Opinion
CR. A. No. IN98-09-1109 R1, DEF. I.D. 9809008496.
Submitted: August 6, 2003.
Decided: November 25, 2003.
Upon Consideration of Defendant's Motion for Postconviction Relief. Summarily DISMISSED in part and DENIED in part.
ORDER
This 25th day of November, 2003, upon consideration of the Motion for Postconviction Relief brought by Defendant, Michael Elam, it appears to the Court that:
1. Mr. Elam was charged with Robbery Second Degree, and was found guilty by a jury after trial. On February 11, 2000, Mr. Elam was declared a habitual offender and sentenced to fifteen (15) years at Level V. Mr. Elam filed an appeal with the Supreme Court of Delaware which affirmed the conviction and sentence on January 16, 2001. Mr. Elam now brings his first motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61").
2. Mr. Elam sets forth three grounds for postconviction relief. First, he contends that the police violated his Fifth and Sixth Amendment rights when they took a photo of him for identification purposes without advising him of his Miranda rights or having counsel present. Second, Mr. Elam argues that the rules of discovery were violated when the prosecutor failed to produce the victim's criminal record and signed statement to defense counsel. Finally, Mr. Elam asserts an ineffective assistance of counsel claim, alleging that his attorney failed to investigate and respond to Mr. Elam's requests to have an alibi witness (his mother) testify.
3. Mr. Elam's claims regarding the improper photograph and the alleged violation of the rules of discovery both are subject to the procedural bar of Rule 61(i)(4). Rule 61(i)(4) states that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading up 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 is warranted in the interest of justice." Mr. Elam's first two assertions were adjudicated in connection with his direct appeal to the Supreme Court of Delaware and, consequently, they are barred here. To the extent the motion rests upon previously adjudicated claims, it must be summarily dismissed.
DEL. SUPER. CT. CRIM. R. 61(i)(4).
DEL. SUPER. CT. CRIM. R. 61(d)(4).
4. In order to prevail on an ineffective assistance of counsel claim, Mr. Elam first must show that counsel's errors were so egregious that his performance fell below an objective standard of reasonableness. Second, Mr. Elam must show that there is a reasonable degree of probability that, but for counsel's errors, the outcome of the proceedings would have been different. The allegations of attorney error must be concrete and substantiated. There is a strong presumption that the representation was professionally reasonable.
State v. Ellison, 2003 Del. Super. LEXIS 280, at *7 (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988); Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Id.
Id. (citing Younger v. State, 580 A.2d 552, 555-56 (Del. 1990)).
Id. (citing Flames v. State, 585 A.2d 736, 753 (Del. 1990)).
5. Mr. Elam claims that if his mother had testified, she would have provided him with an alibi for the time of the robbery. In support of this, Mr. Elam submits an affidavit from his mother in which she avers that she saw Mr. Elam asleep in his room twenty minutes before the robbery and that she was willing to testify to this fact at trial. At the sentencing proceedings, Mr. Elam asserted that he had brought up the issue of his mother's testimony six weeks before sentencing and requested that she be subpoenaed but his attorney failed to respond. Mr. Elam's attorney countered that he had discussed the issue with Mr. Elam three days before trial, and it was Mr. Elam's decision not to call his mother as a witness.
D.I. 57, Ex. B.
D.I. 49, at 8.
Id.
6. Mr. Elam's ineffective assistance claim is without merit. The record does not support Mr. Elam's contention that the failure to present his mother's testimony was due to a failure of his lawyer to secure her presence at trial. As an initial matter, the Court is compelled to observe that the suggestion that defense counsel's efforts, by subpoena or otherwise, were necessary to secure Mr. Elam's mother's trial testimony is disingenuous at best. From her affidavit it is clear that she would have been a voluntary witness. But, for reasons not entirely clear in the record, Mr. Elam made the decision at trial, along with his attorney, not to call his mother as a witness in his defense. While he certainly is free to second-guess that decision now, Mr. Elam cannot recast his second-guessing as an ineffective assistance of counsel claim. There is simply no evidence to support the contention that his attorney's conduct fell below any objective standard of reasonableness. As the United States Supreme Court has observed:
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.
Strickland, 466 U.S. at 691.
7. Given the Court's determination that defense counsel was not ineffective, the Court need not address the prejudice prong of the Strickland, analysis.
Based on the foregoing, the Defendant's Motion for Postconviction Reliefmust be summarily DISMISSED in part and DENIED in part.