Preview:

Supreme Court
No. 2004-212-Appeal.
(KM 00-323)
Danny L. Brown                                                                                          :
v.                                                                                                      :
State of Rhode Island.                                                                                  :
Present:  Williams, C.J., Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Flaherty, for the Court.  A Superior Court jury found Danny L. Brown guilty of
three counts of first-degree sexual assault and three counts of first-degree child molestation.  The
trial justice sentenced him to forty years imprisonment on each count, to be concurrent, with
twenty  years  to  serve  at  the  Adult  Correctional  Institutions,  and  the  other  twenty  years
suspended, with probation.   Brown filed a direct appeal of his convictions, and we affirmed.
State v. Brown, 709 A.2d 465 (R.I. 1998).   On April 12, 2000, Brown launched a collateral
attack on his convictions by filing an application for postconviction relief.  On January 23, 2004,
a Superior Court justice granted Brown’s application and vacated his sexual-assault and child-
molestation convictions.   The hearing justice ruled that Brown’s trial attorney, John H. Brown,
did not provide effective assistance of counsel to such a degree that Brown’s constitutional right
to a fair trial had been violated.   The state timely appealed and Brown filed a cross-appeal.   For
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the reasons set forth in this opinion, we vacate the Superior Court order granting Brown’s
application for postconviction relief and we reinstate the judgments of conviction.
I
Facts and Travel
Brown was indicted for sexually molesting his stepdaughter, Emily.1   During a three-day
trial in the Superior Court, Emily testified that Brown’s abusive conduct toward her began just
after Brown moved in with her mother, Julie, during the summer of 1983.   Emily, who was eight
years old when the abuse began, testified that it started with Brown fondling her breasts and
vaginal area and that it eventually escalated to oral sex and sexual intercourse.   She said that the
abuse continued on a regular basis for over two years, until November 1985, just before Brown
married Julie.
Emily told no one of the abuse while it was ongoing because Brown said “not to tell
anybody.   It was our secret.”2   However, in the fall of 1991, Elizabeth Janikuak, the pastor at the
Living Waters Foursquare Gospel Church in Smithfield, which the family attended, began to
notice that Emily was “manifest[ing] some real angry behavior.”3   Janikuak testified that she
asked Emily why she was so angry, and eventually Emily disclosed to her that Brown had
sexually abused her.  Janikuak testified at trial that she was “very cautious to make sure that what
[Emily] was telling me was the truth because we’re trained to be sure that just because someone
1 The names of the complainant and her mother have been changed to protect their privacy.
2 In 1989, while watching a television show with Julie about the sexual abuse of children, Emily
proclaimed, “that happened to me;” she did not, however, at that time, identify Brown as the
person who abused her.
3 The pastor has been referred to as “Janiak” and “Janikuak” by this Court in the past.   State v.
Brown, 709 A.2d 465, 468 (R.I. 1998); State v. Brown, 690 A.2d 1336, 1337 (R.I. 1997).   The
transcripts and the briefs submitted to us refer to her as “Janikuak” and that is the spelling that
we will use in this opinion.
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makes an allegation does not mean it’s true.”   Janikuak said she informed Brown about Emily’s
accusations  and,  at  first,  he  denied  that  anything  improper  had  occurred  between  them.
Eventually, however, Brown told the pastor that on one occasion Emily approached him while he
was sleeping on the couch, reached into his underwear, and fondled his penis.   At trial, Brown
repeated this version of events.  He told the jury that he first believed it was his wife waking him
up, but that when he realized it was Emily’s hand in his pants, he scolded her.
Janikuak testified that after speaking with Brown, she referred both him and Julie to
Richard Tanguay, M.D., for counseling.4   The couple met with Dr. Tanguay on December 12,
1991, and they discussed a number of issues, including Emily’s allegations of sexual abuse.
Doctor  Tanguay  later  testified  that  during  the  meeting,  Brown’s  demeanor                      “was  one  of
admission, yes, [that] something of a sexual nature did occur between himself and [Emily].”   He
said that Brown “made an admission of sexual abuse against his stepdaughter, and * * * as the
conversation unfolded it was more significant than I had been led to believe in the beginning.”
After the prosecutor asked Dr. Tanguay whether he recalled Brown’s response when the issue of
sexual abuse was raised, the witness testified, “if my memory serves me right, and this is very
typical in sexual abuse cases with the offender particularly, there’s  [sic] seems to be some
minimization, minimizing of what happened.”   Julie also testified that during the counseling
4 Doctor Tanguay was also a pastor at the Upper Room Foursquare Church in Wilmington,
Connecticut;  before  that  he  was  a  minister  for  eighteen  to  twenty  years  in  a  different
denomination.   He said that on three or four occasions, Janikuak had referred individuals to him
for counseling.   Janikuak testified that she referred Brown and Julie to Dr. Tanguay because
“[h]e’s a Christian psychiatrist and former pastor and very good in that.   He works with people
with addictive problems, sexual abuse, and the whole bit.”    Doctor Tanguay described the
meeting with Brown and Julie as a “consult * * * to see if there was any interest in their getting
into therapy for the alleged problem.”
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session with Dr. Tanguay, Brown admitted, in her presence, that he abused Emily “two to three
times in a month.”5
On November 30, 1994, a jury convicted Brown of three counts of first-degree sexual
assault and three counts of first-degree child molestation.   The trial justice sentenced Brown to
concurrent terms of forty years for each count, with twenty years to serve and twenty years
suspended, with probation that would begin when he was released from incarceration.   This
Court affirmed his conviction.6   In April 2000, Brown filed an application for postconviction
relief.7   He included myriad claims for relief, including that his trial attorney, John Brown, did
5 Emily did not fully detail the extent of her abuse until April 7, 1992, when, at a meeting with
Janikuak and Julie, Emily finally disclosed the full degree of Brown’s abuse.   Shortly thereafter,
Julie reported the information to the authorities, and criminal proceedings soon began against
Brown.
6 In a per curiam opinion dated March 5, 1997, a four-justice panel of this Court dismissed
Brown’s appeal on two of the issues he raised but also indicated that the panel was evenly
divided on the remaining four claims of error.   Brown, 690 A.2d at 1336-37.   Consequently, this
Court affirmed the convictions.  Id. at 1337.  Brown immediately moved to reargue his appeal as
soon as a fifth justice was available, and we granted his request for the limited purpose of
examining the four issues that originally had evenly divided this Court.   After reviewing these
issues with a fully constituted court, we ultimately affirmed his conviction.   Brown, 709 A.2d   at
481.
7 Under G.L. 1956 § 10-9.1-1, a defendant may file an application for postconviction relief if he
or she believes that his or her constitutional rights were violated.    The statute provides in
pertinent part:
“(a) Any person who has been convicted of, or sentenced for, a
crime, a violation of 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; * * * 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 in 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
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not provide effective assistance of counsel and that, as a result, his constitutional right to a fair
trial had been compromised.8   Brown based his claim of ineffective assistance on four grounds.
He contended that John Brown:                                                                           (1) did not challenge the sexual-assault charges on statute of
limitations grounds; (2) did not challenge the grand jury indictment as fatally flawed because
Janikuak was allowed to testify in violation of G.L. 1956 § 9-17-23;9 (3) did not file a motion for
a new trial after a reference to Emily receiving counseling appeared in the presentence report;
challenging the validity of the conviction or sentence. It shall be
used exclusively in place of them.”
8  Brown also alleged in his application that the trial justice impermissibly restricted John
Brown’s cross-examination of Janikuak about:                                                            (1) whether she knew that Emily previously
attended counseling; (2) her bias, prejudice, and motive in regard to a lawsuit that Brown’s
cousin filed against her; and                                                                           (3)  when the sexual-assault allegations were reported to law
enforcement.   Brown also alleged that the prosecutor:                                                  (1) withheld the names and addresses of
all of the health care providers from whom Emily sought treatment beginning in June 1983; (2)
obtained a conviction through a “persistent pattern of perjury and deliberate distortion of the
facts;” and  (3) engaged in misconduct during his closing argument.   He contended that the
appellate prosecutor engaged in misconduct by deliberately misleading this Court about when
Brown’s daughters began living with him.  Brown also alleged that the trial justice erred when he
allowed Janikuak and Dr. Tanguay to testify to confidential communications in violation of G.L.
1956 § 9-17-23   and that his appellate counsel provided ineffective assistance when she failed to
raise certain issues on appeal notwithstanding Brown’s request that she do so.
9 At the time of Brown’s trial, § 9-17-23 provided that:
“In the trial of every cause, both civil and criminal, no clergyman
or priest shall be competent to testify concerning any confession
made  to  him  in  his  professional  character  in  the  course  of
discipline enjoined by the church to which he belongs, without the
consent of the person making the confession.   No duly ordained
minister of the gospel, priest or rabbi of any denomination shall be
allowed  in  giving  testimony  to  disclose  any  confidential
communication,  properly  entrusted  to  him  in  his  professional
capacity, and necessary and proper to enable him to discharge the
functions of his office in the usual course of practice or discipline,
without the consent of the person making such communication.”
Section 9-17-23 was amended by the General Assembly in 1997.   The 1997 Reenactment (P.L.
1997, ch.  326,  §  1) substituted  “no member of the clergy” for  “no clergyman” in the first
sentence, substituted  “the communication” for  “such communication” at the end of the last
sentence, and made minor punctuation and stylistic changes throughout the section.
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and (4) did not object when the prosecutor, in his closing argument, used allegedly perjured
testimony  about  the  couple’s  pending  divorce.    Brown  amended  his  postconviction-relief
application to add an additional claim of ineffective assistance of counsel.  In this amendment, he
alleged that John Brown should have asserted the “clergy privilege” set forth in § 9-17-23 during
the trial, and on that basis he should have objected to the testimony of Janikuak and Dr.
Tanguay.10
Because Brown was indigent, the Superior Court appointed attorney Mary June Ciresi to
represent Brown in his quest for postconviction relief.   On January 23, 2003, Ciresi filed a “no-
merit” memorandum and a motion to allow her to withdraw from the case in accordance with
this Court’s holding in Shatney v. State, 755 A.2d 130, 136-37 (R.I. 2000) (articulating the
standards that should govern the actions of appointed counsel who seek to withdraw from a
postconviction-relief  proceeding  after  concluding  that  an  application  is  meritless).    She
concluded that Brown’s application lacked merit because, even though she disagreed with the
manner in which attorney John Brown had handled Brown’s criminal case, she did not believe
his performance met the standard necessary to carry a successful claim of ineffective assistance
of counsel.11    A Superior Court justice reviewed Ciresi’s memorandum and allowed her to
withdraw from the case; Brown proceeded pro se.
10  In  Brown’s  initial  application  for  postconviction  relief,  he  argued  that  the  trial  justice
committed reversible error in violation of § 9-17-23 by allowing Janikuak and Dr. Tanguay to
testify.   In Brown’s amended application, in which he includes the clergy-privilege argument as
part of his ineffective-assistance claim, he argues only that John Brown was ineffective for not
objecting under § 9-17-23.  He does not specifically contend that John Brown was ineffective for
not objecting to the testimony of both Janikuak and Dr. Tanguay.    In light of his initial
application, however, it seems clear to us that that was his intention and we will review the
application accordingly.
11 Ciresi also concluded that Brown’s application was meritless because:                                     (1) this Court already
rejected the claims regarding the cross-examination of Janikuak; (2) the state did not deliberately
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Over the span of the next eleven months, the Superior Court conducted a series of
hearings on Brown’s application for postconviction relief.   Brown presented the testimony of
four witnesses, including John Brown.12    The attorney testified about a number of issues,
including: (1) that he represented Al Brown, Brown’s cousin, and another man, in a lawsuit
against Janikuak; (2) that he did not receive any documents from the Rape Crisis Center about
Emily before the trial, despite the fact that the presentence report revealed that Emily had been in
counseling; (3) that he did not move to dismiss the indictment as time-barred; and (4) that he did
not believe that the clergy privilege applied to Janikuak’s conversations with Brown.
As the postconviction-relief process began to wind its way to a conclusion, the hearing
justice said that she needed a record of Brown’s testimony because many of his comments during
the hearings had not been under oath.  She declared:   “It’s very important and critical in my mind
withhold information from the defense nor did it cause a violation of Brown’s constitutional
rights;                                                                                                    (3) the prosecutor did not engage in prosecutorial misconduct; and  (4) his appellate
counsel did not provide ineffective assistance.
12 Besides John Brown, Brown presented the testimony of: (1) his cousin, Al Brown; (2) his
daughter from a previous marriage, Marie Brown; and (3) the prosecutor during the trial, John
McMahon.   Al Brown testified that he worked on a construction project at Janikuak’s church in
Smithfield, but that after he completed half the work, Janikuak hired a different contractor to
finish the job for less money.   He testified that he never was paid and that he filed a mechanic’s
lien and sued Janikuak to recover payment for his services.   It appears that the purpose of this
testimony was to support Brown’s contention that the trial justice erred when he restricted John
Brown’s cross-examination of Janikuak about the lawsuit and her potential bias; however, we
have already rejected this claim in Brown’s direct appeal.   Brown, 709 A.2d at 473.   The next
witness, Marie, testified about her relationships with Brown, Emily, and Julie, as well as about a
false rape charge that she filed against a former boyfriend when she was fourteen years old.   It
does  not  appear  that  Brown  elicited  Marie’s  testimony  to  demonstrate  John  Brown’s
ineffectiveness, but rather to rebut some facts to which Julie testified at trial, and also to establish
how “easy [it is] to file a false rape charge against somebody.”   McMahon testified to a plethora
of issues, including: alleged inconsistencies between witnesses’ trial testimony and previous
statements, the lawsuit between Al Brown and Janikuak, the Rape Crisis Center records, the
applicability of the clergy privilege, whether a statute of limitations defense applied to the
charges against Brown, whether Julie reported the sexual abuse to the Department of Children,
Youth and Families, and a number of objections that were raised at trial.
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to the decision, especially with regard to ineffective assistance of counsel.”   The hearing justice
then directed Brown to compose a list of questions that he would want an attorney to question
him on in this matter.   Additionally, this colloquy transpired between the hearing justice and
Brown:
THE COURT:   “And you know, don’t forget about the records, the
Rape Crisis records and any representations that were made to you
by counsel concerning that.   Anything your council [sic] may have
said to you with regard to strategy or objections, if—the bolstering
of the testimony issue by the pastor is another issue that I want to
explore, and because you are bringing this action, you realize that,
you know, the confidentiality privilege has now terminated, so
those communications can now be made part of the record.   So I
want you to think really hard about that, not so much about the
statute of limitations issue because that’s not where ineffective
assistance comes in.
BROWN:   “Excuse me?
THE COURT:                                                                                             “It’s not so much like the statute of limitations
issue, I don’t really think you need to focus on I need to focus on
that counsel issue.   And I know you’ve read it a lot of times, but
reread the Supreme Court decision with reference to the rulings
and the portions of the transcript where your lawyer was making
objections, for example, with the bolstering issue.  There were four
different grounds that they ruled—(interrupted)
BROWN:   “That they split on?
THE COURT:                                                                                             “No.    Four different grounds that the majority
opinion, with reference to the one objection, that they cited and—
(interrupted)
BROWN:                                                                                                 “I  didn’t  raise  none  of  those  issues  in  the  post
conviction relief.
THE COURT:   “You did indirectly.   You did indirectly.   But I’m
concerned—I’m zeroing in on ineffective assistance, on the issues
that the majority opinion upheld the trial justice, the records, the
testimony of the pastor—(interrupted)
BROWN:   “Which records, the medical records?
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THE COURT:   “Both.   You told me, not under oath, and not that I
am doubting this, but for purposes of the procedure, I need to have
you under oath, the Kent County records were subpoenaed, and
you got that—only that one page, which looked to me like an
attempted suicide over the argument about the book, the Rape
Crisis—this is another thing in the presentence report, Mr. Brown,
after, that was the first time I believe that you learned that she had
had counseling for four months prior to the trial, is that correct?
BROWN:   “Yes.”
At a subsequent hearing, Brown answered thirty-eight questions that the hearing justice
posed to him from a list that he had compiled, as well as other questions that the hearing justice
asked on her own initiative.   In a written decision, filed on January 23, 2004, the hearing justice
granted Brown’s application for postconviction relief.   In her decision, she reviewed this Court’s
opinion from Brown’s appeal, and noted that “some of [Brown’s] claims mimic issues raised in
his direct appeal.”   After outlining those claims, the hearing justice found that John Brown was
ineffective in his representation of Brown at his trial.   However, she based her finding on a
number of issues that were not included in either Brown’s original application or the amendment
thereto and that were not addressed during the course of the postconviction hearings.   Instead,
the hearing justice found that Brown did not receive effective assistance of counsel because John
Brown:   (1) failed to object to Janikuak’s testimony about her training concerning discernment of
truth, which the hearing justice said constituted impermissible bolstering;  (2) failed to raise
timely discovery objections and/or press for production of notes that Janikuak testified that she
took during her meetings with Emily and Brown, notes that the hearing justice concluded “may
have been critical material in this credibility case;”                                                 (3)  failed to object to Dr. Tanguay’s
testimony  that  he  thought  Brown  was  in  denial,  reasoning  that  that  testimony  constituted
bolstering or vouching, essentially offering “expert” opinion regarding the credibility of both
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Emily and Brown; (4) called Brown’s daughter13 as a witness who testified that Emily told her
that Brown molested her; and (5) failed to review police reports and witness statements with
Brown before his trial.   The hearing justice concluded:                                                “This Court is of the opinion that the
fairness of [Brown’s] trial was severely compromised by the lack of effective representation,
which is his Constitutional entitlement.   The convictions are the product of an infirm process
resulting in an extinguishment of [the applicant’s] core Constitutional rights.”   On this basis, the
hearing justice granted Brown’s pro se application for postconviction relief.14
The state argues that the hearing justice erred when she impermissibly inserted herself
into the adversarial process and granted Brown’s application based on issues:                           (1) that this Court
previously rejected in Brown’s direct appeal; (2) that Brown did not raise in either his initial or
amended application; (3) that were not supported by facts in the record; and (4) that the parties
never litigated.  Brown filed a cross-appeal, in which he raises a number of issues that seem to fit
into one of two categories.   They are: (1) issues that Brown argues may have contributed to the
hearing justice’s finding of ineffective assistance; and                                                (2)  issues that Brown raised in his
application but that the hearing justice did not address in her decision, which he argues was error.
He asks this Court to grant his cross-appeal on either of these two alternate grounds.
13 Brown points out that the Superior Court decision incorrectly referred to the witness as
Emily’s sister; however, she was, in fact, Brown’s daughter.   This confusion may have arisen
because Emily’s sister also testified at trial; nevertheless, it is clear from the Superior Court
decision, and we have no doubt, that the hearing justice was referring to the testimony of
Brown’s daughter and not Emily’s sister.
14 The hearing justice issued her decision on January 23, 2004.   The state filed its notice of
appeal on February 10, 2004, and Brown filed his cross-appeal on February 23, 2004.   However,
an order granting Brown’s application for postconviction relief was not entered until August 4,
2005.   We repeatedly have said that we treat premature appeals as timely filed.   See State v.
McManus, 950 A.2d 1180, 1181 n.2 (R.I. 2008) (mem.) (citing State v. Hesford, 900 A.2d 1194,
1197 n.3 (R.I. 2006)).   Further, an order that grants an application for postconviction relief is
considered a final judgment for purposes of appeal to this Court.  See §§ 10-9.1-7, 10-9.1-9.
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II
Standard of Review
The Sixth Amendment to the United States Constitution and article 1, section 10, of the
Rhode Island Constitution provide that in all criminal prosecutions, the accused shall enjoy the
right to the assistance of counsel in his or her defense.                                             “In accordance with G.L. 1956 § 10-9.1-
1(a)(1), postconviction relief is available to a defendant who demonstrates that his conviction or
sentence violated his rights under the state or federal constitution.”   Bryant v. Wall, 896 A.2d
704, 706 (R.I. 2006). “[A]n applicant bears the burden of proving, by a preponderance of the
evidence, that he is entitled to postconviction relief.”   Chalk v. State, 949 A.2d 395, 398 (R.I.
2008) (quoting Burke v. State, 925 A.2d 890, 893 (R.I. 2007)). “When this Court reviews a
hearing justice’s determination with respect to an application for postconviction relief, we will
not disturb the findings of the hearing justice ‘absent clear error or a showing that the [hearing]
justice overlooked or misconceived material evidence.’”    Thornton v. State, 948 A.2d  312,
316 (R.I. 2008) (quoting State v. Thomas, 794 A.2d 990, 993 (R.I. 2002)); see also Gonder v.
State, 935 A.2d 82, 85 (R.I. 2007).   However, “this Court must review de novo the ultimate
question of whether a defendant’s constitutional rights were infringed * * *.” Kholi v. Wall, 911
A.2d 262, 264 (R.I. 2006) (quoting Brown v. State, 841 A.2d 1116, 1124 (R.I. 2004)).                  “Finally,
findings of historical fact, and inferences drawn from those facts, will still be accorded great
deference by this Court, even when a de novo standard is applied to the issues of constitutional
dimension.”  Gonder, 935 A.2d at 85 (quoting Thomas, 794 A.2d  at 993); see also  Sosa v. State,
949 A.2d 1014, 1016 (R.I. 2008); Ouimette v. State, 785 A.2d 1132, 1135 (R.I. 2001).
This Court has adopted the standard set forth by the United States Supreme Court in
Strickland v. Washington,  466 U.S.  668  (1984), to determine when a defendant should be
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granted relief from a conviction because of ineffective assistance of counsel.15   That standard
makes use of a two-pronged test.   Id. at 687.   First, the applicant must prove that the trial
counsel’s performance was so deficient that he or she was not functioning as counsel.   Id.               “This
prong can be satisfied ‘only by a showing that counsel’s representation fell below an objective
standard of reasonableness.’”    Rodriguez v. State, 941 A.2d  158,  162 (R.I.  2008)  (quoting
Brennan v. Vose, 764 A.2d 168, 171 (R.I. 2001)).   Second, the applicant must demonstrate that
he or she was prejudiced by the deficient performance to such a degree as “to amount to a
deprivation of the applicant’s right to a fair trial.”   Id. (quoting Brennan, 764 A.2d at 171).   This
second 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.’” Id. (quoting Strickland, 466 U.S. at 694).                                              “The benchmark for judging any
claim  of  ineffectiveness  must  be  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.”  Tarvis v. Moran, 551 A.2d 699, 700 (R.I. 1988) (quoting Strickland, 466 U.S. at 686).
15 This Court has noted that rarely does a defendant who has been represented by private counsel
succeed in later questioning, in postconviction proceedings, the ineffectiveness of the trial
counsel that the defendant chose to represent him or her at trial.   Larngar v. Wall, 918 A.2d 850,
856 (R.I. 2007); see also Hassett v. State, 899 A.2d 430, 434 n.3 (R.I. 2006) (“when a person
selects his or her own attorney, any alleged deficiencies seldom amount to an infringement of
one’s constitutional rights”).                                                                            “We have also indicated that the trial performance of a privately
retained defense attorney cannot be said to have infringed a defendant’s constitutional rights
‘unless the attorney’s representation [was] so lacking that the trial [had] become a farce and a
mockery of justice * * *.’”  Larngar, 918 A.2d at 856 (quoting Heath v. Vose, 747 A.2d 475, 477
n.1 (R.I. 2000)).  Despite the fact that Brown retained private counsel, we believe that even when
analyzing this case under the two-pronged test enunciated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), Brown cannot meet his burden. Therefore, we
do not need to address whether John Brown’s representation was so lacking that Brown’s trial
became a farce and a mockery of justice.
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III
Analysis
The critical issue Brown raised in his application for postconviction relief is whether his
trial counsel deprived him of his right to effective assistance of counsel.16   Review of the order
granting Brown’s application for postconviction relief involves mixed questions of law and fact
that will involve constitutional questions.  Accordingly, we review the record de novo.  See State
v. Campbell, 691 A.2d 564, 569 (R.I. 1997) (citing Ornelas v. United States, 517 U.S. 690, 697
(1996) (holding that “[i]ndependent review [of constitutional issues] is therefore necessary if
appellate courts are to maintain control of, and to clarify the legal principles”)).
A
Superior Court Decision
The state contends that the hearing justice failed to address the Strickland standard when
she determined that Brown was deprived of his constitutional right to a fair trial.   We agree that
the hearing justice could have been more articulate when she applied the two prongs of the
Strickland test.   However, she did say that “[t]his Court is of the opinion that the fairness of his
trial  was  severely  compromised  by  the  lack  of  effective  representation,  which  is  his
16 Brown cited ten grounds in his application for postconviction relief.   In State v. Carvalho, 450
A.2d 1102, 1104 (R.I. 1982), this Court held that “a defendant generally may not divorce himself
from responsibility for his counsel’s failure to present issues on direct appeal, absent a claim that
counsel’s failure to raise such issues resulted in a denial of the defendant’s right to effective
assistance of counsel.”   Any other issues forming the basis for a defendant’s application for
postconviction relief that were available for direct review and not raised are deemed waived.  Id.;
see also G.L. 1956 §10-9.1-8.    In Brown’s application, he claimed that his appellate counsel was
ineffective because she failed to raise the issue of the Rape Crisis Center records and other issues
on direct appeal.   We see no merit in this argument because “appellate counsel * * * need not
(and should not) raise every nonfrivolous claim, but rather may select from among them in order
to maximize the likelihood of success on appeal.”   Chalk v. State, 949 A.2d 395, 399 (R.I. 2008)
(quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)).   Further, Brown also alleged that his trial
counsel was ineffective for failing to file a motion for a new trial when he learned from the
presentence report that Emily may have attended counseling at the Rape Crisis Center, and we
will address this issue in this context.   Therefore, because the other claims that Brown raised in
his application were not raised in his direct appeal, they are considered waived.
- 13 -




Constitutional entitlement.   The convictions are the product of an infirm process resulting in an
extinguishment of [the applicant’s] core Constitutional rights.”  It is true that G.L. 1956 § 10-9.1-
7 requires a court to “make specific findings of fact, and state expressly its conclusions of law,
relating to each issue presented.”   But, the hearing justice could not have ruled that Brown’s
constitutional rights were violated without first determining that John Brown’s performance was
deficient and that that deficiency did in fact prejudice Brown’s defense.
The hearing justice discussed a number of factors that contributed to her finding of
ineffective assistance.  She reviewed the trial as a whole and did not parse each infirmity that she
saw with respect to John Brown’s representation.   This Court previously has said that a single
instance of failure or omission by counsel is unlikely to meet the Strickland threshold.   Heath v.
Vose, 747 A.2d 475, 479 (R.I. 2000).   Instead, when reviewing a claim of ineffective assistance,
we look at the entire performance of counsel, and when that performance is deficient in a number
of  respects,  then  the  possibility  is  greater  that  an  accumulation  of  serious  shortcomings
prejudiced the defendant to a sufficient degree to meet the Strickland requirement.   Id.                 (holding
that privately retained counsel’s errors, when viewed in their entirety were so deficient as to
deprive a defendant of his rights to effective assistance of counsel and to a fair trial).   But, after
conducting a de novo review of the evidence in the record before us, we conclude that even
viewing John Brown’s performance at trial in its entirety, his representation of Brown did not
amount to ineffective assistance of counsel.
“An applicant who files an application for postconviction relief bears the burden of
proving, by a preponderance of the evidence that such relief is warranted.”   Mattatall v. State,
947 A.2d 896, 901 n.7 (R.I. 2008); see also Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007);
Estrada v. Walker, 743 A.2d 1026, 1029 (R.I. 1999); Jacques v. State, 669 A.2d 1124, 1129 (R.I.
- 14 -




1995).    In our opinion, Brown failed to present sufficient evidence to support the hearing
justice’s finding that John Brown was ineffective in his representation of Brown to the extent
required to meet the threshold established in Strickland.   That is so because, even if we agreed
with the hearing justice that John Brown’s performance was seriously lacking, we do not agree
that  his  shortcomings,  whether  reviewed  individually  or  collectively,  prejudiced  Brown’s
defense.  As the Supreme Court said in Strickland:
“It is not enough for the defendant to show that the errors had
some  conceivable  effect  on  the  outcome  of  the  proceeding.
Virtually every act or omission of counsel would meet that test, * *
* and not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding.”
Strickland, 466 U.S. at 693.
Furthermore, the Court said:
“The defendant must show that there is a reasonable probability
that,  but  for  counsel’s  unprofessional  errors,  the  result  of  the
proceeding would have been different.   A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Id. at 694.
The five instances that the hearing justice found culminated in ineffective assistance of counsel
now will be discussed in turn.17
1
Janikuak’s Testimony
The hearing justice first found that Janikuak’s testimony concerning her “discernment of
truth,” amounted to a clear endorsement of Emily’s testimony.    The statement in question
concerned Janikuak’s reaction to Emily’s allegations of sexual abuse by her stepfather.
17  We agree with the state that many of the alleged errors that the hearing justice found
contributed to her finding of ineffective assistance were not raised by Brown in his application
nor did the parties address these potential issues during the postconviction hearings in the
Superior Court; and instead, the hearing justice raised them sua sponte in her decision.  However,
given the impact of our decision today, to reinstate Brown’s judgments of conviction, we believe
it is necessary to discuss these issues as if they had been raised properly.
- 15 -




PROSECUTOR:   “Upon learning this information, what was your
reaction? What was your response?
JANIKUAK:   “As to what she said to me?
PROSECUTOR:   “Yes, without saying what she said.
JANIKUAK:   “I was very cautious to make sure that what she was
telling me was the truth because we’re trained to be sure that just
because someone makes an allegation does not mean it’s true.”
The hearing justice said that “[t]he trial counsel should have specified that his objection to the
material was founded on impermissible bolstering.”   However, the hearing justice should not
have revisited this issue during the course of Brown’s collateral attack on his conviction.   In
Brown’s  direct  appeal,  we  rejected  his  argument  that  Janikuak’s  testimony  constituted
impermissible bolstering.  We held that Brown did not preserve the issue for appeal because John
Brown failed to raise a specific objection with the trial justice.   At first blush, this would appear
to support the hearing justice’s conclusion that this error formed a part of the mosaic with respect
to John Brown’s ineffective representation.   But, this Court did not stop with the waiver issue.
Indeed, we concluded that even if the testimony had been objected to properly, and thus
preserved for appeal, Janikuak’s testimony was not impermissible bolstering because, “[t]aking
the pastor’s statement in the context of her entire testimony, we also believe it is clear that she
was not attempting to bolster complainant’s credibility, nor would a reasonable jury have so
construed her testimony.”  Brown, 709 A.2d at 479.
During the proceedings for postconviction relief, the hearing justice found that John
Brown’s failure to object to this testimony at trial contributed to her conclusion that he was
ineffective.   However, to deduce that John Brown was deficient for failing to object to this
testimony, the hearing justice first had to find that it constituted impermissible bolstering.   The
hearing justice said, “[t]he pastor’s statement concerning her ‘training’ regarding discernment of
- 16 -




truth constituted, in this Court’s opinion, clear endorsement of the victim’s testimony.”   Given
that this Court found the bolstering issue to be without merit, then John Brown’s failure to
specify that his objection was based on impermissible bolstering cannot be considered ineffective
assistance because no prejudice could result from such an omission.
Brown asks this Court to reconsider its previous ruling on this issue in light of additional
evidence that he says was considered by the hearing justice that was not available to this Court
when it decided the direct appeal.  Specifically, the hearing justice noted that:
“Additionally, the very day Janikuak testified against petitioner she
was featured in the Channel  12 evening news for performing a
miracle by laying her hands on a crippled woman who had not
walked in ten years.   In fact, Mr. Brown viewed the report that
very evening with his attorney.   Yet, nowhere in the record is any
request by defense counsel to poll the jurors.”
Brown contends, and the hearing justice apparently agreed, that this additional evidence added to
the risk that the jury would hold Janikuak’s testimony in high esteem because she was covered
favorably by a local television news station.  However, this new information does not change the
fact that this Court ruled that Janikuak’s testimony was not bolstering.   Our decision in Brown’s
direct appeal did not hinge on whether Janikuak’s testimony would be given any heightened
import because of her stature in the community; rather, it was because we opined that the
specifics of her testimony did not constitute bolstering.  This Court concluded that:
“Significantly, a close look at Janikuak’s overall testimony on this
point reveals that the pastor herself could not determine whether
complainant (in her allegations) or defendant (in his denials) was
being truthful.   And it also highlights the fact that the pastor was
merely  attempting  to  mediate  this  family  crisis  while  moving
cautiously  in  light  of  the  serious  nature  of  the  allegations.
Accordingly we conclude that Janikuak’s overall testimony could
not have been reasonably perceived by the jury as vouching for the
credibility of complainant’s sexual-abuse allegations.”    Brown,
709 A.2d at 480.
- 17 -




In other words, because our determination that Janikuak’s testimony was permissible was based
on the content of her testimony and not on who she was, her appearance on the local television
news would have had no impact on our decision.
2
Janikuak’s Notes
The hearing justice also found that John Brown’s failure to obtain certain handwritten
notes that Janikuak had made during meetings that she had with Emily and Brown contributed to
her determination that John Brown had provided ineffective representation during the trial.
During Brown’s trial, Janikuak was cross-examined about these notes and she described them as
“scribbly notes” that she took in the course of her discussions with Brown.   The hearing justice
determined that John Brown was ineffective because he “failed to raise a discovery objection
and/or to press for production of what may have been critical material in this credibility case.”
In his response to the state’s appeal, Brown contends that “[t]here was simply no reason not to
try to obtain the notes.”   Although we might agree that John Brown may have been deficient
because he failed to press for the production of the notes, this alone does not end our inquiry into
whether his representation resulted in ineffective assistance of counsel.   We cannot escape the
conclusion that there is nothing in the record that would allow us to conclude that John Brown’s
failure to compel production of Janikuak’s notes prejudiced Brown in any way.   The notes never
were  produced,  even  at  the  postconviction-relief  proceeding,  and  the  hearing  justice’s
supposition that Janikuak’s notes “may have been critical material” is insufficient to demonstrate
the necessary prejudice to Brown that is needed to meet Strickland’s second prong.   In our
opinion, the hearing justice erred when she speculated about the importance and assumed impact
of the pastor’s notes.
- 18 -




3
Doctor Tanguay’s Testimony
The hearing justice next found that John Brown was ineffective because he failed to
object to Dr. Tanguay’s testimony about his counseling session with Brown on the grounds that
Tanguay, who said that he had “dealt with an awful lot of sex offenders,” offered what amounted
to expert testimony.   Doctor Tanguay further testified that it “is very typical in sexual abuse
cases with the offender particularly, there’s [sic] seems to be some minimization, minimizing of
what happened.”   The hearing justice noted that John Brown compounded his failure to object to
this material by his own cross-examination.   The following exchange between John Brown and
Dr. Tanguay occurred during the trial:
JOHN BROWN:   “In your meeting with Mr. Brown, you discussed
[Emily] and his interaction with [Emily]?
DOCTOR TANGUAY:   “Yes.
JOHN BROWN:   “Mr. Brown never stated anything about having
sexual intercourse with [Emily], did he?
DOCTOR TANGUAY:   “Not to my knowledge.  I don’t recall that
detail.  I know it’s a very serious detail, but I don’t recall that—
JOHN BROWN:   “Detail?
DOCTOR  TANGUAY:                                                                                   “Yeah,  but  there  was  sexual  contact,
abuse.
JOHN BROWN:   “I’m sorry.   I didn’t mean to interrupt you, Mr.
Tanguay.    Didn’t Mr. Brown, in fact, inform you as regards a
situation wherein [Emily] had come to him and touched him?
DOCTOR TANGUAY:   “I don’t recall that.
JOHN BROWN:   “That’s quite possible?
DOCTOR TANGUAY:   “It’s possible, but that would have been
part of the denial pattern.   I think that’s the way I would have seen
it, I mean.
- 19 -




JOHN  BROWN:                                                             “The  only  information—Well,  strike  that.
Besides what you were informed by these two individuals, did you
have any other information available to you prior to your speaking
with Danny Brown and [Julie]?
DOCTOR TANGUAY:   “Only possibly a conversation.   I’m sure
there  was  a  conversation  with                                        [Janikuak]  when  she  made  the
referral, and as I said, I knew when the couple came up what it was
in regard to.
JOHN BROWN:   “You would have considered Mr. Brown having
stated to you that there was an incident wherein [Emily] had come
to him and touched him a denial?
DOCTOR TANGUAY:   “I believe that what was going on, as I
recall it, was that there was a denial pattern going on, and that
would be very typical of that type of an offense, that  ‘I was
seduced,’ or—I have dealt with an awful lot of sex offenders, and
that would be to me, I would wonder about that and probably
would have confronted that.
JOHN  BROWN:                                                             “When  you  use  the  word  denial,  am  I  to
understand you correctly that you perceive that the individual has
committed an act in your mind for which they are not claiming up
to?
DOCTOR  TANGUAY:                                                         “Total.    They’re  not  claiming  total
responsibility, or the extent of the effect.   It was like something
like, well, that was no big deal, or something; whereas to the child
it would be a very big deal[.]  So, that type of confrontation is what
typically goes on.   I’ve been told by sex offenders that they have
been seduced by a two year old, and that type of thing.   That’s
what I’m saying.   And I don’t recall the exact details of it and of
the conversations, it’s three years ago.   But I do recall that there
was an admission of guilt, and when we say denial, it doesn’t mean
denial that he did it; it means a minimization, minimizing either the
effect, or what happened, or—
JOHN BROWN:                                                              “So, even Danny Brown telling you outright
about the touching incident would still be, no matter what he stated
to you, considered a denial?
DOCTOR TANGUAY:   “Not necessarily, unless, uh, unless—no,
I’m not understanding that this would be considered denial.   Let’s
make it a ‘for instance.’   If someone tells me, ‘Yes, I had sex with
- 20 -




this child, but she seduced me,’ that is typical denial pattern of the
sex offender, and what I would do is I would—I suppose that’s a
possibility, that’s within the realm of possibility.
JOHN BROWN:   “I don’t want to talk about possibility.   I want to
talk about this particular meeting with my client, Danny Brown.
DOCTOR TANGUAY:   “I do not recall.   What I recall is that he
made an admission of sexual abuse against his stepdaughter, and it
was as the conversation unfolded it was more significant than I had
been led to believe in the beginning.
JOHN BROWN:   “When you say you were led to believe in the
beginning, that was based on what you were informed by Elizabeth
Janikuak?
DOCTOR TANGUAY:   “And by him in the beginning; ‘Yes, we
did have some sexual contact.’
JOHN BROWN:   “And, are you saying that [Emily] at eight years
of age having come up and touched my client, you have constituted
being sexual abuse?
PROSECUTOR:   “Objection.
DOCTOR TANGUAY:   “Well, yes, I would, yes.
JOHN BROWN:   “I have no further questions.”
The hearing justice found that “[t]he failure to object to this material, and the elicitation of it by
defense  counsel,  constitutes  ineffective  representation,”  because  Dr.  Tanguay’s  testimony
proffered  ‘“expert’ opinion concerning sexual abuse and the defendant’s credibility,” which
constituted impermissible bolstering.
Before this Court, Brown contends that the hearing justice correctly ruled that this was an
error of sufficient magnitude to support his claim of ineffective assistance of counsel because:
(1) Dr. Tanguay never was qualified as an expert; (2) there was no foundation establishing the
basis of his opinion; and (3) there is no indication that Dr. Tanguay’s testimony would have
survived a challenge based on a failure to satisfy the standard for the admissibility of scientific
- 21 -




expert testimony.   The state argues that it had no reason to question John Brown about his
decision not to object to portions of Dr. Tanguay’s testimony or the rationale behind his
approach to Dr. Tanguay’s cross-examination because the issue was not raised in Brown’s
application  nor  was  it  brought  to  light  during  his  questioning  of  John  Brown  at  the
postconviction-relief hearing.   The state argues that it should at least have the opportunity to
inquire of John Brown on this issue.   We, however, believe this is unnecessary for us to dispose
of the issue.  While we are mindful of the fact that Brown proceeded pro se in his application for
postconviction relief, and that “[p]ro se litigants are often granted greater latitude by the court, *
* * they ‘are not entitled to greater rights than those represented by counsel.’”   Jacksonbay
Builders, Inc. v. Azarmi, 869 A.2d 580, 585 (R.I. 2005) (quoting Gray v. Stillman White Co.,
522  A.2d  737,  741  (R.I.  1987)).    Brown has failed to meet his burden of proving by a
preponderance of the evidence that his application should be granted.   He never presented any
evidence concerning John Brown’s failure to object to Dr. Tanguay’s testimony.   Furthermore,
even if Brown had presented some evidence on this issue and as a result we were to conclude
that John Brown was deficient in this regard, there is no evidence that Brown was prejudiced by
this  deficiency  because  there  was  other  compelling  evidence  of  Brown’s  guilt  beyond  a
reasonable doubt.  As this Court said during Brown’s direct appeal:
“Most tellingly, [Brown] admitted at trial that his stepdaughter had
touched  him  sexually.    Even  more  damning  were                                                     [Brown’s]
admissions to Dr. Tanguay, in the presence of [Emily’s] mother.
At trial the mother testified that [Brown] told Dr. Tanguay in her
presence that he had touched the girl ‘[t]wo to three times in a
month’ when Dr. Tanguay pointedly asked him whether there had
ever been any sexual abuse.   Indeed, [Brown] conceded on the
witness  stand  that  he  had  been  referred  to  Dr.  Tanguay  for
counseling ‘because of what happened between me and [Emily].’”
Brown, 709 A.2d at 475.
- 22 -




Additionally, Emily testified at trial about the abuse visited upon her.   There was a plethora of
evidence from which the jury could conclude that Brown was guilty beyond a reasonable doubt;
this alone prevents us from reaching a conclusion that any potential errors by John Brown
prejudiced Brown’s defense.
4
Brown’s Daughter’s Testimony
After discussing Dr. Tanguay’s testimony in detail, the hearing justice said that John
Brown inexplicably called Brown’s daughter, Angela, as a witness.   Angela testified that Emily
told her that Brown molested her.   The hearing justice said that “[i]t is inconceivable to this
Court that any competent counsel would employ such a strategy.”   But during the proceedings
for postconviction relief, neither the parties nor the hearing justice elicited any evidence about
this issue because Brown did not include it in his application as an issue in which he alleged that
John Brown was ineffective.   However, after reviewing the record, we are comfortable that even
if he had included this issue in his application, the claim lacks merit because John Brown made a
tactical decision to call Angela as a witness.   Because  “[i]t is well established that tactical
decisions  by  trial  counsel,  even  if ill-advised, do  not  by  themselves  constitute ineffective
assistance of counsel,” Vorgvongsa v. State, 785 A.2d 542, 549 (R.I. 2001) (citing Toole v.
State, 748 A.2d 806, 809 (R.I. 2000)), even if we agreed with the hearing justice’s declaration
that it was unthinkable to elicit testimony from Brown’s daughter that she did not believe Emily,
we cannot agree that such a decision justified a finding of ineffective assistance of counsel.
First, Angela testified only after Emily had testified that she told Angela about the abuse.
Second, Angela testified that she did not believe Emily’s testimony and that Emily had displayed
no facial expression when she disclosed the abuse.   Brown maintains that “[o]ne is hard pressed
to imagine that a jury would place much weight on a statement that a daughter did not believe
- 23 -




her father’s accuser.”   However, the testimony indicates to us that the attorney attempted to cast
doubt on the victim’s credibility by offering Angela’s testimony.   In his closing argument he
said:
“You heard Angela.   Angela came and spoke before you, Danny
Brown’s daughter.   She stated that she had a good, reasonably
good relationship with Danny.   She had been in Danny’s presence
alone and always felt it was a safe environment.   She also stated as
to the circumstances under which [Emily] had informed her.   If
you recall, she said [Emily] said this, without showing emotion.”
The hearing justice criticized Brown’s strategy concerning Angela’s testimony; however, even if
this strategy was ill-advised (about which we express no opinion), the hearing justice nonetheless
erred when she found that this tactical decision contributed to Brown’s deprivation of his right to
effective assistance of counsel.
5
Police Reports and Witness Statements
The hearing justice also found that John Brown was ineffective because he did not review
all the police reports, witness statements, and other discovery materials with Brown before his
trial.  Brown testified at the postconviction-relief hearing that:
“I didn’t start receiving discovery from Attorney Brown until after
I was in prison for a year at the maximum security.   I didn’t even
see any of the motions.  The only thing he gave me before trial is a
copy of the Grand Jury transcripts.   I never even had a copy of the
police report until after I was convicted and in jail for a year.”
However, Brown also testified that during a meeting in John Brown’s office, his attorney
let him read a few of the witnesses’ statements; nevertheless, he continued to maintain that the
only copies of any material he received before his trial were the grand jury transcripts.  When she
granted Brown’s application, the hearing justice said:
“The first time Mr. Brown saw any police report was after he had
been sentenced and in jail for one year.   It is unthinkable that
- 24 -




effective counsel would not exhaustively review with an accused
all police reports and witness statements well in advance of trial to
determine if one should go to trial or negotiate a plea.”
Although Brown testified that he did not receive copies of the discovery motions or police
reports prior to his trial, there is sparse evidence in the record to support a conclusion that John
Brown failed to review the police reports, witness statements, and other discovery with his client.
In fact, there is evidence in the record to the contrary—that John Brown did indeed review these
materials with his client.   John Brown testified that he remained in constant contact with Brown
throughout the criminal proceedings, had many meetings with his client, and was actively
involved in the discovery process based on input he received from Brown.
It is our opinion that the hearing justice erred when she found that John Brown was
deficient in this regard because both men testified that the lawyer did review discovery materials
with his client.    Moreover, similar to our analysis of Dr. Tanguay’s testimony, even if we
assumed  that  John  Brown  failed  to  properly  review  discovery  materials  with  Brown,  an
assessment not supported by the record, there is no evidence that this deficiency prejudiced
Brown’s defense.
Brown concedes that the hearing justice did not make a finding as to how any failure to
review discovery materials prejudiced him.   Brown argues that the hearing justice reviewed all
the areas where she believed John Brown misstepped when she decided that the aggregate of his
shortcomings prejudiced Brown to such a degree that his constitutional rights were violated.
That conclusion, however, must have an adequate foundation in the  record  because  “[a]n
applicant who files an application for postconviction relief bears the burden of proving, by a
preponderance of the evidence, that such relief is warranted.”   Mattatall, 947 A.2d at 901 n.7.
Brown’s task is to demonstrate that John Brown ‘“made errors so serious that counsel was not
- 25 -




functioning as  “the counsel” guaranteed  [Brown] by the Sixth Amendment,’ and that  ‘the
deficient performance prejudiced the defense [and] deprive[d] [Brown] of a fair trial, a trial
whose result is reliable.’”  State v. Brouillard, 745 A.2d 759, 768 (R.I. 2000) (quoting Strickland,
466 U.S. at 687).  The record before us is simply devoid of evidence that would demonstrate that
John Brown’s alleged errors, whether viewed individually or collectively, prejudiced Brown’s
defense to that degree and deprived him of a fair trial.18
B
Brown’s Cross-Appeal
In Brown’s cross-appeal, he argues that we can affirm the Superior Court order granting
his application for postconviction relief based on alternate grounds, even if we determine that the
hearing justice did not rely on them when she found ineffective assistance.   It is well settled that
this Court can affirm a decision on different grounds from those relied upon by the lower-court
justice.   See, e.g., State v. Vocatura, 922 A.2d 110, 116 (R.I. 2007) (“this Court may uphold a
trial  justice’s  decision                                                                              ‘even  though  the  specific  grounds  relied  upon  by  the  justice  were
erroneous’”) (quoting State v. Froais, 653 A.2d 735, 738 (R.I. 1995)); State v. Nordstrom, 529
A.2d 107, 111 (R.I. 1987) (“This [C]ourt on appeal is free to affirm a ruling on grounds other
than those stated by the lower-court judge.”).   In this case, however, it is our opinion that the
record is insufficient to provide traction for a holding that Brown was deprived of his right to
effective assistance of counsel.  Therefore, Brown’s cross-appeal is denied.
18 We need not address the other issues that Brown contended contributed to John Brown’s
ineffective assistance.   The hearing justice did not rely on them and we conclude that they are
without merit.
- 26 -




1
Relationship Between Janikuak, Brown, and Al Brown
The hearing justice discussed the relationship between Janikuak, Brown, and Al Brown
and said:                                                                                                   “The credible evidence, both documentary as well as testimonial, which emerged at
hearing, proves that Pastor Janikuak did know Al Brown—a fact she flatly denied at trial.”
However,  the  hearing  justice  did  not  indicate  whether  this  contributed  to  her  finding  of
ineffective assistance of counsel.   Brown argues that in granting his application, “the Superior
Court clearly included within its calculus the evidence of the relationship among the Brown
cousins and Janikuak,” and that the hearing justice was “able to obtain a more complete picture
of the relationships among the various individuals, providing an even stronger basis for a finding
of bias on the part of Pastor Janikuak.”   He concludes by arguing that “Janikuak’s bias at the
time of the trial was a fair question for exploration.                                                      [John Brown’s] failure to flush out the bases
for this cross examination was part of the ineffectiveness of his representation.”19
The record reveals that John Brown did pursue the issue of Janikuak’s bias during the
trial but that the trial justice curtailed his line of questioning.   Therefore, there seems to be little
evidence that John Brown was deficient in this regard.   Furthermore, this issue should have been
precluded from reconsideration by the Superior Court because this Court already decided the
issue in the direct appeal.  See Vorgvongsa, 785 A.2d at 547-48; Carillo v. Moran, 463 A.2d 178,
182  (R.I.  1983).    There, Brown identified the trial justice’s limitation of Janikuak’s cross-
examination concerning the lawsuit filed against her by Al Brown as one of the errors that
warranted a new trial.  Brown, 709 A.2d at 473.  This Court rejected that claim, and held that the
19 In Brown’s application, he argued that the trial justice erred by limiting John Brown’s cross-
examination  of  Janikuak  concerning  her  potential  bias;  however,  he  never  included  John
Brown’s failure to further pursue this issue as a potential ground for his ineffective assistance
claim, and he raises the issue for the first time on appeal following the Superior Court decision.
- 27 -




trial justice properly exercised his discretion to limit and control questioning on a collateral
matter, and further that any error on this issue was harmless.  Id. at 473-75.  Therefore, this issue
cannot contribute to a finding of ineffective assistance of counsel and should not have been
reconsidered in the Superior Court.
2
Testimony of Emily’s Sister
In Brown’s cross-appeal, he argues for the first time that John Brown was ineffective
because he called Emily’s sister, Kimberly R., as a witness at trial.    Even overlooking its
procedural infirmities, this assertion lacks merit because the decision to call Kimberly as a
witness and present her testimony cannot be viewed as anything but tactical, and such a decision,
even  if  ill-advised,  does  not  contribute  to  a  finding  of  ineffective  assistance  of  counsel.
Vorgvongsa, 785 A.2d at 549.   Kimberly testified that she heard from Julie that “something
happened” between Brown and Emily.  Brown argues that there is “simply no reason to bring out
this  testimony  that  the  mother  told  this  witness  that  something  happened  between  the
complainant, and the defendant.”   However, Kimberly also testified that she got ready for school
with Emily and that they ate breakfast together each day.   John Brown argued that this occurred
at the same time that Brown was alleged to have been abusing Emily.   In his closing argument,
John Brown asked the jury to consider that Emily’s testimony was not consistent with what it
had heard from Kimberly.
After analyzing the record, it is our opinion that John Brown was attempting to discredit
Emily’s testimony by casting doubt on her version of events.   This of course was purely tactical
and therefore, even if ill-advised, under our well settled law, it cannot contribute to a claim of
ineffective assistance of counsel.   See Chalk, 949 A.2d at 400 (tactical decision of trial counsel
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not to object to amended indictment “was not ‘deficient performance’” and could not amount to
ineffective assistance of counsel).
3
Rape Crisis Center Records
Brown’s cross-appeal also asks this Court to affirm the vacating of his convictions
because the hearing justice apparently determined that John Brown was inadequate because he
did not seek certain records from the Rape Crisis Center, where Emily may have received
counseling in 1994.  The hearing justice said:
“Also, the pre-sentence report reveals that the victim had been
going to counseling at the Rape Crisis Center four months before
the trial.   Yet no records of those sessions were provided to the
defendant.     During  the  evidentiary  hearing,  prosecutor  John
McMahon testified that he asked the victim about the counseling
and received a ‘negative response.’   He added, ‘* * * we looked
into it * * * she never had counseling * * * only intake.’   Yet the
pre-sentence report clearly states that ‘* * * in A

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Rhode Island Law