Opinion
Def. ID No. 0410003743.
Submitted: February 14, 2008.
June 3, 2008.
Marvin T. Burton, Smyrna, DE.
E. Stephen Callaway, Esquire, Office of the Public Defender, Georgetown, DE.
Adam D. Gelof, Esquire, Deputy Attorney General, Department of Justice, Georgetown, DE.
Memorandum Opinion — Motion for Postconviction Relief
Dear Counsel and Mr. Burton:
This is my decision on Marvin T. Burton's motion for postconviction relief. Burton was convicted by a jury of Rape in the First Degree, Rape in the Second Degree and Unlawful Sexual Contact in the Second Degree on August 11, 2005. The convictions arose out of Burton's rape of his 11-year-old daughter. The State of Delaware filed a motion after the trial to have Burton sentenced as an habitual offender. I granted the State's motion and sentenced Burton to two life sentences and two years at Supervision Level V on October 28, 2005. The Supreme Court affirmed Burton's convictions on August 21, 2006.
Burton v. State, 907 A.2d 145, 2006 WL 243914 (Del. Aug. 21, 2006)(TABLE).
Burton alleges that (1) the indictment was defective and illegal, (2) a Batson violation occurred during jury selection, (3) a juror misled the Court during voir dire, (4) a juror drank alcohol during the trial, (5) he was not allowed to testify, (6) he was not allowed to call witnesses, (7) the prosecutor made improper statements during his closing argument, (8) he received an illegal sentence, and (9) his attorney was ineffective. The State was represented by Adam D. Gelof, Esquire. Burton was represented by E. Stephen Callaway, Esquire. Gelof and Callaway submitted affidavits in response to Burton's allegations.
Burton filed his motion for postconviction relief on August 16,2007. This is his first motion for postconviction relief and it was filed in a timely manner. Therefore, it is not time-barred by Superior Court Criminal Rule 61(i)(l). However, all of Burtons claims, except for his ineffective assistance of counsel claim, could have been raised on appeal and are, therefore, procedurally-barred by Rule 61 (i)(3) unless Burton is able to show cause for relief from the procedural bar and prejudice as a result of a violation of his rights. The bar to relief under Rule 61(f)(3) does not apply pursuant to Rule 61 (i)(5) if Burton can make a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings that led to the judgment of conviction. Burton has not offered any explanation for not bringing up these claims earlier. He has also not, as I have concluded below, shown that any of his rights were violated or that there was a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings that led to the convictions against him. I have also concluded that, given the nature of Burton's allegations, there is no need to have a hearing.
1. The Indictment
Burton alleges that the indictment should have included the fact that the victim was his biological daughter. He believes that this would have resulted in the case being transferred from Superior Court to Family Court. The State charged Burton with Rape in the First Degree, Rape in the Second Degree and Unlawful Sexual Contact in the Second Degree. It is not an element of any of these three offenses that the victim has to be the biological child of the defendant. Therefore, the State did not have to allege in the indictment that the victim was Burton's biological daughter.
2. Batson
Burton alleges that he was not tried by a jury of his peers. The basis of this claim is that the jury pool of 63 people consisted of 59 people that were white, and four that were African American. Burton wanted a jury pool that more proportionally represented the ethnic composition of Sussex County. 10 Del.C. § 4501 states "that jurors serving in each county shall be selected at random from a fair cross-section of the population of that county and that all qualified persons shall have an opportunity to be considered for jury service and an obligation to serve as jurors when summoned for that purpose." This section is functionally equivalent to the Sixth Amendment fair cross-section requirement. However, chapter 45 of title 10 does not guarantee a perfectly representative jury. The jury selection process adopted by the Superior Court for Sussex County meets all of the applicable requirements. It is fair, equitable, and draws from the general population of Sussex County. The Delaware Supreme Court has determined that this process meets all of the necessary criteria. Thus, there was no problem with the jury panel. A defendant's Batson challenge to a peremptory strike requires a three-step inquiry. In the first step, the court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. The second step in a Batson analysis shifts the burden to the State to rebut the prima facie showing by providing a clear and reasonably specific explanation of a legitimate reason for each strike. In the third and final step of a Batson analysis, the burden shifts back to the defendant to prove purposeful discrimination. There was no Batson violation because the State did not use any of its peremptory challenges to strike an African American from the jury.
Riley v. State, 496 A.2d 997 (Del. 1985).
State v. Ogle, 2004 WL 838642 (Del.Super. April 7, 2004).
Riley, 496 A.2d 997.
Batson v. Kentucky, 476 U.S. 79, 96-97 (1986).
Id. at 97-98.
Dixon v. State, 673 A.2d 1220, 1224 (Del. 1996).
3. Voir Dire
Burton alleges that a juror, Carmen Reid, misled the Court by not disclosing during voir dire that she knew Kesha Davis, the victim's mother. During the trial, Reid came forward and told me that she recognized Davis from high school. I questioned her about this and determined that she could remain on the jury and render a fair and impartial verdict. Burton has not offered anything new about this matter that would make me feel differently now about my decision.
4. Alcohol
Burton alleges that the jury foreman drank alcohol during one of the lunchrecesses. Burton's mother and sister are the source of this allegation. They did not bring this up until after the jury returned its guilty verdicts. Burton's mother and sister claim they saw the jury foreman go into a liquor store and purchase alcohol. Burton's mother also claims she smelled alcohol on the jury foreman's breath when he passed by her. When this was brought to my attention shortly after the trial ended, I immediately questioned those bailiffs that were in close contact with the jurors. The bailiffs told me that they did not smell any alcohol on the jury foreman's breath. I did not observe any unusual behavior by the jury foreman during the trial. I did observe that he was able to follow my instructions and properly announce the jury's verdicts. I decided at the time that there was no merit to the allegations. Burton has not offered anything new about this matter that would make me feel differently now about my decision.
5. Testifying
Burton alleges that he was denied his right to testify. Callaway told Burton that if he testified he might be cross-examined about his criminal record. Burton's criminal record includes three prior felony convictions for sexual offenses. After considering this, Burton decided not to testify according to Callaway. I have no reason to believe that anything other than this occurred. Moreover, if Burton had wanted to testify, then he could have made me aware of his desire to do so at the appropriate time during the trial.
6. Witnesses
Burton alleges that Eric Morris, Trina Morris, Sharon Hernendez, Ougo Hernendez, Reverend James Johnson, Jaquesha Burton, Evelyn Burton, Donald Henry, Marge Reeves, and Davon Johnson should have been called as witnesses.
a. Eric Morris, Trina Morris, Sharon Hernendez, and Ougo Hernendez
Burton does not state what testimony Eric Morris, Trina Morris, Sharon Hernendez and Ougo Hernendez would have offered if called to testify. Callaway contacted all four of them. However, they were not able to provide any information that would have been helpful according to Callaway.
b. Reverend James Johnson and Davon Johnson
Burton alleges that Reverend James Johnson saw the victim and her half-brother, Davon Johnson, engaged in sexual activity in a tent at a religious revival. Callaway contacted Reverend Johnson. While Reverend Johnson acknowledged that he was present at the religious revival, he denied going to the Burton family tent and finding the victim and her half-brother engaged in any type of sexual activity. Callaway contacted Davon Johnson's mother. She would not let him speak with Davon, a minor. Davon's mother did state that she spoke with Davon and that he denied Burton's allegations.
c. Jaquesha Burton and Donald Henry
Burton does not state what testimony Jaquesha Burton and Donald Henry would have offered if called to testify.
d. Evelyn Burton
Burton alleges that Evelyn Burton would have testified that the victim's mother wanted her to commit perj ury. Callaway contacted Evelyn Burton. He stated that Evelyn Burton did not provide him with any information that would have been helpful at trial, and did not say anything at all about the victim's mother wanting her to commit perjury.
e. Marge Reeves
Burton wanted to argue that he was never alone at home with the victim. The victim's mother, Kesha Davis, testified that she left her daughter alone with Burton when she worked at the flea market. Burton believed that the flea market was open only on weekends and, therefore, Kesha Davis could not have left the victim with him alone during the week. Callaway contacted Marge Reeves. Reeves acknowledged that Kesha Davis did work at the flea market, but could not say when. Kesha Davis also testified that she worked during the day and night for Duffy's Cleaning Service. This would have given Burton other opportunities to be alone with the victim. Thus, Marge Reeves' testimony would not have been helpful to Burton.
7. Prosecutorial Misconduct
Burton alleges that Gelof committed prosecutorial misconduct when he allegedly referred to Burton's post- Miranda silence and his decision not to testify at the trial during his closing argument to the jury. Burton's specific allegation is that Gelof asked the jury why Burton had not testified if he was innocent, and that they should believe the victim because he did not testify. I reviewed Gelof s closing argument. He did not comment at all on Burton's right to remain silent and to not testify.
8. Sentence
The State filed a motion to have Burton sentenced as an habitual offender pursuant to 11 Del.C. § 4214. § 4214(a) states that "[a]ny person who has been 3 times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted."
§ 4214(b) states that "any person who has been 2 times convicted of a felony or an attempt to commit a felony hereinafter specifically named, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony hereinafter specifically named, or an attempt to commit such specific felony, is declared to be an habitual aiminal, and the court in which such third or subsequent conviction is had, in imposing sentence, shall impose a life sentence upon the person so convicted unless the subsequent felony conviction requires or allows and results in the imposition of capital punishment."
Burton was convicted of Burglary in the Third Degree on October 29,1987, Unlawful Sexual Intercourse in the Third Degree on September 8, 1995, and two counts of Unlawful Sexual Intercourse in the Third Degree on March 25, 1998. Given these convictions, Burtonmet all of the requirements to be sentenced as an habitual offender under 11Del.C. § 4214 and his actual sentence was provided for by § 4214.
9. Ineffective Assistance of Counsel
Burton alleges that Callaway (a) failed to obtain transcripts for the opening statements and closing arguments, (b) denied his right to a full and fair appeal, (c) committed so many mistakes that they hindered his defense, (d) was incompetent, (e) failed to file a motion to dismiss the indictment, (f) did not hold a hearing pursuant to 11 Del.C. § 3508, (g) failed to interview and subpoena witnesses, (h) failed to challenge his sentence, (i) did not allow Burton to testify in violation of Professional Conduct Rule 1.2, (j) committed perjury, and (k) did not object to the State's closing argument.
The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief. In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis. First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. Further, a defendant "must make and substantiate conaete allegations of actual prejudice or risk summary dismissal." It is also necessary that the defendant "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.'" There is no procedural bar to claims of ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984).
Id. at 687.
Id.
Id.
State v. Coleman, 2003 WL 22092724 (Del.Super. Feb. 19, 2003).
Coleman, 2003 WL at *2, quoting Strickland, 466 U.S. at 689.
Coleman, 2003 WL at *1, citing State v. Johnson, Del. Super. Ct, Cr. A. No. 97-10-0164(R1), Graves, J. (August 12, 1999) at 2; State v. Gattis, Del. Super. Ct., Cr. A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7, aff'd, 637 A.2d 1174 (Del. 1997).
a. Transcripts
Burton alleges that Callaway was ineffective because he failed to obtain transcripts of the opening statements and closing arguments. Callaway ordered and reviewed those portions of the trial transcript that he thought were necessary in order to prepare an appeal. He is not obligated to do more than this. Moreover, Burton's single allegation regarding prosecutorial misconduct, as I discussed previously, was not borne out by my review of the transcript of the State's closing argument.
b. Appeal
Burton alleges that he was denied a right to a full and fair appeal. This allegation is based on Callaway's decision to file a Motion to Withdraw pursuant to Supreme Court Rule 26(c). The Supreme Court reviewed Callaway's motion to withdraw and concluded that he made a conscientious examination of the record and determined that it was devoid of any arguably appealable issues.
Burton v. State, 907 A.2d 145,2006 WL 243914 (Del. 2006)(TABLE).
c. Mistakes
Burton alleges that Callaway made so many mistakes that they cumulatively hurt his case. This allegation is conclusory and without merit. I have reviewed all of the alleged mistakes and concluded that they were not mistakes at all.
d. Competent Representation
Burton alleges that Callaway was incompetent. He argues that a competent attorney would have performed an investigation. However, he does not state what Callaway should have done that he did not do. This case, like many cases involving sexual assaults, had no witnesses to the most serious charges. The State's case rested largely on the victim's testimony. There was, as a practical matter, very little for Callaway to investigate.
e. Indictment
Burton alleges that Callaway was ineffective because he failed to file a motion to dismiss the indictment. This is based on Burton's belief that the indictment should have stated that the victim was his biological daughter. I addressed this allegation before and concluded that it had no merit.
f. 11 Del.C. § 3508 Hearing
Burton alleges that Callaway should have requested a hearing pursuant to 11 Del.C. § 3508. § 3508 allows the defendant to use the victim's sexual conduct to attack her credibility under certain circumstances. Burton hoped to attack the victim's credibility by showing that she had sexual intercourse with her half-brother and other young boys. However, Callaway could not find any witnesses supporting Burton's allegations that the victim had sex with anyone, leaving him unable to comply with § 3508's proof requirements.
g. Witnesses
Burton alleges that Callaway was ineffective because he did not interview and subpoena a number of alleged witnesses. I have already addressed this allegation. It is clear that the witnesses Burton wanted interviewed either could not provide the desired testimony or the testimony they could provide was irrelevant. Furthermore, Callaway did interview the majority of witnesses and determine they would not be helpful to the defense.
h. Illegal Sentence
Burton alleges that he was given an illegal sentence. I addressed this allegation before and concluded that there was no merit to it.
i. Professional Conduct Rule 1.2
Burton alleges that Callaway violated Professional Conduct Rule 1.2 because he did not allow him to testify. I have already addressed this allegation and concluded that there was no merit to it.
j. Perjury
Burton alleges that Callaway committed perjury because he filed a motion to withdraw during the appeal. In the motion Callaway stated that he did not believe that any appealable issues existed. Burton believes that appealable issues did exist. The Supreme Court has already determined that no arguably appealable issues existed.
k. Closing Argument
Burton alleges that Callaway was ineffective because he did not object to the State's closing argument. I addressed this allegation before and concluded that there was no merit to it.
CONCLUSION
Burton's motion for postconviction relief is denied.
IT IS SO ORDERED.