State v. Brennan

Decision Date01 July 1993
Docket NumberNo. 92-201-C,92-201-C
Citation627 A.2d 842
PartiesSTATE v. Thomas BRENNAN. A.
CourtRhode Island Supreme Court

Jeffrey Pine, Atty. Gen., Annie Goldberg, Aaron Weisman, Asst. Atty. Gen., for plaintiff.

Paula Lynch Hardiman, Providence, for defendant.

OPINION

SHEA, Justice.

This matter is before the Supreme Court on an appeal from the denial of the applicant Thomas Brennan's application for postconviction relief filed pursuant to G.L.1956 (1985 Reenactment) chapter 9.1 of title 10. We affirm.

Thomas Brennan (Thomas) and his brother, Michael Brennan (Michael) were tried separately for the brutal slaying of eighty-one-year-old Lawrence Bello. Each was convicted of felony murder and sentenced to life imprisonment. Both brothers appealed the convictions. In State v. Michael Brennan, 526 A.2d 483 (R.I.1987), this court addressed the issues common to both appeals. In State v. Thomas Brennan, 527 A.2d 654 (R.I.1987), we addressed only those issues pertaining to Thomas's appeal. The convictions were both upheld.

Subsequently Thomas filed an application for postconviction relief based on his trial counsel's failure to challenge his warrantless arrest in the dwelling of his girlfriend, Marguerite Napolitano (Napolitano). The Superior Court justice denied the application and determined that trial counsel's failure to raise that particular issue did not constitute ineffective assistance of counsel. We agree with that determination.

The facts relating to this murder can be found in detail in State v. Michael Brennan, supra, and reference was again made to them in State v. Thomas Brennan, supra. The sole issue on appeal is the effectiveness of Thomas's representation at his 1985 trial. The applicant may not relitigate his Fourth Amendment claims in this appeal. The only issue before us is whether his trial counsel was constitutionally deficient in failing to include, among his several arguments for suppression, a particular claim that his warrantless arrest in the apartment of his girlfriend was per se unreasonable.

The absence of a suppression argument relating to the warrantless arrest in the trial below is central to this application. The applicant asserts that the fruits of this warrantless arrest were highly prejudicial and led to his conviction. The fruits of the warrantless arrest were two statements made to police that were later used against him at trial as false exculpatory statements, photographs taken at the time of the arrest and used to identify him in four photo spreads shown to four witnesses, and a photograph of his hand taken at the time of arrest and produced at trial to show that his hand was bruised. The applicant contends that he would not have been found guilty if this evidence was excluded.

I

"Of all the rights that an accused person has, the right to be represented by counsel is by far the most persuasive, for it affects his ability to assert any other rights he may have." Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 2584, 91 L.Ed.2d 305, 321 (1986) (quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv. L.Rev. 1, 8 (1956)). A criminal defendant's "right to counsel" under both the Rhode Island and the United States Constitutions entitles him or her to competent and effective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); State v. Cochrane, 443 A.2d 1249 (R.I.1982).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct.2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-part test for evaluating a claim of ineffective assistance of counsel. This court immediately recognized the Strickland test, and we have repeatedly patterned our evaluations of ineffective-assistance-of-counsel claims under its requirements. Barboza v. State, 484 A.2d 881 (R.I.1984). 1

Under Strickland a complaining defendant must meet certain criteria to establish that counsel's assistance was ineffective. The two-part test requires that

"[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The Supreme Court further stated that "the benchmark for judging any claim of ineffectiveness must be 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." Tarvis v. Moran, 551 A.2d 699, 700 (R.I.1988) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93).

The burden of proving a claim of ineffective assistance of counsel lies with the party asserting the claim. Cochrane, 443 A.2d at 1251 (citing Delahunt v. State, 440 A.2d 133 (R.I.1982), and State v. Turley, 113 R.I. 104, 318 A.2d 455 (1974)). See also State v. Desroches, 110 R.I. 497, 293 A.2d 913 (1972).

"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

The hearing justice concluded that applicant had not met the burdens outlined in Strickland and refused to grant him relief. We shall overturn such findings only when the hearing justice was clearly wrong or when it is clear that material evidence has been overlooked or misconceived. Fontaine v. State, 602 A.2d 521, 526 (R.I.1992); Brown v. Moran, 534 A.2d 180, 183 (R.I.1987). We find neither of these situations in this case.

II

The first part of the Strickland test can be met only if a party shows "that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. * * * In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

In an attempt to meet this first part of the Strickland test, Thomas erroneously relies on a footnote in our decision in State v. Michael Brennan, to illustrate his trial counsel's deficient representation. He argues that our refusal to consider a suppression argument relating specifically to the warrantless arrest in the home of Napolitano in the appeal because it was not raised properly below supports his assertion that his counsel was deficient. In that opinion we noted:

"Nowhere in the record do we find any motion to suppress statements derived from defendant's arrest in a dwelling house in which police had not obtained consent to enter from any of the residents. There was no memorandum of law on this issue filed below, and it was not argued before the trial justice at the suppression hearing. Since defendant never brought the issue of the warrantless arrest in a dwelling house to the attention of the trial justice at the hearing, the justice did not make any findings of fact as to who let the officers into the residence at 1400 Douglas Avenue, as to whether the entry was consensual, or as to whether the arrest was validly made with a warrant." Brennan, 526 A.2d at 487 n.1.

The state correctly asserts that this language could not be construed to suggest that there was no recorded effort to suppress the fruits of the arrest.

After a thorough review of the record we have found the contrary to be true. The applicant's counsel filed among several pretrial motions: a motion to sever defendant's trial from that of his brother and co-defendant; a motion to compel more responsive answers to discovery; a motion for appointment of an investigator; a motion to suppress evidence obtained in violation "of the Constitution of the State of Rhode Island, the Constitution of the United States and all applicable case law pertaining thereto"; a motion to suppress "written and/or oral" statements "illegally obtained" by police; a motion to suppress in-court identifications as "tainted in that the pretrial identification of the defendant's person was in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States and the comparable provisions of the Constitution of the State of Rhode Island"; and a motion to require the state to furnish notice of statements of rewards, promises, or inducements made to prospective witnesses in exchange for their testimony.

The joint hearing on pretrial motions of both Thomas and Michael comprised over four volumes of testimony. Over the course of four days, both brothers took advantage of the opportunity to make several zealous suppression arguments. Such motions were pressed vigorously and denied. In addition a review of the trial transcript indicates that counsel used every opportunity to present a thorough, creative and strategic defense. The applicant received zealous representation throughout the trial. His counsel, as we noted in Tarvis v. Moran, 551 A.2d at 701, was a "respected attorney who has had more experience in criminal trials than most members of our trial bar."

We remind applicant that a review of counsel's representation is done through the case law existing at the time of trial. Since applicant's trial took place in 1985, the law existing...

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