Hazard v. State, C.A. No.: KM 03-799 (R.I. Super 1/11/2010)
| Decision Date | 11 January 2010 |
| Docket Number | C.A. No.: KM 03-799. |
| Parties | HAROLD HAZARD, v. STATE OF RHODE ISLAND. |
| Court | Rhode Island Superior Court |
This case is before this Court on Petitioner Harold Hazard's Application for PostC-onviction Relief. In October of 1997, a jury convicted Hazard of one count of first-degree child molestation sexual assault and four counts of second-degree child molestation sexual assault. After an unsuccessful appeal and the death of his trial counsel, Hazard now seeks reversal of his conviction on grounds of ineffective assistance of counsel at trial.
After consideration of the trial transcripts and exhibits, the decision of the Rhode Island Supreme Court affirming Hazard's conviction, his petition for post-conviction relief, the record from the evidentiary hearing on that petition, and the parties' memoranda and arguments, this Court denies Hazard's petition for post-conviction relief.
The facts relevant to the petition are culled from the Rhode Island Supreme Court's decision in State v. Hazard, 785 A.2d 1111 (R.I. 2001), in which the Court denied Hazard's appeal from his conviction, as well as the 1997 trial record. From 1993 through 1994, Petitioner Hazard, a 43-year-old divorced father of three sons, was living with his then fiancée and her minor daughter, who was then between 11 and 12 years of age. During this time, Hazard was a postal worker and his fiancée was employed as a waitress, working the evening shift three or four nights per week from approximately 4:30 p.m. to midnight, while Hazard babysat for her daughter. Hazard also cared for the young girl when his fiancée was hospitalized on two separate occasions, once in 1993 for over a week, and the second time in 1994 for at least two weeks.
When Hazard babysat, he began coming into the young girl's room after she showered and would rub her with lotion. The contact was originally limited to the young girl's back, but then Hazard began rubbing her breasts under her clothes and then her vagina. On three or four occasions, Hazard put his fingers into the girl's vagina. He also would kiss her breasts and lick her ears while showing her the location of her "horny spots." On other occasions, Hazard once penetrated the young girl's vagina with his tongue and once penetrated her anally with his penis. From 1993 through 1994, Hazard molested the young girl, in total, about 15 to 20 times.
The young girl displayed some resentment toward Hazard at the outset of his relationship with her mother. Eventually, however, the two became close, until 1994 when the girl's behavior toward Hazard changed and he no longer wished to babysit for her, forcing her mother to change her work schedule so that she could be home with her daughter during the evenings.
The young girl did not tell her mother or any other adult about Hazard's conduct during this period because she knew that her mother was in love with Hazard and because Hazard had threatened to kill himself if she did. The only person in whom she confided was her best friend. Eventually, the relationship between Hazard and his fiancée deteriorated, and he moved out in September of 1995. Earlier that same year, in March of 1995, Hazard's father had died. A few months after he moved out, in January of 1996, his mother and sister died. Thereafter, Hazard became very depressed, even making funeral arrangements for himself in February of 1996 before eventually seeking treatment and counseling for his depression.
On July 7, 1996, the young girl disclosed to her mother that Hazard had touched her inappropriately. Later that same night, her mother went to Hazard's apartment and confronted him with her daughter's allegations. He became visibly upset, crying and shaking, and then apologized for what he had done, offering to help pay for any counseling the girl might need. Soon thereafter, Hazard left the apartment. Early the next morning, Trooper Pennington of the Rhode Island State Police found Hazard semi-conscious, with slashed wrists, laying in the grass near his parents' gravesite at the Veterans Cemetery in Exeter, Rhode Island. Trooper Pennington discovered the razor blade used by Hazard to cut his wrists and a note that Hazard had left in his vehicle in which he apologized for the pain he had caused, asked for forgiveness, and made reference to the funeral home which had his papers. He also had inscribed a note to his sister directing her to have the spelling of their parents' names on their gravestone corrected.
A grand jury indicted Hazard on September 12, 1996 on a five-count indictment, including one count of first-degree child molestation, in violation of R.I.G.L. § 11-37-8.1, and four counts of second-degree child molestation, in violation of § 11-37-8.3. See State of Rhode Island v. Harold Hazard, C.A. No. K1/96-458A (R.I. Super. 1996). After a trial by jury, it convicted Hazard on all five counts on October 6, 1997. Following this Court's denial of Hazard's motion for a new trial on October 23, 1997, it sentenced him on December 18, 1997 to forty years at the Adult Correctional Institutions, with twenty years to serve and twenty years suspended with twenty years probation. On the remaining four counts of second-degree child molestation, this Court sentenced Hazard to thirty years at the Adult Correctional Institutions, with fifteen years to serve and fifteen years suspended with fifteen years probation, with the sentences on all counts to run concurrently. This Court also ordered Hazard to undergo sex offender, mental health and substance abuse counseling and to register as a sex offender as required by law. It further ordered Hazard to make restitution to the complaining witness for her counseling expenses. The late Charles J. Rogers, Jr. represented Hazard throughout his trial and at the sentencing hearing.
On December 18, 1997, following Rogers's death, Hazard privately retained new counsel, James McCormick, to represent him in connection with his appeal before the Rhode Island Supreme Court. The Supreme Court affirmed his conviction on December 3, 2001. See State v. Hazard, 785 A.2d 1111 (R.I. 2001). Through his new counsel, Hazard thereafter filed a motion to reduce his sentence which this Court heard and denied on May 10, 2002.
In September of 2003, again through his new counsel, Hazard filed this Application for Post-Conviction Relief asking that his conviction be vacated on grounds of ineffective assistance of counsel at trial. As Petitioner, Hazard claims that the trial errors committed by his late trial counsel, Charles J. Rogers, Jr., either singularly or cumulatively, were prejudicial to him and that, but for their commission, he would not have been convicted.
The bases for Petitioner's ineffective assistance of counsel claim are that his late trial counsel: (1) wrongfully, and without Petitioner's knowledge or consent, disclosed confidential psychiatric records to the State before trial — records which the defense did not offer into evidence in Petitioner's defense but which the prosecutor used to impeach Petitioner's trial testimony; (2) failed to use exculpatory evidence, such as police records and reports containing allegations that the complaining witness herself had committed acts of sexual assault and molestation against other younger children, which could have impeached her trial testimony; (3) failed to object to the State's introduction of Petitioner's suicide note which the prosecutor argued was evidence of Petitioner's consciousness of guilt regarding the charged offenses; and (4) failed to object during the State's closing statement when the prosecutor remarked that Petitioner's suicide note evidenced his consciousness of guilt and engaged in many instances of improper vouching.
Additionally, Petitioner relies on the Rhode Island Supreme Court's decision in State v. Hazard for further examples of his late counsel's ineffective assistance. Petitioner contends that his trial counsel rendered ineffective assistance at trial by failing to preserve his objections to several of the trial justice's evidentiary rulings for appeal: (1) not permitting defense counsel to cross-examine the complaining witness's mother on issues of bias toward Petitioner; (2) not allowing defense counsel to attempt to elicit testimony regarding Petitioner's proclaimed reasons for attempting suicide; and (3) not admitting statements made by Petitioner to his ex-wife indicating that his suicide attempt was the result of pre-existing depression rather than consciousness of guilt.
The State filed an answer to Petitioner's Application for Post-Conviction Relief in April 2004, objecting to the Petitioner's request for relief and then supplemented its answer on May 30, 2006 to set forth its arguments in opposition to Petitioner's Application. In its answer, the State objects to Petitioner's Application for Post-Conviction Relief, arguing that he has failed to prove, under the dictates of Strickland v. Washington, 466 U.S. 668 (1984), that his trial counsel's performance at trial was constitutionally deficient or that, even assuming deficiency, he sustained prejudice. In addition, it contends that the decision of the Rhode Island Supreme Court with respect to Defendant's appeal is res judicata as to some or all of the Petitioner's claims. At the request of Petitioner, this Court held an evidentiary hearing with respect to Petitioner's post-conviction relief application. Both parties filed memoranda, and this Court also heard oral argument regarding Petitioner's application.
Under the Rhode Island Post-Conviction Relief Act, a person who has been convicted or sentenced for a crime and who claims that "the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state" may institute an action for post-conviction relief. R.I. Gen....
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