Opinion
Criminal I.D. No. 961005019
Submitted: February 14, 2001
Decided: April 12, 2001
Upon Defendant's Motion for Postconviction Relief — DENIED. Criminal Action No. IN96-12-0586, R2; and IN96-12-0587, R2.
OPINION
On April 9, 1999, the defendant, Michael Mundy ("Mundy"), was convicted by a Superior Court jury of Assault in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony. He was sentenced to a minimum mandatory sentence of two years at Level V on the weapons charge. On the assault charge, he was sentenced to three years at Level V, suspended after one year for two years at Level IV, suspended after six months for the balance at Level II.
A direct appeal was taken, accompanied by counsel's motion to withdraw pursuant to Supreme Court Rule 26(c). The Supreme Court considered and rejected Mundy's claim that there was an error in the jury instruction on self-defense; that the delay in disclosing certain evidence prejudiced his case; and that it was error to admit into evidence his statements to the police. The Supreme Court affirmed the conviction on June 9, 2000.
See Mundy v. State, Del. Supr., No. 320, 1999, Hartnett, J. (June 9, 2000) (ORDER).
Mundy has now moved this Court for postconviction relief under Superior Court Criminal Rule 61. He asserts nine separate grounds for relief; several of which are variations on the theme of denial of his sixth amendment right to effective assistance of counsel. After consideration of the arguments presented in his papers, Mundy's motion for postconviction relief is denied.
I. Procedural Considerations
Under Delaware law, in order for this Court to consider the merits of a Motion for Postconviction Relief; the movant must first overcome the substantial procedural bars contained in Rule 61(i). Under Rule 61, postconviction claims for relief must be brought within three years of the movant's conviction becoming final. Further, any ground for relief not asserted in a prior postconviction motion is thereafter barred, unless consideration of the claim is necessary in the interest of justice. The interest of justice exception requires that the movant show that "subsequent legal developments have revealed that the court lacked the authority to convict or punish him." Similarly, grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred, unless the movant demonstrates: (1) cause for the procedural default, and (2) prejudice from violation of the movant's rights. However, these bars to relief are inapplicable to jurisdictional challenges or to colorable claims of miscarriages of justice stemming from constitutional violations that "undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction" In addition, any ground for relief that was formerly adjudicated in the proceedings leading to judgment of conviction or in a prior postconviction proceeding is thereafter barred from consideration, unless there was a miscarriage of justice of constitutional proportions. After considering the motion, response, reply, and all supporting documents, the Court may order an evidentiary hearing on any issue(s) raised.
Flamer v. State, Del. Supr., 585 A.2d 736, 745 (1990); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
Super. Ct. Crim. R. 61(i)(1).
Super. Ct. Crim. R. 61(1)(2).
Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990).
Super. Ct. Crim. R. 61(i)(3).
State v. Getz, Del. Super., 1994 WL 465543, *1, Ridgely, P.J. (Jul. 15, 1994) (citing to Super. Ct. Crim. R. 61(i)(5)).
Super. Ct. Crim. R. 61(i)(4).
Super. Ct. Crim. R 61(h)(1).
Mundy's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply. Although this is not Mundy's initial motion for postconviction relief; the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply because the initial motion was not considered as it was filed before defendant's direct appeal became final.
II. Mundy's Contentions
Mundy asserts nine grounds for relief in his brief Although he has commingled several of his factual assertions within some of his enumerated grounds for relief; for simplicity, the grounds will be referenced by the numbers assigned in Mundy's motion. They can be described briefly as follows: (1) Ground One: Ineffective assistance of counsel prior to trial due to counsel's failure to pursue suppression motions and failure to investigate; (2) Ground Two: Ineffective assistance of counsel during trial and direct appeal due to counsel's failure to raise contemporaneous objections at trial, to preserve issues for appeal, to properly conduct direct examination of the movant, and to request Jencks material; (3) Ground Three: Prosecutorial misconduct/ Brady violation due to the State's failure to disclose allegedly exculpatory evidence related to the movant's defense; (4) Ground Four: Prosecutorial misconduct due to improper statements during closing and rebuttal arguments; (5) Ground Five: Prosecutorial misconduct due to the admission of improper evidence and/or admission of evidence without proper foundation; (6) Ground Six: Violation of his Fourth Amendment right to protection from illegal search and seizure due to lack of warrant and/or lack of exigent circumstances that would justify a warrantless search and seizure of evidence; (7) Ground Seven: Violation of his right to counsel during custodial interrogation due to police failure to advise movant of his Miranda rights; (8) Ground Eight: Trial court error in its instruction to the jury on the defense of self-defense; and (9) Ground Nine: Prosecution did not meet its burden of proof pursuant to Rule 901 of the Delaware Rules of Evidence.
III. Analysis and Findings
Ground One: Mundy claims his trial counsel's failure to file a motion to suppress what Mundy characterizes as "illegally obtained evidence and illegally obtained statements," to investigate, to request photographs of the crime scene, and to request a recording or transcription of the 911 call to the police constituted ineffective assistance of counsel.
The Sixth Amendment of the United States Constitution guarantees the right to effective assistance of counsel in criminal proceedings. Under the standard outlined in Strickland v. Washington, in order to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that 1) counsel's representation fell below an objective standard of reasonableness; and 2) counsel's actions were prejudicial to his defense, creating a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. The Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable." In addition, in setting forth his claim, the movant is required to make and substantiate concrete allegations of both unreasonable attorney conduct and actual prejudice. In assessing attorney performance, every effort must be made "to eliminate the distorting effects of hindsight."
Strickland v. Washington, 466 U.S. 668 (1984). See also Albury v. State, Del. Supr., 551 A.2d 53 (1988).
Strickland v. Washington, 466 U.S. at 688, 694; Albury v. State, 551 A.2d at 58.
Stone v. State, Del. Supr., 690 A.2d 924, 925 (1996); Flamer v State, Del. Supr., 585 A.2d 736, 753 (1990).
Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989); Harris v. State, Del. Supr., No. 418, 1987, Christie, C.J.(Mar. 4, 1988)(ORDER).
Strickland v. Washington, 466 U.S. at 688.
After listing various legal propositions in his petition for post-conviction relief Mundy states that defense counsel could have and should have filed a bill of particulars to find out more about the charges against the defendant prior to the trial; that counsel failed to file a motion for the suppression of "illegally obtained evidence and illegally obtained statements;" and, that photographs taken of the scene were not admitted but would have absolved him. He further contends that the 911 tape of the call to the police was relevant to proving his lack of guilt.
The purpose of a bill of particulars is to provide supplemental information to the indictment to further apprise a defendant of what he may expect to meet at trial. "It also serves to protect the defendant against unfair surprise during trial, and to preclude a second prosecution for an inadequately described offense." Generally, the remedy of a bill of particulars is utilized by a defendant to gain information as to the specific means allegedly employed in carrying out his alleged intent; however, it neither strengthens or weakens an information or serves to remedy a defective indictment.
Robinson v. State, Del. Supr., 600 A.2d 356, 361 (1991).
Lovett v. State, Del. Supr., 516 A.2d 455, 467 (1986) (citing to United States v. Cantu, 5th Cir., 557 F.2d 1173, 1178 (1977), cert. denied, 405 U.S. 936, 1048 (1972)).
State v. Deedon, Del. Supr., 189 A.2d 660 (1963).
In the case at bar, Mundy does not provide any information regarding the additional specific knowledge he sought to acquire through a bill of particulars, nor does he allege prejudice due to a lack of information regarding the charges against him. The indictment clearly described the charged offense with particularity and apprised Mundy and counsel of the elements of the specific offenses and the instrumentality used to carry out the alleged crime. Therefore, Mundy's argument that counsel should have requested a bill of particulars lacks foundation is placed.
Mundy claims counsel failed to keep him informed of the progress of the defense and developments in the case, including the "fact that the State had tangible objects within the possession, custody or control of the State which were material to the defendants [sic] defense and were intended to be used as evidence in chief [sic] at the trial and which the State alleged were obtained from defendant and belonged to the defendant." Mundy's claim is wholly conclusory and fails to demonstrate actual prejudice. In addition, Mundy admits that trial counsel did provide him with copies of the police report, indictment and relevant victim medical records. Clearly, as demonstrated by Mundy's own statement, he was kept apprised of the progress of his defense and provided with information regarding evidence in the possession of the State; therefore, this claim fails.
Mundy also contends ineffective assistance of counsel for counsel's failure to file certain suppression motions. However, once again, Mundy has failed to specifically identify the evidence and statements that he claims were illegally obtained and the illegality involved. Furthermore, assuming arguendo that counsel was ineffective for his failure to file motions to suppress various evidence, there has been no showing to a reasonable probability that the result of the trial would have been different; that is, there has been no showing of a probability sufficient to undermine the competence of the outcome of the trial. In reaching this decision, I have considered all of the evidence presented at the trial, including the extensive examination and cross-examination of Mundy and Officer Witte. Their testimony clearly indicates that Mundy was not in custody when he made certain damaging statements to the police; therefore, the argument that Mundy's statements were illegally obtained in violation of Miranda is specious. Furthermore, the testimony also indicates that the physical evidence collected immediately after the incident was in plain sight, thus a search warrant was not required. There is no prejudice in counsel's failure to seek suppression of the metal pipe or Mundy's non-custodial statements to the police. Based on the foregoing, this claim fails.
References to the April 8, 1999 trial transcript will be cited as TR1 at ___. References to the April 9, 1999 trial transcript will be cited at TR2 at ___.
See TR1 at 87-124; TR2 at 4-39.
TR1 at 92-94.
Lastly under this ground for relief; Mundy maintains the 911 tape should have been disclosed because it contained a call from "a woman [who is] a mutual friend of both the complaining witness and the defendant phoned the police because she saw Herbert Folks lying in the thoroughfare from her residence . . . but made no reference to an assault." He also maintains that photographs taken of the crime scene by the police should have been admitted into evidence because they were exculpatory. Mundy's claims of counsel's ineffectiveness are merely conclusory and offer no concrete showing of actual prejudice.
Mundy's assertions under this ground for relief have wholly failed to meet the standards of Strickland. As the recitation of the facts of his trial clearly reveals, his conviction was based on his own statements as well as testimony from the victim. The defendant admitted hitting and kicking the victim. The factual issue for the jury to consider was the defense of self-defense. The defendant has presented nothing about the photos, the 911 call, or the stick — not identified prior to trial but available at that time and referenced during the cross-examination of the investigating officer — which would have been pertinent to the dispute at trial. What Mundy's claim of ineffective assistance of counsel appears to boil down to is dissatisfaction with the manner in which trial counsel presented his case. "Mere disagreement over trial strategy is insufficient to prove ineffective assistance of counsel." The movant must demonstrate facts which indicate a "reasonable probability" the result would have been different had counsel handled movant's case differently. A reasonable probability is a probability sufficient to undermine confidence in the verdict or outcome. Mundy has failed to meet this standard. He has offered no evidence to support a reasonable probability the jury would have reached a different verdict had trial counsel pursued different tactics.
TR2 at 10-13.
Strickland v. U.S., 466 U.S. at 690-91.
Id. at 694-95.
Id.
Ground Two: Mundy contends his trial counsel provided ineffective assistance by failing to object to the State's "improper sandbagging" and "prejudicial trial strategy." Specifically, Mundy claims counsel should have objected to the introduction of the physical evidence, including the metal pipe and victim's clothing, as well as statements made by defendant to the police. Mundy also asserts counsel should have objected to the admission of his prior felony conviction, and in the alternative, argues that counsel "misused the theory of direct examination" by asking questions that caused him to reveal confidential information.
As with his claim of ineffective assistance asserted in the first ground, the Strickland standard must be met. Mundy's second ground for relief wholly fails the relevant test due to his conclusory statements and failure to demonstrate actual prejudice. Mundy provides no specific instances of counsel's failure to object to the admission of evidence or improper examination or cross-examination. He has also failed to present sufficient facts to demonstrate how counsel's failure to object to the presentation of the State's case could have affected the jury verdict.
As for his claim regarding counsel's failure to object to the admission of his prior felony conviction, Mundy's argument is factually incorrect. The evidence of his prior conviction was not introduced by the prosecution, but was first presented during Mundy's direct examination by trial counsel. When Mundy decided to testify, it was inevitable that his prior conviction would be revealed to the jury. His attorney followed a common strategy of eliciting it first, before the State could. In order to pursue the defense of self-defense, Mundy chose to testify. In so choosing, his prior record was admissible. Defense counsel acted reasonably in trying to limit the consequences of that evidence. Therefore, Mundy's second claim of ineffective assistance of counsel is insufficient for its failure to satisfy the Strickland test.
TR2 at 15.
Ground Three: In Mundy's claim of prosecutorial misconduct, the allegation is explained in defendant's motion as follows: the State failed to disclose until the day of trial the wooden stick which the "defendant claims the complaining witness Herbert Folks used to strike him in the face . . . on the night of the incident." Mundy adds that the prosecutor was unaware there was a stick inside the box of physical evidence until it was brought out during the recross examination of police officer Brian Witte. Mundy also argues that exculpatory statements concerning the "stick incident" were not disclosed to the defense prior to trial or during trial by the prosecution.
TR1 at 119.
In Brady v. Maryland, the United State Supreme Court held that the prosecution's failure to disclose evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. Although the Brady rule was designed to protect against the miscarriage of justice, "the prosecutor is not required to deliver his entire file to defense counsel but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." The rule applies to cases in which there is no pretrial request for Brady material, there is non-disclosure despite a specific pretrial request for Brady material, and non-disclosure despite a general pretrial request.
373 U.S. 83 (1963).
Michael v. State, Del. Supr., 529 A.2d 752, 755 (1987).
Id.
See United States v. Agurs, 427 U.S. 97 (1976).
To prevail on a claim of a Brady violation, the defendant must show: 1) that evidence was not disclosed until after trial; and 2) that, but for the non-disclosure, there is a reasonable probability that the result of the trial would have been different. A defendant must prove both prongs of the test. Although Brady and its progeny concern non-disclosure of material information which is discovered after trial, the Delaware Supreme Court has also held that disclosure just prior to trial can have the same prejudicial effect.
Brady v. Maryland, 373 U.S. 83 (1963). See Michael v. State, Del. Supr., 529 A.2d 752, 755-56 (1987) (citing United States v. Bagley, 473 U.S. 667 (1985)).
In testing for all Brady violations, the non-disclosed evidence is material only if there is a reasonable probability, that had the evidence been disclosed to the defense, the result of the proceeding would have been different. "Reasonable probability" has been defined by the United States Supreme Court as a probability sufficient to undermine confidence in the outcome of the trial. In evaluating the materiality of non-disclosed Brady information, this Court must assess the effect of the non-disclosure on the preparation or presentation of defendant's case given the totality of the circumstances. Accordingly, this Court must determine whether there is a reasonable probability that, had the bloody stick been disclosed to Mundy's attorney, the result of the trial would have been different.
United States v. Bagley, 473 U.S. 667 (1985).
Michael v. State, 529 A.2d at 756 (citing to United States v. Bagley, 473 U.S. 667 (1985)).
A careful review of Mundy's allegation of a Brady violation demonstrates that his claim is wholly unfounded. At trial, Mundy gave testimony that Folks hit him with the stick during their altercation. In addition, the stick in question was made available during defense counsel's recross examination of Officer Witte. Clearly, the evidence regarding the stick was disclosed prior to the end of the trial. While this Court does not condone the State's tardy disclosure, the defendant has not shown that counsel was unable to use the evidence to contradict the State's case and bolster its defense of self-defense. Thus, having failed to demonstrate that earlier disclosure of the stick would have resulted in a different verdict, the defendant fails the Brady test, thereby failing to prove prosecutorial misconduct due to a Brady violation.
TR2 at 9.
TR1 at 119-121.
Ground Four: Mundy contends that the prosecutor made improper statements during the State's closing and rebuttal arguments. Although Mundy does not provide specific instances of improper statements, this Court assumes the basis for this argument is the prosecutor's use of "I" and "we." The Delaware Supreme Court has discussed the issue of prosecutorial misconduct in closing arguments on several occasions, and has repeatedly warned that the use of the first person in closing arguments is dangerous and should be avoided. Although the prosecutor in his closing argument should not be confined to a repetition of the evidence and is allowed to explain all the legitimate inferences of the defendant's guilt that flow from the evidence, the prosecutor must remember his unique position within the adversary system. "[I]t is fundamental that his obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public."
See e.g., Trump v. State, Del. Supr., 753 A.2d 963 (2000); Miller v. State, Del. Supr., 750 A.2d 530 (2000); Brokenbrough v. State, Del. Supr., 522 A.2d 851 (1987); Hughes v. State, Del. Supr., 437 A.2d 559 (1981).
Miller v. State, Del. Supr., 750 A.2d 530 (2000).
Hooks v. State, Del. Supr., 416 A.2d 189, 204 (1980) (citing the ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, The Prosecution Function, § 1.1, Commentary at 44 [Approved Draft 1971].)
In Hughes v. State, the Delaware Supreme Court adopted a three-prong test for determining whether improper prosecutorial remarks required the reversal of a conviction because they prejudicially affected the substantial rights of the accused. The test requires this Court to determine: (1) the centrality of the issue affected by the alleged error; (2) the closeness of the case; and (3) the steps taken to mitigate the affects of the alleged error.
Del. Supr., 437 A.2d 559 (1981).
Id. at 571 (citing Dyson v. United States, D.C. App., 418 A.2d 127, 132 (1980)).
A review of the transcript of the prosecutor's closing argument reveals that the following statements should be discussed because they come closest to the type of improper remarks the Hughes test is designed to address.
But even if we believe what the defendant said, I still think the story fails.
TR2 at 57.
TR2 at 57.
* * * * *
And what I would suggest to you is that what he told the police two and a half years ago, minutes after the event happened, is going to be more accurate than what he says in court today, and that perhaps he's looking at [the metal pipe] now saying, oh no, it couldn't have been that big.
TR2 at 63.
Although the prosecutor may have improperly used the first person in his closing argument, such improper use did not affect the outcome of the trial. The use of the first person in the first statement was ill-advised; however, the Delaware Supreme Court has never adopted a rule that provides that the use of the word "I" or "we" in closing argument is per se improper. Instead, the Supreme Court has directed that "in the event that there is a contradiction in testimony, the universally accepted and proper form of comment on those contradictions should be used." That "universally accepted" form means using some variation of the phrase, "the evidence shows," rather than "I submit" or "I believe." As for the second statement, the use of the first person to potentially bolster the State's case regarding the metal pipe would not necessarily have distorted the jury's consideration of this particular evidence because the argument centered around defendant's recollection of the size of the pipe used, not whether or not he struck the victim. Furthermore, Mundy's allegedly questionable recollection of the size of the pipe did not make the result of the case close. The State had other substantial evidence, including Mundy's own non-custodial statements to the police, to support their case.
Id. (citing to Brokenbough v. State, Del. Supr., 522 A.2d 851, 859 (1987)).
Id.
This Court is satisfied in reviewing the entire transcript of the closing arguments of both the State and the defense, and then in reviewing the entire record as to the strength of the State's case, that the improper use of the first person by the prosecutor did not affect the outcome of this trial. In addition, defense counsel's failure to object to the use of the first person, though dubious, may have been a result of a tactical decision and did not so undermine the proper functioning of the adversarial process in this trial so as to produce an unjust result. This was not a close case; therefore, Mundy's assertion of prosecutorial misconduct must fail.
Ground Five: Mundy next claim of prosecutorial misconduct is based on arguments that the prosecutor admitted improper evidence and admitted evidence without proper foundation. Mundy also claims that the State did not demonstrate that the chain of custody for the metal pipe used in the incident was unbroken. In his motion, Mundy has not provided any particular instances of the admission of improper evidence or lack of foundation for admitted evidence. As for Mundy's claim regarding the chain of custody of the pipe, a review of the transcript reveals that the State did lay a proper foundation for its introduction and clearly demonstrated the integrity of the chain of custody. Mundy's statements are wholly conclusory and fail to show actual prejudice; therefore, this claim must also fail.
TR1 at 94-96.
Ground Six: Mundy asserts that his constitutional right to protection from illegal search and seizure was violated at the time of the incident because the police officers who responded to the scene did not have a warrant to "search and seize certain tangible objects," and that exigent circumstances were not present that would have justified a "warrantless search and seizure of premises under immediate control of the defendant on the night of arrest." The Fourth Amendment of the United States Constitution protects people from illegal searches and seizures by the State and provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The mere observation of objects within plain view of the police does not constitute a Fourth Amendment search. Although an item is observed within plain view, it does not justify its warrantless seizure. However, the United State Supreme Court has held that the warrantless seizure of items in plain view is legitimate when: (1) a law enforcement officer is lawfully in a position to observe them; and (2) the items' evidentiary value is immediately apparent. The Delaware Supreme Court has held that "`Plain view,' for purposes of search and seizure law, is a broad concept. An item is in plain view not merely when it is ordinarily observable by the average person, but also when it is discoverable by police officers in the normal course of their investigative duties." Delaware law also provides that a police officer may stop any person in a public place who he has reasonable grounds to suspect has committed a crime. When police have properly detained and/or arrested a suspect, any evidence recovered as a result of such action is admissible at trial.
Williamson v. State, Del. Supr., 707 A.2d 350, 358 (1998).
Id. (citing to Horton v. Calfornia, 496 U.S. 128 (1990) and Coolidge v. New Hampshire, 403 U.S. 443 (1971)).
Robertson v. State, Del. Supr., 704 A.2d 267, 268-69 (1997) (citing to Boardley v. State, Del. Supr., 612 A.2d 150 (1992)).
11 Del. C. § 1902.
Barrow v. State, Del. Supr., 749 A.2d 1230, 1241 (2000).
Mundy's assertions of illegal search and seizure are specious. The incident in question occurred in an alley, and both Mundy and the evidence at issue were found in this public place. When the police officers responded to the scene, they found Mundy standing over the prone and clearly injured victim. Mundy implicated himself in the crime. He pointed out the metal pipe to the officers. It was in plain view on the ground nearby and was observed by the officers in the course of their investigative duties. None of the evidence introduced at trial was obtained from either Mundy's person or the van in which he and the victim lived that was also parked nearby. Under these circumstances, no warrant was necessary either for Mundy's arrest or for the retrieval of evidence; therefore, the Court finds there was no violation of the defendant's Fourth Amendment rights. Thus, this claim must fail.
Ground Seven: Next, Mundy claims his statements that were introduced at trial were the product of improper custodial interrogation due to the police officer's failure to advise him of his Miranda rights. This failure, according to Mundy, resulted in his uninformed waiver of his right to remain silent and right to counsel.
Although raised in a slightly different context, this issue was been indirectly addressed under Mundy's first ground for relief wherein this Court concluded that Mundy was not in custody at the time he made the statements at issue, and therefore, was not required to be advised of his Miranda rights. The officer testified that upon arriving at the scene of the incident, he observed Mundy standing over the victim, ordered Mundy to walk towards him, and asked Mundy simply what happened. It was at that point that Mundy apparently admitted that he had beaten the victim with a metal pipe. The officer had not arrested Mundy nor taken him into custody at the time the statements were made, therefore, the officer was under no obligation to advise Mundy of his rights. Furthermore, Mundy's statements appear to have been contemporaneous and not as a result of any police interrogation. As noted earlier in this memorandum opinion, this argument is specious and Mundy's seventh ground for relief must be denied.
TR1 at 89-91.
TR1 at 91.
Ground Eight: In this ground for relief; Mundy argues the Trial Court improperly instructed the jury on the requirements of a defense of justification, also known as self-defense. Specifically, Mundy claims the instruction was incomplete in that it failed to provide that a person is not obliged to retreat in or from his own dwelling in order to avail himself of the deadly force exception to the justification defense.
Mundy raised the same issue on direct appeal when he claimed this Court erred in instructing the jury on self-defense by: stating that a person is entitled to use only such force as is "reasonably" necessary to repel an unlawful attack; failing to provide a definition of "unlawful force"; and failing to state that a person is not obligated to retreat from a "dwelling," as defined by statute. The Supreme Court held that "Mundy has failed to demonstrate plain error in the Superior Court's jury instructions." Furthermore, the Supreme Court held "the challenged jury instructions contained no legal error and permitted the jury to intelligently return its verdict," and that Mundy's rights were not prejudiced.
Thus, having been rejected by the Supreme Court, Mundy's claim of error in the jury instructions regarding his justification defense is one which was formerly adjudicated and, as such, is barred from consideration.
Ground Nine: Finally, Mundy contends the prosecution did not meet is burden of proof because it failed to properly authenticate or identify the physical evidence presented at trial pursuant to Delaware Rules of Evidence Rule 901. This rule provides, "(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."
In this case, a review of the transcripts demonstrate that the State properly authenticated all physical evidence admitted during the trial by proving the integrity of the chain of custody for each item. Furthermore, the metal pipe and each item of the victim's clothing were admitted without objection from defense counsel. Mundy's claim of improper authentication or identification of the evidence is specious and must fail.
IV. Conclusion
Mundy has argued nine separate grounds for postconviction relief Each ground is procedurally barred and/or is without merit on its face. An evidentiary hearing is unnecessary. Based upon the foregoing reasons, Mundy's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.