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Chum v. State

Supreme Court of Rhode Island

May 23, 2017

Yara Chum
v.
State of Rhode Island

         Providence County Superior Court PM 13-1919 Robert D. Krause Associate Justice

          For Applicant: Camille A. McKenna Office of the Public Defender

          For State: Aaron L. Weisman Department of Attorney General

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Gilbert V. Indeglia Associate Justice.

         Yara Chum (Chum or applicant), appeals the denial of his application for postconviction relief. This case came before the Supreme Court on May 2, 2017, 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 hearing the arguments of counsel and reviewing the memoranda of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

         I

         Facts and Travel

         The facts underlying this case are set forth in State v. Chum, 54 A.3d 455, 457 (R.I. 2012), where this Court affirmed Chum's conviction for two felony counts of assault with a dangerous weapon and one count of discharging a firearm while committing a crime of violence. Distilled to its essence, this case involves "a drug deal gone awry." Id. On March 1, 2009, Frances Meseck, Jr. met Matthew DePetrillo to sell him marijuana. DePetrillo, accompanied by another man, entered Meseck's car. While examining the marijuana, DePetrillo's companion jumped out of the vehicle and ran off with it. While Meseck drove after the companion, DePetrillo jumped out of the vehicle.

         In an attempt to avenge the thievery, Meseck and his friend, James Monteiro, vandalized the home of DePetrillo's friend, Erin Murray. Upon learning about the vandalism, DePetrillo called Meseck and threatened "to kick in [his] door with a .44 and shoot [him]." Meseck called the other residents of his household, Monteiro, James McArdle, and Lorenzo Saraceno, to warn them of DePetrillo's threat. Sitting outside on the house's porch, Monteiro, McArdle, and Saraceno observed two Asian males approach, who were later identified as Chum and Samnang Tep. After the two groups exchanged words, Chum told Tep to shoot the men and Tep fired a shot at the porch, which hit the porch railing. Tep and Chum then fled the scene.

         Chum was subsequently charged with two counts of felony assault with a dangerous weapon, one count of conspiracy to commit assault with a dangerous weapon, one count of carrying a firearm while committing a crime of violence, and one count of discharging a firearm while committing a crime of violence.[1] After a Providence Superior Court jury found Chum guilty, the trial justice sentenced him to ten years on each of the felony assault counts, to be served concurrently, and ten years on the firearm count, to be served consecutively with five years to serve and five years suspended, with probation.

         On April 16, 2013, Chum filed a pro se application for postconviction relief, and counsel was thereafter appointed. In support of his application, Chum argued that he had ineffective assistance of counsel because his trial attorney failed to move for a mistrial after the state mentioned Chum's statement to the police during its opening statement, but did not introduce it into evidence.[2] Specifically, Chum referenced the following statement by the prosecutor:

"I told you we'd prove this case with witnesses; we'd also prove it with the defendant's words himself, because, when the detectives came to the Cranston Police Department, they read him his rights and sat down and talked to him. And the defendant told him that he was contacted by Erin [Murray] and told that she needed him to take care of something; that she wanted them to take care of some kid named Frankie for smashing her windows; that he drove down to Peach Avenue with Matthew DePetrillo and Erin [Murray] so that they could point out the house; that he approached the house with a friend, Vang Chhit; that he approached some guys on the porch; that he ordered Chhit to shoot the guys; that Erin [Murray], Matthew DePetrillo and Samnang Tep were in a different car waiting around the corner; and that he and Chhit fled in separate cars, one red, and one white. You'll hear that. You'll hear about the defendant giving that statement to the Providence Police."[3]

         On December 1, 2014, the same trial justice entered a judgment and a written decision that denied Chum's postconviction-relief application.[4] He rejected the argument that Chum had ineffective assistance of counsel because of his trial attorney's failure to seek a mistrial or a curative instruction after the prosecutor's comment during the state's opening statement. The trial justice found this assertion meritless because the prosecutor's statement was not made in bad faith. Additionally, the trial justice noted that he gave cautionary instructions to the jury on four occasions.[5] The trial justice stated that, regardless, he would not have granted a mistrial even if the trial attorney had requested one. Accordingly, the trial justice concluded that "[g]iven the overwhelming other evidence of Chum's guilt, coupled ...


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