38 A.3d 9 (R.I. 2012), 2009-344-Appeal, Rice v. State

Docket Nº:2009-344-Appeal.
Citation:38 A.3d 9
Opinion Judge:INDEGLIA, Justice
Party Name:Kenneth S. RICE v. STATE of Rhode Island.
Attorney:James T. McCormick, Esq., Providence, for Plaintiff. Christopher R. Bush, Department of Attorney General, for Defendant.
Case Date:March 06, 2012
Court:Supreme Court of Rhode Island

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38 A.3d 9 (R.I. 2012)

Kenneth S. RICE


STATE of Rhode Island.

No. 2009-344-Appeal.

Supreme Court of Rhode Island.

March 6, 2012

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[Copyrighted Material Omitted]

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James T. McCormick, Esq., Providence, for Plaintiff.

Christopher R. Bush, Department of Attorney General, for Defendant.




Kenneth S. Rice (Rice) appeals from a judgment of the Superior Court dismissing his application for postconviction relief. On appeal, Rice challenges the hearing justice's determination that certain actions on the part of his trial counsel did not rise to the level of ineffective assistance, but instead constituted tactical decisions made during trial. This case came before the Supreme Court for oral argument on December 7, 2011, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After carefully considering the written and oral submissions of the parties, we are satisfied that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Travel

The facts underlying this case are set forth in State v. Rice, 755 A.2d 137 (R.I.2000)( Rice I ), in which this Court upheld Rice's convictions. In March 1998, a Superior Court jury convicted Rice of all six counts with which he was charged by indictment— three counts of first-degree child molestation sexual assault, one count of second-degree child molestation sexual assault, and two counts of solicitation with the intent to commit a felony. For count 1, first-degree child molestation sexual assault, the trial justice imposed a sentence

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of life imprisonment, which was to run consecutively to a previously imposed twelve-year sentence resulting from a probation violation. Rice's convictions under counts 2 and 3, also involving first-degree child molestation sexual assault, resulted in the imposition of concurrent fifty-year sentences. On count 4, second-degree child molestation sexual assault, Rice received a ten-year sentence, to run consecutively to the life sentence imposed for count 1. The trial justice also levied two five-year sentences running concurrently, for Rice's convictions under counts 5 and 6— the solicitation charges. Lastly, the trial justice declared Rice a habitual offender in accordance with G.L.1956 § 12-19-211 and imposed an additional ten-year sentence to run consecutively to those associated with counts 1 through 6. At sentencing, the trial justice also deemed Rice to be ineligible for parole for thirty years.

Following trial, Rice appealed his convictions to this Court. After reviewing the record, we affirmed Rice's conviction on all counts and denied his appeal in 2000. See Rice I, 755 A.2d at 153.

At some point subsequent to sentencing, Rice filed a motion to reduce his sentence pursuant to Rule 35 of the Superior Court Rules of Criminal Procedure— namely, the thirty-year restriction on his eligibility for parole. 2 That motion was denied by a Superior Court hearing justice. In 2002, Rice successfully appealed that denial to this Court in State v. Rice, 811 A.2d 1144 (R.I.2002)( Rice II )— ultimately, that portion of the judgment of conviction at issue was vacated. In 2007, Rice again filed a Rule 35 motion in regard to the sentence stemming from the 1998 trial, seeking at that time to correct his sentence based on alleged discrepancies between the wording of his judgment of conviction form and the transcript of his sentencing hearing, which motion was denied. Rice unsuccessfully appealed that denial to this Court in State v. Rice, 986 A.2d 247 (R.I.2010)( Rice III ).

In November 2000, following the affirmance of his convictions by this Court in Rice I, Rice prepared and filed, pro se, a

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one-paragraph application for postconviction relief.3 In April 2004, Rice was appointed counsel, who— after a series of status conferences— filed an amended postconviction-relief application on Rice's behalf on February 23, 2006. In his amended application, Rice asserted that he received ineffective assistance of counsel during his 1998 trial, grounding this contention on several alleged errors on the part of his trial counsel. Rice maintained that trial counsel failed to properly investigate medical opinions in regard to whether a lack of physical evidence indicating prior trauma upon examination of the victim by a nurse practitioner four years subsequent to the sexual assault was consistent with the victim's allegation of painful sexual penetration by Rice. Although trial counsel conferred with a physician as a potential expert witness concerning the lack of clinical evidence of penetration, that physician was not called to testify at trial. Rice also averred that his trial counsel rendered ineffective assistance by calling the state's nurse practitioner (who examined the victim four years following the assault) as a defense witness to impeach the victim because it " opened the door" for the state to elicit on cross-examination prior consistent statements by the victim to the nurse practitioner that would otherwise have been excluded.4 In a similar vein, Rice alleges that his trial counsel improperly called as a witness an employee of the Department of Children, Youth and Families (DCYF) who took a statement from the victim regarding the sexual assault. Albeit called by trial counsel to discredit the victim, the testimony of the DCYF worker again " opened the door" for the state to elicit otherwise barred corroborating testimony.

In addition to his claim of ineffective assistance of counsel, Rice also set forth a claim in his postconviction-relief application based on newly discovered evidence. Rice contended that the findings in a medical journal article published in 2003— five years after the trial— tended to undermine certain allegations made by the victim.

On July 14, 2006, an evidentiary hearing on Rice's amended postconviction-relief application was held before a Superior Court justice, during which both Rice and his trial attorney testified. While on the stand, Rice's trial counsel described his contact with the potential medical expert prior to the trial and his reasoning for such contact, and he recalled the physician's findings concerning the nurse practitioner's examination of the victim. Referring to correspondence from that physician admitted into evidence at the postconviction-relief hearing, Rice's trial counsel testified that the physician surmised that " [t]here was a 30 to 50 percent chance of having zero findings [of physical trauma], even if [the victim was] raped four years ago." According to Rice's trial counsel, based on that finding, the physician could not provide a medical opinion to a reasonable degree of medical certainty that

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would support Rice's defense. Thus, trial counsel considered the physician's opinion to be of " no help," and he subsequently decided not to call him as a defense witness.5 Trial counsel recalled discussing this recommendation with Rice; and he also recalled that, in that discussion, he " told him that it was his [Rice's] decision." According to trial counsel, Rice agreed with the decision not to call the physician to testify.


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