Opinion
ID No. 0107017041.
Submitted: May 22, 2008.
Decided: August 29, 2008.
On Defendant's Motion for Postconviction Relief. DENIED.
Christopher D. Tease, Esquire, Wilmington, Delaware, Counsel for Defendant.
Cynthia L. Faraone, Esquire, Department of Justice, Wilmington, Delaware.
ORDER
On this 29th day of August, 2008, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. On December 31, 2007, Tyrone Guy ("Defendant" or "Guy") filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). For the reasons set forth below, Defendant's Motion for Postconviction Relief is DENIED.
2. The Defendant's arrest and subsequent conviction stem from an attempted robbery of a Jack and Jill ice cream truck and the shooting of its operator on July 18, 2001 in the area of 10th and Madison streets in the City of Wilmington. The factual details of the incident are fully set out in the Court's recent opinion denying the Rule 61 petition of Guy's co-Defendant Akbar Hassan-El. The first trial, where Guy was tried with Hassan-El, ended in a mistrial when the jury failed to reach a unanimous verdict. At the second jury trial, the Defendants were tried separately and Guy was convicted of the following charges: Murder First Degree, Felony Murder First Degree, Possession of a Firearm During the Commission of a Felony, Attempted Robbery First Degree, and Conspiracy Second Degree. Defendant was sentenced to two life terms of imprisonment, and twenty years at Level V for the remaining convictions. On appeal, the Supreme Court affirmed the Defendant's convictions and a mandate was issued on December 14, 2006. Subsequently, Defendant filed a timely motion for postconviction relief through his appointed counsel. At the Court's request, Defendant's attorneys for trial and appeal, Anthony A. Figliola, Jr., Esquire, and Jennifer Kate Aaronson, Esquire ("Counsel") filed an affidavit in response to the allegations of ineffective assistance of counsel.
State v. Hassan-El, 2008 WL 3271229 (Del Super. July 31, 2008).
3. Prior to addressing the merits of a postconviction claim, the Court must determine whether the procedural requirements of Rule 61 have been met. Any ground for relief raised by Defendant that was not raised at trial or on his direct appeal is procedurally defaulted, unless the Defendant shows both cause for relief, and prejudice from the violation of his rights. In addition, pursuant to Rule 61(I)(4) any ground previously adjudicated is barred unless "reconsideration of the claim is warranted in the interest of justice." A. Procedurally Barred Claims
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(I)(4).
4. All of Defendant's claims that were not raised on appeal, other than his ineffective assistance of counsel claims, are barred because Defendant has failed to articulate "some external impediment" which prevented him from raising such a claim on his direct appeal, nor has he demonstrated a "substantial likelihood" that the outcome would have been different had the issue been raised. In addition the Court notes that Defendant's claim under Batson was addressed during jury selection, where the State's race-neutral reason for using peremptory challenges on African Americans was accepted by the Court. Therefore, this ground for relief is barred under Rule 61(I)(4) as a formerly adjudicated claim.
See Younger v. State, 580 A.2d 552, 556 (Del. 1990); Super. Ct. Crim. R. 61(I)(3).
See Tr. of Jury Selection, June 8, 2004, at 15-18. The State represented that its reason for challenging the potential jurors was either their criminal history or a perceived hesitancy to impose the death penalty. Id.
B. Ineffective Assistance of Counsel at Trial
5. The Defendant sets forth numerous claims of ineffective assistance of counsel. To establish such a claim, the defendant must meet the two-part test set forth in Strickland v. Washington. A defendant must show both that 1) counsel's representation fell below an objective standard of reasonableness, and 2) a reasonable probability exists that but for counsel's errors, the outcome of the proceeding would have been different. Mere allegations of prejudice are insufficient; instead, a defendant must articulate concrete allegations of actual prejudice. Whenever evaluating the conduct of counsel, the Court must indulge "a strong presumption that counsel's conduct was professionally reasonable."
466 U.S. 668 (1984).
Wright v. State, 608 A.2d 731(Del. 1992), citing Albury v. State, 551 A.2d 53, 58 (Del.Super. 1988).
See Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003).
Albury v. State, 551 A.2d 53, 59 (Del. 1998).
6. Defendant first claims that counsel were ineffective for failing to pursue a motion to suppress the Defendant's July 19, 2001 statement to police. As counsel state in their affidavit, a motion to suppress was filed, and after the Court conducted an evidentiary hearing on the motion, counsel decided to withdraw it because, after reexamining the testimony and reviewing the applicable case law, counsel determined the motion was without merit. Not only did counsel arrive at their decision after a thorough analysis of the facts and law, the Court finds counsels' assessment as to the merits of the motion was correct and if not withdrawn would have been denied by the Court. Therefore, this claim fails under Strickland.
Def. Motion at ¶¶ 6-7.
Aff. at 1.
7. Next, Defendant claims that counsel were ineffective for failing to challenge a search of Defendant's residence and the evidence seized as a result under a "fruit of the poisonous tree" theory, and for failing to call the Defendant to testify at the suppression hearing. As the State notes in its brief, Defense counsel did in fact challenge the search of Defendant's residence under the theory that the search exceeded the scope of the Defendant's consent. As such, the Court did review the circumstances surrounding the search of the Defendant's residence and found that the conduct of the police was appropriate. It is a more effective and appropriate strategy for counsel to file motions they deem meritorious after reviewing the relevant facts and law, rather than following the "kitchen sink" approach. Here trial counsel followed the path that clearly evidenced the greatest possibility of success and as such, counsels' conduct cannot be called unreasonable. Furthermore, the Defendant was not illegally detained as argued in this motion, and as such this argument would have been unsuccessful. As to counsels' failure to call Defendant to testify at the hearing, counsel point out in their affidavit, "[the] decision to testify or not testify whether at a suppression hearing or at trial can be made only by Defendant. Defendant maintained throughout the representation by counsel that he did not wish to take the stand." In addition, any argument by Defendant that the outcome of his case would have changed had he testified at the suppression hearing is speculative, and therefore, these claims fail.
State's Br. at 14, note 10.
Aff. at 1.
8. Defendant's next claim of ineffective assistance of counsel surrounds the trial testimony of Officer Ragonese, who interviewed the Defendant on the night of the murder. The State initially represented that Officer Ragonese was unavailable to testify due to being called up for military service, and based on this representation counsel agreed to the admission of the officer's report. In his motion Defendant notes that "based on the unavailability of Ragonese, the defense presented testimony from the Defendant's father that the information in the report was either a mistaken account of what was said by his son, or a fabrication by the officer." Subsequently, it was discovered Officer Ragonese was stationed at a nearby military base and was in fact available. Trial counsel objected to him testifying asserting that he had relied upon the prior representation of his unavailability. In its ruling the Court gave the State the option of either (1) leaving the officer's report in evidence and not calling the officer to testify, or (2) withdrawing the report as an exhibit and calling Officer Ragonese to rebut the Defendant's father's testimony. The State chose the latter.
Def. Motion at ¶ 15.
It is important to emphasize that the argument here is not that the report was improperly admitted or that the Court's ruling to allow the testimony of Officer Ragonese was incorrect. It is that counsel were ineffective for agreeing to the admission of the report, and for not objecting to Officer Ragonese's testimony as cumulative. While trial counsels' tactical decision was influenced by the representation that the witness was unavailable, their reliance on the State's representation cannot be characterized as unreasonable. But more importantly, whether by the introduction of a written document or the oral testimony of the officer, the information provided to the jury was the same and there is no reason to believe the jury's decision was influenced by the method used to present the information. The Court can only surmise that what the Defendant is implying by his argument is that he would have not called his father to testify if the officer had initially been available. Does this mean that the father lied for his son or simply that the Defendant hoped that since the officer was not present the jury would be more inclined to believe the father? The simple fact is that the jury was appropriately allowed to assess the credibility of both the officer and the Defendant's father, and if they chose not to believe his father, it cannot be blamed on the conduct of his trial counsel.
In addition, Defendant claims counsel were ineffective for failing to request a mistrial after the jury requested a copy of the Ragonese report despite the Court's instructions to ignore it. The Court finds this claim also to be without merit. The document was not provided to the jury, and thus could not have influenced their decision. The Defendant can only speculate that they may have wanted to compare the document to the Defendant's father's testimony, a situation that would be adverse to the Defendant, but they were not given that opportunity. As such, the Defendant cannot demonstrate any harm by counsel's failure to request a mistrial as there had been no basis to grant it. For these reasons, this claim fails under Strickland.
Def. Motion at ¶ 28.
9. Next Defendant claims counsel were ineffective for failing to object to the jury instructions for Felony Murder. Defendant argues that counsel should have objected to the Court's articulation of the elements required to prove felony murder, and the language describing the connection between the underlying robbery and the murder. Counsel state that they found no error in the Court's instructions, and as the State noted in their brief, "a Defendant is entitled to have the jury instructed with a correct statement of substantive law" but is not entitled to a particular form of jury instruction. The instruction was consistent with the Supreme Court's holding in Williams v. State, and for that reason counsel were not unreasonable in failing to object to the Court's instruction. For these reasons the Defendant's claim fails.
Id.
See Guy v. State, 913 A.2d 558, 563 (Del. 2006).
818 A.2d 906 (Del. 2003). As the State noted: "Consistent with the Supreme Court's holding in Williams, the instruction [given by the Court] included language beyond the statutory language which served to explain the "in furtherance" element and the requisite causal relationship between the felony and the murder. In fact, the instruction included the same language utilized by the Delaware Supreme Court to clarify the "in furtherance" requirement of the statute." State's Br. at 9.
10. Next, Defendant claims counsel were ineffective for allowing an officer to testify as to statements he heard other State's witnesses make. Defendant claims this procedure resulted in cumulative evidence being presented to the jury, including multiple statements that the victim was a "nice guy," and that the procedure vitiated the purpose of 11 Del. C. § 3507. In counsels' affidavit they state that they agreed to the introduction of evidence in this manner because it was the most effective way to present it to the jury. Counsel made the effort to protect the Defendant's rights by ensuring hearsay objections would only be waived if the State proffered that the appropriate witnesses would be available. All witnesses were in fact produced for cross-examination. This was a tactical decision made by counsel since it provided them an opportunity from the very beginning of the trial to emphasize to the jury the credibility issues of each witness which was a critical part of the defense. Such a decision was reasonable and in no way affected counsels' ability to conduct a thorough and effective cross-examination of the witness when they did testify.
As to the numerous witness statements that the victim was a "nice guy," Defendant cites no authority stating such testimony is objectionable, especially since the victim's character was not in issue. In fact, objecting to such comments could have hurt Defendant. Again, the Defendant has made no showing of objectively unreasonable conduct by counsel, and therefore these claims fail.
Aff. at 4.
11. Defendant next claims that counsel were ineffective for "failing to protect the Defendant's speedy trial rights." Defendant points out that he was arrested on July 24, 2001 and his first trial did not begin until November of 2003. The Defendant's trial was delayed for a lengthy period of time due to the Delaware Supreme Court's stay of all Death Penalty Proceedings pending the decision of the United States Supreme Court in Ring v. Arizona. The stay was issued on September 10, 2002 and was lifted on January 24, 2003. Any other delays were the result of scheduling and conflict counsel issues. Defendant has made no showing that counsels' conduct was unreasonable, and for that reason this claim fails.
Def. Motion at ¶ 29.
12. Defendant claims counsel were ineffective for "failing to call witnesses that had testified during the first trial, which resulted in a mistrial." As the Court previously stated in its denial of co-Defendant Hassan-El's Rule 61 Motion:
Id. at ¶ 30.
The Court cannot fathom a retrial ever being an exact duplicate of a prior trial, considering how both parties are apt to change tactics since neither was victorious the first time around. Because it is clear to the Court the Defendant is not entitled to relief on this ground the Court will not address it further.
Hassan-El, 2008 WL 3271229 at *3.
The same ruling is issued here. C. Ineffective Assistance of Counsel on Appeal.
13. Defendant claims counsel were ineffective for failing to raise on appeal the issue of the trial court's curative instruction to the jury about ignoring the contents of Officer Ragonese's report. Counsel believed the only appealable issue as to Ragonese was that he was permitted to testify in the first place. Counsel addressed this issue on appeal, and the Supreme Court found that "no prejudice resulted from Ragonese's live testimony." Counsel acted reasonably in choosing to raise on appeal only issues they found to be meritorious. Defendant has failed to satisfy the requirements of Strickland, and therefore this claim fails.
Guy v. State, 913 A.2d at 567-68.
14. Defendant's final claim, that counsel were ineffective for "failing to preserve meritorious issues for appellate review," is conclusory and will be summarily dismissed. Without concrete allegations, the Court will not address a Defendant's claim.
Def. Motion at ¶ 33.
D. Conclusion
15. For the reasons set forth above, the Defendant's Motion for
Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.