Providence County Superior Court (PM 02-1591), Jeffrey A. Lanphear Associate Justice.
For Plaintiff: George J. West, Esq.
For State: Jane M. McSoley Department of Attorney General.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
William P. Robinson III, Associate Justice.
Joseph Perry appeals from the July 7, 2010 denial of his application for postconviction relief in the Providence County Superior Court. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
According to Mr. Perry's application for postconviction relief and his filings before this Court, his criminal case originally went to trial in November of 1995. He was convicted by a jury of one count of conspiracy to commit assault with a dangerous weapon and one count of assault with a dangerous weapon. Mr. Perry was also charged with one count of first-degree murder; however, according to Mr. Perry's application for postconviction relief, the jury was "unable to reach a verdict" on the murder charge. This Court upheld his conviction on the conspiracy and assault charges in State v. Perry, 725 A.2d 264, 268 (R.I. 1999). A second jury trial on the first-degree murder charge was then held on September 21, 1998, and Mr. Perry was convicted by the jury of one count of first-degree murder; he was sentenced to life imprisonment on the murder charge. This Court denied Mr. Perry's appeal from that conviction in State v. Perry, 770 A.2d 882, 887 (R.I. 2001).
On March 28, 2002, Mr. Perry filed an application for postconviction relief; he then filed an amended application in March of 2005 and a second amended application in March of 2010. In his application and the accompanying memorandum, Mr. Perry contends that he did not receive a fair trial in 1998 because the justice who presided over his second murder trial had, while in private practice, represented him in Family Court in 1978 and 1980, when Mr. Perry was a minor. Accordingly, Mr. Perry avers that that trial justice should have recused. Mr. Perry also alleges that his counsel at the second murder trial was ineffective because: (1) he did not seek the trial justice's recusal; (2) he did not present evidence to support a diminished capacity defense; and (3) he did not allow Mr. Perry to testify on his own behalf at the trial.
On April 23, 2008, Mr. Perry's court-appointed attorney submitted a no-merit memorandum and a motion to withdraw as counsel, pursuant to the requirements in Shatney v. State, 755 A.2d 130 (R.I. 2000). Mr. Perry's attorney was allowed to withdraw at a hearing on the application for postconviction relief on April 30, 2008. Mr. Perry eventually retained new counsel, and a hearing was held on his application for postconviction relief on April 6, 2010. We relate below the salient aspects of what transpired at that hearing.
The Testimony of Joseph Perry
Mr. Perry testified that the justice who presided over his second murder trial had represented him on a robbery charge when Mr. Perry was a juvenile. He stated that he did not realize that connection initially; however, he added that, about three days into the murder trial in September of 1998, his brother pointed it out to him. It was Mr. Perry's further testimony that he then communicated his thought as to what he considered to be a potential conflict to his attorney the next day while meeting with him in the "cellblock." Mr. Perry further stated that he told his attorney that he did not feel "comfortable" with the trial justice continuing to preside over the second murder trial. Mr. Perry stated: "I didn't feel comfortable with him being there because he was only going to draw one conclusion in my mind and I didn't believe it was going to give me a fair shake." He testified that his attorney then told him that "they're not going to change the judge in the middle of a trial."
Mr. Perry was asked what he was seeking in the postconviction relief action, and he responded that he wanted "some kind of offer like they offered [his] co-defendant." He further stated: "They offered me nothing, never offered me anything; some kind of relief;" he added, "I'm just looking for some kind of remedy." It should be borne in mind, however, that on cross-examination, Mr. Perry expressly acknowledged that he had killed the victim.
On cross-examination, Mr. Perry was confronted with the fact that, in his filings in support of his application for postconviction relief, he had stated that, before the 1998 murder trial commenced, he knew that the justice who presided over that trial had represented him as a lawyer; that statement was contrary to his testimony during his direct examination. Mr. Perry additionally acknowledged on cross-examination that he never asked the attorney who represented him at his second murder trial to move for a mistrial or to "stand up and tell the judge, inform the judge" of Mr. Perry's concerns with respect to the justice's potential prejudice against him. When he was asked the following question: "[A]s far as you know [the trial justice] had no idea that he had formerly represented you * * * ?" Mr. Perry responded: "Not to my knowledge."
The Testimony of Thomas Gatone