Gordon v. State

• Decision Date: 11 April 2011
• Docket Number: No. 2009–67–Appeal.,2009–67–Appeal.
• Citation: 18 A.3d 467
• Parties: David GORDONv.STATE of Rhode Island.
• Court: Rhode Island Supreme Court

18 A.3d 467

David GORDON

v.STATE of Rhode Island.

No. 2009–67–Appeal.

Supreme Court of Rhode Island.

April 11, 2011.

Mark B. Laroche, Esq., Providence, for Applicant.Aaron L. Weisman, Department of Attorney General, for State.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

David Gordon (applicant) appeals from the denial of his application for postconviction relief by a magistrate of the Superior Court. As grounds for his appeal, he contends that (1) the magistrate did not have constitutional authority to preside over his postconviction-relief proceedings; and (2) the state failed to disclose certain inducements given to a codefendant in return for her testimony against the applicant. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After reviewing the record and considering the parties' written and oral submissions, we are satisfied that this appeal may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Procedural History

The facts underlying applicant's convictions are set forth more fully in State v. Gordon, 880 A.2d 825 (R.I.2005). Around November 1995, Mr. Gordon's codefendant, Lorraine Holman, began corresponding with Mr. Gordon through her church's pen-pal program while he was an inmate at the Adult Correctional Institutions (ACI). Id. at 828–29. Ms. Holman soon began visiting Mr. Gordon at the ACI. Id. at 829. Mr. Gordon then started to pressure her to take out a home equity loan so that the two of them could “buy a business.” Id. On April 10, 1996, the day Mr. Gordon was released from prison, Ms. Holman gave him a gift of $25,000 with which to purchase a business, but he told her that he needed more money and began suggesting ways that she could start a fire in her home. Id.

Ms. Holman ultimately was persuaded to participate in Mr. Gordon's scheme to burn down her home for the insurance proceeds. See Gordon, 880 A.2d at 829–30. On the morning of June 5, 1996, Mr. Gordon telephoned her and told her: “This is the day. This is it.” Id. As Ms. Holman was returning home from work later that day, she was stopped by the fire chief and informed that her house was on fire. Id. at 830.

After a violent incident between Ms. Holman and Mr. Gordon, Ms. Holman decided to come forward and confess, and on July 9, 1996, she gave two statements to the Foster Police Department. Gordon, 880 A.2d at 830. Mr. Gordon and Ms. Holman both were arrested on July 10, 1996. Id. at 830–31. They were arraigned in the Sixth Division District Court on July 11, 1996, and both were held without bail. Subsequently, Ms. Holman filed a petition for writ of habeas corpus, and on July 19, 1996, the District Court set bail for her at $20,000 with surety. On the same day, Ms. Holman posted $2,000 and was released. In Gordon we observed that Ms. Holman testified that “she was held at the ACI's intake center for eight days and that she was released after she agreed to cooperate with the prosecution.” Id.

Subsequently, in February 1997, Mr. Gordon and Ms. Holman each were arraigned in Superior Court for first-degree arson, conspiracy, and insurance fraud. Mr. Gordon again was held without bail. A bail of $20,000 with surety again was set for Ms. Holman; the $2,000 that she previously had posted was transferred from the District Court to the Superior Court, and she was released.

On August 7, 1997, Ms. Holman entered into a formal cooperation agreement with the state. The agreement provided that, “[i]n exchange for the past cooperation and continued full cooperation and truthful testimony of [Ms.] Holman in connection with prosecution of all criminal cases brought as a result of the fire,” the state would allow her to plead nolo contendere to conspiracy, insurance fraud, and to an amended charge of third-degree arson. Additionally, the state would recommend suspended sentences of ten years on the conspiracy charge, one year on the fraud charge, and twelve years on the third-degree arson charge, as well as “reasonable restitution[,] to be determined by a Special Master.” Ms. Holman pled nolo contendere, and a Superior Court justice sentenced her in accordance with these recommendations. On November 24, 1997, she was ordered to pay restitution in the amount of $5,000, “pending [the] outcome of co-defendant's case.” This restitution order was equivalent to the amount of money Ms. Holman's insurance company had advanced to her on account of the fire.

On July 2, 1998, a presentment report was prepared, stating that “[Ms. Holman] has paid $2,500 in restitution; restitution has been fixed at $5,000. She is waiting for the outcome of her co-defendant's trial in order to determine if she owes any further restitution. Restitution is ordered on [the insurance-fraud count]. Probation expires on this Count on 8/07/98.” The state then filed a probation-violation report pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure. Ms. Holman was presented as a violator on September 15, 1998, and the Superior Court noted that the “[v]iolation [was p]ending.” The violation was withdrawn on July 14, 1999. Meanwhile, from 1998 through 2002, the restitution balance repeatedly was reviewed and the matter was continued, awaiting the outcome of Mr. Gordon's case.

In the interim, on March 26, 1998, the state was ordered to provide Mr. Gordon with “any and all co-operation agreements or other memorandum [ sic ] of the promises, inducements and rewards made to [Ms.] Holman.” The record indicates that the state previously had delivered a copy of the August 7, 1997 cooperation agreement to Mr. Gordon, and Mr. Gordon acknowledged that he received it.

Following a trial, on October 1, 2002, a jury found Mr. Gordon guilty of first-degree arson, conspiracy, and insurance fraud. He was sentenced to an eighty-year term for the arson conviction, with forty years to serve and the balance suspended, with probation; ten years on the conspiracy conviction, running concurrently; one year on the fraud conviction, also running concurrently; and he was charged with $2,500 in restitution. On September 1, 2005, this Court affirmed his convictions. Gordon, 880 A.2d at 839.

Subsequently, on March 8, 2006, Ms. Holman's restitution obligation was modified from $5,000 to $2,500, and it was documented as being paid in full.

On August 28, 2006, Mr. Gordon filed a pro se application for postconviction relief in Superior Court. In his application, Mr. Gordon argued that the state failed to disclose material impeachment evidence, including: (1) that Ms. Holman was given bail and released from custody as an inducement for her cooperation against applicant; (2) that the state had filed arrest warrants against Ms. Holman for failing to pay restitution; and (3) that the state had reduced the restitution owed by Ms. Holman from $5,000 to $2,500.¹

On January 9, 2007, Mr. Gordon's application for postconviction relief was assigned to a magistrate, who was acting as a justice of the Superior Court pursuant to an authorization from the then Chief Justice of this Court under G.L.1956 § 8–15–3.1.² The authorization designated the aforementioned magistrate with all of the authority and powers vested in a Superior Court justice, from January 1, 2007, through January 31, 2007. This authorization was renewed monthly, and remained in effect through July 31, 2007.³

On September 7, 2007, applicant filed a motion in Superior Court to recuse the magistrate. The applicant argued at a hearing that, under G.L.1956 § 8–2–39,⁴ postconviction-relief matters were “outside the scope” of a magistrate's duties and powers. In response, the magistrate stated that “this matter was referred to [him] when [he] was assigned and sitting as an associate judge of this court by order of the Chief Justice.” He further explained that:

“[u]nder that authority and under the specific statute, * * * [he had] all of the powers, duties, etcetera [ sic ] of a Superior Court judge during the period up to and including August 1st. Subsequent to August 1st and in accordance with the order, [he] was authorized to complete by virtue of all of the orders all matters that were pending before [him].” He noted that this matter had indeed been on his docket numerous times before August 1, and he accordingly denied the motion to recuse.

After that denial, on September 18 and 19, 2007, the magistrate heard arguments on Mr. Gordon's application for postconviction relief. The applicant argued that although he had received a copy of the cooperation agreement before trial the document failed to include, and the state failed to disclose, three inducements given to Ms. Holman. The applicant insisted that the state's allegedly intentional failure to disclose these inducements warranted a new trial.

The first such alleged inducement was the state's withdrawal of its objection to Ms. Holman's bail in District Court. To prove this inducement existed, applicant relied on an affidavit from a former special assistant attorney general,⁵ the petition for writ of habeas corpus, and the District Court docket entry that applicant said showed that “on July 19th the [s]tate [withdrew its] objection to bail, $20,000 with surety by agreement.” ⁶ The applicant also noted that Gordon observed that Ms. Holman had testified that she was held at the ACI for eight days and was released after she agreed to cooperate. The applicant believed that, collectively, these documents demonstrated that Ms. Holman was released on bail as an inducement for her testimony at applicant's bail hearing and trial.

In response, the state argued that there was no evidence showing it had deliberately withheld information, and it claimed that applicant was aware at...