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Ferrell v. Wall2/2/2005
cluded testimony has him physically in her presence on the East Side when Mr. Carpenter was shot on the other side of the city.
The ineffective counsel claim grounded on non-compliance with Rule 16 was presented at the post-conviction hearing along with the newly discovered evidence claim of a recanting. Viewed together, as these claims must be, given the requirement of a totality-of-the--circumstances analysis, these two pieces of evidence, had they been placed before the fact finders, would undoubtedly have lead to a different result. I hasten to add Ferrell would be entitled to post-conviction relief if all he had was the recanting; but the Rule 16 ineffectiveness claim buttresses his position. If all he had, however, was the Rule 16 claim, his claim might be weaker, and a more thorough analysis of all dimensions of his alibi defense would have been undertaken.
As to the double jeopardy claim, if appears that this was given thought by Ferrell's counsel, and it cannot be determined that a double jeopardy argument was not rejected as a tactic or strategy. In its opinion on the appeal of Jason Ferrell, our Supreme Court discussed what certainly appears to be a waiver of the double jeopardy defense. 774 A.2d at 920. The Supreme Court noted, in so many words, that Mr. Ferrell and his attorney had several occasions to raise the double jeopardy issue: prior to the trial getting underway, during the trial by requesting the trial justice to exercise her discretion to allow it, at the sentencing or by way of a post-sentence Rule 35 motion. The Supreme Court noted, "according to the court file, Ferrell filed a Super. R. Crim. P. 35 motion on October 21, 1997. That motion was passed three times and, then, ultimately withdrawn." 774 A.2d at 920 (n 26). In any event, given the facts adduced at trial, it appears that a theory of two conspiracies is supported by the evidence: One of the conspiracies had as its object the murder of John Carpenter, and the other conspiracy had as its object the murder -- or the doing of serious bodily harm -- to Lorenzo Evans. Accordingly, petitioner Ferrell's ineffective counsel claim grounded on the failure of the attorney to raise a double jeopardy defense fails.
Conclusion
For the foregoing reasons, petitioner Ferrell's application for post-conviction relief is granted. His convictions and his sentences imposed as a result of those convictions are vacated.
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