Barros v. State
| Decision Date | 18 May 2015 |
| Docket Number | 11-5771,PM |
| Parties | TRACEY BARROS v. STATE OF RHODE ISLAND |
| Court | Rhode Island Superior Court |
Providence County Superior Court
For Plaintiff: Andrew H. Berg, Esq., Michael A. DiLauro, Esq. John E. Lovoy, Esq.
For Defendant: Lauren S. Zurier, Esq., Scott A. Erickson, Esq.
DECISION
Tracey Barros presents this Court with an application for post-conviction relief (PCR). Ten years ago he confessed to having shot Deivy Felipe to death in his parked car. At an unsuccessful pretrial suppression hearing and again at trial Barros testified that his confession was not only involuntary, it was also false. The jury rejected his testimony and convicted him of first degree murder conspiracy to commit murder, and two firearm offenses. As mandated by statute, Barros was sentenced to two consecutive life terms for committing murder with a gun. His appeal which focused principally on the circumstances surrounding his confession, was denied. State v. Barros, 24 A.3d 1158 (R.I. 2011).
In his PCR application, Barros persists in his claim that the detectives tricked him into giving an involuntary false confession. This time, however, he does not fault this Court, the jury, or the Supreme Court for his predicament. Instead, he blames his trial and appellate attorneys from the Public Defender's office. He also seeks this Court's recusal from considering this PCR application.
The Supreme Court's decision contains a lengthy explication of the facts and circumstances surrounding the custodial interview of Barros, his subsequent statements, and an in-depth analysis of the issues surrounding the confession. Only minimal reference to it is needed here.
At a two-day suppression hearing in May of 2007, eight witnesses, including the defendant, testified. Much of Barros' discussion with the police was not tape-recorded. Eventually, a twelve-minute taped statement was obtained. At the hearing, the defendant claimed that after he had been arrested earlier that night for unlawfully possessing a handgun, he was somehow able, through the rear of a police cruiser and in the darkness, to lip-read what the officers in another police cruiser were saying about the gun. He also testified that although his hands were handcuffed behind his back in the cruiser, he was able to extricate his ringing cell phone from a front jacket pocket, converse with his girlfriend, and tell her to call a lawyer.
At the police station he said the detectives wanted him to confess to the Felipe murder so that they could close out a cold case which they had wanted to blame on Barros' friend Tonea Sims, who had been shot and killed the previous night. He testified that the detectives promised that he would receive only a ten-year sentence for confessing to the murder.
Barros said that he was chained to the wall in an interview room for an entire day, left alone for hours, and deprived of food, water and bathroom breaks. He also testified that he told the police he didn't want to say anything until his attorney had arrived. He said that eventually he just gave up and confessed. Before taping his statement (which was bereft of any request for a lawyer), he said that the police had scripted his answers and told him to make it "sound good" on the recording. In that recorded statement, Barros said, among other things, that he shot Felipe seventeen times-that he "emptied the clip" into him, a bogus response the police could not have supplied because they knew Felipe had been shot far fewer times.
The Providence detectives, as well as two ATF agents, contradicted all of the defendant's self-serving assertions. They said that they had safeguarded Barros' rights, that he was offered food, soda, water and restroom breaks. They testified that he never requested an attorney and were frankly surprised when Barros admitted killing Felipe. They flatly denied ever having told Barros, a chronic offender who had been arrested that night for his third gun offense, that he would only have to serve ten years for murdering a man as he sat in his car. Most assuredly, they said, they never coached or suggested to Barros what to say during the recording.
At the conclusion of the hearing, the Court considered all of the testimony and found that the State's witnesses had told the truth and that Barros had lied. The motion to suppress was denied. On appeal, the Supreme Court agreed. Barros, 24 A.3d at 1180 ().
The first trial ended in a mistrial with the jury at an impasse. Before the second trial started six months later, trial counsel renewed the suppression motion, this time targeting the failure of the police to record all of the discussions with Barros, an omission which he said required suppression of the taped statement. Short of its outright exclusion, counsel sought instructions which admonished the jurors to look askance at the taped statement because the police had failed to record the entirety of the discussions leading up to the recording. This Court again denied the suppression motion and did not offer the requested jury instructions. The Supreme Court, with one dissent, affirmed those rulings.
At the retrial, Barros testified and claimed, as he had during the initial suppression hearing and at the first trial, that the police had induced him to tell a false incriminatory tale. The jury rejected his testimony and convicted him of murdering Felipe and of all the ancillary charges.
Barros now claims (in his Third Amended Petition) that the efforts of the Public Defender's Office at both the trial and appellate levels fell constitutionally flat. Those professed deficiencies include (1) not asking the Court to recuse itself after it had denied Barros' motion to suppress his statements; (2) failing to present expert testimony about false confessions; (3) failing during voir dire to make effective inquiry about jurors' views of false confessions; and (4) failing on direct appeal to argue that this Court had unfairly restricted trial counsel's voir dire. Barros also says that this Court should recuse itself from considering this PCR application. For the reasons set forth below, the Court finds no merit in any of those claims.[1]
Barros has waived every opportunity to request the Court's recusal in these PCR proceedings. His initial pro se application, filed on April 13, 2009, alleged no articulable grounds or basis for relief. It was not until present court-appointed counsel filed Barros' First Amended Petition on May 23, 2012 that any particularized basis was identified. That claim targeted only one ground: the alleged deficient representation by trial counsel for failing to engage a false confession expert. No other claims were advanced. No recusal motion accompanied that First Amended Petition, nor for that matter did that First Amended Petition contain any suggestion that trial counsel had negligently failed to seek the Court's recusal during the trial proceedings.
The next day, on May 24, 2012, at Barros' request, a hearing was held during which PCR counsel lamented trial counsel's failure to consider presenting a false confession expert, and current counsel requested funds to hire one. The State objected, arguing that unless the expert's testimony would ultimately be admissible, public funds ought not to be expended. This Court agreed and indicated that since it was not likely that this type of testimony would have been allowed at trial, funding to hire such an expert to testify in the PCR proceedings should be withheld. The Court also expressed its doubts that trial counsel had been ineffective for not trying to present such testimony. (Tr. 17-22, May 24, 2012.)
At no time before or during that May 24, 2012 hearing did Barros ever seek the Court's recusal in this PCR action. It was not until April 2, 2014, almost two years later, in his Second Amended PCR Petition, that Barros criticized his trial attorney for not filing a recusal motion. And, it was only then, in bootstrap fashion, that PCR counsel realized that he could not pursue such a claim against Barros' trial counsel without making a similar recusal motion in this PCR action.
The short and dispositive impediment to the instant recusal motion is that the right to make it has clearly expired. It arrives some two years after a hearing essentially on the merits of this very PCR claim itself; indeed, a hearing which Barros himself sought. Under such circumstances, this Court finds that Barros has waived his right to pursue recusal now.
"It is well-settled that a party must raise its claim of a [trial] court's disqualification at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim." Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2nd Cir. 1987); accord Johnson v. Commonwealth, 180 S.W.3d 494, 503 (Ky. Ct App. 2005) ( ) (quoting Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky. 1994)); see Molina v. Rison, 886 F.2d 1124, 1131-32 (9th Cir. 1989) (); Hon. D. Duff McKee, Disqualification of Trial Judge for Cause, 50 Am. Jur. Proof of Facts 3d, 449 at § 22 ...
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