Opinion
I.D. No. 0704004328.
Submitted: January 14, 2011.
Decided: February 25, 2011.
Upon Defendant's Motion for Postconviction Relief.
DENIED.Cari V. Chapman, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Anthony A. Figliola, Jr., Esquire, Figliola Facciolo, Wilmington, Delaware, Attorney for Defendant.
ORDER
This 25th day of February 2011, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that: 1. Defendant Tyreese Hawthorne ("Defendant") has filed this motion for postconviction relief on the grounds of "failure to appoint new counsel due to conflict of interest" and ineffective assistance of both trial and appellate counsel. Defendant has alleged that this Court "made no inquiry" into his pre-trial expressions of dissatisfaction with appointed trial counsel.
Def.'s Amended Mot. for Postconviction Relief of January 14, 2011 at 1-3.
Id. at 2.
2. After a jury trial in February and March 2008, Defendant was convicted of Kidnapping First Degree, Burglary Second Degree, Robbery First Degree, Robbery Second Degree, Assault Second Degree, and multiple counts of Possession of a Firearm During the Commission of a Felony. In turn, Defendant was sentenced to the minimum mandatory term of 28 years at Level V incarceration. On direct appeal, the Supreme Court of Delaware affirmed Defendant's convictions and sentence.
Sentence Order of June 27, 2008.
Id.
Hawthorne v. State, 970 A.2d 223 (Del. 2009). On appeal, Defendant argued that the Superior Court erred in denying his first and second motion for a mistrial, that he was prejudiced by this Court's "cumulative error," that his right to a speedy trial was violated, and that there was insufficient evidence to support a conviction for First Degree Robbery. Id. at 228-34. The Supreme Court rejected all of Defendant's arguments. Id.
3. Defendant's convictions arise from incidents which occurred in April 2006. In brief, Defendant, together with three codefendants (together "Defendants"), perpetrated an attack and home invasion of an apartment belonging to Rasheem Sims. Mr. Sims was violently assaulted outside of his apartment, led at gunpoint to his apartment door, and the Defendants forcibly entered the apartment once the door was opened by Crystal Donald, Mr. Sims' girlfriend; Defendants immediately began searching for money. Both Ms. Donald's sister and daughter were present in the apartment at this time. Defendants led Ms. Donald into the kitchen at gunpoint and robbed her of her jewelry. When Defendants became aware that the police had arrived, they leapt from the apartment balcony to the balcony immediately below, forced entry into the adjacent apartment and threatened its occupant, Daniel Moran. The police apprehended all four robbers within Mr. Moran's apartment; Defendant was discovered hiding in a bathtub. 4. Before his trial, Defendant alleged that his court appointed attorney, Peter W. Veith, Esquire, was not performing acceptably. In December 2007, Defendant filed a pro se "Motion for New Counsel." Therein, Defendant asserted that he (all errors in original)
Id.
Id. at 226.
Id.
Id.
Id.
Id.
Id.
[could] not understand how 1) the denial of filing pretrial motions can be reviewed as sound strategy when a) none of the states purported evidence stands supported by police investigatory procedure b) nothing of material fact puts defendant at the scene of the crime.
In rebuttal of counsel presenting a defense to his not filing any pretrial motions, in the interests of justice, defendant moves to have new counsel appointed and/or 1) have a thorough review as to why a) the inconsistencies are not hereby challenged in pretrial motions b) why a dismissal and/or suppression would not be sound strategy to avoid trial.
Def's Mot. for New counsel of December 10, 2007. This Court forwarded Defendant's motion for new counsel to trial counsel "for any appropriate action." State v. Hawthorne, Del. Super., I.D. No. 0704004328, Cooch, R.J. (Nov. 29, 2007) (Letter Op.).
By letter filed January 28, 2008, Defendant asserted that his attorney was "violat[ing] his due process and civil constitutional rights." Shortly thereafter, Defendant filed a letter with this Court stating that he has filed a disciplinary complaint against trial counsel and that trial counsel "refused to acknowledge any of [Defendant's] requests, objectives, objections or motion(s), which all contains [sic] constitutional claims and merits." In this letter, Defendant alleged that trial counsel violated Rules of Professional Conduct 1.2 and 1.3, and requested that the "conflict of interest" between Defendant and trial counsel be resolved by the Court. 5. After Defendant's conviction and sentence were affirmed on direct appeal, Defendant, pro se, timely filed this motion for postconviction relief. Defendant alleged three grounds for relief: 1) "Ineffective Assistance of Counsel;" 2) "Denial of [Defendant's] right to confront his accusor [sic];" and 3) "Abuse of Discretion for Denial of Access to Counsel." In response to these allegations, Defendant's trial counsel, Peter W. Veith, Esquire, averred, inter alia, as follows:
Def.'s Letter of January 28, 2008.
Def.'s Letter of February 12, 2008.
Id. In a letter addressed to trial counsel, Defendant stated: "I have continued to write to you regarding specific actions to be taken in my case, which you have neglected to respond to, so I will no longer make genuine attempts to seek justice from an ineffective defense attorney that has been neglecting to take actions in my best interest." Def.'s Letter of Aug. 20, 2007.
Def's Mot. for Postconviction Relief of Feb. 25, 2010 at 3.
18. Counsel met with [Defendant] on numerous occasions to discuss trial strategy, as well as, the merits of the State's plea offer. At times, [Defendant] was argumentative and expressed displeasure with counsel; however, prior to the commencement of trial [Defendant] informed counsel that he wished for counsel to represent him. Based upon my recollection and belief, the Court addressed [Defendant's] concerns about counsel before jury selection.
19. During jury selection, [Defendant] fully participated and conferred with counsel about which jurors to strike or keep. Additionally, [Defendant] and counsel discussed his case and trial strategy throughout his trial. At no point in time during the trial, did [Defendant] express any concerns about counsel's performance or trial strategy;
20. During the trial, both Lawrence Michaels and Andre Wright testified on their own behalf and were subject to cross-examination.
21. [Defendant] elected to invoke his constitutional right to remain silent.
22. [Defendant] claims he was denied his 6th Amendment right to effective assistance of counsel and his 14th Amendment right to Due Process. [Defendant's] claim appears to be two-fold in that trial counsel was ineffective due to a lack of communication between counsel and [Defendant]. Similarly, [Defendant] claims appellate counsel was ineffective for failing to raise a conflict of interest claim on direct appeal;
23. Any and all allegations asserting trial counsel's ineffectiveness are denied in their entirety;
24. Upon receipt of [Defendant's] repeated complaint[s] about counsel's performance, I routinely met with [Defendant] to discuss his concerns. Based upon my recollection, [Defendant's] main complaint was my decision not to file a motion to suppress and/or a motion to dismiss the indictment based upon a speedy trial claim. I informed [Defendant] that based upon the facts of his cased[,] I did not believe that I had any "good faith basis" to file either motion. Additionally, during the course of my representation of [Defendant], based upon my recollection, I advised him repeatedly that if he was dissatisfied with my representation he could elect to represent himself. [Defendant] elected to continue my representation. Again, I believe that the Court addressed this issue during jury selection, so production of that relevant transcript may assist the Court in deciding this issue.
25. Accordingly there is no merit to this claim in [Defendant's] petition.
[26.] [Defendant] asserts a general ineffective assistance of counsel claim for not severing [Defendant] from his co-defendants and for not being allowed to confront his accusers.
[27.] This claim is without merit.
[28.] Trial counsel made a motion for severance which was denied. Appellate counsel did not [assert] this claim on direct appeal. However, the basis for severance was marginal at best. [Defendant's] defense at trial was not in conflict with his co-defendants. Specifically, [Defendant's] defense, which was rejected by the jury, was that he did not commit an armed home invasion robbery or burglary. The defense centered upon the credibility of the State's main witness in which the defense asserted that this was only a potential drug deal that went wrong. Additionally, the co-defendants both testified during the defense case and were subject to cross examination.
[29.] Counsel effectively attempted to confront his accusers on cross examination. However, due to the mountain of physical evidence against the defendant coupled with Ms. Tashika Townsend['s] in court identification of [Defendant] as being one of the armed intruders, the jury apparently gave her direct testimony more weight. Additionally, Ms. Crystal Donald, another victim, testified that [Defendant] was one of the armed intruders. Again, Ms. Donald was subject to cross examination.
[30.] Additionally, based upon the State's request for an accomplice liability instruction, any cross examination of the State's witnesses concerning clothing descriptions and/or who physically possessed the recovered firearms was somewhat pointless.
Aff. of Peter W. Veith, Esquire ¶¶ 18-30.
6. In its answer, the State acknoweldged that there are no procedural bars to Defendant's motion. With respect to the merits of Defendant's motion, the State noted that trial counsel's decision to forego filing a motion to suppress or motion to dismiss was based on the lack of a good faith basis for such motions and cannot be deemed ineffective assistance of counsel. Likewise, the State "concur[red] with trial counsels' recollection that the Court addressed [Defendant's] written request for new counsel, at which time, [Defendant] elected to continue with trial counsel's representation."
State's Answ. to Def's. Mot. for Postconviction Relief of May 5, 2010 at 3 ("This is [Defendant's] first motion for post-conviction relief and was timely filed; there are no procedural bars to consideration of his claims on their merits.").
Id.
Id; see also id. at 5 ("[Defendant's] request for a new attorney was addressed prior to trial and [Defendant] elected to have Mr. Veith represent him at trial. Furthermore, there was no indication during the course of the week long trial that [Defendant] was displeased with Mr. Veith's representation. By all accounts, [Defendant] agreed to the representation at trial; therefore his claim is without merit.").
7. With respect to Defendant's claim that he was denied his constitutional right to cross examine the victims at trial, the State asserts that "all witnesses who testified on behalf of the State were present, available and subject to cross-examination by all defendants, including [Defendant]."
Id. at 4.
8. Defendant then filed a "Final Reply," in which he alleged that "the state and trial attorney has failed [sic] to produce any transcripts and or proofs to substantiate their claims that the movant's 6th and 14th amendments was not violated [sic]." Defendant also requested that the Court order an evidentiary hearing "to dispose of the trial attorney's recollection (without transcripts to support his response) of any disposition of movant's pre-trial motion to dismiss trial counsel [sic]." Defendant maintained that it was "imperative that the state and trial attorney's [sic] produce these transcripts for the courts and the movant for the purpose of rebuttal."
Movant's Final Reply to Postconviction Motion of June 8, 2010 at 1.
Id.
Id. at 2.
9. An extensive search by this Court and court personnel has failed to yield the transcript of any colloquy with Defendant immediately before trial began regarding any continuing dissatisfaction with trial counsel's performance. The Chief Court Reporter for the New Castle County Superior Court filed an affidavit stating as follows:
I, as Chief Court Reporter in the Superior Court of the State of Delaware in and for New Castle County was contacted. . .on or about June 30, 2010, and was asked to have my reporters search for a colloquy that allegedly took place before the [the trial judge], and the above named defendant on or about 2/26/08 prior to the selection of a jury for the defendant's scheduled trial concerning the defendant's continued representation by Peter Veith, Esquire. I instructed. . .the reporter who selected the jury, as well as [the reporter] who also had a portion of jury selection to look for the colloquy. They both informed me that no such colloquy took place in their presence on the record. I then instructed [the trial court reporter] to check the actual trial transcript which took place on 3/3/08 through 3/7/08, for the above mentioned colloquy and she informed me that such a colloquy does not exist on the record. I further followed up and [requested counsel who represented Defendant at the call of the criminal calendar] to check to see if a colloquy took place during the call. [He] informed me that no such colloquy place.
I next instructed [the case review court reporter] to check her final case review date for [Defendant], which took place on 10/29/07 for such a colloquy. She also informed me that no such colloquy took place on that date.
I then sent a blanket email out to my entire staff asking them to see if any of them had a colloquy between the Court and [Defendant] on the date of 2/26/08. I received back all negative responses to my inquiry.
The final step that was undertaken in the search for the alleged colloquy was a search of the For the Record Gold digital recordings for the above mentioned date, and no such colloquy was captured on the For the Record digital record.
Aff. of John P. Donnelly, RPR.
10. Given the absence of a transcript memorializing this colloquy, the Court ordered an evidentiary hearing, to take place on September 27, 2010, for the purpose of establishing, to the extent possible, the facts relevant to Defendant's claims regarding any dissatisfaction with Mr. Veith in any pre-trial colloquy. Defendant requested a sixty day continuance of this hearing in order to attempt to retain appointed counsel; this Court then appointed Mr. Figliola on September 28, 2010 to represent Defendant on all issues raised by the motion for postconviction relief.
State v. Hawthorne, Del. Super., I.D. No. 0704004328, Cooch, R.J. (Sept. 28, 2010) (Letter Op.).
11. The evidentiary hearing was held on November 29, 2010. The purpose of this hearing, as stated by the Court, was to "reconstruct. . .the colloquy, if it occurred, on [the subject of] a discussion that [the Court] had with [Defendant] about his feelings about [trial counsel]." This Court noted that the reconstruction of the missing transcript was not necessarily indispensable to decide Defendant's motion for postconviction relief.
Transcript of Evidentiary Hearing of Nov. 29, 2010 at 3.
Id. at 4.
12. During this hearing, counsel for Defendant's codefendants testified that they did not have a specific, independent recollection of a colloquy immediately prior to trial between the Court and Defendant regarding Defendant's dissatisfaction with trial counsel. Trial counsel for Defendant testified as follows:
Id. at 5-12.
[M]y recollection is that at the conclusion of jury selection, Your Honor had a colloquy with all three defendants about their rejection of the plea offers that were extended by the State, and my recollection is at the end of [Defendant's] colloquy, the court inquired as to whether he was satisfied with my representation, and he said he was, and then we proceeded forward.
Not having a transcript of that, I'm obviously having second thoughts, but that was my recollection. I had a note in my file that said that there was a colloquy on the 26th, which would have been jury selection, but it only was noted as to the rejection of the plea offers, and that was for all three defendants.
Id. at 15.
13. Conversely, Defendant testified at the hearing that he expressed his dissatisfaction with counsel through correspondence with trial counsel, a motion to dismiss counsel, and a disciplinary complaint against trial counsel, but that these issues were not addressed by the Court. Defendant stated that, prior to the commencement of his trial (assigned to the undersigned judge immediately before the date of trial), the Court did not inquire into Defendant's dissatisfaction with trial counsel, and his motion for new counsel was never heard; he further testified that he did engage in a colloquy with the Court regarding the plea offer, but there was never a colloquy regarding his motion to dismiss counsel. 14. After this evidentiary hearing, and as permitted by the Court, Defendant through his new counsel filed an Amended Motion for Postconviction Relief. Therein, Defendant asserts that the Court was required to consider Defendant's request for new counsel, and there is no resolution of Defendant's complaints about trial counsel on the available record. Defendant also alleges that trial counsel was ineffective for failure to object to the introduction of blood evidence pursuant to Delaware Rule of Evidence 403; that is, Defendant contends that the prejudicial effect of this evidence "far outweighed" its probative value and trial counsel should have objected to its admission. Finally, Defendant alleges that "[i]t was ineffective for [trial counsel] to abandon questioning of alleged victim concerning her prior out of court statement." The basis for trial counsel's alleged "abandon[ment]" of this line of questioning was apparently concern that such questioning would place another defendant in jeopardy. Defendant asserts that, "[i]nstead of seeking a mistrial and subsequent severance, counsel chose to abandon the questioning." According to Defendant, this violated his Sixth Amendment rights.
Id. at 22-23.
Id. at 24.
Def.'s Amended Mot. for Postconviction Relief of Jan. 14, 2011 at 1-2.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."
Def.'s Amended Mot. for Postconviction Relief of Jan. 14, 2011 at 1-2. Defendant's allegations in this respect appear to be two-fold: 1) trial counsel filed a motion for a continuance to allow for testing of the blood evidence, and this motion was denied; Defendant asserts that "[f]ailure to timely file Motion may have been ineffective;" and 2) "Failure to object to [the blood evidence] absent some tactical reason is ineffective." Id.
Id. at 3.
Id. In his amended motion, Defendant also alleges ineffective assistance of appellate counsel for "[failure] to raise the issue of ineffective assistance of Trial Counsel on Direct Appellate [sic]." Id.
15. Defendant's claims of ineffective assistance of counsel are governed by the United States Supreme Court's decision in Strickland v. Washington. Under Strickland, Defendant bears the burden of proof in meeting a two prong test: that counsel's efforts "fell below an objective standard of reasonableness" and that, but for counsel's alleged error there was a reasonable probability that the outcome would have been different. To prevail on a claim of ineffective assistance of counsel, Defendant must "overcome the strong presumption that his counsel's representation was professionally reasonable." The Court will evaluate trial from counsel's perspective at the time of trial to avoid "the distorting effects of hindsight." Similarly, a Court "cannot require defense counsel to choose one particular defense strategy over any other strategy that falls within the `wide range of professionally competent assistance.'"
466 U.S. 668 (1984).
Id. at 668-691.
Gattis v. State, 697 A.2d 1174, 1178 (Del. 1997).
Id. (citation omitted).
Oliver v. Wainwright, 795 F.2d 1524, 1531 (11th Cir. 1987) (quoting Strickland, 466 U.S. at 688-89).
16. As stated, Defendant has alleged that trial counsel was ineffective because he did not object to the introduction of certain blood evidence on D.R.E. 403 grounds and because trial counsel allegedly "abandon[ed] questioning of alleged victim concerning her prior out of court statement," apparently due to concerns that such questioning might place another defendant in jeopardy, rather than seeking a mistrial and subsequent severance.
Def.'s Amended Mot. for Postconviction Relief at 3.
17. Upon review of the facts and history of this case, these contentions fail to meet the test established in Strickland. Defendant has made the unsubstantiated allegation that trial counsel "abandoned" questioning of the victim and deprived him of his rights under the Confrontation Clause, that trial counsel's alleged lack of diligence in pursuing a motion to sever or motion for a mistrial contributed to this alleged violation of Defendant's rights under the Confrontation Clause, and that trial counsel failed to object to the introduction of blood evidence in the absence of any tactical reason for doing so.
On direct appeal, the Supreme Court of Delaware held that the Superior Court did not abuse its discretion in denying Defendant's first and second motion for a mistrial. Hawthorne v. State, 970 A.2d 223, 231 (Del. 2009).
18. As explained in the State's Response and confirmed by the trial counsel's affidavit, there was no good faith basis for a motion to suppress or a motion to dismiss the indictment on grounds of a speedy trial violation. While Defendant had the right to counsel, he did not have "a right to counsel who will not disagree with him on trial strategy." Additionally, trial counsel did file a motion for severance from his codefendants, and this motion was denied; significantly, trial counsel noted that the grounds for this motion were "marginal at best." Thus, despite Defendant's dissatisfaction with the disposition of his motion for severance, trial counsel appropriately filed such a motion with this Court.
The Supreme Court of Delaware also rejected Defendant's claim of a speedy trial violation on direct appeal. Id. at 232.
Zimmerman v. State, 991 A.2d 19, *2 (Del. 2010) (citations omitted).
Aff. of Peter W. Veith, Esquire ¶ 27.
Id.
19. With respect to Defendant's contention that he is entitled to postconviction relief based on this Court's "[f]ailure to appoint new counsel due to conflict of interest," the record suggests that no colloquy was held immediately prior to trial to hear Defendant's complaints about trial counsel. At the same time, neither this Court nor any of the defense counsel present at this trial have any recollection of Defendant expressing dissatisfaction with trial counsel during the course of the trial. As this Court stated at the outset of the evidentiary hearing, the disposition of the instant motion does not turn on the occurrence, vel non, of this colloquy.
Def.'s Amended Mot. for Postconviction Relief of Jan. 14, 2011 at 1.
See State v. Hawthorne, Del. Super., I.D. No. 0704004328, Cooch, R.J. (Sept. 16, 2010) (Letter); Transcript of Evidentiary Hearing of Nov. 29, 2010 at 6 (Robert M. Goff, Jr., Esquire, counsel for codefendant Lawrence L. Michaels, testified at the evidentiary hearing that he "[didn't] specifically recall anything, either Mr. Hawthorne addressing the Court. . .[or] a specific request on [Defendant's] part to dismiss Mr. Veith."); id. at 11-12 (Jan A.T. Van Amerongen, Esquire, counsel for codefendant Andre N. Wright, testified at the evidentiary hearing that he "[didn't] think [Defendant] ever came out and said [he was] happy with Mr. Veith's performance, but. . .[Defendant] wanted to go forward that day. . .and therefore, he was satisfied enough, I'll say, with Mr. Veith.").
20. In his affidavit, Mr. Veith confirmed that he addressed Defendant's dissatisfaction during the course of the representation, stating that, "prior to the commencement of trial [Defendant] informed counsel that he wished for counsel to represent him." Similarly, trial counsel confirmed that he "advised [Defendant] repeatedly that if he was dissatisfied with [trial counsel's] representation he could elect to represent himself. [Defendant] elected to continue [trial counsel's] representation." Further, with respect to Defendant's contention that he was prejudiced by trial counsel's failure to establish a "trust" and to effectively convey that a plea was in Defendant's best interest, this allegation is belied by trial counsel's affidavit; trial counsel unequivocally stated that he "met with [Defendant] on numerous occasions to discuss trial strategy, as well as, the merits of the State's plea offer."
Aff. of Peter W. Veith, Esquire ¶ 18.
Id. ¶ 24.
Def.'s Amended Mot. for Postconviction Relief at 1.
Aff. of Peter W. Veith, Esquire ¶ 18.
Notably, this Court engaged all defendants in a colloquy immediately before trial to confirm their knowing rejection of the plea offers extended by the State. During this thorough colloquy with the Court, Defendant never suggested that his dissatisfaction with trial counsel was continuing. Indeed, immediately following this colloquy, Defendant made an application to directly address the Court on his motion to dismiss based on an alleged speedy trial violation; in this application, Defendant did not include a request to address the Court regarding trial counsel's performance. This would have been the logical time for Defendant to have expressed any dissatisfaction with trial counsel's performance.
Transcript of Colloquy with Defendant of Feb. 26, 2008 at 104-05.
Id. at 108-09. This Court denied Defendant's application to directly address the Court. Id. at 109. At this time, trial counsel also indicated that there was a potential issue with a DNA analysis in this case. Trial counsel stated that he would "talk to [Defendant] and bring it up tomorrow [February 27, 2008] morning." Id. However, the transcript for February 27, 2008 does not reflect any subsequent discussions on this issue.
Assuming Defendant had expressed dissatisfaction with Mr. Veith during this colloquy, that of course does not mean that the trial would have been continued so that new counsel with whom Defendant might be satisfied could be appointed; expressions of dissatisfaction by criminal defendants with their appointed counsel are regular occurrences in this Court.
21. The Supreme Court of Delaware has observed that a defendant's dissatisfaction with his counsel "does not alone justify the appointment of substitute counsel." Similarly, precedent from the Supreme Court of Delaware confirms that "[i]t is well-settled that the right to counsel does not entail an absolute right to counsel of one's choice." Significantly, Defendant was advised by another judge of this Court that his purported dissatisfaction with trial counsel would not be sufficient for the appointment of new counsel. Less than three weeks prior to the commencement of his trial, Defendant filed a letter requesting that the Court take action on his complaints about trial counsel. By letter to Defendant dated nearly two weeks prior to Defendant's trial, another judge of this Court advised: "[y]ou should be aware, however, that the Court does not generally allow a defendant who is represented by conflict counsel at State's expense to have a new attorney appointed based on a defendant's dissatisfaction with his appointed attorney."
Pringle v. State, 941 A.2d 1019, *2 (Del. 2007) (citing Bultron v. State, 897 A.2d 758, 763 (Del. 2006)).
Lewis v. State, 884 A.2d 512, *3 (Del. 2005) (citation omitted); see also Hunter v. State, 659 A.2d 228, *2 (Del. 1994) ("[A]lthough there is a right to select one's attorney contemplated under the Sixth Amendment, "the essential aim of the amendment is to guarantee an effective advocate for each criminal defendant" rather than to insure him with his preference.") (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)).
State v. Hawthorne, Del. Super., I.D. No. 0704004328, (Feb. 14, 2008) (Letter Op.).
Id.
22. Given the foregoing, Defendant's motion has failed to establish that trial counsel's representation fell below an objective standard of reasonableness or that the result would have been different but for trial counsel's allegedly ineffective assistance. As stated in Strickland, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Trial counsel filed a motion to sever in this case, and decided forego the filing of a motion to suppress and motion to dismiss due to the lack of any good faith basis for either motion. Subsequently, there was a jury trial in this case in which trial counsel "attempted to confront [Defendant's] accusers on cross examination." Trial counsel indicated that the jury apparently gave the victim's testimony more weight, given the "mountain of physical evidence" against Defendant, but this does not nullify counsel's efforts to effectively cross examine the victim. In short, trial counsel's conduct and strategy during trial must be given a strong presumption that it was "within the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689.
Aff. of Peter W. Veith, Esquire ¶ 24.
Id. ¶ 28.
Id.
23. Moreover, Defendant has failed to satisfy the second requirement of Strickland; Defendant was required to "make specific allegations of actual prejudice and substantiate them." Instead, Defendant merely alleged that trial counsel did not effectively communicate the advisability of accepting the State's plea offer, that trial counsel did not diligently pursue motions to sever, suppress, and dismiss, that trial counsel should have objected to the introduction of blood evidence under D.R.E. 403, and that trial counsel did not effectively cross examine the victim, in violation of Defendant's Sixth Amendment rights.
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."
24. As noted, trial counsel denied the foregoing allegations. More importantly, Defendant has not established any actual prejudice resulting from his allegations. Defendant has not alleged that he would have accepted the State's plea offer; this failure is particularly apparent when considering that, on the day of trial, trial counsel stated that he "sat down" with Defendant and "outlined our case;" trial counsel represented that he told Defendant "[t]his is our best case and our worse case scenario." Even more compelling, after the State set forth its final plea offer to Defendant to one count of Robbery in the First Degree and one count of Possession of a Firearm During the Commission of a Felony, the Court engaged Defendant in the following plea colloquy:
Aff. of Peter W. Veith, Esquire ¶ 23.
Trial Transcript of Feb. 27, 2008 at 7.
TRIAL COUNSEL: Your Honor, I've explained the offer to [Defendant], Robbery One, Firearm, six-year minimum mandatory, with a presentence investigation. He understands the offer. He is electing to reject the offer and proceed to trial.
THE COURT: Mr. Hawthorne, did you hear everything that both [the Deputy Attorney General] said and your attorney just said?
DEFENDANT: Yes, Your Honor.
COURT: Do you understand that I was previously advised by the attorneys that if you were to be convicted of all the charges, you would face a minimum mandatory sentence of 33 years that would have to be imposed. That's if you were convicted. Do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that this is your last opportunity to accept the State's plea offer? If you are convicted of some or all of the charges-I'm not saying you will be, but if that were to happen-you know the evidence better than I do-you would not be able to come back at any later time saying that you wished to accept the plea offer but were somehow prevented from doing so. Do you understand that?
DEFENDANT: Yes, I do, Your Honor.
THE COURT: Is it your desire to not accept the State's plea offer and proceed to trial?
DEFENDANT: Yes, that's my desire, Your Honor.
Transcript of Colloquy with Defendant of Feb. 26, 2008 at 104-05.
Also, as stated, trial counsel had moved for severance, and such motion was denied. Similarly, trial counsel did not move to suppress or to dismiss because he did not believe there was a good faith basis for either motion. Trial counsel's beliefs were validated by the decision of the Supreme Court of Delaware affirming Defendant's convictions and sentence. Therefore, Defendant's conclusory allegations of ineffective assistance of trial counsel do not establish that, but for trial counsel's alleged error, there was a reasonable probability that the outcome would have been different. Consequently, Defendant's claims do not satisfy the requirements set forth in Strickland.
Strickland, 466 U.S. at 668-691.
Id.
25. With respect to Defendant's allegation that trial counsel "abandoned" the questioning of the victim about her out-of-court statement in violation of Defendant's Sixth Amendment rights, this is not an accurate characterization of the trial record. During the trial of Defendant and his codefendants, counsel for a codefendant objected to trial counsel's questions based on the possibility that such questioning could implicate the codefendant. After a sidebar conference, the Court ruled that it would defer ruling on the issue of whether such questioning would unfairly prejudice the codefendant, instructing counsel that the issue would be resumed at a later point. Thus, trial counsel did not "abandon" a line of questioning; rather, he responded in accord with the Court's ruling on an objection made by counsel for the codefendant. Such conduct cannot be considered to "[fall] below an objective standard of reasonableness."
Transcript of Jury Trial of Mar. 3, 2008 at 57.
Id. at 60-61.
Strickland, 466 U.S. at 668-691.
26. Defendant's contention that trial counsel's failure to object to the admission of certain blood evidence was ineffective is similarly conclusory and alleges no facts that might suggest actual prejudice. Defendant simply asserts that the "prejudicial effect far outweighed any probative value" of this evidence. Defendant does not support this contention with any clarification as to the relative probative value of this evidence vis-à-vis its alleged prejudicial effect; such allegations were necessary to support a claim of prejudice, as the outcome of an objection grounded on D.R.E. 403 turns on whether the probative value of the evidence is "is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." As stated, Defendant must establish that, but for counsel's alleged error, there was a reasonable probability that the outcome would have been different. In this case, Defendant did not allege, much less substantiate, a claim that the blood evidence would in fact have satisfied the standard for exclusion under D.R.E. 403 had trial counsel raised an objection.
Def.'s Amended Mot. for Postconviction Relief of Jan. 14, 2011 at 2.
Strickland, 466 U.S. at 668-691.
27. Finally, with respect to Defendant's contention that appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial counsel on direct appeal, the Supreme Court of Delaware will not hear claims of ineffective assistance of counsel on direct appeal. Thus, this claim is without merit.
See, e.g., Horne v. State, 887 A.2d 973, 974 (Del. 2005) ("This Court consistently has held that it will not consider a claim of ineffective assistance of counsel in a direct criminal appeal if the issue has not been decided on the merits in the trial court.").
28. For the reasons stated above, Defendant's claims for ineffective assistance of counsel are deficient when analyzed under the Strickland test. Therefore, Defendant's motion for postconviction relief is DENIED.
IT IS SO ORDERED.