Tassone v. State

• Decision Date: 21 May 2012
• Docket Number: No. 2010–333–Appeal.,2010–333–Appeal.
• Citation: 42 A.3d 1277
• Parties: Gary TASSONE v. STATE of Rhode Island.
• Court: Rhode Island Supreme Court

42 A.3d 1277

Gary TASSONE

v.STATE of Rhode Island.

No. 2010–333–Appeal.

Supreme Court of Rhode Island.

May 21, 2012.

Katherine C. Essington, Esq., for Applicant.

Jane M. McSoley, Department of Attorney General, for State.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice FLAHERTY, for the Court.

Gary Tassone (Tassone or applicant) appeals from the judgment of the Superior Court denying his application for postconviction relief. Before this Court, Tassone contends that the hearing justice erred in (1) denying his application for postconviction relief without conducting an evidentiary hearing and (2) wrongly dismissing his assertions of ineffective assistance of counsel. Tassone argues that these errors warrant remand to the Superior Court for an evidentiary hearing. This case came before the Supreme Court for oral argument on February 8, 2012, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After reviewing the record, and reviewing the written and oral submissions of the parties, we conclude that cause has not been shown and we will decide this case at this time without further briefing or argument. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

Facts and Travel

Tassone was convicted of a particularly gruesome murder on January 28, 1997, and was sentenced to life imprisonment without the possibility of parole. We affirmed his conviction in State v. Tassone, 749 A.2d 1112 (R.I.2000), and the facts pertinent to the underlying case are set forth in that opinion. We will discuss such of the facts that are relevant to this appeal from the denial of his application for postconviction relief.

On June 30, 1994, Kendra Hutter's body was found buried at the beach at Crescent Park in East Providence. An examination of her remains revealed that Kendra had suffered numerous chopping wounds, a fractured skull, and other traumatic brain injuries that resulted in brain swelling and eventual death. On that same day, Kendra's estranged husband, Christopher Hutter, reported that she was missing. Hutter told the police that Kendra had gone out the previous evening with a man named “Gary,” and he gave the police a business card with Gary's name and telephone number on it.

The police soon located Gary Tassone; he admitted knowing Kendra, but denied having seen her the previous night. Tassone said he had a date scheduled with Kendra on June 29, but that she had canceled. At the request of the police detectives, Tassone then agreed to go to the police station to answer further questions.

At the station, Tassone signed four separate written statements over the course of the next several hours. In the first statement, given at 7:55 p.m. on July 1, 1994, Tassone said that he had met Kendra through a newspaper advertisement and had gone out with her, but asserted that he had not seen her on the night of June 29. At 8:50 p.m., Tassone signed a waiver of rights form, and at 10:45 p.m. he gave a second statement to police. In that statement, he admitted that he had, in fact, gone out with Kendra on the night of June 29. He said that he had brought her to a beach in Riverside, where they had sexual intercourse on a blanket, and that he had driven her home afterward.

At midnight, Tassone gave a third statement. This time, he said that while at the beach digging sand castles with a shovel, he was startled by something in the woods and “swung the shovel at the sound but hit Kendra in the face.” He stated that because he was afraid that he had killed her, he “used the shovel to cover her up with sand so nobody would know.”

At 10:30 a.m. the next morning, Tassone signed another rights form, and he gave police a final statement at 11:15 a.m. In this statement, Tassone provided more details about the incident, and he indicated that after burying Kendra's body, he drove to Seekonk, Massachusetts, and discarded the blanket and shovel on the side of the road. Also at that time, Tassone asked police to remove a handgun from his room at his mother's house, and he requested that police speak with other women he had met through personal advertisements, presumably so that they could attest to his peaceable nature.

On August 4, 2000, Tassone filed an application for postconviction relief under G.L.1956 § 10–9.1–1. In that application, he alleged that his constitutional rights had been adversely impacted by the ineffective assistance of his trial counsel and by witness perjury. Three postconviction relief attorneys were appointed to represent applicant, all of whom were allowed to withdraw for various reasons over the course of the next five years. A fourth attorney (hereinafter counsel) entered his appearance for applicant on August 19, 2005, and that attorney represented him throughout the remainder of the Superior Court proceedings for postconviction relief. However, on January 10, 2008, after conducting a review of Tassone's application for postconviction relief, counsel filed a “no-merit” memorandum and moved to withdraw from the case in accordance with the Shatney¹ procedure that has been adopted by this Court.

Counsel's memorandum to support his motion to withdraw identified four issues that had been raised by applicant: (1) that his trial attorney had failed to adequately prepare for trial; (2) that police officers committed perjury in their testimony about his statements; (3) that police committed perjury when they testified that Tassone “pointed out” where to find the shovel and blanket even though he was handcuffed at the time and therefore unableto point to anything; and (4) that his trial attorney was ineffective because he requested a continuance, in part because he said he needed additional time to speak with experts, but at trial no experts were called by the defense.

Counsel also indicated that applicant had requested that the witness statements and rights forms that applicant signed in the East Providence police station be examined by a forensic-document examiner, and that experts be employed to review certain pieces of evidence that had been used against him at trial. The applicant also maintained that he needed to obtain information from the Cumberland police that would enable him to demonstrate that he should have received Miranda warnings earlier than he did. After reviewing the issues raised by applicant and after conducting a thorough and conscientious review of the record, counsel concluded that there was no evidence to indicate that applicant's trial attorney's representation was deficient in any way, or that it in any way resulted in prejudice to Tassone.

According to counsel, the issues raised in Tassone's application for postconviction relief were “wholly frivolous, and not supported by existing law, nor by a good faith basis for the reversal, extension, or modification of existing law.” Concomitantly, counsel sought to withdraw as counsel of record for Tassone.

A hearing on the motion to withdraw was held on January 15, 2008. The hearing justice indicated that she was inclined to grant the motion to withdraw, and she provided Tassone with the opportunity to address the assertions raised in the Shatney no-merit memorandum and to proceed, pro se on his application. Tassone, however, indicated that he wished to address nine issues that previously had not been heard. Six of those issues involved his allegations that detectives had planted, destroyed, tampered with, or manufactured evidence against him. Tassone also alleged prosecutorial misconduct, perjury by detectives, and ineffective assistance of counsel. Tassone also argued that because his trial lawyer had not presented one expert to testify, “he need[ed] to be asked” why. The hearing justice expressed her concern that applicant had raised issues that had not been addressed in the Shatney memorandum, and she directed counsel to draft another memorandum, incorporating all the new issues Tassone raised at the hearing on that day.

Also, at the conclusion of the hearing on January 15, 2008, the parties discussed the fact that the trial transcripts ² were missing and that the Superior Court clerk's office was unable to track them down and locate them. Counsel asserted to the court that he originally had had access to and reviewed Tassone's personal copies of the record and that he had had an opportunity to “review the entire trial transcript in [his] initial preparation of this motion.” ³ On February 12, 2008, counsel dutifully submitted a supplemental memorandum to support his motion to withdraw, addressingthe new issues raised by applicant supporting his application for postconviction relief.⁴ Counsel addressed each of these arguments in turn and concluded that none of them had any merit. Counsel then pressed his motion to withdraw.

A final hearing on Tassone's application for postconviction relief was held on February 28, 2008. At that hearing, the justice confirmed with Tassone that all the issues he wished to raise were before the court. The justice then asked whether a prior written statement by Tassone along with a folder of additional material he wished to submit “comprise[d] all of the evidence and arguments that you want to present to me as to why your application has merit and why you disagree with [counsel's] opinion.” Tassone confirmed that his argument was complete, and the justice indicated that she would review the materials and take the matter under advisement.

The court issued a written decision on January 13, 2010, denying Tassone's application for postconviction relief after having “considered the Rhode Island Supreme Court's decision in State v. Tassone * * * [applicant's] [application] for post-conviction relief, as amended, counsel's no-merit memoranda in support of his motion to withdraw, [applicant's] memoranda in opposition to that motion, and the record of the January...