Opinion
ID No. 0411002216A.
August 6, 2007.
Donnie R. Hawkins, SBI #, Sussex Correctional Institution, Georgetown, DE.
Melanie C. Withers, Esquire Deputy Attorney General, Delaware Department of Justice, Georgetown, DE.
Carole J. Dunn, Esquire, Assistant Public Defender, Public Defender of the State of Delaware, Georgetown, DE.
Memorandum Opinion — Motion for Postconviction Relief
Dear Counsel and Mr. Hawkins:
This is my decision on Donnie R. Hawkins' ("Hawkins") motion for postconviction relief. Hawkins was found guilty of Possession of a Weapon During the Commission of a Felony (two counts), Aggravated Menacing (two counts), Assault in the Third Degree, Unlawful Imprisonment in the Second Degree (two counts), Endangering the Welfare of a Child, Offensive Touching (two counts), Disorderly Conduct, Driving a Vehicle with a Prohibited Alcohol Content, and Driving after Judgment Prohibited. The Supreme Court affirmed Hawkins' convictions on July 11, 2006.
905 A.2d 747, 2006 WL 1932668 (Del. 2006) (TABLE).
The convictions arose out of an incident involving Hawkins, his wife, Carol Hawkins ("Carol"), and her nine-year-old daughter, Rebecca Bolen ("Becky") on November 3, 2004. The day in question started out uneventfully. Becky left for school at approximately 7:30 a.m. Hawkins and Carol, who was recovering from hip surgery, spent the morning driving around looking for a tractor to buy. Hawkins apparently earned money by buying and selling tractors. They found a tractor in Preston, Maryland and purchased it. During their hunt for the tractor, Hawkins drank both liquor and beer. This led to an argument between Hawkins and Carol. When Carol tried to throw the beer out of the pickup window, Hawkins backhanded her in the mouth. Hawkins and Carol got home with the tractor around 2:30 p.m. Once home, Hawkins started calling Carol names. He eventually pulled out a pocketknife, placed it to Carol's throat and threatened to kill her. Becky arrived home at approximately 3:30 p.m. to find her mother crying. The situation calmed down and the three of them went to Greenwood, Delaware to deliver a tractor. On the way home, Hawkins, who continued to drink beer, turned his anger towards Becky, calling her names. They got home around 6:00 p.m. Once home, Hawkins continued to call Carol names and to threaten her and Becky with the knife. Later that evening, Matthew Collins ("Collins") and Joe Littleton ("Littleton") stopped by Hawkins' house to inquire about a car in the yard that was for sale. When Collins and Littleton entered the house, Carol and Becky screamed "He has a knife. He is trying to kill us." Hawkins told Collins and Littleton to leave. They went outside and called 911. While waiting for the police to arrive, Collins saw Hawkins drag Carol from the house by her hair and put her and Becky in the pickup. Collins and Littleton followed Hawkins' pickup and called the police, telling them the direction Hawkins was headed. The police pulled over Hawkins and arrested him.
The State of Delaware (the "State") was represented by Deputy Attorney General Melanie C. Withers, Esquire ("Withers"). Hawkins was represented by Assistant Public Defender Carole J. Dunn, Esquire ("Dunn"). This is Hawkins' first motion for postconviction relief. It was filed in a timely manner. Hawkins alleges that (1) Dunn was ineffective, (2) his due process rights were violated because Dunn did not subpoena certain witnesses, (3) the police allowed the victims to contaminate the crime scene, and (4) the police did not keep the knife for testing. Dunn and Withers filed affidavits responding to Hawkins' allegations.
DISCUSSION
I. Ineffective Assistance of Counsel
Hawkins alleges that Dunn was ineffective because she allegedly failed to (1) effectively cross-examine certain witnesses, (2) subpoena certain witnesses, (3) devise a trial strategy and consult with Hawkins, (4) appeal the issue of the alleged contamination of the crime scene, and (5) attack the police for not collecting evidence. Given the nature of the allegations, there is no reason to hold an evidentiary hearing.
The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief. In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis. First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal." It is also necessary that the defendant "rebut a `strong presumption' that trial counsel's representation fell within the `wide range of reasonable professional assistance,' and this Court must eliminate from its consideration the `distorting effects of hindsight when viewing that representation.'" There is no procedural bar to claims of ineffective assistance of counsel. I have considered Hawkins' allegations and concluded that Dunn's performance was not deficient.
Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, 466 U.S. at 687.
Id. at 687.
Id. at 687.
State v. Coleman, 2003 WL 22092724 (Del.Super. Feb. 19, 2003).
Coleman, 2003 WL 22092724, at *2, quoting Strickland, 466 U.S. at 689.
Coleman, 2003 WL 22092724, at *1, citing State v. Johnson, 1999 WL 743612, at * 2 (Del.Super. Aug. 12, 1999); State v. Gattis, 1995 WL 790961, at * 7 (Del.Super. Dec. 28, 1995), aff'd, 637 A.2d 1174 (Del. 1997).
A. Cross-examination of witnesses
Hawkins alleges that Dunn failed to successfully cross-examine several witnesses by pointing out inconsistencies in their testimony. I will address each allegation separately.
i. Becky's testimony about the knife
Becky testified that Hawkins apologized, gave the knife to her at the house, and that she put the knife away. Hawkins alleges that when he was arrested, Becky told the police that the knife was on the floor at the home. Hawkins alleges that Dunn should have pointed out this inconsistency. Hawkins' allegation is not supported by the evidence. The camera in the police officer's car captured Hawkins' arrest and Becky's statements to the police. The police officer asked Carol and Becky what happened. Becky told the police officer that Hawkins "threatened us with a knife" and that "he tried to kill us." When asked where the knife was, Becky said, it is "at home." The police officer repeated her answer, stating "at home." Becky never said that the knife was on the floor. Thus, there was no inconsistency for Dunn to point out.
ii. Galloway's testimony about the knife
Officer Justin Galloway testified that he photographed the knife and left it at the house. Hawkins alleges that the police did not leave the knife at the house, but instead took it to the prison and placed it with his personal effects there. I seriously doubt Hawkins' version of the events. It simply would not have made any sense for the police to take the knife to the prison. It seems much more likely that Hawkins, who had a collection of knives, had another knife with him when he was arrested and that it was discovered when he was taken to the prison. In any event, given that the knife in question is unremarkable, it will be impossible to determine whose version is correct. Even assuming that Hawkins is correct, this "inconsistency" does not help him. The State alleged that Hawkins threatened Carol and Becky with a knife. It is undisputed that the police found a knife at the house. Where the knife ended up is irrelevant and does nothing to dispel the allegation that Hawkins had a knife. Moreover, Hawkins never told Dunn about this until the trial was nearly over, leaving her with no opportunity to do anything about it.
iii. The 911 call
Collins and Littleton told the 911 operator that Hawkins had a knife. Hawkins alleges that they admitted during their testimony that they never actually saw a knife. Hawkins is correct. Collins and Littleton testified on cross-examination that they did not actually see Hawkins with a knife. They merely concluded this based on the victims' statements and Hawkins' behavior. Dunn brought out this inconsistency on cross-examination. Thus, she effectively placed it before the jury.
iv. Carol's testimony about the phone
Carol testified that the Hawkins "ripped the phone out of the wall and all that." She also testified that when she went home after Hawkins was arrested that the "phone rang as soon as she walked in the door and it was his sister." Hawkins alleges that Dunn should have pointed out this inconsistency. Carol also testified that there were two phones in the house. There was, according to Carol, a phone on the kitchen wall and a cordless phone in the dining room. She also testified that the phone on the kitchen wall was not damaged, just unplugged. Given that there were two phones in the house, it is not clear if there was an inconsistency at all. Carol may have used the cordless phone when she came home. If there was an inconsistency, then Carol explained it away by stating that the phone on the kitchen wall was not damaged, just unplugged.
v. Blair's testimony about the victims' demeanor
Officer Aaron Blair testified on cross examination that Carol and Becky were hysterical and crying when Hawkins was arrested and that Becky was yelling "help us, help us, he's trying to kill us." Hawkins alleges that the videotape does not support Blair's testimony. First of all, the jury heard Blair's testimony and watched the video. Thus, it was in a position to decide whether the two were consistent. Second of all, it is not obvious that the video does not support Blair's testimony. When the police stopped Hawkins' pickup, Carol quickly got out of the pickup and told Becky to "Hurry, hurry." Becky then got out of the pickup and she and Carol moved away from it and hugged each other. When Carol and Becky moved away, they moved out of the range of the police officers' microphones. Thus, it is not clear what they were saying. Moreover, they were both obviously scared. After Hawkins was placed in the police car, one of the police officers went over to Carol and Becky and asked them what happened. Becky stated, in a very excited voice, that "he threatened us with a knife" and that "he tried to kill us." I do not believe there was an inconsistency and if there was, then it was minor given how obviously scared Carol and Becky were.
vi. The removal of the truck
The police report apparently states that Hawkins' pickup was towed away after he was arrested. This is incorrect. Carol drove the pickup back to the house. Hawkins alleges that Dunn should have pointed out this inconsistency. This inconsistency is irrelevant. Whether the pickup was towed or driven back to the house has nothing at all to do with the charges against Hawkins.
vii. Bias and prejudice of the witnesses
Hawkins alleges that Dunn was ineffective because she did not effectively cross examine the witnesses to show their biases and prejudices. The only witnesses who were likely to be prejudiced against Hawkins were his two victims, Carol and Becky. The other witnesses were police officers, Hawkins' relatives and friends, or disinterested parties. Not surprisingly, there was not much for Dunn to do with Becky, a nine-year-old child. Carol presented Dunn with a much greater opportunity for effective cross-examination. Dunn was able to show that Carol was angry with Hawkins for making her go with him to look for a tractor; that Carol had kicked Hawkins in the past when he had hit her; that Carol had started arguments with Hawkins; that Carol was unhappy with Hawkins for staying out all night when he and Carol were supposed to spend the night together; that Carol may have had a new boyfriend; that Carol may have sold Hawkins' personal property after he was arrested; and that Carol used Hawkins' ATM card to get cash to pay for her trip home. In summary, Dunn was able to show that Carol was unhappy with Hawkins and may have wanted to fabricate a story to get him arrested so that she could be free of him. This was Dunn's theory of the case and her cross-examination of Carol supported it.
B. Witness subpoenas
Hawkins alleges that Dunn should have subpoenaed his physician and Brenda Bailey, William Hawkins and Peggy Downes. Brenda Bailey is William Hawkins' girlfriend. William Hawkins and Peggy Downes are Hawkins' brother and sister, respectively. Hawkins is wrong about Peggy Downes. She testified at the trial for approximately 10 minutes on April 18, 2005.
i. Hawkins' physician
Hawkins alleges that his physician would have testified that his health was so poor that he could not possibly have committed the crimes. Dunn tried to talk to Hawkins' physician, but he would not talk to her about Hawkins without a signed release. Dunn gave Hawkins a release, but he repeatedly refused to sign it. Thus, the fault for this rests with Hawkins, not Dunn. In any event, it is obvious that Hawkins, irregardless of his medical condition, was physically able to commit these crimes. The two victims in this case were a 40-year-old woman recovering from hip surgery who could, as shown on the videotape, barely walk and a nine-year-old child. Hawkins was, on the day in question, able to load and unload large tractors, backhand Carol in the mouth and, according to an eyewitness, drag Carol out of the house by her hair. Moreover, Hawkins was able to easily control Carol and Becky by threatening them with a knife. Their screams for help when Collins and Littleton came to the house and their behavior after Hawkins was arrested shows that they were scared to death of Hawkins and would do anything to avoid being hurt by him.
ii. William Hawkins and Brenda Bailey
William Hawkins and Brenda Bailey did not see Hawkins on November 3, 2004. Thus, they were not witnesses to the events giving rise to the charges against Hawkins. William and Brenda were allegedly familiar with the nature of Hawkins' relationship with Carol. Dunn did not call them to testify about this because, in her view, it focused on an issue that was not likely to be flattering for Hawkins.
C. Trial strategy
Hawkins alleges that Dunn did not discuss with him the trial strategy, inconsistencies in the witnesses' testimony and the fact that the knife was at the prison. Dunn states that Hawkins was very active in planning his defense and that their strategy was to convince the jury that Hawkins did not have a knife, that only a minor scuffle occurred between Hawkins and Carol, and that Carol and Becky were not being held against their will. They tried to show that Carol made all this up so that she could get rid of Hawkins, take his money and move away with her new boyfriend. The alleged inconsistencies in the testimony of certain witnesses were, as I concluded earlier, either non-existent or so trivial as to not matter. I also addressed the issue of the knife earlier and concluded that Hawkins' argument made no sense. Moreover, if Hawkins believed that the absence of blood on the knife was helpful to him, then he should have told Dunn about the knife's location so that she could have had it tested.
D. Appeal
Hawkins alleges that the police allowed Carol and Becky to contaminate the crime scene by driving the pickup back to the house and then going inside to retrieve the knife for the police. He further alleges that Dunn should have raised this issue on appeal. There is no reason to believe that the victims' actions contaminated the crime scene. The victims merely drove the pickup back to the house and went inside and retrieved the knife for the police. There is no reason to believe that they took or mishandled anything of evidentiary value. Thus, there was no issue for Dunn to appeal.
E. Physical Evidence
Hawkins alleges that Dunn should have attacked the police for not gathering blood samples from the floor, checking the crime scene for fingerprints, collecting the victims' clothes, which, according to Hawkins, should have been covered in blood, and collecting the beer cans and other unidentified physical evidence. Dunn did deal with this during her cross-examination of the police officers. She had Blair and Galloway both admit that they did not keep the knife and fingerprint it. Dunn also had both officers admit that Carol and Becky had no blood on them, except that Carol had a few drops of blood on her collar. It would have been pointless to try to get fingerprints from items in the house because Hawkins and the two victims lived there and their fingerprints would be expected to be on many things in the house. Similarly, it would have been pointless to collect the beer cans because Hawkins admitted that he was drinking beer that day. Hawkins' chief complaint is with the knife and the lack of blood on the victims' clothes, which Dunn capably pointed out through cross-examination.
Hawkins' remaining claims are procedurally barred pursuant to Rule 61(i)(3) unless he is able to show cause for relief from the procedural bar and prejudice as a result of any violation of his rights. However, "this bar to relief does not apply to a colorable claim that there was a miscarriage of justice of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading tot the judgment of conviction." Hawkins can not meet this test.
Outten v. State, 720 A.2d 547, 556 (Del. 1998).
Outten, 720 A.2d at 556 citing Super. Ct. Crim. R. 61(i)(5).
II. Due Process
III. The Crime Scene
IV. Evidence
Hawkins alleges that the police should have kept the knife in order for him to perform scientific tests on it. I addressed this issue at trial and concluded that there was no violation of Hawkins' rights. I feel no differently now. Moreover, Hawkins knew that the knife allegedly was at the prison. If he had wanted to have it tested, then he could have done so. He chose not to and now he must live with the consequences of that decision.
CONCLUSION
Hawkins' motion for postconviction relief is denied.
IT IS SO ORDERED.