Opinion
ID No. 0306015699.
Submitted: June 7, 2007.
Decided: September 24, 2007.
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
Allison Texter, Deputy Attorney General, Wilmington, Delaware 19801.
Jason Hainey, Delaware Correctional Center, 1181 Paddock Road, Smyrna, Delaware 19977. Pro se.
ORDER
On this 24th day of September 2007, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. On June 15, 2006 Jason Hainey ("Defendant") filed a pro se 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 was indicted and charged with two counts of First Degree Murder, Attempted First Degree Robbery, and two counts of Possession of a Firearm During the Commission of a Felony. Following a jury trial, the Defendant was convicted of all counts. The jury recommended a life sentence by a vote of 7-5, and the Court sentenced the Defendant on May 14, 2004 to life imprisonment. Upon subsequent appeal, the Delaware Supreme Court affirmed Mr. Hainey's convictions and a mandate was issued on July 28, 2005. Thereafter, the Defendant filed this timely motion for postconviction relief. At the Court's request, Defendant's trial attorneys, Jerome M. Capone, Esquire, and Michael C. Heyden, Esquire ("Counsel"), filed affidavits in response to the claims of ineffective assistance of counsel.
3. Mr. Hainey states fourteen grounds for relief in his motion:
1. The Court abused its discretion by admitting evidence without an established nexus to the crime.
2. The Court abused its discretion by suppressing the testimony of a ballistics expert.
3. The Court abused its discretion by excluding impeachment of a witness with a juvenile burglary adjudication
4. Counsel was ineffective for failing to interview and subpoena a key witness.
5. The prosecu tor's use of misleading and perjured testimony amounted to prosecutorial misconduct.
6. Counsel was ineffective because he failed to move for a judgment of acquittal.
7. The Defendant's right to a fair trial was unduly prejudiced by a witness's statement that Defendant was "locked up."
8. Mr. Hainey's right to confront the witnesses against him was violated when he was not able to cross-examine Corporal Whitmarsh, the author of a police report that conflicted with another witness's testimony.
9. The Court erred by allowing the prosecutor to argue an intentional murder theory, rather than reckless murder.
10. The Court abused its discretion when it admitted testimony linking a gun to the murder without conclusive evidence.
11. There was insufficient evidence to support the jury's verdict.
12. The Court erred in failing to sua sponte give a Getz instruction to the jury.
13. The prosecutor's misrepresentation of evidence amounted to misconduct.
14. The Court incorrectly instructed the jury on the charge of first degree murder.
4. Before assessing the merits of Mr. Hainey's postconviction claim, the Court must determine whether the procedural requirements of Rule 61(I) have been met. Rule 61 bars claims which the defendant failed to assert in prior proceedings leading to his judgment of conviction, unless cause and prejudice are shown by the movant. Under this standard, several of the claims raised by Mr. Hainey in his motion are procedurally defaulted.
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).
5. As to grounds 5, 7, 9, 10, 13 and 14 listed above, the Defendant failed to object to these issues at trial or to raise them on direct appeal, and is thus barred under Rule 61(I)(3) from raising them now. Additionally, Mr. Hainey failed to show cause or prejudice in any of these claims.
Mr Hainey claims counsel failed to discuss his options for appeal. However, both Mr. Capone and Mr. Heyden state in their affidavits that appeal issues were discussed at trial and sentencing. Capone Aff., at ¶ 2; Heyden Aff., at ¶¶ 1-2.
6. In ground 2, Mr. Hainey claims the trial court abused its discretion by granting the Defendant's own motion in limine to suppress the testimony of the state's ballistic expert. Counsel had no reason to raise this issue on direct appeal, and Mr. Hainey cannot meet the required showing of prejudice because he benefitted from having the suppression motion granted at trial. Thus, this claim too is procedurally defaulted.
7. In ground 8, Mr. Hainey claims he was denied his right to confront the witnesses against him when he was not permitted to cross-examine Corporal Whitmarsh about a statement he made in a report indicating that he (Whitmarsh) found the murder weapon. It appears Mr. Hainey is asserting that he would have been allowed to present to the jury Corporal Whitmarsh's statement, and to point out its inconsistency with the testimony of Detective Spillan, who testified it was he who found the gun. Because this issue was not presented on the Defendant's direct appeal, he cannot claim it now. But there are two other problems with the Defendant's claim. First, Corporal Whitmarsh was never called to testify, but that was not caused by any ruling by the Court. A defendant cannot assert that he was unable to cross-examine a witness when that witness was never called to the stand. Without some obstacle that prevents Corporal Whitmarsh from testifying, the Defendant's right to confront under Crawford is not triggered. Additionally, Mr. Hainey makes no showing of cause and prejudice, as this inconsistency was thoroughly examined during the cross-examination of Detective Spillan and this dispute was presented to the jury. As such, this claim is therefore barred.
See generally Crawford v. Washington, 541 U.S. 36 (2004).
8. Rule 61(I) also bars any ground for relief that was formerly adjudicated, unless the interest of justice requires reconsideration. A number of Mr. Hainey's grounds have already been presented and resolved either at trial or on direct appeal, including, the admissibility of the gun (ground 1); admissibility of a witness's juvenile robbery conviction (ground 3); insufficiency of the evidence (ground 11); and the trial court's failure to give a Getz instruction to the jury (ground 12). Because Mr. Hainey's claims do not meet the narrow "interest of justice" exception, they are barred and do not warrant further consideration.
Super. Ct. Crim. R. 61(I)(4). A claim can be formerly adjudicated in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding. State courts are not required to relitigate in postconviction those claims which have been previously resolved. Younger v. State, 580 A.2d 552, 556 (Del. 1990), Flamer v. State, 585 A.2d 736, 745-46 (Del. 1990).
In order to invoke the "interest of justice" provision of Rule 61(I)(4), a movant must show that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Flamer, 585 A.2d at 746. Mr. Hainey's claims fail to meet this narrow exception.
9. The remaining claims asserted by Mr Hainey are claims for ineffective assistance of counsel, and these claims are not barred by Rule 61. Specifically, he sets forth two grounds: 1) counsels' failure to interview and subpoena a key witness, and 2) counsels' failure to move for a judgment of acquittal at trial.
10. To establish a claim of ineffective assistance of counsel, a defendant must meet the two-part test set forth in Strickland v. Washington. Mr. Hainey must show both that: 1) Mr. Capone's and Mr. Heyden's representation fell below an objective standard of reasonableness, and 2) a reasonable probability exists that Mr. Hainey would not have been convicted but for his trial counsels' error. Both of Mr. Hainey's claims fail under the Strickland analysis.
466 U.S. 668 (1984).
Wright v. State, 608 A.2d 731 (Del. 1992), citing Strickland v. Washington, 466 U.S. 668 (1984) and Albury v. State, 551 A.2d 53, 58 (Del.Super.Ct. 1988).
11. First, counsels' failure to interview and subpoena Phil Kizee does not qualify as objectively unreasonable. Counsels' affidavits cites numerous attempts to contact Mr. Kizee. Not only was Kizee unresponsive to counsel's requests, but his criminal history made him a less than desirable witness. Thus, counsels' decision not to subpoena Kizee was a tactical one. Second, even if counsels' conduct had been deemed unreasonable, Mr. Hainey's claim does not satisfy the prejudice prong of Strickland. Hainey alleges that Kizee's testimony would have contradicted that of the state's witnesses. While this is mere conjecture on Mr. Hainey's part, it is clear that if Kizee was found and testified, that his testimony would have placed Mr. Hainey in an even less desirable light, as he had told counsel that he and Kizee had been involved in similar armed robbery conduct in the past. The potential danger of Kizee's testimony far outweighed any potential benefit. Thus, the Defendant's first ineffective assistance of counsel claim fails.
Phil "Free" Kizee was an acquaintance of Mr. Hainey who, according to trial testimony, was present when Mr. Hainey confessed to State's witnesses Tann and Evans that he killed Mr. Mercer. Mr. Hainey asserts in his motion that Kizee was listed as a witness for the State, but was never called to testify. Mr. Hainey then draws the conclusion that because Kizee was never called "it was obvious" that Mr. Kizee's story did not corroborate that of the other State's witnesses. Def. Mot., D.I. 78, Ground 4, at 4.
Capone Aff., at ¶ 3. ("Hainey was not helpful in providing us with information about where we might locate Phil Kizee. . . Repeated phone calls were made to a New Jersey phone number believed to be Kizee's, and a message was left with a woman believed to be his mother. There was no response to these phone calls. A letter was sent to a New Jersey address believed to be Kizee's. There was no response to this letter."); Heyden Aff., at ¶ 2.
Capone Aff., at ¶ 3.
12. Similarly, Mr. Hainey's contention that his counsel was ineffective for failing to move for acquittal pursuant to Rule 29 fails the Strickland test as it is not objectively unreasonable conduct. Counsel provide ample explanation in their affidavits for the decision not to move for acquittal. In addition, the Court finds that even if the motion had been made, it would have been denied as the state had clearly established its burden when the evidence was considered in the light most favorable to them. Thus, Mr. Hainey cannot claim prejudice under the second prong of Strickland, and this claim also fails.
Super. Ct. Crim. R. 29. ("The Court. . . shall order the entry of judgment of acquittal. . . if the evidence is insufficient to sustain a conviction. . .").
"I did not make a Motion for Judgment of Acquittal because I did not think that we could meet the Rule 29 standard. . ." Capone Aff., at ¶ 3; "The motion in limine had been extensively briefed, argued and reargued. Inconsistencies in testimony do not mean that there is perjury. Credibility of the witnesses is in the province of the jury." Heyden Aff., at ¶ 3.
13. For the foregoing reasons, Mr. Hainey's Motion for Postconviction Relief is hereby denied.
IT IS SO ORDERED.