Opinion
Def. I.D. No. 0104018389, Cr. A. No. IN01-05-0878-R1., 0879R1, 0880R1, 0881 R1.
Submitted: May 4, 2004.
Decided: July 26, 2004.
Upon Consideration of Defendant's Motion for Postconviction Relief. SUMMARILY DISMISSED in part and DENIED in part.
ORDER
This 26th day of July, 2004, upon consideration of the Motion for Postconviction Relief brought by Defendant, Jermaine Dollard, it appears to the Court that:
1. Mr. Dollard was charged and convicted of Possession with Intent to Deliver Cocaine, Maintaining a Vehicle for Keeping Controlled Substances, Possession of Drug Paraphernalia, and Conspiracy Second Degree. He was sentenced to five (5) years Level V suspended after completion of the Key North Program for various levels of probation. He has filed several motions to modify or reduce his sentence, all of which have been denied. He also appealed his conviction to the Delaware Supreme Court, which affirmed this Court's judgment of conviction and sentence. Mr. Dollard now brings his first motion for postconviction relief pursuant to Rule 61.
Mr. Dollard's first motion for reduction/modification was denied on May 12, 2003 because it was time-barred and because he was required to complete the Key North program in order to have his Level V sentence suspended. His second motion was denied on June 1, 2003, because the Department of Corrections had the discretion to discharge Mr. Dollard when treatment was no longer needed. Mr. Dollard's third motion was denied on September 1, 2003, because the matter was on direct appeal to the Delaware Supreme Court. His fourth (and final) motion was denied on January 29, 2004, pursuant to Superior Court Criminal Rule 35(b), which bars repetitive requests for reduction or modification of a sentence.
DEL. SUPER. CT. CRIM. R. 61 (2004).
2. Mr. Dollard raises multiple grounds for relief. First, he alleges that there was insufficient evidence to support his conviction. Specifically, he notes that the marked twenty dollar bill used in the "controlled buy" that allegedly linked him to the charge of Possession with Intent to Deliver was never produced at trial, nor was it found in his personal effects. Mr. Dollard also asserts that the lead officer in the case testified that the events leading up to Mr. Dollard's arrest "looked like a drug transaction" but did not say for certain that a drug transaction actually took place. Second, he contends that the State's main witness, Kevin Foster, testified that the drugs were his and not Mr. Dollard's. This testimony contradicted Mr. Foster's previous statements (which, according to Mr. Dollard, were coerced), and the jury allegedly was "impaired" when it determined that Mr. Foster's credibility was not successfully destroyed at trial. Third, Mr. Dollard argues that the State's main evidence for the Possession with Intent to Deliver charge was the statement of a confidential informant who was never produced at trial to testify. Consequently, Mr. Dollard alleges that he was deprived of his right to cross-examine the informant. Finally, Mr. Dollard contends that these grounds were not previously raised because his attorney focused on only one ground for his direct appeal to the State Supreme Court.
3. The Court must apply the procedural bars of Rule 61 before reaching the merits of the claims. Mr. Dollard's grounds for relief were not raised in his direct appeal. Rule 61(i)(3) prohibits a movant from raising "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . ." In order to overcome this bar, the movant must show both cause for relief from the procedural default and resulting prejudice. A showing of cause is satisfied only when a movant shows "some external impediment" which prevented him from raising the claim in a timely manner. To demonstrate prejudice, a movant must show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different.
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citation omitted).
DEL. SUPER. CT. CRIM. R. 61(i)(3) (2004).
Id.
Younger, 580 A.2d at 556 (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
Flamer v. State, 585 A.2d 736, 748 (Del. 1990) (citations omitted).
4. Mr. Dollard asserts that these grounds were not raised on appeal because his attorney only wanted to raise one ground for the Supreme Court's consideration. This is an ineffective assistance of counsel claim, which is not subject to the procedural bars of Rule 61 because such a claim may constitute cause under Rule 61(i)(3). Thus, it is necessary to examine the ineffective assistance argument in order to determine whether Mr. Dollard has met the cause/prejudice exception of Rule 61(i)(3). In other words, the issue becomes: did counsel's alleged errors constitute "some external impediment" which prevented Mr. Dollard from raising these grounds on appeal, thus meeting the cause prong of Rule 61(i)(3)?
See Wright v. State, 513 A.2d 1310, 1315 (Del. 1986).
The movant must establish both the "cause" and "prejudice" prongs to overcome the procedural bar. Thus, the Court may examine either one of these prongs first, and if the movant fails to establish that prong, the Court need not address the remaining prong. See Southerland v. State, 1994 WL 713895 (Del. 1995).
5. In order to prevail on an ineffective assistance claim, Mr. Dollard must show: (1) that counsel's errors were so egregious that his performance fell below an objective standard of reasonableness, and (2) that there is a reasonable degree of probability that, but for counsel's errors, the outcome of the proceedings would have been different. He must overcome a strong presumption that the representation was professionally reasonable.
State v. Ellison, 2003 WL 21963010, at *2 (Del.Super.) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988); Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Id. (citing Flamer, 585 A.2d at 753).
6. Although Mr. Dollard's counsel did only raise one ground for appeal, the additional grounds brought up in this postconviction motion are unsupported by the record. Thus, the ineffective assistance claim fails because Mr. Dollard cannot show that the outcome of his trial (or his appeal) would have been different had either one of these arguments been raised. First, the Court will address Mr. Dollard's argument that the evidence was insufficient to convict him of the crimes charged. Upon review of the record, the Court is satisfied that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Mr. Dollard and another individual, Kevin Foster, were pulled over in a car after allegedly engaging in a drug transaction with a confidential informant using a marked bill. When the police searched the car, they found cocaine and a sum of money, including the marked bill. Several officers and detectives who were present at the scene testified at trial. Although Mr. Dollard testified on his own behalf and denied that the drugs and money were his, the jury properly evaluated his credibility and weighed his testimony against that of the other witnesses. The fact that the marked bill was no longer available apparently was of little significance to the jury. Mr. Dollard has failed to show that his claim regarding the sufficiency of the evidence would have yielded relief to him either post-trial in this Court or on appeal. Consequently, he cannot overcome the procedural bar of Rule 61(i)(3). Mr. Dollard's ineffective assistance claim, therefore, also must fail.
Barnett v. State, 691 A.2d 614, 618 (Del. 1997) (citations omitted).
Mr. Dollard's argument that the verdict is defective because Detective Hill testified that the activity in the car "looked like a drug transaction" but was unsure whether a transaction had actually occurred is misplaced. It was well within the jury's discretion to determine the probative weight of Detective Hill's testimony. See Smith v. State, 669 A.2d 1, 6 (Del. 1995) ("The jury is the sole trier of fact and is wholly responsible for determining the credibility of witnesses.") (citing Robertson v. State, 630 A.2d 1084, 1095 (Del. 1993)).
Id.
Detective Phillip Hill testified that the marked bill was redistributed so that it could be used in future investigations. D.I. 48 (September 25, 2002 trial transcript) at 155-56.
7. Next, the Court will address Mr. Dollard's contention that Kevin Foster's confession was "coerced." Mr. Foster pled guilty to Maintaining a Vehicle for Keeping Controlled Substances, Conspiracy Second Degree and Unlawful Possession of a Switchblade Knife on September 24, 2002, the day before Mr. Dollard's trial. As part of the plea agreement, Mr. Foster was to testify truthfully at Mr. Dollard's trial and give a pretrial statement to police. The record is clear that Mr. Foster made the plea and gave his accompanying statement to the police voluntarily. According to Detective Phillip Hill, immediately prior to and following the entry of the plea, Mr. Foster stated that he had received the cocaine from Mr. Dollard and that the money also belonged to Mr. Dollard. At trial the following day, however, Mr. Foster claimed that the cocaine belonged to him and not to Mr. Dollard. The prosecution attempted to show the inconsistency of Mr. Foster's statements by cross-examining him regarding his prior statement and through the direct examination of Detective Hill.
Outside the presence of the jury, the judge and counsel questioned Mr. Foster about the voluntariness of his statement to the police and the voluntariness of his subsequent plea. Mr. Foster indicated that nobody had forced him to enter the plea or give the statement, and that he indeed gave both voluntarily. When Mr. Foster's counsel was summoned, he informed Mr. Foster that he had to testify truthfully as part of the plea bargain and explained the effect that lying on the stand could have on his own case. See D.I. 48 (September 25, 2002 trial transcript) at 220-227.
See id. at 230-239.
See id. at 241-252.
8. It is well established that "the jury is the sole trier of fact, responsible for determining witness credibility and resolving conflicts in testimony." It is not this Court's function at trial or during postconviction proceedings to make credibility determinations. The jury is free to consider and evaluate the strength of impeachment evidence that may undermine a witness' credibility. Detective Hill's testimony was properly used to attack Mr. Foster's credibility because Mr. Foster made a prior inconsistent statement to him. Moreover, as previously stated, there was ample evidence presented at trial for a jury to find beyond a reasonable doubt that Mr. Dollard was guilty of the crimes charged. Thus, Mr. Dollard has failed to show that this argument would have made any difference in the outcome of the trial or in the outcome of his appeal, and consequently his claim is procedurally barred under Rule 61(i)(3). And, since the outcome would not have been different, Mr. Dollard's ineffective assistance claim must fail.
Jackson v. State, 770 A.2d 506, 515 (Del. 2001) (citation omitted).
Id. (citations omitted).
Id.
See DEL. R. EVID. 613(c) (2004) ("If a witness does not clearly admit that he has made the prior inconsistent statement, extrinsic evience of such statement is admissible.").
9. Finally, the Court will consider Mr. Dollard's argument that he was denied his right to confront the confidential informant. This contention is without merit. The Sixth Amendment's Confrontation Clause gives defendants the right to confront witnesses who testify against them. The main concern of the Confrontation Clause is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." No statements made by the confidential informant were used at trial; the prosecution did not attempt to elicit any information about what the informant may or may not have said. Therefore, Mr. Dollard has not suffered a violation of his rights under the Confrontation Clause. Mr. Dollard has failed to prove the "prejudice" prong of Rule 61(i)(3) because he has not shown that this argument would have caused a difference in the outcome of the trial, and again, since the outcome would not have been demonstrably different, Mr. Dollard's ineffective assistance claim must fail.
Capano v. State, 781 A.2d 556, 615-16 (Del. 2001).
Id. at 616, n. 158 (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)).
Supra, note 22.
10. Mr. Dollard has failed to show either cause or prejudice to overcome the procedural bar of Rule 61(i)(3), nor has he met the standard for an ineffective assistance of counsel claim. Consequently, Mr. Dollard's first, second and third grounds for relief are SUMMARILY DISMISSED and his ineffective assistance of counsel claim is DENIED.