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Ferreira v. State

Superior Court of Rhode Island

July 31, 2015

VICTOR FERREIRA
v.
STATE OF RHODE ISLAND

Providence County Superior Court

For Plaintiff: John E. MacDonald, Esq.

For Defendant: Jeanine P. McConaghy, Esq.

DECISION

MCGUIRL, J.

Before this Court is the application of Victor Ferreira (Ferreira or Petitioner) for postconviction relief. Ferreira contends that he was denied his right to effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution prior to entering a plea of nolo contendere. Jurisdiction is pursuant to G.L. 1956 §10-9.1-1.

I

Facts and Travel

The following pertinent facts are derived from witness statements contained within the information package and Ferreira's testimony at the hearing on the motion for postconviction relief.

On October 22, 1996, Ferreira asked his girlfriend, Teresa Andrade (Andrade), if she wanted to go out for a ride. (Teresa Andrade Witness Statement at 1; P2/07-547A.) Despite "ha[ving] an idea that [Ferreira] was going to pick up . . . some cocaine[, ]" and not typically condoning his drug use, Andrade agreed. Id. Consequently, the pair boarded Ferreira's blue Jeep and headed towards East Providence. Id.

Meanwhile that evening, Officer John R. Sequeira (Officer Sequeira), a member of the East Providence Vice Unit[1], sat in an unmarked police car surveying the Taunton Avenue off-ramp from I-195 East. (Officer Sequeira's Witness Statement at 1; P2/07-547A.) As he sat, he noticed a blue AMC Jeep drive by and pull up beside a pay phone. Id. A medium skinned, white male with dark hair, later identified as Ferreira, exited the car and appeared to make a phone call from the pay phone. Id. Ferreira returned to the Jeep and waited. Id.

In the time Officer Sequeira had spent with the Vice Unit, he had frequently observed persons use a public pay phone to contact drug dealers. Id. Based on Officer Sequeira's past observations, he suspected that after receiving the call, a dealer would drive to the pay phone location and have Ferreira follow him or her a short distance before completing the exchange. Id. This is exactly what happened next.

Officer Sequeira watched as, ten minutes later, a green Mercury Marquis approached the blue Jeep and flashed its headlights three times. Id. at 2. The driver of the Mercury then motioned for Ferreira to follow him. Id. Next, both the Jeep and the Mercury drove for approximately fifty feet as the officer tailed behind. Id. Ferreira proceeded to exit his Jeep, pull a quantity of dollar bills from his pocket, and hand the cash to the driver of the Mercury. Id. In response, the driver of the Mercury dropped something into the hands of Ferreira and drove away. Id. Sequeira followed Ferreira onto I-195. Id.

Once Ferreira realized the police were following him, he told Andrade, "it would be okay because he was going to put [the bag of cocaine] down his pants." (Andrade Witness Statement at 2.) Meanwhile, Officer Sequeira radioed for back-up and proceeded to stop Ferreira on I-195 with the assistance of Patrolmen Frazier and Enos. (Officer Sequeira's Witness Statement at 2.)

Ferreira's concealment strategy failed spectacularly. According to Andrade, "as [Ferreira] was putting the [cocaine] down his pants the police were walking up and the police saw what he was doing." (Andrade's Witness Statement at 2.) In Officer Frazier's statement, he confirmed that as he approached the driver's side of the Jeep, he noticed Ferreira stuff a small bag down the crotch of his pants. (Patrolman Richard K. Frazier's Witness Statement at 1; P2/07-547A.) Ferreira was then removed from the Jeep, asked to identify himself, and apprised of his rights under Miranda. (Sequeira's Witness Statement at 2.) Ferreira stated that he understood these rights. Id.

According to Officer Sequeira and Patrolman Frazier, Ferreira, when asked, stated that he did indeed have narcotics on his person and proceeded to pull a bag of cocaine out of his pants. Sequeira's Witness Statement at 2-3; Frazier's Witness Statement at 1. Ferreira contests this, stating that he admitted nothing to the police, but rather that the officer "found it on [him]" subsequent to a pat down after he voluntarily "put [the cocaine] down [his] pants." (Tr. 27.) Nevertheless, Ferreira ...


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