Ferrell v. Wall

Decision Date27 December 2005
Docket NumberNo. 2005-54-Appeal.,2005-54-Appeal.
Citation889 A.2d 177
PartiesJason FERRELL v. A.T. WALL, Warden of the Adult Correctional Institutions.
CourtRhode Island Supreme Court

John A. MacFadyen, Esq., Providence, for Plaintiff.

Aaron L. Weisman, Providence, for Defendant.

Before WILLIAMS, C.J., FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Chief Justice WILLIAMS, for the Court.

This appeal is the most recent proceeding following the brutal, gang-style murder of John Carpenter (Carpenter) on December 18, 1995. In 1997, the defendant, Jason Ferrell (defendant), was acquitted of first-degree murder, but convicted of conspiracy to commit first-degree murder, conspiracy to assault with intent to murder, and assault with intent to murder in connection with Carpenter's untimely death. His several convictions were affirmed by this Court in State v. Oliveira, 774 A.2d 893 (R.I.2001). The state now appeals an order of the Superior Court vacating the defendant's convictions upon a petition for post-conviction relief based on newly discovered evidence and the ineffectiveness of his trial counsel. The hearing justice concluded that an unsworn videotaped recantation by the primary witness against the defendant, Lorenzo Evans (Evans), coupled with evidence that the defendant's trial attorney negligently withheld potentially exculpatory alibi evidence, warranted vacating the defendant's convictions and sentence. For the reasons set forth herein, we reverse the order of the Superior Court and reinstate the defendant's convictions.

I Facts and Travel

A detailed recitation of the facts surrounding Carpenter's murder and defendant's subsequent conviction in connection with that crime are reported in our 2001 opinion, State v. Oliveira, 774 A.2d 893 (R.I.2001). We repeat only those events necessary for the present appeal.

On December 18, 1995, shortly after 11 a.m., Evans was a passenger in Carpenter's blue Chevy Nova, which was traveling near the intersection of Dexter and Division Streets in Providence. At some point, the occupants of a black Jeep Cherokee opened fire on the blue Nova and gave chase. A mechanical malfunction caused the Nova to stall, and Evans and Carpenter abandoned the vehicle. Evans managed to escape over a fence; when he looked back to see how his comrade had fared, he watched two of the three Jeep occupants shoot Carpenter to death at close range.

Evans darted through the yards of nearby houses, trying in vain to get some assistance. According to Evans's testimony at defendant's trial, as he knocked on the door of one house, he made a precautionary glance out into the street and saw a parked, white Ford Taurus. The car had two occupants: defendant sat in the driver's seat, and Jermaine Campbell (Campbell) sat in the passenger's seat. Evans testified that defendant was holding a "chrome object" which resembled a handgun, and he moved it up and down.

Prior to Evans being taken to the local police station shortly after Carpenter's slaying, Evans insisted that the police had the wrong man and that they should be looking instead for "East cats" in a white Ford Taurus and a black Jeep Cherokee. Evans was detained as a suspect and questioned. He stated that he was unable to identify any of Carpenter's assailants. Evans was released from police custody, but returned the following day, December 19, 1995, to implicate Gahil Oliveira, Robert McKinney and Pedro Sanders as the gunmen in the black Jeep. He also identified defendant and Campbell as the occupants of the white Taurus. It was Evans's identifications and parallel trial testimony that would serve as the basis for defendant's indictment and subsequent conviction.

At trial, defendant sought to present a carefully crafted alibi defense through the testimony of three witnesses. This defense was premised primarily upon the testimony of Elizabeth Laposata, M.D., chief medical examiner for the State of Rhode Island, that Carpenter died at 11:27 a.m. First, Nicholas Discullio (Discullio) testified that he saw defendant at a gas station on the East Side of Providence at approximately 11:15 a.m., and that the two men spoke for about fifteen minutes. Second, Diane Baptista (Diane) testified that defendant arrived at the Baptista residence, located at 17 Evergreen Street in Providence, sometime between 10:40 and 10:50 a.m., and was still there when she returned from bringing her mother to dialysis at 11:45 a.m. These two witnesses were permitted to testify at defendant's trial without limitation.

Finally, Debra Baptista (Debra), mother of Wayne Baptista,1 testified that defendant was at the 17 Evergreen Street residence from 10:45 a.m. to 11 a.m. the same morning of Carpenter's death. In fact, she was prepared to testify further that after defendant left her house, he returned sometime after 11:15 a.m., and remained there until approximately 11:35 a.m. During discovery, however, defense counsel failed to provide the state with any of Debra's anticipated testimony as to defendant's whereabouts after 11:15 a.m. After a voir dire of the witness, the trial justice ruled that "[t]his [was] a clear and unequivocal Rule 16 violation for which [defense counsel] [had] no explanation," and, thus, Debra was precluded from testifying about defendant's location after 11:15 a.m.2

The jury acquitted defendant of first-degree murder, but convicted him of conspiracy to commit first-degree murder, conspiracy to commit assault with intent to murder, and assault with intent to murder. One day before defendant's sentencing, however, on June 24, 1997, the lone eyewitness placing defendant near the scene of the crime, Evans, recanted his trial testimony in the offices of defendant's criminal defense attorney; this recantation was memorialized on videotape, was approximately four minutes long, was not given under oath, and, of course, was not subject to cross-examination by the state. The defendant chose not to come forward with this evidence at that time. On June 25, 1997, defendant was sentenced to an aggregate term of forty years imprisonment at the Adult Correctional Institutions (ACI).

The first time any court of this state was made aware of Evans's recantation was in February 2001. The defendant had appealed his conviction to this Court on January 13, 1999. On February 27, 2001, while his appeal was pending, defendant filed a Motion to Remand Case for Consideration of Newly Discovered Evidence and Newly Available Evidence. Submitted with this motion were the original videotape of Evans's unsworn recantation as well as several affidavits, reports and statements intended to buttress the trustworthiness of the videotape. The motion was denied on April 17, 2001, and this Court went on to affirm defendant's conviction on July 6, 2001. State v. Oliveira, 774 A.2d 893 (R.I.2001).

More than five years after the date of Evans's videotaped recantation, on July 3, 2002, defendant filed an application for post-conviction relief in the Superior Court, pursuant to G.L.1956 chapter 9.1 of title 10. He premised his application primarily upon two contentions: (1) that Evans's recantation constituted newly discovered evidence and required that his convictions be vacated; and (2) that his trial counsel's Super. R.Crim. P. 16 blunder rendered defendant's representation constitutionally infirm in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and article 1, section 10, of the Rhode Island Constitution.

At the evidentiary hearing on defendant's application, which occupied five days between December 18, 2003, and January 9, 2004, the state challenged the admissibility of Evans's recantation as hearsay, and the hearing justice deferred a definitive ruling on the state's objection until the court had heard whether Evans would testify and be available for cross-examination. When Evans took the stand, however, he invoked his Fifth Amendment privilege against self-incrimination on all questions asked him. Evans's counsel indicated that a potential prosecution for perjury was the chief concern prompting him to advise his client to invoke the Fifth Amendment. The state declined to seek immunity for Evans, despite the hearing justice's suggestion that a failure to grant immunity would result in his allowing the videotaped recantation as a full exhibit. Indicating that the state's refusal to grant immunity to Evans should not bar Evans's recantation from being admitted, the hearing justice admitted the videotape as a full exhibit upon defendant's renewed motion.

The defendant also presented two witnesses at the hearing. Matthew Smith, Esq. (Smith) was, at the time of Evans's recantation, serving as one of defendant's attorneys, and he had supervised the videotaping of Evans's recantation. Smith testified at the hearing that Evans was in no way coerced to recant. In addition, Campbell, defendant's companion on the day of Carpenter's murder, testified that neither he nor defendant was near the area of Providence where Carpenter was slain at the time of his murder.

More than ten months after final memoranda were submitted, the hearing justice granted defendant's application for post-conviction relief in a written decision dated February 2, 2005, vacating defendant's several 1997 convictions. In his written decision, the hearing justice expressly found Evans to be credible in the videotaped recantation; he also found Campbell, the primary witness who testified on his behalf at the post-conviction relief hearing, to be credible. In addition, the hearing justice took notice of defense counsel's sworn statements, admitting negligence in his representation at defendant's trial. In vacating defendant's convictions, the hearing justice added that "[defendant] would [have been] entitled to post-conviction relief if all he had was the recanting; but the Rule 16 ineffectiveness claim buttresses his position. If all he had, however, was t...

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