Opinion
ID No. 0803009083 (R-1).
May 28, 2010.
Motion for Postconviction Relief.
N440 — State Mail, Shaka S. Mumitt, James T. Vaughn Correctional Center, Smyrna, DE.
Dear Mr. Mumitt:
The Court received your first Motion for Postconviction Relief filed on May 24, 2010. The date of the mandate of the Supreme Court's affirmance of your direct appeal following conviction was October 22, 2009. Your Motion is timely and is not procedurally barred.
BACKGROUND
Following a jury trial, you were convicted of thirteen (13) offenses against your granddaughters. The most serious were continuous sexual abuse of a child, sexual solicitation of a child, and rape in the fourth degree. The other offenses included four (4) counts of unlawful sexual contact in the first degree, one (1) count of endangering the welfare of a child, two (2) counts of violation of bond conditions, one (1) count of terroristic threatening, one (1) count of assault in the third degree, and one (1) count of offensive touching.
On February 13, 2009, you received a sentence of twenty-three (23) years at Level 5 incarceration followed by probation.
There was a direct appeal but that appeal only involved the crime of assault in the third degree. The conviction was affirmed. Mumitt v. State, 2009 WL 3191709 (Del. Oct. 6, 2009), 981 A.2d 1173 (Del. 2009) (TABLE).
In your present Motion you allege that you were denied the right of confrontation pursuant to 11 Del. C. § 3507 in violation of Crawford v. Washington, 541 U.S.36 (2004).
You allege your trial counsel was ineffective in that he failed to file a direct appeal of your convictions, failed to investigate, and failed to protect your criminal procedural rights.
You also allege your appellate counsel was ineffective due to the failure to file an ineffective assistance of trial counsel allegation on direct appeal, failed to "proceed accordingly to statutes for appointment of counsel", and failed to investigate.
After reviewing your file, your Motion for Postconviction Relief must be denied.
Crawford v. Washington is an important decision guaranteeing the right to confront and cross-examine one's accusers, but Crawford is inapplicable to this case. No statement can be entered pursuant to 11 Del. C. § 3507 unless the declarant of the out-of-court statement is present and available for cross-examination as to both her in-court testimony and her out-of-court statement. The Child Advocacy Center tapes were played to the jury, but only after a proper 11 Del. C. § 3507 foundation had been laid. Since there was an opportunity of cross-examination and actual cross-examination, there is no confrontation or Crawford issue.
You complain that your trial counsel failed to file a direct appeal. You were represented by the Office of the Public Defender. Your trial counsel timely filed a notice of appeal and a direction to the Court Reporter to obtain the necessary transcripts. This claim is factually erroneous and frivolous.
You also complain trial counsel failed to investigate. The only allegation in your Motion that could be a basis for this claim is that your attorney "failed to address the medical issues of the victim and the Defendant". This is a conclusory allegation and provides no basis for the Court to determine that your attorney was ineffective in his representation of you or in any investigation. Because the statement is a conclusory allegation, it is without merit. Younger v. State, 580 A.2d 552 (Del. 1990).
You allege that trial counsel failed to protect your criminal procedural rights. As to this claim, the best I can determine is that your attorney did not make a Crawford objection when the CAC tapes were played to the jury. Per the discussion above, this claim has no merit, and therefore your attorney was not ineffective for not making a Crawford objection.
You also complain that your trial attorney and/or the Court erred as to matters concerning the redacted CAC tape. You complain that both the prosecutor and your trial attorney reviewed the redacted tape as to the deletion of portions of the tape that should not be played to the jury. The Court informed the jury that redactions had taken place and therefore, if there were skips in the tape, it was because of the elimination or removal of irrelevant communications.
There is nothing contained in your Rule 61 Motion that alleges any concrete and specific reason as to how your attorney was ineffective as to the redacted tape. Again, your allegation concerning the CAC tape is conclusory and must be denied. Younger v. State, supra .
Finally, as to the aforementioned complaint concerning the redacted tape, if you are complaining that the Court informed the jury about the redactions, you have not set forth any basis as to how that was erroneous or prejudicial.
Appellate counsel works in the Appellate Division of the Office of the Public Defender. Trial counsel did not "hire" appellate counsel and therefore create a conflict of interest. On direct appeal, the issues to be raised in the Supreme Court are matters pertaining directly to the conviction. Ineffective assistance of counsel claims cannot be raised on direct appeal. Johnson v. State, 962 A.2d 233 (Del. 2008). Your first opportunity to raise claims of ineffective assistance of counsel is pursuant to Superior Court Criminal Rule 61 and you have done so. The claims of ineffective assistance of trial counsel are dealt with herein, and appellate counsel was not ineffective for the failure to raise ineffective assistance of trial counsel claims on direct appeal.
I do not understand the claim of failure to proceed according to statutes for appointment of counsel. You were represented by the Office of the Public Defender throughout the case with the exception of a brief period in which there was the potential of a conflict of interest. See this Court's letter to you dated March 9, 2009, which is attached.
Finally, you attack appellate counsel alleging that her duty of loyalty to you was compromised because of her loyalty to trial counsel. You allege that she therefore did not make arguments on your direct appeal which would have benefitted you. It would appear from your Motion that the arguments you wish she would have made involved violations of your right of cross-examination pursuant to the Crawford decision. Had she made such argument to the Supreme Court on direct appeal, she would have lost because there was no Crawford issue per the aforementioned discussion.
In summary, all of your claims are denied. They seem to flow from your mistaken belief that there is a Crawford violation concerning an alleged violation of your right to cross-examine your accuser when a Child Advocacy Center videotape is presented to the jury. Again, you are mistaken because the child was present in the Courtroom, testified, and was subject to cross-examination. The fact that your attorney preferred not to have the child in the Courtroom when the CAC tape was actually played for the jury, was a strategic decision on his part and not a violation of Crawford.
Defendant's Motion for Postconviction Relief is denied.
IT IS SO ORDERED.