968 A.2d 886 (R.I. 2009), 2006-325, Hazard v. State

Docket Nº:2006-325-Appeal.
Citation:968 A.2d 886
Opinion Judge:GOLDBERG, Acting Chief Justice
Party Name:Derick HAZARD v. STATE of Rhode Island.
Attorney:J. Richard Ratcliffe, Esq., Providence, for Plaintiff. Aaron L. Weisman, Department of the Attorney General, for Defendant.
Judge Panel:Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).
Case Date:April 20, 2009
Court:Supreme Court of Rhode Island
 
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968 A.2d 886 (R.I. 2009)

Derick HAZARD

v.

STATE of Rhode Island.

No. 2006-325-Appeal.

Supreme Court of Rhode Island.

April 20, 2009

Page 887

J. Richard Ratcliffe, Esq., Providence, for Plaintiff.

Aaron L. Weisman, Department of the Attorney General, for Defendant.

Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).

OPINION

GOLDBERG, Acting Chief Justice

This case came before the Supreme Court on January 27, 2009, on an appeal by the applicant, Derick Hazard (Hazard or applicant), from the denial of his application for post-conviction relief. On July 17, 1998, a jury found Hazard guilty of first-degree murder, conspiracy to commit murder, and assault with intent to murder. Hazard subsequently appealed to this Court, and we affirmed the judgment of conviction. State v. Hazard, 797 A.2d 448 (R.I.2002). On June 6, 2005, Hazard filed an application for post-conviction relief based on the alleged ineffective assistance of his trial counsel. After three days of testimony, the hearing justice issued a written decision in which he denied Hazard's application for post-conviction relief. For the reasons stated in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

The facts of this case are discussed at length in Hazard. At this stage we will recount only the facts that are necessary to decide this appeal.

On July 18, 1996, David Andrews was shot and killed while walking on West Clifford Street in Providence. A few days later, the Providence police obtained a warrant for Hazard's arrest. After consulting his attorney, Vincent Oddo (Oddo), applicant surrendered himself to the police and, after a bail hearing, Oddo secured applicant's release on bond.

Mr. Oddo continued to represent Hazard for the next two years, up to and including the jury trial that is at issue in this appeal. The foundation of the state's case was the eyewitness testimony of Andre " Bucky" Williams (Williams), who testified that he was walking beside Andrews when two

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people in a vehicle began shooting at them. Although Williams was able to escape the gunfire unscathed, Andrews was shot and died from his wounds. At trial, Williams identified Hazard as one of the shooters.

The centerpiece of applicant's trial defense was his alibi; and, in that regard, several family members and friends testified on his behalf that, at the time of the murder, applicant was in Ohio visiting relatives. At trial, however, Hazard did not produce any independent evidence to corroborate his alibi, such as receipts for food or for gas purchases made en route to Ohio; and, more importantly (and pertinent to the present appeal), applicant did not present any evidence showing that during the drive to Ohio, while he was at the wheel, his vehicle was stopped on the highway by a New Jersey state trooper.

After the jury returned a verdict of guilty, applicant filed two motions for a new trial; after the first motion was denied, applicant fired Oddo. The applicant subsequently filed the second motion with his new attorney, alleging that applicant had discovered new evidence that supported his alibi. On September 13, 1999, Kevin Vieldhouse, the New Jersey state trooper who made the stop, testified at the evidentiary hearing. According to his patrol log for July 18, 1996, on the day of the murder, at 10:27 a.m., he stopped a vehicle that was traveling west on Route 80 in New Jersey. Although Vieldhouse's records indicated that the vehicle contained three African-American males, the only person who could be identified from his records was the driver, Kyle Hazard (Kyle), to whom Vieldhouse issued a written warning. Notably, Vieldhouse could not recall whether Derick Hazard was among the three people in the car. The trial justice denied the motion for a new trial, and applicant subsequently appealed to this Court.

On appeal, we disagreed with the trial justice's finding that the evidence of the traffic stop was cumulative and immaterial; rather, we concluded that Vieldhouse's patrol log " was the single piece of independent unbiased documentary evidence which might have corroborated the defense position that the group had gone at least as far as New Jersey on the morning of the murder." Hazard, 797 A.2d at 464. " This would have permitted the jury to draw the inference that Hazard also was in the vehicle, contrary to the state's argument that the group had departed the following day." Id. at 464-65. But because we were of the opinion that the evidence could not be characterized as " newly discovered," we sustained the trial justice's finding. Id. at 465. To the extent that applicant blamed Oddo for allegedly failing to investigate the stop, we advised applicant that his contention properly could be raised by way of a civil action for post-conviction relief; and, after considering his other arguments, we affirmed his conviction.

On June 6, 2006, Hazard filed an application for post-conviction relief based on the alleged ineffective assistance of trial counsel; specifically, Hazard claimed that Oddo failed to investigate whether the New Jersey state police had records to support his alibi defense that he was not in Rhode Island at the time of the murder.

At the hearing on Hazard's application,1 Oddo testified that applicant had told him that he was in Columbus, Ohio at the time of the murder. The applicant did not, however, provide Oddo with any specific

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details about his journey to Ohio. According to Oddo, Hazard told him that he and members of his family traveled to Ohio in two cars, and stopped only for food and gas. Oddo was unsure when Hazard first told him about the traffic stop, but he recalled that it could have been immediately before, during, or at the end of the trial. However, because Hazard once again failed to provide details-such as the city, state, or highway where the stop took place-Oddo decided against seeking a continuance to investigate Hazard's story. Indeed, after representing Hazard for two years, Oddo was so surprised with Hazard's timing and his lack of details about the stop, that he could not give the information any weight. Furthermore, Oddo testified that he was unaware that the traffic stop occurred in New Jersey until after the trial, when in November 1998, The Providence Journal published a series of articles about Hazard's purported alibi defense. On cross-examination, Oddo testified that he never was informed, by applicant or a member of his family, who was driving the car when it was stopped, or whether a citation or warning was issued by the state trooper.

The applicant testified and provided a different version of the information that he allegedly shared with Oddo. He insisted that during his first meeting with Oddo he informed him that he left Rhode Island at 7:30 a.m. on July 18, 1996, and drove to Ohio; that he crossed the George Washington Bridge and was pulled over by a state trooper in New Jersey; and that the state trooper did not issue a warning. According to applicant, although he had suggested to his attorney that they use this evidence to support his alibi, Oddo decided that they could not prove the traffic stop because there was no supporting documentation.

Hazard further testified that before the bail hearing, he and Oddo had discussed the traffic stop in detail. The applicant stated that he was driving a rented Ford Taurus and his brother, Kyle, was sitting in the passenger seat; applicant added that, when stopped, he handed the trooper the rental agreement and Kyle's license because, as he allegedly told the state trooper, his license was suspended. The applicant averred that rather than issue a warning, the trooper simply advised applicant to switch seats with Kyle before they traveled any further.

During cross-examination, applicant was asked to explain why Kyle had testified at the bail hearing that he was driving and that applicant was sitting in the back seat of the vehicle. The applicant explained that he had been caught driving on a suspended license three times before, and in order to avoid incarceration for two or three years for a fourth offense, he instructed his brother to withhold the fact that applicant was driving. Hazard conceded, however, that during the month before he went to Ohio, he frequently drove around Providence on a suspended license. In fact, although the Providence police had stopped his vehicle, they never charged him with a crime. Furthermore, Hazard admitted that he had failed to explain to Oddo why his brother had testified that he was the driver.

In November 1998, eight months before Vieldhouse testified at the hearing on applicant's second new-trial motion, a reporter from The Providence Journal twice visited applicant at the Adult Correctional Institutions to discuss his alibi. It was during the second visit that the reporter informed Hazard that the New Jersey state police customarily destroyed warnings thirty days after they were issued-and, consequently, she was unable (at least at the time) to locate a warning that would

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corroborate the stop. At this point, Hazard told the reporter that when the car was stopped in New Jersey, he was driving. However, on November 12, 1998, The Providence Journal reported that the written warning had been found and that it was issued to Kyle Hazard. At the post-conviction relief hearing, the applicant admitted during his testimony that two...

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