Opinion
ID No. 0210013335A.
Submitted: December 5, 2006.
Decided: March 28, 2007.
Upon Defendant's Motion for Postconviction Relief — DENIED.
ORDER
After his conviction for first degree murder and related charges was affirmed on direct appeal, Defendant filed this, his first motion for postconviction relief. Defendant makes eleven claims.
Dawkins v. State, Del. Supr., ID No. 299, 2004, Jacobs, J. (Sept. 15, 2005 (ORDER), (Re'hrg enbanc denied Oct. 14, 2005).
Super. Ct. Crim. R. 61.
In summary, he challenges his arrest and indictment. He accuses the prosecutors of misconduct in front of the grand jury and during closing argument at trial. He questions the sufficiency of the evidence as to intent. And, he alleges mistakes by the court, including an unspecified error in the jury instructions. Finally, and most importantly, Defendant alleges ineffective assistance of counsel.
All the alleged grounds for relief, except the ineffective assistance of counsel claim, are procedurally barred. As discuss ed below, Defendant's ineffective assistance of counsel claim lacks merit. Defendant's other claims lack merit, but the court is denying them for procedural reasons.
Super. Ct. Crim. R. 61
I.
In its order affirming Defendant's conviction, the Supreme Court summarized the case's facts. Briefly, after stalking and terrorizing the victim, his estranged wife, Defendant hid in her car's trunk during the afternoon of October 21, 2002. Eventually, Defendant revealed himself, jumped into the car's cabin and started arguing with the victim. As the car reached a major, busy intersection, Defendant became violent. The victim ran from the car, screaming for help. Defendant, also on foot, chased her, and in front of horrified rush hour traffic, Defendant repeatedly stabbed the unarmed, defenseless victim. She stumbled back to her car, collapsed and died before her hysterical child's eyes. After doing his worst, Defendant fled into the night. The cowardliness of Defendant's crime was exceeded only by its selfishness.
In any event, the evidence was overwhelmingly against Defendant. The only thing helpful to him was the inconsistency between the child's pretrial statements and his testimony. But for the inconsistency, which undermined the evidence tending to establish kidnapping as a statutory aggravating circumstance, Defendant would likely be awaiting execution. Defendant's trial counsel, however, were able to exploit the inconsistency and knock out the statutory aggravating circumstance, which spare d Defendant from a possible death sentence. That out come was the best Defendant could have reasonably hoped for, considering the unassailable evidence proving Defendant committed murder in the first degree.
II.
As mentioned, all but Defendant's ineffective assistance of counsel claim are procedurally barred. Defendant, at his insistence, represented himself on appeal. There, he raised six issues. Although the Supreme Court considered and rejected those issues, Defendant has raised them again, here. Basically, without elaboration, Defendant argues, "Delaware Supreme Court limited its analysis, misapprehended and mistakenly applied the facts." Nevertheless, those issues were formally adjudicated, and they are barred by Rule 61(i)(4).
Some of Defendant's claims are twists on his appellant arguments, or they are entirely new. For example, Defendant claims the Sussex County Justice of the Peace allegedly lacked jurisdiction during the arrest phase. Except for his ineffective assistance of counsel claim, discussed below, Defendant was obligated, during his direct appeal, to present every challenge he had about the proceedings, up to and including sentencing. Except for an ineffective assistance of counsel claim, Defendant is not entitled to make some arguments on direct appeal and then repeat them, expand them, or make additional claims in a motion for postconviction relief.
Super. Ct. Crim. R. 61. See also Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Wright v. State, 513 A.2d 1310, 1315 (Del. 1986). See also Riley v. State, 585 A.2d 719, 721 (Del. 1990).
In short, but for his claim of ineffective assistance of counsel, Defendant's new claims are barred by Rule 61(i)(3). Defendant's attempt to show cause for his procedural default and prejudice is entirely conclusory and unavailing. For example, Defendant's argument that he raised the Sussex County claim on appeal only gets him from Rule 61(i)(3)'s frying pan into Rule 61(i)(4)'s fire.
Otherwise, Defendant's explanation for his procedural default is internally inconsistent. During his direct appeal, Defendant asked to represent himself. At about the same time, his counsel moved to withdraw under Supreme Court Rule 26(c). Now, Defendant claims his decision to represent himself on appeal "was not a choice, but the only option, when Defense counsel filed the motion to withdraw." Be that as it may, once Defendant was on his own, he was obligated to raise all his issues. This should not have been a problem for Defendant. As Defendant puts it, he "gave [counsel] the issues that he felt were appealable." And, as mentioned above, Defendant raised six issues before the Supreme Court. He should have raised them all, except ineffective assistance of counsel.
Because they are formerly litigated or procedurally defaulted and barred by Rule 61(i)(4) or Rule 61(i)(3), and Defendant has failed to invoke Rule 61(i)(5), except for unhelpful, conclusory statements, the court need not reach the barred claims' merits. As a courtesy to Defendant, and for the sake of completeness, the court has looked at all of Defendant's claims, including the procedurally barred ones. The court observes that the State's response to Defendant's motion addresses them correctly. The law covering every bar red claim is settled, an d Defendant`s arguments notwithstanding, the facts are neither close nor helpful to him.
If Defendant's factual quibbles were correct, which they are not, it would amount to nothing. If, for example, Defendant were indicted twice, it does not matter. He was only convicted and sentenced once. He is not facing another trial and sentencing in connection with the murder on October 21, 2002. Similarly, if the arrest process were defective, which it was not, that also does not matter. Even if the arrest were bad, Defendant does not go free. As the jury's verdict shows, the indictment was good. And, whether the arrest warrant was correct or not, it was superceded by the indictment.
Schramm v. State, 366 A.2d 1185, 1192 (Del. 1976). See also Joy v. Superior Court, 298 A.2d 315, 316 (Del. 1972).
III.
Defendant's ineffective assistance of counsel claim also comes in many parts. In mostly conclusory fashion, Defendant alleges:
1. Counsel failed to:
a. investigate defenses;
b. challenge the arrest warrant and indictment;
c. object to the prosecutors'"false statements" during the evidentiary phase and closing arguments;
d. object to an improper jury instruction;
e. make a record about sidebars and office conferences;
2. Counsel allowed the jury to see an unredacted indictment, which included a severed misdemeanor assault charge;
3. Counsel abandoned Defendant on appeal by filing a motion under Supreme Court Rule 26(c).
Defendant does not identify any point counsel failed to investigate, much less a plausible defense. As presented, Defendant had a motive. He murdered the victim in plain view. After the crime, he fled. Counsel obtained a not guilty verdict on kidnapping, and as presented above, that ended the State's death penalty case.
As explained during trial, in the appellate decision and above, challenging the warrant and indictment would have been pointless. Again, the State's submission recapitulates the well-settled law. And, Defendant fails to identify the State's "false statements" and objectionable arguments. In any case, whatever the State did wrong was harmless. Defendant obtained the best result reasonably possible. And, the Supreme Court considered and approved the jury instructions. Counsel cannot be faulted now for the way the court charged the jury.
Id. See also Dixon v. State, 2000 WL 140106 (Del.Supr.).
Also, Defendant fails to suggest a specific ruling made in an unreported sidebar or office conference, much less prejudice. As the court recalls, it was careful not to make rulings off the record, and office conferences were reported. In the limited instances where a non-reported scheduling sidebar turned substantive, the court made a record. Regardless, Defendant does not explain how a non-reported ruling worked to his disadvantage, much less how it undermined the verdict.
The court does not believe that an unredacted copy of the indictment went into the jury room. If one had, presumably, the jury would have sent a note asking about it. Even if Defendant's claim were true, the jury eventually heard so much about the victim's and Defendant's abusive relationship, the court's pre-trial concern for unfair prejudice pales. Besides, a major reason for severing the prior assault misdemeanor was concern that the subsequent murder made an acquittal on the misdemeanor unlikely. In severing the prior misdemeanor, the court actually anticipated that the jury in the murder trial would hear about the victim's and Defendant's domestic turmoil.
Finally, the process by which counsel withdrew during the appeal was procedurally regular and substantively appropriate. As explained, Defendant did as well at trial as a reasonable lawyer could hope. There was no chance that Defendant's direct appeal would free him. Therefore, another trial would not do Defendant any good. He was acquitted of kidnapping. But, he intentionally murdered his unarmed, defenseless wife with a knife, or a similar weapon, and he cannot prove he did it under extreme emotional distress, as the statute creating that affirmative defense defines it. Counsel was not obligated, as Defendant claims, to make objections "for record purposes," or to make non-meritorious, appellate claims.
As the Supreme Court's decision on direct appeal and this decision explain, the evidence supporting the charge that Defendant kidnaped the victim before he murdered her was muddled, and so, he was acquitted on that serious charge and its related weapons offense. Obviously, the jury considered the evidence carefully and gave Defendant the benefit of that doubt. The evidence proving Defendant guilty of murder in the first degree and possession of a deadly weapon during the commission of a felony, however, was not close. Nor was Defendant's extreme emotional distress defense. In other words, Defendant has not begun to overcome the presumption that he received ineffective assistance of counsel. By the same token, he failed to meet either prong of Strickland v. Washington's test for ineffective assistance of counsel.
Albury v. State, 551 A.2d 53, 58-60 (Del. 1988).
Strickland v. Washington, 466 U.S. 668-667 (1984).
IV.
For the foregoing reasons, Defendant's Motion for Postconviction Relief is DENIED .
IT IS SO ORDERED.