Opinion
I.D. No. 9504002666.
Submitted: July 21, 2000.
Decided: August 1, 2000.
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF. SUMMARILY DISMISSED in part and DENIED in part.
Kim E. Ayvazian, Peter N. Letang and Colleen K. Norris, Deputy Attorneys General, Department of Justice, Attorneys for the State.
Eugene J. Maurer, Jr., Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
I. INTRODUCTION
Before this Court is Defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons stated, Defendant's motion is SUMMARILY DISMISSED in part and DENIED in part.
II. FACTUAL AND PROCEDURAL HISTORY
Jeffrey R. Fogg (Defendant) was arrested by police on April 5, 1995 for the beating death of James Dilley (Dilley). Defendant was indicted by a grand jury for one count of first degree murder and one count of first degree conspiracy. The State did not seek the death penalty. Following a trial by jury, Defendant and CoDefendant, Darryl Andrus (Andrus), were found guilty of both charges. On July 19, 1996 Defendant was sentenced to life imprisonment without the benefit of probation or parole for the murder conviction and five years in jail, suspended after four years for one year a Level III supervision, for the conspiracy conviction. The Supreme Court subsequently affirmed Defendant's judgments of conviction and on September 30, 1999, Defendant filed this motion for postconviction relief. Defendant's Trial Counsel, James A. Bayard, Jr., submitted an affidavit on November 15, 1999 addressing the claims made by Defendant in this motion for postconviction relief.
For a more thorough recitation of the facts and procedural history, see Fogg v. State, Del. Supr., No. 325, 1998, Holland, J. (Oct. 1. 1998) (ORDER) at ¶ 6; see also State v. Fogg, Del. Super., ID No. 950400266, Cooch, J. (Feb. 20, 1998) (On Remand: Findings of Fact and Conclusions of Law Submitted to the Supreme Court Pursuant to Supreme Court Rule 19 (c)).
In a letter in support of Defendant's motion filed February 22, 2000, Defendant through present counsel withdrew Ground Three alleging that this Court erred in admitting some of Defendant's statements and Ground Four (A)(2) and (6) alleging ineffective assistance of counsel with respect to the cross examination of two State witnesses. Additionally, Defendant had requested an evidentiary hearing but withdrew that request.
III. STANDARD OF REVIEW
When considering a motion for postconviction relief, the Court must first apply the procedural bars of Rule 61(i) before considering the merits of the individual claims. To protect the integrity of the procedural rules, ordinarily the Court should not consider the merits of a postconviction claim where a procedural bar exists.IV. DISCUSSION
Defendant asserts four grounds for relief in his motion. In Ground One, Defendant argues that he was denied of the "right to confrontation and cross examination." Specifically, Defendant states that the "State's witness [Robert Richmond] was permitted to testify to statement of [Andrus] inculpating [Defendant] where [Andrus] did not testify at trial." In Ground Two, Defendant alleges that it was plain error for the Court to fail to "instruct [the jury] on accomplice liability." Defendant asserts that such an instruction was "clearly supported by the evidence [and] [f]ailure to do so left the jury without appropriate guidance in considering questions of [Andrus'] relative degrees of guilt." In Ground Three, Defendant contends that the Court erred in "admitting the statements of [Defendant] in violation of his rights under [Miranda]." Ground Four of Defendant's motion alleges ineffective assistance of counsel; in support, Defendant has listed some eleven instances of ineffective assistance of counsel at the trial level and three instances at the appellate level.A. Ground One of Defendant's Motion For Postconviction Relief Is Procedurally Barred.
Rule 61(i)(4) provides that "[a]ny 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 is warranted in the interest of justice." In order to invoke the "interest of justice provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim, a movant must show that subsequent legal developments have revealed that the trial court lacked authority to convict or punish the defendant."
Flamer, 585 at 746 ( cited in Slater v. State, Del. Supr., No. 164, 1994 Berger, J. (Mar. 1, 1995) (ORDER) at 3).
Ground One of Defendant's motion is related to the testimony of Robert Richmond, a prosecution witness who testified about an out-of-court statement made by Andrus that implicated Defendant in Dilley's murder. Although Defendant raised no objection to Richmond's testimony at trial or on direct appeal, the Supreme Court sua sponte raised the issue of whether there had been a violation of Defendant's rights under Bruton v. United States, 391 U.S. 23 (1968). The Supreme Court ultimately concluded that "the error in admitting into evidence [the] statement incriminating [Defendant] was contrary to the holding of Bruton but was harmless beyond a reasonable doubt when it is considered in the context of admissible evidence of [Defendant's] guilt."
See Fogg v. State, Del. Supr., No. 325, 1996, Holland, J. (Dec. 22, 1997) (ORDER) at ¶ 3 ( consolidated with Andrus v. State, Del. Supr., No. 259, 1996).
Fogg v. State, Del. Supr., No. 325, 1998, Holland, J. (Oct. 1, 1998) (ORDER) at ¶ 8.
This issue has been previously resolved and is therefore barred by Rule 61(i)(4). Furthermore, this Court finds that consideration is not "warranted in the interest of justice" and Defendant has offered no reasons for this Court to believe that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Ground One of Defendant's motion is summarily dismissed.
See n. 11, supra.
B. Ground Two of Defendant's Motion For Postconviction Relief is Procedurally Barred
Ground Two of Defendant's motion alleges that this court erred by failing to instruct the jury on accomplice liability. At the conclusion of trial, the Court instructed the jury on the two offenses and on the lesser included offenses of second degree murder, mans laughter, and second degree conspiracy. No party requested an accomplice liability instruction and none was given. This ground is raised for the first time in Defendant's Motion for Postconviction Relief as it was not raised on direct appeal.
This ground is also raised as a claim of ineffective assistance of counsel in Ground Four (A)(9) of Defendant's Motion for Postconviction Relief. This Court will address the issue of an accomplice liability instruction together.
T. Tr.5/1/96-54-60; 5/2/96-176-185; 6/11/96-3, 12.
Under Rule 61(i)(3), any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the Rules of Superior Court, is thereafter barred unless the movant shows both (1) cause for relief from the procedural default and (2) prejudice from violation of the movant's rights. A showing of cause is not satisfied by showing merely that a claim was not timely raised; a movant must show "some external impediment" which prevented him from raising the claim. To show prejudice, a movant must show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different.
Younger, 580 A.2d at 556 ( citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
Flamer, 585 A.2d at 748.
Although Defendant claims he was prejudiced by the lack of an accomplice liability instruction, Defendant has failed to articulate "some external impediment" which prevented Defendant from raising this ground in the proceedings leading to the judgement of conviction. Furthermore, Defendant cannot establish prejudice because Defendant has failed to show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different. Ground Two of Defendant's Motion for Postconviction Relief is summarily dismissed.
Even if Defendant's claim with respect to an accomplice liability jury instruction were to survived procedural default, trial counsel's failure to ask the Court for such an instruction does not amount to ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. In addition, the Delaware Supreme Court has consistently held that when setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1998) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
State v. Mason, Del. Super., Cr. A. No. IN93-02-0279-RI, Barron, J. (April 11, 1996) (Mem. Op.) at 7.
Under this analysis, Defendant has failed to meet the first prong. The Court instructed the jury on lesser included offenses. Defendant's trial counsel has stated in his affidavit that "[he] believed that the jury would find that instruction applicable to both defendant[s]." Defendant has otherwise failed to show how trial counsel's representation fell below an objective standard of reasonableness.
C. Ground Four of Defendant's Motion for Postconviction Relief Alleging Ineffective Assistance of Counsel Is Summarily Dismissed in Part and Denied in Part
Ground Four of Defendant's Motion for Postconviction Relief makes several claims of ineffective assistance of counsel at the trial and appellate level. Ground Four of Defendant's motion can be separated into two categories. Defendant makes several claims of ineffective assistance of counsel which are procedurally barred by Rule 61(i)(4) and several claims which require analysis under Strickland v. Washington.
1. Ineffective Assistance of Counsel Claims Procedurally Barred
466 U.S. 668 (1984).
As previously noted, Rule 61(i)(4) provides that "[amy 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 is warranted in the interest of justice." In order to invoke the "interest of justice provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim, a movant must show that subsequent legal developments have revealed that the trial court lacked authority to convict or punish the defendant.
See n. 11, supra.
In Ground Four (A)(1) of his motion, Defendant alleges that
[c]ounsel failed to object to the testimony of inmate Robert Richmond regarding statements made by co-defendant Andrus to Richmond which inculpated the defendant, and which plainly violated the defendant's right to confrontation and cross examination. The co-defendant did not testify. These statements were later used by the State and co-defendant's counsel in summation to bolster the argument that the defendant was jointly (State) or solely (co-defendant's counsel) responsible for the homicide.
Defendant's Motion for Postconviction Relief at ¶ 12 (A)(1).
In Ground Four (A)(7) of his motion, Defendant argues that
[t]rial counsel failed to object to the argument of co-defendant's counsel in summation where co-defendant's counsel utilized the statement to Richmond to argue to the jury that Defendant Andruss [sic] was not responsible for the homicide and that defendant Fogg was solely responsible.
Id. at ¶ 12(A)(7).
In Ground 4(A)(8) of his motion, Defendant contends that "[c]ounsel failed to object to the State's summation comments regarding Richmond." In Grounds Four (B)( 1), (2) and (3) Defendant alleges that appellate counsel was equally ineffective in his representation because he "failed to identify the confrontation issue at trial, failed to demonstrate to the appellate court how the error was not harmless [which] resulted in a Supreme Court finding of harmless error." Defendant alleges that defense counsel failed to apprise the appellate court that
Id. at ¶ 12(A)(8).
Id. at ¶ 12(B).
(1) The State's reliance on the testimony of Richmond in its summation over six pages of transcript as it applied to both Andrus and Fogg;
(2) More significantly, the argument of co-defendant's counsel, made at the conclusion of his summation, and without an opportunity for rebuttal by Fogg's counsel, that Richmond's statement showed that Fogg was the individual solely responsible for the homicide; and
(3) A detailed listing of the testimony of Richmond and the statement admitted into evidence, showing how damaging the statement was to Fogg in all its particulars.
Id. at ¶ 12(B)(1), (2) and (3).
This Court finds that the above claims of ineffective assistance of counsel at the trial and appellate level are merely refinements of the Bruton issue which was rejected by the Delaware Supreme Court in Defendant's direct appeal. Defendant has merely raised the same issue through an ineffective assistance of counsel claim. The Supreme Court has already ruled that the error in admitting Richmond's testimony was harmless error beyond a reasonable doubt. This issue has been previously resolved and is therefore barred by Rule 61(i)(4). Furthermore, this Court finds that consideration is not "warranted in the interest of justice" and Defendant has offered no reasons for this Court to believe that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Grounds Four (A)(1), (7), (8) and (B)(1), (2) and (3) are summarily dismissed.
Riley v. State, Del. Supr., 585 A.2d 719 (1990) (holding that a defendant is not entitled to have a court re-examine an issue that has been previously resolved "simply because the claim is refined or restated"). Id. at 721.
See n. 11, supra.
2. Defendant's Other Claims of Ineffective Assistance of Counsel Fail Under the Strickland Test
To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. In addition, the Delaware Supreme Court has consistently held that when setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
See n. 19, supra.
See n. 20, supra.
In Ground Four (A)(3) of the motion, Defendant alleges that
[c]ounsel failed to object to, or seek redaction of certain questions and answers in his taped statement regarding other fights in which he may have been involved in which he kicked other people. This was mentioned and questioned on by the police officers at least five times in the statement. Such testimony constituted impermissible prior bad acts evidence irrelevant to this case and prejudicial to the defendant. This is particularly so where the act of kicking played a prominent role in the claimed cause of death at trial. No limiting instruction was sought by the defense or given by the Court.
Id. at ¶ 12(A)(3).
Trial counsel for Defendant has responded to this allegation by stating that the "primary references to kicking was in the form of statements by the police." Furthermore, there was testimony from John "Dwayne" Cathell, a prosecution witness, addressing Defendant's previous kicking and any statements with respect to kicking made by Defendant was, according to trial counsel for Defendant, considered cumulative. Defendant has not met the second prong of Strickland because he has failed to show how the redactions would have resulted in a different outcome. Ground Four (A)(3) of Defendant's motion is denied.
Aff. of James A. Bayard, Jr. at ¶ 3.
T. Tr. 4/17/96-113-117.
Ground Four (A)(4) of Defendant's motion alleges in five subparts that "[c]ounsel failed to seek redaction of other questions and answers in his statement." The pertinent part of Defendant's statements are
Id. at ¶ 12(A)(4).
(a) Statements by the police officers expressing their personal opinion of the defendant and his guilt, indicating that they "knew" what happened;
(b) Statements by police officers to the effect that the "knew" what the defendant's "record" is'
(c) Statements by police officers incorporating inadmissible and prejudicial hearsay regarding the defendant's drinking and temper when he drank;
(d) Statements by the police officers regarding the defendant's doing things on prior occasions when he was drunk;
(e) Statements by the defendant regarding his prior usage of the drug PCP. No objection was made by the defense and no limiting or curative instructions were sought or given.
Id.
Ground Four (A)(5) of Defendant's motion alleges that
[c]ounsel failed to object to the testimony of Cheryl Adams regarding the defendant's drinking and "trashing" of her room at the Marlex Motel on the day preceding the homicide. Indeed, counsel himself repeated the testimony on cross examination and introduced into evidence photographs depicting the damage done to the room. Such evidence was inadmissible prior bad acts evidence irrelevant to the case and prejudicial to the defendant's character.
Defendant's Motion for Postconviction Relief at ¶ 12 (A)(5).
With respect to the statements, defense counsel had moved, unsuccessfully, to suppress the statements made by Defendant to the police. With respect to the statements about Defendant's drinking and the testimony of Adams, trial counsel for Defendant stated in his affidavit that he did not see "significant prejudice to the [Defendant] from the that exchange of police accusation and [Defendant's] response." "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. . . ." Any inadvertence of counsel does not amount to "cause" unless it rises to the level of ineffectiveness in violation of the 6th Amendment. Defendant has not met the first prong of Strickland because he has failed to show that trial counsel's strategic choice not to object to or redact these statements was unreasonable. Ground Four (A)(4) and (5) of Defendant's motion is denied.
State v. Daryl Andrus and Jeffrey Fogg, Del. Super., ID Nos. 9504004126 and 9504002666, Cooch, J. (Jan. 16, 1996) (Mem. Op.).
Aff. of James A. Bayard at ¶ 4(c).
Strickland, 466 U.S. at 689.
Id. at 690.
V. CONCLUSION
Although this Court finds that Grounds One, Two and Four (A)(7), (8) and (B)(1), (2) and (3) of Defendant's motion are procedurally barred, the claims of ineffective assistance of counsel, not procedurally barred, as considered under Strickland, do not show (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that there exists a probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. For the reasons stated, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED in part as to Grounds One, Two and Four (A)(7), (8) and (B)(1), (2) and (3) and DENIED in part as to Grounds Four (A)(3), (4), and (5).
IT IS SO ORDERED.