Opinion
Def. ID# 0111006853.
Submitted: March 5, 2005.
April 21, 2005.
COMMISSIONER'S REPORT AND RECOMMENDATIONS Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
ORDER
On this 21st day of April, 2005, upon consideration of the motion for postconviction relief which defendant Alvin Drummond ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"), and the record in this case, it appears that:
1) On July 1, 2002, a jury convicted defendant of the following charges: attempted murder in the first degree (1 count); possession of a firearm during the commission of a felony (13 counts); robbery in the first degree (8 counts); kidnapping in the second degree (3 counts); burglary in the first degree (1 count); possession of a firearm by a person prohibited (1 count); aggravated menacing (4 counts); wearing a disguise during the commission of a felony (1 count); and conspiracy in the second degree (1 count). Defendant was sentenced to life imprisonment plus ninety-eight years.
2) Defendant filed a timely notice of appeal and the Delaware Supreme Court affirmed his conviction and sentence. Drummond v. State, Del. Supr., No. 532, Veasey, C.J. (October 2, 2003). Defendant then filed a motion for postconviction relief.
3) The matter was referred to the Court Commissioner for findings of fact and recommendations pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62. The Commissioner has filed a Report and Recommendations recommending that the Court deny defendant's motion for postconviction relief because he has failed to establish his claims of ineffective assistance of counsel and, with regard to all other claims, he has failed to overcome the procedural bars of Rule 61(i). Defendant has not filed any objections to the Report and Recommendations, and the time for doing so has passed.
NOW, THEREFORE, after careful and de novo review of the record in this action, defendant's motion for postconviction relief, the Commissioner's Report and Recommendations, and for the reasons stated in the Commissioner's Report and Recommendations dated April 1, 2005,
IT IS ORDERED AS FOLLOWS:
1) The Court adopts the thoughtful and well-reasoned Commissioner's Report and Recommendations;
2) Defendant's motion for postconviction relief is DENIED because defendant failed to establish his claims of ineffective assistance of counsel and with regard to all other claims, he failed to overcome the procedural bars of Rule 61(I).
Pending before the Court is the motion for postconviction relief which defendant Alvin L. Drummond ("defendant") filed pursuant to Superior Court Criminal Rule 61 ("Rule 61") on December 6, 2004. This constitutes my report and recommendations on the pending postconviction relief motion this 1st day of April, 2005.
PROCEDURAL HISTORY AND FACTS
On July 1, 2002, a jury convicted Alvin Drummond of the following charges: attempted murder in the first degree (1 count); possession of a firearm during the commission of a felony (13 counts); robbery in the first degree (8 counts); kidnapping in the second degree (3 counts); burglary in the first degree (1 count); possession of a firearm by a person prohibited (1 count); aggravated menacing (4 counts); wearing a disguise during the commission of a felony (1 count); and conspiracy in the second degree (1 count). Defendant was sentenced to life imprisonment plus ninety-eight years.The Supreme Court set forth the facts in Drummond v. State, No. 532, 2003, Veasey, C.J. (October 2, 2003), its decision affirming the judgment of the Superior Court, and I quote from pages 3-6 in setting forth the facts.
(4) The evidence at trial established that on Friday, November 9, 2001, at approximately 11: 00 p.m., Valerie Harmon's home in Frankford, Delaware was invaded by a masked man who robbed at gunpoint Harmon and her family n2 and a visiting neighbor, Conswella Ayres. At the same time that the masked man was robbing the occupants inside of Valerie Harmon's house, two other unmasked men, who were also armed with guns, were robbing other Harmon family members and friends who were playing cards and socializing in Harmon's garage. After robbing Harmon and the others inside of the house, the masked man forced everyone from the house and into the garage where they joined the other robbery victims who had been forced by the two unmasked robbers to lie face down on the garage floor.
n2 Family members in the house included Valerie Harmon's seventeen year-old son, eleven-year old daughter, and seven year-old granddaughter.
(5) Soon after the masked man forced the occupants of the house to join those in the garage, a vehicle drove into the Harmon driveway. A passenger, Thomassena White, who lived at the Harmon residence and who was returning home from work, got out of the car intending to go into the house. As she approached the house, however, Ms. White was accosted from behind by the masked man, who forced her to go to the garage. The masked man then approached the vehicle that was still parked in the Harmon driveway. The masked man opened the driver's door and, after a brief exchange of words with the driver, shot several times at point blank range, hitting the driver, Travis White, in the leg. A third person in the car, Tyrone Brackett, jumped from the car and ran.
(6) Upon hearing the gunshots, the two unmasked robbers fled the garage, and the area, on foot, disposing of their guns in the woods. They were apprehended by police ninety minutes later. Drummond was arrested two days later on November 11, 2001.
(7) Numerous witnesses testified at Drummond's trial as to the events of November 9, 2001. One of the witnesses was nineteen year-old Brandon Gibbs, who was one of the two unmasked men who had robbed the occupants of Valerie Harmon's garage. Gibbs testified that Drummond was the masked man who robbed the occupants of Harmon's house.
(8) Gibbs testified that Drummond, who was driving, and another man, Mark Tingle, picked him up in Seaford at around 9: 00 p.m. on November 9, 2001. Gibbs had a handgun in his possession. According to Gibbs, Drummond, Gibbs, and Tingle, went to Conswella Ayres' house, n3 that was located down the street from Valerie Harmon's house, where Drummond used the telephone. Drummond then drove Gibbs and Tingle to the Harmon residence and parked alongside the road in a wooded area a short distance from the house. Gibbs testified that Drummond gave Tingle a handgun and instructed Gibbs and Tingle to go to Harmon's garage and rob everybody there while Drummond went to the house. Then, according to Gibbs, Drummond removed a mask from the trunk of his car, put the mask on, and all three men walked toward the house and the garage.
n3 Conswella Ayres is the mother of two of Drummond's children.
(9) As instructed by Drummond, Gibbs and Tingle went inside the garage. Once there, they threatened the occupants with handguns and removed from them money, cell phones and, in one case, a buck knife. Approximately twenty minutes later, after hearing gunshots, Gibbs and Tingle ran from the garage and looked for Drummond's car, but the car was gone. Gibbs and Tingle then began walking, throwing their guns away in the woods. Ninety minutes later, they were picked up by the police and questioned about the robberies. n4
n4 Gibbs and Tingle were charged with numerous offenses stemming from the incident on November 9, 2001. Gibbs pled guilty on June 10, 2002, to one count of Robbery in the Second Degree and one count of Possession of a Firearm During the Commission of a Felony. State v. Gibbs, Del. Super. Ct., No. 01 11006 859, Graves, J. (June 10, 2002). As part of his plea agreement, Gibbs agreed to testify at Drummond's trial. At the time of Drummond's trial, Gibbs was awaiting sentencing. Tingle, who refused to testify at Drummond's trial, was found guilty of eleven charges stemming from the robberies and was sentenced. His conviction and sentence were affirmed on direct appeal. Tingle v. State, 815 A.2d 349, 2003 WL 1412 69 (Del.Supr.).
On appeal, the defendant raised several issues. The ones of significance are those arguments that misstatements the prosecutor made during the State's closing and rebuttal arguments prejudiced him. The Supreme Court addressed these arguments as follows:
Defendant's trial counsel reviewed the record, determined the appeal was wholly without merit and devoid of any arguably appealable issues, and moved to withdraw pursuant to Supreme Court Rule 26(c).
(11) Drummond cites to several excerpts from the prosecutor's closing and rebuttal arguments that, according to Drummond, misstate the testimony at trial. Specifically, Drummond complains that the prosecutor (I) misstated the time of the robbery, (ii) misstated a witness' testimony about the time of the robbery, (iii) mischaracterized a witness' testimony about the position in which the get-away car was parked. . . . None of the prosecutor's statements were objected to at trial.
(12) We review the prosecutor's uncontested misstatements for plain error. n5 In this case, to constitute plain error, the prosecutor's misstatements, either individually or cumulatively, must have been so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of Drummond's trial. n6 Indeed, the prosecutor's misstatements "must be so clear and defense counsel's failure to object so inexcusable that a trial judge, in the interest of fundamental fairness, has no reasonable alternative than to intervene sua sponte and declare a mistrial or issue a curative instruction." n7
n5 Derose v. State, 830 A. 2d 409, 2003 WL 2199 8576 (Del.Supr.); Warren v. State, 774 A.2d 246, 255 (Del. 2001); Del. Supr. Ct. R. 8.
n6 Derose v. State, 830 A. 2d 409, 2003 WL 2199 8576 (Del.Supr.).
n7 Id. (quoting Trump v. State, 753 A.2d 963, 964 (Del 2000)).
(13) Drummond claims that the prosecutor misstated or misrepresented the time of the robberies when he stated, first, in his opening statement, that the robberies took place at "approximately 11: 00, 11: 30 at night," n8 and later, in his closing statement, that the masked individual entered the Harmon residence "at 10: 30 — approximately 10: 00." n9 Contrary to Drummond's contentions, however, these contrasting statements did not misstate or misrepresent the evidence. There were numerous witnesses to the robberies on November 9, 2001. The witnesses' estimates of the time that the robberies took place were imprecise, but they were mostly in the 10: 00 to 11: 00 p.m. range.
n8 Tr., Vol. E, at 5 (July 1, 2002).
n9 Id. at 17.
(14) Second, Drummond complains that the prosecutor misquoted Brandon Gibbs' testimony with respect to how the get-away car was parked. It is true that in his closing argument, the prosecutor mistakenly stated that Gibbs had testified that the get-away car was parked head out. n10 The misstatement was not, however, so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial. Whether the get-away car was parked head in, head out, or alongside the road, the thrust of Gibbs' testimony about the car was that it was gone when he went to look for it after he fled Valerie Harmon's garage.
n10 Gibbs had actually testified that the car was parked alongside the road. When the prosecutor asked Gibbs whether the car was "backed in so the headlights were facing the road or was front in," Gibbs testified that he could not recall. See Tr., Vol. C., at 135 (June 26, 2002).
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(16) Finally, Drummond complains that the prosecutor misrepresented a witness' testimony as to the time of the robbery. In his rebuttal argument, the prosecutor stated that Sol Feliciano, a defense alibi witness, "testified repeatedly" as to the time of day, I. e., "11:00 [p.m.]," that Drummond was at her home in Georgetown. n11 Although Feliciano did testify that Drummond arrived at her apartment in Georgetown "a little after 11:00," n12 the transcript reveals that Feliciano testified repeatedly as to the date, I. e., "November 11," of Drummond's visit, and not the time, as stated by the prosecutor. n13
n11 Tr., Vol. E, at 53 (July 1, 2002).
n12 Tr., Vol. D, at 35 (June 27, 2002).
n13 The transcript reveals that Drummond's defense counsel initially misstated the date when he questioned Feliciano on direct examination. See Tr., Vol. D, at 34 (June 27, 20 02). Eventually, however, Drummond's defense counsel was able to elicit from Feliciano that she had seen Drummond on a Friday; and on cross-examination, Feliciano testified that she had been wrong when she testified earlier that the date was November 11. See Tr., Vol. E, at 8-9 (July 1, 2002).
(17) The prosecutor's confusion regarding Feliciano's testimony as to the time and/or date of Drummond's visit, as well as the other prosecutorial misstatements alleged by Drummond, did not constitute plain error. There is no indication in this record that the prosecutor intentionally misstated the evidence or misled the jury. n14 Viewed individually or collectively, the misstatements were not so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of Drummond's trial.
n14 See Morris v. State, 795 A.2d 653, 659 n. 12 (Del. 2002) (citing to Hughes v. State, 437 A.2d 559, 567 (Del. 1981)).
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(24) The Court has reviewed the record carefully and has concluded that Drummond's appeal is wholly without merit and devoid of any arguably appealable issue. We are also satisfied that Drummond's counsel has made a conscientious effort to examine the record and has properly determined that Drummond could not raise a meritorious claim in this appeal.
. . . The judgment of the Superior Court is AFFIRMED.
Drummond v. State, supra at 6-14.
RULE 61 CLAIMS
In his Rule 61 motion, defendant alleges two general grounds for relief: prosecutorial misconduct and ineffective assistance of counsel. Within those two general grounds, he lists numerous grounds.
1) Prosecutorial Misconduct
Defendant's assertions within the "prosecutorial misconduct" label are:
1. Prosecutor relied on false evidence to obtain conviction by suggesting and misstating the time the crime occurred (10:30-10:00) in his closing argument
2. Prosecutor misquoted the alibi witness testimony (S. Feliciano) that she was wrong about 11:00.
3. Prosecutor fail [sic] to correct the false testimony giving [sic] by (B. Gibbs) that was known to him. How parked the car.
4. Prosecutor called a hostile witness when her action affected the jury (C. Ayers)
5. Prosecutor relied on a tape [sic] statement giving [sic] by (C. Ayers) that was known to be false and obtained through coercion.
6. Prosecutor was aware that the shooter was the same person that chase [sic] after T. Brackett. Gibbs admitted he was that person chasing Brackett, the State allow [sic] the jury to believe it was Drummond.
7. Prosecutor stated that the victims (T. White, T. Brackett and V. Harmon) said that the car was parked head out in the exact location B. Gibbs said it was, which was known to be false.
8. Prosecutor suggest [sic] to the jury that the testimony of B. Gibbs don't [sic] have to be corroborated.
9. Prosecutor fail [sic] to correct his errors when he mischacterize [sic] the facts in his closing argument.
10. He decieved [sic] the jury that Drummond was in the area when the crime was committed.
11. He allowed the witness to identify my car as the one seen which was known to be false.
In his memorandum of law in support of his motion, defendant argues generally that the prosecutor knowingly introduced false evidence and consequently, he is entitled to a new trial. The only specific argument he makes with regard to the "prosecutorial misconduct" ground is:
Defendant argues that the credibility and the alibi defense was undermined in front of the jury because of the prosecutorial misconduct in knowingly introducing and relying on false evidence suggesting that the crime had occurred at 10:30 — approximately 10:00 o'clock [sic], the alibi witness [S. Feliciano] was wrong about it was 11:00. Also see petition, thus rendering his trial fundamentally unfair in violation of his right to due process. [Emphasis in original.]
Before considering these claims, I first must determine if Rule 61(I) procedurally bars them.
In Superior Court Criminal Rule 61(i), it is provided as follows:
Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any 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 movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim in warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
The motion is not time-barred pursuant to Rule 61(I)(1), since it was filed within three (3) years of the date the Supreme Court issued its mandate on the appeal. Because this is defendant's first motion for postconviction relief, Rule 61(I)(2), which precludes the consideration of any claim not raised in a previously-filed postconviction motion, does not apply. However, the bars which are applicable are those contained in Rule 61(I)(3) and Rule 61(I)(4).
The date of the Supreme Court mandate was October 2, 2003.
Rule 61(I)(4) bars consideration of the following assertions because the Supreme Court previously adjudicated them: the prosecutor presented false evidence regarding the time of the robbery, the prosecutor mischaracterized the alibi witness' testimony about the time she was with defendant, and the prosecutor presented false information about the position in which the get-away car was parked. Defendant can overcome this bar if he establishes that the Court lacked jurisdiction or establishes a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Rule 61(I)(5). However, defendant has not attempted to make any such showing. Because he does not attempt to overcome the procedural bar, these grounds are denied as procedurally barred.
Rule 61(I)(3) bars the remaining "prosecutorial misconduct" assertions because defendant had the opportunity to raise them at trial and/or on direct appeal and failed to do so. Defendant can overcome the procedural bar by showing cause for relief from the procedural default and prejudice. Rule 61(i)(3)(A) and (B). Defendant also can avoid the procedural bars, pursuant to Rule 61(i)(5), by showing that the Court lacked jurisdiction or that there is a colorable claim there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. However, defendant has not attempted to make any showing to overcome the procedural bar. Because he has not overcome the procedural bar of Rule 61(i)(3), these remaining grounds fail.
Because all of the grounds set forth under the general ground of "prosecutorial misconduct" are procedurally barred, they fail. These claims are denied.
2) Ineffective Assistance of Counsel
Defendant asserts numerous grounds under the label "ineffective assistance of counsel". They are:
1. Counsel fail [sic] to object to the misstated time by the state (10:30-10:00)
2. Counsel fail [sic] to object to the misqouted [sic] alibi witnes [sic] testimony by the state
3. He fail to correct the misspoken [sic] time he gave during his closing after been [sic] made aware of it.
4. He fail [sic] to ask for a mistrial because the witness credibility was put in jeopardy. By his errors (mispoken [sic] date and time crime occurred)
5. Counsel fail [sic] to conduct his own investigation by not interviewing any of the officers or victims prior to trial
6. Counsel fail [sic] to interview witnesses who [sic] names was [sic] provided to him that could surport [sic] the defense
7. Counsel allowed finger prints taken from the bullet cases [sic] be surpress [sic] by the state
8. Counsel fail [sic] to use impeachment evidence (tape) of the state's star witnesses during cross-examination.
9. Counsel fail [sic] to visit crime scene to better prepare hisself [sic]
10. Counsel fail [sic] to argue any appealible [sic] issues on appeal
11. Counsel fail [sic] to file any motion challenging any of the charges
12. Counsel fail [sic] to adequately prepare hisself [sic] before trial resulted in him making several crucial errors during trial
13. Counsel fail [sic] to send out subpoena
14. Counsel fail [sic] to have his errors corrected at any time
15. Counsel fail [sic] to familiarize himself with the facts of the case
16. Counsel was clearly not focusing during trial
17. He fail [sic] to consult with me about during [sic] an appeal
These assertions are conclusory. Defendant fails to develop these grounds with the exception of the following argument contained in his memorandum of law:
Defendant argue [sic] that his counsel was ineffective for his failures and errors. He fail [sic] to object to the misconduct by the prosecutor in the final argument that was unfairly prejudicial, then he misstated the time the crime occurred and failed to have it corrected once he was made aware of the errors in his closing at trial. . . .
* * *
Counsel's failure to object fell below an objective standard of reasonableness, because the case came down to the credibility of witnesses. An alibi defense was presented and surported [sic] by witnesses.
The state's Plan was to have the jury conclude that the crime was committed at approximately 10:30-10:00 o'clock [sic] which time Drummond was in the area. Therefore the alibi defense does not apply. An [sic] the defense witness [S. Feliciano] was wrong about it been [sic] 11:00. It was 11:45 and the crime is long over when she saw Drummond. Rather than challenge that inappropriate tactic, trial counsel remained silent. Remaining silent in the face of improper and objectionable testimony and argument could not be described as strategic. . . .
The state's improper and inflammatory arguments were incredibly prejudicial. Not only does a reasonable probability exist that had trial counsel objected, the outcome of the trial would have been different, Drummond submits that, but for that improper and inflammatory arguments during closing argument, he certainly would have been acquitted. Only by undermining the alibi defense and witness in front [sic] the jury did the state obtain convictions. Counsel's failure to object unfairly prejudiced Drummond. The date and time is [sic] critical points. Therefore by the defense attorney misstating it in front [sic] the jury the alibi witness credibility was put in jeopardy.
To establish a claim of ineffective assistance of counsel, defendant must show that trial counsel's representation fell below an objective standard of reasonableness and but for the attorney's unprofessional errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984). With regard to the actual prejudice aspect, "[d]efendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Strickland v. Washington, 466 U.S. at 694. Vague, conclusory allegations fail. Younger v. State, 580 A.2d 552, 555 (Del. 1990).
There are no procedural bars to the ineffective assistance of counsel claims since this is the first opportunity defendant has had to advance them. However, out of all the asserted grounds, the only ones the Court will consider are those developed in his memorandum of law; the remaining claims are conclusory and, consequently, fail. Id. Thus, the only ineffective assistance of counsel claims considered are those pertaining to alleged misstatements by the prosecutor about the time of the crime and the confusion regarding the date the alibi witness was with defendant.
As noted earlier, defendant pursued an alibi defense. Defendant argues the prosecutor intentionally misstated the time of the crime in order to render defendant's alibi defense invalid. He argues trial counsel was ineffective for failing to object to the State's allegedly deceitful plan. As the Supreme Court explained, the prosecutor did not misstate the time of the crime; there was evidence from various witnesses supporting the time when the prosecutor stated the crime occurred. Drummond v. State,supra at 8. Furthermore, as the Supreme Court concluded, "[t]here is no indication in this record that the prosecutor intentionally misstated the evidence or misled the jury." Id. at 10. Thus, there was no basis for trial counsel to object to alleged misstatements of time, and the Court cannot conclude that trial counsel's failure to object was unreasonable.
Defendant argues trial counsel was ineffective for creating confusion regarding the date on which the alibi witness spent time with defendant. As explained in Drummond v. State, supra at 9-10 n. 13, trial counsel initially misstated the date when he questioned the alibi witness on direct examination. However, as noted by the Supreme Court, that date issue was clarified; it was established that the alibi witness was with defendant on the date of the crime. Id. Because the date issue was clarified, defendant cannot establish he suffered any prejudice from the confusion trial counsel created regarding the date the alibi witness was with defendant.
Defendant argues trial counsel was ineffective for not objecting to the prosecutor's misrepresentation regarding the alibi witness' testimony. The prosecutor did misstate that the alibi witness "repeatedly" testified as to the time of the day defendant was in her home; in actuality, the alibi witness testified "repeatedly" as to the date, not the time. Id. at 9. However, the Supreme Court has found that neither this misstatement itself nor all the misstatements collectively were so prejudicial as to jeopardize the fairness and integrity of the trial. Id. at 10. Consequently, defendant cannot show that trial counsel's failure to object to any and/or all of the misstatements prejudiced defendant's case.
For the foregoing reasons, defendant's claims of ineffective assistance of counsel fail.
CONCLUSION
After reviewing the record in this case and defendant's submissions on the Rule 61 motion, it is clear defendant has failed to establish his claims of ineffective assistance of counsel and, with regard to all other claims, he has failed to overcome the procedural bars of Rule 61(i). Therefore, I recommend that the Court deny his motion for postconviction relief for the reasons set forth herein.