Opinion
ID. No. 0303004601.
Submitted: July 28, 2005.
Decided: September 27, 2005.
Defendant's Motion for Postconviction Relief. Summarily Dismissed.
Christian DeJesus, pro se.
Steven Wood, Esquire, Wilmington, Delaware. Deputy Attorney General.
OPINION
This is the Court's decision on Defendant Christian DeJesus' motion for postconviction relief filed pursuant to Super. Ct. Crim. R. 61 ("Rule 61"). As explained below, Defendant's alleged grounds for relief have no basis in law or in fact, and his motion is summarily dismissed.
Posture. A Superior Court jury found Defendant guilty of one count of first degree burglary, one count of first degree unlawful imprisonment, three counts of aggravated menacing and four counts of possession of a firearm during the commission of a felony. This Court sentenced Defendant to 12 years of imprisonment followed by probation, and the Delaware Supreme Court affirmed. Defendant now seeks to have his convictions vacated and the case against him dismissed, or at a minimum to have a new trial.
DeJesus v. State, 2005 WL 65865 (Del.).
Issues. Defendant contends that most of the issues he now raises were not previously raised because defense counsel's representation was constitutionally ineffective. Defendant asserts that the police coerced the witnesses into testifying against him to obscure the fact that his look-alike brother committed the crimes, and that defense counsel participated in the cover-up by not interviewing the State's witnesses to find out what really happened. He argues that the prosecutor illegally added two charges to the indictment, thereby divesting this Court of jurisdiction over his case. He contends that defense counsel deprived him of any chance of acquittal by choosing not to cross-examine a six-year-old witness. He renews his argument, which failed on direct appeal, that this Court abused its discretion in denying his motion for a translator. Finally, he condemns defense counsel's representation on direct appeal.
Evidence adduced at trial. The State offered the testimony of Marisol Ayala and her two daughters, whose house Defendant barged into on Feb. 14, 2003. Ms. Ayala stated that she was sitting on her porch at 116 Scott Street in Wilmington when a man drove up in a big green car. He got out of the car and asked Ms. Ayala for the whereabouts of a man named "Moreno." When Ms. Ayala said that Moreno was not in her house, he grabbed her by the arm, pointed a gun at her head, and told her to open the door to the house. By this time, Ms. Ayala was crying and screaming. She opened the outside door and knocked on the inside door, which her five-year-old daughter had locked. When the little girl unlocked the door, the intruder yanked it open, grabbed the child, and held his gun to her head. He threatened to kill the little girl if Ms. Ayala did not tell him where Moreno was. The mother cried and screamed, saying over and over that she did not know where Moreno was. She begged the gunman to leave her child alone.
Ms. Ayala's teen-aged daughter was in the kitchen when she heard a ruckus in the other room. She came to the front room where she saw a man holding a gun to her younger sister's head. She ran from the house because she was pregnant and feared for her child. She saw the man drive away in a blue/green car.
Detective Wilfredo Campos of the Wilmington Police Department also testified on the State's behalf. He stated that he interviewed Ms. Ayala and her older daughter shortly after the crimes took place. Both women were cooperative and described the events summarized above. Ms. Ayala told him that she thought the man's name was "Chris." Det. Campos testified that Ms. Ayala was cooperative at the outset of the investigation but that when he talked with her just prior to trial she cried and stated that she was scared of the defendant.
On March 6, 2003, Det. Campos stopped a car that fit the description provided by the victims. The driver was Christian DeJesus, and the car was a 1999 Chrysler New Yorker. When Defendant's room was subsequently searched, the police found ammunition for a 9-millimeter firearm and a .38-caliber firearm, as well as a Pep Boys receipt referring to a 1999 Chrysler New Yorker with the same PA tag number as Defendant's car and made out to Christian DeJesus.
Det. Campos put together six photos of men generally matching the description of the burglar, and showed them to Ms. Ayala and her older daughter. Both women readily identified the photo of Defendant as the man who burglarized their home.
Defendant took the stand and testified that he and his brother had rented a room in a house they shared with a number of other people. He stated that the padlock on the door to their room was to prevent other people from entering the room in their absence, but that the ammunition found in the ceiling did not belong to him. He also testified that he approached Ms. Ayala's older daughter in the street one day and asked her why she had said he was the person who had barged into her home. He stated that he did not commit the charged crimes.
Discussion. Defendant asserts that the prosecutor illegally changed the indictment by adding one count of unlawful imprisonment and an additional weapons charge, and that defense counsel was ineffective for not moving to dismiss on these grounds. The State has broad although not unlimited discretion to prosecute as it sees fit. The additional charges meshed with the facts as shown by the evidence and as defined by the law. The prosecutor did not abuse her discretion in bringing the additional charges. It follows that there is no merit to Defendant's related argument that defense counsel should have moved to dismiss because the allegedly illegal indictment divested this Court of jurisdiction. Defendant has not shown either that counsel's conduct below a reasonable standard or that he was prejudiced by counsel's representation, as required by Strickland v. Washington.
Albury v. State, 551 A.2d 53, 61 (Del. 1988) (citing Wayte v. United States, 470 U.S. 598, 607 (1985) (stating that as long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether to prosecute and what to charge generally rests in his discretion)).
466 U.S. 668, 688, 694 (1984).
Defendant alleges that Det. Campos coerced the witnesses into falsely testifying against him, and that defense counsel was ineffective for failing to bring this fact to light. He argues that Ms. Ayala's letters of recantation were truthful whereas her trial testimony was not. On cross-examination, Ms. Ayala stated that prior to trial she had written two letters proclaiming Defendant's innocence. Defense counsel also elicited the fact that Det. Campos had told Ms. Ayala that she would be jailed if she did not testify against Defendant. Thus the record eviscerates Defendant's claim that defense counsel was unaware of the facts surrounding Ms. Ayala's contradictory statements. The jury heard both versions of Ms. Ayala's recitation of the events, and chose to believe what she had initially told Det. Campos and what she testified to at trial, that is, that Defendant was the person who barged into her home and threatened both her daughter and herself with a gun. The jury is the finder of fact, and the jury has spoken.
Chao v. State, 604 A.2d 1351, 1363 (Del. 1992).
Defendant also asserts that his brother committed the crimes for which he has been convicted, and that defense counsel would have discovered this if he had conducted an adequate investigation. Having heard the Defendant testify at trial, the Court has difficulty treating this claim as anything but a highly optimistic afterthought. Defendant spoke from the stand about the room he and his brother had rented together, the padlock they put on the door to their room, and the car he occasionally let his brother drive. He never stated that his brother committed the crimes or that he and brother could be mistaken for each other, although he had ample opportunity to so testify. Nor did Defendant make this claim on direct appeal, although he raised two other arguments. This assertion defies common sense and does not constitute a viable claim of ineffective assistance of counsel.
Defendant also argues that defense counsel was ineffective for failing to cross examine Ms. Ayala's younger daughter, who was six years old at the time of trial. Defendant also asserts that the child's direct testimony exonerated him, which is flatly untrue. Furthermore, the decision not to cross examine a child witness falls within the broad range of strategic choices that will not be dissected without a showing of prejudice, which Defendant has not made.
Stiickland v. Washington, supra.
Defendant argues that this Court erred by not provided him with a translator at trial. This issue was resolved against him on direct appeal, and is therefore barred by Rule 61 (I) (4), unless warranted in the interest of justice. Defendant has not triggered this exception, which requires a showing that subsequent legal developments have revealed that this Court lacked authority to convict or punish him. This issue is barred from reconsideration.
Flamer v. State, 585 A.2d 736, 746 (Del. 1994).
Conclusion. For the reasons stated herein, Defendant's motion for postconviction relief is summarily dismissed.