Chum v. State

YARA CHUM v. STATE OF RHODE ISLAND

NO. PM/13-1919

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

December 1, 2014

(P2/09-3192 BG)

DECISION

KRAUSE, J. Petitioner Yara Chum has filed an application for post-conviction relief pursuant to R.I.G.L. § 10-9.1-1 et seq., claiming that his convictions after a jury trial for felony assaults with a firearm should be vacated. He contends that the jury's adverse verdict resulted from prejudicially deficient efforts by his trial attorney. The Court disagrees.

The factual underpinnings of the criminal case are fully set forth in the Supreme Court's decision affirming Chum's convictions. State v. Chum, 54 A.3d 455 (R.I. 2012). To the extent necessary, some of those facts will be referenced herein. Counsel in this application have waived a hearing and oral argument, submitting the case to the Court on the pleadings and the record below. For the reasons stated herein, the Court finds Chum's petition without merit.

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The benchmark for a claim of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984), which has been adopted by our state Supreme Court. Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); 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 petitioner bears the "heavy burden" of proving. Crombe v. State, 607 A.2d 877 (R.I. 1992) (citing Pope v. State, 440 A.2d 719, 723 (R.I. 1982)); Ouimette v. State, 785 A.2d 1132, 1139(R.I. 2001). Strickland presents "a high bar to surmount." Padilla v. Kentucky, 599 U.S. 356, 371 (2010).

When reviewing a claim of ineffective assistance of counsel, the inquiry 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, 521 (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 (1^st Cir. 2006), quoting Delgado v. Lewis, 223 F.3d 976, 981 (9^th Cir. 2000), and "a strong (albeit rebuttable) presumption exists that counsel's performance was competent." 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 still pass another sentry embodied in Strickland by demonstrating that his attorney's deficient performance "prejudiced" his defense. Thus, he is obliged to show that a reasonable probability exists that but for the deficiency the outcome of the trial would have been different. Strickland, 466 U.S. at 694; Crombe, 607 A.2d at 878. Chum cannot clear either hurdle.

I. Failure to Request Mistrial or Curative Instruction

Chum's principal complaint targets his trial attorney's failure to request a mistrial or a curative instruction when the prosecutor completed the state's case without having presented evidence he had referenced in his opening statement to the jury. The state's attorney told thejurors that a Cranston detective would recount Chum's statement after he had been arrested. The prosecutor said:

"[W]e'd also prove it with the defendant's words himself, because, when the detectives came to the Cranston Police Department, they read him his rights and sat down and talked to him. And the defendant told him that he was contacted by Erin Peterson and told that she needed him to take care of something; that she wanted them to take care of some kid named Frankie for smashing her windows; that he drove down to Peach Avenue with Matthew DePetrillo and Erin Peterson so that they could point out the house; that he approached the house with a friend, Vang Chhit; that he approached some guys on the porch; that he ordered Chhit to shoot the guys; that Erin Peterson, Matthew DePetrillo and Samnang Tep were in a different car waiting around the corner; and that he and Chhit fled in separate cars, one red, and one white. You'll hear that. You'll hear about the defendant giving that statement to the Providence Police." Tr. II at 204-205.

The state concluded its case without offering Chum's statement. He now complains that in the absence of that evidence trial counsel's failure to request a mistrial or a curative instruction constituted such ineffective assistance of counsel that he is entitled to a new trial. He is mistaken.

If the prosecutor's reference to the defendant's statement had been made without any basis or in bad faith, Chum's claim might have some merit. See State v. Ware, 524 A.2d 1110, 1112 (R.I. 1987) (prosecutor must have a good faith and reasonable basis that the evidence referred to in the opening statement is admissible). Here, however, no bad faith exists. The admissibility of the defendant's statement was the subject of a pretrial suppression motion which he litigated without success. That evidence was therefore fully available to the state if it decided to use it. In State v. Usenia, 599 A.2d 1026, 1032 (R.I. 1991), the Court said:

"The prosecutor is entitled, during opening statements, to comment on evidence the prosecutor believed in good faith will be available and admissible. See ABA Standards for Criminal Justice, ch. 3, standard 3-5.5 (1979). The incriminating evidence mentioned was a metal-tipped stick and a roll of pennies from the PizzaMan Restaurant that were recovered in the car. The prosecutor was justified at that time in believing that these relevant items would be admitted into evidence. The prosecutor is entitled to tell the jury what he intends to prove. If the prosecution is unable to prove what has been promised, it will lose credibility with the jury and defendant will benefit."

The record is silent as to the reason the state decided not to present Chum's inculpatory statement. In any event, the state's case unfolded with compelling force without it. Chum elected not to testify, and he did not present a defense.

Although Chum's attorney could have made requests for a mistrial or a curative instruction, failure to have done so in the face of overwhelming evidence of guilt is not fatal error. State v. Perry, 779 A.2d 622, 627-28 (R.I. 2001). In Perry, the prosecutor announced to the jury that Perry "couldn't keep his mouth shut" and had told a jailhouse informant, whom the state would present during the trial, how he had "smoked that nigger, how he shot him with his automatic." The state rested without presenting that witness. It did, however, present other significant evidence of Perry's guilt, including an eyewitness to the shooting.

So too, in the instant case the state presented three witnesses who positively identified Chum and who testified that after having had sharp words with one of several men on a house porch only fifteen feet away, Chum had ordered his cohort, Samnang Tep, to shoot them. In response to Chum's command, Tep immediately drew his weapon and fired at them, striking the porch railing but none of the people. Both Chum and Tep then fled on foot but were apprehended together later in the evening.

The eyewitness identifications were never challenged in any pretrial motion, and those witnesses were firm and convincing during trial. In assessing their credibility at Chum's motion for a new trial, this Court found their testimony entirely credible. The Court renews that sentiment here.

The evidence of Chum's complicity in this joint venture was overwhelming. The prosecutor's unfulfilled promise to present Chum's incriminating statement was, in this Court's view as a front-row observer, of no moment at all. No mistrial would have been granted if requested, and the Court admonished the jury on several occasions that statements of counsel were not evidence. At the very outset of the trial, prior to the prosecutor's opening statement, the Court stated:

"We begin the case, ladies and gentlemen, with the opening statement of [the prosecutor]. It's an opportunity for him to give you a bit of an overview of the trial and the case that will be unfolding. . . . I tell you now, and I probably will remind you before this case is over, the statements of lawyers are not evidence. The only evidence you consider is that which comes in from the witness stand or any exhibits that may be marked as full exhibits." Tr. II at 196.

On three more occasions, the Court did remind the jurors of that admonition. (Tr. II at 214-15, 307, 344) Those cautionary instructions were deemed fully satisfactory by the Supreme Court when it affirmed Chum's conviction:

"To be sure, the prosecutor referred to defendant's statement in his opening statement to the jury. Although defendant desperately clings to this fact, it affords him no harbor because statements of counsel are not evidence. SeeState v. Tevay, 707 A.2d 700, 702 (R.I. 1998). The record discloses that the trial justice instructed the jury before the opening statements and again at closing arguments that statements of counsel were not evidence. It is well settled that this Court presumes that the jury follows a trial justice's adequate cautionary instruction. . . . The trial justice's instructions in this case plainly were adequate." Chum, 54 A.3d at 461. (Citation omitted.)

Given the overwhelming other evidence of Chum's guilt, coupled with this Court's repeated cautionary admonitions to the jury, trial counsel's purported error, if it was error at all,does not satisfy the high Strickland standard.¹ A review of the record in this case leads to the same conclusion the Supreme Court reached in State v. Anderson, 878 A.2d 1049, 1050 (R.I. 2005): "The...