County Superior Court
Plaintiff: Gary G. Pelletier, Esq.
Defendant: John E. Sullivan, III, Esq. Lauren S. Zurier, Esq.
the Court is Petitioner Jorge Depina's (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 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.
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
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.
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. 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.
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.
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. 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).
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
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.
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.
Assistance of Counsel
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.
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." 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)).
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 . . ...