Larngar v. Wall
| Decision Date | 05 April 2007 |
| Docket Number | No. 2004-96-Appeal.,2004-96-Appeal. |
| Citation | 918 A.2d 850 |
| Parties | McCarthy LARNGAR v. Ashbel T. WALL, Director of Rhode Island Department of Corrections. |
| Court | Rhode Island Supreme Court |
Stephanie DiMaio-Larivee, Esq., for Plaintiff.
Jane M. McSoley, Esq., Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
The applicant, McCarthy Larngar, appeals to this Court from a denial of his application for postconviction relief. On appeal, Mr. Larngar contends that his application for postconviction relief on the basis of ineffective assistance of counsel should have been granted, and he points to several alleged errors and/or omissions for which he blames his trial counsel. He argues that those errors and/or omissions constituted ineffective assistance of counsel. Specifically, Mr. Larngar contends that his trial counsel was ineffective because she (1) failed to request a jury instruction concerning self-defense or accident;1 (2) failed to conduct a proper pretrial investigation or, in the alternative, failed to make a determination that such an investigation was not necessary; and (3) substantially interfered with Mr. Larngar's right to testify on his own behalf and thereby violated his constitutional rights.
In addition, Mr. Larngar contends that the hearing justice who presided over the postconviction-relief hearing2 erred in excluding testimony that he says would have shown that his trial counsel used illegal drugs during her representation of him— an allegation that Mr. Larngar contends would have bolstered his claim of ineffective assistance of counsel.
For the reasons set forth herein, we affirm the Superior Court's denial of Mr. Larngar's application for postconviction relief.
The following facts have been gleaned from the record of the hearing on Mr. Larngar's application for postconviction relief.3
On or about May 5, 1996, McCarthy Larngar went to a nightclub in Providence with four of his friends. While he was at the nightclub, a fight broke out. According to Mr. Larngar, who did not take the stand at his trial but who did testify at the hearing on his application for postconviction relief, the fight was between his cousin Thelleh Duopu and another person. Mr. Larngar attempted to break up the fight, dodging a chair that was thrown at him. Mr. Larngar testified that, when he was leaving the club with his friends they heard gunshots fired, but they were proceeding to their car at that point and they left the scene.
According to Alfreda Moore, who also testified at the postconviction-relief hearing on Mr. Larngar's behalf, the fight at the nightclub involved at least fifteen people, including Ashford Peal, his brother Sam Peal, and a man whom she referred to as "Gador." Ms. Moore testified that Mr. Larngar may also have been involved in the fight, but she said that she believed that his involvement in the fight was limited to trying to pull one of his friends out of the way when a chair was being thrown at Mr. Larngar. Ms. Moore testified that she stayed at the club until the fight ended and the club had been vacated. By the time Ms. Moore left the nightclub, the police had arrived. Ms. Moore testified that she did not ask the police for information about what had transpired outside of the club; she also testified that she did not provide the police with information about the fight which she had witnessed because she did not want to get involved.
Ms. Moore further testified at the postconviction-relief hearing that, after leaving the nightclub, she and a friend of hers proceeded to a dance that was being held at the John Hope Settlement Center in Providence. Ms. Moore stated that, while she was at the dance, Ashford Peal, his brother Sam, and Gador approached her and asked her whether she had seen Mr. Larngar. Ms. Moore testified that, when she responded that she had not seen Mr. Larngar, Ashford Peal told her to "tell him I'm looking for him." According to Ms. Moore, at that point Ashford Peal directed her attention to a gun that he had tucked into the waistband of his pants. She further testified that Gador was wearing brass knuckles and that Sam Peal was carrying some knives in his coat. Ms. Moore stated that Gador told her that they were "going to get him." Ms. Moore testified that she did not call the police after this incident because, once again, she did not want to get involved.
Clarence Youn, an acquaintance of both Mr. Larngar and Ashford Peal, also testified on Mr. Larngar's behalf at the postconviction-relief hearing. Mr. Youn had also witnessed the fight at the nightclub on the night in question. He testified that, although he did not see Mr. Larngar at the club that evening, he did see Ashford Peal there and that Ashford Peal was involved in the fight. According to Mr. Youn, when the fight spilled over from inside the club to outside, he heard about five gunshots. Mr. Youn testified on cross-examination that he never saw Ashford Peal with a weapon that night.
After Mr. Larngar left the nightclub, he and his four friends proceeded to drive to a house party at 503 Elmwood Avenue, stopping along the way at a gas station to purchase ice and chips to bring to the party. Upon arriving at the apartment house on Elmwood Avenue, Mr. Larngar exited the car along with Rodney Stevens, Janelle Castle, and Deniel Johnson. As the four friends walked into the house, Mr. Stevens told them that he was going to stop on the first floor in order to speak with his mother, who resided there. Mr Stevens told his friends to go upstairs to the party.
Mr. Larngar, Ms. Castle, and Ms. Johnson proceeded to walk up the stairs, and, when they reached the second-floor landing, they encountered Ashford Peal and two other men leaving the party. According to Mr. Larngar, the men asked for his cousin; when Mr. Larngar responded that he did not know what they were talking about, Ashford Peal called him a "punk," and a fistfight ensued.
Mr. Larngar testified at the postconviction-relief hearing that, during the fistfight, he heard one of the men say: He further testified that he then saw Ashford Peal "reaching" and that he heard Ms. Castle yell, "[W]atch out McCarthy, he got something." According to Mr. Larngar, Ashford Peal then lifted a shiny object (which he later determined was a gun), at which point Mr. Larngar grabbed his hand because he believed that Ashford Peal was trying to shoot him. Mr. Larngar further testified at the hearing that, while he was focusing on grabbing Ashford Peal's hand, one of the other men tried to hit him. It was further Mr. Larngar's testimony that, at some point during the struggle, all three men—Ashford Peal, Mr. Larngar, and the man who was trying to hit him—had their hands on the weapon, and it discharged. Mr. Larngar testified that he never had full possession of the gun at any point, and he denied pulling the trigger.
After the first gunshot, which wounded Ashford Peal, Mr. Larngar felt less of a struggle from Ashford Peal, who backed up and turned away. He testified that he heard one of the men with Mr. Peal ask: According to Mr. Larngar, he continued to struggle with the other man until he heard two more gunshots and some "clicks." At that point, Mr. Larngar pushed past the man with whom he had been struggling and ran while telling his two friends, Ms. Castle and Ms. Johnson, to run also.
A second shooting victim, Delano Outland, had testified at the trial that a bullet had passed through his shirt when Mr. Larngar shot at Ashford Peal. It was Mr. Outland's trial testimony that he had stepped in between Mr. Larngar and Ashford Peal. Although Mr. Larngar recalled hearing Mr. Outland's trial testimony and seeing the shirt with a bullet hole in it, Mr. Larngar testified at the postconviction-relief hearing that he never saw Mr. Outland on the evening in question. In fact, Mr. Larngar testified that he had never seen Mr. Outland at any time.
Mr. Larngar was charged by indictment on June 27, 1997 with one count of assault with intent to murder in a dwelling house while armed with a dangerous weapon and one count of carrying a pistol without a license.
A trial commenced on September 30, 1997, at the conclusion of which the jury returned a verdict finding Mr. Larngar guilty of the lesser included offense of assault with a dangerous weapon and of the offense of carrying a pistol without a license.
Mr. Larngar filed a motion for a new trial, which was heard and denied on November 14, 1997. The trial justice sentenced Mr. Larngar to a term of twenty years of imprisonment, with twelve years to serve, for the assault with a dangerous weapon, and to a concurrent term of ten years of imprisonment, with five years to serve, for the offense of carrying a pistol without a license. A notice of appeal was filed, but the appeal was never perfected.
On May 3, 2002, Mr. Larngar filed an application for postconviction relief pursuant to G.L.1956 § 10-9.1-1, in which he alleged ineffective assistance of counsel. After a hearing that took place over the course of several days between December 2 and December 9, 2002, the hearing justice rendered a decision denying the application for postconviction relief, and it is from that denial that Mr. Larngar now appeals.4
Section 10-9.1-1 provides that postconviction relief is a remedy available to any person who has been convicted of a crime in this state and who thereafter alleges either that the conviction violated his or her constitutional rights or that the existence of newly discovered material facts requires the vacation of the conviction in the interest of justice. The applicant has the burden of proving, by a preponderance of the evidence, that postconviction relief is warranted in his or her case. See Estrada v. Walker, 743 A.2d 1026, 1029 (R.I.1999); Jacques v. State, ...
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