Plaintiff: Robert J. Caron, Esq.
Defendant: Jeanine P. McConaghy, Esq.
matter is before the Court on the petition of Jaimeson
Rushlow (Petitioner) seeking postconviction relief.
Petitioner claims he was denied 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, which resulted in his
conviction. For the reasons stated herein, Petitioner's
claim for postconviction relief is denied. Jurisdiction is
pursuant to G.L. 1956 §§ 10-9.1-1 et seq.
February 1, 2010, a Superior Court jury convicted Petitioner
of first-degree sexual assault and domestic assault with
intent to commit sexual assault. A complete factual account
of the trial can be found at State v. Rushlow, 32
A.3d 892 (R.I. 2011). The pertinent facts relevant to the
underlying criminal case are as follows: Petitioner was
represented by Assistant Public Defender Richard Brousseau
(Mr. Brousseau). The complaining witness was
Petitioner's wife, Ms. Frances Rushlow
(Frances). Petitioner and Frances were married and
had two minor children together. The couple separated in the
summer of 2007 but continued to share custody of their
testified at trial that during the early morning hours of
June 19, 2008, she was sleeping in her bed with her children
when she was awakened by Petitioner. She had no idea how
Petitioner gained entry into the apartment. Frances testified
that Petitioner pulled her off the bed by her arms.
Petitioner then pulled her from her bedroom to the living
room while she struggled to get free. Once in the living
room, Petitioner pinned her to the floor, removed her
clothes, and sexually assaulted her. At some point during the
altercation, Frances burnt Petitioner on the hand with a lit
cigarette. After the sexual assault, Petitioner left the
apartment. Frances did not immediately report the assault.
However, later that day, she called the police to report the
incident and traveled to Pawtucket Memorial Hospital for a
medical examination. Seminal fluid was obtained and
eventually linked to Petitioner as the result of a DNA match.
that same day, Petitioner was arrested by the Cumberland
Police Department. When questioned by the police about the
report made by Frances, Petitioner denied being in the
apartment and denied sexually assaulting Frances. At the
criminal trial, he recanted his denial and admitted that he
was, in fact, in the apartment and admitted that the two had
sex but alleged it was consensual. Petitioner also testified
at the criminal trial that he was walking by Frances'
apartment at around 1:00 a.m. on June 19, 2008 and noticed a
light on. He testified that the outside door and the
apartment door were both unlocked and that is how he gained
entry to the apartment. He testified that he and Frances
talked and drank wine, which eventually led to consensual
sex. Soon thereafter, an argument ensued between the two and
he left the apartment. Petitioner testified that he initially
lied to the police because he was in fear of being in
violation of a no contact order in effect at the time.
the criminal trial, the State presented Frances'
neighbor, who testified that he saw Petitioner on the fire
escape outside Frances' apartment window and heard
yelling and banging noises coming from the apartment on the
night in question. In addition, the State provided physical
evidence of the injuries to Frances' body, which
corroborated her testimony. The State also presented evidence
that Petitioner had a noticeable scratch on his body and a
burn mark on his hand, which also corroborated Frances'
testimony. The State further provided evidence that
Petitioner, while in prison, attempted to enlist third
parties to keep Frances away from her property so she could
not be subpoenaed to testify at the criminal trial.
postconviction relief (PCR) hearing before this Court,
Petitioner alleged that he was denied effective assistance of
counsel for three reasons. First, Petitioner testified that
during the course of his criminal proceeding, he was
wrongfully prohibited from replacing his then-attorney, Mr.
Brousseau. The hearing on his motion to terminate Mr.
Brousseau's representation occurred on February 9, 2009.
Petitioner testified that he was told by Mr. Brousseau that
he would have to hire his own attorney if his appointed
attorney was fired. He therefore argues that he was forced to
retain his attorney because he could not afford to hire
private counsel. The transcript of the hearing reveals the
The Clerk: State your name for the record.
The Defendant: Jameson [sic] Rushlow.
The Clerk: And your address?
The Defendant: 9 Cushing Street, Cumberland, Rhode
Island. The Clerk: Your date of birth?
The Defendant: 4/21/73.
The Clerk: Your Honor, the defendant is before this Court on
P1/08-2606A for motions. Counsel, state your name for the
Mr. Brousseau: Richard A. Broussea [sic], Assistant Public
Defender, for Mr. Rushlow.
The Court: Mr. Brousseau, my understanding is there has been
some discord, but now Mr. Rushlow is fine with your
Mr. Brosseau: Judge, there has been no discord on my part.
I did speak with Mr. Rushlow, and he can correct me if
I'm wrong, prior to my receiving this motion when I came
back to my office one day, a month or whatever ago, Mr.
Rushlow had called me in the meantime. He explained he filed
a motion. He felt badly he filed a motion for whatever
reason, and I told him he need not worry, I understand that,
and if he wants another attorney, he can get another
attorney, but he is going to have to hire one, he is not
going to get one through the public defender's office,
and I think he is okay now with my representation, Judge.
The Court: Mr. Rushlow, what is the nature of your motion?
The Defendant: Just the fact that I don't get to see him
like I thought I would be able to see him, and he was
explaining to me his case, you know, and [I] talked to a lot
of people, you know, and I talked to him earlier this
morning, and I said I was comfortable with him, and I'll
withdraw the motion.
The Court: I'm going to allow you to withdraw your
motion. You do understand that Mr. Brousseau-certainly, it is
not intentional if he is unable to spend a great deal of time
with you. Do you understand that?
The Defendant: Yes, sir, I do.
The Court: So, you're withdrawing your motion to replace
counsel. I'm going to allow that from what you said.
We'll go to the next case. (Pet'r's Ex. 2 at
second basis for his argument regarding ineffective
assistance of counsel, Petitioner testified before this Court
that Mr. Brousseau's representation of him was deficient
because Mr. Brousseau failed to satisfy Petitioner's
tactical demands during trial. Specifically, Petitioner
contends that Mr. Brousseau failed to cross-examine Frances
about a previous incident with her ex-husband and failed to
call certain witnesses to testify in Petitioner's
defense. Petitioner testified that he notified Mr. Brousseau
of an incident where Frances' ex-husband entered her
apartment at night, went to her bedroom where she and her
boyfriend were sleeping, and dragged her out of bed.
Petitioner testified that he believed the similarities
between the allegations against him and the allegations
against her ex-husband would reflect negatively on
Frances' credibility. To support his contention,
Petitioner provided the Court with the ex-husband's plea
of nolo contendere form and statements given by a
Pawtucket Police Officer, Frances and her boyfriend.
(Pet'r's Ex. 6.) Petitioner also testified that he
notified Mr. Brousseau of other witnesses that could testify
regarding the scope of his relationship with Frances leading
up to the night of the incident.
third and final argument claims that he received ineffective
assistance of counsel because Mr. Brousseau failed to present
documentary evidence to Petitioner that was used by the State
during the criminal trial to cross-examine him. The evidence
Petitioner claims to not have received prior to
cross-examination by the State includes DNA reports,
transcripts of recorded telephone conversations Petitioner
had with his brother while at the ACI and a letter written by
Petitioner to Frances.
PCR hearing, Petitioner also provided a transcript in which
he addressed his complaints regarding Mr. Brousseau's
representation to the justice presiding over his criminal
trial. The transcript is dated February 1, 2010, and is
marked as Petitioner's Exhibit 3. At the time Mr. Rushlow
asked to address the trial justice, all of the evidence had
been presented and the attorneys were ready to present
closing arguments. The pertinent parts of the transcript are
Defendant: I did try to speak to him.
The Court: Have you shown him what you're going to read
the Court this morning?
The Defendant: No, I haven't.
The Court: Would you like to opportunity to do that?
The Defendant: If he wants to look at it. I don't think
he's going change --
The Court: I would like you to have an opportunity to show
Mr. Brousseau what you've written that you want to read
to me, okay, so that he can properly advise you regarding
this statement, okay, or I can address you further regarding
it. We're not trying to shut you down.
The Defendant: I understand.
The Court: Mr. Brousseau, do you want a few minutes to do
Mr. Brousseau: I just need a minute to review this. Judge,
these are matters that deal with trial strategy. Mr. Rushlow
and I have not always agreed on strategy but I've tried
to explain to him why certain pieces of evidence, certain
things he wishes to have presented before a jury should not
be, in my opinion, because they're extraneous
inadmissible, a number of other reasons that the issues that
he's wanted covered we had covered some of them anyway
with his brother who testified the other day and with Mr.
Velleca who testified the other day. These are trial strategy
issues that Mr. Rushlow is concerned with. I'd like to
give my final argument.
The Court: Do you want to discuss the content of this
document with Mr. Rushlow?
Mr. Brousseau: I can if he would like to but the evidence is
in, Judge. It's time for me to give my final argument, if
I can have a minute.
The Court: Okay, I need to take a recess. I want you, Mr.
Brousseau, to speak with Mr. Rushlow and I want you to
discuss the issue, whatever the content of this letter is, I
want you to discuss and I want you to discuss the issue of
whether Mr. Rushlow is going to apprise the Court of the
content of this letter at this time. Those are the two issues
I'd like you to address with me, okay. I'll take a
brief recess until you're ready.
The Court: Mr. ...