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Depina v. State

Superior Court of Rhode Island

August 25, 2016

JORGE DEPINA
v.
STATE OF RHODE ISLAND

         Providence County Superior Court

          For Plaintiff: Gary G. Pelletier, Esq.

          For Defendant: John E. Sullivan, III, Esq. Lauren S. Zurier, Esq.

          DECISION

          GALLO, J.

         Before the Court is Petitioner Jorge Depina's[1] (Petitioner or Depina) application for postconviction relief. Petitioner asserts several theories as to why he is entitled to postconviction relief: (1) that his trial counsel rendered constitutionally ineffective assistance of counsel; (2) that the State of Rhode Island (the State) committed Brady[2] violations in the course of its investigation and prosecution; (3) that the State failed to preserve exculpatory evidence; (4) that newly discovered evidence warrants postconviction relief; and (5) that several instances of conduct during the trial deprived Petitioner of his right to a fair trial.

         I

         Facts and Travel

         The facts and travel of this case are presented in detail in State v. Depina, 810 A.2d 768 (R.I. 2002), Petitioner's direct appeal from the judgment of conviction entered in this Court in 1999. The Court will review the facts briefly and supplement them as necessary in discussing individual issues presented in this petition for postconviction relief.

         Petitioner was convicted of one count of first-degree murder and one count of conspiracy to commit first-degree murder. Id. at 772. These convictions stem from events that occurred in the early morning hours of December 28, 1997. Id. at 773. At that time, Petitioner was at the International Club, a Providence nightclub; he was there along with roughly 100 other patrons when the club closed at 2:00 a.m. Id. A series of fights broke out after the club closed, with the situation outside the establishment swiftly becoming a general melee. Postconviction Hr'g Tr. 14-15, 26-27, 31, Nov. 12, 2015 (First Hr'g Tr.). Sometime during these fights, Joao Resendes (Resendes) was stabbed, perishing shortly afterwards at a hospital. Depina, 810 A.2d at 773.

         Petitioner, along with two codefendants, was indicted for murder and conspiracy to commit murder in April 1998. Id. He retained Attorney Robert Watson (Attorney Watson) to defend him from the charges.[3] At trial, the State presented three main witnesses: Elma Braz (Braz); Nilton Pires (Pires); and Gelci Reverdes (Reverdes). Id. Petitioner was identified as one of the assailants, and a jury found him guilty of both murder and the conspiracy charge. Id.

         Petitioner then brought a direct appeal from the judgment of conviction, raising a number of issues with the trial. Id. at 772. He argued that the trial justice erred in barring certain statements during his counsel's opening argument, id. at 773-74, and in limiting the scope of cross-examination, id. at 775. He further attacked the trial justice's denial of his motion to sever his trial from that of his codefendants' and his motion to pass the case. Id. at 776-77. Finally, he objected to the trial justice's jury instructions and the denial of his motion for a new trial after the jury verdict. Id. at 778-79. The Rhode Island Supreme Court rejected each argument in turn and affirmed the judgment of conviction. Id. at 783.

         The long travel of this case began in 2003, when Petitioner, acting pro se, filed the first in a series of applications for postconviction relief. See Compl., July 14, 2003. The application for postconviction relief included a motion for the appointment of counsel; although counsel was appointed, Petitioner eventually retained private counsel. Seven years of inactivity followed. In May 2010, Petitioner secured new counsel and filed an amended application for postconviction relief.[4] A period of discovery ensued and four days of hearings followed, the first two occurring on November 12 and 13, 2015 (the First and Second Hearings) and the final two on February 29 and March 1, 2016 (the Third Hearing).[5]

         At the First and Second Hearings, the Court heard testimony from Nylton Andrade (Andrade), Elsie Gamboa (Gamboa), Stephanie Rosa (Rosa), Jose Canuto (Canuto), and Officers Manuel Soares (Soares) and Jose Deschamps (Deschamps) of the Providence Police Department. The Third Hearing featured the testimony of Elizabeth Wadja (Wadja), retired Det. John J. Corley (Corley), Reverdes, and Attorney Watson. Also submitted into evidence at the Second Hearing, as a joint exhibit, was the deposition testimony of Reverdes. The evidence from these hearings will be discussed with the other relevant evidence as necessary. Following the hearings, the parties submitted briefs and oral argument, and the matter is now ripe for decision.

         II

         Standard of Review

         In creating the postconviction relief process, the General Assembly provided that a person "who has been convicted of a crime may seek collateral review of that conviction based on alleged violations of his or her constitutional rights." Lynch v. State, 13 A.3d 603, 605 (R.I. 2011); see also G.L. 1956 § 10-9.1-1. The action is civil in nature, with all rules and statutes applicable in civil proceedings governing. Sec. 10-9.1-7; see also Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988). An applicant for postconviction relief '"bears the burden of proving, by a preponderance of the evidence, that such relief is warranted."' Rice v. State, 38 A.3d 9, 16 (R.I. 2012) (quoting Mattatall v. State, 947 A.2d 896, 901 n.7 (R.I. 2008)).

         III

         Analysis

         As noted above, Petitioner's claims can be grouped into five categories: (1) ineffective assistance of counsel; (2) Brady violations; (3) the failure to preserve exculpatory evidence; (4) new evidence claims; and (5) claims relating to the conduct of his trial. The Court will address each issue in succession. The State, in turn, argues that the doctrine of laches provides a complete defense to all of Petitioner's claims, in addition to arguing against each claim on the merits. The Court need not reach the laches argument presented in this case. For the following reasons, all of Petitioner's claims fail and his application for postconviction relief is denied and dismissed.

         A

         Ineffective Assistance of Counsel

         Petitioner claims that his defense counsel at trial, Attorney Watson, rendered constitutionally ineffective assistance in violation of his Sixth Amendment rights. Specifically, Petitioner takes issue with two of Attorney Watson's decisions during the murder trial. He argues that Attorney Watson failed to call a series of witnesses known to the defense at the time, and asserts that the failure to do so was objectively unreasonable. According to Petitioner, there is a reasonable probability that the outcome of the trial would have been different had Attorney Watson called those witnesses. Petitioner also argues that defense counsel failed to adequately address an instance of jury intimidation during the trial by failing to request a mistrial or individually poll the jurors. The State argues in response that Attorney Watson's decisions regarding witnesses and a request for a mistrial are matters of trial strategy committed to the discretion of counsel and cannot be the basis for a claim of ineffective assistance of counsel.

         1

         "This Court reviews an allegation of ineffective assistance of counsel under the criteria set forth by the United States Supreme Court in its opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Perry v. State, 132 A.3d 661, 668 (R.I. 2016) (citing Merida v. State, 93 A.3d 545, 549 (R.I. 2014)). An applicant "must establish that counsel's performance was constitutionally deficient; '[t]his requires [a] showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed * * * by the Sixth Amendment.'" Id. (quoting Linde v. State, 78 A.3d 738, 745 (R.I. 2013)). This criterion can only be satisfied by showing that the quality of defense trial counsel's representation "fell below an objective standard of reasonableness."[6] Strickland, 466 U.S. at 688. The Court must conduct a "highly deferential" review and extend a defendant's trial counsel a "strong presumption that [his or her] conduct falls within the permissible range of assistance." Perry, 132 A.3d at 668 (quoting Merida, 93 A.3d at 549 (internal quotation marks omitted)).

         It is only where assistance of counsel is constitutionally deficient that the Court proceeds to the second prong of the analysis. Id. (citing Hazard v. State, 968 A.2d 886, 892 (R.I. 2009)). The second prong of the analysis is where an applicant "must show that the 'deficient performance was so prejudicial to the defense and the errors were so serious as to amount to a deprivation of the applicant's right to a fair trial.'" Id. (quoting Linde, 78 A.3d at 745-46). Under this prejudice prong, an applicant must show that the objectively unreasonable performance created "a reasonable probability that . . ...


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