Opinion
I.D.# 9908021746.
Submitted: June 23, 2003.
Decided: August 15, 2003.
On Defendant's Pro Se Motion for Postconviction Relief.
SUMMARILY DISMISSED IN PART, DENIED IN PART.ORDER
This 15th day of August, 2003, upon consideration of a pro se Motion for Postconviction Relief filed by Mitzie Ellison ("Defendant"), it appears to the Court that:
1. Defendant has filed this Motion for Postconviction Relief (the "Motion") pursuant to Superior Court Criminal Rule 61. It is the first such motion that Defendant has filed. For the reasons stated below, Defendant's Motion is SUMMARILY DISMISSED IN PART and DENIED IN PART.
2. On July 16, 2001, a Superior Court jury convicted Defendant of Trafficking in Cocaine (title 16, section 4753A of the Delaware Code), Conspiracy Second Degree (title 11, section 512), Delivery of Cocaine (title 16, section 4751), and Maintaining a Dwelling for Keeping Controlled Substances (title 16, section 4755). Defendant's convictions were affirmed on direct appeal.
Mitzie Ellison v. State, Del. Supr., No. 172, 2002, Steele, J. (Nov. 27, 2002) (ORDER) (holding that the Superior Court properly permitted the State to introduce 404(b) evidence and that the trial judge did not abuse his discretion in permitting a chemist to testify concerning the combined weight and test results of two bags of cocaine when only one had been field-sampled). Defendant had filed a pro se notice of appeal, followed by designation by Defendant's trial counsel of those portions of the transcript from which the appeal was taken, followed by the withdrawal of Defendant's trial counsel, followed by the entry of appearance of an attorney from the Office of the Public Defender on Defendant's behalf.
One of the main issues at trial concerned whether Defendant had instructed Adrian Rose ("Rose") to deliver cocaine to a police informant. In fact, during opening statements, the prosecutor commented that "the State's [primary] argument will be that . . . delivery was made through Adrian Rose." After the State failed to call Rose as a witness at trial, however, Defendant's trial counsel stated during his closing argument that "we [did not] hear Adrian Rose, who, as advertised, was supposed to come in but didn't."
Trial Tr. of 7/11/01 at 52 (Ex. "B" to Jerome M. Capone Aff.).
Trial Tr. of 7/16/01 at 56 (Ex. "C" to Jerome M. Capone Aff.).
At a point in time after Defendant was convicted but before Defendant filed her appeal, this Court received a letter purportedly from Rose (Defendant's trial counsel and Defendant herself were apparently copied), which letter stated, in pertinent part, that Defendant "didn't tell . . . [Rose] to deliver drugs . . . [to the police informant] The letter from a person identifying himself as Adrian Rose further explained that when Defendant's trial counsel spoke to him pre-trial, Rose indicated to counsel that he "c[ould]n't remember what [had] happened . . ."
Letter from Rose to the Court of 10/1/01 at 1 (Ex. "A" to Jerome M. Capone Aff.).
Id. at 2.
It is the absence of Rose's testimony at trial and the substance of Rose's letter to the Court that now form the bases of Defendant's Motion. The Court assumes, without deciding, that the letter in question was in fact authored by Adrian Rose.
3. Defendant raises three arguments in her Motion: 1) that the prosecutor acted improperly "when he attempted to persuade Adrian Rose to lie to wrongfully convict [D]efendant, excluding him as a witness when he refused to lie"; 2) that counsel was ineffective because he "abandoned . . . [Defendant]'s only defense by not calling Adrian Rose as a witness by subpoena after discovering that the State excluded him as a witness"; and 3) that "in light of th[e] new evidence [comprised of Rose's October 2001 letter to the Court] no juror acting reasonably would have found [Defendant] guilty beyond a reasonable doubt[.]"
Def.'s Mot. at 3.
Id.
Id.
Defendant's trial counsel submitted an affidavit in response to Defendant's Motion. In his affidavit, counsel states that although he "recognized that . . . Rose could be an important witness for . . . [Defendant], " when counsel visited Rose pre-trial Rose "did not provide any information . . . that was going to help . . ."; thus, counsel "concluded that . . . Rose was unreliable, was probably looking out for himself, and [counsel] decided not to call him as a witness." With regard to his decision not to call Rose to the witness stand at trial, counsel states that in his professional judgment he "felt it would be safer, and more effective . . . to point out during . . . closing argument that the State [had] failed to call Adrian Rose as a witness . ., than to put a person on the stand who . ., was a loose cannon."
Jerome M. Capone Aff. ¶ 2.
Id. ¶ 3.
Finally, the State contends that Defendant's contention relating to the alleged prosecutorial misconduct "is presented without an iota of support . . . whatsoever." To that end, the State has attached an affidavit executed by the Deputy Attorney General who prosecuted Defendant, which affidavit states "I have never had any conversation with Adrian Rose nor have I, in any manner, directly or indirectly, threatened him in connection with the Mitzie Ellison case." The State further asserts that "[n]o defense attorney using reason and common sense would have called Mr. Rose to the stand at trial . . ." and that "counsel's strategic decision not to call Rose was sound lawyering." The State lastly argues that Defendant's claim "that Rose's letter would help her cause turns the truth on its head."
State's Resp. to Def.'s Mot. at 1.
James A. Rambo Aff. at 1 (Ex. "A" to State's Resp. to Def.'s Mot.).
Id. at 2.
Id.
4. Superior Court Criminal Rule 61(d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal. . . ." Thus this Court will not address claims for postconviction relief that are conclusory and unsubstantiated. Applying those precepts here, the Court concludes that Defendant is not entitled to the relief she requests relative to her claim that the prosecutor acted improperly "when he attempted to persuade Adrian Rose to lie to wrongfully convict [D]defendant, excluding him as a witness when he refuse to lie[.]" This claim is conclusory and unsubstantiated, and is therefore SUMMARILY DISMISSED. Such a conclusion is particularly warranted where, as has here, the party charged with misconduct has submitted an affidavit tending to refute entirely conclusory and unsubstantiated allegations.
See, e.g., Younger v. State, 580 A.2d 552, 555 (Del. 1990) (stating that "conclusory . . . allegations of ineffectiveness of counsel" do not "lead . . . to the conclusion that the claim should be considered . . .").
Def.'s Mot. at 3.
5. To succeed on a claim of ineffective assistance of counsel, Defendant must show that "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Younger, 580 A.2d at 555-56.
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Applying those standards here, this Court cannot now say that Defendant's trial counsel was ineffective. As indicated by his affidavit, Defendant's trial counsel, in his professional judgment, "concluded that . . . Rose was unreliable, was probably looking out for himself, and [counsel] decided not to call him as a witness." Such a decision cannot be said to have fallen below an objective standard of reasonableness, particularly where witness credibility was a central issue in a case, and where this Court must allow defense counsel the "strong presumption" that his representation was professionally reasonable. Given this conclusion, the Court need not consider any prejudice that accrued to Defendant, and therefore her contention of ineffective assistance of counsel is DENIED.
M. Capone Aff. ¶ 2.
Strickland, 466 U.S. at 697 (stating that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one").
6. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Superior Court Criminal Rule 61. Rule 61(i)(3) provides that "any ground for relief that was not asserted in the proceeding leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights." The procedural bar of Rule 61(i)(3) may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bar to relief in paragraph[. . . . . . . . . . shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This "fundamental fairness" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after [a] direct appeal."
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger, 580 A.2d at 554 (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Younger, 580 A.2d at 555.
Here, Rose sent his letter alleging that Defendant "didn't tell . . . [him] to deliver [the] drugs" to the Court and to Defendant and Defendant's counsel prior to Defendant's pro se filing of her appeal, but after Defendant had already been convicted. Because of that, Defendant should have raised the issue of this claimed "newly discovered" evidence in her appeal. Because she did not, this claim is subject to the procedural default of Rule 61(i)(3), as Defendant has not articulated any "cause" for her failure to raise the issue, and because the "fundamental fairness" exception does not apply to these circumstances.
Furthermore, even if the Court were to treat this claim as a motion for a new trial pursuant to Superior Court Criminal Rule 33, the claim would still be barred, as that rule requires: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial, and could not have been discovered before by the exercise of due diligence; and (3) that it is not merely cumulative or impeaching. While Defendant argues that this "newly discovered" evidence would change the outcome of her previously determined convictions, the letter was in fact "discovered" prior to the pro se filing of the notice of appeal, should therefore have been raised in that appeal, and is therefore not within the scope of the rule for new trials. Accordingly, this claim is within the scope of Rule 61(i)(3), and is therefore DENIED as procedurally defaulted.
Rule 33 provides that a motion for a new trial may be made "based on the ground of newly discovered evidence."
Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987).
7. For all of the above reasons, Defendant's Motion is
SUMMARILY DISMISSED IN PART and DENIED IN PART.
IT IS SO ORDERED.
Defendant is not entitled to the relief she requests relative to her claim that the prosecutor acted improperly "when he attempted to persuade Adrian Rose to lie to wrongfully convict [D]efendant, excluding him as a witness when he refused to lie[.]"