James Brown v. State of Rhode Island

STATE OF RHODE ISLAND
PROVIDENCE, SC. SUPERIOR COURT
[FILED: August 15, 2023]
JAMES BROWN :
:
VS. : PM-2008-1183
: (P1-1999-3862A)
STATE OF RHODE ISLAND :
DECISION
F. DARIGAN, J. (Ret.) This matter came before the Court on a petition for postconviction
relief in Kent County Superior Court, Associate Justice Francis J. Darigan, Jr. presiding, on May
1, 2023.
I
FACTS AND TRAVEL
The case arises from the murder of Pamela Plante on April 3, 1998 in the City of
Woonsocket. Ms. Plante was found in her second-floor apartment by her mother who had not
heard from Ms. Plante in several days. Ms. Plante was brutally murdered and found partially naked
and bound hands and neck with several cords. She suffered stab wounds to her face and neck and
petechia in her eyes indicated she was alive when the ligatures were applied. Cause of death was
asphyxia due to ligature strangulation and stab wounds to the right side of her neck. Seminal fluid
was found on a rug near the body and in the vaginal cavity, as well as on Ms. Plante’s jeans.
There were no signs of forced entry into the apartment which required two keys to open
the door.
Ms. Plante’s mother told Peter Guerard she intended to go to Ms. Plante’s apartment and
Guerard gave the mother his keys to Ms. Plante’s apartment. Mr. Guerard was the husband of Ms.

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Plante. Ms. Plante and Guerard had a history of violence between them so the initial police
investigation accused him as a possible suspect along with several others.
Mr. Guerard was cleared as a suspect when the DNA sample collected at the scene was
determined to not be his.
Almost one year later, police received information that James Brown (petitioner) was seen
with Ms. Plante the evening before she was killed. A DNA sample which Brown agreed to supply
ultimately proved it was his semen found at the crime scene and in Ms. Plante’s vaginal cavity.
Petitioner was indicted by a Providence County Grand Jury in November of 1999. The
indictment charged Mr. Brown with one count of first-degree murder, one count of first-degree
sexual assault, one count of larceny under $500, and one count of concealment of leased property.
The State filed notice seeking a sentence of life without parole.
The Petitioner was initially represented by John Hardiman, Assistant Public Defender. In
2000, Hardiman was appointed Public Defender and the case was assigned to Assistant Public
Defender John MacDonald who entered the case in September of 2000. At that time, Mr.
MacDonald had been a public defender for six years.
The trial was held before the Honorable John Sheehan. The jury returned a guilty verdict
on all counts on March 28, 2001. On June 11, 2001, Petitioner was sentenced to life imprisonment
without the possibility of parole on Count I, first-degree murder.
The Rhode Island Supreme Court affirmed the commutation on May 9, 2006, see Brown
v. State, 898 A.2d 69 (R.I. 2006).
Petitioner’s petition before this Court was filed on February 28, 2008. It is a pro se petition
alleging ineffective assistance of counsel. Present counsel was appointed to represent Petitioner
on October 4, 2021, succeeding previous counsel.

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II
STANDARD OF REVIEW AND LAW
The postconviction relief statute is found at G.L. 1956 § 10-9.1-1 and provides that one
who has been convicted of a crime may seek collateral review of that conviction based on alleged
violations of his or her constitutional rights. The statute reads as follows:
“(a) Any person who has been convicted of, or sentenced for, a
crime, a violation of the law, or a violation of probationary or
deferred sentence status and who claims:
“(1) That the conviction or the sentence was in violation of the
constitution of the United States or the constitution or laws of this
state:
“(2) That the court was without jurisdiction to impose sentence;
“(3) That the sentence exceeds the maximum authorized by law, or
is otherwise not in accordance with the sentence authorized by law;
“(4) That there exists evidence of material facts, not previously
presented and heard, that requires vacation of the conviction or
sentence in the interest of justice;
“(5) That his or her sentence has expired, his or her probation,
parole, or conditional release unlawfully revoked, or he or she is
otherwise unlawfully held in custody or other restraint; or
“(6) That the conviction or sentence is otherwise subject to collateral
attack upon any ground of alleged error heretofore available under
any common law, statutory or other writ, motion, petition,
proceeding, or remedy; may institute without paying a filing fee, a
proceeding under this chapter to secure relief.
“(b) This remedy is not a substitute for nor does it affect any remedy
incident to the proceedings of the trial court, or of direct review of
the sentence or conviction. Except as otherwise provided in this
chapter, it comprehends and takes the place of all other common
law, statutory, or other remedies heretofore available for challenging

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the validity of the conviction or sentence. It shall be used
exclusively in place of them.” Section 10-9.1-1.
Our Supreme Court has set forth that “an applicant who files an application for post-
conviction relief bears the burden of proving, by a preponderance of the evidence, that such relief
is warranted.” Mattatall v. State, 947 A.2d 896, 898 n.3 (R.I. 2008); Camacho v. State, 58 A.3d
182, 185 (R.I. 2013).
In the instant case, the Petitioner enumerates fifteen (15) instances of alleged ineffective
assistance of counsel as enumerated below.
Specifically, as enumerated in the petition filed by Mr. Brown,
(1) Trial counsel failed to adequately prepare for trial.
(2) Trial counsel failed to meet with their client.
a. Failure to secure client’s authority to engage in the strategy of admitting to certain charged
offenses.
b. Failure to explain the maximum penalties.
c. Failure to adequately explain the offer.
(3) Trial counsel failed to investigate.
(4) Trial counsel failed to research and interview potential witnesses.
(5) Trial counsel failed to locate and interview expert witnesses.
(6) Trial counsel failed to adequately investigate and confront the State’s evidence.
(7) Trial counsel failed to properly challenge the police procedures for arrest, investigation of
the crime scene, and the preservation of evidence.
(8) Trial counsel failed to make a proper motion to exclude evidence.
(9) Trial counsel failed to object to witness testimony.
(10) Trial counsel failed to properly impeach the witnesses.

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(11) Trial counsel failed to maintain their client’s innocence.
(12) Trial counsel failed to object to and request proper jury instructions.
(13) Trial counsel failed to properly argue for lesser included offenses.
(14) Trial counsel failed to present mitigating evidence during the sentencing phase of the trial;
and
(15) The cumulative effect of trial counsel’s failures caused an injurious effect at trial.
Pursuant to § 10-9.1-1, postconviction relief is available to “any person who has been
convicted of a crime and who thereafter alleges either that the conviction violated the applicant’s
constitutional rights or that the existence of newly discovered material facts requires vacation of
the conviction in the interests of justice.” Lamoureux v. State, 93 A.3d 958, 961 (R.I. 2014).
The burden of proving a claim of ineffective assistance of counsel lies with the petitioner.
State v. Cochrane, 443 A.2d 1249, 1251 (R.I. 1982).
Strickland v. Washington, 466 U.S. 668, 687 (1984) provides a two-prong test which must
be applied to claims of ineffective assistance of counsel.
A petitioner must establish that:
(1) His defense counsel’s representation fell below an objective standard of
reasonableness.
(2) That counsel’s performance was so defective as to result in actual prejudice.
Regarding the performance prong, the standard is not what counsel may have done
differently, but rather whether counsel’s decisions were reasonable from counsel’s perspective at
the time. Beardslee v. Woodford, 327 F.3d 799, 807-09 (9th Cir. 2003).

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With respect to the prejudice prong, the petitioner must show a reasonable probability that
but for counsel’s errors the result of the trial would have been different. Strickland, 466 U.S. at
694.
A reviewing court must take into effect the wide variety of circumstances and
considerations and options available to defend a client in a criminal case. The Strickland case
instructs a reviewing court to ensure that judicial scrutiny of the decisions made by trial counsel
must be highly deferential and that there exists a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
In Rice v. State, 38 A.3d 9, 18 (R.I. 2012), our Supreme Court instructs that an examination
pursuant to the Strickland two-prong test must be one of reasonable competency by trial counsel.
Thus, the Court opines, effective assistance of counsel is not the same as errorless representation.
Therefore, a choice of trial tactics and strategy which may appear error in hindsight, does not
constitute constitutionally deficient representation.
To prove ineffective assistance of counsel a petitioner must prove by a fair preponderance
of the evidence that his counsel’s errors “resulted from neglect or ignorance rather than from
informed, professional deliberation.” State v. D’Alo, 477 A.2d 89, 92 (R.I. 1984).
The Court has also stated 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 . . .
when their choices are clearly reasonable and within the bounds of competent representation.”
State v. Brennan, 627 A.2d 842, 851 (R.I. 1993).

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III
DISCUSSION
At the hearing, the Petitioner took the stand and was examined by his attorney. During his
testimony, the Petitioner did not recall how many times Mr. MacDonald or Ms. Gundersen visited
him at the ACI but he opined it was not very often. He testified that his counsel never advised him
that he was facing a sentence of life without the possibility of parole if convicted of murder. Nor
did his counsel ever inform him of an offer of straight life which would have allowed an application
for parole after a period of years.
He was lead through many of the enumerated grounds for postconviction relief contained
in his petition by his hearing counsel.
He recounted in answers to questions of his hearing counsel that Mr. MacDonald did not
challenge Bernie Williams, his friend who informed the Woonsocket Police that the Petitioner was
with Ms. Plante the night before her murder. The Petitioner believed Mr. Williams was a liar. He
testified that his trial counsel did not adequately investigate the bloody footprint at the scene, failed
to attempt to exclude evidence, never discussed the notion of a diminished capacity defense. In
general, the Petitioner agreed with his hearing counsel as he was lead through the enumerated
errors underlying his postconviction relief petition. He did acknowledge that he agreed to have
trial counsel admit before the jury that he in fact did have the VCR which were lesser counts
contained in his indictment because his trial attorney wanted him to agree to this admission.
On cross-examination, the State questioned the Petitioner on the same subjects and
established that Petitioner had a good relationship with Mr. MacDonald and Ms. Gundersen, that
Mr. MacDonald did discuss with the Petitioner the theory that Peter Guerard, the deceased’s
husband and father of two children, committed the crime of murder. He lived near the decedent

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and had been to her apartment. He testified that he wanted Mr. MacDonald to exclude evidence
that he was in Plante’s vehicle even though his girlfriend said she had seen the Petitioner driving
it. The Petitioner admitted that he gave three different statements to the police about his activities
the night of the murder (only two were introduced at trial). Petitioner acknowledged that he gave
access to his trial attorneys to all of his medical records and access to all of his relatives. He also
acknowledged that he had a psychological examination prior to his sentencing. Petitioner denied
his trial attorneys advised him of the meaning of a sentence of life without parole and denies that
he was given an offer pre-trial of a sentence for life imprisonment which would be eligible for
parole consideration after a period of years.
Mr. MacDonald took the stand and testified that he was an Assistant Public Defender for
six years when he was assigned this case upon John Hardiman’s appointment as Public Defender
for Rhode Island.
He testified that at the time of this trial he had been assigned a dozen murder cases, four of
which went to trial. He was assisted by Susan Gundersen, Esquire, an Assistant Public Defender,
whose assignment was to develop the forensics of this case.
A strategy was developed by trial counsel to cast blame on Ms. Plante’s husband Peter
Guerard, which was fully explained and agreed to by the Petitioner. Mr. Guerard was a likely
suspect because he was in a relationship with Ms. Plante and had the keys to her apartment. Mr.
MacDonald testified that Mr. Brown, the Petitioner, agreed not to testify at trial due to his criminal
history and the different statements he had made to the Woonsocket Police during their
investigation.
The State’s attorney then questioned Mr. MacDonald on each of the enumerated grounds
for relief that Petitioner believed were cause for relief.

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Mr. MacDonald’s answers to all questions were straightforward, forthright and appropriate
to the questions propounded by the State and in effect, answered the enumerated alleged errors.
The State, during the course of this examination, introduced 23 exhibits, A to W, which categorized
every step of Mr. MacDonald’s and Ms. Gundersen’s investigation, analysis and development of
trial strategy. They contained, among many others, detailed notes on forensic evidence, trial
preparation strategy notes, theories of defense, analysis of the State’s evidence, jury profile check
list, personal history of Mr. Brown, the Petitioner, comments by family members, sentencing
memorandum, Petitioner’s medical records, and psycho-social assessment and others.
This work represents hundreds of hours of trial preparation, trial strategy, and sentencing
preparation which this Court found to be most comprehensive and significant trial preparation.
On cross-examination, Mr. MacDonald was questioned on the number of times he visited
Petitioner at the ACI and his relationship with the Petitioner.
Like the Petitioner, Mr. MacDonald did not have a recollection of the number of times he
went to the prison; however, like the Petitioner, Mr. MacDonald felt he had a good relationship
with the Petitioner.
He related discussing trial strategy with the Petitioner and recalled no disagreement from
Petitioner with targeting Peter Guerard as the likely perpetrator.
Mr. MacDonald testified that he discussed the possibility of a sentence of life without the
possibility of parole with the Petitioner, prior to the assignment of a trial judge in his case.
MacDonald testified that Mr. Brown had no confusion about the ramifications of that sentence and
clearly did not wish to plead to any sentence.
When Judge Sheehan was assigned to the trial and offered straight life imprisonment, he
met with the Petitioner with Ms. Gundersen at the ACI to discuss that sentence which the Petitioner

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rejected. He adamantly said he was innocent. He did understand that a straight life sentence
carried a possibility of parole.
For these reasons, no diminished capacity defense was contemplated because it required
an admission that the act had been committed.
When questioned about Ms. Plante’s automobile being started with a screwdriver, Mr.
MacDonald brought in an expert witness to testify that this was not possible on the auto in question.
To every question on cross-examination, trial preparation, lesser included offenses, etc.
Mr. MacDonald answered forthright and straightforward to Petitioner’s hearing counsel.
Mr. MacDonald testified he argued to areas of what could be considered reasonable doubt
to the jury. He did ask for a charge of lesser included offenses to Judge Sheehan, which was
refused by him and upheld by the Rhode Island Supreme Court on appeal.
At the hearing and in a post-hearing brief, Petitioner’s counsel averred that Mr. MacDonald
failed to protect the innocence of the Petitioner when he admitted to the jury that the Petitioner did
in fact conceal and sell a VCR belonging to Ms. Plante. While not having a specific recollection
of why he might have done that at trial, Mr. MacDonald explained his general rationale in such
instances was to “gain credibility in front of the jury as to other major issues that particular charge
(VCR) was the least of our concerns at trial, and so if a concession was made it was made with
that strategy in mind.”
IV
DECISION
This Court, in reviewing the testimony of the participants, the numerous exhibits filed in
this case and applying the decisions of the United States Supreme Court, Federal Courts and the
Rhode Island Supreme Court, must come to the definite conclusion that the Petitioner James

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Brown has not succeeded in his burden of proving by a fair preponderance of the evidence that his
trial attorneys John MacDonald and Ms. Susan Gundersen engaged in ineffective assistance of
counsel on behalf of the Petitioner Mr. Brown in his trial before the Honorable John F. Sheehan.
The Court has reached this decision based on its acceptance of the testimony of John
MacDonald, Esquire as true, direct and appropriate in all matters concerning preparation for trial
of this serious capital offense and his execution of the defense of the Petitioner and in his
presentation and preparation for sentencing in this matter.
The Court finds the testimony of the Petitioner in this case to be vague, incomplete and in
some cases contrary to the truth in what transpired between trial counsel and Petitioner, then
Defendant, with regard to the explanations offered by Mr. MacDonald with regard to the meaning
of a sentence of life without parole and the conveying an offer at trial of a disposition for the then
Defendant of a straight life sentence with the possibility of parole.
As the State has averred, any defense counsel “worth his salt” would have been sure to
clearly explain all aspects of such a serious sentence and any offers of a lesser sentence than life
with the possibility of parole.
This case was an extremely difficult one to defend. The Petitioner had made conflicting
statements, his DNA was present at the crime scene and in the body of Ms. Plante.
In this case, Mr. MacDonald was a six-year member of the Public Defender staff and was
involved in the preparation of a dozen murder cases and four murder trials.
Applying the standards of the Strickland case, the defense of the Petitioner was certainly
“objectively reasonable” by this Court’s measure and experience and was “objectively
superlative.”

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This Court, in reaching this decision on the first prong of the Strickland case, need not
begin to explain the second regarding prejudice to the Petitioner.
The Petitioner’s petition for relief on the grounds of ineffective assistance of counsel is
respectfully denied.

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RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: James Brown v. State of Rhode Island
CASE NO: PM-2008-1183 (P1-1999-3862A)
COURT: Providence County Superior Court
DATE DECISION FILED: August 15, 2023
JUSTICE/MAGISTRATE: F. Darigan, J. (Ret.)
ATTORNEYS:
For Plaintiff: Kara Hoopis Manosh, Esq.
For Defendant: Judy Davis, Esq.