Rodriguez v. State
| Decision Date | 04 February 2008 |
| Docket Number | No. 2006-144-Appeal.,2006-144-Appeal. |
| Citation | 941 A.2d 158 |
| Parties | Reynaldo RODRIGUEZ v. STATE of Rhode Island. |
| Court | Rhode Island Supreme Court |
Susan B. Iannitelli, Esq., for Plaintiff.
Aaron L. Weisman, Esq., Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
Justice SUTTELL, for the Court.
The applicant, Reynaldo Rodriguez, appeals from the denial of his application for postconviction relief. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in the appeal should not be decided summarily. After reviewing the record and considering the written and oral submissions of the parties, we are satisfied that this case may be decided without the necessity of further briefing or argument. We affirm the judgment of the Superior Court.
Mr. Rodriguez was convicted after a jury trial of possession of a controlled substance (heroin) with intent to deliver, possession of drug paraphernalia with intent to deliver, and conspiracy to possess a controlled substance with intent to deliver. The conspiracy conviction later was vacated and the conspiracy count dismissed, and then this Court affirmed the remaining convictions in State v. Rodriguez, 798 A.2d 435 (R.I.2002). On October 22, 2002, Mr. Rodriguez applied for postconviction relief, alleging constitutionally ineffective assistance of his trial counsel for failing to call a witness, or, in the alternative, to introduce the witness's affidavit or previous testimony. We recount only those facts sufficient for the resolution of this appeal.
The key piece of evidence introduced against Mr. Rodriguez at his trial was a shoe box containing various items associated with the use and distribution of heroin. Laboratory analysis confirmed the presence of heroin residue on the items. The shoe box had been found by Providence police officers, acting pursuant to a search warrant, above a ceiling panel in the shower room of the Rogers Recreational Center. The only named target of the investigation was Leo Cronan, Jr., the director of the Rogers Recreational Center. Fingerprints on the items were identified as belonging to Mr. Rodriguez and a man named Emiliano Pagan.
Mr. Pagan was charged with the same three offenses as were brought against Mr. Rodriguez, and on June 24, 1997, Mr. Pagan pled nolo contendere to all three, including the conspiracy count. On March 24, 1998, however, Mr. Pagan executed an affidavit that purported to exculpate Mr. Rodriguez. Further, on July 7, 1998, Mr. Pagan testified at a Superior Court hearing that he had taken the shoe box from a group of youths at the recreation center in the hope of using its contents to make money. Later that day, Mr. Pagan said, he asked Mr. Rodriguez for a ride home, and he placed the box on the front passenger seat of Mr. Rodriguez's automobile while he went back into the recreation center. When he returned, Mr. Rodriguez told him that he had looked through the box and he demanded that Mr. Pagan remove the box. The hearing justice who presided at the hearing at which Mr. Pagan testified described his testimony as "highly incredible."
The thrust of Mr. Rodriguez's postconviction-relief argument was that his trial counsel's failure to present Mr. Pagan's testimony, either in person or by introducing a transcript of his previous testimony, constituted ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. The only witness to testify in support of Mr. Rodriguez's application was his trial attorney, John M. Cicilline. Mr. Cicilline testified that his theory of defense was to portray Mr. Cronan as the person solely responsible for the shoe box and its contents. He explained that Mr. Cronan was the initial target of the police investigation and the sole possessor of the keys to the shower room where the drug paraphernalia were discovered.
Mr. Cicilline acknowledged that his efforts to point the finger at Mr. Cronan, even if successful, did not preclude a finding of guilt against Mr. Rodriguez based upon a theory of joint possession. He also admitted that Mr. Pagan's testimony could have explained how his client's fingerprints innocently got on the shoe box and drug paraphernalia. On cross-examination, however, Mr. Cicilline acknowledged that Mr. Pagan's testimony would have seriously undermined the defense's theory that the evidence strongly indicated that Mr. Cronan owned the paraphernalia.
In her very detailed rescript, the hearing justice noted that Mr. Rodriguez's failure to call Mr. Pagan as a witness at the postconviction-relief hearing deprived the court of any opportunity to determine whether his testimony at the trial would have helped the defense. Even assuming his testimony would be consistent with his affidavit and previous testimony, she was unable to assess its weight and credibility. The hearing justice, therefore, rejected any argument that trial counsel was deficient by not calling Mr. Pagan to testify at trial.
The hearing justice further held that Mr. Rodriguez would not have been able to have Mr. Pagan's affidavit admitted at trial because it had never been authenticated nor were his statements subject to cross-examination. See Flynn v. Al-Amir, 811 A.2d 1146, 1152-53 (R.I.2002). Moreover, she said that there was insufficient evidence that Mr. Pagan was unavailable to testify at trial, a necessary predicate to the admission of his previous sworn testimony. She rejected Mr. Rodriguez's suggestion that Mr. Pagan was unavailable because of an outstanding warrant for his arrest on a, robbery charge. She noted that Mr. Rodriguez had neither asked him to testify voluntarily nor attempted to subpoena him and said it would be rank speculation to conclude that Mr. Pagan was unavailable to testify at trial.
Moreover, the hearing justice determined that "Mr. Cicilline made a sound tactical decision at the time, with full knowledge of Pagan's affidavit and prior hearing testimony, not to present Pagan as a witness at trial." Significantly, she noted that Mr. Pagan had pled nolo contendere to the charge of conspiracy to possess with intent to deliver the very same heroin that was the subject of the charges against Mr. Rodriguez. Also, Mr. Pagan's testimony would not have explained...
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