Opinion
Criminal Action No. S99-01-0247.
Date Submitted: May 16, 2000.
Date Decided: June 26, 2000.
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF-DENIED
Paula Ryan Steiner, Esquire, Office of the Attorney General, 114 E. Market Street, Georgetown, DE 19947, Attorney for State of Delaware.
Joseph A. Hurley, Esquire, 1215 King Street, Wilmington, DE 19801, Attorney for Defendant William E. Arterbridge.
Pending before the Court is the motion of defendant William E. Arterbridge ("defendant") for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Defendant asserts his trial counsel was ineffective in various ways. This decision denies the Rule 61 motion.
FACTS
On January 8, 1999, defendant was arrested on the charges of cruelty to animals in violation of 11 Del. C. § 1325 (b)(4) and permitting a dog to run at large in violation of 11 Del. C. § 1705. He was indicted on those charges on February 16, 1999.
Defendant was tried before a jury on May 12, 1999. The case which the State of Delaware ("the State") presented was that defendant intentionally and cruelly and unnecessarily stabbed a dog ("the dog") owned by defendant's neighbor, Mandy Paradee. The State contended that defendant's stabbing of the dog constituted a crime pursuant to 11 Del. C. § 1325. Therein, it is provided in pertinent part as follows:
(b) A person is guilty of cruelty to animals when the person intentionally or recklessly:
* * *
(4) Cruelly or unnecessarily kills or injures any animal . . . belonging to . . . another. * * * A person acts unnecessarily if the act is not required to . . . protect the life or property of the actor. . . .
* * *
Cruelty to animals is a class A misdemeanor, unless the person intentionally kills or causes serious injury to any animal in violation of paragraph (4) of this subsection, in which case it is a class F felony.
Defendant's defense was that, pursuant to 7 Del. C. § 1709 (b), (c) and (d), he was legally permitted to stab the dog because the dog was attacking him as well as his own dog and he was defending both his dog and himself. The statute, 7 Del. C. § 1709 (b), provides in pertinent part:
(b) Any person may injure or kill a dog in self-defense. . . .
(c) Any person may injure or kill a dog at the time such dog is wounding another dog if the dog being wounded is on the property of its owner or under the immediate control of its owner and being wounded by a dog that is running at large.
(d) Any person who injures or kills any dog in accordance with this section shall not be held criminally or civilly liable therefor.
Trial counsel maintained that this defense constituted an affirmative defense and defendant had to prove it by a preponderance of the evidence. 11 Del. C. § 304 (a).
In 11 Del. C. § 304 (a), it is provided:
When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a preponderance of the evidence.
The pertinent charge to the jury stated as follows:
In order to find the defendant guilty of cruelty to animals, you must find that the following elements have been established beyond a reasonable doubt at the time and place alleged in Count 1.
One, the defendant cruelly and unnecessarily injured an animal. That is, a dog. Two, the animal belonged to another person, Mandy Paradee. Three, the defendant was without legal privilege to injure the animal. Four, the defendant intentionally caused the animal serious injury. Serious injury includes any injury that creates a substantial risk of death.
The defendant has asserted a legal privilege in this case. In order to establish this legal privilege, the defendant must satisfy you by a preponderance of the evidence of the existence of the elements of this privilege. The State has no burden to present any evidence on this privilege. Preponderance of the evidence is established when the jury is persuaded that the evidence makes it more likely than not that each element of the privilege existed at the required time.
Delaware law provides for certain privileges, in pertinent part, that any person may injure a dog in self-defense at the time such dog is attacking such human being. Further, any person may injure a dog at the time such dog is wounding another dog if the dog being wounded is on the property of its owner or under the immediate control of its owner and being wounded by a dog that is running at large.
If you are satisfied by a preponderance of the evidence that the elements of this privilege have been established, you should find the defendant not guilty.
If, after considering all of the evidence, you find that the State has established beyond a reasonable doubt that the defendant acted in such a manner as to satisfy all of the elements which I have just stated, at or about the date and place as stated in the indictment, you must find the defendant guilty of cruelty to animals. If you do not so find or if you have a reasonable doubt as to any element of this offense, you must find the defendant not guilty of cruelty to animals.
* * *
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. Therefore, if based upon you conscientious consideration of the evidence you are firmly convinced that the defendant is guilty of the crime charged, you should find the defendant guilty. If on the other hand you think there is a real possibility, or, in other words, a reasonable doubt that the defendant is not guilty, you must give the defendant the benefit of that doubt by finding the defendant not guilty. [Emphasis added.]
Transcript at pp. 189-193.
The jury found defendant guilty of violating 11 Del. C. § 1325 (b)(4) and it acquitted him of the charge of permitting a dog to run at large. On July 9, 1999, the Court sentenced defendant, inter alia, to thirty (30) days at Level V. suspended for twelve (12) months at Level 2 probation.
Defendant did not appeal his conviction or sentence.
On March 17, 2000, defendant filed this Rule 61 motion. Therein, defendant alleges trial counsel was ineffective for the reasons discussed below.
DISCUSSION
A) PROCEDURAL BARS
Preliminarily, if there are any procedural bars to the claims in the postconviction relief motion, the Court must apply them.Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
This motion is not time-barred since it was brought within three years from the date when the conviction became final. Rule 61(i)(1). See Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995) . In addition, since this is defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply.
In Rule 61(i)(2), it is provided:
(i) Bars to relief. * * *
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice.
The ineffective assistance of counsel claim is not procedurally barred. State v. Johnson, Del. Super., Cr. A. No. 97-10-0164 (Rl), Graves, J. (August 12, 1999) at 2; State v. Gattis, Del. Super., Cr.A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7, aff'd, Del. Supr., 637 A.2d 1174 (1997). State v. Gattis, supra at 7-9 sets forth the standard to apply to such a claim:
This type of claim is normally not subject to the procedural default rule, in part because the Delaware Supreme Court will not hear such a claim for the first time on direct appeal, and therefore as a practical matter the first opportunity to raise this issue is in a collateral attack such as the Rule 61 motion for postconviction relief. [Citations omitted.] For this reason, many defendants . . . allege ineffective assistance
of trial counsel in order to overcome the procedural default.
However, this path creates confusion for the defendant if he does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. For example, the United States Supreme Court has stated that
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth amendment itself requires that responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance." Ineffective assistance of counsel, then, is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986) (emphasis added). A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two-part analysis enunciated in Strickland v. Washington, 466 U. 5. 668 (1984) and adopted by the Delaware Supreme Court in Alburv v. State, Del. Supr., 551 A.2d 53 (1988)
The Strickland test requires the movant to show first that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Strickland at 687. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional errors the outcome of the proceedings would have been different, that is, actual prejudice. Id. at 694. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. [Citations omitted.]
Generally, the claim for ineffective assistance fails unless both prongs of the test have been established. Strickland at 687. However, the showing of prejudice is so central to this claim that the Strickland Court stated that "[i] f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697. In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone.
Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation." Strickland at 689.
With this standard in mind, defendant's allegations of ineffective assistance of counsel are now reviewed.
B) GROUNDS ASSERTED
1) Trial counsel was ineffective for failing to move to dismiss Count 1 of the indictment.
Defendant first argues that trial counsel was ineffective for failing to move to dismiss Count 1 of the indictment because it failed to include an accusation regarding defendant's mental state. He further maintains that prejudice occurred because the State was relieved of the burden of demonstrating an intentional or reckless state of mind on defendant's part regarding the proscribed conduct.
Count 1 of the indictment alleged as follows:
WILLIAM E. ARTERBRIDGE, on or about the 16th day of December 1998, in the County of Sussex, State of Delaware, did cruelly or unnecessarily kill or injure a [sic] animal belonging to Mandy Paradee, to wit: the defendant did stab the dog in the left side with a knife, in violation of Title 11 Del. C. § 1325(b)(4) of the Delaware Code.
This allegation omitted the intent element, which was necessary to establish the crime was a felony as the State maintained.
The failure to allege intent in the indictment was not a jurisdictional defect. Fountain v. State, Del. Supr., 288 A.2d 277 (1972). Mens rea can be inferred from the language in the indictment with the statutory reference. Had defendant moved to dismiss the indictment, that motion would have been denied absent a showing of prejudice. See id. at 278; State v. Getty Oil Company. (Eastern Operations) Inc., Del. Super., 305 A.2d 327, 332 (1973). Defendant could not have shown prejudice since the charge against him was processed as a felony from the time of defendant's arrest and, consequently, defendant was aware that the State was maintaining he intentionally injured the animal since "[c]ruelty to animals is a class A misdemeanor, unless the person intentionally . . . causes serious injury to any animal in violation of paragraph (4) of this subsection, in which case it is a class F felony."
Defendant's only allegation of prejudice resulting from the omission of the intent element is that the State was relieved of its burden to prove intent. The jury, however, was instructed on this point. The record shows that the State proved intent. Furthermore, defendant, whose testimony established he clearly intended to stab the dog, challenged the intent aspect of the State's case by the privilege claim. Defendant suffered no prejudice by the failure of the State to explicitly allege the intent element. See Robinson v. State, Del. Supr., 600 A.2d 356, 359 (1991). The defendant was provided adequate notice, prepared a defense, and cannot be reprosecuted.
Under these circumstances, this objection fails.
2) Trial counsel was ineffective in a number of respects due to his characterization of the defense provided in 7
Del. C. § 1709 as an affirmative defense.
Defendant asserts that trial counsel was ineffective in a number of respects due to his position that the defense contained in 7 Del. C. § 1709 was an affirmative one.
Defendant first maintains that trial counsel erred by characterizing the privilege as an affirmative defense. He further argues that trial counsel was ineffective:
in the presentation of his closing remarks by telling the jury, "It is Mr. Arterbridge's duty and responsibility to prove to you by a preponderance of the evidence, and that is that Mr. Arterbridge has to establish that he has established evidence which makes him more likely than not, that the element of that privilege that he has a right to do this, existed at the time of the offense".
Finally, defendant maintains that trial counsel was deficient for. failing to object to the jury instructions about the defense afforded defendant under 7 Del. C. § 1709.
If the defense in 7 Del. C. § 1709 is an affirmative one, then these assertions fail. The Court so concludes.
As explained in State v. Baker, Del. Supr., 720 A.2d 1139, 1150 (1998):
The Delaware Criminal Code is explicit in its allocation of burden of proof in criminal cases. * * *
As contrasted with a "simple" defense that raises or suggests reasonable doubt, the Delaware Criminal Code recognizes that the General Assembly may create affirmative defenses which "the defendant has the burden of establishing . . . by a preponderance of the evidence." 11 Del. C. § 304 (a). The affirmative defense, in effect, admits "that the defendant did the criminal act," but seeks to excuse or mitigate the conduct. Commentary [on Delaware Criminal Code], p. 62 [(1973)]. In the words of the Commentary: "[am affirmative defense should be exceptional, for it is contrary to traditional notions about criminal justice." Commentary, p. 63.
In 11 Del. C. § 305, it is provided:
When this Criminal Code or another statute specifically exempts a person or activity from the scope of its application and the defendant contends that the defendant is legally entitled to be exempted thereby, the burden is on the defendant to prove, as an affirmative defense, facts necessary to bring the defendant within the exemption.
The Commentary stated that 11 Del. C. § 1325 contains exceptions to criminal liability in certain cases, which exceptions are treated as affirmative defenses. Commentary, p. 64, Appendix E. The defense contained in 7 Del. C. § 1709 clearly constitutes an exception to 11 Del. C. § 1325, which defendant is required to prove. See Upshur v. State, Del. Supr., 420 A.2d 165, 169 (1980); Walton v. State, Del. Supr., No. 448, 1989, Christie, C.J. (January 2, 1992) at 4-5; State v. Ford, Del. Super., Cr. A. Nos. 95-10-0183 -0186 and 95-10-0187 -0191, Graves, J. (March 26, 1996).
At this time, 11 Del. C. § 1325 read:
A person is guilty of cruelty to animals when he intentionally or recklessly:
(1) Subjects any animal to cruel mistreatment; or
(2) Subjects any animal in his custody to cruel neglect; or
(3) Kills or injures any animal belonging to another person without legal privilege or consent of the owner. Subsections (1) and (2) are inapplicable to accepted veterinary practices and activities carried on for scientific research.
Cruelty to animals is a class A misdemeanor.
When subsection (c) of current § 1709 (then § 1708) was initially enacted, the synopsis thereto stated in pertinent part:
[This legislation] . . . eliminates both obsolete provisions and the inconsistency between Title 7 and Titles 3 and 11 of the Delaware Code regarding . . . the conditions under which a dog may be injured or killed without such injury or killing being considered animal cruelty.
Thus, trial counsel correctly maintained that the defense in this matter was an affirmative one. Consequently, the three grounds asserting ineffective assistance of counsel based upon trial counsel's position that this was an affirmative defense are meritless.
3) Trial counsel was ineffective for failing to object to the portion of the jury instruction advising the jury that it should acquit defendant rather than instructing them that it must acquit defendant if it found the existence of a privilege.
During the jury instructions, the word "should" rather than "must" was used in the following passage:
If you are satisfied by a preponderance of the evidence that the elements of this privilege have been established, you should find the defendant not guilty.
Defendant argues that this aspect of the charge merely expressed a judicial wish rather than an order to the jury. Instructions must command juries about the applicable principles of law to decide the factual issues. Zimmerman v. State, Del. Supr., 565 A.2d 887, 890 (1989)
For nearly a hundred years, this Court has used the word "should", and not "must", in this setting. See State v. DePaolo, Del. Gen. Sess., 84 A. 213, 215 (1912). The current as well as proposed jury instructions permit the word "should" rather than "must" in this context. See Mills v. State, Del. Supr., 732 A.2d 845, 851 (1999). The use of the word "should" is mandatory and conveys the sense of duty or obligation. See Commissioner v. Hammond, Pa. Super., 504 A.2d 940, 941-42 (1986); Tidwell v. State, Ala. App., 118 So.2d 292, 293 (1960); Tyson v. State, Ga. App., 457 S.E.2d 690, 691-92 (1995). The defendant was not exposed to a whimsical deliberation by this language. Rather, the jury understood its sworn duty to acquit should the privilege exist.
There was no legal basis for trial counsel to object to this instruction. Consequently, defendant's assertion of ineffective assistance of counsel on this ground fails.
4) Trial counsel was ineffective because he failed to object to a portion of the jury instruction which defendant maintains was confusing.
Defendant argues as follows:
Defense counsel was ineffective in failing to object to the jury instruction in that confusion resulted where the Court delineated the elements of the offense and which was followed by a delineation of the so-called affirmative defense and followed that delineation with the language:
If, after considering all of the evidence, you find that the State has established beyond a reasonable doubt that the defendant acted in such a manner as to satisfy all of the elements which I have lust stated . . . you must find the defendant guilty of Cruelty to Animals.
The intertwining of the statutory elements and the statutory defense followed by the characterization of "all of the elements which I have just stated" lumps together the defense with the delineated elements in such a fashion as to instruct the jury that if they find the existence of the statutory defense, then the defendant must be found guilty.
This argument is of little weight. Defendant is entitled to a correct statement of the substance of the law. Flamer v. State, Del. Supr., 490 A.2d 104, 128 (1983), cert. den., 464 U.S. 865 (1983). The underlined passage clearly refers to the offense and cannot be isolated in a vacuum.See Sheeran v. State, Del. Supr., 526 A.2d 886, 894 (1987). The instructions were "'reasonably informative and not misleading, judged by common practices and standards of verbal communication.'" Sheeran v. State, supra. There was no basis for trial counsel to object as the whole charge outlined at pages 2-3, supra, clearly and correctly stated the law. Therefore, this ground asserting ineffective assistance of counsel is rejected.
5) Trial counsel was ineffective for failing to object to the portion of the jury charge regarding the elements of the crime of cruelty to animals.
Defendant attacks the following portion of the jury instructions:
As to Count 1, Cruelty to Animals, Delaware law provides in pertinent part that a person is guilty of cruelty to animals when the person intentionally, cruelly or unnecessarily injures any animal belonging to another, a person acts unnecessarily if the act is not required to protect the life or property of the actor.
Transcript at pages 188-89.
Defendant argues that this instruction allowed for a determination of guilt if the jury concluded that any of the elements were present: defendant intentionally or cruelly or unnecessarily injured the animal.
Let us get to the heart of the matter: defendant has ignored the following instruction:
In order to find the defendant guilty of cruelty to animals, you must find that the following elements have been established beyond a reasonable doubt at the time and place alleged in Count 1.
One, the defendant cruelly and unnecessarily injured an animal. That is, a dog. Two, the animal belonged to another person, Mandy Paradee. Three, the defendant was without legal privilege to injure the animal. Four, the defendant intentionally caused the animal serious injury. Serious injury includes any injury that creates a substantial risk of death. [Emphasis added.]
The jury was correctly instructed on the law. Trial counsel had no reason to object, and this ground is meritless.
CONCLUSION
Considering the foregoing, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.