Providence County Superior Court
For Plaintiff: Christopher T. Millea, Esquire
For Defendant: Jeanine McConaghy, Esquire
In this post conviction relief application Esteban Carpio, convicted of murdering a Providence police detective and stabbing an elderly woman, claims that he was victimized by substandard representation by his trial attorney because he did not make a motion for acquittal or file a post-verdict motion for a new trial. Carpio asserts that those omissions cost him the right to argue on appeal what he says was a compelling claim which would have corrected the jury's unfair rejection of his insanity defense.
He is mistaken. For the reasons set forth herein the Court denies his petition.
Facts and Travel
On April 16, 2005, Esteban Carpio stabbed eighty-four-year-old Madeline Gatta with a knife when he attempted to steal her handbag. Suspecting Carpio of that assault, the Providence police brought him to headquarters. He was brought without handcuffs to a conference room, where he was interviewed by Det. James Allen, who openly wore his handgun on his hip. At the outset Carpio gave a false name, denied that he had ever been arrested in his life and said that he had done nothing wrong. When Det. Allen admonished Carpio that he knew his real identity and was aware of his lengthy arrest record, Carpio became agitated and asked Det. Timothy McGann, who was also in the conference room, for some water.
After McGann left the room, Carpio immediately shut and locked the door from the inside. Within moments, Det. McGann heard Det. Allen shout for help, yelling that Carpio was going to kill him. Gunshots followed, and when the locked door was finally forced open, Det. Allen lay dying from two fatal wounds (one in his chest and the other through his forehead) inflicted by Carpio using Det. Allen's weapon. Carpio was gone, having escaped by shooting out a window in an adjoining room, dropping to the lawn below, and fleeing into the Providence night. City, state and federal officers descended upon the city in an all-out manhunt. Eventually, Carpio was apprehended after a violent struggle when an alert taxi driver, who had been dispatched to take a fare to Boston or New York, became suspicious and warned the police.
At his June 2006 trial for murdering Det. Allen and assaulting Mrs. Gatta, trial counsel, Robert L. Sheketoff,  interposed an insanity defense after the state had presented a prima facie case supporting the substantive charges. No motion for judgment of acquittal was offered under Rule 29, Super. R. Cr. P. The defense then offered two expert witnesses, psychiatrist Dr. Steven Heisel and neuropsychologist Paul Spiers, Ph.D., who opined that Carpio lacked the mens rea to commit the charged offenses because he was suffering from severe effects of schizophrenia and could not be held criminally responsible.
In rebuttal, the state presented Professor David Faust, a University of Rhode Island neuropsychologist, and psychiatrist Dr. Martin Kelly of Boston, both of whom concluded that Carpio was a manipulative, antisocial criminal, whose actions were not at all the result of any mental deficiency or defect. The case was submitted to the jury, again without a Rule 29 motion for judgment of acquittal.
The jury rejected the insanity defense and convicted Carpio of first degree murder of Det. Allen; the separate firearm offense of discharging a firearm during a crime of violence resulting in his death; and, assaulting Mrs. Gatta with a dangerous weapon. The Court offered to hear a new trial motion, pursuant to Rule 33 Super. Ct. R. Cr. P., after the Fourth of July holiday. After considering that option, trial counsel sent an email message to the Court on July 5, 2006, stating that he would not file such a motion. On October 6, 2006, this Court sentenced Carpio to two consecutive life sentences (one of them without parole) for murdering Det. Allen and a consecutive twenty-year prison term for the felony assault upon Mrs. Gatta.
The Rhode Island Supreme Court has affirmed Carpio's convictions and denied his request to reduce his sentence of life without parole. State v. Carpio, 43 A.3d 1 (R.I. 2012). The Court refused, however, to consider Carpio's challenge to the sufficiency of the evidence on "the pivotal question in this case - the rejection of the insanity defense, " which Carpio conceded (through appellate counsel from the Public Defender's office) "was not properly positioned for appellate review." Id. at 8. Because trial counsel had pressed neither a motion for judgment of acquittal nor a motion for a new trial, the Supreme Court held that under its settled raise-or-waive rule, Carpio had forfeited the opportunity to pursue the sufficiency claim.
In his application for post conviction relief, Carpio claims that his trial attorney's failure to make those motions deprived him of effective representation. The Court disagrees.
Standard of Review
General Laws 1956 § 10-9.1-1 creates a postconviction remedy "available to any person who has been convicted of a crime and who thereafter alleges either that the conviction violated the applicant's constitutional rights or that the existence of newly discovered material facts requires vacation of the conviction in the interest of justice." DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011). "An applicant for such relief bears '[t]he burden of proving, by a preponderance of the evidence, that such relief is warranted' in his or her case." Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (quoting State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)). The proceedings for such relief are considered civil in nature. Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) (citing State v. Tassone, 417 A.2d 323 (R.I. 1980)); DePina v. State, 79 A.3d 1284, 1288-89 (R.I. 2013) (citing G.L. 1956 §§ 10-9.1-1; 10-9.1-7).
Ineffective Assistance of Counsel
The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by the Rhode Island Supreme Court. LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987). Whether an attorney has failed to provide effective assistance is a factual question which a petitioner bears the "heavy burden" of proving. Rice v. State, 38 A.3d 9, 17 (R.I. 2012); Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (noting that Strickland presents a "high bar" to surmount).
When reviewing a claim of ineffective assistance of counsel, the question 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, 522 (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 defendant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and sound trial strategy." Hughes v. State, 656 A.2d 971, 972 (R.I. 1995); Gonder v. State, 935 A.2d 82, 86 (R.I. 2007) (holding that a "strong (albeit rebuttable) presumption exists that counsel's performance was competent").
Even if the petitioner can satisfy the first part of the test, he must still pass another sentry embodied in Strickland. He must also demonstrate that his attorney's deficient performance was prejudicial. Thus, he is required to show that a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hazard v. State, 968 A.2d 886, 892 (R.I. 2009).
Ordinarily, tactical decisions by trial attorneys do not, even if hindsight proves the strategy unwise, amount to defective representation. "As the Strickland Court cautioned, a reviewing court should strive 'to eliminate the distorting effects of hindsight.'" Clark v. Ellerthorpe, 552 A.2d 1186, 1189 (R.I. 1989) (quoting Strickland, 466 U.S. at 689). "Thus, a choice between trial tactics, which appears unwise only in hindsight, does not constitute constitutionally-deficient representation under the reasonably competent assistance standard." United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978); Linde v. State, 78 A.3d 738, 747 (R.I. 2013) ("'[T]actical decisions by trial counsel, even if ill-advised, do not by themselves constitute ineffective assistance of counsel, '" quoting Rivera v. State, 58 A.3d 171, 180–81 (R.I. 2013) and Rice v. State, 38 A.3d 9, 18 (R.I. 2012)).
Although the Supreme Court characterized trial counsel's declination to move for a new trial as "a conscious, and indeed strategic, decision, " Carpio, 43 A.3d at 9, that Court only had before it the isolated July 5, 2006 email in which counsel stated, without explication, that he would forego a new trial motion. At the September 2, 2015 hearing on Carpio's postconviction relief application, however, counsel explained that his decisions to forego those motions were not trial strategies; rather, he had eschewed both the Rule 29 and Rule 33 motions because he frankly believed that there was no basis to support either of them. To be sure, he made considered and purposeful choices not to press the motions, but those decisions were not calculated trial tactics or strategic maneuvers designed to assist his client. To the contrary, his decision not to pursue the motions was based upon his genuine belief that they were groundless. At the September 2, 2015 hearing, the following colloquy ensued between Carpio's trial counsel and his court-appointed postconviction relief attorney:
"Q. [BY MR. MILLEA]: … Did you raise a motion for a judgment of acquittal and/or a motion for a new trial in Mr. Carpio's trial matter?
"A. [BY MR. SHEKETOFF]: So I specifically remember that I did not file a motion for a new trial. I've read the Rhode Island Supreme Court decision, so I am refreshed that I did ...