Plaintiff: Mark B. Laroche, Esq.
Defendant: Jeanine McConaghy, Esq.
postconviction relief application, petitioner Mariano Jimenez
says that his trial attorney inadequately represented him
sixteen years ago, before and during a jury trial which
resulted in his conviction for first degree murder. This
Court denied Jimenez' motion for a new trial on December
8, 2000, and the Supreme Court rejected his appeal and has
affirmed his conviction. State v. Jimenez, 882 A.2d
549 (R.I. 2005).
July 7, 2016 hearing on the petitioner's application for
postconviction relief (PCR), both the petitioner and trial
counsel, John Ruginski, testified. No other witnesses were
presented. At the conclusion of those proceedings, the
parties agreed to submit the matter to the Court for decision
based upon the pleadings and the record, without oral
argument or further hearing. PCR Tr. at 154. For the reasons
set forth herein, this Court finds the petitioner's PCR
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).
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).
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 "the court should recognize that counsel is
strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at
690. Hughes v. State, 656 A.2d 971, 972 (R.I. 1995)
("[A] defendant must overcome a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance and sound trial
strategy."); Bell v. State, 71 A.3d 458, 461
(R.I. 2013) ("(A)pplicants seeking postconviction relief
due to ineffective assistance of counsel are saddled with a
heavy burden, in that there exists a strong presumption
[recognized by this Court] that an attorney's performance
falls within the range of reasonable professional assistance
and sound strategy * * *." Rice, 38 A.3d at 17
(quoting Ouimette v. State, 785 A.2d 1132, 1138-39
(R.I. 2001)) (internal quotation marks omitted).
the petitioner can satisfy the first part of the
Strickland test, he must still overcome a second
hurdle by demonstrating that his attorney's deficient
performance was prejudicial. By that yardstick, 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).
tactical decisions by trial attorneys do not, even if
hindsight proves the strategy unwise, amount to defective
representation. Linde v. State, 78 A.3d 738, 747
(R.I. 2013). "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);
* * *
alleges that trial counsel mishandled his self-defense and
diminished capacity claims. He also asserts that counsel
neglected to secure a lesser, second degree murder
instruction, as well as an accident instruction. He further
maintains that trial counsel failed to discuss the case with
him, did not tell him of the state's disposition offer
until just before trial commenced, and neither alerted him
that he would have to testify nor prepared him to testify at
the trial. He is mistaken on all counts.
complaints that trial counsel misjudged his self-defense
hypothesis and failed to obtain second degree murder and
accident instructions rest entirely upon accepting his
professed version of events which he says led to the shooting
of the decedent, Manuel Clemente. The jurors, as well as this
Court at Jimenez' hearing on a new trial motion, have
rejected his self-serving explications. See State v.
Mattatall, 603 A.2d 1098, 1109 (R.I. 1992) (noting that
the factfinders are not only free to reject the self-serving
stories of vitally interested defendants, they may further
conclude, instead, that the opposite of what they say is
actually the truth); accord State v. Smith, 39 A.3d
669, 674 (R.I. 2012).
trial and at the PCR hearing, Jimenez testified that the
antagonism started during a social gathering in an apartment
where, he claims, Clemente and a nameless friend of
Clemente's started an argument with him. Heated words
then prompted a physical altercation. Jimenez said that
Clemente and his friend approached him menacingly and that
one of them struck him with a bottle. To defend himself, he
pulled out his concealed semi-automatic handgun and fired an
errant shot, which struck no one.
scuffle then moved to what Jimenez claims was an unlit
hallway, where he and Clemente grappled, Jimenez getting the
worst of it, he says. According to Jimenez, Clemente's
companion had disappeared. Although he saw no weapon in
Clemente's hands, PCR Tr. at 84-85, he tried to shoot
Clemente anyway, but the gun jammed. Eventually, Clemente
separated himself from Jimenez, who said at both the trial
and at the PCR hearing that Clemente turned his back on him,
started down the stairs, and, as he was leaving, yelled to
Jimenez that he would return and kill him. As Clemente was
leaving, Jimenez said that when he tried to clear his pistol,
it accidentally discharged, fatally shooting Clemente in the
back of his neck as he retreated down the staircase.
denying Jimenez' motion for a new trial, this Court
flatly rejected Jimenez' dissembling version of events,
finding him "not at all credible." Trial Tr. at
245. The Court found, instead, that the trustworthy and
reliable evidence reflected that Jimenez and Clemente, who
was unaccompanied by anyone else in the apartment, were the
only ones arguing, that no blows were exchanged before or
after Jimenez drew his weapon, and that Jimenez was never hit
by a bottle.
Court further found that Jimenez' claim-- that he had
been attacked by Clemente and another man was--"flat out
prevarication." Id. at 249. The Court also
rejected Jimenez' claim that the hallway was unlit. The
Court accepted, as wholly credible, the testimony of Yvette
Mendez, an upstairs resident in the apartment house who
witnessed the hallway altercation. Assessing her testimony,
this Court said:
"The state's key witness was, as Mr. Ruginski
indicates, Yvette Mendez. She was an upstairs resident in the
apartment building. She had absolutely no interest in the
outcome of this case. She was not in any way connected to the
defendant or the others who were present that night. She was
a completely disinterested witness who simply and plainly
recounted what she clearly observed from her vantage point on
the landing above the hallway. The credible evidence, in my
view, was that the landing and the hallway were
well-illuminated. Miss Mendez says she saw the defendant and
Mr. Clemente, who was being held down by the defendant, and
she heard the defendant yell that he was going to kill
Clemente. Clemente, she said, was bent over and not
struggling at all. Indeed, because of Clemente's bent
posture, she thought he had already been shot or seriously
injured. She did not see the defendant with a weapon at that
point, but she distinctly heard the defendant say to
Clemente, "I'm going to kill you." She then ...