Opinion
Cr. A. No. IN98-04-0967-R1, I.D. 9804001562.
Submitted: June 26, 2000.
Decided: July 27, 2000.
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF. DENIED.
ORDER
This 27th day of July, 2000, upon review of the papers filed by the parties and the record in this case, it appears that:
(1) On November 18, 1998, a jury convicted Defendant, Ryszard Bialach, of First Degree Robbery. On February 5, 1999, the Court sentenced Bialach to five years Level 5 incarceration, suspended after two and one-half years for two and one-half years at Level 4, suspended after six months for probation. Bialach appealed his conviction to the Delaware Supreme Court. On February 15, 2000, the Supreme Court affirmed Bialach's conviction.
(2) Bialach now moves this Court for postconviction relief pursuant to Superior Court Criminal Rule 61. Bialach lists three grounds for relief in his motion: "plain error" committed by the Court. ineffective assistance of counsel, and prosecutorial misconduct. All of Bialach's grounds for relief relate to an incident Bialach alleges occurred during his trial. Bialach alleges that one of the jurors slept through closing arguments and jury instructions and that he informed his counsel of that fact. The State then informed the Court that the juror had been asleep. Bialach cites the following exchange that occurred between the attorneys and the Court following jury instructions to support his contention:
THE COURT: Any exceptions to the charge?
[DEFENSE COUNSEL]: No exceptions, Judge.
[THE STATE]: Nothing, Your Honor. I would only point out that juror number ten was asleep through most of that, and [defense counsel] put her to sleep and I assisted, and the only person she listened to was the Court.
(3) Bialach contends that the Court committed plain error by failing to address the issue of the sleeping juror, depriving Bialach of his constitutional right to a trial by jury, that defense counsel was ineffective by failing to raise the issue of the sleeping juror to the trial court or on direct appeal, and the State acted improperly by failing to bring the sleeping juror to the Court's attention. Initially, the Court determines that two of Bialach's grounds for postconviction relief, "plain error" by the Court and prosecutorial misconduct, are procedurally barred pursuant to Rule 61(i)(3) because they were not asserted in the proceedings leading to the judgment of conviction.
(4) Bialach did not raise the issue of error by the Court in failing to address an allegation of a sleeping juror during his direct appeal. Nor did Bialach allege prosecutorial misconduct during that appeal. Therefore, both grounds for relief are procedurally barred under Rule 61(I)(3). Pursuant to Rule 61 (i)(5), this procedural bar shall not apply to a claim that the Court lacked jurisdiction or to a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Bialach does not claim that the Court lacked jurisdiction. The Court finds that Bialach's allegations do not constitute a colorable claim of miscarriage of justice due to a constitutional violation.
(5) The only substantive evidence cited by Bialach in support of his claim that a juror slept through part of his trial is the above-quoted exchange made after jury instructions were given. Bialach's defense counsel, by affidavit, states that in fact no juror slept through closing arguments or jury instructions. The remarks made by the prosecutor at the end of trial were clearly understood by the attorneys and the Court to be facetious rather than serious; the remarks were, in essence, a joking comment upon the length of closing arguments. Defense counsel avers that, had he noticed a juror sleeping or being otherwise inattentive, he would have immediately brought the matter to the trial court's attention for appropriate action.
(6) As a result, the Court finds that Bialach's assertions are not supported by the record in this case or by the affidavit provided by defense counsel. Defendant has failed to raise a colorable claim that there was a miscarriage of justice in the proceedings leading to his conviction so as to overcome the procedural bar to his grounds for relief. Therefore, the Court dismisses Bialach's first and third grounds for relief as procedurally barred by Rule 61(i)(3).
(7) Bialach's second ground for relief is that his defense counsel was ineffective for failing to address the issue of the sleeping juror, despite Bialach's request to do so. As noted above, defense counsel states that no juror slept through any of the closing arguments or instructions and if a juror had done so, defense counsel would have brought the situation to the Court's attention. Therefore, the Court finds that Bialach has failed to demonstrate that defense counsel's conduct fell below reasonable standards so that Bialach's second ground for relief is without merit.
As a result of the foregoing, the Court hereby DENIES Bialach's Motion for Postconviction Relief.
IT IS SO ORDERED.
Carl Goldstein, Judge