Opinion
No. 600, 2002
Submitted: December 17, 2002
Decided: March 25, 2003
Court Below-Superior Court of the State of Delaware, in and for Kent County Cr.A. Nos. IK99-01-0013 thru IK99-01-0018
Before VEASEY, Chief Justice, WALSH, and STEELE, Justices.
ORDER
This 25th day of March 2003, upon consideration of the appellant's opening brief and the State's motion to affirm, it appears to the Court that:
(1) The appellant, George Kiser, filed this appeal from the Superior Court's denial of his first petition for postconviction relief. The State of Delaware has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of Kiser's opening brief that the appeal is without merit. We agree and affirm.
(2) The record reflects that a Superior Court jury convicted Kiser in 1999 of four counts of delivery of cocaine and two counts of second degree conspiracy. The Superior Court sentenced Kiser to a total period of 64 years at Level V incarceration to be suspended after a 60 year mandatory term of imprisonment for four years at Level III probation. This Court affirmed Kiser's convictions and sentence on appeal.
Kiser v. State, 2000 WL 1626992 (Del. 2000).
(3) In his motion for postconviction relief, Kiser asserted that his trial counsel was ineffective for failing to investigate and pursue a defense based on police misidentification. The Superior Court referred the motion to a Superior Court Commissioner. The Commissioner found, as a matter of fact, that Kiser's trial counsel had presented a misidentification defense.
Accordingly, the Commissioner concluded, as a matter of law, that Kiser could not establish cause or prejudice for his failure to raise his ineffective assistance of counsel claim in the proceedings leading to the judgment of conviction. The Commissioner therefore recommended that the motion be dismissed. Kiser did not file any objections to the Commissioner's proposed findings and recommendations. The Superior Court, after a de novo review, adopted the Commissioner's findings and recommendation and dismissed Kiser's motion.
DEL. SUPER.CT.CRIM.R. 61(i)(3) provides that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred" unless the petitioner can establish cause and prejudice.
See SUPER.CT.CRIM.R. 62(a)(5)(ii).
(4) We review the Superior Court's denial of postconviction relief under Rule 61 for abuse of discretion. The gist of Kiser's complaint is that the undercover officers who identified him as the perpetrator actually confused Kiser with his cousin, Lamont. Kiser asserts that the suspect identified by police wore dreadlocks, like Lamont, but Kiser himself never wore dreadlocks. Kiser acknowledges in his opening brief that his trial counsel "did present evidence that George Kiser never wore dreadlocks and allowed the jury to see Lamont Kiser and compared his appearance to the appellant." Kiser asserts, however, that his trial counsel's performance was constitutionally deficient because he failed to introduce a photograph of Lamont Kiser from the summer of 1997 when the drug sales were alleged to have occurred.
Outten v. State, 720 A.2d 547, 551 (Del. 1998).
(5) To prevail on a claim of ineffective assistance of counsel, the petitioner must establish: (a) that defense counsel's representation fell below an objective standard of reasonableness; and (b) that, but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the case would have been different. There is a strong presumption that counsel's conduct was professionally reasonable.
Id. at 551-52 (citing the standard set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Albury v. State, 551 A.2d 53, 59 (Del. 1988).
(6) Kiser's claim fails on both prongs. Kiser cannot establish that defense counsel was objectively unreasonable in choosing to present Lamont in person to the jury rather than a photograph of Lamont. Moreover, Kiser cannot establish a reasonable probability that the outcome of his trial would have been different if defense counsel had presented Lamont's photograph.
Accordingly, we find that the Superior Court did not abuse its discretion in denying Kiser's claim of ineffective assistance of counsel.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.