Opinion
ID #0108002382.
Submitted: January 29, 2004.
Decided: April 7, 2004.
On Defendant's Pro Se Motion for Postconviction Relief.
DENIED IN PART and SUMMARILY DISMISSED IN PART.
Cynthia Kelsey, Esquire, Deputy Attorney General John S. Edinger, Jr., Esquire, Assistant Public Defender Sheldon Ogle, Investigative Services.
ORDER
This 7th day of April, 2004, upon a motion for postconviction relief filed by Sheldon Ogle ("Defendant"), it appears to the Court that:
1. Defendant has filed this Motion for Postconviction Relief ("Motion") pursuant to Superior Court Criminal Rule 61. It is the first such motion that Defendant has filed. For the reasons stated below, Defendant's Motion is DENIED in part and SUMMARILY DENIED IN PART.
2. Defendant was found guilty by a Superior Court jury of Possession with Intent to Distribute Cocaine, Possession of Cocaine within 1,000 feet of a School and Possession of Cocaine within 300 feet of a Park. Defendant was sentenced to 5 years mandatory incarceration at Level V on the first conviction, 2 years incarceration at Level V on the second conviction (to be suspended for 2 years at decreasing levels of probation), and 1 year incarceration at Level V (to be suspended for 1 year at Level II). Defendant took an appeal of his conviction to the Delaware Supreme Court.
Defendant's trial counsel, John S. Edinger, Jr. ("Edinger"), filed a motion with the Supreme Court, with accompanying brief, to withdraw as counsel pursuant to Supreme Court Rule 26(c). Edinger asserted that based on a careful and complete examination of the record, there were no arguably appealable issues. Defendant supplemented his counsel's brief and raised two issues: 1) there was insufficient evidence to support his conviction because the State did not present proof beyond a reasonable doubt that he either possessed cocaine or that he intended to sell it, and 2) that one of the police officers perjured himself at trial by testifying that Defendant had money crumpled up in his pocket, rather than in his wallet, when he was searched. The Supreme Court affirmed finding that Defendant's appeal was without merit by order, which was decided November 1, 2002.
Ogle v. State, No. 112, 2002, Walsh, J. (November 1, 2002) (ORDER).
4. Defendant sets forth six allegations in his memorandum in support of the motion for postconviction relief: 1) he was prejudiced by the number of African-Americans in the jury services pool and the actual number of African-Americans impaneled; 2) he was denied his right to confront an expert witness; 3) that he and his car were illegally searched and evidence was illegally seized from his person and car; 4) that he was prejudiced at trial by being forced to wear prison attire rather than civilian clothing; 5) that the State withheld Brady material, specifically an alleged video of his booking and the inventory record from booking; and 6) a general allegation that the proceeding claims taken together evidence ineffective assistance of counsel and resulted in an unfair trial. Defendant's motion for postconviction relief is in essence a claim of ineffective assistance of counsel based on the first five claims.
Defendant claims that the video would show the police taking the money seized from Defendant out of Defendant's wallet and not out of his pants pockets, as testified to by Detective Vincent Jordan of the Wilmington Police Department. Defendant argues that by showing the video to the jury it would prove that Detective Jordan had committed perjury and thereby cast doubt on all of his testimony. The inventory record would show that Defendant had a hat when he was booked. Defendant argues that he was wearing his hat at the time of the surveillance and therefore the testimony that the police observed an African-American male with dreadlocks was a misidentification. Defendant also claims that the State and his trial counsel withheld from the jury that the "dog sniff' tested negative for the presence of cocaine on the money.
Edinger submitted an affidavit in response to Defendant's motion as per the Court's order. In his affidavit, Edinger counters Defendant's claim of prejudice because there was only one African-American juror. Edinger states that "[t]he jury services juror profile indicated five blacks and one Hispanic were summoned to appear." Edinger asserts that "[d]efense objected to State's request to strike the first prospective black juror for cause . . . [and] [d]uring the jury selection a black juror was seated and no black jurors were stricken by the State or Defense." Edinger asserts further that "he did not object to the admission of the Medical Examiner's report without the presence of the Medical Examiner at trial because the Medical Examiner's report was offered pursuant to 10 Del. C. § 4330- 10 Del. C. § 4332." Edinger did not object to the search of defendant's person or car because the "only evidence against Defendant present at trial which was seized from Defendant was the officer's testimony regarding $276 . . . [which] was seized after the Defendant was arrested." Edinger contends that he told Defendant about the trial date during a "videophone meeting on January 17, 2002 . . . [and] [d]uring the lengthy discussion of Defendant's case [he] did not request arrangements to be made for civilian attire." Edinger states that he did not object to the potential Brady material regarding a video of Defendant being booked because he was not made aware of any video by Defendant until after trial. Edinger further states that he "did not pursue the issue of the `dog sniff' test at trial because he was told by the prosecutor that the witness would testify that the K9 gave a positive indication for the presence of drugs on the defendant's money."
John S. Edinger Aff at 1.
John S. Edinger Aff at 1.
John S. Edinger Aff at ¶ 4.
John S. Edinger Aff at ¶ 4.
John S. Edinger Aff at ¶ 5.
The State for its part argues that Defendant's claim of ineffective assistance of counsel and his five allegations in support have "failed to [set forth] any deficiencies in the legal representations afford him by his trial counsel . . . [and] he has failed to show that the deficiencies he alleges affected the outcome of his case." The State asserts that Defendant was not prejudiced by the jury selection process because there were five African-Americans in the jury pool and one was empanelled. The State argues that even if trial counsel should have objected to the Medical Examiner's report being introduced by a non-expert, Defendant has failed to allege how the outcome of the trial would have been different if the Medical Examiner had testified at trial about the report. There was no evidence seized from Defendant's car; therefore, the State claims there was nothing for trial counsel to attempt to suppress. The State contends that trial counsel's notes of the January 17 videophone meeting are more trustworthy than Defendant's assertion that he did not know when his trial date was and that he had tried to arrange for civilian clothing for trial. As to the Brady material, the State argues that it has no knowledge of a "booking video" and if one existed it would not show anything that was exculpatory for Defendant. The State asserts that the property receipt, which Defendant appears to believe includes exculpatory evidence, only shows the existence of a hat on the Defendant's person when he was booked, but it would not show whether he was wearing the hat or not when he was arrested. Further, the State argues the property receipt merely shows that Defendant had a wallet when he was arrested, but it would not show if the money seized was in the wallet or in his pant's pocket. As to the "dog sniff," the State argues that the "test was positive [for the presence of drugs] and it was not admissible in a criminal trial."
State's Resp. at 5.
State's Resp. at 3.
State's Resp. at 4.
State's Resp. at 4.
State's Resp. at 4.
State's Resp. at 4.
State's Resp. at 5.
4. To succeed on a claim of ineffective assistance of counsel, Defendant must show that "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Younger v. State, 580 A.2d 552, 555-56 (Del. 1990).
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
5. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Superior Court Criminal Rule 61. Rule 61(i)(3) provides that "any ground for relief that was not asserted in the proceeding leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights." The procedural bar of Rule 61(i)(3) may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bar to relief in paragraph . . . (3) . . . shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This "fundamental fairness" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after [a] direct appeal."
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger, 580 A.2d at 554 (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Younger, 580 A.2d at 555.
Superior Court Criminal Rule 61(d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal. . . ." Thus this Court will not address claims for postconviction relief that are conclusory and unsubstantiated.
Younger, 580 A.2d at 555 (stating that "conclusory . . . allegations of ineffectiveness of counsel" do not "lead . . . to the conclusion that the claim should be considered . . .").
6. Defendant is not entitled to the relief he requests relative to his claim that he was prejudiced by the number of potential African-American jurors in the jury pool and the number actually called to serve. The Defendant mistakenly appears to believe that he is entitled to a jury panel that fits the exact racial make up of his neighborhood or city. The State constitution, the United States Constitution, and 10 Del C. § 4501, all guarantee that Defendant's jury will be selected at random from a fair cross section of the population. However, he is not guaranteed a perfectly representative jury because the nature of random selection makes it inevitable that a jury may on occasion fail to represent the exact demographic make-up of the community. A violation of § 4501 cannot be supported by a solitary showing that African-Americans were underrepresented as a result of excusals granted for personal reasons or for cause; therefore this claim is DENIED.
Gattis v. State, 637 A.2d 808 (Del. 1994).
Riley v. State, 496 A.2d 997 (Del. 1985).
7. Defendant is not entitled to the relief he requests relative to his claim that his Constitutional right to confront a witness was violated because of the Medical Examiner's report being introduced into evidence without the presence of the Medical Examiner at trial. Trial counsel did not object to the introduction of the Medical Examiner's report by someone other than the Medical Examiner because the report was offered pursuant to 10 Del. C. § 4330- 10 Del. C. § 4332. Trial counsel could have made a 5 day demand letter prior to trial requiring the presence of the Medical Examiner pursuant to § 4332; however, there is no allegation or showing that the outcome of the trial would have been different if the Medical Examiner had testified at trial therefore this claim is DENIED.
8. Defendant is not entitled to the relief he requests relative to his claim that his 4th Amendment rights were violated when his car and person were searched and evidence seized. As to the search and seizure of Defendant's car, even if the Court accepts Defendant's argument, there was no evidence seized and used against him. Defendant in his memorandum in support of his motion concedes that the money seized from him was taken after he had been placed under arrest and he was being booked; therefore it was not an illegal search and seizure and for that reason this claim is DENIED.
Def's Memo. at 6-7.
9. Defendant is not entitled to the relief he requests relative to his claim that he was prejudiced at trial by being forced to wear prison attire rather than civilian clothing. Such a conclusion is particularly warranted where, as has here, the party charged with misconduct has submitted an affidavit tending to refute entirely the conclusory and unsubstantiated allegations; therefore this claim is DENIED.
10. Defendant is not entitled to the relief he requests relative to his claim that the State withheld Brady material. Defendant makes the unsubstantiated claim that a video was made of his booking. According to trial counsel, Defendant never mentioned the existence of a video and counsel was only made aware of this allegation after trial. The State disputes the existence of any video tape and asserts that to the best of its knowledge no video tape was made. Defendant's claim is based on the premise that the video would show that Detective Jordan perjured himself when he testified at trial that the money seized from Defendant was found in his pants pockets and not in his wallet, which Defendant claims the video would show. This claim has already been adjudicated by the Supreme Court and held to be without merit; therefore, under Superior Court Rule 61(i)(4) this claim has been formerly adjudicated and is barred. Defendant's claim is SUMMARILY DISMISSED.
11. Defendant is not entitled to the relief he requests relative to his general allegation that the proceeding claims taken together evidence ineffective assistance of counsel and resulted in an unfair trial. Because this Court holds that the five allegations made by Defendant to support his motion for postconviction relief, and taken as whole to support his allegation of ineffective assistance of counsel, have been denied, the Defendant's claim of ineffective assistance of counsel is DENIED.
Based on the foregoing, Defendant's Motion for Postconviction Relief is DENIED in part and SUMMARILY DISMISSED in part.