Opinion
Criminal Action Nos. IN-03-04-1095, IN-03-04-1096, IN-03-04-2073, ID No. 0304001480.
Submitted: July 18, 2005.
Decided: August 9, 2005.
Upon Motion of Defendant for Postconviction Relief — DENIED.
Alexis W. Shuette, Esquire, Deputy Attorney General, Department of Justice, for State of Delaware.
Michael W. Modica, Esquire, of Wilmington, Delaware, for defendant.
MEMORANDUM OPINION
Defendant Michael Carello has moved for post-conviction relief. After a non-jury trial, he was convicted of burglary in the second degree, felony theft, and conspiracy second degree. He was found not guilty of felony receiving stolen property. On appeal, his convictions were affirmed.
Carello v. State, Del.Supr., No 104, 2004, Steele, C.J. (November 1, 2004) (ORDER)).
He raises eight grounds for relief from these convictions, all of which are that his trial counsel was ineffective. The ineffectiveness claims are: (1) failure to expose inconsistencies in the testimony and earlier statements of the State's chief witness; (2) failure to object to police testimony about familiarity with the defendant through "prior investigation"; (3) failure to object to testimony about the defendant's delayed arrest; (4) failure to object to the introduction of a PFA order; (5) failure to object to the prosecutor asking the defendant to display his tattoos; (6) failure to object to a videotape being played; (7) failure to object to evidence about value of stolen property; and (8) failure to investigate (a) to rebut testimony about value of stolen items and (b) interview and produce a witness who would have identified another person as the culprit.
Carello also seeks an evidentiary hearing on his claims. The Court sees no basis for such hearing. His motion for postconviction relief is DENIED.
Factual Background
On March 31, 2003 New Castle County Police patrolman, Bryan K. Taylor, went to 25 Queen Avenue in Swanwyck in connection with a burglary complaint. The rear door was open. No one was home. He noted pry marks at the rear door and it appeared to have been pried open. The front door had several small windows and one was smashed in.Inside Taylor saw the contents of a wallet and a white trash bag. In the den he observed some video equipment was missing, furniture had been overturned, a TV was gone and in the bedroom, a jewelry box was upside down on the floor.
Joy Campbell, who lived at 25 Queen Ave with her fiancé at the time (subsequently married), was out of town when the burglary occurred. She was notified and came home. When she got home she noticed the broken front door window. She had left her purse and wallet at home and testified that the wallet had been searched. She said the kitchen cupboard was open and white trash bags were there.
She listed the following missing items: around 75 DVDs, a flat screen TV purchased just two to three weeks before for $480.00, an X-Box system with two controllers which had been purchased for $299.00, a game Sega GT with a roller skating game in it and her high school graduation ring, white gold with diamonds, (she guessed the value was around $200.00). She said pillow cases had been taken and dresser drawers opened.
On April 2nd she went to County Police headquarters and was shown an X-Box and controllers. She believed it was her as one controller was smaller than the other to accommodate her smaller hand. She took it home and plugged it in. The game displayed was one which had been in it before being stolen.
Jeffrey Kowalskie was the letter carrier in March 2003 for the neighborhood in which 25 Queen Avenue is located. Prior to March 31, 2003, he had been delivering mail in the area for four to five years. He was familiar with the people. He said he waves a lot. He was in the process of delivering mail on Queen Ave. Around 2 p.m. He saw two white males drive by in an 80's vintage VW Jetta. He waved but they did not. He said they looked "panicked." One was on a cell phone. He did not see the Jetta again. He saw another white male standing with a rake and a cell phone at 22 Queen Avenue. Kowalskie said he looked out of place. He also earlier saw two different white males headed toward 25 Queen Avenue. He first thought they were working on the house.
Mr. Kowalskie's name is spelled Kowalskie in the transcript and Kowalsky in Carello's response. To be consistent, the Court will use the spelling Kowalskie throughout this decision.
As he got closer to 25 Queen Avenue he saw two white males running out, one in front of the other holding pillow cases which contained something. They were holding the pillow cases down at their sides. One ran across the street toward a fence which was behind a church on the same street. He saw that the front door window was broken.
The second white male walked from 25 Queen Avenue turned, faced Kowalskie and looked at him for about five seconds. It was a sunny day and there were no obstructions between him and the second white male. Then this second male ran. He hopped over the fence and got into a white car parked in the church parking lot. The car was partially obstructed by a small berm. Neither of the two males who came out of 25 Queen Avenue were the two he had seen earlier in the white Jetta.
During Kowalskie's testimony, there were questions about the extent this second white male leaving 25 Queen Avenue had tattoos. He was unsure if the second male did, but believed he did on his arms and calves.
Kowalskie identified Carello as the second white male to come out of 25 Queen Avenue who turned and faced him. He also said about ten days later he saw Carello again. He had driven up in a 1978 car with others in it. He approached Kowalskie and there was a conversation (about which there was no testimony).
On April 2, 2003, Patrolman Scott Frigg was stopped at a light northbound on U.S. 13. He saw a white car make a U-turn in a way that aroused his suspicions. He attempted to follow it, lost it momentarily but saw it again at 27 Stanton Avenue in Minquadale. It was an 80's Jetta. The engine was still running and the doors were open. He spoke to Jaclyn Harrison inside 27 Stanton Avenue but the driver was not there. The Jetta was not registered to Carello.
Inside the Jetta, when it was later searched, the police found some CDs, several pairs of latex gloves, and a hand written note in the glove compartment. It was dated March 31, 2003 and addressed "To whom it may concern." The note was from the registered owner giving consent to Carello to drive it.
The police also obtained a search warrant for 27 Stanton Avenue. One item recovered was the X-Box system later turned over to Mrs. Campbell.
See supra, p. 2.
It developed that Carello's girlfriend lived at 27 Stanton Avenue. During the search the police were in her bedroom and also found some of his clothing. The girlfriend, Ms. Harrison, never mentioned to the police a Protection from Abuse Order that she obtained against Carello, allegedly barring him from that house. He and she have a child and there had been an incident between the two adults which led to the PFA. That incident was memorialized in the PFA which became Defendant's exhibit number 1. It was obtained in November 2002.
Despite the PFA, however, Carello still came to 27 Stanton Avenue, on occasion, after November. He either slept on the couch or in her bedroom.
The PFA listed Carello's address at another location. He testified that after November, 2002, he did not stay at 27 Stanton Avenue. He also denied involvement in the burglary. His mother testified that he stayed with her and that she was unaware he stayed, after November, at 27 Stanton Avenue.
The police also recovered a camcorder stolen in a March 12, 2003 burglary in the same bedroom at 27 Stanton Avenue. In it was a tape. Part of it was shot by the owner. But part was shot showing Carello driving across the Delaware Memorial Bridge on March 15, 2003. Others were in the car. He was wearing a white t-shirt and with scrub facial hair as Kowalskie had described he saw on March 31st. The recovery of the camcorder led to the receiving stolen property charge on which the Court found him not guilty.
Discussion
Before the Court can undertake a review of the merits of a motion for postconviction relief, it must determine if there are any procedural impediments to doing so. There is a bar to one of Carello's claims. It is his seventh claim concerning evaluation of the property taken from the Campbell residence.
Ayers v. State, 802 A.2d 278, 281 (Del. 2002).
The issue of whether there was sufficient evidence to support an evaluation of all of Campbell's stolen property as in excess of $1000 was raised on appeal. While expressing some concerns about the quantum of evidence concerning value, the Supreme Court upheld this Court's conclusion about the value of all the stolen property.
Carello v. State, supra.
The Supreme Court noted that Carello did not contest at trial the sufficiency of the value of evidence. The issue, nevertheless, has been adjudicated. This Court is barred from reconsidering adjudicated claims. Further, even though now packaged as a claim for ineffective assistance of counsel, the Court will not consider refined or restated claims. The Court sees no interest of justice warranting relief from the bar of re-litigating an adjudicated claim.
Superior Court Criminal Rule 61(I)(4); Maxion v. State, 686 A.2d 148, 150 (Del. 1996).
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992).
Dawson v. State, 673 A.2d 1186, 1194 (Del. 1996).
There are no procedural bars, however, to consideration of the balance of Carello's claims. As a threshold matter, however, the Court must consider his request for an evidentiary hearing. Trial counsel has submitted an affidavit in response to Carello's claims.
The State (1) filed a response to Carello's motion and (2) included the affidavit. The Court did not request a State response and did not request the State to get trial counsel's affidavit. Nevertheless, the Court sent trial counsel's affidavit to Carello's counsel on this motion and he has filed a response to it.
The totality of the submissions in connection with this motion, (primarily the motion, its attachments, claims made, trial counsel affidavit, and current counsel response) do not prompt the need to for an evidentiary hearing. The Court has the discretion whether to conduct the hearing. In this case, the result of this discretion is to not have a hearing. The Court's discussion of Carello's claims will indicate why.
Superior Court Criminal Rule 61(h).
As all of Carello's claims concern the affectiveness of his trial counsel, it is necessary to state the principles applying to such a claim.
Standards for Ineffective Assistance
Carello must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's errors, there is a reasonable probability that the outcome of the proceedings would have been different. There is a strong presumption that trial counsel's representation was reasonable.
Somerville v. State, Del.Supr., 703 A.2d 629, 631 (1997).
Stone v. State, Del.Supr., 690 A.2d 924, 925 (1996) (citing Flamer v. State, Del.Supr. 585 A.2d 736, 753 (1990)).
Ground One: Defense counsel was ineffective by failing to expose the inconsistencies between the testimony of Jeffrey Kowalskie and the information allegedly provided to the police contained in the police report.
Carello claims that Kowalskie's testimony contained information not included in a police report:
Jeffrey Kowalski (sic) is the postal carrier for the neighborhood. He stated that he observed a white male run to the rear of 25 Queen. A few minutes later he observed the subject exit the residence through the front door. Kowalski (sic) described the subject as a white male, thin in build, and wearing a white T-shirt. The subject ran across the street and entered a white vehicle, unknown make and model. A second white male was waiting in the rear of 26 Queen Ave. Both subjects entered the vehicle, which was parked in the rear of the parking lot for the Church of the Rock (28 Queens), and fled the area. Kowalski (sic) was unable to provide any further information.
In his responding affidavit, trial counsel notes several things. First, there was a subsequent police report indicating Kowalskie several days later identified Carello and the white Jetta. While the above summary of what he may have initially said lacked the details of his trial testimony, he told more to the police later which was recited in other police reports and, on redirect examination about those subsequent statements, would likely have buttressed Kowalskie's testimony.
Next, trial counsel says his focus was on the identification because his client had many tattoos on his arms and legs. Even though wearing a short sleeve T-shirt and some kind of jeans that were not full length, Kowalskie was unsure about seeing them or the extent they would have been visible. There were other areas where trial counsel questioned Kowalskie as part of his strategy to undermine the identification.
See later discussion about Carello's fifth claim of ineffectiveness.
In his response to trial counsel's affidavit, Carello's current counsel argues that any and all inconsistencies should have been brought up. Neither that response nor the original motion, however, make a compelling showing of prejudice; the second prong of ineffectiveness. Arguably, Kowalskie could have been questioned about what the initial police report summary indicated versus his trial testimony and maybe a few other things. There are two observations. One, it is hard to know from the record the full extent of Kowalskie's statements in his first interview. Two, and more importantly, it is difficult to second guess trial counsel's tactic to focus instead on Kowalskie's inability to note the extent of Carello's visible tattoos. If anything, Carello's current claim is a retrospective criticism on what was a sound trial tactic.
Ayers, 802 A.2d at 284, (Court declining to consider a valid trial factor a breach of reasonable trial pracitce).
Even assuming that counsel was ineffective for failing to delve further into perceived inconsistencies, Carello fails to make the requisite showing of prejudice. Accordingly, this claim of ineffectiveness fails.
Stevenson v. State, 469 A.2d 797, 800 (Del. 1983).
Ground two: Defense counsel was ineffective by failing to object to the police officer's testimony that the officer was familiar with Carello due to a prior investigation.
During his testimony the chief investigating officer was asked if he was familiar with Carello. Instead of just replying with a "Yes", he said he was through a prior investigation. Little, if any, time existed for counsel to object to Detective Atallian's statement. The Court halted further testimony concerning Atallian's familiarity with Carello when it stated that "[t]he answer to that question would have just been better yes."
Trial transcript at 121.
Carello declares that, while it is true that the Trial Court intervened, the prejudice encountered could not be eradicated. He also contends that the statement was unfairly prejudicial, deprived him of a fair trial and constituted plain error supporting reversal of his conviction. Therefore, he asserts that counsel should have moved for a mistrial, but failed to do so, citing Bailey v. State. Bailey is not applicable. Carello was a bench trial and there was no jury to prejudice. The Court, as the finder of fact, gave Atallian's statement the weight it merited, namely none. Even if counsel's failure to object to Atallian's statement fell below an objective standard of reasonableness, no prejudice to Carello resulted. As Carello failed to satisfy either prong of the Strikland test, this claim fails.
521 A.2d 1069 (Del. 1987).
Ground three: Defense counsel was ineffective by failing to object to unfairly prejudicial information pertaining to the circumstances of Carello's arrest.
Carello contends that, though the judge was the finder of fact, this did not lower counsel's duty to him or excuse counsel's failure to object to prejudicial information. He continues that the standard of ineffective counsel is not different for non-jury trials.
This belittles the ability of a judge in a bench trial to separate unfairly prejudicial evidence from relevant, even prejudicial evidence (evidence introduced against a party is usually prejudicial). There was some probative value to the circumstances of Carello's delayed arrest. That evidence was not unfairly prejudicial and an objection would likely have been overruled. Since there was no counsel error, there can be no ineffectiveness.
Righter v. State, 704 A.2d 262, 267 (Del. 1997), cert. denied, 523 U.S. 1126, 118 S.Ct. 1814, 140 L.Ed.2d 951 (1998).
Ground four: Defense counsel was ineffective by failing to object to evidence that a Protection from Abuse Order was placed against Carello.
The PFA order itself was a defense exhibit. It was an appropriate trial tactic. The police recovered the Campbell X-box game system three days after the burglary from the bedroom of Carello's girlfriend. This was in early April 2003. Yet Carello had been barred by Family Court as of November 2002 from going to that house. The girlfriend, however, who had obtained the PFA testified Carello stayed there on occasion after November 2002. While testifying, he admitted going to her house after Family Court issued the PFA against him.
The existence of the order was potentially helpful to Carello's defense. It listed as his address the place where his mother lived. She testified that after November, she was unaware he stayed at the girlfriend's residence. The defense even introduced an order (Exhibit #2) from JP Court 20 that he was not to have contact with the girlfriend. All of this was more than reasonable trial strategy to distance Carello from the stolen X-box found in the girlfriend's bedroom where some of his clothes were found.
Again, if there were no counsel error there was no ineffectiveness.
Zebroski v. State, 822 A.2d 1038, 1049 (Del. 2003).
Ground five: Defense counsel was ineffective by failing to object to the prosecutor's request for Carello to stand and display his tattoos in the State's case in chief.
Carello claims that counsel should have objected when the prosecutor requested he stand and show Detective Atallian his tattoos. After the prosecutor asked the Court's permission, the Court turned to question counsel. The next statement on the transcript is Carello's response, "Where would you like me to stand?" Carello even volunteered that the tattoo was from his back when the prosecutor stated that it went from his shoulder to his hand.
Trial Transcript at 123.
Not objecting to the prosecutor's request for Carello to stand and display his tattoos was proper for trial counsel. Such defendant action is not a verbal response and therefore, Carello did not incriminate himself. In addition, trial counsel claims that the display of the distinctive tattoos was part of the defense strategy because the State's key witness could not recall any specific tattoo and seemed vague about the extent of the tattoos. The display of his tattoos showed a number and extensive amount which directly related to Kowalskie's lack of identification of, or a certainty about seeing his tattoos.
United State v. Williams, 704 F.2d 315, 317 (6th Cir. 1983) (The privilege attaches only to testimonial compulsion and not to demonstrative, "physical or real" evidence.).
Carello now claims that counsel put him at risk when he allowed him to comply with the prosecution's request. If anything, the failure to object allowed the judge to more clearly focus on the issue of Kowalskie's identification. Further, contrary to Carello's current argument that such a display violated his right against self-incrimination, it did not.
There was no counsel error. This claims lacks merit.
Ground Six: Defense counsel was ineffective by allowing the prosecutor to play a videotape in which Carello discussed illegal drug transactions.
It is unclear how counsel was ineffective since he objected. While there was a discussion of other activities on the tape, it shows the defendant in mid-March wearing a white short sleeve T-shirt and with scrubby facial hair. This was how Kowalskie initially described him to the police.
The tape was in a camera stolen in a separate burglary several weeks before the Campbell burglary. That formed the basis of the receiving stolen property charge for which Carello was found not guilty. It had been recovered in his girlfriend's house along with the X-box system.
The Court did as it said it would do when the tape was played with sound, over the defendant's objection. It ferreted out irrelevant material and did not use that material as a basis for finding Carello guilty of the other charges.
Therefore, not only was there no counsel violation of a standard, Carello cannot show prejudice. This claim fails.
Ground eight: Defense counsel was ineffective by failing to conduct a reasonable investigation of the case, failing to thoroughly prepare Carello's defense, and by failing to subpoena a vital defense witness. Information is needed from defense counsel as to why this potential witness was not subpoenaed to testify at trial.
Carello first argues that counsel should have investigated. He alleges that counsel had a duty to investigate all allegations contained in the police report, especially the valuation of the stolen property when that valuation determines the nature of the sentence. As stated earlier, this issue has been previously adjudicated and will not be re-considered.
Carello continues that counsel was ineffective as he did not call a vital defense witness who would have confirmed another person committed the charged criminal offenses. He attached to his motion an unsworn letter from Shane Holbrook dated October 3, 2004. Holbrook appears to say a Jason Eldrige committed the burglary at the Campbell residence.
The letter is unsworn. It is dated eight months after Carello's trial. Trial counsel, in his affidavit, said that Carello never mentioned Holbrook to him. Jason Eldrige's name came up in the trial because he was holding the camera showing Carello driving across the Delaware Memorial Bridge. The girlfriend testified Eldrige and Carello were friends and came to her house together and, on occasion, both slept in the house.
It seems rather hollow now for a third person to indicate, eight months after the trial and nearly a year after Carello's arrest, that someone who was a good friend of Carello was the actual burglar.
In his response to trial counsel's affidavit, current counsel does not offer any response to trial counsel's disclaimer of the Holbrook letter/assertion. The Court under all these circumstances accords it no weight.
This claim of failure to investigate lacks merit.
Conclusion
The eight allegations raised by Carello amount to nothing more than a list of alleged failings by counsel without a showing of consequent prejudice. For the reasons cited herein, Michael Carello's motion for postconviction relief is DENIED.
Duffy v. State, Del.Supr., No. 529, 1992, Horsey, J. (Jan. 27, 1993) (Order); Younger, 580A.2d at 556; Robinson, 562 A.2d at 1185-86.