Opinion
Cr.A. Nos. IN01-07-1529-7530 (ID. No. 0106010693).
October 26, 2006.
Mr. Louis G. Price, Sr., Smyrna, DE.
Dear Mr. Price:
The record reflects that on August 12, 2005, you filed a motion seeking postconviction relief pursuant to Superior Court Criminal Rule 61. That motion was amended and resubmitted on July 13, 2006. Reduced to its essence, you seek to overturn your conviction for Murder First Degree and Possession of a Firearm During the Commission of a Felony following a trial by a jury. In support of that motion you have raised what appears to be fourteen challenges which fall into two categories, i.e., the alleged ineffective assistance of counsel thru malfeasance and nonfeasance as well as the violation of your right to due process of law occurring when the Court permitted the withdrawal of one of the attorneys initially assigned to defend you.
BACKGROUND
The record reflects that charges against you were tried beginning with the selection of the jury on April 8, 2003. A verdict of guilty on those two charges was returned on April 25, 2003. The jury found that you and your codefendant, Jamel Daniels, shot Kensworth Griffith to death on or about April 11, 2001, just over the Delaware-Pennsylvania line in Greenville, Delaware. The motive for killing Mr. Griffith was reputed to be that he owed you money for drugs consigned to him for sale. The homicide was witnessed by two other individuals, Jamik Mosley and Jose Martinez, who were involved in what was described as a drug distribution and/or sales enterprise in the Chester, Pennsylvania area. It was clear however that they had no advance knowledge of or involvement in the death of Mr. Griffith.
The record further reflects that John P. Deckers, Esquire and Andrew J. Witherell, Esquire were appointed to represent you on September 4, 2001. Mr. Deckers requested that he be allowed to withdraw as your counsel on February 4, 2003, because of a personal/family emergency. That request was granted on February 25, 2003. Joseph M. Bernstein, Esquire was appointed as Mr. Deckers' replacement that same day. No request for a continuance was made and counsel indicated that they were prepared to proceed with the trial as scheduled. After the verdict was rendered, Attorneys Witherell and Bernstein pursued a timely appeal to the Delaware Supreme Court which affirmed the convictions on September 29, 2004.
As to your ineffective assistance claim, you argue generally that counsel acted improperly. In terms of specifics, you complain that counsel failed to:
(1) pursue the suppression of evidence seized illegally in your rental vehicle and hotel room;
(2) pursue a "Massiah" motion;
(3) object to, or seek dismissal of the charges against you on the basis that accomplice liability should not have been introduced at trial;
(4) raise your competence to stand trial;
(5) to object to the vague instruction on the "state of mind requirement";
(6) object to the admission of "prior bad act" evidence;
(7) prepare for trial;
(8) object to State's offer of evidence regarding money you were owed by the decedent; and
(9) challenge the release of Dr. William McAvoy, a Botanist who performed testing on behalf to the New Castle County Police Department, from a subpoena securing his appearance at trial.
It is assumed that when Mr. Price refers to a " Massiah Motion" he is citing the United States Supreme Court opinion in Massiah v. United States, 377 U.S. 201, 206 (1964) (plurality opinion) (stating a defendant is denied the basic protections of the Sixth Amendment when there is used against him at his trial evidence of his own incriminating words, which federal agents have deliberately elicited from him after he has been indicted and in the absence of his counsel).
Pet. Amended Mot. for Postconviction Relief, at 1-42.
You do not identify to a significant degree whether the allegations apply to one or both of your defense counsel. Nor do you otherwise specifically define who did or did not do what, when or how. In any event, your claim to have been deprived of your right to counsel is guaranteed by the Sixth Amendment to the United States Constitution.
You further assert that the failure to challenge evidence illegally seized from you and presented at trial violated your Fourth Amendment rights. The facts associated with that claim go to counsels' planning and execution of your defense and are therefore governed instead by the Sixth Amendment.
You contend that the Court committed "error" because Mr. Deckers did not have an emergency and that permitting his withdrawal as your attorney forty-one days before trial hampered your defense. As a result, you claim to have been deprived of your right to a fair trial and due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution.
Discussion
The Court has consistently held that a predicate to addressing the merits of a Rule 61 motion is an examination to determine whether there are any existing bars based upon procedural grounds as set forth in Rule 61(i)(1)-(4). Those bars may only be lifted if there is a mechanism to do so in the pertinent subsection of Rule 61. If there is no relief there, the "catchall" provision of Rule 61(i)(5) may provide relief from procedural bars contained in 61(i)(1)-(3).
Grounds not presented in prior postconviction proceedings or formerly adjudicated claims are barred unless consideration of the claim is warranted in the interest of justice. Super. Ct. Crim. R. 61(i)(2) (4). Likewise, any ground for relief not asserted in the proceedings leading to the judgement of conviction are barred unless the movant shows cause for relief and prejudice. Super. Ct. Crim. R. 61(i)(3).
Rule 61(i)(5) provides that the aforementioned bars may be raised where the defendant establishes a colorable claim that there has been a "miscarriage of justice." A colorable claim of "miscarriage of justice" occurs when there is a "constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This exception to the procedural bars is very narrow and is only applicable in very limited circumstances. The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." In this case, it is apparent that the procedural bar of Rule 61 (i)(3) applies to your due process claim.
Super. Ct. Crim. R. 61(i)(5).
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
To be specific, you did not raise the "error" argument during the course of your direct appeal to the Delaware Supreme Court. Further, you have failed to establish that you should be excused for the default during the course of your appeal, or that the alleged violation resulted in any actual prejudice to you. In terms of the first condition, you offer no explanation, and for purposes of the second, you are unable to show how the presentation of your case was harmed by the substitution of counsel that took place. The same conclusion applies to the existence of a colorable claim of a miscarriage of justice, given the record put before the jury along with the Court's recollection of the performance of Mr. Bernstein. Consequently, there is no relief via Rule 61(i)(5) which would allow the Court to proceed to the merits of this claim.
Consideration of your claims that attorneys were ineffective, by its very nature, is not procedurally barred by any section of Rule 61. However, even when the Court reaches the merits of your claim, you have failed to establish that you are entitled to the relief sought.
See Mason v. State, 725 A.2d 442 (Del. 1999); and State v. McRae, 2002 De. Lexis 495, *5. When a movant alleges a colorable claim of ineffective assistance of counsel which is potentially procedurally barred under Rule 61(i)(1), (2) or (3), it appears that Rule 61(i)(5) would also cause the bar or bars to be raised because such a claim, by definition, is likely to constitute a "constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceeding." Super. Ct. Crim. R. 61(i)(5).
The prevailing standard for establishing a Sixth Amendment ineffective assistance of counsel claim is set forth in Strickland v. Washington. In that case, the United States Supreme Court declared that to establish such a claim a movant must prove that counsel's representation fell below an objective standard of reasonableness and that but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different. Notwithstanding the volume of materials submitted, you are unable to meet that burden for several reasons.
Strickland v. Washington, 466 U.S. 668, 694 (1984); See also Winn v. State, 1998 WL 15002 at *2.
First, Delaware law in this regard requires that you make concrete allegations of actual prejudice and substantiate them. The nine categories of complaint that you advance regarding counsel's performance and the probability that you were prejudiced are conclusory at best. Second, there is a strong presumption that counsels' trial strategy fell within the wide range of reasonable professional assistance. The allegations in question go to the trial strategy and/or overall decision making of your attorneys, but you fail to establish that those activities fell below that expected of counsel in such cases. Nor have you been able to otherwise overcome the presumption that they acted in a professionally reasonable manner. Without more, you clearly have not been able to establish the first prong of Strickland.
Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996); Jordan v. State 1994 WL 466142 (Del.); State v. Brittingham, 1994 WL 750341 (Del.Super.).
See Stone v. State, 690 A.2d 924, 925 (Del. 1996) (quoting Flamer v. State, 585 A.2d 736, 753 (Del. 1990) ("Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that the representation was professionally reasonable." (internal citation omitted)).
Given that conclusion, it is not necessary to reach the second. However, even if the Court were to do so, you do not offer any specifics as to the existence of prejudice or how the reliability of the proceedings were undermined as a result. The result would therefore be the same.
In this regard, the evidence of your guilt was overwhelming if the jury were to believe the witnesses who saw you and Mr. Daniels shoot Mr. Griffith, along with the forensic evidence presented by the State, which they apparently did. The complaints you raise about counsels' performance assuming arguendo that they are true, would not have changed the outcome of the trial. There was never any question as to your competence to stand trial and your attorneys were clearly prepared for that event.
To the extent that counsel did not object to the introduction of certain evidence, argue against the instructions given by the Court or seek dismissal of the charges against you, there was no viable legal basis to do so. Although you may not have agreed with what was done on your behalf, you have not been able to establish that if counsel acted as you now contend they should have, the outcome would have been different or at least unreliable.
Consequently, under any view, given the overall circumstances and the quantum of evidence related to the issues being tried versus that favorable to you, an appropriate defense was presented by counsel on your behalf.
For all the reasons set forth above, the Court must conclude you have failed to establish that the performance put forth by your attorneys was constitutionally inadequate. The same conclusion applies to your claim that the Court committed an error of a constitutional dimension in allowing the substitution of attorneys prior to trial. Your motion must be as a result, and hereby is, denied.