Opinion
I.D. NO. 9612002650-R1
Submitted: February 4, 2000.
Decided: May 23, 2000.
Upon Defendant's Motion for Evidentiary Hearing. Denied. Upon Defendant's Motion for Postconviction Relief. Denied.
Loren C. Meyers, Esquire, Deputy Attorney General, Wilmington, Delaware, for the State.
Mark A. Kirk, Delaware Correctional Center, Smyrna, Delaware, Pro Se Defendant.
ORDER
In 1997, following a bench trial in Superior Court, Defendant Mark Kirk was convicted of three counts of Felony Murder First Degree, one count of Arson Third Degree, two counts of Assault First Degree, and one count of Assault Third Degree. He was sentenced by this Court to three mandatory terms of life imprisonment plus 23 years. His convictions and sentence were affirmed on appeal. Kirk has now filed a motion for postconviction relief, pursuant to Super. Ct. Crim. R. 61 (Rule 61). He seeks an evidentiary hearing and a new trial. The State opposes any such relief. Having reviewed the parties' submissions, as well as the written record and the evidence, the Court concludes that Kirk's motions must be denied.
State v. Kirk, Del. Super., I.D. No. 9612002650, Barron, J. (Dec. 3, 1997) (Findings After Penalty Hearing).
Kirk v. State, Del. Supr., No. 532, 1997, Berger, J. (Apr. 29, 1999) (ORDER) (en banc).
I. FACTS
The evidence adduced at trial showed the following facts. Kirk, his girlfriend Darlene Hamby and several friends spent the day of December 3, 1996, drinking heavily. Throughout the day, Darlene flirted openly with the other men in the group, causing Kirk to feel humiliated and angry. Late that night, after the other men had left Darlene's apartment, Kirk and Darlene began to argue about the day's events. Darlene's two sons, ages 16 and 10, were in their bedroom. As the argument escalated, Kirk decided that he had had enough of their tempestuous relationship. He told Darlene he was leaving her and began to pack his clothes.
Heavily intoxicated, Kirk took out his anger and frustration on one of his few possessions, a grandfather clock he highly prized. But destroying the clock did not assuage his anger. Kirk picked up a partially full bottle of Captain Morgan's Spiced Rum and headed for the kitchen. He turned the right front burner to the high position. When the burner was hot, he emptied the bottle onto the burner. The alcohol burst into flames, singing Kirk's eyebrows and slightly burning his face. The fire began to spread to the press board cabinets above the stove, but Kirk made no attempt either to extinguish the flames or to alert Darlene and her children to the fire. Instead, he stepped away from the kitchen and resumed packing his belongings.
Minutes later, the smoke alarm went off, alerting Darlene and her older son Jason to the fire. Chaos ensued as the flames and smoke spread. As least partly because both Mark and Darlene were intoxicated, the testimonial evidence regarding the next several minutes is less than exact. It was conclusively shown that Darlene left the apartment while Jason got his younger brother, and that Kirk also escaped harm. However, other residents of the building were not so lucky. Steven Rivera and his two children, Frances and Robert Rivera, who lived in the apartment above Darlene, suffocated to death in the smoke from the fire. Several people were injured as they jumped from the upper stories of the building.
The police questioned Darlene, her son Jason and Kirk himself about the fire. Although Kirk initially denied having started the fire, he eventually admitted that he intentionally poured the rum on the hot burner in order to start a fire. His statements to police were introduced against him at trial, along with evidence of the flammability of Captain Morgan's Spiced Rum and the pooling effect under the burner which caused the vaporization and ultimate ignition of the ethanol in the rum. After hearing the evidence, the Court found beyond a reasonable doubt that Kirk intentionally started the fire that led to the deaths of three members of the Rivera family.
II. ISSUES
As grounds for postconviction relief, Kirk raises three issues: ineffective assistance of counsel, falsified evidence and unconstitutional admission into evidence of his statements to police. The State asserts that Kirk's claims are conclusory and should be summarily dismissed. The State further asserts that Kirk's factual allegations are belied by the record and are procedurally barred pursuant to Rule 61(i)(4).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Under the Sixth Amendment, a criminal defendant has a right to "reasonably effective assistance of counsel." To show that his trial attorneys were constitutionally ineffective, Kirk must meet the now familiar test established in Strickland v. Washington. Kirk must first show that counsel's actions fell below an objective standard of reasonableness. However, even if counsel erred, the erroneous conduct cannot, as a matter of law, constitute constitutionally deficient representation. Kirk must also show that the deficient performance caused him actual prejudice.
Strick/and v. Washington, 466 U.S. 688, 688 (1984).
Id.
Nix v. Whiteside, 475 U.S. 157, 175 (1986).
Strickland v. Washington, 466 U.S. at 688, 694.
Although results (that is, a conviction, guilty plea or sentence) are often the focus of the prejudice determination, fairness and reliability are better markers for the prejudice test. This is because "set[ting] aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him." Stated differently, claims of ineffective assistance of counsel should be judged, not by the result, but by the "fairness of the trial and the reliability of the judgment of conviction resulting therefrom." 1. Counsel's alleged failure to contest the validity of Kirk's taped statement and advocate against its admission into evidence. Kirk was interviewed twice at the police station on December 4, the day of the fire. He voluntarily returned to the police station on December 5 to take a polygraph test and to give another statement. This interrogation, which was videotaped, lasted 5 hours and 41 minutes. During this final interview, Kirk admitted that he started the fire by pouring rum on the hot burner.
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997).
In his postconviction relief motion, Kirk raises numerous challenges to the admission of his statements. Because this issue was resolved against him on direct appeal, Kirk now raises the issue as an instance of ineffective assistance of counsel. He asserts that police or some other unnamed agent of the State erased key portions of the tape and that trial counsel was ineffective for failing to litigate this issue. Kirk further argues that if counsel had "earnestly attempted to suppress defendant's statement," he would not have been convicted.
The State argues that this issue was fully litigated at the pre-trial suppression hearing and that Kirk is therefore barred from raising it again. Defense counsel asserts by way of affidavit that the suppression issues were pursued before trial and that the question of tampering was not raised because there was no evidence to support it. Having reviewed the record, the Court finds that these contentions are supported by the record.
Rule 61(i)(4).
Prior to trial, defense counsel moved to suppress Kirk's videotaped statement, arguing that Kirk had been denied his right to counsel and that he was coerced into confessing that he had started the fire. A suppression hearing was held on September 29, 1997. The Court heard testimony from Assistant State Fire Marshal Willard Preston and two New Castle County police officers, Detective Robert McLucas and Detective Michael Kelly. The officers testified as to the facts surrounding the several statements which Kirk gave and his eventual arrest. The State also submitted affidavits from the other officers who had been involved. Kirk submitted an affidavit, in which he alleged that he had been prevented from leaving the interview room and that he had told the officers that he wanted a lawyer. He also asserted that the police had called him unsavory names, shouted at him and threatened him.
After reviewing the evidence and hearing argument from both parties, the Court concluded that Kirk had been given his Miranda rights and that he knowingly, voluntarily and intelligently waived them. The Court also found that the police had not coerced Kirk or otherwise overborne his will in the course of any of the interviews and that Kirk had not sought to stop the interview. For these reasons, the Court denied the motion to suppress.
Transcript (9/29/97).at 161-173.
Kirk raised this issue again on direct appeal. The Delaware Supreme Court affirmed this Court's denial of the motion to suppress. Kirk now raises the issue in terms of ineffective assistance of counsel, presumably in order to evade the procedural bar against previously litigated claims. He also asserts that defense counsel was ineffective for failing to have an expert examine the tapes for signs of tampering.
Counsel's affidavit makes it clear that there were no discernible signs of tampering. Kirk renews the allegations of tampering but again is unable to substantiate them. The Court has watched the tapes in their entirety and saw nothing to suggest that portions of any of the tapes were erased. As a practical matter, it would be easier to detect editing on a videotape than an audiotape. Kirk asserts that the numbering of the individual frames can be altered, but offers no support for his contention that such altering took place. The Court is satisfied that the tapes were not altered to erase Kirk's request for an attorney, an assertion of his right to silence, or police misconduct. Thus, it cannot be said that counsel was ineffective for failing to raise this issue.
In lieu of concrete allegations, Kirk relies on sarcasm and innuendo to make his point. While a pro se litigant receives certain leeway, the Court notes that bombastic phrasing is a poor substitute for substance.
Kirk refers to "blips" in the tape where police allegedly erased Kirk's requests for an attorney and to cease the interview. No such blips were either visible or audible to the Court.
Kirk also asserts that Preston's reference to "her" proves that portions were erased because there had been no previous mention of a woman. However, immediately prior to giving this statement, Kirk had taken a lie detector test and had given two statements on the previous day. Furthermore, the police had already questioned Darlene about the night of the fire. Thus it is unremarkable that Preston asked Kirk what happened after he pushed "her" down on the bed, even though Darlene had not yet been mentioned by name in that particular interview.
As for the earnestness of counsel's efforts, Kirk's allegations are belied by the record. Counsel moved to suppress the statements, sought a hearing on the matter, cross-examined the State's witnesses, and argued zealously on Kirk's behalf at the hearing. Kirk's allegations of ineffective assistance of counsel have no merit.
Counsel did not cross-examine James A. Natalie, Esquire, who testified to the uncontested fact that Kirk sought legal advice regarding the fire from Mr. Natalie on December 4, 1996.
Tr. (9/29/97) at 4-6; 137-141; 151-157.
2. Failure to obtain a third expert. Kirk claims that counsel was ineffective for failing to request that a third expert test the flammability of Captain Morgan's Spiced Rum. In his affidavit, defense counsel avers that "[a]t no time during the trial did Kirk request that counsel move to have Court initiate an independent test burn to resolve the conflict between the State and defense experts." The Court finds the statement made by Mr. Radulski, a respected member of the Delaware bar, more credible than the allegation made by Kirk, who repeatedly lied to the police in order to evade taking responsibility for his actions.
Affidavit at ¶ 4.
Even if Kirk had asked counsel to seek another test burn, counsel's refusal to do so would not constitute ineffective representation. Defense counsel found an expert to testify that the rum was not flammable under the circumstances that the State proposed in its case in chief. The Court finds that counsel's actions in this regard were professionally reasonable under the circumstances of the case. Furthermore, Kirk cannot show that, even if counsel had moved for another expert, the result of the trial would have been different or that the actual result was unreliable. This ground for relief has no merit.
The Court notes with interest that, in his federal lawsuit against the manufacturers of Captain Morgan's Spiced Rum, Kirk acknowledged that the "extreme flammability of [Captain Morgan's Spiced Rum] is undebatable." Kirk has informed the Court that he has withdrawn the federal suit.
3. Failure to move for recusal of the trial judge. Kirk argues that defense counsel was constitutionally ineffective for refusing to act on Kirk's request that counsel move for recusal of the trial judge. This allegation is based on a brief conversation between Fire Marshal Preston and this Court during a break in the trial testimony. As trial counsel points out in his affidavit, this communique took place in open court at the bench and the Court consulted with counsel before addressing the fire marshal. Furthermore, the subject matter was unrelated to Kirk's murder trial. Trial counsel also states that Kirk voiced no concern about this matter during trial. Kirk posits that this conversation constitutes a "relationship" between the fire marshal and the trial judge, amounting to judicial bias.
Affidavit at ¶ 6.
A judge's duty to remain impartial is addressed in the Delaware Judges' Code of Judicial Conduct, Canon 3C. The twofold test to determine whether a "judge's impartiality might reasonably be questioned" includes both a subjective and an objective component. First, the judge must be subjectively satisfied that he can hear the case without bias. Second, the judge must make an objective determination as to whether there is an appearance of personal bias.
Delaware Judges' Code of Judicial Conduct, Canon 3C. See also Jackson v. State, Del. Supr., 684 A.2d 745, 753 (1996).
The Court can say with certainty that, even if defense counsel had moved for recusal, the motion would have been denied. The Court harbored no personal bias against Kirk based on the alleged "relationship" with Fire Marshal Preston, which simply did not exist. Nor did an appearance of impropriety result from the conversation to which Kirk now objects. Counsel cannot be said to be constitutionally ineffective for not moving for recusal.
Kirk has not met either prong of the Strickland test for ineffective assistance of counsel. The Court concludes that this ground for relief has no basis in law or fact and must be denied. It follows that the request for an evidentiary hearing must also be denied.
IV. FALSIFIED EVIDENCE
Kirk argues that the State falsified evidence in order to show that Captain Morgan's Spiced Rum would ignite on an electric stove. To support this argument, Kirk asserts that the substance which Fire Marshal Preston used in his burn test "was not pure Captain Morgan 70 proof rum, if it was rum at all." However, Kirk provides no support this contention. He relies instead on two unnamed "experts in this field," information gained from television cooking shows, and "common knowledge" regarding the color of flames.
Defendant's Memorandum at 7.
Id.
Id.
Id. at 8.
Despite his rhetoric, Kirk does not offer substantive challenges to the validity of the State's test burn. Nor is there any support in the record evidence to support this claim. The Court concludes that this claim does not have "a sufficient factual [or] legal basis" to support a collateral attack on Kirk's convictions or sentence.
Rule 61(a)(1).
Furthermore, as the State observes, the issue of the flammability of Captain Morgan's Spiced Rum was resolved against Kirk at trial and on appeal, and therefore is procedurally barred pursuant to Rule 61(i)(4). To the extent that Kirk seeks to revisit the question of the flammability of Captain Morgan's Spiced Rum, the issue is barred as having been formerly adjudicated. This ground for relief has no merit.
Rule 61(i)(4) provides as follows: "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." The interest of justice exception, which is triggered when "subsequent legal developments have revealed that the trial court lacked authority to convict or punish," does not apply in this case. Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990).
V. INADMISSIBILITY OF DEFENDANT'S STATEMENT
Finally, Kirk alleges that the police who took his statement violated his right to remain silent, coerced him into confessing that he intentionally started the fire, and illegally detained him. As discussed in Section III of this Order, these issues were fully litigated at the suppression hearing and again on direct appeal. Therefore, they are procedurally barred pursuant to Rule 61(i)(4).
VI. CONCLUSION
For all these reasons, the motion for postconviction relief and the motion for an evidentiary hearing must be and hereby are DENIED .
It Is So ORDERED .