Opinion
ID No. 1301011443A
03-28-2017
STATE OF DELAWARE v. MAX TURNER Defendant.
Colleen Norris, Deputy Attorney General, Department of Justice, Carvel State Building, 820 N. French Street, 7th Floor, Wilmington, DE 19801, Attorney for the State Max Turner, SBI No. 00416831, James T. Vaughn Correctional Center, 1811 Paddock Road, Smryna, DE 19977, pro se
OPINION Upon Defendant's Motion for Postconviction Relief, DENIED.
Upon Conflict Counsel's Motion for Appointment of Counsel, DENIED. Colleen Norris, Deputy Attorney General, Department of Justice, Carvel State Building, 820 N. French Street, 7th Floor, Wilmington, DE 19801, Attorney for the State Max Turner, SBI No. 00416831, James T. Vaughn Correctional Center, 1811 Paddock Road, Smryna, DE 19977, pro se BRADY, J.
I. INTRODUCTION
Before the Court is a Motion for Postconviction Relief and Motion for Appointment of Counsel filed pursuant to Superior Court Criminal Rule 61 ("Rule 61") by Max Turner ("Defendant") which was received by the Court on January 3, 2017. The Defendant raises seven arguments in support of his Motion: (1) the State lacked sufficient evidence to convict the Defendant of Murder in the Second Degree; (2) the Court erroneously admitted eyewitness testimony of individuals who the Defendant claims could not have identified him; (3) the Defendant's trial attorney was ineffective because the Defendant contends he was forced to waive his right to testify on his behalf; (4) the Defendant's attorneys were ineffective because they were "aware the prosecutor withheld information about who was the shooter and was not [the Defendant] because the Wilmington Detectives recovered the weapon-gun from the shooter who admitted he was the shooter;" (5) the Defendant was denied his right to a speedy trial; (6) police conducted an warrantless search of the Defendant's cell phone; and (7) the Defendant maintains his innocence of the crimes to which he was found guilty.
See Def.'s Mo. for Postconviction Relief, State v. Max Turner, Id. No. 1301011443A, at *3 (Jan. 3, 2017).
II. FACTS & PROCEDURAL BACKGROUND
The facts are adopted from the Delaware Supreme Court's mandate affirming the Defendant's convictions and sentence. Turner v. State, 127 A.3d 1169 (Table) (Del. 2015).
On January 22, 2013, a New Castle County grand jury indicted the Defendant on charges of Murder in the Second Degree, Assault in the Second Degree, Reckless Endangerment in the First Degree, three counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), and Possession of a Firearm By a Person Prohibited ("PFBPP"). The Superior Court later severed the PFBPP charge. The charges arose from the tragic shooting on July 24, 2012, of two people, one of whom died, who were innocent bystanders in a street shooting. After a seven day trial in the Superior Court in June, 2014, the jury found the Defendant guilty of all charges. The Court found the Defendant guilty of PFBPP. The Defendant was sentenced to a total of seventy eight years at Level V, suspended after sixty nine years for decreasing levels of supervision.
On January 3, 2017 the Court received the instant Motion for Postconviction Relief and Request for Appointment of Counsel filed by the Defendant. The Court did not request any submissions from the State, the Defendant's trial counsel, or the Defendant, and took the matter under advisement. This is the Court's decision.
III. PROCEDURAL BARS
Before addressing the merits of Defendant's claims, the Court must apply the procedural bars set forth in Superior Court Criminal Rule 61(i). The version of the Rule in effect at the time that this Motion was filed, requires the Court to reject a motion for postconviction relief if it is procedurally barred. That Rule provides that a motion is procedurally barred if the motion is untimely, repetitive, a procedural default exists, or the claim has been formerly adjudicated.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
As the Delaware Supreme Court noted in Collins v. State, a Motion for Postconviction Relief is controlled by the version of Rule 61 in effect when the motion was filed and not by any former version of the rule. Collins v. State, 2015 WL 4717524, at *1 (Del. Aug. 6, 2015).
See Super. Ct. Crim. R. 61(i)(1)-(4).
The relevant portion of Rule 61(i)(1) provides that a motion for postconviction relief is time barred when it is filed more than one year after the conviction has become final or one year after a retroactively applied right has been newly recognized by the United States Supreme Court or by the Delaware Supreme Court.
Super. Ct. Crim. R. 61(i)(1).
Rule 61(i)(5) provides that the procedural bars can be overcome if Defendant claims the Court lacked jurisdiction, or pleads with particularity new evidence exists that creates a strong inference that the movant is actually innocent in fact, or a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case and renders the conviction invalid.
Id.
The Defendant's Motion is procedurally barred as untimely. The Court received the Defendant's Motion for Postconviction Relief on January 3, 2017. The Delaware Supreme Court affirmed the Defendant's conviction and sentence on November 9, 2015. Therefore, the Defendant had until November 9, 2016 to file a timely Motion for Postconviction Relief. The Defendant's Motion was received by the New Castle County Prothonotary's Office on December 19, 2016, and received in this Court's chambers on January 3, 2017. The Defendant failed to file his Motion in a timely manner. Even if the Court accepted the filing date of the Defendant's Motion as December 14, 2016, the date which appears next to the Defendant's signature within his Motion, the Motion is still untimely.
Turner v. State, 127 A.3d 1169 (Table) (Del. 2015).
The Court finds that the Defendant has failed to overcome the procedural bar enumerated in Rule 61(i)(5). The Defendant has not claimed, with any particularity, the existence of new evidence which creates a strong inference of his actual innocence of the crimes to which he was found guilty. Further, the Defendant has failed to identify a retroactively applicable right that has been newly recognized that would render his conviction invalid, so that exception is inapplicable.
Even if the matter was timely filed, several of the claims which have been raised by the Defendant, specifically: that the State lacked sufficient evidence to convict the Defendant of Murder in the Second Degree, that the Court erroneously admitted eyewitness testimony of individuals who the Defendant claims could not have identified him, that the Defendant was denied his right to a speedy trial, and that police conducted an warrantless search of the Defendant's cell phone, are procedurally barred because the Defendant failed to assert those arguments in the proceedings leading to his conviction. The Defendant fails to show cause for relief from the procedural default, and any prejudice which he suffers.
See Super. Ct. Crim. R. 61(i)(3).
The Defendant's claims that his trial counsel was ineffective are unsubstantiated and properly subject to dismissal, apart from being procedurally barred as untimely. Conclusory and unsupported claims of ineffective assistance of counsel are properly summarily dismissed by this Court. The Defendant's first claim, that trial counsel forced him to waive his right to testify is contradicted by the Defendant's own statements made to the Court. After the Court thoroughly explained the right to, and consequences of, taking the stand to the Defendant, the Defendant waived his right to testify. The Defendant's next claim, that his counsel were ineffective because they were "aware the prosecutor withheld information about who was the shooter and was not [the Defendant] because the Wilmington Detectives recovered the weapon-gun from the shooter who admitted he was the shooter," is without merit. The Defendant's claim that the individual found with the gun admitted to the shooting is a conclusory statement, not supported by any evidence. The argument that the individual found with the handgun hours after the shooting was addressed at trial, dismissed by the jury, and was then addressed by the Supreme Court, and found to be without merit.
See State v. Mercadante, 2011 WL 3716975, at *2 (Del. Super. Aug. 22, 2011)
See Transcript of Trial Testimony, State v. Turner, Id. No. 1301011443A and B, at *77-79 (June 17, 2014) (The Court: The right to testify or not to testify in a criminal trial is given to you personally by the United States Constitution. It is not a decision that your lawyer has the authority to make. You can talk to him about what you think is best to do, but ultimately the choice about whether to take the stand and testify in your defense, or to not take the stand is yours. If you don't take the stand, the jury will be instructed that they cannot consider that as evidence of your guilt. They are not to determine your guilt or innocence based on the fact that you didn't take the stand in anyway. If you do take the stand, you will be able to be questioned, not only by your own attorney, but by the State's attorney, as well...The Court: Have you had sufficient time to talk with your attorney about whether you wish to testify in the trial or not? The Defendant: Yes. The Court: Have you made a decision about whether you wish to testify at trial or not? The Defendant: Yes. The Court: What is your decision, sir? The Defendant: No. The Court: No, no you will not testify in this trial? The Defendant: No).
See Def.'s Mo. for Postconviction Relief, State v. Max Turner, Id. No. 1301011443A, at *3 (Jan. 3, 2017).
The Supreme Court considered the Defendant's claim that the Superior Court abused its discretion when it admitted into evidence a 9 millimeter handgun found on a third party, Iban Rice, several hours after the shooting. The Supreme Court dismissed the claim, because Police found the 9 millimeter handgun on Iban Rice within hours and blocks of the shooting, an eyewitness placed Iban Rice near the Defendant at the time of the shooting, at the crime scene police found 9 millimeter shell casings and a 9 millimeter projectile, and within hours of the shooting, the Defendant sent text messages to his girlfriend that police had arrested Iban Rice with "tha gun" and the Defendant "might b goin for a while." --------
IV. CONCLUSION
For the reasons stated above, the Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED. Further, the Defendant's Motion for Appointment of Counsel is DENIED.
IT IS SO ORDERED.
/s/_________
M. Jane Brady
Superior Court Judge