Johnson v. State, 041520 RISUP, PM-2018-0780

Docket Nº:PM-2018-0780
Opinion Judge:MONTALBANO, J.
Attorney:Kathleen A. Nee, Esq. For Plaintiff: Jeanine P. McConaghy, Esq. For Defendant:
Case Date:April 15, 2020
Court:Superior Court of Rhode Island




No. PM-2018-0780

Superior Court of Rhode Island, Providence

April 15, 2020

Kathleen A. Nee, Esq. For Plaintiff:

Jeanine P. McConaghy, Esq. For Defendant:



This matter is before the Court for decision following a hearing on the application of Jody Johnson (Petitioner or Mr. Johnson) for postconviction relief. Petitioner claims that he did not receive effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, and article I, section 10 of the Rhode Island Constitution. Petitioner also claims a violation of due process as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. The Court exercises jurisdiction pursuant to G.L. 1956 §§ 10-9.1-1 and 10-9.1-2.


Facts and Travel

The facts underlying this case are set forth in State v. Johnson, 199 A.3d 1046 (R.I. 2019) and are incorporated by reference herein. On April 10, 2015, Mr. Johnson was charged by criminal indictment with: conspiracy to commit first-degree robbery (Count One); first-degree robbery (Count Two); contributing to the delinquency of a minor (Count Three); and assault with a dangerous weapon in a dwelling with intent to commit robbery (Count Four). Those charges stemmed from an incident that occurred on the evening of January 28, 2014, during which Mr. Johnson committed robbery and assault with a firearm at the home of Mary Celletti (Ms. Celletti). Johnson, 199 A.3d at 1048.

Subsequent to the criminal indictment on April 10, 2015, James T. McCormick, Esquire (Attorney McCormick) was appointed as Mr. Johnson's defense counsel. He entered his appearance on May 6, 2015.

In January of 2017, after four days of trial, the defendant was convicted by a Providence County jury of Counts One, Two, and Four.1 Mr. Johnson was sentenced to twenty-five years imprisonment with twelve years to serve and the balance suspended, with probation on defendant's first-degree robbery conviction and defendant's assault with a firearm conviction. As to the conspiracy conviction, the defendant was sentenced to ten years imprisonment with ten years to serve. Each sentence was ordered to be served concurrently. On March 27, 2017, a hearing was held on Mr. Johnson's renewed motion for judgment of acquittal and motion for a new trial and was subsequently denied.

Mr. Johnson filed an untimely appeal of his convictions to the Rhode Island Supreme Court, alleging that the trial justice should have granted him a new trial on the grounds that the jury's verdict was against the weight of the evidence. The Supreme Court granted the Petitioner's writ of certiorari, rejected Mr. Johnson's arguments, and affirmed the judgment of the trial court. See Johnson, 199 A.3d at 1053.

Petitioner, at the time a pro se litigant, filed his first petition for postconviction relief on February 27, 2019 asserting the following grounds for relief: (1) newly discovered evidence; (2) civil rights violations; (3) malicious prosecution; (4) prosecutorial misconduct; and (5) due process violations. On that same day, the State filed an answer asserting that the doctrine of laches and the doctrine of res judicata would prevent Petitioner from receiving the postconviction relief he sought.

On March 28, 2019, Attorney Pamela Chin was appointed as Petitioner's counsel in this matter. Attorney Chin subsequently moved to withdraw her representation of Mr. Johnson on September 11, 2019, the motion was granted, and an order to that effect was entered on September 24, 2019. On September 30, 2019, the Court appointed Attorney Kathleen Nee (Attorney Nee or Petitioner's Counsel) to represent Mr. Johnson on his petition for postconviction relief. On October 9, 2019, Attorney Nee entered her appearance on behalf of Petitioner.

Attorney Nee proceeded to file two separate motions: one motion seeking funds for an attorney to testify, as an expert, as to whether defense counsel's failure to file a motion to suppress identification was reasonable, and a second motion seeking to amend Mr. Johnson's postconviction relief petition. Both motions were granted by this Court. An amended petition for postconviction relief was filed by Attorney Nee on November 12, 2019, wherein the grounds for relief were narrowed to (1) ineffective assistance of counsel and (2) violation of due process rights. This Court held an evidentiary hearing on the amended petition on January 6, 2020.

Attorney McCormick testified that he has been practicing civil and criminal law in Rhode Island for 38 years. (Hr'g Tr. 20:2-25, Jan. 6, 2020.) He began handling criminal matters ten years into his practice and so for the last 28 years, approximately 50% of his practice consisted of litigating criminal cases. Id. at 20:6-9. Attorney McCormick testified that he has tried an estimated 280 criminal cases and is familiar with the concept of suggestive identification. In fact, Attorney McCormick testified to his in-depth knowledge of suggestive identification after having briefed the issue in a separate case before our Supreme Court. Id. at 21:9-14.

Attorney McCormick obtained discovery from the State which included the police reports and the photo array that was shown to the complaining witness, Ms. Celletti. Id. at 11:13-23. Attorney McCormick also received the grand jury transcript which included Ms. Celletti's testimony on how she came to know the name of the defendant. Id. at 11:24-12:23. During the period of discovery and until the day of trial, Attorney McCormick was under the impression that Ms. Celletti came to know the suspect's name through a disclosure from an unnamed person who may have been a clerk at Family Court. Id. at 12:10-23. Before the trial, Attorney McCormick made no further inquiries of the Attorney General's Office, the Family Court, or the complaining witness, Ms. Celletti, as to how the name Jody Johnson was suggested to her. Id. at 13:1-7.

With regard to the defense's strategy, Attorney McCormick testified that his overall concern was the suggestive nature of Ms. Celletti's identification of Mr. Johnson. Id. at 13:16-14:9. Attorney McCormick explained his understanding of the law regarding suggestive identification. He indicated that a two-part analysis was required: (1) is it a suggestive identification?; and (2) despite it being suggestive, did the witness have an adequate opportunity to observe the identity of the assailant? Id.

(citing State v. Gatone, 698 A.2d 230, 235-37 (R.I. 1997)). He opined that in an identification case, filing a motion to suppress is appropriate especially when there is no other evidence. Id. at 14:16-19. However, Attorney McCormick thought that Ms. Celletti had about an hour to an hour and a half to observe the assailant and saw his face up close with adequate lighting. Id. at 14:7-15. Since Attorney McCormick thought Ms. Celletti had an adequate opportunity to observe the assailant, he decided there was no point in filing a motion to suppress. Id. at 14:16-17. Although there was no physical or forensic evidence produced by the State in this case, Attorney McCormick believed that it would have been disadvantageous to file a motion to suppress. Id. at 14:22-23. He felt as though a motion to suppress would have been futile, and therefore, decided not to file one as it could potentially give Ms. Celletti a "dress rehearsal" on the types of questions Attorney McCormick would be asking her as a witness at trial. Id. at 14:22-15:1. Attorney McCormick was also of the opinion that one of the reasons the case was defensible was that a second proposed witness against Mr. Johnson, the alleged juvenile participant, who identified Mr. Johnson as a participant in the robbery in his testimony to the grand jury, was unavailable to testify at the trial. The State could not find the juvenile witness prior to the trial, and therefore, Attorney McCormick thought it was strategically important not to give the State more time to find this witness against his client. Id. at 23:7-18.

Rather than file a motion to suppress, Attorney McCormick's preferred strategy was to present evidence of the suggestive identification in order to persuade the jury to give Ms. Celletti's testimony less weight as well as to attack the credibility of her identification. Attorney McCormick considered Ms. Celletti's failure to pick Mr. Johnson's photo out of a photo array which included a picture of Mr. Johnson prior to her learning the assailant's name from the unnamed person at Family Court or the Attorney General's office to be helpful to the defendant and felt he should emphasize those facts to the jury. Id. at 15:10-20. The suggestive nature of the conversation identifying Mr. Johnson as a suspect in this case was pointed out by the defense not only to attack Ms. Celletti's credibility, but also to highlight to the jury that Ms. Celletti would be predisposed to identifying whomever she saw on Facebook as the person who robbed her. Id. at 24:17-25:1. Consequently, Mr. McCormick chose not to file a motion to suppress Ms. Celletti's identification of Mr. Johnson in favor of the strategy outlined above.

Next to testify was former Special Assistant Attorney General, Attorney Ryan Stys (Attorney Stys). Attorney Stys worked as a prosecutor in the Office of the Attorney General for the State of Rhode Island for five years. Attorney Stys was one of the prosecuting attorneys in this matter. Attorney Stys handled the case from some point after the grand jury indictment, working on both the pre-trial and trial stages. Id. at 27:5-16. Prior to the trial, Attorney Stys reviewed the grand jury transcript, reviewed the discovery, and met with Ms. Celletti. Id. at 27:17-28:12. However...

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