Supreme Court
No. 2021-76-M.P. (PM 20-8909)
Miguel Tebalan Rivera :
v. :
State of Rhode Island. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. We issued a writ of certiorari to review
a Superior Court judgment granting Miguel Tebalan Rivera’s application for
postconviction relief. The state challenges the trial justice’s finding of ineffective
assistance of counsel, contending that the trial justice (1) overlooked or
misconceived evidence that trial counsel advised Rivera that he would need to testify
in order to assert that he killed the decedent in self-defense; (2) erred in finding that
trial counsel otherwise performed deficiently in “discourag[ing]” Rivera from
testifying and in failing to move to exclude Rivera’s recorded statement to police;
and (3) erred in relying on Rivera’s statements at sentencing and in a presentence
report to find that trial counsel’s performance prejudiced Rivera.
For the reasons set forth herein, we affirm the judgment of the Superior Court.
-1- I
Facts and Travel
The Offense
On the night of December 23, 2015, Rivera entered a Providence Police
Department substation, repeatedly insisting that he had killed someone. According
to officers who were present, Rivera was “yelling,” “very emotional,” “crying,” and
“stuttering.” He spoke to officers in Spanish. Officer Eduardo Curi, a Spanish-
speaking patrolman, testified that Rivera said “that they made him do it[] [b]ecause
* * * they were not giving him a job” and “that they did something to his family in
Guatemala.” Rivera offered to take Officer Curi to the scene of the killing. Officer
Curi placed Rivera in the back seat of his cruiser, uncuffed, and proceeded to Moore
Street. Officer Richard Mendez, also a Providence police patrolman, followed
behind.1
When the officers and Rivera arrived at his apartment building, he gave the
officers his keys and directed them to the correct unit. Inside, police discovered the
body of Julio Mejia Perez, who lay dead on the kitchen floor. Perez appeared to
have been stabbed repeatedly. Detective David Perez, who had responded to the
Moore Street location, seized a bloody knife from the top of the refrigerator.
1 At the time of the trial, Officer Mendez testified that he was currently a detective.
-2- The Recorded Statement
Rivera was arrested and taken into custody. He later made a statement to
police. Detective Daniel O’Connell interviewed Rivera with the aid of a Spanish-
speaking officer, who acted as an informal interpreter after Rivera indicated that he
was not proficient in English.2
The two officers initially provided Rivera with a Spanish-language waiver
form, describing his rights under Miranda v. Arizona, 384 U.S. 436 (1966), which
Rivera signed. After confirming certain biographical details, Rivera repeatedly and
explicitly told the officers that he did not want to talk to them. The Spanish-speaking
officer responded that the “truth is * * * what will help you” and continued to
question Rivera. In response to the detective’s questions, Rivera explained that
Perez was someone he knew from Guatemala, his country of origin, who had helped
him get a job.
After the Spanish-speaking officer asked how he was paid, Rivera again stated
that he did not want to talk to the officers and asked to speak to a lawyer. Detective
O’Connell responded by inquiring whether Rivera had a lawyer, to which Rivera
replied that he did not, but that he believed, based on the warnings he had been given,
2 The trial justice’s decision granting postconviction relief identifies the Spanish-speaking officer who participated in the custodial interview as Officer Curi. We were unable to corroborate Officer Curi’s involvement in the interview from the record before us.
-3- that he could be provided with one. The Spanish-speaking officer persisted in
questioning him, asking how the fight started and whether Perez and Rivera were
drinking. Rivera said he did not want to say something that would be used against
him. Detective O’Connell replied that the police “have to give you your rights” and
that “no matter if you are not a citizen or not, everyone gets their constitutional
rights.” The Spanish-speaking officer explained that those rights were “automatic.”
The two then continued to interrogate Rivera.
In the disjointed interview that followed, Rivera eventually expressed that he
and Perez had been in the apartment for approximately three hours before the fight
began. He claimed that Perez sought to collect money that Rivera did not have and
that Perez stated that Rivera had “screwed up” and had no way out. He characterized
Perez as someone who was always intimidating others.
Rivera admitted to having stabbed Perez at least twice with a knife that was
on top of the refrigerator. He also indicated that Perez did not have a weapon. Rivera
commented that he felt guilty, to which the Spanish-speaking officer responded that
it was fine, because he was defending himself. The interrogation ended at 10:13
p.m., having lasted approximately 44 minutes.
The Statement of Admissions
In April 2016, a grand jury returned a two-count indictment against Rivera
alleging murder, in violation of G.L. 1956 §§ 11-23-1 and 11-23-2, and the
-4- commission of a crime of violence while in possession of a knife with a blade more
than three inches long, in violation of G.L. 1956 § 11-47-59.
On May 9, 2017, Rivera’s initial counsel was replaced by the attorney whose
representation is the subject of Rivera’s postconviction-relief application (trial
counsel). Trial counsel later testified that Rivera’s first attorney withdrew after
Rivera rejected a plea of nolo contendere to second-degree murder. Trial counsel
averred that, when she began representing Rivera, her understanding was that he did
not want to enter that plea because he wished to assert self-defense at trial.
The month that she began representing Rivera, trial counsel drafted a
document titled “Statement of Admissions.” Rivera signed the statement, which was
styled as an affidavit, before a notary on May 26, 2017. It declared Rivera’s
intention to waive his right to a jury trial and to admit that, on “December 23, 2015,
at 121 Moore Street 3[rd] floor in the City and County of Providence, [he] did stab
Julio Mejia Perez who was born on May 9, 1979, multiple times, with a kitchen knife
which was later recovered from that location, which was the proximate and actual
cause of his death.” It concluded: “I do not waive my right to trial by a judge sitting
without a jury on the issue of mens rea – that is, whether I had criminal intent.”
At a June 2017 hearing, which was conducted by a different justice than the
one who would eventually oversee his trial, Rivera affirmed his desire to waive his
-5- right to a jury trial. Trial counsel also read the statement of admissions into the
record. The Superior Court justice accepted Rivera’s jury waiver and admissions.
Other than motions for discovery and inspection, trial counsel did not file any
pretrial motions. In the time between the jury waiver hearing and trial, another
justice was assigned to the case (the trial justice).
Trial
Rivera’s jury-waived trial proceeded over October 17 and 18, 2018. On the
first day, trial counsel submitted the statement of admissions to the court.
The state presented five witnesses: Officer Curi; Detective—formerly
Officer—Mendez; Detective Perez; Patricia Ogera, M.D.; and Detective O’Connell.
Officer Curi and Det. Mendez described their initial encounter with Rivera in
the substation and the events leading up to the discovery of the body. Detective
Mendez and Det. Perez related their observations and actions inside Rivera’s
apartment, where police collected evidence after obtaining a warrant. Detective
Perez also testified that, when Rivera was photographed as part of the booking
process, he appeared to have no injuries.
Doctor Ogera, the medical examiner, detailed her visit to Rivera’s apartment
with police and her findings from Perez’s autopsy. She reported observing five
“sharp force” wounds of various depths on Perez’s body, at least two of which
pierced bone. Each of these wounds, she opined, could potentially have been fatal
-6- on their own, although the likelihood that each would have resulted in death varied.
One, however, would have been fatal in and of itself within “less than five minutes.”
She also characterized one laceration as a potential “defensive wound” based on its
location on Perez’s forearm. Doctor Ogera agreed with trial counsel that the
presence of a “defensive wound” on his left forearm might “suggest” that Perez was
conscious at the time of the attack, although she could not say so to a reasonable
degree of medical certainty. She similarly could not opine as to whether Perez was
upright or lying down when he was stabbed.
Finally, Det. O’Connell testified that police submitted a buccal swab collected
from Rivera to the Department of Health. The state then read a stipulation into the
record concerning the conclusions of DNA testing conducted by the Department of
Health. The state rested after having read Rivera’s statement of admissions into
evidence.
At the close of the state’s evidence, Rivera moved to dismiss pursuant to Rule
29 of the Superior Court Rules of Criminal Procedure, sometimes called a McKone
motion in reference to State v. McKone, 673 A.2d 1068 (R.I. 1996). Rivera asked
the trial justice to dismiss the murder charge or to reduce it to a lesser-included
offense. Trial counsel argued that the state had not “shown adequate mens rea to
convict Mr. Rivera of any crime.” After making its argument as to second-degree
-7- murder, the state conceded that Rivera’s motion should be granted as to murder in
the first degree.
Of note, at the end of counsels’ arguments, but prior to the trial justice’s
decision, trial counsel submitted to the trial justice that “as of this moment,” Rivera
“does not wish to” testify. The trial justice replied that “we are not there yet” and
that she would rule on the motion to dismiss first, “[a]nd then he can make his
decision.”
Citing the state’s concession, the trial justice granted the motion to dismiss
the first-degree murder charge and denied the motion with respect to second-degree
murder. After outlining the relevant standard for a motion to dismiss, she found that,
given the statement of admissions, the state had proved second-degree murder
beyond a reasonable doubt, citing its evidence of “the nature of the wounds, the
nature of how [Perez] died, the number of wounds, the fact that [Perez] was
conscious, [and] the fact that * * * there was some type of struggle [that] continued
* * *.” The trial justice concluded by stating that, “if no further evidence was offered
to rebut” the state’s case, she would find that the state had met its burden as to
second-degree murder.
After a recess, during which trial counsel met with Rivera, trial counsel
requested that the trial justice ask him whether he would testify. In response to the
trial justice’s questioning, Rivera affirmed that he had spoken to his attorney
-8- regarding his decision and that he “believe[d] [he was] not going to testify.” After
a brief colloquy, the trial justice found that his decision was knowing, intelligent,
and voluntary.
Trial counsel rested her case, stating that she would present no witnesses or
evidence and that she would “renew” her motion to dismiss. In a closing statement,
trial counsel again argued that the state had not proven mens rea for second-degree
murder beyond a reasonable doubt. She further asserted that the state had failed to
prove beyond a reasonable doubt that Rivera had not acted in self-defense.
After the state’s final argument, the trial justice found Rivera guilty of second-
degree murder and commission of a crime of violence while in possession of a knife
with a blade longer than three inches. She reiterated that “the number of wounds”
and the “depth” of those injuries “in and of itself demonstrates intent to kill” and that
the state had thereby proven mens rea for second-degree murder. She also noted
that, although “in final argument” trial counsel “mentioned that it could have been
self-defense[,] * * * there’s not an iota of evidence of self-defense in this case.”
Trial counsel filed a motion for a new trial on October 24, 2018, which was denied.
Sentencing
On October 31, 2018, Rivera was interviewed by a probation officer in the
presence of trial counsel. The resulting presentence report includes an account by
Rivera of his conduct on the night of the homicide. According to the report, Rivera
-9- described Perez “as an intimidating individual and a ‘criminal’ who offered to obtain
drugs for him previously” with a “tough reputation,” whom Rivera was “frightened
of” but who had “obtained a job for” Rivera on the Newport waterfront. Rivera
reportedly characterized Perez as a person who “enjoyed humiliating him” and who
“attempted to manipulate and ‘control’ him,” whose “mistreatment culminated in
the instant offense * * *.”
The report recounted Rivera’s claim that, on the night of Perez’s death, “[h]e
and [Perez] had been drinking alcohol when [] Perez asked him for money.” Both
“were drunk” and Perez’s request “became a demand.” When Rivera “answered that
he had no money, [] Perez stood, approached and threatened him, saying he was
going to, ‘fuck [Rivera] up.’” Rivera alleged that he “tried to leave but [Perez]
grabbed” him and that Perez “lunged at him and began strangling” him. Rivera
“los[t] consciousness temporarily before realizing [that] he was in no ordinary fight”
and believed that “[i]t was either him or me” when he “grabbed the knife.”
A sentencing hearing was held on January 16, 2019. While addressing the
trial justice with the assistance of an interpreter, Rivera again made certain claims
about the night of Perez’s death. He alleged that Perez “was asking for money from
[Rivera] because of the job that he had gotten” him. He said that he told Perez that
he “still hadn’t been paid for [his] work” and that Perez then “became furious” and
told Rivera: “Now I’m going to kill you.” Rivera continued that, when he “saw that
- 10 - [Perez] stood up, he said [this] in a serious way and he stood up[,]” he “felt very
afraid.” He claimed that he “looked for the door, trying to get to the door,” but that
Perez “grabbed” him “from behind by the shirt and he put [Rivera] in front of him.”
He “felt that [Perez] was a very strong man,” and he “thought what am I going to do
at this moment.” He then “remembered a knife that was over the freezer.”
He stated that, when Perez “put [Rivera] in front of him and * * * raised his
hands toward [Rivera’s] throat, [Rivera] grabbed the knife and [] stabbed [Perez]
one time in the chest.” Then, when Perez “felt the stab, he said * * * [t]oday you
screwed me up, but I’ll kill you too” and “grabbed” Rivera “so strongly, [that]
[Rivera] gave him another [stab with the knife], and maybe more that” he did not
remember. Apparently referring to the forearm injury described by Dr. Ogera as a
possible defensive wound, Rivera stated that “when [he] gave him the last stab,
[Perez] lowered his hand and that’s when he wounded his arm,” positing that “[i]t
wasn’t that [Perez] was trying to defend himself.”
Rivera continued that, when Perez “was on the ground, [he] lost [his] mind”
and was “so desperate” that he “didn’t think of calling the ambulance” and that all
he “thought [about] was getting outside.” Then, “once [he] was outside, all [he]
thought of was going to the police.” He concluded by professing that he “just wanted
to be clear that this wasn’t something that I wanted to do in my thoughts,” but rather,
- 11 - “[i]t was simply that he came after me, he grabbed me by the throat, and then I
defended myself.” He reiterated once more that he “only defended [him]self.”
After this allocution came to an end, the trial justice commented that Rivera
had “just articulated a defense of self-defense.” She remarked that she was “just
baffled”; she said that, given the statement of admissions, “there was nothing left”
for Rivera to contest “absent an affirmative defense,” but that Rivera had never
actually “articulate[d] that defense” at trial.
The trial justice described the case as proceeding “as though it was presented
as a plea, but the only one in the room who didn’t understand that was the
[d]efendant.” “[B]ecause the case was presented in such a way,” she did not believe
that she could consider Rivera’s account of self-defense, which had not been given
under oath or cross-examined, at sentencing. She sentenced Rivera to sixty years of
incarceration, with fifty to serve and the balance suspended, with probation, with a
concurrent term of five years to serve on the other count.
Rivera filed a notice of appeal on January 23, 2019. Represented by new
counsel, he withdrew that appeal on July 26, 2019.
Postconviction Relief
On August 1, 2019, Rivera filed an application for postconviction relief
requesting vacation of his conviction based on trial counsel’s ineffective assistance.
Among other allegations, Rivera claimed that trial counsel “failed to advise” him
- 12 - that, “unless [he] testified at trial, there would be no evidence of self-defense and
that, given the ‘Statement of Admissions,’ the result after trial would inevitably and
necessarily be a guilty verdict on second[-]degree murder.” He argued that there is
“a reasonable probability that the outcome here would have been different with
constitutionally sufficient representation[,]” asserting that he “had a viable defense
of self-defense.” Rivera appended transcripts of the trial and of the hearings
concerning his original jury waiver and stipulations, new trial motion, and
sentencing.
Trial counsel was deposed on September 24, 2020. She recounted that
Rivera’s first attorney had negotiated a plea of nolo contendere to second-degree
murder and that she had been appointed after a “dispute” with that attorney. When
she began representing Rivera, she averred, it was her “clear impression * * * that it
was [] Rivera’s intent and his wish, and the thing that prevented the plea from being
taken was that he wanted to express his story of what happened in the kitchen at
Moore Street.”
Trial counsel recounted how, to her memory, Rivera had described the events
leading up to Perez’s death in their attorney-client meetings. Of note, she confirmed
that Rivera primarily spoke Spanish, that she did not speak Spanish, and that she
communicated with him with the assistance of an interpreter whenever they met in
- 13 - the Adult Correctional Institutions, but that she did not use an interpreter for every
discussion with Rivera.
Trial counsel explained that her “understanding from” Rivera was that his “job
had been arranged by” Perez, but that Rivera “was very unhappy with” Perez
“because of the way he was treated in this job” and because Perez “hadn’t been
placing him in better jobs or more jobs.” According to trial counsel, Rivera told her
that “on the day that the death occurred,” Perez “had insisted upon coming to the
house, and [] Perez had insisted that [Rivera] buy beer, which [he] did not want to
do.” Rivera purportedly claimed that he had “had to sell a * * * piece of equipment
to get the beer to buy to satisfy [] Perez.” She recalled Rivera “insisted to [her] that
he himself was not drunk, that [] Perez was drunk, and he had been drinking beer in
the kitchen.”
She testified that Rivera asserted that, while he was “standing next to the
refrigerator,” Perez “came up to [] Rivera and put his hands either at or near []
Rivera’s throat and said words to him, which he told me were, I’m going to fuck you
up, but that [] Rivera interpreted that as I’m going to kill you, and at that moment
* * * [Rivera] reached up behind himself, grabbed the knife off the top of [the]
refrigerator, brought his hand down, and from below stabbed Jose Perez, and beyond
that [] Rivera had no recollection of what happened next.” She also testified
regarding a note in her file indicating that Rivera “told me [Perez] put his hands on
- 14 - [Rivera’s] neck prior to [the] stabbing” and Rivera “told me he acted in self-
defense.”
Trial counsel further stated, however, that Rivera’s sentencing allocution,
which she characterized as an account of a “combat between him and * * * Perez in
the kitchen” in which Rivera “had to inflict five stab wounds just to prevent [] Perez
from killing him,” was “the first time” Rivera “had ever said in my hearing that the
scene unfolded that way.”
Trial counsel also testified regarding her decision not to file any motions to
suppress based on the recorded statement. She explained that, after reviewing the
statement, she had concluded that it was “completely inconsistent with * * *
self-defense[,]” explaining that “[t]here [was] no way to overcome the fact he didn’t
tell the police there had been an attack or a threat.” She thus “wanted to keep [the
recorded statement] away from the trier of fact at all costs.” She testified that the
prosecuting attorney’s off-the-record agreement not to use the statement in the
state’s case-in-chief obviated the need for a motion to suppress. She also indicated
that she filed no related motion to suppress, and did not seek to put her agreement
with the state’s attorney on the record, because she “didn’t want to have a hint” that
a statement existed “before the trier of fact[,]” commenting that if the trial justice
“had known there was a statement I was trying to suppress, I don’t think that would
have helped [] Rivera.”
- 15 - Trial counsel discussed the advice she gave to Rivera regarding his decision
whether to testify. She was emphatic that she was “very scrupulous not to influence
that decision at any point.” She recounted that, “when the [s]tate rested and we broke
for lunch, I said to [] Rivera, now you have to decide what you’re going to do, are
you going to testify or not * * *.” Then, after they returned to the courtroom, and
the trial justice “asked him whether he was going to testify,” Rivera “looked at” trial
counsel, and she told Rivera: “[I]f you testify, you will be impeached with the
statement that you made to the police. So your testimony must be absolutely
honest.” Then, to trial counsel’s “surprise, he said to the [trial justice] he did not
wish to testify.” She claimed that, “until that moment,” she “expected that he would
testify.”
Trial counsel agreed that, given the evidence that came out at trial, testifying
was the “only way” Rivera could establish the necessary scintilla of evidence
required to assert self-defense. See, e.g., State v. Pineda, 13 A.3d 623, 634 (R.I.
2011) (“[T]he record as a whole must contain at least a scintilla of evidence
supporting the defendant’s theory that he used the weapon in self-defense.”). When
asked whether she explained this concept to her client, she replied that Rivera “knew
he had to testify if he wanted to use * * * self-defense[,]” but that he “also knew that
if he testified, he would be impeached, and that was the impossible position he was
in.” When queried as to whether, “as a matter of law,” Rivera would at least have
- 16 - had “a shot” at acquittal if he had testified, trial counsel responded: “As a matter of
law, if he testified, he would have been impeached.”
Trial counsel opined that, given the “devastating” impeachment power of the
recorded statement, Rivera made a “wise decision” and chose “the best option” in
forgoing his right to testify. She suggested that, beyond the recorded statement’s
power to undermine Rivera’s self-defense narrative, it could also have exposed him
to a first-degree murder conviction because, in the custodial interview, Rivera
“described his grievance against” Perez as “being about money and not about a
threat.”
Trial counsel discussed her actions after the motion to dismiss had been denied
and Rivera had told the trial justice that he would not testify. When asked whether
she ever explained to Rivera that he was “100 percent certain to lose the trial at that
point” if he did not testify, trial counsel replied that she “did not” so advise him. She
elaborated that she did not believe that he was “100 percent certain to lose the trial,”
because, in her view, the state “still had to prove mens rea.” She also explained that
she did not consider asking for a continuance at that point because “[i]f [she] had
felt he was unsure of his answer, [she] would have, but he was certain.” She had
previously agreed that, by the time of trial, she did not intend to introduce any
defense evidence besides, potentially, Rivera’s testimony.
- 17 - On December 10, 2020, Rivera filed a memorandum in support of his
application for postconviction relief. In relevant part, he now alleged that trial
counsel performed deficiently in “fail[ing] to recognize and explain to [him] that if
[he] did not testify, he would—as a matter of law—be convicted of second-degree
murder.” He also argued that his statements in the presentence report and at the
sentencing hearing showed that, had he “understood the inevitable result of not
testifying (i.e., zero percent chance of acquittal), it is beyond implausible to imagine
that [he] would have agreed to continue the trial without testifying.” Rivera
supplemented his memorandum with his recorded statement to police, an English
transcript of that statement, a transcript of trial counsel’s deposition, and exhibits
from that deposition.
As discussed further below, the state’s memorandum opposing relief was
neither filed in the Superior Court nor provided to this Court.3 No evidentiary
hearing was held, and the record does not reveal a request from either party for such
a hearing.
In a written decision issued on December 30, 2020, the trial justice granted
Rivera’s application and vacated his conviction and sentence. The trial justice
3 We note that the postconviction-relief statute requires that the attorney general “respond by answer or by motion” to an application for postconviction relief within twenty days “after receiving notice of the docketing of the application, or within any further time the court may fix * * *.” General Laws 1956 § 10-9.1-6(a).
- 18 - discussed Rivera’s recorded statement in custody at some length, commenting that
there was “no question that the conduct of the officers was illegal, outrageous, and
abusive.” Having reviewed the transcript of the statement, moreover, she was
“unconvinced that it was as damaging to Rivera’s self-defense claim as his trial
counsel contends[,]” opining that “nothing contained in that statement justified
abandoning his self-defense claim.” She stated that, if the recorded statement had
come before her on a motion in limine or for impeachment, she would have
“discounted or totally disregarded the evidence due to the deliberately illegal manner
in which the interview was obtained.”
The trial justice stated that “[t]his [c]ourt finds that Rivera would not have
waived the right to testify if he had been advised adequately of the ramifications of
that decision, making his decision less than knowing, voluntary, and intelligent.”
Having read Rivera’s statements in the presentence report, which he “elaborated on”
at the sentencing, the trial justice was “convinced” that Rivera “always expected to
have the opportunity to present a defense * * *.” Trial counsel, however, “failed to
explain to her client that his silence would seal his fate and result in a conviction.”
By not testifying, “Rivera would be conceding the case, something he consistently
claimed he did not want to do.”
The trial justice further held that, “[h]ad Rivera testified and presented a
version of events consistent with his allocution at sentencing, there exists a
- 19 - reasonable probability that the result of the proceeding would have been different[,]”
in that “it is reasonably probable that this trial justice may have accepted his claim
of self-defense.” She stated that Rivera’s allocution was “very compelling,” that he
“had no prior criminal record that could have been used to impeach him if he
testified,” and that his “version of events [was] buttressed by the fact that he did not
flee after the killing but ran to the police station confessing the killing and urging
them to accompany him to the scene.”
An order granting Rivera’s application for postconviction relief and vacating
his convictions and sentence entered on January 8, 2021, with the related judgment
following on February 2, 2021.
The state petitioned for a writ of certiorari on April 2, 2021, which this Court
granted on February 21, 2022. On August 17, 2021, Rivera submitted the
presentence report, which had previously been ordered sealed by the trial justice, to
the record.
II
Standard of Review
“It is well settled that this Court’s ‘review of a case on certiorari is limited to
an examination of the record to determine if an error of law has been committed.’”
State ex rel. Coventry Police Department v. Charlwood, 224 A.3d 467, 469-70 (R.I.
2020) (quoting Sandy Point Farms, Inc. v. Sandy Point Village, LLC, 200 A.3d 659,
- 20 - 662 (R.I. 2019)). “When conducting such a review, this Court does not ‘weigh the
evidence on certiorari,’ but rather, limits its review to ‘questions of law raised in the
petition.’” Id. (quoting Sandy Point Farms, Inc., 200 A.3d at 662).
“[T]his Court ‘will not disturb a trial justice’s factual findings made on an
application for post-conviction relief absent clear error or a showing that the trial
justice overlooked or misconceived material evidence in arriving at those findings.’”
Santos v. State, 91 A.3d 341, 344 (R.I. 2014) (quoting Bell v. State, 71 A.3d 458,
460 (R.I. 2013)). “We will, however, review de novo any post-conviction relief
decision involving mixed questions of law and fact pertaining to an alleged violation
of an applicant’s constitutional rights.” Id. (deletion omitted) (quoting Bell, 71 A.3d
at 460). “Even when applying the de novo standard of review to such issues,
however, we still accord a [trial] justice’s findings of historical fact, and inferences
drawn from those facts, great deference.” Navarro v. State, 187 A.3d 317, 325 (R.I.
2018) (deletion omitted) (quoting Jolly v. Wall, 59 A.3d 133, 138 (R.I. 2013)).
III
Discussion
We now consider whether the trial justice erred in granting postconviction
relief based on a finding that trial counsel was ineffective.
“Under Rhode Island law, a defendant can seek postconviction relief pursuant
to [G.L. 1956] § 10-9.1-1. Postconviction relief ‘is available to a defendant
- 21 - convicted of a crime who contends that his original conviction or sentence violated
rights that the state or federal constitutions secured to him.’” Navarro, 187 A.3d at
324-25 (quoting Bell, 71 A.3d at 460).
“Accordingly, in all criminal prosecutions, one who alleges the infringement
of his or her constitutional Sixth Amendment right to the assistance of counsel may
avail his or herself of the postconviction-relief process.” Navarro, 187 A.3d at 325
(quoting Rice v. State, 38 A.3d 9, 16 (R.I. 2012)). “The burden of proving, by a
preponderance of the evidence, that such postconviction relief is warranted falls on
the applicant.” Id. (brackets omitted) (quoting Motyka v. State, 172 A.3d 1203, 1205
(R.I. 2017)).
“This Court adheres to the standard set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668 * * * (1984), when evaluating
claims of ineffective assistance of counsel.” Navarro, 187 A.3d at 325 (quoting
Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011)). “In order to prevail on a claim
of ineffective assistance of counsel, an applicant must satisfy two criteria.” Id. at
326.
“First, the applicant must demonstrate that counsel’s performance was
deficient, to the point that [her] errors were so serious that trial counsel did not
function at the level guaranteed by the Sixth Amendment.” Navarro, 187 A.3d at
326 (quoting Chapdelaine, 32 A.3d at 941). “This prong can be satisfied only by a
- 22 - showing that counsel’s representation fell below an objective standard of
reasonableness.” Id. (quoting Chapdelaine, 32 A.3d at 941). Specifically, “in light
of all the circumstances, the identified acts or omissions” of trial counsel must fall
“outside the wide range of professionally competent assistance.” Strickland, 466
U.S. at 690. “In our evaluation of counsel’s performance, ‘a strong presumption’
exists ‘that an attorney’s performance falls within the range of reasonable
professional assistance and sound strategy.’” Navarro, 187 A.3d at 326 (deletion
omitted) (quoting Rivera v. State, 58 A.3d 171, 180 (R.I. 2013)).
“Second, the defendant must show that the deficient performance prejudiced
the defense.” Navarro, 187 A.3d at 326 (quoting Neufville v. State, 13 A.3d 607, 610
(R.I. 2011)). “This prong is satisfied only when an applicant demonstrates that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Bell, 71 A.3d at 460 (quoting
Chapdelaine, 32 A.3d at 941-42). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
At oral argument, the state indicated that it had provided the trial justice with
a memorandum opposing Rivera’s application for postconviction relief. Such a
memorandum, however, is not part of the record on appeal, nor does the docket
reflect that it was ever filed with the Superior Court. This raises the question of
whether the issues argued by the state on appeal were properly presented to the trial
- 23 - justice. See State v. Diefenderfer, 970 A.2d 12, 30 (R.I. 2009). In light of the
representations made by counsel for the state and the fact that Rivera does not
suggest that the state has waived any of its appellate arguments, we address those
arguments on the merits. As explained infra, however, we decline to discuss the
state’s evidentiary objections to the trial justice’s consideration of Rivera’s
presentence report and sentencing allocution.
Deficient Performance
As a threshold matter, the state and Rivera differ sharply regarding the “acts
or omissions” relied on by the trial justice in finding deficient performance.
Strickland, 466 U.S. at 690. The state contends that the trial justice held trial counsel
to be ineffective because: trial counsel did not “advise Rivera that by waiving his
right to testify, he would be waiving his right to present his claim of self-defense”;
trial counsel “‘discouraged’ Rivera ‘from testifying by focusing on the dangers that
awaited him if he did so because he would be confronted with his police interview’”;
and trial counsel did not move to preclude or limit the use of Rivera’s recorded
statement. Rivera counters that the trial justice based her finding of deficient
performance on trial counsel’s failure to advise Rivera that he would be convicted
of second-degree murder if he did not testify.
We need not determine the basis of the trial justice’s holding of deficient
performance. “[T]his Court may exercise ‘its prerogative to affirm a determination
- 24 - of a trial justice on grounds different from those enunciated in his or her decision.’”
Lerner v. Ursillo, 765 A.2d 1212, 1216 (R.I. 2001) (quoting Ogden v. Rath, 755
A.2d 795, 798 (R.I. 2000)). It is our view that, “in light of all the circumstances,”
trial counsel’s failure to advise Rivera that, after the motion to dismiss was denied,
he would be convicted if he did not testify, fell “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. We emphasize
that trial counsel’s deficient advice did not stem from any strategic consideration,
but from an unreasonable mistake of law as to the effect of the denial of the motion
to dismiss.
“Our long established trial procedure practice” is that “in jury-waived trials in
this state, the appropriate motion by which a defendant may challenge the legal
sufficiency of the state’s trial evidence at the close of the state’s case is by motion
to dismiss.” McKone, 673 A.2d at 1072 (emphasis omitted); see Super. R. Crim. P.
29(b) (“In a case tried without a jury, a motion to dismiss may be filed at the close
of the [s]tate’s case to challenge the legal sufficiency of the [s]tate’s trial evidence.”).
“As this Court has previously noted, a motion to dismiss differs from a motion
for a judgment of acquittal.” State v. Forand, 958 A.2d 134, 140 (R.I. 2008). A
motion to dismiss requires the trial justice to “weigh and evaluate the trial evidence,
pass upon the credibility of the trial witnesses, and engage in the inferential process,
impartially, not being required to view the inferences in favor of the nonmoving
- 25 - party, and against the moving party.” Id. at 141 (quoting McKone, 673 A.2d at
1072-73). “After so doing, if the trial justice concludes that the trial evidence is
sufficient to establish guilt beyond a reasonable doubt, he or she denies the
defendant’s motion to dismiss and, if both sides have rested, enters decision and
judgment of conviction thereon. If the evidence is not so sufficient, he or she grants
the motion and dismisses the case.” Id. (deletion omitted) (emphasis added) (quoting
McKone, 673 A.2d at 1073).
When trial counsel was asked whether, after the motion to dismiss had been
denied, she ever advised Rivera that, “at that point,” “he was 100 percent certain to
lose the trial” if he did not testify, trial counsel responded that she “did not” do so,
positing, incorrectly, that the state “still had to prove mens rea.” “An attorney’s
ignorance of a point of law that is fundamental to [her] case combined with [her]
failure to perform basic research on that point is a quintessential example of
unreasonable performance under Strickland.” Hinton v. Alabama, 571 U.S. 263, 274
(2014).4 Of note, trial counsel’s deposition testimony evinces that she planned to
offer no evidence other than, potentially, Rivera’s testimony. It thus appears that
4 The trial justice outlined the standard for a motion to dismiss in her decision and went so far as to tell trial counsel that, if the defense rested without introducing evidence, she would find that the state had met its burden on second-degree murder. The trial justice’s choice to take this prophylactic step plays no part in our finding that trial counsel’s mistake of law, and subsequent failure to adequately advise Rivera as to the effect of the denial of the motion to dismiss, fell below the Sixth Amendment’s standard of reasonable professional assistance.
- 26 - trial counsel misunderstood the effect of the trial justice’s denial of the motion to
dismiss and that she consequently failed to warn Rivera that a waiver of his right to
testify would lead to immediate conviction.
The state contends that trial counsel “knew that * * * [Rivera] could not
succeed unless he testified” and emphasizes her claim that Rivera also “knew that
he would have to testify.” Under these circumstances, reasonable professional
assistance required more. “From counsel’s function as an assistant to the defendant
derive * * * duties to consult with the defendant on important decisions and to keep
the defendant informed of important developments in the course of the prosecution.”
Strickland, 466 U.S. at 688. Trial counsel was obliged to recognize and advise
Rivera of the clear, indisputable impact of the denial of the motion to dismiss on his
decision whether to testify.
The state also suggests that trial counsel may have had strategic reasons for
wishing for Rivera to waive his right to testify, such as the risk that the trial justice
would have imposed a longer sentence based on a finding that Rivera perjured
himself. Although we do not believe that trial counsel purposefully withheld legal
advice regarding Rivera’s decision whether to testify in order to sway him towards
a seemingly more desirable outcome, such a decision could not properly be
understood as a tactical one. Most decisions before and at trial are entrusted to the
defense attorney’s professional judgment. “Trial management is the lawyer’s
- 27 - province: Counsel provides his or her assistance by making decisions such as ‘what
arguments to pursue, what evidentiary objections to raise, and what agreements to
conclude regarding the admission of evidence.’” McCoy v. Louisiana, 584 U.S. 414,
422 (2018) (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)). “Some
decisions, however, are reserved for the client,” including whether to “testify [o]n
one’s own behalf * * *.” Id. Those decisions “are not strategic choices about how
best to achieve a client’s objectives; they are choices about what the client’s
objectives in fact are.” Id. In the case at bar, trial counsel recognized that it was
Rivera’s choice whether to testify. But effective assistance requires a defense
attorney to provide the legal advice necessary to making her client’s choice an
informed one.
Moreover, any potential strategic decisionmaking by trial counsel on this issue
could not be disentangled from her mistake of law. An attorney’s “strategic choice[]
made after thorough investigation of law and facts relevant to plausible options [is]
virtually unchallengeable” and even those strategic choices “made after less than
complete investigation are reasonable * * * to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91
(emphasis added). But decisions based on an attorney’s unreasonable mistake of
law constitute deficient performance. See Kimmelman v. Morrison, 477 U.S. 365,
385 (1986) (“Counsel’s failure to request discovery * * * was not based on
- 28 - ‘strategy,’ but on counsel’s mistaken belief[] that the State was obliged to take the
initiative and turn over all of its inculpatory evidence to the defense * * *.”);
Williams v. Taylor, 529 U.S. 362, 395 (2000) (noting that defense attorneys
performed deficiently when they “failed to conduct an investigation that would have
uncovered extensive records graphically describing [the defendant’s] nightmarish
childhood, not because of any strategic calculation but because they incorrectly
thought that state law barred access to such records”).
Trial counsel’s mistake of law, and consequent failure to advise Rivera that a
conviction would enter if he chose not to testify, “fell below an objective standard
of reasonableness” and amounted to constitutionally deficient performance under
Strickland. Navarro, 187 A.3d at 326 (quoting Chapdelaine, 32 A.3d at 941).
Because, as we discuss below, this error is ultimately dispositive of both prongs of
Strickland, we address no other potential bases for a finding of deficient
performance.
Prejudice
The state claims that Rivera provided insufficient evidence that counsel’s
errors prejudiced him. It alleges that Rivera’s statements at sentencing and in the
presentence report (the exculpatory statements), which were not given under oath or
subject to cross-examination, are “inadmissible.” It also contends that that the trial
justice erred in “accept[ing] Rivera’s unsworn and self-serving recitations at face
- 29 - value and implicitly * * * [finding] them to be both accurate and credible without
providing the [s]tate the opportunity to cross-examine Rivera about [his] version of
events.”
In turn, Rivera contends that the exculpatory statements present “consistent
accounts” of self-defense that are not fatally undermined by any of his other
statements to police or trial counsel. He argues that the exculpatory statements,
bolstered by his actions after Perez’s death, provided the trial justice with sufficient
evidence to find Strickland prejudice.
We first note that the postconviction-relief statute provides that “[t]he court
may receive proof by affidavits, depositions, oral testimony, or other evidence
* * *.” Section 10-9.1-7 (emphasis added). Thus, while we have remarked that “the
most compelling panacea for the questionable reliability of any witness statement is
cross-examination,” evidence not subject to oath or cross-examination was not
categorically barred from the trial justice’s consideration. Ferrell v. Wall, 889 A.2d
177, 185 (R.I. 2005), disagreed with on other grounds by Reyes v. State, 141 A.3d
644, 655 n.15 (R.I. 2016).
We decline to address the state’s claim that Rivera’s statements were
otherwise inadmissible. Evidentiary “issues that were not preserved by a specific
objection * * *, sufficiently focused so as to call the trial justice’s attention to the
basis for said objection, may not be considered on appeal.” State v. Gautier, 950
- 30 - A.2d 400, 407 (R.I. 2008) (quoting State v. Pacheco, 763 A.2d 971, 976 (R.I. 2001)).
“That requirement is grounded, in part, in our rules of evidence, which direct ‘that a
specific ground for an objection must be stated unless the reason for the objection is
clear from the context in which it was made.’” State v. Maxie, 187 A.3d 330, 343
(R.I. 2018) (quoting State v. Barros, 148 A.3d 168, 174 (R.I. 2016)). We give
significant deference to a trial justice’s ruling on the admissibility of evidence, a
“question addressed to the sound discretion of the trial justice” that “will not be
disturbed on appeal absent a clear abuse of that discretion.” State v. Briggs, 886 A.2d
735, 749-50 (R.I. 2005) (quoting State v. Lynch, 854 A.2d 1022, 1031 (R.I. 2004)).
We have previously noted that the state’s memorandum in opposition to Rivera’s
application is not part of the record before us. “Ultimately, it is the [petitioner’s]
duty ‘to ensure that the record is complete and ready for transmission.’” Sentas v.
Sentas, 911 A.2d 266, 270 (R.I. 2006) (quoting Small Business Loan Fund Corp. v.
Gallant, 795 A.2d 531, 532 (R.I. 2002)). We are particularly hard-pressed to
determine whether the state’s evidentiary objections were presented to the trial
justice. Significantly, the trial justice’s decision nowhere alludes to any such
objections being brought to her attention. Accordingly, they have been waived.
The state also argues that Rivera’s exculpatory statements were insufficiently
credible to support a finding of Strickland prejudice. A trial justice’s “charge upon
an application for post-conviction relief is to adjudge credibility based upon the
- 31 - totality of evidence presented.” Ferrell, 889 A.2d at 188. “When reviewing the grant
or denial of postconviction relief, the trial justice’s * * * credibility determinations
will be upheld ‘absent clear error or a determination that the hearing justice
misconceived or overlooked material evidence.’” Hall v. State, 60 A.3d 928, 931
(R.I. 2013) (quoting Lynch v. State, 13 A.3d 603, 605 (R.I. 2011)).
We do not detect clear error, or misconceived or overlooked material
evidence, in the trial justice’s credibility findings here. The trial justice’s decision
expounded on the bases of that finding, emphasizing Rivera’s “very compelling”
allocution, his lack of a criminal record, and the undisputed circumstances that
“buttressed” his account of self-defense. We defer to the trial justice’s assessment
that Rivera’s allocution before her at sentencing was “very compelling.” A trial
justice, “having been present during the entirety of the trial,” will have “had ample
opportunity to * * * account for ‘other realities that cannot be grasped from a reading
of a cold record.’” State v. Rego, 264 A.3d 840, 846 (R.I. 2021) (quoting State v.
Greenslit, 135 A.3d 1192, 1198 (R.I. 2016)). The trial justice could also reasonably
rely on the record evidence of Rivera’s consistent desire to present an account of
self-defense at trial, as evinced in trial counsel’s deposition testimony and
corroborated by his statements in the presentence interview and at sentencing, to
infer that he would not have waived his right to testify if adequately advised.
- 32 - Finally, we agree with the trial justice that the recorded statement appears to
be less damaging than trial counsel supposed. The claimed impeachment value of
an inference from Rivera’s silence appears mired in the basis of the statement’s
illegality—that the officers ignored Rivera’s repeated requests to remain silent.
Without, of course, discounting the inconsistencies between his accounts, we note
that Rivera’s statements to trial counsel, some of which may have been given without
an interpreter, evince a narrative of self-defense broadly consistent with the
exculpatory statements.
As Rivera highlights, “once [a] defendant introduces some evidence of
self-defense, the burden of persuasion is on the prosecution to negate that defense
beyond a reasonable doubt.” State v. Rieger, 763 A.2d 997, 1003 (R.I. 2001)
(quoting State v. Pule, 435 A.2d 1095, 1098-99 (R.I. 1982)). We are satisfied that
the trial justice had ample evidence before her to find a reasonable probability of a
different outcome under this standard, thus undermining confidence in her original
verdict. See Bell, 71 A.3d. at 460.
We hold that the trial justice did not err in granting Rivera’s application for
postconviction relief.
- 33 - IV
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court.
The record shall be returned to the Superior Court.
- 34 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case Miguel Tebalan Rivera v. State of Rhode Island.
No. 2021-76-M.P. Case Number (PM 20-8909)
Date Opinion Filed June 25, 2024
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Netti C. Vogel
For State:
Christopher R. Bush Department of Attorney General Attorney(s) on Appeal For Defendant:
Kara J. Maguire Rhode Island Public Defender
SU-CMS-02A (revised November 2022)