Opinion
ID. No. 9903023368.
Submitted: August 24, 2007.
Decided: August 31, 2007.
Upon Defendant's Motion for Postconviction Relief.
DENIED.
Upon Defendant's Motion for Recusal.
DENIED.
Upon Defendant's Second Motion for Recusal.
DENIED.
Kevin M. Carroll, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
James Christopher DeAngelo, Smyrna, Delaware, pro se.
ORDER
This 31st day of August 2007, upon consideration of Defendant's motion for postconviction relief and Defendant's two separate motions for recusal, it appears to the Court that:
1. In 1990, Defendant shot Willie Perez in the head after Perez came to Defendant's house to collect a debt. Perez's body was never recovered. Defendant was arrested in 1999 after the police obtained statements from Defendant's wife and friend about their involvement in disposing the victim's body and cleaning up the crime scene. A grand jury indicted Defendant on charges of Murder First Degree and Possession of a Deadly Weapon During the Commission of a Felony ("PDWDCF") in April 1999. A jury found him guilty of the lesser included offense of Murder Second Degree and of PDWDCF. Defendant was subsequently sentenced on June 16, 2000 to fifteen years at Level 5 for the murder conviction and fifteen years at Level 5 for the PDWDCF conviction.
2. On direct appeal, the Supreme Court affirmed his conviction for Murder Second Degree but reversed his conviction for PDWDCF because that conviction was time barred pursuant to 11 Del. C. § 205(b)(1). The Supreme Court remanded the matter to this Court for resentencing on the Murder Second Degree charge. On remand, on June 7, 2002, this Court resentenced Defendant to twenty years at Level 5 on the Murder Second Degree charge. Defendant appealed and the Supreme Court affirmed the resentence on May 27, 2003.
11 Del. C. 205(b)(1) states that "[a] prosecution for any felony except murder or any class A felony, or any attempt to commit said crimes, must be commenced within 5 years after it is committed."
State v. DeAngelo, 2002 WL 1308359 (Del.Super.)
The mandate in this case was not filed until June 27, 2003. Therefore, Defendant's motion is within the then-three year time limit imposed by Rule 61.
3. Defendant filed a motion for postconviction relief on June 13, 2006. He subsequently filed six amendments to that motion. Pursuant to a Court order, Defendant submitted a final condensed motion on Decemeber 26, 2006. In addition, Defendant filed two motions for recusal of the undersigned judge on February 28, 2007 and July 18, 2007.
4. It is difficult for the Court to discern the exact bases for relief sought by Defendant in his 33 page single-spaced revised petition and his attached 50 page single-spaced memorandum in support of his petition. All of Defendant's grounds for relief in his postconviction relief motion appear to be primarily ineffective assistance of counsel claims. Kevin O'Connell was local counsel for Defendant and John J. Duffy and P.J. Redmond from Pennsylvania were pro hac vice trial counsel. To succeed on an ineffective assistance of counsel claim, Defendant must show both (a) "that counsel's representation fell below and objective standard of reasonableness" and (b) "that there is a real probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Failure to satisfy one prong will render the claim unsuccessful and the court need not address the remaining prong. Furthermore, when evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance."
Stickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Id. at 689.
5. Defendant's first ground for relief is that his counsel was ineffective for failing to be aware that the prosecution of the weapons charge was time barred pursuant to 11 Del. C. § 205. Defendant's conviction for PDWDCF was properly appealed and reversed. Defendant is not entitled to any further relief due to this error. Defendant cannot demonstrate any prejudice stemming from this error that impacted his murder conviction.
6. Defendant second ground alleges that his counsel was ineffective due to three "conflicts of interest." First, he claims that Pennsylvania defense counsel John J. Duffy represented himself as a Delaware attorney. Second, he asserts that defense counsel "knowingly participated with Delaware State officials in conducting an entire unlawful criminal prosecution against [Defendant]. . . ." Third, Defendant contends that a conflict of interest was created by the billing arrangement defense counsel entered into with Defendant and his mother. Defense counsel denies each of these accusations. Furthermore, none of these assertions has any support in the record. Therefore, Defendant's allegations fail to demonstrate ineffective assistance of counsel.
Duffy Aff., D.I. 246, at 5-6.
7. Grounds three and four allege that defense counsel introduced false and fabricated evidence, and failed to interview, produce, or investigate John Miller, a jailhouse informer. In response, defense counsel states that:
Defendant misconstrues the role of Miller in the case's facts. He was the well-spring from which the dormant unsolved disappearance of [the victim] turned in to a murder case. He was not, however, an important fact witness in the case and of no relevance, except as an example of mischief a cooperating prosecution witness can be to [a] fair and neutral trial.
Defendant here complains essentially that John Miller, a jail informer ought to have been invited to testify at defendant's trial. Counsel disagrees and concluded that no benefit to the defendant's cause could have resulted from such testimony. Indeed, the risk of opening a Pandora's Box militated strongly against such an amateur blunder.
Id. at 7-8.
Defendant's gereralized assertions do not support a claim for ineffective assistance of counsel. There is nothing in the record indicating that counsel acted below an objective standard of reasonableness with regard to John Miller. Furthermore, Defendant cannot show the result of the trial would have been any different had John Miller testified.
8. Ground five asserts that counsel was ineffective for failing to object to the State's three possible theories of how Defendant disposed of the victim's body. That three of the State's witnesses may have testified differently as to the disposal of the body is not grounds for the Court to vacate the conviction. If anything, the inconsistent testimony arguably suggested a weakness in the State's case against the Defendant. Moreover, the conclusory allegation that defense counsel somehow aided the State has no support in the record and therefore does not entitle Defendant to relief.
9. Ground six claims that counsel was ineffective for failing to object to what Defendant refers to as "victim impact evidence" introduced by the State at trial. However, his assertion is contradicted by the record which demonstrates that defense counsel objected to the introduction of photographs of the victim as well as testimony from the victim's sister regarding the family's financial repercussions of the victim's death. Therefore, this claim is without merit and does not entitle Defendant to relief.
State's Answer to Mot. for Postconvicition Relief, D.I. 252, at 14; Duffy Aff., at 9.
10. Ground seven, although stated as an ineffective assistance of counsel claim, essentially argues that the Court erroneously allowed the State to introduce evidence that Defendant took money and a gold necklace from the victim after the murder. Defense counsel objected to the introduction of this evidence and the objection was overruled. Furthermore, this issue was addressed on direct appeal and the Supreme Court affirmed the ruling. This claim is therefore barred by Rule 61(i)(4) because it was previously adjudicated and Defendant has not shown that reconsideration is warranted in the interest of justice. In addition, even if this claim could be considered an ineffective assistance of counsel claim, it would still fail because Defendant cannot show that counsel's representation was unreasonable. Defense counsel in fact moved to exclude this evidence as prejudicial. The fact that the Court allowed the evidence despite this objection does not render counsel's assistance ineffective.
Delaware Superior Court Criminal Rule 61(i)(4) ("Any ground for relief that was formerly adjudicated. . .is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.").
11. Defendant's eighth ground alleges that the trial judge was biased against him. As set forth below in reference to Defendant's recusal motions, this claim has no merit.
12. Defendant's final three grounds all relate to the prosecution of the PDWDCF charge. Ground nine claims prosecutorial misconduct for pursuing the PDWDCF charge, ground ten asserts a due process violation stemming from the prosecution for PDWDCF, and ground eleven alleges that trial judge erroneously instructed the jury on the PDWDCF charge. None of these claims were raised on direct appeal, and therefore are barred by Rule 61(i)(3) unless Defendant can show cause for relief and prejudice from violation of his rights. Defendant has not demonstrated cause for failure to previously raise these claims. Additionally, as already discussed in reference to Defendant's grounds one, the PDWDCF conviction was reversed on appeal, therefore he cannot show prejudice. Therefore, for the reasons stated above, Defendant's motion for postconviction relief is
Superior Court Criminal Rule 61(i)(3) (stating that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred" unless the defendant shows cause for relief or prejudice).
DENIED.
13. Defendant asserts in his first motion for recusal that the undersigned judge was biased against him. His support for this assertion is that the Court allowed Defendant to be prosecuted for the time barred PDWDCF charge and subsequently sentenced him on that conviction. Pursuant to Canon 3(C)(1) of the Delaware Judges' Code of Judicial Ethics "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . . ." When faced with a claim of bias or prejudice under Canon 3(C)(1), a judge must engage in a two-part analysis. First, the judge must, "as a matter of subjective belief, be satisfied that he can proceed to hear the cause free of bias or prejudice concerning that party." Second, even if the judge believes there is no bias, "situations may arise where, actual bias aside, there is the appearance of bias sufficient to cause doubt as to the judge's impartiality." However, although a judge has a duty to recuse when required, a judge also has a duty not to recuse unnecessarily.
Los v. Los, 595 A.2d 381, 384-85 (Del. 1991).
Id. at 385.
See Delaware Judges' Code of Judicial Conduct, Canon 3(A)(2) ("A judge should hear and decide matters assigned, unless disqualified. . . .
"); Los, 595 A.2d at 385 ("In the absence of genuine bias, a litigant should not be permitted to "judge shop" through the disqualification process."); Reeder v. Delaware Dept. of Ins., 2006 WL 510067, at *17 (Del.Ch.) ("[I]t is also recognized that judges who too lightly recuse shirk their official responsibilities, imposing unreasonable demands on their colleagues to do their work and risking the untimely processing of cases"); Judicial Ethics Advisory Committee ("JEAC") 1997-4 (October 20, 1997) ("Thus judicial economy and administrative inconvenience also militate against disqualification.").
14. In essence, Defendant's argument is that the trial judge's failure to sua sponte dismiss the PDWDCF charge demonstrates judicial bias where Defendant did not raise this issue before or at trial. However, the Delaware Supreme Court has held that "the bias envisioned by Canon 3C(1) is not created merely because the trial judge has made adverse rulings during the course of a prior proceeding. In fact, a trial judge's rulings alone almost never constitute a valid per se basis for disqualification on the ground of bias." Rather, "[a]lmost invariably, they are proper grounds for appeal, not for recusal." Defendant's allegations seem to imply that the trial judge was aware of the time bar at the time of trial. However, the record clearly indicates that this issue was not raised until after the briefing was conducted on appeal. The conviction was then vacated. The undersigned judge subjectively has no bias or prejudice towards the Defendant and objectively does not believe a reasonable person would question his impartiality. Therefore, recusal on this ground is not warranted.
In re Wittrock, 649 A.2d 1053, 1054 (Del. 1994) (citations omitted) (holding that the alleged bias arising from the trial judge's failure to declare a mistrial sua spontedid "not constitute clear and convincing evidence that the trial judge is disqualified from ruling on [the defendant's] postconviction motion on the basis of bias").
DeAngelo v. State, 2002 WL 714294, at *5 (Del.Supr.) ("Finally, we consider an argument raised after briefing had been completed on appeal.").
See Los, 595 A.2d at 384-85.
15. Defendant's second motion for recusal claims that the undersigned judge prejudiced Defendant by excusing local counsel from mandatory attendance at proceedings. Delaware court rules allow a judge to excuse local counsel from court proceedings. Defendant was represented by "highly experienced and highly qualified criminal defense lawyers" who had "handled several prior trials in the State of Delaware, including the defense of capital murder charges." Defendant's conclusory allegation of bias does not justify recusal. Therefore, because the undersigned judge believes his both objectively and subjectively impartial, Defendant's motions for recusal are DENIED.
See Delaware Superior Court Civil Rules 90.1(d) (stating that "Delaware Counsel. . .shall attend all proceedings before the Court. . . . unless excused by the Court").
O'Connell Aff., D.I. 248, at ¶ 1.
16. For the reasons stated above, Defendant's motion for postconviction relief and his two motions for recusal are DENIED.
IT IS SO ORDERED.