detectives came to the Cranston Police Department, they read him his rights and sat down and talked to him. And the defendant told him that he was contacted by Erin Peterson and told that she needed him to take care of something; that she wanted them to take care of some kid named Frankie for smashing her windows; that he drove down to Peach Avenue with Matthew DePetrillo and Erin Peterson so that they could point out the house; that he approached the house with a friend, Vang Chhit; that he approached some guys on the porch; that he ordered Chhit to shoot the guys; that Erin Peterson, Matthew DePetrillo and Samnang Tep were in a different car waiting around the corner; and that he and Chhit fled in separate cars, one red, and one white. You'll hear that. You'll hear about the defendant giving that statement to the Providence Police." Tr. II at 204-205.
The state concluded its case without offering Chum's statement. He now complains that in the absence of that evidence trial counsel's failure to request a mistrial or a curative instruction constituted such ineffective assistance of counsel that he is entitled to a new trial. He is mistaken.
If the prosecutor's reference to the defendant's statement had been made without any basis or in bad faith, Chum's claim might have some merit. See State v. Ware, 524 A.2d 1110, 1112 (R.I. 1987) (prosecutor must have a good faith and reasonable basis that the evidence referred to in the opening statement is admissible). Here, however, no bad faith exists. The admissibility of the defendant's statement was the subject of a pretrial suppression motion which he litigated without success. That evidence was ...