Harold Drew v. State of Rhode Island

Supreme Court

No. 2017-349-Appeal.
(WM 14-15)

Harold Drew :

v. :

State of Rhode Island. :

ORDER

The applicant, Harold Drew, appeals from a Superior Court judgment denying and

dismissing his application for postconviction relief. 1 This case came before this Court for oral

argument on November 27, 2018, 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 hearing the

arguments of counsel and examining the memoranda filed on behalf of the parties, we are of the

opinion that cause has not been shown, and we proceed to decide the appeal at this time without

further briefing or argument.

In 2005, Drew was convicted of first degree murder, discharging a firearm during a crime

of violence, and three counts of entering a dwelling with intent to commit a larceny therein, all

relating to the 2003 murder of Harold Jackson Andrews. Drew’s convictions for first degree

murder and discharging a firearm during a crime of violence resulted in two consecutive life

terms of imprisonment at the Adult Correctional Institutions, and he received ten years to serve

for each of the three counts of breaking and entering, which were to be served concurrently with

1
We note that G.L. 1956 § 10-9.1-9 was amended in June 2015, and now requires an aggrieved
party to file a petition for certiorari to review the denial of an application for postconviction
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each other and the sentence for first degree murder. His conviction was affirmed by this Court in

2007. State v. Drew, 919 A.2d 397 (R.I. 2007). Drew later filed a new trial motion in the

Superior Court on the grounds of newly discovered evidence; that motion was denied, and that

denial was affirmed by this Court in 2013. State v. Drew, 79 A.3d 32, 34, 36 (R.I. 2013).

In 2014, following that appeal, Drew filed an application for postconviction relief in the

Superior Court. 2 During the jury’s deliberation at his criminal trial, the jury had requested that a

portion of the trial testimony of the only other eyewitness to Mr. Andrews’s murder be read back

to the jury; the testimony related to the position of the victim, Drew, and the eyewitness in

relation to a pathway and a road at the time Mr. Andrews was shot and killed. Drew argued that

the position of the three individuals was important because it could confirm, based on the

trajectory of the bullet, that it could have been the eyewitness, and not Drew, who shot and killed

Mr. Andrews. Drew contended in his postconviction relief memorandum that the trial justice

erred in reading too little of the trial testimony to the jury. 3 He also claimed that his trial counsel

was deficient because he failed to object to certain portions of the eyewitness’s testimony that

had been read to the jury and he had failed to ensure that a record was maintained as to those

portions of the testimony that the jury heard. The hearing justice denied Drew’s application, and

Drew timely appealed to this Court.

On appeal, Drew, in a two-page statement submitted pursuant to Article I, Rule 12A of

the Supreme Court Rules of Appellate Procedure that is bereft of any citation to the record or to

relief. See P.L. 2015, ch. 91, § 1; P.L. 2015, ch. 92, § 1. Drew’s notice of appeal was filed on
February 17, 2015, before the amendment took effect, and therefore his appeal is proper.
2
The record reflects that Drew originally filed a pro se application for postconviction relief, in
which he raised five issues. However, after counsel was appointed to represent him, he agreed to
withdraw four of those five issues and filed a new postconviction relief memorandum addressing
the remaining issue, discussed infra.
3
Drew raised this issue in his first appeal from his conviction, but withdrew the argument. State
v. Drew, 919 A.2d 397, 403 n.5 (R.I. 2007).
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supporting authority, merely states that “the point to be argued is missing transcript pages and

proceedings in the Superior Court and the appellate Court thereafter.” After the appeal was

assigned to the show cause calendar for argument, Drew followed his short and unclear

prebriefing statement with an equally insufficient two-page supplemental statement that provides

only the following as his argument:

“The Petitioner claims that the point to be argued is that there are
missing transcript pages in the proceedings in the Superior Court
and in the travel of the case in the Appellate Court thereafter. This
issue is a meritorious ground to proceed further and is ground for
the finding of guilty by the jury to be overturned since these
missing pages are a benefit to the State of Rhode Island and are a
detriment to the preparation of the Petitioner’s arguments.”

Rule 12A(1) requires that “the appellant * * * shall file a statement of the case and a

summary of the issues proposed to be argued” in his or her prebriefing statement. See

Giammarco v. Giammarco, 151 A.3d 1220, 1222 (R.I. 2017) (mem.). We have repeatedly held

that “[s]imply stating an issue for appellate review, without a meaningful discussion thereof or

legal briefing of the issues, does not assist the Court in focusing on the legal questions raised,

and therefore constitutes a waiver of that issue.” Dunn’s Corners Fire District v. Westerly

Ambulance Corps, 184 A.3d 230, 235 (R.I. 2018) (quoting Giddings v. Arpin, 160 A.3d 314, 316

(R.I. 2017) (mem.)); see also Terzian v. Lombardi, 180 A.3d 555, 557 (R.I. 2018) (“We have

consistently made it clear that, under our raise-or-waive rule, ‘[e]ven when a party has properly

preserved its alleged error of law in the lower court, a failure to raise and develop it in its briefs

constitutes a waiver of that issue on appeal and in proceedings on remand.’”) (quoting McGarry

v. Pielech, 108 A.3d 998, 1005 (R.I. 2015)). Moreover, “we will not ‘scour the record to identify

facts in support of the plaintiff’s broad claims, and we will not give life to arguments that the

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plaintiff has failed to develop on his own.’” Terzian, 180 A.3d at 558 (quoting McMahon v.

Deutsche Bank National Trust Co., 131 A.3d 175, 176 (R.I. 2016) (mem.)).

Here, Drew has failed to provide a meaningful, or even intelligible, discussion of the

“missing transcript pages” issue in either of his filings with this Court. His memoranda do not

contain any citations to documents, precedent, transcripts, or any part of the record of this case.

Moreover, Drew does not cite to any authority to support any legal argument, if there is one, and

does not direct this Court to any error committed by the hearing justice or by his counsel. We

therefore have no choice but to deny Drew’s appeal.

For the foregoing reasons, we affirm the judgment of the Superior Court.

Entered as an Order of this Court this 7th day of January, 2019.

/s/
____________________________
Clerk

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

ORDER COVER SHEET

Title of Case Harold Drew v. State of Rhode Island.
No. 2017-349-Appeal.
Case Number
(WM 14-15)
January 7, 2019
Date Order Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Washington County Superior Court
Source of Appeal
Associate Justice Edward C. Clifton
Judicial Officer From Lower Court
For Applicant:

Paul Dinsmore, Esq.
Attorney(s) on Appeal For State:

Aaron L. Weisman
Department of Attorney General

SU-CMS-02B (revised November 2016)