Reyes v. State
| Decision Date | 08 May 2023 |
| Docket Number | PM-2016-5066 |
| Parties | PEDRO MURIEL REYES v. STATE OF RHODE ISLAND |
| Court | Rhode Island Superior Court |
Providence County Superior Court.
For Plaintiff: John E. Sullivan, III, Esq.
For Defendant: Judy Davis, Esq.
In this postconviction relief (PCR) application, Pedro Muriel Reyes contends that his 2002 murder and other convictions should be vacated, along with his habitual offender sentence. In all he was sentenced as follows: Count 1, life for the second degree murder of Angel Martinez; Count 2, carrying a pistol without a license, ten years to be served concurrently with Count 1; Count 3, a mandatory consecutive life term for discharging a firearm during the commission of a crime of violence resulting in Martinez's death; and ten nonparolable years as a habitual offender, to be served concurrently with the second life term. Reyes's conviction has been affirmed. State v. Reyes, 984 A.2d 606 (R.I. 2009).
Reyes's petition is separated into three parts: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct; and (3) due process. At the April 17, 2023 hearing on his PCR application, Joseph Voccola, one of Reyes's trial attorneys, testified. (His co-counsel, Thomas Connors, passed away in 2016.) Mr. Reyes opted not to testify.
Although Reyes's application includes myriad claims, his principal challenge is that trial counsel was ineffective for failing to request the Court to provide the jury with an identification instruction, as well as faulting counsel for not engaging an eyewitness identification expert (ineffectiveness issues 3 and 4). [1]
The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984); accord 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. 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 counsel's performance was deficient. That test 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).
The Sixth Amendment standard for effective assistance of counsel, however, is '"very forgiving,"' United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)), and "a defendant 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 the first part of the test, he must also demonstrate that his attorney's deficient performance was prejudicial. Thus, 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).
The legal landscape at the time of Reyes's trial twenty-one years ago did not support his present PCR identification challenges. Under existing Rhode Island case law in 2002, no identification instruction was required. For decades the Rhode Island Supreme Court has accorded trial judges wide discretion in deciding whether to offer an identification instruction, and the Court did not mandate that one be given. State v. Andrade, 544 A.2d 1140, 1143 (R.I. 1988). As long as the jury was told, as it was in Reyes's case (Trial Tr. at 319), that the state was required to prove beyond a reasonable doubt that the defendant was, in fact, the person who committed the offense, "a trial justice is not required to give specific instructions [on identity."] Andrade, 544 A.2d at 1143; State v. Desrosiers, 559 A.2d 641, 645-46 (R.I. 1989); State v. Maxie, 554 A.2d 1028 (R.I. 1989); State v. Gomes, 604 A.2d 1249, 1256 (R.I. 1992); State v. Payette, 557 A.2d 72, 73-74 (R.I. 1989) ( ). The Payette sentiment has been recently renewed. State v. Hampton-Boyd, 253 A.3d 418, 424 (R.I. 2021).
This Court is mindful that in recent years 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 other courts. Our Supreme Court noted the alteration in that terrain in State v. Davis, 131 A.3d 679, 697 (R.I. 2016) and in State v. Fuentes, 162 A.3d 638, 644-46 (R.I. 2017).
Although the Davis Court recognized the growing awareness of "the problematic nature of eyewitness identification and its potential for misidentification," the Supreme Court has nonetheless continued to hold that "a specific jury instruction on identification is not mandatory." Davis, 131 A.3d at 694, 696; Hampton-Boyd, 253 A.3d at 424. Although Davis observed that "the better practice would be for courts to provide the jury with more comprehensive instructions when eyewitness testimony is an issue," Davis, 131 A.3d at 697, the Court nevertheless later characterized that observation as "aspirational dictum," Fuentes, 162 A.3d at 645 n.12, and expressly reiterated that "Davis did not announce a new rule of law" mandating an identification instruction, but was, instead, alerting trial courts not to overlook "the growing concern in other jurisdictions" and in scientific studies regarding the "questionable accuracy" of eyewitness accounts. Id.
In the end, however, the yardstick by which to measure trial counsel's efficiency in Reyes's case is not in the context of recent developments or in today's more cautious approach to eyewitness identification; rather, it must be gauged by existing law at the time of trial. After all, 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). As the Rhode Island Supreme Court said in Barros, 180 A.3d at 833: "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." (Emphasis in original text.)
Since an identification instruction was not even mandated at the time of Reyes's trial, it most certainly was not ineffective assistance if trial counsel neither requested an identification instruction nor contemplated engaging an eyewitness identification expert, whose testimony this Court would not have admitted anyway. See Morris v. State, 744 A.2d 850, 858 (R.I. 2000); State v. Day, 898 A.2d 698, 701 (R.I. 2006).[2]
Reyes's remaining ineffectiveness challenges are without basis. Among them is his allegation (issue 1) that trial counsel should have filed a pretrial identification suppression motion because Officer Scott McGregor, who witnessed the shooting, had insufficient ability to view the shooter -- i.e., that he was not a competent witness under Evidence Rule 602. That contention was addressed by the Supreme Court in Reyes's direct appeal and is barred by the res judicata doctrine. See infra.
As to Reyes's complaint that trial counsel should have nonetheless filed a pretrial suppression motion because McGregor was not 100 percent certain of his selection of Reyes's picture from a photo array, Mr. Voccola explained that he expected that such a motion was likely to be denied and would have only provided Officer McGregor with a preview of what to expect during cross-examination at trial. Counsel's reasoning was a sensible trial tactic, and Strickland and its progeny frown on the hindsight review of a trial attorney's tactical decisions. "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). See State v. D'Alo, 477 A.2d 89, 92 (R.I. 1984) (). Here, trial counsel's strategy was entirely reasonable.
Reyes mistakenly believes that counsel was remiss in not protesting the warrantless search of the red Navigator in which he fled after the shooting and a pouch found in the vehicle (issue 5). Rhode Island case law such as State v. Werner 615 A.2d 1010, 1013-14 (R.I. 1992), follows the federal rule: "As long as the police have probable cause to believe that an automobile, or a container located therein,...
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