Reynaldo Rodriguez v. State of Rhode Island

Supreme Court
No. 2006-144-Appeal.
(PM 02-5928)
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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Reynaldo Rodriguez 	:
v. 	:
State of Rhode Island. 	:

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Supreme Court
No. 2006-144-Appeal.
(PM 02-5928)
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. 	The applicant, Reynaldo Rodriguez, appeals from the
denial of his application for postconviction relief. This case came before the Supreme Court for
oral argument pursuant to an order directing the parties to show cause why the issues raised in
the appeal should not be decided summarily. 	After reviewing the record and considering the
written and oral submissions of the parties, we are satisfied that this case may be decided without
the necessity of further briefing or argument. We affirm the judgment of the Superior Court.
Facts and Procedural History
Mr. Rodriguez was convicted after a jury trial of possession of a controlled substance
(heroin) with intent to deliver, possession of drug paraphernalia with intent to deliver, and
conspiracy to possess a controlled substance with intent to deliver. 	The conspiracy conviction
later was vacated and the conspiracy count dismissed, and then this Court affirmed the remaining
convictions in State v. Rodriguez, 798 A.2d 435 (R.I. 2002). 	On October 22, 2002, Mr.
Rodriguez applied for postconviction relief, alleging constitutionally ineffective assistance of his
trial counsel for failing to call a witness, or, in the alternative, to introduce the witness’s affidavit
or previous testimony. We recount only those facts sufficient for the resolution of this appeal.
Reynaldo Rodriguez 	:
v. 	:
State of Rhode Island. 	:

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The key piece of evidence introduced against Mr. Rodriguez at his trial was a shoe box
containing various items associated with the use and distribution of heroin. Laboratory analysis
confirmed the presence of heroin residue on the items. 	The shoe box had been found by
Providence police officers, acting pursuant to a search warrant, above a ceiling panel in the
shower room of the Rogers Recreational Center. The only named target of the investigation was
Leo Cronan, Jr., the director of the Rogers Recreational Center. Fingerprints on the items were
identified as belonging to Mr. Rodriguez and a man named Emiliano Pagan.
Mr. Pagan was charged with the same three offenses as were brought against Mr.
Rodriguez, and on June 24, 1997, Mr. Pagan pled nolo contendere to all three, including the
conspiracy count. On March 24, 1998, however, Mr. Pagan executed an affidavit that purported
to exculpate Mr. Rodriguez. 	Further, on July 7, 1998, Mr. Pagan testified at a Superior Court
hearing that he had taken the shoe box from a group of youths at the recreation center in the hope
of using its contents to make money. Later that day, Mr. Pagan said, he asked Mr. Rodriguez for
a ride home, and he placed the box on the front passenger seat of Mr. Rodriguez’s automobile
while he went back into the recreation center. When he returned, Mr. Rodriguez told him that he
had looked through the box and he demanded that Mr. Pagan remove the box. 	The hearing
justice who presided at the hearing at which Mr. Pagan testified described his testimony as
“highly incredible.”
The thrust of Mr. Rodriguez’s postconviction-relief argument was that his trial counsel’s
failure to present Mr. Pagan’s testimony, either in person or by introducing a transcript of his
previous testimony, constituted ineffective assistance of counsel in violation of the Sixth
Amendment to the United States Constitution. 	The only witness to testify in support of Mr.
Rodriguez’s application was his trial attorney, John M. Cicilline. Mr. Cicilline testified that his

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theory of defense was to portray Mr. Cronan as the person solely responsible for the shoe box
and its contents. He explained that Mr. Cronan was the initial target of the police investigation
and the sole possessor of the keys to the shower room where the drug paraphernalia were
discovered.
Mr. Cicilline acknowledged that his efforts to point the finger at Mr. Cronan, even if
successful, did not preclude a finding of guilt against Mr. Rodriguez based upon a theory of joint
possession. He also admitted that Mr. Pagan’s testimony could have explained how his client’s
fingerprints innocently got on the shoe box and drug paraphernalia. 	On cross-examination,
however, 	Mr. 	Cicilline 	acknowledged 	that 	Mr. 	Pagan’s 	testimony 	would 	have 	seriously
undermined the defense’s theory that the evidence strongly indicated that Mr. Cronan owned the
paraphernalia.
In her very detailed rescript, the hearing justice noted that Mr. Rodriguez’s failure to call
Mr. Pagan as a witness at the postconviction-relief hearing deprived the court of any opportunity
to determine whether his testimony at the trial would have helped the defense. 	Even assuming
his testimony would be consistent with his affidavit and previous testimony, she was unable to
assess its weight and credibility. The hearing justice, therefore, rejected any argument that trial
counsel was deficient by not calling Mr. Pagan to testify at trial.
The hearing justice further held that Mr. Rodriguez would not have been able to have Mr.
Pagan’s affidavit admitted at trial because it had never been authenticated nor were his
statements subject to cross-examination. See Flynn v. Al-Amir, 811 A.2d 1146, 1152-53 (R.I.
2002). Moreover, she said that there was insufficient evidence that Mr. Pagan was unavailable to
testify at trial, a necessary predicate to the admission of his previous sworn testimony. 	She
rejected Mr. Rodriguez’s suggestion that Mr. Pagan was unavailable because of an outstanding

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warrant for his arrest on a robbery charge. She noted that Mr. Rodriguez had neither asked him
to testify voluntarily nor attempted to subpoena him and said it would be rank speculation to
conclude that Mr. Pagan was unavailable to testify at trial.
Moreover, the hearing justice determined that “Mr. Cicilline made a sound tactical
decision at the time, with full knowledge of Pagan’s affidavit and prior hearing testimony, not to
present Pagan as a witness at trial.” 	Significantly, she noted that Mr. Pagan had pled nolo
contendere to the charge of conspiracy to possess with intent to deliver the very same heroin that
was the subject of the charges against Mr. Rodriguez. 	Also, Mr. Pagan’s testimony would not
have explained away other incriminating evidence that had been introduced against Mr.
Rodriguez at the trial, and it would have been inconsistent with his primary theory that Mr.
Cronan alone possessed the paraphernalia. 	Finally, she observed that Mr. Pagan’s testimony at
the previous hearing had been found not to be credible and did “not make a lot of sense.” 	In
conclusion, the hearing justice determined that Mr. Cicilline conscientiously, after consultation
with Mr. Rodriguez, chose to mount the best defense available to him, which she characterized
as “not only objectively reasonable under the totality of the circumstances, but sound.”
Standard of Review
Under G.L. 1956 § 10-9.1-1(a)(1), “post-conviction relief is available to a defendant
convicted of a crime who contends that his original conviction or sentence violated rights that
the state or federal constitutions secured to him.” Young v. State, 877 A.2d 625, 628 (R.I. 2005).
“This 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.” Bustamante v. Wall, 866 A.2d 516, 522 (R.I.
2005) (quoting Taylor v. Wall, 821 A.2d 685, 688 (R.I. 2003)). 	“This Court will, however,

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‘review de novo any post-conviction relief decision involving questions of fact or mixed
questions of law and fact pertaining to an alleged violation of an applicant’s constitutional
rights.’” Id.
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. Bustamante, 866 A.2d at 522. 	Under this test, an applicant must establish two
criteria to prevail on such a claim. 	First, the applicant must “demonstrate that counsel’s
performance was deficient, to the point that the errors were so serious that trial counsel did not
function at the level guaranteed by the Sixth Amendment.” Brennan v. Vose, 764 A.2d 168, 171
(R.I. 2001) (citing Strickland, 466 U.S. at 687). This prong can be satisfied “only by a showing
that counsel’s representation fell below an objective standard of reasonableness.” Id. The second
criterion of the Strickland test requires the applicant to demonstrate prejudice emanating from
the attorney’s deficient performance such as “to amount to a deprivation of the applicant’s right
to a fair trial.” Id. 	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.” Strickland, 466 U.S. at 694.
Discussion
Affording the hearing justice’s findings of historical fact the deference to which they are
entitled, we are in complete agreement with her ultimate conclusion that Mr. Rodriguez “has
fallen woefully short of proving that the conduct of his able trial counsel in not calling Pagan as a
witness at trial or presenting his prior sworn hearing testimony was objectively unreasonable
* * *.”

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On the contrary, trial counsel’s failure to present Mr. Pagan as a witness or attempt to
introduce into evidence the transcript of his previous testimony appears to us to have been a
rather sound tactical decision. 	Mr. Pagan’s belated attempt to exonerate Mr. Rodriguez clearly
would have undermined the latter’s efforts to deflect culpability to Mr. Cronan. Moreover, Mr.
Pagan’s testimony undoubtedly would have provided the state with fertile opportunities for
cross-examination. Not only had Mr. Pagan’s credibility been totally discounted at the previous
hearing, but he also had an extensive criminal history and had himself pled nolo contendere to
conspiring with Mr. Rodriguez to possess heroin with intent to deliver, the same offense that was
the 	subject 	of 	Mr. 	Rodriguez’s 	trial—an 	incident 	seemingly 	more 	incriminating 	than
exculpatory.
This Court has said that it “‘will not meticulously scrutinize an attorney’s reasoned
judgment or strategic maneuver in the context of a claim of ineffective assistance of counsel.’”
Hampton v. State, 786 A.2d 375, 382 (R.I. 2001) (quoting Brennan, 764 A.2d at 173). 	The
decisions Mr. Cicilline made that Mr. Rodriguez now contends were objectively unreasonable
and prejudicial are precisely the type of strategic decisions this Court will not second-guess. See
Brennan, 764 A.2d at 173. We deem them to be tactical decisions clearly within the bounds of
what is constitutionally required to constitute effective assistance of counsel.
Conclusion
For the foregoing reasons, we affirm the judgment denying Mr. Rodriguez’s application
for postconviction relief and return the papers in the case to the Superior Court.

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COVER SHEET
TITLE OF CASE: 	Reynaldo Rodriguez v. State of Rhode Island
DOCKET SHEET NO.: 	2006-144-A
COURT: 	Supreme
DATE OPINION FILED: 	February 4, 2008
Appeal from
SOURCE OF APPEAL: 	SuperiorCounty: Providence
JUDGE FROM OTHER COURT: 	Judge Judith C. Savage
JUSTICES: 	Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Plaintiff: 	Susan B. Iannitelli, Esq.
ATTORNEYS:
For Defendant: 	Aaron L. Weisman, Esq.