Providence County Superior Court
For Plaintiff: Andrew H. Berg, Esq., Michael A. DiLauro, Esq. John E. Lovoy, Esq.
For Defendant: Lauren S. Zurier, Esq., Scott A. Erickson, Esq.
Tracey Barros presents this Court with an application for post-conviction relief (PCR). Ten years ago he confessed to having shot Deivy Felipe to death in his parked car. At an unsuccessful pretrial suppression hearing and again at trial, Barros testified that his confession was not only involuntary, it was also false. The jury rejected his testimony and convicted him of first degree murder, conspiracy to commit murder, and two firearm offenses. As mandated by statute, Barros was sentenced to two consecutive life terms for committing murder with a gun. His appeal, which focused principally on the circumstances surrounding his confession, was denied. State v. Barros, 24 A.3d 1158 (R.I. 2011).
In his PCR application, Barros persists in his claim that the detectives tricked him into giving an involuntary false confession. This time, however, he does not fault this Court, the jury, or the Supreme Court for his predicament. Instead, he blames his trial and appellate attorneys from the Public Defender's office. He also seeks this Court's recusal from considering this PCR application.
The Suppression Hearing
The Supreme Court's decision contains a lengthy explication of the facts and circumstances surrounding the custodial interview of Barros, his subsequent statements, and an in-depth analysis of the issues surrounding the confession. Only minimal reference to it is needed here.
At a two-day suppression hearing in May of 2007, eight witnesses, including the defendant, testified. Much of Barros' discussion with the police was not tape-recorded. Eventually, a twelve-minute taped statement was obtained. At the hearing, the defendant claimed that after he had been arrested earlier that night for unlawfully possessing a handgun, he was somehow able, through the rear of a police cruiser and in the darkness, to lip-read what the officers in another police cruiser were saying about the gun. He also testified that although his hands were handcuffed behind his back in the cruiser, he was able to extricate his ringing cell phone from a front jacket pocket, converse with his girlfriend, and tell her to call a lawyer.
At the police station he said the detectives wanted him to confess to the Felipe murder so that they could close out a cold case which they had wanted to blame on Barros' friend Tonea Sims, who had been shot and killed the previous night. He testified that the detectives promised that he would receive only a ten-year sentence for confessing to the murder.
Barros said that he was chained to the wall in an interview room for an entire day, left alone for hours, and deprived of food, water and bathroom breaks. He also testified that he told the police he didn't want to say anything until his attorney had arrived. He said that eventually he just gave up and confessed. Before taping his statement (which was bereft of any request for a lawyer), he said that the police had scripted his answers and told him to make it "sound good" on the recording. In that recorded statement, Barros said, among other things, that he shot Felipe seventeen times-that he "emptied the clip" into him, a bogus response the police could not have supplied because they knew Felipe had been shot far fewer times.
The Providence detectives, as well as two ATF agents, contradicted all of the defendant's self-serving assertions. They said that they had safeguarded Barros' rights, that he was offered food, soda, water and restroom breaks. They testified that he never requested an attorney and were frankly surprised when Barros admitted killing Felipe. They flatly denied ever having told Barros, a chronic offender who had been arrested that night for his third gun offense, that he would only have to serve ten years for murdering a man as he sat in his car. Most assuredly, they said, they never coached or suggested to Barros what to say during the recording.
At the conclusion of the hearing, the Court considered all of the testimony and found that the State's witnesses had told the truth and that Barros had lied. The motion to suppress was denied. On appeal, the Supreme Court agreed. Barros, 24 A.3d at 1180 ("[H]aving scrutinized the record in a de novo manner, we have reached the same conclusion as did the trial justice-viz., that Mr. Barros's confession was voluntary and was made after a knowing and intelligent waiver of his constitutional rights.").
The first trial ended in a mistrial with the jury at an impasse. Before the second trial started six months later, trial counsel renewed the suppression motion, this time targeting the failure of the police to record all of the discussions with Barros, an omission which he said required suppression of the taped statement. Short of its outright exclusion, counsel sought instructions which admonished the jurors to look askance at the taped statement because the police had failed to record the entirety of the discussions leading up to the recording. This Court again denied the suppression motion and did not offer the requested jury instructions. The Supreme Court, with one dissent, affirmed those rulings.
At the retrial, Barros testified and claimed, as he had during the initial suppression hearing and at the first trial, that the police had induced him to tell a false incriminatory tale. The jury rejected his testimony and convicted him of murdering Felipe and of all the ancillary charges.
The Post-Conviction Relief Claims
Barros now claims (in his Third Amended Petition) that the efforts of the Public Defender's Office at both the trial and appellate levels fell constitutionally flat. Those professed deficiencies include (1) not asking the Court to recuse itself after it had denied Barros' motion to suppress his statements; (2) failing to present expert testimony about false confessions; (3) failing during voir dire to make effective inquiry about jurors' views of false confessions; and (4) failing on direct appeal to argue that this Court had unfairly restricted trial counsel's voir dire. Barros also says that this Court should recuse itself from considering this PCR application. For the reasons set forth below, the Court finds no merit in any of those claims.
Waiver of Recusal Claims
Barros has waived every opportunity to request the Court's recusal in these PCR proceedings. His initial pro se application, filed on April 13, 2009, alleged no articulable grounds or basis for relief. It was not until present court-appointed counsel filed Barros' First Amended Petition on May 23, 2012 that any particularized basis was identified. That claim targeted only one ground: the alleged deficient representation by trial counsel for failing to engage a false confession expert. No other claims were advanced. No recusal motion accompanied that First Amended Petition, nor for that matter did that First Amended Petition contain any suggestion that trial counsel had negligently failed to seek the Court's recusal during the trial proceedings.
The next day, on May 24, 2012, at Barros' request, a hearing was held during which PCR counsel lamented trial counsel's failure to consider presenting a false confession expert, and current counsel requested funds to hire one. The State objected, arguing that unless the expert's testimony would ultimately be admissible, public funds ought not to be expended. This Court agreed and indicated that since it was not likely that this type of testimony would have been allowed at trial, funding to hire such an expert to testify in the PCR proceedings should be withheld. The Court also expressed its doubts that trial counsel had been ineffective for not trying to present such testimony. (Tr. 17-22, May 24, 2012.)
At no time before or during that May 24, 2012 hearing did Barros ever seek the Court's recusal in this PCR action. It was not until April 2, 2014, almost two years later, in his Second Amended PCR Petition, that Barros criticized his trial attorney for not filing a recusal motion. And, it was only then, in bootstrap fashion, that PCR counsel realized that he could not pursue such a claim against Barros' trial counsel without making a similar recusal motion in this PCR action.
The short and dispositive impediment to the instant recusal motion is that the right to make it has clearly expired. It arrives some two years after a hearing essentially on the merits of this very PCR claim itself; indeed, a hearing which Barros himself sought. Under such circumstances, this Court finds that Barros has waived his right to pursue recusal now.
"It is well-settled that a party must raise its claim of a [trial] court's disqualification at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim." Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2nd Cir. 1987); accord Johnson v. Commonwealth, 180 S.W.3d 494, 503 (Ky. Ct. App. 2005) ("A motion for recusal should be made immediately upon discovery of the facts upon which the disqualification rests. Otherwise, it will be waived.") (quoting Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky. 1994)); see Molina v. Rison, 886 F.2d 1124, 1131-32 (9th Cir. 1989) (finding petitioner waived opportunity to raise recusal issue in his federal habeas/post-conviction relief application); Hon. D. Duff McKee, Disqualification of Trial Judge for Cause, 50 Am. Jur. Proof of Facts 3d, 449 at § 22 (stating weight of authority requires that motion "must be brought on or at the earliest practical opportunity after counsel becomes aware of the grounds for such motion. These cases are clear that counsel cannot wait to test the judicial waters before deciding whether or not to advance a motion for disqualification.").
In determining whether a recusal motion has been timely filed, courts typically consider: (1) the extent of the movant's involvement in the proceeding, i.e. whether he has participated in a substantial manner in trial or pretrial proceedings; (2) whether recusal would result in a waste of judicial resources; (3) whether the motion was made after the entry of judgment; and (4) whether the movant can demonstrate good cause for the delay. In re Medrano Diaz, 182 B.R. 654, 658 (D.P.R. 1995); Apple, 829 F.2d at 334. Not one of those factors weighs in Barros' favor.
Barros obviously fits the first category. He is the driving force behind this litigation. Secondly, there is no good reason to pass this PCR application to another justice who is unfamiliar with the record and the travel of this case. Indeed, pursuant to Rule 2.3(d)(4) of the Rhode Island Superior Court Rules of Practice, applications for post-conviction relief are to be submitted "for disposition by the justice who presided at the trial of the applicant." See Pezzucco v. State, 652 A.2d 977, 979 (R.I. 1995) (holding that trial justice's purported interest in upholding his own rulings is not a basis for recusal from post-conviction relief hearing).
A similar result obtains in federal trial courts. Rule 4(a) of the Federal District Court Rules governing § 2255 proceedings provides: "The original motion shall be presented promptly to the judge of the district court who presided at the movant's trial and sentenced him, or, if the judge who imposed sentence was not the trial judge, then it shall go to the judge who was in charge of that part of the proceedings being attacked by the movant." Justice Kennedy, referencing Rule 4(a), said in his concurrence in Liteky v. United States, "As a matter of sound administration, moreover, it may be necessary and prudent to permit judges to preside over successive causes involving the same parties or issues." 510 U.S. 540, 562 (1994). See Polizzi v. United States, 926 F.2d 1311, 1320-21 (2d Cir. 1991) ("[T]he trial court's 'recollection and observation, checked against the record and memory of counsel, . . . may be a valuable aid to a § 2255 determination, '") (quoting Zovluck v. United States, 448 F.2d 339, 343 (2d Cir. 1971), cert. denied 405 U.S. 1043 (1972)). 
Thirdly, and most tellingly, Barros' recusal motion in this PCR action arrives some two years after this Court-without objection by Barros and, indeed, at his very initiative and invitation-considered the merits of his request to engage a false confession expert. Lastly, Barros can provide absolutely no reason for waiting two years to make a recusal claim that he could have made at or before the May 24, 2012 hearing, much less a claim that he could have made in 2007 and 2008 before two separate trials but did not.
Accordingly, this Court finds that Barros has waived any opportunity to pursue a recusal request in this PCR action. Absolutely no explanation has been provided by Barros for the delay in making this motion. Sawyer v. Southwest Airlines Co., 145 F.App'x 238, 243 (10th Cir. 2005) (finding motion to disqualify untimely where there is no explanation for delay (citing Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)). "Such delay in taking action surely results in a waste of judicial resources and can only be seen as [an] attempt to take a second bite of the proverbial apple, that is, to manipulate the judiciary in order to avoid the consequences of an adverse judgment." In re Medrano Diaz, 182 B.R. at 658.
Quite apart from the waiver impediment, Barros' claim for recusal, both at this juncture and retrospectively at the trial level, is wholly baseless.
It is axiomatic that trial judges should recuse themselves if they are unable to render a fair or impartial decision. Mattatall v. State, 947 A.2d 896, 902 (R.I. 2008). It is, however, "an equally well-recognized principle that a trial justice has as great an obligation not to disqualify himself or herself when there is no sound reason to do so . . ." Kelly v. RIPTA, 740 A.2d 1243, 1246 (R.I. 1999) (citing State v. Clark, 423 A.2d 1151, 1158 (R.I. 1980)) (emphasis added).
The proponent of a recusal motion shoulders a "substantial burden" to prove the existence of judicial bias. In re Jermaine H., 9 A.3d 1227, 1230 (R.I. 2010). He must demonstrate the existence of facts such that it would be reasonable for members of the public, a litigant, or counsel to question the court's impartiality. Id. The test and burden of proof, however, extends beyond that general proposition.
The Rhode Island Supreme Court has made clear that in order to support a recusal demand, "[t]he party seeking recusal bears the burden of establishing that the judicial officer possesses a personal bias or prejudice by reason of a preconceived or settled opinion of a character calculated to impair his or her impartiality seriously and to sway his or her judgment." State v. Howard, 23 A.3d 1133, 1136 (R.I. 2011) (internal quotations and brackets omitted). Thus, the movant must demonstrate that the purported impartiality is "so extreme as to display clear inability to render fair judgment." Liteky, 510 U.S. at 555; United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000).
Just as importantly, a court's comments must be viewed in the context in which they were made. State v. McWilliams, 47 A.3d 251, 260 (R.I. 2012). In United States v. Ransom, 428 F.App'x 587 (6th Cir. 2011), Ransom complained about adverse credibility findings the trial court had made about his testimony a year earlier as a witness at his brother's revocation hearing. The Court of Appeals held that those comments did not establish bias or prejudice warranting recusal, "especially when they are viewed in the larger context of the [prior] hearing, which show[ed] both that the judge gave a thorough, well-reasoned, and fairminded explanation for his adverse credibility finding and that [the defendant] provided the judge with the factual predicate for his statements." Id. at 591(emphasis added).
Here, this Court considered the testimony of eight witnesses, including the defendant, during a two-day suppression hearing. The testimony was divergent and the issues closely contested. The Court was, perforce, obligated to make definitive factual and credibility findings. In making that analysis, this Court said that "credibility decisions have to be made. The defendant offered testimony that I find not credible at all . . . I'm satisfied from what I have heard that the defendant lied to me in certain respects, and those lies and mendacious statements cast a very dim light on his credibility." (Tr. 200, June 1, 2007.) Then, as reflected in the next several pages of that transcript, the Court assessed the conflicting evidence and testimony, made the requisite credibility findings, and ultimately denied the suppression motion.
On appeal, the Supreme Court, after its own de novo review of the record, agreed with this Court's ...