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Barros v. State

Supreme Court of Rhode Island

April 4, 2018

Tracey Barros
v.
State of Rhode Island.

         Superior Court of Providence County, PM 11-5771 William P. Robinson Associate Justice

          For Petitioner: George J. West, Esq.

          For State of Rhode Island: Lauren S. Zurier Department of Attorney General

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

          OPINION

          William P. Robinson, Associate Justice

         The petitioner, Tracey Barros, appeals from the May 20, 2015 judgment entered in accordance with a May 18, 2015 written decision of a justice[1] 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 relief.

         For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I

         Facts and Travel [2]

         On 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, [3] he 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.

         As to the postconviction relief action now before us, the docket sheet reflects the fact that a complaint was filed on October 6, 2011.[4] Subsequently, on January 3, 2013, Mr. Barros filed his first amended petition for postconviction relief.[5] 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 * * *."

         Also 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 impartiality."

         On 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.

         II

         Issues on Appeal

         Mr. 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.

         III

         Standard of Review

         The 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.

         IV

         Analysis

         As we 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 omitted).

         The 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.

         The 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 omitted).

         As we 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 at 15.

         A

         Alleged Ineffective Assistance of Trial Counsel 1. Expert Witness on False Confessions

         In 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.

         a.

         Request for Funds

         On May 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 ...

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