Opinion
ID#: 9801007022.
Submitted: December 12, 2000.
Decided: January 23, 2001.
Upon Defendant's Pro Se Motion for Postconviction Relief — DENIED .
ORDER
Jackson is serving a long prison sentence imposed after a jury convicted him of Attempted Murder and other serious felonies. The crimes involve Jackson's robbing an unarmed man, shooting him in the back of the neck and leaving him for dead. The crimes were callous. The victim knew Jackson and identified him in what was tantamount to a dying declaration. Another acquaintance also identified Jackson as the shooter. At trial, a police officer testified that she overheard Jackson inveighing upon a cellmate to help Jackson procure a phoney alibi witness.
Jackson's conviction was affirmed on September 13, 2000. Then, on November 30, 2000, the Court summarily dismissed Jackson's timely motion for postconviction relief. The motion was conclusory. Moreover, Jackson alleged ineffective assistance of counsel, but he did not even attempt to meet the Strickland test's two prongs.
Strickland v. Washington, 466 U.S. 668; (1984).
Although it dismissed Jackson's motion, the Court gave him thirty days to file a proper motion. The Court insisted that Jackson "provide details, and not merely conclusions, about precisely what your trial counsel did or failed to do, how those failures fell below the standard for criminal defense lawyers in New Castle County and how those failures resulted in your being convicted when you might have been found not guilty."
Jackson refiled on December 12, 2000. Besides failing to meet the Court's deadline and the instruction to provide details, Jackson added almost nothing in his second attempt. Taking the two submissions together, Jackson states, without elaboration and without corroboration that after he was arrested, "two witnesses came to visit me and said they were present when the shooting and robbery took place." Supposedly, those witnesses "saw who the suspect was and they would testify on my behalf." Jackson, however, does not identity the witnesses. Jackson does not state precisely when the "witnesses" came to him and what Jackson did about them after they appeared. Jackson does not address why the witnesses presented themselves to him and not to the police. Nor does he provide details about their potential testimony. Perhaps most significantly, Jackson is coy about who, if anyone, the witnesses would identify as the culprit.
Jackson further claims that if they had been subpoenaed, his "doctors would have . . . established . . . that without my medicine [ADHD] that I do not think to the best of my ability and that I react to situations without thinking." Again, Jackson offers no elaboration and corroboration. The Court must guess at the doctors' identities, whether they were able to testify and how the doctors' testimony might have been helpful. Jackson only implies that he was under medicated From the meager details Jackson provides, the doctors' testimony sounds incriminating. Without supporting a mental illness defense, the doctors might explain how Jackson got himself into so much trouble. And, as discussed below, it seems to contradict Jackson's recent claim to an alibi.
Finally, in his first motion Jackson mentioned neither an alibi nor his decision not to testify. In his second filing, however, Jackson claims: "Had I testified I could have justified my whereabouts at the time of the crime." Jackson attempts to explain his not raising, until now, the claim concerning his not testifying. His reason is, "I just found law and fact about taking the stand to testify at your own trial."
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As mentioned, Jackson's ineffective assistance claim is vague and unsupported. Beyond that, Jackson's recent revelations that he has an alibi and eyewitnesses clash with his other recent allegation that, if left unmedicated Jackson's ADHD makes him thoughtless or impulsive. The point, of course, is that Jackson's impulsiveness is irrelevant if he was not present when the victim was robbed and shot, or if someone else did the crimes.
As for Jackson's claim about wanting to testify, that is not true. At trial, after the State rested, the defense rested without calling any witnesses. The Court did not question Jackson immediately about his decision not to testify, as it should have. Nevertheless, the Court raised the subject just before the jury returned its verdict. The exchange between the Court, Jackson's trial counsel and Jackson was:
Court: There was something that I wanted to discuss earlier that I want to do quickly before the jury comes back. Mr. Capone, the defense rested without calling a witness, including the defendant. Prior to resting, did you discuss with your client his decision not to testify?
Mr. Capone: Yes, we did, your Honor, we talked about it, and my client made a decision not to testify.
The Court: Did you make it clear that, ultimately, it was not your decision to make, that's one of the areas where the defendant has the final word?
Mr. Capone: Yes, your Honor.
The Court: And you understanding was that he knowingly chose not to testify?
Mr. Capone: Yes, your Honor.
The Court: And, Mr. Jackson, did you just hear what Mr. Capone and I were talking about?
The Defendant: Yes.
The Court: Did Mr. Capone tell me the truth, when he said that you and he had talked about your decision not to testify?
Defendant: Yeah, we talked about it.
The Court: And do you understand that you had the right to testify if you chose?
Defendant: We never — we never talked about chose to testify or not. It was just — we just talked about it wouldn't be good for me to testify.
The Court: Mr. Capone, is that your recollection?
Mr. Capone: Your Honor, let me say this. We talked about — I went to see him three times over the last two weeks at Gander Hill. We talked about what he would testify about, how that could not help his case. He said, "I'm not testifying, I am not testifying." That's what he told me. We talked about it during the trial. He didn't testify.
The Court: Mr. Jackson, is there anything that Mr. Capone just said in the last things he said to me that is untrue?
The Defendant: Yes.
The Court: What is that?
The Defendant: We never — we never talked about whether or not I was really going to testify or not.
Mr. Capone: Should I move to withdraw now, I wait until the verdict comes in? your Honor, or should
The Court: No. I find that, as a matter of fact, Mr. Capone's statement as to what happened is believable. Mr. Jackson is not believable. The Court rejects what he said. The Court finds that Mr. Jackson is maneuvering for advantage now, and the record's complete on the subject.
The Court's finding about Jackson's unbelievability is bolstered now by his patently untruthful or highly misleading claim that he only "just found law and fact about taking the stand to testify at your own trial." As the trial transcript proves, the Court told Jackson directly on February 18, 1999: ". . . you had the right to testify if you chose [.]" Therefore, Jackson's December 12, 2000 claim that he "just" learned about his right to testify is highly misleading, at best. Jackson's counsel told him about the right to testify and the Court did the same, before the verdict was returned. That was almost ten months before Jackson's claim.
The Court continues to reject Jackson's recently renewed assertion that although, by his own admission, he and his trial counsel "talked about it," they never "really" discussed whether or not Jackson would testify. Again, Jackson is maneuvering for advantage. Before the defense rested, Jackson knowingly decided, "I'm not testifying, I am not testifying." The only reason why Jackson says otherwise is the Court stumbled and left him with an opening.
The trial colloquy concerning Jackson's right to testify and his approach to this motion demonstrate not only that Jackson's claim is untrue, that it was not recently discovered and that it is procedurally barred, the colloquy undermines any notion that Jackson's trial counsel's efforts failed to meet Strickland's standards. Similarly, Jackson's recent alibi claim is far too vague. It lends no weight to his motion.
After denying his first motion, the Court, as mentioned, gave Jackson another chance to win postconviction relief. Despite the second chance, Jackson has not established that an evidentiary hearing is desirable, much less that postconviction relief is justified.
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For the foregoing reasons, including the ones expressed in the Court's November 30, 2000 order, and consistent with Superior Court Criminal Rule 61(h)(3), Defendant's motion for postconviction relief is DENIED summarily.
IT IS SO ORDERED.