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Rushlow v. State

Superior Court of Rhode Island, Providence

May 16, 2018


          For Plaintiff: Robert J. Caron, Esq.

          For Defendant: Jeanine P. McConaghy, Esq.


          VAN COUYGHEN, J.

         This 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.


         Facts and Travel

         On 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).[1] The complaining witness was Petitioner's wife, Ms. Frances Rushlow (Frances).[2] 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 children.

         Frances 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.

         Later 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.

         During 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.

         At the 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 following colloquy:

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 record.
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 representation?
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 1-2.)

         As a 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.

         Petitioner's 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.

         At the 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 as follows:

          The 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 this?
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. ...

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