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Martinez v. State

Superior Court of Rhode Island

March 7, 2018


          For Petitioner: William V. Devine, Jr., Esq.

          For Defendant: Gina K. Lopes, Esq.


          MONTALBANO, J.

         This matter is before the Court for decision following a hearing on the application of Gerardo Martinez (Petitioner or Martinez) for postconviction relief. Petitioner claims that he did not receive effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, and article I, section 10 of the Rhode Island Constitution. The Court exercises jurisdiction pursuant to G.L. 1956 §§ 10-9.1-1 and 10-9.1-2.


         Facts and Travel

         The facts underlying this case are set forth in State v. Martinez, 59 A.3d 73 (R.I. 2013) and are incorporated by reference herein. On September 13, 2005, Martinez committed the appalling, brutal murder of Lindsay Ann Burke. To this day, he does not deny doing so. See Application for Post Conviction Relief (Application); see also Martinez, 59 A.3d at 94. On January 26, 2007, in K1-2005-0570A, a jury convicted Martinez of first-degree murder and driving a motor vehicle without the consent of the owner. See Application; Martinez, 59 A.3d at 82. The jury further found that the murder was committed with both aggravated battery and torture of Ms. Burke.[1] Martinez, 59 A.3d at 83.

         The trial justice then held a presentence hearing at which Martinez's defense counsel, Mark L. Smith, Esq. (Attorney Smith or trial counsel), presented the testimony of Ronald M. Stewart, M.D. (Dr. Stewart), a clinical and forensic psychologist. Id. Dr. Stewart diagnosed Martinez with post-traumatic stress disorder, chronic major depressive disorder, panic disorder, and alcohol abuse disorder. Id. Dr. Stewart testified that Martinez was contrite about his crime. Id. Ultimately, Dr. Stewart opined that Martinez could be rehabilitated and would not be a recidivist. Id. His opinion was rendered notwithstanding the fact that Martinez had a "lengthy history as a violent domestic abuser." Id. at 93; see also id. at 83.

         Nevertheless, the trial justice found that any mitigating factors applicable to Martinez were outweighed by "his lack of true remorse or acceptance of responsibility . . . ." Id. at 84. The trial justice characterized the evidence of Martinez's medical conditions as a "shallow attempt[] to blame others" for the "vile, heinous[, ] and completely unnecessary[, ] unjustified slaying." Id. at 83. Citing the minutes of "horror" and the "inordinate number of wounds" Martinez inflicted on Ms. Burke while she was still alive and able to feel them, the trial justice agreed with the jury that the murder involved torture and aggravated battery. Id. at 84. The trial justice believed Martinez's potential for rehabilitation to be "extremely poor." Id. Accordingly, and noting his likely futile desire to deter societal domestic violence, the trial justice sentenced Martinez to life imprisonment without the possibility of parole for Ms. Burke's murder. Id. The Rhode Island Supreme Court affirmed the conviction and imposition of that sentence. Id. at 95.

         On February 6, 2013, Petitioner filed the instant Application seeking vacation of his conviction and a new trial. As grounds for such relief, Petitioner raises several issues. Petitioner claims that his trial counsel was ineffective by (1) failing to obtain qualified experts to testify on Petitioner's behalf; (2) failing to present a diminished-capacity defense; (3) failing to present any defense to the jury; (4) failing to adequately prepare for a speedy trial, failing to adequately cross-examine State witnesses, and failing to have Petitioner timely evaluated and diagnosed; (5) failing to obtain a forensic pathologist to aid the defense in cross-examining the State's pathologist and failing to allow Petitioner to testify; and (6) failing to take defense strategy in the direction promised to Petitioner and his family, thus not presenting the jury with evidence that the Petitioner suffered from Post-Traumatic Stress Disorder (PTSD). Petitioner also contends that his appellate counsel was ineffective by not properly raising or arguing all issues.

         Petitioner's counsel provided a summary of the issues set forth in the petition for postconviction relief-narrowing them down to three. See Pet'r's Mem. in Supp. of Pet. for Post-Conviction Relief (Pet'r's Mem.) at 22-23. First, Petitioner asserts that his trial counsel failed to provide effective assistance guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and article I, section 10 of the Rhode Island Constitution when he failed to secure experts to testify on Petitioner's behalf at trial. Id. at 22. Secondly, Petitioner alleges that his trial counsel was ineffective in failing to pursue the defense of diminished capacity "as promised to the defendant and his family[2], " and that a diminished capacity defense should have been used regarding murder in the first degree with specific intent. Id. Lastly, Petitioner contends that his trial counsel failed to provide effective assistance of counsel because trial counsel did not put forth a defense for the jury to consider in their deliberations in violation of Petitioner's Sixth and Fourteenth Amendment rights.

         Central to these overlapping claims is one issue: whether trial counsel was ineffective by deciding to forego a defense of diminished capacity.[3] The gravamen of Petitioner's argument is that his trial counsel should have presented such a defense because it would have negated the requisite intent for first-degree murder. Attorney Smith's decision not to do so, according to Petitioner, resulted in Petitioner's first-degree murder conviction. Consequently, Petitioner maintains that he was denied his constitutional right to effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution.

         Upon instituting these postconviction relief proceedings, Petitioner was afforded court-appointed counsel. See § 10-9.1-5. Two attorneys withdrew from representing Petitioner. Eventually, on April 1, 2015, Kenneth C. Vale, Esq. (appointed counsel) entered his appearance on behalf of Petitioner. However, Mr. Vale, too, moved to withdraw on November 3, 2015. "After a thorough and conscientious examination, " appointed counsel found the issues raised by Petitioner in his Application "to be wholly frivolous, without merit, and neither supported by existing law, nor by a good faith argument for the extension, modification, or reversal of existing law." (Mot. to Withdraw.)

          In support thereof, appointed counsel submitted an extensive Shatney "no-merit" memorandum detailing his efforts to pursue Petitioner's claims and why those issues lack merit.[4]Appointed counsel first outlined Petitioner's allegations, enumerated above, which amount to a claim "that he received ineffective assistance of counsel because he disagrees with strategic choices made by defense counsel." (Mem. in Supp. Mot. to Withdraw 7.) Specifically, Petitioner disagrees with "[trial] counsel's decision to utilize Dr. Stewart as a defense witness at the sentencing hearing to testify on the issue of [Martinez's] potential for rehabilitation-rather than presenting a diminished[-]capacity defense at trial." Id. Appointed counsel then discussed trial counsel's representation of Petitioner, concluding that "[f]rom a thorough and objective review of this file, it is abundantly clear that Attorney Smith was more than adequately prepared to try this case[.]" Id. at 8. Appointed counsel included a list and description of precisely each motion, argument, and decision trial counsel made before, during, and after the trial. See id. at 8-11.

         At that point, appointed counsel stated the requirements of Shatney and affirmed his compliance therewith. See id. at 12-13; see also Shatney, 755 A.2d at 135, 136-37. His efforts were substantial and culminated in his professional opinion that Petitioner's Application was frivolous and lacked merit. See Mem. in Supp. Mot. to Withdraw 13-14. Nevertheless, appointed counsel proceeded to discuss his research validating such a conclusion. After setting forth the standard of review for ineffective assistance of counsel claims, appointed counsel undertook a lengthy, thorough analysis of case law and the issues raised by Petitioner. See id. at 14-73.

         Ultimately, appointed counsel believed that trial counsel made a sound strategic decision in employing Martinez's mental health diagnoses to seek leniency at sentencing, rather than as a defense at trial. Id. at 53, 61, 63. Appointed counsel also professed that he found Petitioner's claim that trial counsel was ineffective in failing to call an expert witness to be meritless, as it was not supported by the record. Id. at 67. Finally, appointed counsel opined that it was wise for trial counsel to advise Martinez not to testify given his unapologetic remarks at sentencing. Id. at 72-73. In conclusion, appointed counsel asserted that "Attorney Smith's representation was in no way ineffective, deficient, or prejudicial . . . ." Id. at 76. After all, even the trial justice had commended Attorney Smith for his excellence in defending Martinez. Id. at 73.

         Following a hearing on December 15, 2015, this Court granted appointed counsel's motion to withdraw, entering an order to that effect on April 7, 2016. Once a court permits an appointed attorney to withdraw from representing a postconviction relief applicant, it was the normal course of procedure for the court to "advise the applicant that he or she shall be required to proceed pro se, if he or she chooses to pursue the application." Shatney, 755 A.2d at 135.[5]Ordinarily, pursuant to § 10-9.1-6(b), the court could then summarily dismiss the meritless application without an evidentiary hearing, '"so long as an applicant is provided with an opportunity to respond to the court's proposed dismissal."' Tassone v. State, 42 A.3d 1277, 1285 (R.I. 2012) (quoting Brown v. State, 32 A.3d 901, 909 (R.I. 2011)); see also Shatney, 755 A.2d at 133 (stating that "the post-conviction relief statute provides that the court may dismiss an application on the pleadings if, after reviewing the application, the answer or motion, and the record, the court determines that it lacks merit" (citing § 10-9.1-6(b))).

         Here, however, the Court was faced with another requirement. In Martinez-Petitioner's appeal to the Rhode Island Supreme Court-the Court emphasized, "We cannot overstate the gravity of a sentence of life imprisonment without the possibility of parole. It 'is the most severe sentence authorized by Rhode Island law.'" 59 A.3d at 90 (quoting State v. Carpio, 43 A.3d 1, 13 (R.I. 2012)). For that same reason, our Supreme Court pronounced a new rule in Tassone: "In light of the severity of this sentence, we hold, therefore, that from this point forward, an evidentiary hearing is required in the first application for postconviction relief in all cases involving applicants sentenced to life without the possibility of parole." 42 A.3d at 1287; see also Davis v. State, 124 A.3d 428, 428-29 (R.I. 2015) (mem.).[6] Accordingly, given that Petitioner was sentenced to life imprisonment without the possibility of parole and that this is his first application for postconviction relief, this Court held an evidentiary hearing on the merits of Petitioner's ineffective assistance of counsel claims.[7]

         The following facts were adduced at the three-day evidentiary hearing beginning on July 31, 2017. Attorney Smith has been litigating in Rhode Island since 1973. He has handled close to 1000 criminal cases, trying close to 300. (Hr'g Tr. 44, 45.) Approximately one-quarter of the cases he has handled involved capital crimes, and he tried about one-half of those. All in all, Attorney Smith testified that he had tried at least forty murder cases prior to this one. In each case, he was called upon to make strategic decisions about the best possible defense. In this case, grasping the "extremely difficult" nature of the facts, Attorney Smith's decision-making was influenced accordingly. Hr'g Tr. 46:3-23.

         Attorney Smith learned of the difficult facts of the case through discovery. He reviewed everything-each and every document-he received from the State. Attorney Smith received a large group of photographs which showed the result of that fateful day. He testified that "[w]ithout question" the pictures factored into the decisions he made going forward regarding how to best defend Petitioner. Id. at 47:23-48:1. The graphic photographs told the whole story.[8]The altercation had begun in the living room when Petitioner punched Ms. Burke in the nose, as evidenced by the blood droplets on the couch and in a circular pattern on the floor. See State's Exs. B & J. Attorney Smith could tell that Ms. Burke then moved to the bathroom due to the bloody tissues in the bathroom wastebasket. See State's Ex. C. It was also evident that Ms. Burke suffered the fatal blow while she was on the toilet because of the "huge massive hemorrhage" on the floor and the transfer stain on the toilet. See Hr'g Tr. 51:3-5; see also State's Ex. F. The blood in front of the toilet and the two arcs of blood on the wall indicated that she had moved after her jugular vein was severed. See State's Ex. G. The picture of Ms. Burke's new love interest that had been in her pocketbook in the living room was found in the bathroom sink, showing that Petitioner had been in a fit of rage and jealousy. See State's Ex. D. After he killed Ms. Burke, Petitioner put her in the bathtub and covered her with a blanket and stuffed animal. See State's Exs. H & I.

         Attorney Smith analyzed the information he received and tried to determine how to "soften" the impact of the photographs on the jury. Hr'g Tr. 55:9-13. He testified that he felt the whole case would be over as soon as the pictures were shown. Id. In that regard, he tried to come up with the best approach for the jury to understand how this brutal killing took place. Id. at 55:13-16. In Attorney Smith's opinion, a defense that Petitioner suffered from PTSD would not go over well with the jury. Id. at 55:16-56:2. Further complicating the matter was the confession video Petitioner recorded after the murder. See State's Ex. M. In the video, Petitioner appeared calm, cool, and collected while apologizing for killing Ms. Burke and making excuses for doing so; he then went to the bank and withdrew money. See Hr'g Tr. 56:17-25.

         Consequently, Attorney Smith needed to find some other way to convince the jury that the killing was second-degree murder rather than first-degree murder. There was no question that Petitioner killed Ms. Burke-he admitted as much on videotape. Attorney Smith's only goal was to secure a second-degree murder conviction for his client. Id. at 57:14-16. He believed that the best defense to accomplish this goal was that the murder was a crime of passion, not premeditated. Id. at 57:10-13. Attorney Smith would attempt to demonstrate to the jury that Petitioner was a "very jealous" man, that Ms. Burke was "foolish enough" to keep a photograph in her purse of the new object of her affection, and that Petitioner snapped when he found the picture. Id. at 56:2-8, 60:24-61:6. The confession video Petitioner recorded after the murder and the purported suicide note Petitioner penned before attempting to take his own life both had language that could help Attorney Smith make such an argument: Petitioner "snapped" when he found out that Ms. Burke had lied to him and cheated on him, and he could not deal with the feeling that he had been "f***ed over" yet again. See State's Exs. M & N.

         While Attorney Smith considered the crime of passion argument to be Petitioner's best possible avenue to convince the jury that a second-degree murder conviction was appropriate in this case, he was also extremely concerned that the diminished-capacity defense was going to present significant risk to the Petitioner if presented to the jury. However, that is not to say that Attorney Smith failed to consider a diminished-capacity defense in this case. When Attorney Smith first met with Petitioner-before Petitioner had been indicted and thus before they had received discovery-he instructed Petitioner to sign a medical release form. Thereafter, Attorney Smith sent requests for medical records to three of Petitioner's medical providers. See Pet'r's Exs. 2, 3 & 4. Although he did not start to develop a theory of defense right away, Attorney Smith gathered and reviewed the medical records because he knew "they were important." Hr'g Tr. 9:8-11. Once he received discovery and "got [his] arms around the evidence, " he began to think about the best way to go about defending Petitioner. Id. at 10:24-11:13.

         At some point, Attorney Smith considered employing the services of an expert witness. He first needed to discuss with a psychiatrist whether a defense of diminished capacity was a viable one. To that end, he spoke with Dr. Stewart. Attorney Smith does not recall when he first engaged Dr. Stewart, but Dr. Stewart was hired sometime after October 2006. See Pet'r's Exs. 5, 6 & 7. Attorney Smith and Dr. Stewart had a conversation regarding whether it would be worthwhile to utilize a forensic psychiatrist in Petitioner's defense. Attorney Smith testified that he "believe[d]" he received a report from Dr. Stewart before the trial. Hr'g Tr. 16:16-18. In fact, Attorney Smith received two reports from Dr. Stewart-one dated March 12, 2007 and the other dated April 9, 2007. See Pet'r's Exs. 9 & 10. The two different reports addressed guilt and mitigation, respectively. See id. Clearly there were two reports with two dates, both addressed to Attorney Smith after the trial had concluded. However, Attorney Smith met with Dr. Stewart in person to discuss the case before trial. They discussed what Attorney Smith was attempting to do, and Attorney Smith provided Dr. Stewart with the records from Petitioner's other medical providers. According to Attorney Smith, they "definitely" had "significant" conversations before trial which factored into Attorney Smith's decision not to use Dr. Stewart in the defense-in-chief. Hr'g Tr. 25:15-19, 35:20-36:1.

          Attorney Smith had a significant concern about having Dr. Stewart testify at trial. He was concerned that evidence from the State showing Petitioner's previous abuse of Ms. Burke, as well as his abusive relationships with his ex-wife and ex-girlfriend, would be admissible. The testimony of Dr. Stewart would have opened the door for this evidence to be admitted at trial. Attorney Smith explained his concern as follows: If Dr. Stewart's opinion was based on X history, the prosecutor could cross-examine him as to whether his opinion would change if he knew about facts Y and Z. Id. at 26:3-11. In that way, the fact that Petitioner was assaultive not only to Ms. Burke on multiple occasions, but also physically and sexually abusive in other relationships, would be heard by the jury even if Dr. Stewart answered the prosecutor in ...

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