Summary
upholding conviction of robbery in the first degree under Delaware statute providing that defendant must "display what appears to be a deadly weapon" where defendant wrapped a cloth around his hand so that it appeared to hide a gun, and where the victim reasonably believed that defendant was armed
Summary of this case from State v. IrelandOpinion
I.D. No. 9706017912
Submitted: May 21, 2001
Decided: August 28, 2001
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
ORDER
This 28th day of August, 2001, upon consideration of Defendant's pro se Motion for Postconviction Relief, the State's Response, and Defendant's two Replies to the State's Response, it appears to this Court that:
1. Derrick Lawrence (Defendant) has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. The State filed a Response, trial counsel has filed an affidavit and Defendant has filed two Replies. For the reasons stated below, Defendant's Motion for Postconviction Relief is DENIED.
2. On February 25, 1998 Defendant was convicted of Robbery First Degree. Thereafter, this Court sentenced Defendant to ten years of incarceration at Level 5, followed by one year at Level 4, followed by one year at Level 3, and three years at Level 2. Defendant filed a direct appeal to the Supreme Court of Delaware, in which the Court affirmed this Court's judgment and held that
to the extent the issues raised on appeal are factual, the record of evidence supports the trial judge's factual findings; to the extent the errors alleged on appeal are attributed to an abuse of discretion, the record does not support those assertions; and to the extent the issues raised on appeal are legal, they are controlled by settled Delaware law, which was properly applied.
Lawrence v. State, Del. Supr., No. 204, 1999, Veasey, C.J. (May 21, 1999)(ORDER).
3. Defendant's Motion for Postconviction Relief filed with this Court asserts eleven different grounds for Postconviction relief. Essentially, Defendant's first, fourth and tenth claims allege prosecutorial misconduct during Defendant's trial; Defendant's second, fifth, eighth, and ninth claims allege abuse of judicial discretion by the trial court; and Defendant's third, sixth, seventh, and eleventh claims allege ineffective assistance of counsel. Specifically, Defendant's eleven claims in their entirety are as follows:
1. Prosecuting attorney displayed misconduct when he withheld evidence from the Grand Jury;
2. Trial court abused [its] discretion when failing to remove counsel based upon conflict of interest;
3. Defendant's counsel was ineffective by failing to investigate and being able to meet the case of the prosecution;
4. Prosecutor misconduct of evidence suppression violated Jencks Act and violated defendant's right to fair trial and his Due Process Rights";
5. Trial Court abused [its] discretion by not adhering to Rule 26.2 and [by] not ordering opposing party to produce Jencks material;
6. Counsel was unprepared for trial and failed to aggressively request Jencks statements, therefore ineffective;
7. Counsel was ineffective when he failed to cross-examine witnesses;
8. Trial Court abused discretion when [it] denied [a] Jury requested `Note' during deliberations;
9. TriaL Judge abused discretion when instructing [the] Jury;
10. State did not prove every element of First Degree Robbery; 11. Counsel was ineffective when failing to contact client regarding status of Direct Appeal.
Defendant's Motion at 3.
4. In addressing Defendant's prosecutorial misconduct and judicial abuse of discretion claims, the State denies all claims advanced by Defendant and provides supporting facts to support each of its denials.
See generally State's Response (citing Strickland v. Washington, 466 U.S. 669, 694 (1984)).
In addition to the State's Response, Defendant's trial attorney filed an affidavit with this Court, which denies each of Defendant's ineffective assistance of counsel claims. Specifically, Defense counsel's affidavit denies Defendant's 3rd, 6th, 7th, and 11th assertions. Defense counsel essentially asserts that counsel's representation of Defendant did not fall below the requisite objective standard of reasonableness and that some decisions made by counsel were strategic decisions that were reasonable.
5. Defendant's asserted prosecutorial misconduct claims are without merit and therefore DENIED. This Court agrees with the State's contentions set forth in its Response to grounds one, four, and ten, and finds that the prosecutor, during Defendant's trial, did not exhibit any such misconduct claimed by Defendant.
Specifically, Defendant first claims, under ground one, that the "Prosecuting attorney displayed misconduct when he withheld evidence from the Grand Jury." As the State correctly argues, there was no evidence provided to this Court other than Defendant's "undocumented assertions." These assertions are not supported by any affidavits, nor are any of those claims verified. Furthermore, Defendant has not made any references to the record to support this claim. Notwithstanding those facts, there is also no evidence otherwise that the prosecutor withheld anything from the Grand Jury. As the State noted, "this case was presented to the Grand Jury by the police officer who simply recounted what the victim and witnesses told him during the investigation." Therefore, Defendant's first claim for prosecutorial misconduct is denied.
Defendant's Motion at 3.
State's Response at 3.
Id.
Id.
Defendant's second prosecutorial misconduct claim, under ground four, asserts "Prosecutor misconduct of evidence suppression violated [the] Jencks Act' and violated [D]efendant's right to a fair trial and his due process rights." Upon a review of the facts surrounding Defendant's trial, this Court finds that those facts do not support Defendant's claim. The evidence about which Defendant refers, was requested by his attorney during trial, and the State objected to the introduction of that evidence as irrelevant. This Court agreed with the State's objection, holding that the evidence was irrelevant and further, that defense counsel could explore that evidence during cross-examination. To further support the State's action, upon Defendant's direct appeal, the Delaware Supreme Court affirmed this Court's judgment.
Defendant's Motion at 3.
State's Response at 4.
See Lawrence v. State, Del. Supr., No. 204, 1999, Veasey, C.J. (May 21, 1999)(ORDER).
Defendant's third prosecutorial misconduct claim, under ground ten, asserts that the "State did not prove every element of a First Degree Robbery." Defendant claims that because the robbery victim did not believe that Defendant had a gun at the time of the robbery, the State failed to prove that Defendant displayed what appeared to be a deadly weapon, thus failed to prove First degree Robbery. However, the Supreme Court of Delaware has previously held in a similar first degree robbery cases, that the robbery first degree statute, 11 Del. C. § 832(2), allows a "conviction of robbery in the first degree if a defendant "displays' what `appears' to be a deadly weapon," and that the "[l]egislative use of the quoted words is significant because [the quoted words] clearly imply an inquiry into the victim's reaction and not into whether an assailant was in fact armed." The Court further held that "[w]e think . . . that `display' includes not only the notion of spreading before view or exhibiting to the sight, but also that which is manifested to any of a victim's senses."
Defendant's Motion at 3.
Defendant's Motion at 35.
State v. Smallwood, Del. Supr., 346 A.2d 164, 166 (1975).
Id at 167.
In Defendant's case, Defendant had cloth wrapped around his hand and jabbed it in the victim's direction. When Defendant struck the victim in her left cheek, it apparently felt like a hard object. Therefore, it was possible for a rational juror to conclude that Defendant was guilty of first degree robbery and Defendant's claim, under ground ten is denied.
State's Response at 8.
6. Next, Defendant essentially raises four claims of ineffective assistance of counsel. A claim of ineffective assistance of counsel is governed by the twopart test set forth in Strickland. That is, a movant must show both 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 have been different." Since the movant must prove both prongs in order to succeed on an ineffectiveness claim, the failure to prove either will render the claim unsuccessful, and the court need not go on to address the remaining prong. A movant must prove his allegations by a preponderance of the evidence.
Motion at 3.
466 U.S. 668 (1984).
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988) (quoting Strickland, 466 U.S. at 688, 694); Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990).
State v. Wright, Del. Super., 653 A.2d 288, 294 (1994).
Under Defendant's four ineffective assistance of counsel claims, specifically his third, sixth, seventh, and eleventh grounds, Defendant has failed to demonstrate that his counsel's representation satisfied either of Strickland's two-part test. Defendant's third ground asserts, "Defendant's trial counsel was ineffective by failing to investigate and not giving ample opportunity to meet the case of the prosecution." Defense counsel denied this claim stating that "Defendant had no memory of the events in question." Defense counsel also stated in his affidavit that Defendant was:
Defendant's Motion at 8.
Trial counsel's Affidavit at 1.
unable to supply the names or addresses of any witnesses . . . [h]e was apprehended a short distance from the scene of the crime . . . in possession of proceeds of the crime. He was positively identified as the perpetrator by two witnesses. Discovery was provided by the State in excess of that required by the Court's rules in that copies of police reports were provided to the defense.
Trial counsel's Affidavit at 1-2.
Accordingly, this Court finds Defendant's ineffective assistance of counsel claim, under Defendant's third ground, to be without merit and therefore denied.
Defendant's second ineffective assistance of counsel claim, numbered as Defendant's sixth ground, asserts that:
[c]ounsel was insufficiently prepared for trial thus ineffective. Counsel failed to aggressively request Jencks statements, as provided in Super. Ct. Crim. R. 26.2, which would have identified the particular statements sought to aid in the defense.
Defendant's Motion at 22.
Defense counsel denied this claim, asserting counsel was prepared for trial. Specifically, defense counsel states that he had "reviewed all the discovery materials, appropriate statutes and case law" and "counsel had conferred with the defendant and both prosecutors." This Court finds counsel's representation of Defendant was reasonable and did not fall below the objective standard of reasonableness required by Strickland.
Defense counsel's affidavit at 2.
Defendant's third ineffective assistance of counsel claim, under Defendant's seventh ground, contends that "counsel was ineffective when he failed to cross-examine witnesses." As Defense counsel noted, this was a reasonable strategic decision, which counsel could have concluded was the best decision for Defendant to make during the trial. Therefore, it was not unreasonable for counsel to have eliminated cross-examining a witness.
Trial counsel's affidavit at 3.
Defendant's last ineffective assistance of counsel claim under ground eleven, contends "counsel was ineffective when failing to contact client regarding status of direct appeal." This claim is denied by Defense counsel as counsel contends that he "did indeed advise Defendant of [the] status of [his] appeal." To support counsel's position, this Court recognizes that Defense counsel sent Defendant a letter dated May 20, 1998. Counsel also sent Defendant of the opening brief and appendix as well as the State's answering brief. All were forwarded to Defendant. Counsel further noted that when his staff learned of Defendant's transfer to an out of state correctional facility, counsel "distinctly recalls directing [his] staff on more than one occasion, to forward additional copies of the appeal materials to the out of state address supplied." As Defense counsel asserted, this Court finds that even if there was such failure to find Defendant, that failure, if it exists, does not constitute ineffective assistance of counsel.
Trial counsel's affidavit at 3.
Trial counsel's affidavit at 3.
7. Lastly, Defendant raises four claims asserting judicial abuse of discretion during his trial. Upon a thorough review of Defendant's assertions concerning these abuse of discretion claims, this Court finds that there was not judicial abuse of discretion during Defendant's trial.
Defendant's second ground asserts that the trial Court abused its discretion in failing to remove Defendant's attorney from Defendant's case. This Court recognizes that the "Sixth Amendment to the Constitution guarantees that m all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense" and that "this right was designed to assure fairness in the adversary criminal process, [r]ealizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system." The United States Supreme Court has also noted that "the purpose of providing assistance of counsel is simply to ensure that criminal defendants receive a fair trial, and that in evaluating Sixth Amendment claims, the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such."
United States v. Morrison, 449 U.S. 361, 364 (1981).
Wheat v. United States, 486 U.S. 153, 159 (1988) (citing United States v. Cronic, 466 U.S. 648, 657, n. 21 (1984)).
Defendant is entitled to be represented by counsel but the "the aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant, rather than to ensure that Defendant will be represented by lawyer whom he or she prefers. Therefore, Defendant's claim, under ground two, is denied.
Wheat v. United States, at 159 (1988) (noting that "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."). See also Morris v. Slappy, 461 U.S. 1, 13-14, (1983); Jones v. Barnes, 463 U.S. 745 (1983).
Defendant also alleges abuse of judicial discretion under his fifth, eighth, and ninth grounds. To the extent these grounds allege that the State did not furnish the defense with due evidence, these claims are denied. The State provided Defendant's counsel with the proper material as required by the rules.
To the extent Defendant's abuse of judicial discretion claims assert that this Court's jury instructions were improper, referring to the charge of First Degree Robbery, Defendant's claims are denied. The State was entitled to have a First Degree Robbery instruction read to the jury as discussed earlier. Therefore, these claims are denied.
Lastly, Defendant's eighth claim, asserting "Trial Court abused their discretion when denying jury the opportunity to review certain testimony requested by `Note' during jury deliberations" is erroneous. A trial Court has broad discretion in determining to what extent a jury can be permitted to rehear testimony. As the State noted, "Defendant offered speculative arguments concerning what the result might have been if a transcript had been provided to the jury." However, Defendant did not demonstrate to this Court any actual prejudice resulting in the trial court's ruling.
Ward v. State, Del. Supr., No. 137, 154 156, 1990, Horsey, J. (1991)(ORDER); Harrigan v. State, Del. Supr., No. 188, 1996, Walsh, J. (1997)(ORDER).
State's Response at 7.
Id.
8. For the reasons stated above, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.