Opinion
Cr. ID No. 0607025498.
Submitted: May 21, 2009.
Decided: August 11, 2009.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Joseph S. Grubb, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Andrew J. Witherell, Esquire, Wilmington, Delaware 19801.
Joseph M. Bernstein, Esquire, Bonita Springs, FL 34135.
Allen T. Cannon, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
ORDER
This 11th day of August, 2009, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court as follows:
I. FACTS AND PROCEDURAL HISTORY
On February 2, 2007, a Superior Court jury found Defendant Allen Cannon guilty of Possession of a Firearm During the Commission of a Felony ("PFDCF"), Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP"), Reckless Endangering First Degree, and Criminal Mischief over $1,000. On June 1, 2007, Defendant was sentenced to 5 years incarceration minimum mandatory on PFDCF, 5 years incarceration minimum mandatory on PDWBPP, and probation on the remaining two offenses.
Defendant appealed his conviction which was affirmed by the Delaware Supreme Court on January 31, 2008. On February 7, 2008, the Delaware Supreme Court granted Defendant's Motion for Rehearing en banc. On May 6, 2008, the Delaware Supreme Court en banc again affirmed the Superior Court's convictions.
Allen Cannon v. State, 2008 Del.LEXIS 50 (Del. 2008).
Allen Cannon v. State, 2008 Del.LEXIS 216 (Del. 2008).
The facts giving rise to this action reveal that on July 31, 2006 at about 8:30 p.m., someone fired at least four shots at Terrence Dendy. The target's father, Richard Dendy, witnessed the shooting. First at the scene, and then later that evening at the police station, Richard Dendy told the police that Cannon was the shooter and picked Cannon's photograph out of a photo lineup. Terrence Dendy also identified Cannon as the shooter on the evening of the shooting and also picked Cannon's photograph out of a photo lineup.
By the time of trial, both Terrence Dendy and his father changed their position. Neither denied making the prior statements, but rather alleged that they were not telling the truth on the night of the shooting when they identified Cannon as the shooter. They recanted their identification, testified that they did not know who the shooter was, and presented a different version of the events that excluded Cannon as the shooter.
The trial centered on which of the statements were to be believed. The jury convicted Cannon of each of the four offenses. Consequently, the jury unanimously concluded that the contemporaneous statements to the police on the night of the shooting were more credible than the in-court testimony recanting the contemporaneous statements.
More specifically, the contemporaneous statements to the police, made on the evening of the shooting, by both Terrence Dendy and his father Richard Dendy were that the day before the shooting Terrence had a fight with the family of a girl who had used his car without permission. Terrence Dendy went to the girl's house to complain to her mother. Some type of altercation involving Cannon ensued following Terrence's complaint to the girl's mother.
The next evening, Terrence Dendy drove his mother's car to a convenience store operated by his family on 10th Street in Wilmington. Terrence went to his car to retrieve a phone charger. Richard Dendy accompanied his son outside. While Terrence was crossing the street towards his car, Cannon came up and asked Terrence to return his chain, believing that Terrence had taken it the night before during the altercation following the complaint to the girl's mother about the car. Terrence told Cannon he did not have any chain, and then Cannon took out his gun and started firing shots at Terrence. Terrence ducked down behind the car for cover. Richard Dendy was standing close to Cannon and told him to stop firing the gun at his son and attempted to take the gun away from him. After firing the shots, Cannon ran away.
That evening, Detective Looney from the Wilmington Police Department went to investigate the shooting incident. Richard Dendy went up to Detective Looney and advised him that "Messy shot my son." Messy was Cannon's nickname.
On the evening of the shooting at about 10:00 p.m., both Richard Dendy and Terrence Dendy voluntarily went to the police station to provide statements. These statements were videotaped. At the police station, Richard Dendy again unequivocally identified Cannon as the shooter. Richard Dendy identified Cannon by his nickname "Messy." Richard Dendy told the police that earlier that evening "Messy" walked up and said hello "Mr. Richie" and then asked Terrence if Terrence had his chain. Messy then pulled out a gun and started shooting at Terrence. Richard was standing right next to Messy and was grabbing at him trying to get the gun away but Messy kept stepping away. After firing 5-6 shots, of which 4 hit the car, Messy ran away.
On the evening of the shooting, Terrence Dendy was reluctant to identify the shooter, and advised the police that under no circumstances was he going to testify in court. He did not want his name associated in any way with his statement to the police. He then stated that earlier that evening Cannon had accused him of having taken a chain during the altercation the night before. Terrence told the police his father stepped between the shooter and him to attempt to stop the shooting. Although he did not know Cannon's name or nickname, Terrence unequivocally identified Cannon as the shooter from a photo lineup in a matter of seconds.
At trial, both Terrence and Richard changed their position. Terrence testified that, some time after the shooting, he told Cannon's attorney that Cannon was not the shooter, but did not contact the police or the prosecutor to give them that information.
At trial, Terrence testified that while crossing the street towards the car to retrieve a phone charger, Terrence heard someone yell "Watch out." He turned around, "saw the gun", and ducked behind the car. When the shooting stopped, he got up and started running after the shooter, but did not catch him. Terrence testified that he did not get a good look at the shooter and did not know his identity.
At trial, Richard testified that while his son was crossing the street towards the car, he stood in front of the store and Cannon passed by, greeted him, and started crossing the street. Richard then heard two shots. According to Richard, Cannon ran back toward him, after which someone fired three more shots. Richard then went over to the shooter and told him to stop firing the gun at his son. The shooter then ran away. Richard did not know the identity of the shooter.
Because their trial testimony was factually incompatible with their previous statements to the police identifying Cannon as the shooter, Terrence and Richard explained to the jury why they had changed their testimony. Richard testified that he only got a brief glimpse of the shooter because he was focused on his son. Richard testified that he identified Cannon as the shooter because "people" told him that it was "Messy" (Cannon's nickname). He therefore took it for granted that Messy was the shooter but found out later that it was not Messy.
Terrence also testified that he did not get a good look at the shooter and did not know his identity. He also explained that his statements to the police were based on "people" or "somebody" telling him that Cannon was the person shooting at him.
The jury, apparently finding that the victim's and eye witness's in-court statements were not credible and concluding that the out-of-statements were more credible, convicted Cannon on each of the offenses.
On February 5, 2009, Defendant Cannon filed a motion for postconviction relief pursuant to Rule 61. In the motion he alleges four grounds as the basis for relief: 1) Ineffective Assistance of Counsel; 2) Actual Innocence; 3) Lack of Jury Instruction; and 4) Insufficient Evidence.
II. DISCUSSION
Defendant raises four grounds as the basis for his Rule 61 motion for postconviction relief, each of these grounds is discussed below.
A) INEFFECTIVE ASSISTANCE OF COUNSEL
Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Defendant's ineffective assistance of counsel claim is not procedurally barred because a Rule 61 motion is the appropriate vehicle for such a claim, even when it has not been previously raised.
Malin v. State, 2009 WL 537060, at *5 (Del.Super. 2009); Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
Turning then to the substantive merits of this claim, to prevail on an ineffective assistance of counsel claim, the defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness," and (2) "the deficient performance prejudiced the defense." The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires him to show "that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Id. at 687-88, 694.
Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.
Younger, 580 A.2d at 556.
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
Strickland, 466 U.S. at 689.
Furthermore, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment.
Id. at 691.
Defendant asserts multiple claims of ineffective assistance of counsel. He first claims that trial counsel was ineffective for failing to subpoena medical records or otherwise establish that defendant's arm was in a cast. This issue was, however, never in dispute. At trial, Richard Dendy testified that Defendant Cannon had a full cast on his hand on the evening at issue. The issue was not contested at trial. Defense counsel, in his Affidavit, represented that he determined that medical records were not needed to demonstrate an uncontested issue. Defendant fails to show that trial counsel's conduct was in any way unreasonable nor has he shown actual prejudice resulting from any alleged shortcoming in counsel's behavior.
State v. Cannon, Trial Transcript of Feb. 1, 2007, at pg. 111.
Indeed, the jury heard Richard Dendy testify at trial that he reevaluated his statements to the police on the night at issue because the Defendant was wearing a cast on his arm that night, and Richard Dendy questioned how Defendant Cannon could have been the shooter when his arm was in a cast. Subpoenaing medical records to further establish this uncontested issue was unnecessary.
State v. Cannon, Trial Transcript of Feb. 1, 2007, at pg. 111.
Defendant's second claim that his counsel was ineffective stems from his allegation that defense counsel failed to conduct any forensic examination of the crime scene. In this case, however, the sole issue at trial was the identity of the shooter. Defense counsel tactically chose to focus on identity rather than forensics. Defense counsel was aware that the eye witness and victim intended to recant their statements to the police on the night at issue and testify that Defendant was not the shooter as previously thought. The jury would then be the trier of fact as to which statements were to be believed. If the statements to the police on the night at issue of the eye witness and victim were believed by the jury, Defendant would be convicted of the shooting. If the recantation of those statements at the time of trial were believed, then Defendant would not be convicted of the shooting. As noted, there is a strong presumption that defense counsel's conduct constituted sound trial strategy. Defendant has not overcome that strong presumption.
Cannon's third claim is that defense counsel's Motion for Judgment of Acquittal on Criminal Mischief was "lame". Defense Counsel made a Motion for Judgment of Acquittal on all counts, including Criminal Mischief. The evidence established that the shooter damaged the car with bullet holes. There is no question the car sustained damage and an outright dismissal of the charge was not warranted. The trial judge personally heard all of the State's evidence in the action. The trial judge heard the statements made by the witness and victim on the night at issue and heard the contradicting in-court testimony of these witnesses. The trial judge, after considering all of the evidence in a light most favorable to the non-moving party, concluded that there was sufficient evidence for the matter to proceed to the jury for a determination. Defendant has pointed to nothing in the record to demonstrate a lack of diligence on behalf of his counsel. Defendant has failed to make concrete allegations of actual prejudice and substantiate them. Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel.
Defendant raises various claims regarding defense counsel's failure to object to a lack of foundation to the out-of-court statements made by Terrence Dendy and Richard Dendy. Under 11 Del. C. § 3507, out-of-court prior statements may be introduced provided that the prior statement was provided voluntarily. Out-of-court prior statements are properly admitted when there is nothing in the conduct of law enforcement officers that was inappropriate and which would affect the voluntary nature of the statement.
See, Brown v. State, 947 A.2d 1062, 1072 (Del. 2007).
In the present case, there was no question that the out-of-court statements provided by Terrence Dendy and Richard Dendy on the night of the shooting were voluntary. In fact, they both admitted the voluntary nature of their prior out-of-court statements. Moreover, neither Terrence nor Richard ever contended at trial, or for that matter at any other time, that their prior out-of-court statements were coerced or forced, or otherwise compelled. They were both present at trial, both testified at trial, and both subject to cross-examination at trial. Since the proper 3507 foundation was laid, Defendant's ineffective assistance of counsel claims are without merit.
State v. Cannon, Feb. 1, 2007 Trial Trans., pgs. 25-26, 95-96, 102-104.
Next, Defendant claims that defense counsel was ineffective for failing to request a special jury instruction on how to evaluate inconsistencies of witness's statements. While Defense Counsel did not request a "special" instruction, the court gave a standard "Credibility of Witnesses" instruction which instructed the jury how to consider conflicting testimony of witnesses, to assess the credibility and the weight to be given their statements, to assess the motivations and interests of the witnesses, and all other significant parameters that should be considered when evaluating the testimony of witnesses.
State v. Cannon, February 2, 2007 Trial Trans., pgs. 87-88.
Specifically, the Court instructed:
You are the sole judges of the credibility of each witness and of the weight to be given to the testimony of each. In this connection, you should not give more weight to the testimony of a police officer merely because he is a police officer. You should take into consideration each witness' means of knowledge, strength of memory and opportunity for observation, the reasonableness or unreasonableness of the testimony, the consistency or inconsistency of the testimony, the motivations of the witness, the fact, if it is a fact, that the testimony has been contradicted, the bias, prejudice or interest of the witness, if any, the manner or demeanor of the witness upon the witness stand, and all other facts and circumstances shown by the evidence that affect the credibility of the testimony.
If you find the testimony to be conflicting, by reason of inconsistencies, it is your duty to reconcile it, if reasonably possible, so as to make one harmonious story of it all, but if you cannot do this, then it is your duty and privilege to give credit to that portion of the testimony which, in your judgment, is most worthy of credit and disregard any portion of the testimony which, in your judgment is unworthy of credit.
State v. Cannon, Feb. 2, 2007 Trial Trans., pgs. 87-88.
This instruction was adequate and defense counsel cannot be faulted for not proffering a different instruction.
Defendant next contends that trial counsel was ineffective for not objecting to the trial testimony of Terrence and Richard Dendy that "people" told them "Messy" did the shooting. This issue was already addressed by the Delaware Supreme Court in Defendant's direct appeal and will not be re-examined simply because the claim is now refined or restated and relabeled as an ineffective assistance of counsel contention. The Delaware Supreme Court already held that the Dendys' testimony about what "people" had said was admissible because it was offered to explain to the jury why these two witnesses had changed their position. The Delaware Supreme Court after thoroughly and fully considering Defendant's hearsay complaint concluded that his claim is without merit. Consequently, there was nothing deficient about Defendant's counsel's conduct related thereto.
State v. Cannon, 2008 Del.LEXIS 216, at pgs. 3-8.
Super.Ct.Crim.R. 61(i)(4); Johnson v. State, 1992 WL 183069 at *1 (Del.Supr.)
State v. Cannon, 2008 Del.LEXIS 216, at pgs. 7-8.
Defendant's eighth claim is that his counsel was ineffective for failing to request a limiting instruction regarding what "people" told Terrence and Richard Dendy that "Messy" was the shooter. Like the previous issue, this issue was also already addressed by the Delaware Supreme Court in Defendant's direct appeal and will not be re-examined simply because the claim is now refined or restated and relabeled. The Delaware Supreme Court already held that the failure to give a limiting instruction was not plain error when the "people" testimony was admissible and its import clear and unlikely to confuse the jury. Given the fact that the jury was unlikely to be confused from the testimony, Defendant cannot establish actual prejudice. His ineffective assistance of counsel claim must therefore fail.
State v. Cannon, 2008 Del.LEXIS 216, at pgs. 5-6.
State v. Cannon, 2008 Del.LEXIS 216 at pgs. 5-6.
Defendant's counts nine and ten attack appellate counsel's actions. Defendant argues that appellate counsel was ineffective in failing to "correctly" argue that the defendant should not have been convicted based on "hearsay" evidence and failing to argue that the trial court should have given a limiting or cautionary instruction that the hearsay testimony could not be used to prove that the defendant was guilty. Defendant contends that appellate counsel was not sufficiently forceful or effective in his presentation to the Delaware Supreme Court.
The fact that the Delaware Supreme Court rejected the arguments advanced by Defendant and affirmed his convictions does not amount to ineffective assistance of counsel. Appellate counsel raised the issues that Defendant complains of, but they were rejected by the Delaware Supreme Court in Defendant's direct appeal. After receipt of the Delaware Supreme Court's decision, appellate counsel filed a motion for rehearing en banc, which was granted by the Court. In the motion for rehearing, the issues were raised again. These issues were re-raised, and again rejected, by the Delaware Supreme Court en banc. Defendant's allegations are unsubstantiated by the record and he fails to make concrete allegations as to what specifically counsel should have done differently and thereafter establish that had counsel done something differently the outcome would likely have changed. Defendant's contentions have no basis in fact and are also barred by Rule 61 (i)(4).
See, Allen Cannon v. State, 2008 Del.LEXIS 50 (Del. 2008).
Allen Cannon v. State, 2008 Del.LEXIS 216 (Del. 2008).
Eleventh, Defendant claims that his trial counsel was ineffective for not filing a post-conviction motion for re-trial or dismissal. Trial counsel, in his Affidavit, represented that he did not file a post-conviction motion for re-trial or dismissal because he did not believe there was any meritorious basis to do so. Defendant does not provide any concrete allegations as to what grounds existed to warrant a good faith post-conviction motion for re-trial or dismissal. Defendant's allegations are merely conclusory which are insufficient to establish a claim of ineffective assistance of counsel.
Twelfth, Defendant contends that his trial counsel was ineffective for failing to investigate juror misconduct. As trial counsel represents in his Affidavit, the allegation of juror misconduct was vague, at best. It was unsubstantiated by any evidence or any record. Defendant has failed to make concrete allegations of actual prejudice and substantiate them. Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel.
Thirteenth, Defendant contends that trial counsel was ineffective because he failed to request an "identity" jury instruction. Trial counsel, in his Affidavit, represents that his reasons for not requesting an identity instruction was strategical and tactical. If the jury believed the witnesses in court testimony, it would outweigh any "rumor" issue. Great weight and deference are given to tactical decisions by the trial attorney. As noted in Strickland, there is a strong presumption that defense counsel's conduct constituted sound trial strategy. Defendant has not overcome that strong presumption.
Strickland, 466 U.S. at 689.
B) ACTUAL INNOCENCE and INSUFFICIENT EVIDENCE
Defendant's second and fourth grounds for relief, actual innocence and insufficient evidence, are procedurally barred. Although ineffective assistance of counsel claims do not have to be raised on direct appeal, these types of claims would have to be raised on direct appeal to be procedurally preserved. Because these grounds were not previously raised on direct appeal as required by the court rules, they are procedurally barred.
Super.Ct.Crim.R. 61(i)(2) (3).
In order to overcome the procedural bar, Defendant must show a "colorable claim that there was a miscarriage of justice". The miscarriage of justice exception is a narrow one and has been applied only in limited circumstances. Defendant bears the burden of proving that he has been deprived of a "substantial constitutional right."
Super.Ct.Crim.R. 61(i)(4).
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Even if Defendant's claims were not procedurally barred, they are without merit. Defendant has failed to provide any basis upon which this Court could conclude that it is in the interests of justice to consider these otherwise barred claims for relief.
The guilt or innocence of the Defendant is exclusively within the province of the jury. The evidence presented at trial showed that the victim and the eyewitness on the night of the shooting identified Defendant to the police as the shooter. The jury could have found that the witness's in-court statements recanting their identification of Defendant as the shooter were not credible. Indeed, even on the night of the shooting, Terrence Dendy told the police that under no circumstances was he going to testify in court and that he did not want his name associated in any way with his statement to the police. The witnesses could have both changed their testimony because they feared retaliation, or for some other reason. The jury could have reasonably concluded from the evidence that the out-of-court statements, made on the night of the shooting, were more credible than their in-court statements.
The jury is the sole finder of fact. The jury reached a unanimous verdict based on the weight and credibility of the evidence produced at trial. The weighing of the evidence in the case is within the province of the jury. There was sufficient evidence to convict Defendant on each of the offenses for which he was charged.
Defendant's claims of actual innocence and lack of evidence are procedurally barred and without merit.
C) LACK OF JURY INSTRUCTION
Defendant's third ground for relief, lack of a jury instruction, is also procedurally barred. This claim had to be raised on direct appeal to be procedurally preserved. Because this ground was not previously raised on direct appeal as required by the court rules, it is procedurally barred. In order to overcome the procedural bar, Defendant must show a "colorable claim that there was a miscarriage of justice".
Super.Ct.Crim.R. 61(i)(2) (3).
Super.Ct.Crim.R. 61(i)(4).
Defendant has failed to provide any basis upon which this Court could conclude that it is in the interests of justice to consider this otherwise barred claim for relief.
It is unclear as to what specifically Defendant contends that the trial court should have instructed the jury but did not do so. The court gave a standard "Credibility of Witnesses" instruction which instructed the jury how to consider conflicting testimony of witnesses, to assess the credibility and the weight to be given their statements, to assess the motivations and interests of the witnesses, and all other significant parameters that should be considered when evaluating the testimony of witnesses.
State v. Cannon, February 2, 2007 Trial Trans., pgs. 87-88.
This instruction was proper, adequate and sufficient to give guidance to the jury on how to properly evaluate inconsistent, conflicting statements of witnesses.
Even if Defendant's claim was not procedurally barred, it is without merit. The fact that there are inconsistencies in testimony does not mean that the trial was tainted or that Defendant was somehow deprived of a substantial constitutional right. It was the duty of the jury to weigh the testimony of witnesses, to consider any inconsistent statements, to determine the weight and credibility to give to each witness's testimony and to render a verdict. The weighing of the strength or weakness of the testimony of each respective witness is squarely within the province of the jury.
Defendant's "lack of jury instruction" claim is procedurally barred and factually unsubstantiated.
III. CONCLUSION
For the reasons stated above, Defendant's Motion for Postconviction Relief should be denied.IT IS SO RECOMMENDED.