Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Storey v. State

Superior Court of Rhode Island, Providence

April 8, 2019

KEVIN STOREY
v.
STATE OF RHODE ISLAND

          For Plaintiff: William V. Devine, Jr., Esq.

          For Defendant: Jeanine P. McConaghy, Esq.

          DECISION

          McGUIRL, J.

         Before the Court is Petitioner Kevin Storey's (Petitioner) application for postconviction relief (Application). Petitioner asserts that his attorney rendered constitutionally ineffective assistance of counsel. Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.

         I

         Facts and Travel

         The pertinent facts herein are taken from the Supreme Court case State v. Storey, 102 A.3d 641 (R.I. 2014). On October 27, 2009, Petitioner's then wife, Danielle Saleeba (Ms. Saleeba), awoke to Petitioner shaking her shoulders and demanding to know why she had not told him that David Liese, the general manager at the restaurant where she was employed, had been working with her the previous night. According to Ms. Saleeba, the Petitioner then struck her on the head with an open palm and began choking her by pushing both hands down on her throat. She managed to break the Petitioner's hold, only to have Petitioner stick his fingers down her throat. Next, Ms. Saleeba attempted to get off the bed but was struck on her left temple by Petitioner with either his fist or his elbow.

         At trial, Ms. Saleeba indicated that she had "blood squirting out the side of [her] head." Petitioner informed her eldest son, who saw Ms. Saleeba emerge from the bedroom, that his mother had "hit her head on the computer desk." Furthermore, Ms. Saleeba later testified that when she looked in the mirror in the bathroom at her wound, she saw a "big gaping hole" on her temple that "looked like a fountain coming out the side of [her] head." Petitioner then drove Ms. Saleeba to the hospital, during which time he repeatedly told her, "[t]he next time I'm going to kill you." She received twenty-four stitches along her left temple.

         Several days later, Ms. Saleeba informed her mother about what had happened and spent the night at her mother's house with her children. The next morning, Ms. Saleeba went to the East Providence Police station where written statements were completed and photographs of Ms. Saleeba were taken.

         The Petitioner was tried by a jury in March 2012 in Providence County Superior Court on two counts of violating G.L. 1956 § 11-5-2: one count of assault with a dangerous weapon and one count of felony assault resulting in serious bodily injury. The jury returned a verdict on March 30, 2012, convicting Petitioner of assault with a dangerous weapon (Count 1), acquitting him of assault and battery resulting in serious bodily injury (Count 2), but convicting him instead on Count 2's lesser-included offense of simple assault and battery.

         Petitioner subsequently appealed the decision of the Superior Court, arguing the trial justice erred by (1) denying his motions for judgment of acquittal and new trial; (2) not allowing him to cross-examine complaining witness concerning custody issues involving her son; and (3) imposing an illegal sentence. The Supreme Court denied Petitioner's appeal and affirmed the judgment of the Superior Court on November 24, 2014.

         On March 27, 2015, Petitioner filed a pro se application for postconviction relief arguing his sentence and conviction are in violation of the United States and Rhode Island Constitutions. This Court appointed counsel for Petitioner, who then investigated Petitioner's claims and filed a corresponding memorandum in support of the Application. In July 2016, this Court conducted a Postconviction Relief evidentiary hearing (PCR hearing) on Petitioner's Application. A Decision is herein rendered.

         II

         Standard of Review

         "'[T]he remedy of postconviction relief is available to any person who has been convicted of a crime and who thereafter alleges either that the conviction violated the applicant's constitutional rights or that the existence of newly discovered material facts requires vacation of the conviction in the interest of justice."' DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011) (quoting Page v. State, 995 A.2d 934, 942 (R.I. 2010)) (further citation omitted); see also § 10-9.1-1. Postconviction relief applications are civil in nature and thus, are governed by all applicable rules and statutes governing civil cases. Ferrell v. A.T. Wall, 889 A.2d 177, 184 (R.I. 2005). Thus, "[a]n applicant for such relief bears '[t]he burden of proving, by a preponderance of the evidence, that such relief is warranted' in his or her case." Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (citing State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).

         III

         Analysis

         Petitioner asserts five theories in support of his Application: (1) that his attorney rendered constitutionally ineffective assistance of counsel when she failed to present certain witnesses and further investigate medical treatment received by Ms. Saleeba; (2) that the conviction for assault with a dangerous weapon and simple assault are inconsistent verdicts; (3) that the charges of assault with a dangerous weapon and felony assault were without probable cause as there was an error of law categorizing his hands as a deadly weapon; (4) that because there was no probable cause to bring the charges of assault with a dangerous weapon and felony assault, Petitioner's counsel should have filed a motion under Superior Court Rules of Criminal Procedure 9.1; and (5) that Petitioner's counsel neglected to object to the Court's decision regarding a note the Court received regarding the jurors' request for clarification on Petitioner's "hands" as it relates to a dangerous weapon.

         After investigation, Petitioner's postconviction relief counsel narrows the scope of the assertions alleging that Petitioner's trial counsel should have called certain witnesses, specifically Hospital staff, that a medical expert should have been consulted regarding the injury to the victim's head and to testify about the significance of the lack of injury from the alleged strangulation. In response, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.