Brown v. State

• Decision Date: 11 February 2009
• Docket Number: No. 2004-212-Appeal.,2004-212-Appeal.
• Parties: Danny L. BROWN v. STATE of Rhode Island.
• Court: Rhode Island Supreme Court

964 A.2d 516

Danny L. BROWN v. STATE of Rhode Island.

No. 2004-212-Appeal.

Supreme Court of Rhode Island.

February 11, 2009.

Robert B. Mann, Providence, for Plaintiff.

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

Present: WILLIAMS, C.J., FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice FLAHERTY, for the Court.

A Superior Court jury found Danny L. Brown guilty of three counts of first-degree sexual assault and three counts of first-degree child molestation. The trial justice sentenced him to forty years imprisonment on each count, to be concurrent, with twenty years to serve at the Adult Correctional Institutions, and the other twenty years suspended, with probation. Brown filed a direct appeal of his convictions, and we affirmed. State v. Brown, 709 A.2d 465 (R.I.1998). On April 12, 2000, Brown launched a collateral attack on his convictions by filing an application for postconviction relief. On January 23, 2004, a Superior Court justice granted Brown's application and vacated his sexual-assault and child-molestation convictions. The hearing justice ruled that Brown's trial attorney, John H. Brown, did not provide effective assistance of counsel to such a degree that Brown's constitutional right to a fair trial had been violated. The state timely appealed and Brown filed a cross-appeal. For the reasons set forth in this opinion, we vacate the Superior Court order granting Brown's application for postconviction relief and we reinstate the judgments of conviction.

I Facts and Travel

Brown was indicted for sexually molesting his stepdaughter, Emily.¹ During a three-day trial in the Superior Court, Emily testified that Brown's abusive conduct toward her began just after Brown moved in with her mother, Julie, during the summer of 1983. Emily, who was eight years old when the abuse began, testified that it started with Brown fondling her breasts and vaginal area and that it eventually escalated to oral sex and sexual intercourse. She said that the abuse continued on a regular basis for over two years, until November 1985, just before Brown married Julie.

Emily told no one of the abuse while it was ongoing because Brown said "not to tell anybody. It was our secret."² However, in the fall of 1991, Elizabeth Janikuak, the pastor at the Living Waters Foursquare Gospel Church in Smithfield, which the family attended, began to notice that Emily was "manifest[ing] some real angry behavior."³ Janikuak testified that she asked Emily why she was so angry, and eventually Emily disclosed to her that Brown had sexually abused her. Janikuak testified at trial that she was "very cautious to make sure that what [Emily] was telling me was the truth because we're trained to be sure that just because someone makes an allegation does not mean it's true." Janikuak said she informed Brown about Emily's accusations and, at first, he denied that anything improper had occurred between them. Eventually, however, Brown told the pastor that on one occasion Emily approached him while he was sleeping on the couch, reached into his underwear, and fondled his penis. At trial, Brown repeated this version of events. He told the jury that he first believed it was his wife waking him up, but that when he realized it was Emily's hand in his pants, he scolded her.

Janikuak testified that after speaking with Brown, she referred both him and Julie to Richard Tanguay, M.D., for counseling.⁴ The couple met with Dr. Tanguay on December 12, 1991, and they discussed a number of issues, including Emily's allegations of sexual abuse. Doctor Tanguay later testified that during the meeting, Brown's demeanor "was one of admission, yes, [that] something of a sexual nature did occur between himself and [Emily]." He said that Brown "made an admission of sexual abuse against his stepdaughter, and * * * as the conversation unfolded it was more significant than I had been led to believe in the beginning." After the prosecutor asked Dr. Tanguay whether he recalled Brown's response when the issue of sexual abuse was raised, the witness testified, "if my memory serves me right, and this is very typical in sexual abuse cases with the offender particularly, there's [sic] seems to be some minimization, minimizing of what happened." Julie also testified that during the counseling session with Dr Tanguay, Brown admitted, in her presence, that he abused Emily "two to three times in a month."⁵

On November 30, 1994, a jury convicted Brown of three counts of first-degree sexual assault and three counts of first-degree child molestation. The trial justice sentenced Brown to concurrent terms of forty years for each count, with twenty years to serve and twenty years suspended, with probation that would begin when he was released from incarceration. This Court affirmed his conviction.⁶ In April 2000, Brown filed an application for postconviction relief.⁷ He included myriad claims for relief, including that his trial attorney, John Brown, did not provide effective assistance of counsel and that, as a result, his constitutional right to a fair trial had been compromised.⁸ Brown based his claim of ineffective assistance on four grounds. He contended that John Brown: (1) did not challenge the sexual-assault charges on statute of limitations grounds; (2) did not challenge the grand jury indictment as fatally flawed because Janikuak was allowed to testify in violation of G.L 1956 § 9-17-23;⁹ (3) did not file a motion for a new trial after a reference to Emily receiving counseling appeared in the presentence report; and (4) did not object when the prosecutor, in his closing argument, used allegedly perjured testimony about the couple's pending divorce. Brown amended his postconviction-relief application to add an additional claim of ineffective assistance of counsel. In this amendment, he alleged that John Brown should have asserted the "clergy privilege" set forth in § 9-17-23 during the trial, and on that basis he should have objected to the testimony of Janikuak and Dr. Tanguay.¹⁰

Because Brown was indigent, the Superior Court appointed attorney Mary June Ciresi to represent Brown in his quest for postconviction relief. On January 23, 2003, Ciresi filed a "no-merit" memorandum and a motion to allow her to withdraw from the case in accordance with this Court's holding in Shatney v. State, 755 A.2d 130, 136-37 (R.I.2000) (articulating the standards that should govern the actions of appointed counsel who seek to withdraw from a postconviction-relief proceeding after concluding that an application is meritless). She concluded that Brown's application lacked merit because, even though she disagreed with the manner in which attorney John Brown had handled Brown's criminal case, she did not believe his performance met the standard necessary to carry a successful claim of ineffective assistance of counsel.¹¹ A Superior Court justice reviewed Ciresi's memorandum and allowed her to withdraw from the case; Brown proceeded pro se.

Over the span of the next eleven months, the Superior Court conducted a series of hearings on Brown's application for postconviction relief. Brown presented the testimony of four witnesses, including John Brown.¹² The attorney testified about a number of issues, including: (1) that he represented Al Brown, Brown's cousin, and another man, in a lawsuit against Janikuak; (2) that he did not receive any documents from the Rape Crisis Center about Emily before the trial, despite the fact that the presentence report revealed that Emily had been in counseling; (3) that he did not move to dismiss the indictment as time-barred; and (4) that he did not believe that the clergy privilege applied to Janikuak's conversations with Brown.

As the postconviction-relief process began to wind its way to a conclusion, the hearing justice said that she needed a record of Brown's testimony because many of his comments during the hearings had not been under oath. She declared: "It's very important and critical in my mind to the decision, especially with regard to ineffective assistance of counsel." The hearing justice then directed Brown to compose a list of questions that he would want an attorney to question him on in this matter. Additionally, this colloquy transpired between the hearing justice and Brown:

THE COURT: "And you know, don't forget about the records, the Rape Crisis records and any representations that were made to you by counsel concerning that. Anything your council [sic] may have said to you with regard to strategy or objections, if—the bolstering of the testimony issue by the pastor is another issue that I want to explore, and because you are bringing this action, you realize that, you know, the confidentiality privilege has now terminated, so those communications can now be made part of the record. So I want you to think really hard about that, not so much about the statute of limitations issue because that's not where ineffective assistance comes in.

BROWN: "Excuse me?

THE COURT: "It's not so much like the statute of limitations issue, I don't really think you need to focus on I need to focus on that counsel issue. And I know you've read it a lot of times, but reread the Supreme Court decision with reference to the rulings and the portions of the transcript where your lawyer was making objections, for example, with the bolstering issue. There were four different grounds that they ruled—(interrupted)

BROWN: "That they split on?

THE COURT: "No. Four different grounds that the majority opinion, with reference to the one objection, that they cited and—(interrupted)

BROWN: "I didn't raise none of those issues in the post conviction relief.

THE COURT: "You did indirectly. You did indirectly. But I'm concerned—I'm zeroing in on ineffective assistance, on the issues that the majority opinion upheld the trial justice, the records, the testimony of the pastor—(interrupted)

BROWN: "Which records, the medical records?

THE...