Opinion
Def. ID #0008020460 (R-1)
April 3, 2002
John J. Duncan, SBI #00133777, Sussex Correctional Institution, Georgetown, DE.
Dear Mr. Duncan:
On March 22, 2002, the Court received your Motion for Post Conviction Relief. I have studied your application plus the Court's file. Your motion is denied.
BACKGROUND
Following a jury trial, you were convicted and sentenced on charges of Reckless Endangering in the First Degree and Possession of a Firearm During the Commission of a Felony. The sentence required that you complete the three-year minimum sentence on the Possession of a Deadly Weapon During the Commission of a Felony, with the balance of the Level 5 incarceration suspended for probation.
You appealed and the Supreme Court affirmed your conviction. John Duncan v. State of Delaware, Del. Supr., No. 310, 2001, Steele, J. (Feb. 15, 2002) (ORDER) In your Rule 61 petition you cite three grounds. They are as follows:
1. Ground 1 — "Favorable Evidence". While this ground is not clear, it seems to raise an evidentiary question as to whether or not the "911" tape could be used if your wife was not in court. This question is an evidentiary question. The Court ruled the "911" tape admissible, over the objection of the defense. The defense could have appealed this issue if defense thought it would be meritorious. The question was not raised in the appeal. A Rule 61 application is not meant to rehash what was done or what could have been done at the trial. Rule 61(i)(4) procedurally bars this ground. Also, Rule 61(i)(3) potentially bars this ground as this issue could have been raised in a review of these matters at the Supreme Court, but was not.
If you are attempting to allege ineffective assistance of counsel under this ground I find that claim likewise has no merit. You were represented by two attorneys at trial. You report that one of your attorneys told you that they would object to the use of the "911" tape in order to keep it out of evidence. In order to prove ineffective assistance of counsel, you must prove that your attorney's representation fell below an objective standard of reasonableness. In other words, you must show that your attorney made errors in the trial, or in the preparation of the trial, which fell below an objectionable standard. You also must show that your attorney's errors actually prejudiced you. In other words, you must show a reasonable probability that but for these errors, the proceedings in the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Grace v. State, Del. Supr., No. 111, 1996, Walsh, J. (July 9, 1996) (ORDER) Your attorney did not commit error in advising you that she would attempt to keep the "911" tape out of evidence. The trial judge determines what evidence will come before the jury. Your attorney made an argument that the "911" tape should be excluded; nevertheless, I found it was admissible under a hearsay rule exception. I do not find that your attorneys were ineffective in their trial tactics in attempting to exclude this evidence; nor do I find that you have shown or established any prejudice in your belief that this evidence would be excluded. I still remain of the opinion the "911" tape is admissible evidence. Therefore, for the reasons afore-stated, Ground 1 is dismissed.
2. Ground 2 — "Bill of Particulars". In this ground you claim you didn't know you could get a Bill of Particulars. The request for a Bill of Particulars is a procedural tool which can be requested under Superior Court Criminal Rule 7(f). In fact, it is rarely used because its purpose is to clarify the indictment. You claim your attorneys did not bring this to your attention and therefore I assume you are claiming they are ineffective. It is your burden to show that a Bill of Particulars was appropriate and necessary in your case. You have not done so. Nor have you shown any prejudice by not having a Bill of Particulars. The allegations in your case were straightforward and not complicated. I do not find your attorneys were ineffective in not requesting a Bill of Particulars, nor do I find that you have suffered any prejudice. Ground 2 is dismissed.
3. Ground 3 — "To Remain Silent". In this claim you raise another evidentiary question. You claim that when you were put in the police car the police did not tell you why you were being arrested, nor were you "at that time Mirandized". The police only are required to give you your rights under Miranda v. Arizona, 384 U.S. 436 (1966) when they obtain a custodial statement or confession. They are not required to give you your rights upon arrest. So to the extent you are complaining that your attorneys were ineffective for not making any objections that you raise in Ground 3, I find your argument is without merit. Nor have you established any prejudice. Finally, I note that later you did make a taped statement, which was introduced into evidence. The issues you raise in this ground concerning receiving your Miranda rights were addressed in that statement. There is no factual basis for the Court to entertain this argument.
Your post conviction application is denied.
IT IS SO ORDERED.