Opinion
ID No. 0701011871 (R-2).
Date Submitted: November 5, 2010.
December 23, 2010.
Troy C. Hudson, SBI# 0036, SCI, Georgetown, DE.
Dear Mr. Hudson:
Pending before the Court are defendant Troy C. Hudson's ("defendant") motions for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"), an evidentiary hearing and the appointment of counsel. Because the motion for postconviction relief is procedurally barred and because no exceptions to the bar apply, the motion is denied. Because the procedural bars so clearly apply, no basis exists for appointing counsel and/or holding an evidentiary hearing.
This Court previously outlined pertinent facts in its decision on defendant's first motion for postconviction relief. State v. Hudson, 2009 WL 3688015 (Del. Super. Nov. 6, 2009). However, for ease of reference, it repeats those facts herein.
Defendant was arrested on January 15, 2007, on charges of trafficking in cocaine, possession with intent to deliver a narcotic Schedule II controlled substance ("cocaine"), possession of drug paraphernalia, possession of a firearm during the commission of a felony, possession of a deadly weapon (firearm) by a person prohibited, and resisting arrest.
Defendant was scheduled for a preliminary hearing on January 25, 2007. However, on January 22, 2007, before the preliminary hearing was held, the Grand Jury indicted defendant on the above-referenced charges. After indicting him, the State of Delaware ("the State") nolle prossed the trafficking charge. It proceeded to trial on the remaining five charges.
The evidence at trial established the following facts.
At approximately 9:00 p.m. on January 15, 2007, Corporal Lance Skinner and Corporal Hudson Keller, both members of the Delaware State Police, attended a meeting with members of the community of Polly Branch in Selbyville, Delaware. The owners of property off Lincoln Avenue told Corporal Skinner that they did not want people on their property and they gave the officers permission to contact anyone on their property because they did not want them there.
Later that evening, when Corporal Skinner and Corporal Keller pulled up in their vehicle at the above-described property, Corporal Skinner saw three males. He knew two of the males, McKineo Middleton ("Middleton") and Roosevelt Bailey ("Bailey"). He did not know the third one. This third male ultimately turned out to be defendant. Corporal Skinner saw the three walk towards the rear of the yard. Defendant went behind a pump house and squatted as if he were hiding something. Defendant then started walking away.
Corporal Skinner and Corporal Keller exited their vehicle and Corporal Skinner identified himself as the State Police. Middleton and Bailey stood still. Defendant took off running around a trailer. As Corporal Skinner was chasing defendant, he saw defendant lean forward and throw an object under a vehicle and then take off running again. Defendant also took off rubber gloves while he was running and threw them down.
Corporal Skinner caught defendant. He searched defendant and found $680.00 in United States currency in defendant's left front pants pocket. Corporal Skinner located under the vehicle a plastic baggie which contained what appeared to be crack cocaine. The substances field-tested positive for cocaine. In one big bag were several loose pieces of crack cocaine. The evidence established there was 8.1 grams of crack cocaine in the big bag.
In the meanwhile, Corporal Keller had searched the other two men and had not found anything. After searching them, he came over to aid Corporal Skinner. Corporal Skinner asked him to secure the area of the pump house. After putting defendant into his vehicle, Corporal Skinner went to the pump house. The officers located a 9 mm handgun loaded with 13 clips and another, smaller baggie containing what appeared to be cocaine. The matter in the baggie field-tested positive for cocaine. Expert testimony established the matter was cocaine and its weight was approximately one gram.
A jury found defendant guilty of all of the charges.
Defendant appealed the matter to the Supreme Court. Trial counsel represented defendant on the appeal. On appeal, defendant raised three claims.
First, the trial judge erred by allowing the chief investigating officer to testify both as a fact witness and as an expert witness. Second, even assuming that a police officer may testify as a fact witness and as an expert witness, Hudson argues this particular police officer was not qualified to testify as an expert and should not have been permitted to do so. Third, the trial judge erred in allowing the State, during trial, to "educate" the chief investigating officer about how to testify as an expert witness.Hudson v. State, 956 A.2d 1233, 1234-5 (Del. 2008). The Supreme Court found defendant's arguments to be meritless and affirmed the judgments of the Superior Court. Id. at 1242. The Supreme Court mandate was dated September 3, 2008.
Defendant timely filed his first Rule 61 motion, which this Court denied. State v. Hudson, 2009 WL 3688015 (Del. Super. Nov. 6, 2009). Defendant's first three claims, that the Supreme Court erred in its decisions on his three arguments on appeal, were improper and consequently, this Court denied them. Defendant also asserted ineffective assistance of counsel claims in his postconviction motion. These ineffective assistance of counsel claims and the decisions thereon are outlined below.
1) Defendant argued trial counsel failed to raise the issue of probable cause for defendant's arrest. The Court ruled trial counsel was not ineffective for raising the probable cause issue since the Grand Jury determined probable cause existed for his arrest when it indicted him.
2) Defendant argued trial counsel failed to perform a proper pre-trial investigation and failed to interview potential witnesses who could have helped defendant. The Court ruled this allegation was conclusory and failed.
3) Defendant argued trial counsel failed to file a suppression motion on defendant's behalf regarding a supposed statement by Bailey. The Court's ruling was multi-pronged; however, ultimately, it was decided that defendant could not show prejudice.
4) Defendant argued trial counsel failed to call Bailey as a witness. The Court ruled trial counsel was not ineffective and alternatively, defendant failed to show prejudice.
5) Defendant argued trial counsel failed to bring to the Court's attention the fact that one member of the jury was asleep during the trial. The Court ruled this claim was conclusory.
6) Defendant argued trial counsel failed to fully investigate and develop mitigating evidence that would have supported defendant's case during sentencing. The Court ruled this claim was conclusory.
Defendant did not file an appeal of this decision in a timely manner and consequently, the Supreme Court dismissed his appeal. Hudson v. State, 992 A.2d 1237, 2010 WL 1463230 (Del. April 13, 2010) (TABLE).
Defendant has filed his second motion for postconviction relief. The motion is procedurally barred. Super. Ct. Crim. R. 61(i). First, the motion is time-barred. Second, the claims either have been addressed before or they should have been raised in an earlier proceeding.
In Rule 61(i), it is provided as follows:
Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. Any 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.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
However, as explained in Zebroski v. State, 2010 WL 797013, *1 (Del. March 9, 2010):
Rules 61(i)(2) and (4) provide an exception to the procedural bars when consideration is warranted "in the interest of justice." Rule 61(i)(5) also allows review on the merits, notwithstanding the procedural bar of Rule 61(i)(2), when a colorable claim is made "that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to a judgment of conviction." [Citation and footnote omitted.]
The Supreme Court further explained the "interest of justice" exception at *4:
In determining the scope of the "interest of justice" exception, we recognize two exceptions to the law of the case doctrine. First, the doctrine does not apply when the previous ruling was clearly in error or there has been an important change in circumstances, in particular the factual basis for issues previously posed. Second, the equitable concern of preventing injustice may trump the "law of the case" doctrine.
The other exception is the "miscarriage of justice" one. Defendant may overcome the procedural bars by showing "the existence of a colorable claim of a miscarriage of justice as the result of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Couch v. State, 945 A.2d 593, 2008 WL 390754, *1 (Del. Feb. 14, 2008)(TABLE) ( citing Superior Court Criminal Rule 61(i)(5)). Ineffective assistance of counsel is encompassed within the "miscarriage of justice" category. See Felton v. State, 945 A.2d 594, 2008 WL 308231, *1 (Del. Feb. 1, 2008) (TABLE). However, if a defendant fails to establish a claim of ineffective assistance of counsel, then the claim "does not . . . constitute a `miscarriage of justice'" Elliott v. State, 783 A.2d 124, 2001 WL 1381235, * 2 (Del. Aug. 23, 2001) (TABLE). Accord Felton v. State, supra. In other words, merely alleging ineffective assistance of counsel is not sufficient to surmount the procedural bars. Instead, a defendant has the burden of establishing a (i) deficient performance by his trial counsel (ii) which actually caused the defendant prejudice. Strickland v. Washington, 466 U.S. 668 (1984). Deficient performance means that the attorneys' representation of defendant fell below an objective standard of reasonableness. Id. at 688. In considering post-trial attacks on counsel, Strickland cautions judges to review the counsel's performance from the trial counsel's perspective at the time decisions were being made. Second guessing or "Monday morning quarterbacking" should be avoided. Id. at 689. The burden of showing the prejudice aspect is addressed in Couch v. State, supra:
In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that, but for his counsel's professional errors, there is a reasonable probability that the outcome of the proceedings would have been different. The defendant must make concrete allegations of actual prejudice, and substantiate them, or risk summary dismissal. [Footnotes and citations omitted.]
To emphasize, conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel. Felton v. State, supra; Younger v. State, 580 A.2d 552, 556 (Del. 1990).
With these standards in mind, I discuss defendant's various claims.
Defendant's first argument is a general one that the police lacked probable cause to stop and arrest him. He further argues, within that argument, that if he had had a preliminary hearing or a suppression motion, then the lack of probable cause would have been established. Defendant does not attempt to establish an exception to the procedural bars of these arguments.
Defendant's second argument is that there was insufficient evidence to establish beyond a reasonable doubt that he possessed any weapon. Defendant does not attempt to establish an exception to the procedural bars of this argument.
Defendant's third argument is that constructive possession of the bags of drugs and gun was not proven. Again, defendant makes no attempt to establish an exception to the procedural bars.
These first three arguments are ones which should have been addressed at trial and then raised in the appeal of the conviction. There is nothing about these time-barred and procedurally-barred arguments which invokes either the interest of justice exception or the miscarriage of justice exception. Defendant attempts to reargue his case in the postconviction stage. He does not attempt to place the arguments within any exception to the procedural bars. The Court refuses to review his case at this stage of the proceedings. Rule 61 was not developed to provide endless revisitation of a case merely because a defendant throws in the words "interest of justice" or "miscarriage of justice" some place in his or her moving papers.
I turn to the ineffective assistance of counsel claims. Again, they are barred by time, by the fact some have been raised before and decided against defendant, and by the fact that they should have been raised in the first postconviction motion. I review them to see if defendant has established the applicability of an exception to the bar. To do so, he first must establish trial counsel was ineffective.
He asserts trial counsel was ineffective for failing to file a motion to suppress because of the warrantless arrest and searches. There was no basis for filing a suppression motion and even if one had been filed, it would have been denied.
The arrest and searches were validly warrantless. The arrest on the felonies and misdemeanors were warrantless because the crimes occurred in the police officer's presence and/or the officer had reasonable ground to believe that defendant had committed the charged felonies. 11 Del. C. § 1904. In other words, there was no need for an arrest warrant in the case at hand. The searches were made without a warrant pursuant to 11 Del. C. § 2302 and/or pursuant to 11 Del. C. § 2303. Thus, there was no need for a search warrant. Defendant's arguments of invalid search, seizure and arrest because of the lack of warrants are meritless. Thus, trial counsel was not ineffective for seeking to file a suppression motion and even assuming he was, defendant cannot show prejudice. There would have been no suppression of anything.
In 11 Del. C. § 1904, it is provided in pertinent part as follows:
(a) An arrest by a peace officer without a warrant for a misdemeanor is lawful whenever the officer has reasonable ground to believe that the person to be arrested has committed a misdemeanor:
(1) In the officer's presence. . . .
(b) An arrest by a peace officer without a warrant for a felony, whether committed within or without the State, is lawful whenever:
(1) The officer has reasonable ground to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed; or
(2) A felony has been committed by the person to be arrested although before making the arrest the officer had no reasonable ground to believe the person committed it.
In 11 Del. C. § 2302, it is provided:
A search of a person, house, building, conveyance, place or other thing may be made without a warrant if the search is made for the person hotly pursued provided the pursuer has probable cause to believe that such person has committed a felony or a misdemeanor.
In 11 Del. C. § 2303, it is provided:
A search of a person, house, building, conveyance, place or other thing may be made without a warrant if:
(1) The search is made incidental to and contemporaneous with a lawful arrest;
(2) The search is made in order to find and seize:
a. The fruits of a crime;
b. The means by which the crime was committed;
c. Weapons and other things to effect an escape from arrest or custody; and
d. Evidentiary matter pertaining to the commission of a crime.
Defendant also argues he was entitled to a preliminary hearing, no matter what, and trial counsel was ineffective for allowing that right to be stripped from him. There is no common law or constitutional right to a preliminary hearing; there is no statutory right to a preliminary hearing after indictment by the Grand Jury; and Superior Court Criminal Rule 5 does not provide for a preliminary hearing after indictment. Jenkins v. State, 305 A.2d 610, 614-15 (Del. 1973). "The defendant's right to a determination of probable cause to hold him for trial is served equally by a preliminary hearing or a grand jury indictment. Joy v. Superior Court, 298 A.2d 315, 316 (Del. 1972)." Thomas v. State, 842 A.2d 1244, 2004 WL 300444, *2 (Del. Feb. 9, 2004)(TABLE). And, contrary to what defendant argues, neither he nor his attorney has a say as to when the State decides to present the case for presentation to the Grand Jury. Furthermore, he has no right to be present at the Grand Jury presentation nor may his attorney attend it. Super. Ct. Crim. R. 6(d).
In Super. Ct. Crim. R. 5, it is provided in pertinent part:
(d) Scheduling preliminary examination. A defendant is entitled to a preliminary examination, unless waived, when charged with any offense that is within the exclusive jurisdiction of, or that the attorney general chooses to prosecute in, Superior Court. *** Such examination shall be held within a reasonable time but in any event not later than 10 days following the initial appearance if the defendant is in custody and no later than 20 days if the defendant is not in custody, provided, however, that the preliminary examination shall not be held if the defendant is indicted . . . in Superior Court before the date set for the preliminary examination.
In Super. Ct. Crim. R. 6(d), it is provided as follows:
Who may be present. The attorney general, the witness under examination, interpreters when needed, and for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.
Defendant's remaining ineffective assistance of counsel claims are conclusory. He asserts trial counsel failed to do specified things. He does not develop his arguments by providing specifics necessary to render his claims valid.
Defendant argues trial counsel was ineffective because he failed to investigate and subpoena the property owners for testimony to contradict the investigating officer's testimony. He does not establish that there were any owners out there who would contradict the officer's testimony. This conclusory claim fails. Younger v. State, supra.
He argues trial counsel failed to interview and call Middleton and Bailey as witnesses regarding any drug transactions on the day of defendant's arrest. He fails to show how calling these defendants would have precluded him from being found guilty of the crimes which he was caught committing. This conclusory claim fails. Id.
He claims trial counsel was ineffective for failing to call individuals to testify who were with him earlier in the day. Again, he does not establish how that information would have been at all relevant to result in an acquittal for crimes he was caught in the act committing. This conclusory claim fails. Id.
He argues trial counsel failed to ask the Court whether "common knowledge [is] the only determining factor to distinguish a police officer as an expert". This conclusory claim fails. Id.
He argues trial counsel was ineffective for not objecting to any evidence introduced. This conclusory claim fails. Id.
He argues trial counsel was ineffective for not introducing his check stubs into evidence to show he had been working. This conclusory claim fails. Id.
He argues trial counsel was ineffective for allowing the State to manufacture a case against him without any kind of defense or representation. This conclusory claim fails. Id.
Thus, defendant has failed to show any exception to the procedural bars and his claims fail.
For the foregoing reasons, I deny defendant's motion for postconviction relief.
Defendant asks for appointment of counsel and an evidentiary hearing. Because this Court summarily decides this motion, it is inappropriate to appoint an attorney in this matter or to hold a hearing. All of defendant's requests are denied.
IT IS SO ORDERED.