Brennan v. Vose

• Decision Date: 12 January 2001
• Docket Number: No. 98-300-Appeal.,98-300-Appeal.
• Parties: Michael A. BRENNAN v. George A. VOSE, Jr. et al.
• Court: Rhode Island Supreme Court

764 A.2d 168

Michael A. BRENNAN v. George A. VOSE, Jr. et al.

No. 98-300-Appeal.

Supreme Court of Rhode Island.

January 12, 2001.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Annie Goldberg, Aaron L. Weisman, Providence, for Plaintiff.

Randy Olen, Providence, for Defendant.

OPINION

GOLDBERG, Justice.

This case came before the Supreme Court on December 4, 2000, on appeal from the denial of Michael A. Brennan's application for postconviction relief filed pursuant to G.L.1956 § 10-9.1-1. We affirm.

Facts and Travel

Michael A. Brennan (Brennan or applicant) and his brother Thomas (Thomas) were tried separately for the brutal murder of eighty-one-year-old Lawrence Bello. Each was convicted of felony murder and sentenced to life imprisonment. Both convictions were upheld by this Court. The events that give rise to this appeal are set out in State v. Brennan, 526 A.2d 483 (R.I.1987). In brief, the facts are as follows.

On the morning of January 18, 1984, detectives found the body of eighty-one-year-old Lawrence Bello on the floor of his Providence apartment. The scene was horrific; Mr. Bello had been beaten, tortured, and brutally murdered. A bloody knife lay next to the victim's body, the word "kill," written in what appeared to be blood, was found on the wall. The entire apartment had been ransacked; there were overturned tables and mattresses, drawers emptied onto the floor, and holes punched in the walls. There was no sign of forced entry. Brennan and his brother Thomas, both of whom resided with their mother, a tenant of Mr. Bello's, in an apartment adjacent to the murder scene, subsequently were arrested for the murder.

Based on the evidence presented at trial, a jury convicted Brennan of felony murder, with robbery as the underlying felony. That conviction was affirmed by this Court. Brennan then filed an application for postconviction relief with the Providence County Superior Court. That application was denied. It is the denial of that application from which Brennan now appeals.

Discussion

The applicant has raised several arguments in support of his appeal. First, Brennan contended that he was deprived of a fair trial as a result of the ineffective assistance of his trial counsel, Russell Sollitto (Sollitto or trial counsel). Specifically, Brennan asserted that he was deprived of his constitutional right to testify on his own behalf, that trial counsel failed to investigate and adequately prepare the case, and that his constitutional right to an impartial jury was violated. The applicant further argued that the postconviction court erred in denying a new trial based upon newly discovered evidence. Brennan next argued that the hearing justice erred in concluding that he lacked authority to correct an error of fact relating to his direct appeal. Finally, he contended that cumulative error that occurred at trial and on his direct appeal mandates a new trial. We deem these claims to be without merit.

The law in Rhode Island is well settled that this Court will pattern its evaluations of the ineffective assistance of counsel claims under the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Strickland Test, as adopted in Barboza v. State, 484 A.2d 881, 883 (R.I. 1984), provides certain criteria that a complaining applicant must establish in order to show ineffective assistance of counsel. State v. Brennan, 627 A.2d 842, 844-45 (R.I.1993). The first prong of the test requires that applicant demonstrate that counsel's performance was deficient, to the point that the errors were so serious that trial counsel did not function at the level guaranteed by the Sixth Amendment. Id. at 845 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, the applicant must show that such deficient performance was so prejudicial to the defense and the errors were so serious as to amount to a deprivation of the applicant's right to a fair trial. Id.

The first prong of the Strickland Test can be satisfied only by a showing that counsel's representation fell below an objective standard of reasonableness. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. The applicant's first argument in his ineffective assistance claim is that counsel refused to allow him to testify on his own behalf at trial. Brennan contends that he was unaware that the decision to testify was his own and, that had he known, he would have testified, mainly to contradict the testimony of at least two of the state's witnesses. This question largely turned on the credibility of the witnesses presented at the postconviction hearing. Both Brennan and Sollitto testified at the hearing. The hearing justice found that trial counsel testified credibly and further found that the decision not to testify was made by Brennan himself. The attorney testified that it was his usual practice to discuss this issue with his clients and to allow the client to make this important decision enlightened by his advice. Sollitto remembered that he was "pleased" upon hearing that Brennan did not want to take the stand in his own defense, because he saw the case as a "good reasonable doubt case."

The hearing justice found as a fact, based on the conflicting evidence presented at the hearing, that Brennan was fully aware of his right to testify on his own behalf and, in addition, that his decision not to testify was a voluntary one, made without any improper influence from counsel. Brennan admitted that Sollitto provided him with discovery for his review. He also sat through numerous pretrial hearings, at which time the witnesses whose testimony Brennan purportedly intended to contradict at trial gave their full testimony. Although counsel did not mention the specific conversations he had with Brennan with respect to this issue, the hearing justice was satisfied, as is this Court, that trial counsel discussed this issue with his client, and that the ultimate decision not to testify was made by Brennan.

Appellate counsel has invited this Court to adopt a rule providing for a sua sponte inquiry by the trial justice to insure that an applicant has made a knowing and voluntary waiver of his or her right to testify. We note that several jurisdictions have determined that it is incumbent upon the trial justice to engage in a colloquy with a defendant on the record to establish that his or her waiver of the right to testify is knowing, voluntary and intelligent. See People v. Woodward, 782 P.2d 1212 (Colo.Ct.App. 1989)

; People v. Curtis, 681 P.2d 504 (Colo.1984); Culberson v. State, 412 So.2d 1184 (Miss. 1982), aff'd,

456 So.2d 697 (1984); State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606 (1988); State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988). The majority of jurisdictions, however, have declined to require such an inquiry, instead citing the responsibility of defense counsel, not the trial justice, to advise his or her client of the right to testify and advise the client whether, in counsel's opinion the client should testify and explain the advantages or disadvantages of such a decision. State v. Savage, 120 N.J. 594, 577 A.2d 455, 473 (1990) (citing United States v. Martinez, 883 F.2d 750 (9th Cir.1989); Ortega v. O'Leary, 843 F.2d 258 (7th Cir.),

cert. denied, 488 U.S. 841, 109 S.Ct. 110, 102 L.Ed.2d 85 (1988); United States v. Janoe, 720 F.2d 1156 (10th Cir.1983),

cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987); People v. Longwith, 125 Cal.App.3d 400, 178 Cal. Rptr. 136 (1981); Torres-Arboledo v. State, 524 So.2d 403 (Fla.1988); People v. Simmons, 140 Mich.App. 681, 364 N.W.2d 783 (1985); State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487,

cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 233 (1980)). We agree with the majority of jurisdictions and decline to adopt or establish any such rule.

The next issue for our review, with respect to the issue of ineffective assistance of counsel, is Brennan's claim that Sollitto inadequately prepared his defense. We deem this claim to be without merit. As stated above, Strickland provides that trial counsel's effectiveness must be "reasonable considering all of the circumstances." 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. In this instance, Sollitto was the third counsel of record having entered the case approximately three to four weeks before the trial commenced. The applicant contended that trial counsel failed to investigate certain alibi witnesses, yet his own recollection of the individuals he sought to testify was vague at best. In his decision the hearing justice stated

"the [applicant] contended his counsel was deficient because he failed to interview and call certain alibi witnesses. No evidence in any form was presented at the hearing that these witnesses would alibi the [applicant] as he claims. Under the circumstances, the Court has no way to determine whether the counsel's failure to interview and call these witnesses could possibly have made any difference in the outcome of the trial."

The record is clear that Sollitto, a well-respected and seasoned trial attorney who has served the people of the State of Rhode Island as both a public defender and a prosecutor, participated in extensive pretrial arguments and relentlessly cross-examined the witnesses proffered by the state. Based on our review of the record and the circumstances surrounding the trial, we are satisfied that Sollitto adequatelyprepared his case and zealously defended his client. Consequently, we deny this part of Brennan's claim.

The last argument made by the applicant in his ineffective assistance claim is that he was deprived his constitutional right to a fair and impartial jury....