Opinion
No. 0201008286.
Submitted: November 17, 2006.
Decided: February 28, 2007.
Upon Defendant's Motion for Postconviction Relief — DENIED
Christina Showalter, Deputy Attorney General Bradford Jones, DCC.
After his conviction for murder in the first degree and related charges was affirmed on direct appeal, Defendant filed this, his first motion for postconviction relief. Defendant claims ineffective assistance of counsel because his lawyers did not challenge the "veracity of the search warrant," nor did they move to suppress a photograph taken during the search. The police used the picture in a photo line-up. Defendant also asks for an evidentiary hearing and appointment of counsel. As presented below, there were minor discrepancies between the affidavit of probable cause and the underlying police reports. Nevertheless, there was no reasonable basis for challenging the search warrant. More significantly, the search uncovered nothing important, and it had no bearing on the trial's outcome. By the same token, there is no reason to hold a hearing or appoint counsel now.
Jones v. State, Del. Supr., No. 321, 2004, Holland, J. (Aug. 22, 2005) (ORDER).
I.
Defendant, Bradford Keith Jones, was represented by court-appointed counsel, Joseph Gabay, Esquire, and Jennifer-Kate Aaronson, Esquire. He was convicted by a jury on May 26, 2004. Defense counsel challenged neither the affidavit of probable cause for the search warrant, nor did they move to suppress a photo taken during the search.
On July 24, 2004, Defendant's trial counsel filed a direct appeal challenging this court's refusal to deliver a requested jury instruction. After the State filed its answering brief, Defendant moved to proceed pro se. So, the Supreme Court remanded the case for this court to determine whether Defendant should be permitted to represent himself.
See Watson v. State, 564 A.2d 1107, 1109 (Del. 1989).
On February 28, 2005, this court recommended that Defendant be allowed to proceed pro se on appeal. The case then went back to the Supreme Court, where the only issue presented by Defendant was his challenge to the search warrant. Finding no plain error, the Supreme Court, in an Order dated August 22, 2005, affirmed the conviction, but commented that since no motion to suppress had been filed, there was no record to enable review of Defendant's search warrant claim.
Defendant, pursuant to Superior Court Criminal Rule 61, then filed this motion on July 31, 2006. After preliminary review under Rule 61(d)(1), the court found the motion timely and not barred by Rule 61(i). Accordingly, the court ordered the record expanded under Rule 61(g). Trial counsel submitted an affidavit, to which Defendant and the State filed responses.
II.
Defendant argues two grounds for ineffective assistance of counsel. First, "Defendant asserts that under the first prong of Strickland v. Washington, Counsels['] representation fell below an objective standard of reasonableness . . . [because] Defendant wanted defense counsel to file . . . a motion to challenge the veracity of the search warrant." Defendant believes that "he had sufficient, factual and legal basis for this challenge to be pursued" and his request "was a plausible argument and justifiable request."
Second, counsel failed to move to suppress a photograph taken during the search, as "fruit of the poisonous tree." This photo, Defendant claims, was taken at gunpoint and subsequently used in a line-up to identify Defendant. He further argues that he wrote several letters to counsel requesting a challenge to the search warrant and photograph, and counsels' failing to challenge them was "wholly unreasonable as to render their representation ineffective assistance."
To show the search warrant was defective, Defendant alleges that, Detective Robert Cunningham, in the affidavit of probable cause, "deliberately misled the court by including several false statements." In the affidavit, as Defendant observes, Detective Cunningham alleged that two informants identified Defendant as responsible for the homicide. Cunningham reported, as to the first informant:
a past proven reliable informant contacted Lawrence Collins of Probation and Parole and advised him that `Keith' bmnh early twenties was responsible for shooting Jackson in Rosegate. Keith resides at 829 Lombard Street in Wilmington and is originally from Oakmont in New Castle County.
Cunningham reported that this informant also said he was "acquainted with Keith" and "observed him in possession of a 9mm handgun in the past." The affidavit alleged that the second informant had told Cunningham directly that "Keith Jones was responsible for the Homicide in the 400 block of West 7th Street." Shown a photograph, this informant correctly identified Jones. Detective Cunningham then searched DELJIS and found that Bradford Keith Jones, a black male, lived at 829 Lombard Street, Wilmington, Delaware, and his family lived at a specific address in Oakmont, New Castle, Delaware.
Defendant argues that Cunningh am's statements about the first informant were false. He also states that Cunningham did not receive the information first-hand. Rather, Cunningham relied on a report prepared by Detective Williamson, the chief investigating offic er. He f urthe r alle ges th at Cun ning ham "deliberately" changed the statements on Williamson's report when Cunningham wrote the affidavit. For example, Defendant claims Detective Williamson's report states that the first informant said Keith "sometimes frequents the area of 819 Lumbard [sic] St.," whereas, as mentioned, Detective Cunningham's affidavit states "Keith resides at 829 Lombard Street." Or, that Williamson's report stated that "Keith Williams" of an "unknown age" was "possibly" involved, whereas the affidavit states that "Keith," "early twenties," was "responsible" for the shooting.
In his Rule 61(g) affidavit, Gabay admits that Defendant asked counsel to file a motion to suppress, but Gabay decided that it would have been without merit. He states that "there was no good faith basis to suppress the search warrant. . . ." He further concludes that "Mr. Jones points to nothing of substance or value which was seized via the warrant and later caused him to be convicted. . . ." In fact, at trial, Gabay turned the search to Defendant's advantage when Gabay forced Detective Cunningham to tell the jury that there was a search that came up dry.
Question: Detective, you applied for a search warrant for Mr. Jones' residence.
Is that right? Answer: Yes.
Question: And when you executed that search warrant, you didn't seize anything. Correct?
Answer: Correct.
In neither his motion nor his response to Gabay's affidavit does Defendant point to incriminating evidence uncovered by the search itself. Mostly, Defendant seems to argue that their failing to challenge the search warrant proves counsels' lack of diligence.
III.
When considering a motion for postcoviction relief, the court must first determine whether Defendant has met all the procedural requirements under Rule 61(i). As mentioned, the August 21, 2006 Order found that the motion was timely, non-repetitive, not procedurally defaulted, nor was it formally adjudicated. Therefore, Defendant is not procedurally barred from raising these issues, and the court will consider the merits.
Bailey v. State, 588 A.2d 1121, 1127 ( Del. Super. Ct. 1991); Younger v. State, 580 A.2d 552, 552 (Del. 1990).
To succeed on an ineffective assistance of counsel claim, Defendant must meet Strickland v. Washington's two-part test. Defendant must show 1) "that counsel's representation fell below an objective standard of reasonableness," and 2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." Since Defendant must meet both prongs, his failure to meet either renders the claim unsuccessful, and the court need not consider the remaining prong.
466 U.S. 668, 688-94 (1984).
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688-94).
Strickland, 466 U.S. at 697.
There is "a strong presumption that counsel's conduct was professionally reasonable," and "counsel must have made an error so serious as to fail to meet the Sixth Amendment guarantee of `counsel' and thereby deprived the defendant of a fair trial." Thus, Defendant has the burden to show that because of his attorney's actions, the proceeding was undermined.
Albury, 551 A.2d at 59 (quoting Strickland, 466 U.S. at 689).
Strickland, 466 U.S. at 687.
Id. See also Super. Ct. Crim. R. 61(i)(5).
To determine if counsels' actions were reasonable, the court can consider whether the warrant was reviewable. Franks v. Delaware establishes the standard for challenging a search warrant. Franks holds that a search warrant affidavit, valid on its face, may be challenged if the defendant 1) "makes a substantial preliminary showing that a false statement knowi ngly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit" and 2) "the allegedly false statement [was] necessary to the finding of probable cause. . . ." If a defendant establishes both prongs, then the "Fourth Amendment requires that a hearing be held at the defendant's request."
To mandate an evidentiary hearing, the challenger's attack must be more than conclusory. . . . There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.
438 U.S. 154 (1978).
Id. at 155-56.
Id. at 156.
Id. at 171.
If perjury or reckless disregard is established by a preponderance of the evidence, then "with the affidavit's false material set to one side, [if] the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." In other words, if the affidavit contains deliberate or reckless falsehoods, then those falsehoods must be ignored, and the warrant will be upheld if the affidavit was otherwise enough to establish probable cause.
Id. at 155-56.
Although Defendant believed that "he had sufficient, factual and legal basis" to challenge the warrant, he offers little evidence supporting his argument. As mentioned above, Defendant simply points out a few inconsistencies between Williamson's report and Cunningham's affidavit. At worst, the discrepancies were sloppy. Franks, however, requires more. Defendant has to show that the affiant intentionally or recklessly gave false statements. So, Defendant fails to establish the first prong of Franks.
Id.
Second, as mentioned above, Cunningham had other information linking Defendant to the crime. Cunningham had two informants. The second informant identified Defendant from a picture and said, "Keith Jones was responsible for the homicide. . . ." Cunningham also searched DELJIS to corroborate this information and found that Bradford Keith Jones, a black male born in 1977, lived at 829 Lombard Street, and his family lived in Oakmont. Therefore, counsel could have reasonably concluded that the affidavit would stand even without the first informant. It also does not matter how the police took Defendant's photograph, even if it were at gunpoint as Defendant claims. The search did not reveal Defendant's visage.
As to Defendant's challenge to the affidavit's hearsay, probable cause may be established through hearsay as long as it is corroborated. The informants' information was supported by Cunningham's DELJIS search. Similarly, Cunningham's reliance on a fellow officer's report is not problematic.
Schramm v. State, 366 A.2d 1185, 1190 (Del. 1976). See also Franks, 438 U.S. at 164-65.
Wilson v. State, 314 A.2d 905, 907 (Del. 1973).
Counsel does not have to automatically follow a client's request, but instead can decide unilaterally that a proposed motion lacks merit. As explained above, Defendant did not produce evidence showing that Cunningham intentionally or recklessly disregarded the truth. Thus, counsel's decision to reject Defendant's request and not challenge the warrant was professionally acceptable. Therefore, Defendant fails to satisfy Strickland v. Washington's first prong.
Strickland, 466 U.S. at 690-91.
See, e.g., State v. Powell, 2003 WL 194929, at*2 (Del.Super.); State v. McCurley, 2004 WL 2827857 (Del.Super.).
In addition, Defendant has failed to show that, but for counsel's conduct, the outcome of the trial would have been different. Even if the warrant were knocked out, it would not help Defendant. The search was fruitless. Therefore, Defendant has failed to meet Strickland v. Washington's second prong, prejudice.
Strickland, 466 U.S. at 690.
IV.
For the foregoing reasons, Defendant's motion for postconviction relief based on ineffective assistance of counsel is DENIED.