Jesus Fuentes v. State
| Decision Date | 18 October 2021 |
| Docket Number | PM-2017-4515 |
| Parties | JESUS FUENTES v. STATE OF RHODE ISLAND |
| Court | Rhode Island Superior Court |
Providence County Superior Court (P1-2010-0203AG)
For Plaintiff: James T. McCormick, Esq.
For Defendant: Judy Davis, Esq.
After a jury trial in June 2010, Fuentes was convicted of the first-degree murder of Henry Vargas and a related count of discharging a firearm while committing a crime of violence resulting in Vargas' death. As statutorily mandated, the Court sentenced Fuentes to two consecutive life prison terms. G.L. 1956 §§ 11-23-2, 11-47-3.2(b)(3) [now recodified as (b)(4)].
Fuentes' conviction was affirmed by the Supreme Court, State v. Fuentes, 162 A.3d 638 (R.I. 2017), which contains a full explication of the facts. The only notable factor pertinent to the instant matter is that the state's case largely rested on the testimony of Carmen Bueno, Vargas' girlfriend and the only witness who saw Fuentes shoot Vargas.
In this postconviction relief application, Fuentes principally complains that his trial attorney, Gary Pelletier, an experienced criminal defense practitioner, and his appellate counsel, Lara Montecalvo (then Chief of the Public Defender's Appellate section and now this state's Public Defender), rendered impermissibly substandard assistance. He criticizes Mr. Pelletier for not engaging an identification expert and faults attorney Montecalvo for not raising in his direct appeal this Court's refusal to include a "mere presence" admonition in the jury instructions.
The parties have filed ample briefs, along with relevant exhibits, and have agreed that Mr. Pelletier's March 17, 2021 Affidavit comprises the substance of what his testimony would have been at a postconviction relief hearing. The parties have also agreed that the Court may decide this matter based upon those submissions without convening a hearing. Having examined those materials and the relevant portions of the record, the Court agrees that the facts and legal contentions have been adequately presented and that further proceedings would not aid the decisional process.
Strickland, et al.
The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by the Rhode Island Supreme Court. Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001); LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). Whether an attorney has failed to provide effective assistance is a factual question which a petitioner bears the "heavy burden" of proving. Rice v. State, 38 A.3d 9, 17 (R.I. 2012); Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (). When reviewing a claim of ineffective assistance of counsel, the question is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Heath v. Vose, 747 A.2d 475, 478 (R.I. 2000).
A Strickland claim presents a two-part analysis. First, the petitioner must demonstrate that his attorney's performance was deficient, which requires a showing that counsel made errors that were so serious that the attorney was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687; Powers v. State, 734 A.2d 508, 522 (R.I. 1999). Furthermore, a petitioner "must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and sound trial strategy." Hughes v. State, 656 A.2d 971, 972 (R.I. 1995); Gonder v. State, 935 A.2d 82, 86 (R.I. 2007).
Even if the petitioner can satisfy that initial step, he must also demonstrate that counsel's deficient performance was prejudicial. In other words, he is required to show that a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hazard v. State, 968 A.2d 886, 892 (R.I. 2009).
Ordinarily, tactical decisions by trial attorneys do not, even if hindsight proves the strategy unwise, amount to defective representation. "As the Strickland Court cautioned, a reviewing court should strive 'to eliminate the distorting effects of hindsight.'" Clark v. Ellerthorpe, 552 A.2d 1186, 1189 (R.I. 1989) (quoting Strickland, 466 U.S. at 689); Linde v. State, 78 A.3d 738, 747 (R.I. 2013). See Rice, 38 A.3d at 17 (). Id. (quoting Brennan, 764 A.2d at 173).
Fuentes primarily complains that trial counsel provided inadequate assistance by failing to engage an expert to testify about the imprecisions of eyewitness identification.
The short answer to that complaint is that he did attempt to secure an identification expert but, through no fault of his own, was unable to do so. In his March 17, 2021 Affidavit, Mr. Pelletier reports that he conferred with Nancy Steblay, Ph.D., "a nationally known expert on the issue of the weaknesses of eyewitness' testimony [who] quoted a fee of $12, 000.00 to assess the case, draft a report, travel to Rhode Island and testify at the trial." The fixed June 2010 trial date, however, was incompatible with her schedule, and she would have been unable to consider the case until later that year. In any event, retaining her proved too costly, and the Court declined retained counsel's request to extract funds from the public fisc to underwrite her expenses because Fuentes was not considered indigent.
Moreover, trial counsel correctly recounts that the Court advised him that, under existing Rhode Island case law, it would be disinclined to admit such testimony anyway. See generally, State v. Porraro, 121 R.I. 882, 892, 404 A.2d 465, 471 (1979) (); State v. Day, 898 A.2d 698, 707 (R.I. 2006); State v. Werner, 851 A.2d 1093, 1103 (R.I. 2004); State v. Gomes, 604 A.2d 1249, 1255 (R.I. 1992) (); State v. Gardiner, 636 A.2d 710, 713-14 (R.I. 1994) (); State v. Sabetta, 680 A.2d 927, 932-33 (R.I. 1996) (following Porraro); State v. Martinez, 774 A.2d 15, 19 (R.I. 2001) (Morris followed).
Notably, the Supreme Court rejected Fuentes' claim in his direct appeal that this Court had shortchanged him by failing to give any identification instruction, much less the cautionary eyewitness instruction he had requested, because Rhode Island law, at the time of Fuentes' trial, did not mandate that an identification instruction be given at all.[1]
Furthermore, the Supreme Court had regularly approved a trial judge's denial of public funds to an indigent defendant to hire an identification expert whose testimony would not have been admitted at trial. E.g., Day, 898 A.2d at 706-07; State v. Morris, 744 A.2d 850 (R.I. 2000); Martinez, 774 A.2d at 18-19 (Morris followed); see also, Barros v. State, 180 A.3d 823, 832-33 (R.I. 2018) ().[2]
This Court is mindful that in the ten years since Fuentes' trial, the weight heretofore accorded to the accuracy of eyewitness identification, as well as a juror's assumed understanding of its potential shortcomings, have been more closely examined by professionals and courts in various jurisdictions, and our Supreme Court has also noted the alteration in that terrain in State v. Davis, 131 A.3d 679, 697 (R.I. 2016), and in its affirmance of Fuentes' conviction. Fuentes, 162 A.3d at 644-46.[3]
But the yardstick by which to measure trial counsel's efficacy is not in the context of recent developments and today's more cautious approach to eyewitness identification; rather, it must be gauged by existing law at the time of trial. Providing "effective assistance of counsel does not involve the ability to accurately predict the future," Bell v. State, 71 A.3d 458, 462 (R.I. 2013). "The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms[.]'" Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690). "We would emphasize that, in evaluating an attorney's performance under Strickland, our approach is to look at the legal landscape and what was known to the attorney at the time at issue." Barros, 180 A.3d at 833 ().
Since an identification instruction was not even mandated at the time of Fuentes' trial, and because expert testimony on the subject of eyewitness frailty would have been blocked anyway; and where, as here, public funds would not have been provided to hire an identification expert, it most certainly was not ineffective assistance of Fuentes' trial counsel to have recognized the futility of trying to engage his chosen expert who was, in any case, unavailable and too expensive. See Harrington, 562 U.S. at 107 ().
Fuentes also faults appellate counsel for not pursuing in his direct appeal a claim arising from the Court's refusal to include a "mere presence" charge in the jury instructions.
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