Petitioner: William V. Devine, Jr., Esq.
Defendant: Gina K. Lopes, Esq.
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 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. Martinez, 59 A.3d at 83.
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.
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.
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.
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, " 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.
to these overlapping claims is one issue: whether trial
counsel was ineffective by deciding to forego a defense of
diminished capacity. 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.
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
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.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
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.
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.
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.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))).
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.). 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
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.
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.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.
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.
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.
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.
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 ...