Opinion
I.D.# 9912006359
Submitted: April 11, 2003
Decided: July 2, 2003
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
ORDER
This 2nd day of July, 2003, upon consideration of a pro se Motion for Postconviction Relief filed by James A. Wilson ("Defendant"), it appears to the Court that:
1. Defendant has filed this Motion for Postconviction Relief (the "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.
2. On May 10, 2001, a Superior Court jury convicted Defendant of Trafficking in Cocaine (title 16, section 4753A(a)(2) of the Delaware Code), Possession with Intent to Deliver Cocaine (title 16, section 4751(a) of the Delaware Code), Maintaining a Dwelling for Keeping Controlled Substances (title 16, section 4755(a)(5) of the Delaware Code), Possession of Marijuana (title 16, section 4754(a) of the Delaware Code), and Possession of Drug Paraphernalia (title 16, section 4771 of the Delaware Code). On September 7, 2001 this Court sentenced Defendant to 10 years at Level V for the Trafficking charge, three years of which are mandatory, with the remaining charges all carrying various probationary sentences. Immediately before he was sentenced, Defendant moved for a judgment of acquittal and/or a new trial, largely on the grounds that a forensic examiner was not called to establish "chain of custody" relative to the drugs Defendant was charged with possessing and trafficking; the Court denied both motions. Defendant's convictions were thereafter affirmed on direct appeal.
State v. Wilson, Del. Super., I.D.# 9912006359, Cooch, J. (Sept. 7, 2001) (Bench Ruling).
Wilson v. State, No. 446, 2001, 2002 WL 31106354 (Del. Sept. 18, 2002).
Defendant's trial had originally begun on November 2, 2000; at that time, Defendant had been represented by an attorney from the Office of the Public Defender. That trial was not prosecuted to completion, however, because on November 3, 2000, this Court granted Defendant's application for a mistrial, largely because there had been no evidence of complete "automatic discovery" having been made to the Defendant pre-trial; apparently, the State had failed to provide to Defendant a copy of a federal "consent to search" form that ultimately resulted in a search by the Dover City Police of the area where Defendant and the drugs had been located. Following the granting of this mistrial, a new trial date was set.
State v. Wilson, Del. Super., I.D.# 9912006359, Cooch, J. (Nov. 3, 2000) (Bench Ruling).
Defendant elected to proceed pro se at his second trial. Prior to the second trial, however, Defendant (then represented by an attorney other than the public defender who had earlier represented him) filed a motion to suppress evidence and a motion to dismiss, on double jeopardy grounds. At the hearing held on those motions, Defendant argued that: 1) he had already once been placed into jeopardy by virtue of the fact that a jury had been sworn in his first trial prior to the granting of the mistrial; 2) the person executing the "consent to search" form had no authority to do so; 3) the Dover City Police exceeded the scope of the form while conducting its search; 4) the Dover City Police exceeded the scope of a permissible search incident to arrest; and 5) the search was in no way done as part of any legitimate "protective sweep" of the premises. Defendant did not himself testify at this hearing, and an affidavit since executed by his counsel from that time indicates that Defendant informed counsel that "he did not wish to testify." The Court thereafter denied both the motion to dismiss and the motion to suppress; the Court so disposed of the motions assuming arguendo that Defendant had standing to contest the search.
Andrew J. Witherell Aff. ¶ 8 (Dkt. #120).
State v. Wilson, Del. Super., I.D.# 9912006359, Cooch, J. (Mar. 16, 2001) (Bench Ruling).
Following his second trial and resulting convictions, and in his direct appeal, Defendant apparently argued many of the same issues that were presented at the suppression hearing. The Supreme Court's opinion affirming Defendant's conviction indicates that Defendant argued:
On appeal, Defendant was again represented by counsel who provided assistance at the time of argument on the motion to suppress.
[T]he Superior Court erred in denying his motion to suppress because: (i) he had standing to contest the search of another person's home; (ii) the person who consented to the search did not have authority to do so; (iii) the search exceeded the scope of the consent; (iv) the search exceeded the scope of a lawful search pursuant to an arrest; and (v) the search was not permissible under the protective sweep doctrine.
Wilson v. State, 2002 WL 31106353 at *1.
In affirming Defendant's convictions, however, the Supreme Court found the "standing" issue dispositive, as reflected by the following:
The fact that . . . [Defendant] was alone in . . . [the other person]'s home in the afternoon [of the day of the search] . . . establishes only that he was a casual guest. As such, [Defendant] has no standing to contest the validity of the search. The [Superior] [C]ourt, therefore, was correct in denying [Defendant]'s motion to suppress evidence.
Id.
Defendant's Motion for Postconviction Relief followed approximately one year later.
Following the submission of his Motion, Defendant filed a "Motion of Default Judgment" (Dkt. #112), a "Default of Judgment" (Dkt. #114), a "Motion to Request Ruling As Is Unopposed" (Dkt. #117), and a Petition for Writ of Mandamus, all because Defendant's suppression hearing counsel failed to timely submit an affidavit, as requested by the Court in connection with the motion. The Supreme Court has since dismissed the Petition for Writ of Mandamus because Defendant "ha[d] not demonstrated that the Superior Court ha[d] arbitrarily failed or refused to perform a duty." In re Wilson, No. 73, 2003, 2003 WL 1747395, at *1 (Del. Mar. 31, 2003).
3. Defendant raises three arguments in his Motion: 1) that his suppression hearing counsel was ineffective because he (a) failed to establish that Defendant had "standing" to assert a constitutional violation, and (b) failed to subpoena the forensic examiner so that the forensic examiner could be cross-examined concerning "chain of custody"; 2) that title 10, section 4332 of the Delaware Code was violated because this Court granted Defendant's motion to proceed pro se on May 8, 2001 but his second trial began on May 10, 2001; and 3) that because his first trial ended in a mistrial because of an apparent "automatic discovery" violation, Defendant should not have been re-tried in May 2001.
Section 4332 generally provides that in a criminal prosecution, "the prosecution shall, upon written demand of a defendant filed in the proceedings at least 5 days prior to the trial, require the presence of the forensic toxicologist or forensic chemist, or any person in the chain of custody as a prosecution witness."
Defendant has attached a 12-page handwritten memorandum (with exhibits) to his Motion, which expands upon the ineffective assistance of counsel argument he asserts for postconviction relief. With regard to his "standing" argument, Defendant asserts that his suppression hearing counsel "made no effort . . . to establish that Defendant ha[d] a reasonable expectation of privacy in the premises searched[,]" and that he "never was advised . . . that to show standing [he] would have [had] to testify concerning how many nights he had already stayed there . . . ." With regard to his claim that the forensic examiner should have been called at the suppression hearing, Defendant contends that a "report of drug property . . . seized [listed] the suspected cocaine [as] weigh[ing] 16 grams, however the . . . [forensic] examiner report states that the cocaine weight was 13.83 grams"; this discrepancy, Defendant argues, leads to the conclusion that "there was a need for the . . . [forensic] examiner to be at . . . [the hearing] for cross-examination . . . which would have produced a conflict of interest in the chain of custody."
Def.'s Mem. in Support of Mot. at 7.
The "Report of Drug Property Collected, Purchased or Seized" (Ex. "H" to Def.'s Mot.) lists the substance seized as "approximately 16 grams of cocaine."
Id. at 10.
Defendant's suppression hearing counsel submitted an affidavit in response to Defendant's Motion. In his affidavit, counsel states that at Defendant's suppression hearing, he raised "all issues . . . considered to be meritorious" and that "[t]he issues were discussed with [D]efendant . . . on or about the time of filing [of the suppression motion]." With regard to the potential calling of the forensic examiner, counsel submits that he did not demand the examiner's presence at the hearing because he had "received from the State . . . all applicable discovery" and that he "did not consider the testimony of the [forensic] examiner as a critical part of the case" because the substance seized "tested positive for the presence of cocaine and . . . was sufficiently greater than the minimum 5 grams required for Trafficking. . . ." With regard to Defendant's argument that he should not have been re-tried, counsel states that he "considered this issue totally frivolous."
Andrew J. Witherell Aff. ¶ 6.
Id. ¶ 13. The Court notes that the main offense for which Defendant was charged, i.e., Trafficking in Cocaine, requires a defendant to possess a quantity of "5 grams or more. . . ." DEL. CODE ANN. tit. 16 Del. C. § 4753A(a)(2) (1995).
Id. ¶ 15.
Finally, the State contends that all of Defendant's claims asserted in his Motion are procedurally barred. The State submits that because the Supreme Court affirmed this Court's earlier rulings in connection with Defendant's suppression motion, and because this Court denied Defendant's motion for judgment of acquittal and motion for new trial, Defendant's claims of ineffective assistance of counsel are barred as "hav[ing] been previously adjudicated" and not deserving of review "in the interest of justice." The State contends that Defendant's claims relative to the forensic analysis of his case are barred because Defendant "waived th[ese] claim[s]" by not having previously presented them, and that Defendant "has not presented any evidence that would support a finding of cause and prejudice to allow the [C]ourt to circumvent th[at] . . . bar."
State's Resp. to Def.'s Mot. at 4.
Id. at 5.
Id.
Even if the procedural bars of Superior Court Criminal Rule 61 do not apply, the State contends that Defendant has failed to demonstrate ineffective assistance of counsel. With regard to Defendant's "standing" argument, the State contends that "[a]ssuming counsel's representation fell below [an] objective standard of reasonableness . . . the result of [D]efendant's motion [to suppress] . . . would not have been different" because this Court denied that motion by assuming for the sake of argument that the Defendant did have standing; thus, the State argues, "Defendant cannot articulate how he was prejudiced by this alleged error." With regard to counsel's decision not to subpoena the forensic examiner, the State posits that "[i]t is clear from counsel's affidavit that he did not subpoena the . . . examiner for tactical reasons" and that these tactics "were clearly reasonably and effective." Lastly, with regard to Defendant's double jeopardy argument, the State contends that "[c]ounsel states in his affidavit that the double jeopardy argument was `totally frivolous'" and that therefore "counsel took reasonable steps" to protect Defendant's interests.
Id. at 7.
Id.
State's Resp. to Def.'s Mot. at 8.
Id.
4. 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)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." The "interest of justice" exception of Rule 61(i)(4) has "been narrowly defined to require the movant to show that the trial court lacked the authority to convict or punish [the movant]." Additionally, 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 v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)
Younger, 580 A.2d at 555.
5. Applying the rule's procedural bars to the claims Defendant now asserts, the Court finds that most of Defendant's contentions have been previously adjudicated, and are therefore subject to Rule 61(i)(4). In previously ruling on his motion to suppress evidence, this Court assumed for the sake of argument that Defendant had standing before ruling that that motion should nonetheless be denied. In affirming Defendant's convictions, the Supreme Court explicitly ruled that Defendant did not have standing, despite his apparent arguments to the contrary before that Court. This Court did not therefore lack the authority "to convict or punish," so Defendant's claims relative to the suppression of evidence are barred because the "interest of justice" exception of Rule 61(i)(4) does not apply.
Wright, 653 A.2d at 298; Flamer, 585 A.2d at 746.
Defendant's claims relative to his argument that his second trial illegally placed him in jeopardy twice for the same offense are likewise barred because of previous adjudication. As stated, Defendant made this same argument through counsel prior to his second trial having begun, and the Court denied the motion. As this claim was formerly adjudicated "in the proceedings leading to the judgment of conviction," it is now ineligible for reconsideration.
State v. Wilson, Del. Super., I.D.# 9912006359, Cooch, J. (Mar. 16, 2001) (Bench Ruling).
SUPER.CT.CRIM.R. 61(i)(4).
Like his claims relative to the suppression of evidence and to double jeopardy, Defendant's claim relating to a failure to utilize a forensic examiner at trial to establish "chain of custody" is similarly barred as previously adjudicated. As stated, immediately before sentencing, Defendant moved for a judgment of acquittal and/or a new trial, largely on the grounds that a forensic examiner was not called to establish "chain of custody" relative to the drugs Defendant was charged with possessing and trafficking, and the Court denied both motions. Again, as this claim was formerly adjudicated in the proceedings leading to the judgment of conviction, it is now ineligible for reconsideration.
State v. Wilson, Del. Super., I.D.# 9912006359, Cooch, J. (Sept. 7, 2001) (Bench Ruling).
To the extent that the "interest of justice" exception of Rule 61(i)(4) could potentially apply to Defendant's claims of double jeopardy and failure to establish "chain of custody," the grounds that would have supported this exception (i.e., that this Court "lacked the authority to convict or punish") should have previously been argued; the failure to argue such grounds therefore subjects Defendant to the procedural default of Rule 61(i)(3). Because these grounds were not previously argued before this Court, and because Defendant was represented by counsel on appeal, any argument against procedural default would need to satisfy the two-pronged test of Albury v. State 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 connection with this matter, counsel has submitted an affidavit in which he indicates that he "did not consider the testimony of the [forensic] examiner as a critical part of the case" and that, with regard to Defendant's double jeopardy argument, he "considered this issue totally frivolous."
551 A.2d 53 (Del. 1988) (adopting Strickland v. Washington, 466 U.S. 668 (1984)).
Albury, 551 A.2d at 58.
Andrew J. Witherell Aff. ¶ 13.
Id. ¶ 15.
As the Strickland Court recognized, "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Because of the difficulties inherent in making that evaluation, "a court must indulge a strong presumption that, under the circumstances, the challenged action `might be considered sound trial strategy'."
Strickland, 466 U.S at 689.
Id.
Applying those standards here, this Court cannot say that counsel's performance fell below an objective standard of reasonableness, or that Defendant was prejudiced by any of counsel's tactical decisions. As stated, this Court has already once ruled that Defendant's arguments concerning double jeopardy were without merit, and counsel for Defendant has indicated that on appeal he therefore considered this issue to be without merit. A strategy that structures appellate arguments on "those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."
Flamer, 585 A.2d at 758 (citing Smith v. Murray, 477 U.S. 527, 536 (1986)).
Likewise, counsel for Defendant's decision not to summon the forensic examiner cannot now be said to be constitutionally defective. Although Defendant argues that cross-examination of the examiner would demonstrate a "conflict" in that examiner's testimony (and presumably demonstrate a defect in the "chain of custody" linking the seized drugs to Defendant), the "Report of Drug Property Collected, Purchased or Seized" lists the substance seized as "approximately 16 grams of cocaine" and the statute requires only "5 grams or more. . . ." Simply because the weight of the substance was ultimately determined to be 13.83 grams does not demonstrate a break in the chain because the 16 gram weight assignment by its terms was only an approximation.
DEL. CODE ANN. tit. 16 Del. C. § 4753A(a)(2) (1995).
Finally, with regard to Defendant's argument relative to the prosecution's not having summoned the examiner pursuant to title 10, section 4332 of the Delaware Code, that statute states that such action will occur only "upon written demand of a defendant." Here, no demand was made, and this issue was not heretofore presented. Simply because Defendant was granted his request to proceed pro se during his May 2001 trial does not mean the Court should have sua sponte granted a continuance so that (as he now suggests) Defendant would have made such demand. Accordingly, this claim is subject to the procedural default of Rule 61(i)(3), as the "fundamental fairness" exception contained of Rule 61(i)(5) does not otherwise apply.
DEL. CODE ANN. tit. 10 Del. C. § 4332 (1999).
6. Because Defendant has failed to demonstrate ineffective assistance of counsel, and because all claims asserted in his Motion are otherwise procedurally barred by Superior Court Criminal Rule 61(i), Defendant's Motion is DENIED.
IT IS SO ORDERED.