Tarvis v. Moran, 87-548-C

• Decision Date: 22 December 1988
• Docket Number: No. 87-548-C,87-548-C
• Citation: 551 A.2d 699
• Parties: John TARVIS v. John MORAN. A.
• Court: Rhode Island Supreme Court

Page 699

551 A.2d 699

John TARVIS v. John MORAN.

No. 87-548-C.A.

Supreme Court of Rhode Island.

Dec. 22, 1988.

John Coughlin, Ciccone & Coughlin Law Associates, Providence, for plaintiff.

James E. O'Neil, Atty. Gen., Jeffrey J. Greer, Asst. Atty. Gen., for defendant.

OPINION

SHEA, Justice.

This matter is before the Supreme Court on an appeal from a denial of an application for postconviction relief filed pursuant to G.L.1956 (1985 Reenactment) chapter 9.1 of title 10. We affirm.

In 1981 petitioner, John Tarvis (Tarvis), was convicted of first-degree murder and other crimes. The conviction was affirmed by this court in State v. Tarvis, 465 A.2d 164 (R.I.1983). Tarvis then sought federal habeas corpus relief that was denied by the Federal District Court of Rhode Island and the First Circuit Court of Appeals because he had not exhausted his state remedies.

In March of 1986 Tarvis filed an application for postconviction relief in the Superior Court. He alleged that he was twice denied his Sixth Amendment right to effective assistance of counsel. Tarvis claims that his trial counsel failed to object with specificity to the trial judge's jury instruction on second-degree murder as required by Rule 30 of the Superior Court Rules of Criminal Procedure. He also claimed that his appellate counsel failed to raise the absence of a voluntary-manslaughter jury charge, which had been requested by trial counsel. The trial justice, in a written decision, denied the application for post-conviction relief. In this appeal Tarvis specifically declined to argue the issue of appellate counsel's failure to appeal the absence of a jury instruction on voluntary manslaughter. The only issue remaining before us is whether trial counsel provided effective assistance at trial.

The facts that resulted in Tarvis's conviction in 1981 are fully discussed in State v. Tarvis, 465 A.2d 164 (R.I.1983). The relevant facts for this appeal are the following. The trial counsel had requested a jury instruction on second-degree murder. He duly objected to the trial justice's failure to give the requested instruction. Id. at 169. However, because he did not articulate the specific grounds for this objection, we ruled that the issue was not preserved for review on appeal before this court. Id. at 170. Tarvis claims this error amounted to ineffective assistance of counsel depriving him of his right to a fair trial and due process of law as guaranteed by the United States Constitution and the Rhode Island Constitution.

In Brown v. Moran, 534 A.2d 180 (R.I.1987), this court adopted the standard for reviewing a claim of ineffective assistance of counsel that had been set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.2052, 80 L.Ed.2d 674 (1984). In Strickland the Court stated that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning ofthe adversarial process that the trial cannot be relied on as having produceda just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. The Court set forth two criteria:

"First, the defendant must show that counsel's performance was deficient.

This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

In further defining the "deficiency" standard, the Court stated that "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. In other words, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. The Court continued, "[b]ecause of the difficulties inherent in making the evaluation [of counsel], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * * *." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

In this case Tarvis does not establish that the performance of the trial counsel fell below the reasonableness standard. At his trial Tarvis was represented by the deputy public defender, a respected attorney who has had more experience in criminal trials than most members of our trialbar. Tarvis's counsel made many reasonable strategic choices for his client during the trial, and it is our opinion that his strategy was not deficient. As was argued by the state, trial counsel filed many motions during the course of the trial, including a motion to dismiss the indictment owing to unnecessary delay and subsequent prejudice when one witness died; a motion for severance to distance Tarvis from his codefendant, Thomas Porraro; a motion for additional preemptory challenges; and a motion to sequester witnesses at trial. Counsel also elicited impeaching testimony from many of the state's witnesses. Further, counsel emphasized those portions of the testimony that distanced Tarvis from Porraro and rehabilitated Tarvis's character.

If trial counsel erred in not objecting with specificity to the first-degree murder instruction, as is asserted, we do not believe this caused prejudice to petitioner so as to deprive him of a fair trial. To meet his burden, Tarvis "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

We agree with the trial justice that "the defendant has not met his burden of proving that the alleged errors of * * * the trial * * * counsel effected the outcome of this case such that the outcome would have been different absent the errors." The trial justice was quite correct when he held that "even if the supreme court had addressed [the second-degree murder issue] on appeal, it would have found that under law decided by the Rhode Island Supreme Court * * * the second-degree murder charge * * * was [not] warranted in this case."

In State v. Goff, 107 R.I. 331, 267 A.2d 686 (1970), this court held that, in a murder case, a defendant is not entitled to a jury instruction on a lesser included offense "when the evidence would not sustain a finding of the lesser degree of the offense." Id. at 336, 267 A.2d at 688; see also Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) (if the evidence justifies, a defendant is entitled to a lesser-offense charge); Jefferson v. State, 472 A.2d 1200, 1203 (R.I.1984)("[i]t is a fundamental proposition that a defendant is only entitled to a charge on a lesser degree of homicide when the evidence would support a finding on a lesser degree of the offense"); and State v. Cline, 122 R.I. 297, 319, 405 A.2d 1192, 1204 (1979) (the court "has long followed the doctrine that instructions should not be given on lesser degrees of murder or manslaughter unless there is evidence in the case to support such a finding")(citing State v. Saccoccio, 50 R.I. 356, 147 A. 878 (1929); State v. Infantolino, 116 R.I. 303, 355 A.2d 722 (1976) and State v. Bradshaw, 101 R.I. 233, 221 A.2d 815 (1966)).

General Laws 1956 (1981 Reenactment) § 11-23-1 provides:

"Murder.--The unlawful killing of a human being with malice aforethought is murder. Every murder perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious and premeditated killing * * * or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed is murder in the first degree. Any other murder is murder in the second degree." ¹

This court has held that first-and-second-degree murder are distinguishable by evidence of the extent of a defendant's premeditation. State v. Saccoccio, 50 R.I. 356, 361, 147 A. 878, 880 (1929); see also State v. Myers, 115 R.I. 583, 591, 350 A.2d 611, 615 (1976) (because there was evidence that fatal gunshots were not fired until the decedent had time to turn around and run and because this was "more than a barely appreciable length of time," the defendant was not entitled to a second-degree-murder charge); State v. Fenik, 45 R.I. 309, 315, 121 A. 218, 221 (1923) (a murder rises to the level of first-degree if the premeditation lasts for "more than a barely appreciable length of time before the killing").

The record in this case clearly reveals that Tarvis premeditated the murder of Bruce Ottiano for several hours prior to the fatal shooting of Mary Wendolowski. ² Thus he was not entitled to a second-degree-murder instruction. In the decision denying petitioner's relief, the trial court concluded, "The evidence adduced at trial was that the petitioner (and his codefendant, Thomas Porraro) had persistently searched for the intended victim, during which...