Hazard v. State
| Decision Date | 03 May 2013 |
| Docket Number | No. 2011–303–Appeal.,2011–303–Appeal. |
| Citation | 64 A.3d 749 |
| Parties | Harold HAZARD v. STATE of Rhode Island. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
James T. McCormick, Esq., Providence, for Applicant.
Jane M. McSoley, Department of Attorney General, for State.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
The applicant, Harold Hazard, appeals to this Court from the Superior Court's denial of his application for postconviction relief. Hazard previously had been convicted of one count of first-degree child molestationsexual assault, in violation of G.L.1956 § 11–37–8.1,1 and four counts of second-degree child molestation sexual assault, in violation of § 11–37–8.3.2 Before this Court, Hazard contends that his application for postconviction relief should have been granted based on what he argues was prejudicial error committed by his trial counsel when he provided Hazard's confidential psychiatric records to the state without his knowledge or consent, failed to attempt to limit the state's use of the psychiatric records or to object to the state's use of the records, failed to introduce the psychiatric records himself to buttress Hazard's defense, and failed to adequately prepare Hazard for cross-examination on the psychiatric records. Hazard further contends that his trial counsel was deficient because he pursued an argument at trial about racial animosity that Hazard believed should not have been used and because his trial counsel failed to object to what Hazard argues was improper credibility attacks and improper vouching during the prosecutor's closing argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The underlying facts of this case are discussed at length in State v. Hazard, 785 A.2d 1111 (R.I.2001). For the sake of brevity, this Court will only discuss those facts relevant to the issues on appeal.
The incidents underlying this case occurred in 1993 and 1994. At that time, Hazard, who was divorced with three sons, lived with his fiancee, Carla, and her daughter Lisa,3 who was between eleven and twelve years old. Hazard worked a day shift as a postal worker, and Carla was a waitress who worked an evening shift three or four nights per week from approximately 4:30 p.m. to midnight. When Carla worked evening shifts, Hazard was alone with Lisa. Hazard also cared for Lisa when Carla was hospitalized on two separate occasions, once in 1993 for over one week, and the second time in 1994 for at least two weeks.
The evidence at trial demonstrated that during the times Hazard was alone with Lisa, he began coming into her room as she prepared for bed. Her bedtime was approximately 9 p.m., at which time she would occasionally apply a moisturizing lotion. Hazard began to ask if he could put the lotion on her. At first, he applied the lotion on only her back, but eventually he began rubbing lotion on her breasts underneath her clothing. The touching escalated to where he was licking her ears and kissing her breasts and neck, all the while explaining that he was showing her the locations of “horny spots.” A number of times, he also touched her buttocks, and on three occasions, according to Lisa's testimony at trial, he “put his fingers in [her vagina] a little bit.” On one occasion, he penetrated Lisa's vagina with his tongue, and on another occasion, he penetrated her anally with what he said was his thumb, but what she believed was his penis. Between 1993 and 1994, these incidents occurred, in total, about fifteen to twenty times.
Lisa did not tell her mother about Hazard's conduct because she knew that her mother was in love with Hazard and because Hazard threatened to kill himself if she did. She told her best friend about the touching in the fall of 1994, but made her friend promise not to tell anyone because Lisa was afraid. In 1994, Hazard and Carla grew apart,4 and in September 1995, he moved out of their home. Around that time, Hazard lost three family members: his father on March 24, 1995, his sister on January 1, 1996, and his mother on January 21, 1996. He became very depressed, even making funeral arrangements for himself in February 1996, and eventually sought treatment and counseling.
On July 7, 1996, Lisa finally revealed to her mother that Hazard had touched her inappropriately. Later that same night, accompanied by a friend, Carla went to Hazard's apartment and confronted him. Hazard became visibly nervous and upset, and he started crying and shaking. He apologized and offered to pay for any therapy or counseling for Lisa. Hazard then left his apartment. The next morning, at around 8:35 a.m., a state trooper responded to a call of a man down in the Veterans Memorial Cemetery, where he found Hazard face down and bleeding from slashes on his wrist. The trooper approached Hazard to gather some information about what happened. The trooper also located Hazard's vehicle, where he found Hazard's identification and a note that said, 5 6
On October 6, 1997, a jury found Hazard guilty of one count of first-degree child molestation sexual assault, in violation of § 11–37–8.1, and four counts of second-degree child molestation sexual assault, in violation of § 11–37–8.3. Hazard filed a motion for a new trial, which the trial justice denied on October 23, 1997, and on December 18, 1997, she sentenced Hazard to forty years at the Adult Correctional Institutions (ACI)—twenty years to serve, twenty years suspended, with twenty years probation—for the first-degree count, and concurrent thirty-year terms—fifteen years to serve, fifteen years suspended, with fifteen years probation—for the four second-degree counts. Hazard was required to register as a sex offender, and he was ordered to undergo sex-offender counseling, mental-health counseling, and substance-abuse counseling. The trial justice also ordered Hazard to pay restitutionto Lisa for costs incurred during her counseling.
For Hazard's direct appeal, he retained new counsel because his trial counsel had passed away. On appeal, Hazard challenged certain evidentiary rulings and the mid-trial excusal of a juror. See Hazard, 785 A.2d at 1115. The appeal was denied on December 3, 2001. Id. at 1123. Hazard then filed a motion for sentence reduction, which also was denied by the trial justice on May 10, 2002. On September 8, 2003, Hazard filed an application for postconviction relief.
On May 30, 2006, a hearing was held on Hazard's postconviction-relief application. During the hearing, Hazard explained that his trial counsel had requested his authorization to release his mental-health treatment records because trial counsel was concerned for Hazard's health and mental wellbeing. He said that his trial counsel never informed him that this material would be provided to the prosecutor. As a result, Hazard maintained, he was shocked and unprepared when confronted with the records for the first time during his trial. Hazard also contested trial counsel's strategy to attack Lisa's credibility by alleging racial animus. He noted that trial counsel attempted to assign racial bias as the motive behind Lisa's accusations, but he himself never thought that Lisa resented him and he said he never agreed to this trial strategy.
On January 11, 2010, the postconviction-relief justice, who had also been the trial justice, issued a forty-eight-page decision on Hazard's postconviction-relief application. In essence, the postconviction-relief justice distilled Hazard's various arguments into two categories. The first involved areas where she found trial counsel's performance to be constitutionally deficient, thus meeting the first prong of the Strickland test.7 Significantly, however, she found that no prejudice had inured to Hazard with respect to those deficiencies, in that the outcome of the trial would not have been different if the errors had not occurred; thus, she held that the second prong of the Strickland test had not been met. The second category involved areas where the postconviction-relief justice found that trial counsel's performance did not fall beneath an acceptable standard, and, therefore, the arguments failed because the first prong of Strickland was not met.
Specifically, the postconviction-relief justice found that trial counsel's performance was deficient to a constitutional degree when he produced Hazard's psychiatric records to the state,8 when he failed to attempt to limit the use thereof by the state, when he failed to use the records as a defense, and when he failed to properly prepare Hazard for cross-examination. The justice determined, however, that those deficiencies did not deprive Hazard of a fair trial. She further found that trial counsel's performance was not deficient in suggesting racial animus to attack Lisa's credibility or in failing to object to the prosecutor's closing argument, wherein the term “liar” repeatedly was used in reference to Hazard or when the prosecutor used his summation to bolster the credibility of the state's witnesses. Ultimately, the postconviction-relief justice denied and dismissed Hazard's application.
Hazard timely appealed the adverse decision of the postconviction-relief justice to this Court. Before this Court, Hazard contends that his application for postconviction relief should have been granted based on what he alleges were constitutionally deficient and prejudicial errors by his trial counsel.
General Laws 1956 § 10–9.1–1 creates a postconviction remedy that is “available to any person who has been convicted of a crime and who thereafter alleges either that the conviction violated the applicant's constitutional rights or that the existence of...
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