Court of Providence County, PM 11-5771 William P. Robinson
Petitioner: George J. West, Esq.
State of Rhode Island: Lauren S. Zurier Department of
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
William P. Robinson, Associate Justice
petitioner, Tracey Barros, appeals from the May 20, 2015
judgment entered in accordance with a May 18, 2015 written
decision of a justice in Providence County Superior Court
denying his application for postconviction relief. He
contends on appeal that "indigent funding ought to have
been provided, in the post conviction proceeding, to hire the
proposed expert witness to demonstrate the availability of
the issue of false confession and to establish trial
counsel's ineffectiveness in failing to utilize the
available defense at trial." It is further his
contention on appeal that he was denied the effective
assistance of counsel by both his trial counsel and his
appellate counsel with respect to his original criminal case.
Lastly, he avers that the justice should have recused himself
from hearing the instant application for postconviction
reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
and Travel 
April 27, 2005, the body of Deivy Felipe was discovered on
Althea Street in Providence, the decedent having suffered
from multiple gunshot wounds. Later that year, in December of
2005, Mr. Barros was arrested for possession of a pistol
without a license. After being interrogated by the Providence
police and the federal Bureau of Alcohol, Tobacco, Firearms,
and Explosives, Mr. Barros ultimately confessed to the murder
of Mr. Felipe. Mr. Barros was indicted by a grand jury on the
following offenses: first-degree murder, in violation of G.L.
1956 §§ 11-23-1 and 11-23-2; conspiracy to commit
murder, in violation of G.L. 1956 §§ 11-1-6 and
11-23-1; discharge of a firearm while committing a crime of
violence, in violation of G.L. 1956 § 11-47-3.2(b)(3);
and carrying a firearm without a license, in violation of
§ 11-47-8(a). Prior to Mr. Barros's first trial,
moved to suppress his confession, and that motion was denied
after a hearing; prior to his second trial, he renewed his
previously-made motion to suppress his confession, and the
justice again determined that the confession could be
admitted. On January 18, 2008, Mr. Barros was found guilty by
a jury on all four counts charged against him. This Court
affirmed his conviction in State v. Barros, 24 A.3d
1158 (R.I. 2011). We refer the interested reader to our
opinion in that case for a more detailed recitation of the
facts pertaining to Mr. Barros's criminal case.
the postconviction relief action now before us, the docket
sheet reflects the fact that a complaint was filed on October
6, 2011. Subsequently, on January 3, 2013, Mr.
Barros filed his first amended petition for postconviction
relief. He then amended his petition on two more
occasions, ultimately filing a third amended petition for
postconviction relief on June 11, 2014. The third amended
petition for postconviction relief contained three counts of
ineffective assistance of trial counsel for: (1)
"failure to consider and present expert testimony in the
area of false confessions" at Mr. Barros's trial;
(2) "failure to file a recusal motion" at Mr.
Barros's trial; and (3) failure to "attempt to
elicit information from certain prospective jurors regarding
potential predisposition against Barros as it relates to
issues surrounding his alleged confession." The third
amended petition also contained one count of ineffective
assistance of appellate counsel for "failure to raise
the issue of undue limitation of voir dire * *
pertinent to this appeal is the fact that, on May 24, 2012,
Mr. Barros's court-appointed attorney appeared before the
justice and requested "funds to hire an expert on false
confessions." He argued that he wanted to hire an expert
witness "to identify risk factors that might be involved
or presented by Mr. Barros, and then to give * * * an opinion
of whether this -- an expert would have been helpful in this
case." After a hearing was held with respect to that
request, the justice denied the request for funds.
Thereafter, on April 2, 2014, Mr. Barros also made a motion
for the justice to recuse himself based on "comments
indicating bias against Barros, or which created an
appearance of bias that would reasonably cause members of the
public or Barros to question the * * * justice's
April 27, 2015, a final hearing was held on Mr. Barros's
application for postconviction relief. Mr. Barros's trial
counsel testified at the April 27, 2015 hearing, as did two
public defenders who assisted Mr. Barros's trial counsel
at the second trial. On May 18, 2015, the justice issued a
written decision denying Mr. Barros's application for
postconviction relief and declining to recuse himself. Mr.
Barros filed a timely notice of appeal.
Barros argues on appeal that the justice, in presiding over
his application for postconviction relief, erred in denying
his request for funds to hire an expert on false confessions.
He further alleges that trial counsel at his criminal trial
was ineffective for failing to present an expert on false
confessions as a witness at his trial. Mr. Barros also posits
that his trial counsel was ineffective for failing to file a
motion for the recusal of the justice at Mr. Barros's
second criminal trial and for failing to conduct an adequate
voir dire at the second criminal trial. Additionally, Mr.
Barros avers that his appellate counsel was ineffective for
failing to "explore" what Mr. Barros categorizes as
the improper limitation on voir dire by the justice and,
consequently, for failing to raise that issue on appeal.
right to seek postconviction relief is a right provided by
statute-G.L. 1956 § 10-9.1-1-and is "available to a
convicted defendant who contends that his original conviction
or sentence violated rights afforded to him under the state
or federal constitution." Hazard v. State, 968
A.2d 886, 891 (R.I. 2009) (internal quotation marks omitted);
see also Page v. State, 995 A.2d 934, 942 (R.I.
2010). The applicant for postconviction relief "bears
the burden of proving, by a preponderance of the evidence,
that such relief is warranted in his or her case."
DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011).
When passing on a decision to grant or deny postconviction
relief, "this Court will refrain from disturbing a trial
justice's factual findings absent a showing that the
trial justice overlooked or misconceived material evidence or
otherwise was clearly wrong." Hazard, 968 A.2d
at 891; see also Azevedo v. State, 945 A.2d 335, 337
(R.I. 2008). However, as we have repeatedly stated,
"this Court will review de novo any
post-conviction relief decision involving questions of fact
or mixed questions of law and fact pertaining to an alleged
violation of an applicant's constitutional rights."
Hazard, 968 A.2d at 891 (internal quotation marks
omitted); see also Page, 995 A.2d at 942. That being
said, "when we are called upon to conduct such a de
novo review with respect to issues of constitutional
dimension, we still accord great deference to a hearing
justice's findings of historical fact and to inferences
drawn from those facts." DeCiantis, 24 A.3d at
569 (internal quotation marks omitted); see also
Hazard, 968 A.2d at 891.
have frequently indicated, "[t]he law in Rhode Island is
well settled that this Court will pattern its evaluations of
the ineffective assistance of counsel claims under the
requirements of Strickland v. Washington, 466 U.S.
668 * * * (1984)." Brennan v. Vose, 764 A.2d
168, 171 (R.I. 2001); see Page, 995 A.2d at 942. In
our review, "the benchmark issue 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." Young v. State,
877 A.2d 625, 629 (R.I. 2005) (internal quotation marks
Strickland standard consists of two prongs. See
Ouimette v. State, 785 A.2d 1132, 1139 (R.I. 2001).
"First, an applicant must demonstrate that counsel's
performance was deficient, to the point that the errors were
so serious that trial counsel did not function at the level
guaranteed by the Sixth Amendment." Page, 995
A.2d at 942 (internal quotation marks omitted); see also
Young, 877 A.2d at 629. In order to be considered
ineffective under the first prong of Strickland,
"trial counsel's performance must have fallen below
an objective standard of reasonableness * * * considering all
the circumstances." Page, 995 A.2d at 942
(internal quotation marks omitted); see also
Brennan, 764 A.2d at 171. We also bear in mind the
principle that "a strong (albeit rebuttable) presumption
exists that counsel's performance was competent, "
Page, 995 A.2d at 942 (internal quotation marks
omitted), and that "counsel's strategy and tactics
fall within the range of reasonable professional
assistance." Knight v. Spencer, 447 F.3d 6, 15
(1st Cir. 2006) (internal quotation marks omitted).
"[C]ourts should avoid second-guessing counsel's
performance with the use of hindsight." Id.
second prong of Strickland requires the applicant to
"demonstrate 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." Page, 995 A.2d at 943 (internal
quotation marks omitted); see also Young, 877 A.2d
at 629. Satisfying this second prong of Strickland
requires a showing that "there is a reasonable
probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Page, 995 A.2d at 943
(emphasis in original) (internal quotation marks omitted).
That is a "highly demanding and heavy burden."
Knight, 447 F.3d at 15 (internal quotation marks
have stated, "[u]nless a defendant makes both showings,
it cannot be said that the conviction or * * * sentence
resulted from a breakdown in the adversary process that
renders the result unreliable." Young, 877 A.2d
at 629 (internal quotation marks omitted). As such, "[a]
defendant's failure to satisfy one prong of the
Strickland analysis obviates the need for a court to
consider the remaining prong." Knight, 447 F.3d
Ineffective Assistance of Trial Counsel 1. Expert Witness on
order to address Mr. Barros's contention that his trial
counsel was ineffective for failing to present an expert on
false confessions at his criminal trial and also his
contention that the justice erred in denying his request for
funds to hire an expert witness in connection with his
application for postconviction relief, we must discuss in
more detail the facts of the instant case.
24, 2012, a hearing was held, at which Mr. Barros's
counsel requested "funds to hire an expert on false
confessions" in order to advise counsel as to whether or
not "an expert would have been helpful in this
case." An exchange ensued between counsel for both
parties and the justice with respect to what Mr. Barros's
counsel contended would have been testified to by such an
expert at trial and whether or not testimony of such an
expert would have been admissible at the trial. Mr.
Barros's counsel stated:
"I'm not asking, or I'm not looking for an
expert to come in and say Mr. Barros was telling the truth or
lying when he made the confession. What I'm looking for
is an expert - and I know those experts are out there - that
would look and testify, look and testify about risk factors.
First of all, explain to a juror that sometimes people do
admit falsely to committing crimes, what are the risk
factors, are the risk factors present, and then, not
necessarily say in this case Mr. Barros was telling the truth
or not, but ...