Opinion
Nos. 31 and 57, 2003 CONSOLIDATED
Submitted: May 16, 2003
Decided: June 24, 2003
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN97-05-1620 R3 IN97-05-1624 R3-1627 R3 IN97-05-0255 R3-0257 R3
Affirmed.
Unpublished opinion is below.
JAMES G. BROWN, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. Nos. 31 and 57, 2003 CONSOLIDATED Supreme Court of Delaware. Submitted: May 16, 2003 Decided: June 24, 2003
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices
E. Norman Veasey, Chief Justice:
ORDER
This 24th day of June 2003, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, James G. Brown, filed an appeal from the Superior Court's July 30, 2002 and January 13, 2003 orders denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In April 1998, Brown was found guilty by a Superior Court jury of Assault in the First Degree (as a lesser-included offense of Attempted Murder in the First Degree), Assault in the Second Degree, two counts of Possession of a Firearm During the Commission of a Felony, Carrying a Concealed Deadly Weapon, Resisting Arrest, Trafficking in Cocaine, and Possession with Intent to Deliver Cocaine. Brown was sentenced to 19 years and 6 months incarceration at Level V, to be followed by probation. This Court affirmed Brown's convictions and sentences on direct appeal.
(3) In this appeal, Brown claims that: a) defense counsel and the prosecutor suppressed discovery; b) the arresting police officer was not called to testify, depriving him of his confrontation rights; c) the prosecutor led three witnesses to perjure themselves; d) the prosecutor stole his arrest photo from the trial evidence; e) he should not have been arrested because he did not fit the description of the suspect; f) the seizure of the gun and the cocaine was illegal; g) his counsel was ineffective for failing to file pretrial motions and motions in limine, suggesting his guilt to the jury, failing to request sequestration of the investigating officer, and failing to subpoena the arresting officer; h) he should not have been forced to wear prison clothing at trial; and i) the trial judge failed to instruct the jury on the law of accident.
(4) Brown's claim of a discovery violation and his claim that he should not have been permitted to wear prison clothing at trial were both presented to the Superior Court as pretrial motions, both of which were denied.
Brown failed to assert either claim in his direct appeal. Because these two claims were formerly adjudicated, they are procedurally barred unless reconsideration is warranted in the interest of justice. Based upon our review of the record in this case, including the transcript of trial, we conclude that reconsideration of these claims is not warranted in the interest of justice.
(5) Because Brown did not assert claims b) through f) in the proceedings leading to the judgment of conviction, they are procedurally defaulted unless Brown can demonstrate cause for relief from the default and prejudice from a violation of his rights. Our review of the record in this case, including the transcript of trial, does not reveal any evidence supporting either cause for relief from the default or prejudice from a violation of any right of Brown. Moreover, we find no evidence that the procedural bar should be excused due to either a lack of jurisdiction on the part of the Superior Court or a miscarriage of justice due to a constitutional violation.
(6) In order to prevail on his claim of ineffective assistance of counsel, Brown must show that his 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. Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable."
(7) Our review of the record in this case, including the trial transcript, reveals no basis for Brown's claim of ineffective assistance of counsel. Brown has failed to demonstrate that any error on the part of his counsel resulted in prejudice to him.
(8) Brown's final claim that the judge should have instructed the jury on the law of accident was not presented to the Superior Court at trial, on direct appeal or in his postconviction motion. This Court will consider for review only those questions fairly presented to the trial court in the first instance unless review is required in the interest of justice. Our review of the record in this case does not lead us to conclude that this claim should be reviewed in the interest of justice.
Brown v. State, Del. Supr., No. 242, 1998, Walsh, J. (Mar. 15, 1999).
SUPER.CT.CRIM.R. 61(i)(4).
SUPER.CT.CRIM.R. 61(i)(3).
SUPER.CT.CRIM.R. 61(i)(5).
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
SUPR.CT.R. 8.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.