Opinion
ID#: 9810022419.
Submitted: June 17, 2003.
Decided: June 19, 2003.
Upon Defendant's Motion for Postconviction Relief — DENIED
ORDER
The Grand Jury indicted Defendant on December 7, 1998 for Murder First Degree, and related offenses. After denial of pre-trial motions, on November 15, 1999, jury convicted Defendant of the lesser-included Murder Second Degree, Possession of a Firearm During the Commission of a Felony and Possession of a Deadly Weapon By a Person Prohibited. After denial of a motion for a new trial, also filed by Defendant's trial counsel, Defendant was sentenced on March 17, 2000 to a total of fourteen years and six months in prison, then lengthy probation at decreasing levels. Defendant's convictions were affirmed by order of the Supreme Court of Delaware dated February 1, 2001.
State of Delaware v. Shaun Lee, Del. Super. Ct., ID# 9810022419, Silverman, J. (December 17, 1999).
Lee v. State, 768 A.2d 470 (Del. 2001).
Lee began this motion for postconviction relief proceeding on October 29, 2002. After preliminary review under Superior Court Criminal Rule 61(d), the court directed expansion of the record under Rule 61(g). The court required Lee's trial counsel to respond to Lee's allegations of ineffective assistance of counsel. Then, Lee took the opportunity to respond to his trial counsel's submission, as provided in Rule 61(g)(3).
In its December 17, 1999 order denying Defendant's post trial motion for judgment of acquittal, the court sets out the case's facts. In summary, it was undisputed that Lee shot the unarmed decedent four times at point-blank range, with Lee having fired the last bullet into the decedent's head. As discussed below, it also was undisputed at trial that the decedent started the physical confrontation that ended with his own death. Although the State did not concede it, the evidence tended to show that Lee feared the decedent because of prior confrontations between the decedent and Lee or Lee's friends. As the court explained in its earlier order, the verdict probably reflects the jury's finding that Lee's armed and murderous response to the decedent's provocation was so disproportionate, it was unjustified.
I.
Lee's motion for postconviction relief alleges that his trial counsel was ineffective in two broad and overlapping ways. First, Lee claims that his trial counsel "failed to advance [Lee's] only plausible line of defense: self-defense and Extreme Emotion Distress." Second, Lee contends that his trial counsel "abandoned the required duty of loyalty to [Lee], and apparently with the intention to weaken [Lee's] case." Even Lee can suggest no motive supporting the latter.
At the outset, the court flatly rejects Lee's wild accusation that his trial counsel intended to weaken Lee's case. If Lee's trial counsel were ineffective, which he was not, there is not the slightest evidence that he intended to undermine Lee's defense. To the contrary, not only does the record reflect trial counsel's efforts to secure Lee's acquittal before, during and after trial, in a large sense trial counsel's efforts succeeded. As mentioned, Lee was indicted for Murder First Degree. Considering that he repeatedly shot an unarmed man and the last shot arguably was a coup de gras, Lee faced the real possibility that he would be convicted as charged. In that event, by law, Lee would have received a life sentence. Thanks to his trial counsel's efforts, Lee was acquitted of intentional murder. It may be small consolation as he serves a long prison sentence, but Lee's predicament could be far worse. Lee will be released while he still is relatively young. Unlike the man he killed, Lee may yet lead a full life.
The court also initially observes Lee's claim that his trial counsel "failed to advance" Lee's self-defense and extreme emotional distress claims undisputably exaggerating, at least. Starting with his opening statement, Lee's trial counsel expressly advanced a self-defense or justification defense, and he also pursued extreme emotional distress as a mitigating factor at sentencing.
Putting aside Lee's histrionics, he claims that his trial counsel pursued his justification and extreme emotional distress claims in a way that fell below a reasonable standard of professional competence, and trial counsel's shortcomings were prejudicial. Those contentions address the well-established requirements for ineffective assistance of counsel claims.
Strickland v. Washington, 466 U.S. 668 (1984).
The factual basis for Lee's claims is that his trial counsel decided not to call a psychiatrist, Dr. Phillip Mechanik, to support Lee's justification and extreme emotional distress claims. Lee's trial counsel had Lee evaluated by Dr. Mechanik before trial and Dr. Mechanik had submitted a report opining that Lee's fears of the decedent were real and Lee acted under extreme emotional distress.
Nevertheless, for reasons discussed below, Lee's trial counsel decided not to call Dr. Mechanik as a witness.
The court will not review in detail Lee's additional complaint that his trial counsel did not tell Lee and Lee's family that Dr. Mechanik would not testify at Lee's trial. Even if Lee's claim were true, which the court doubts, whether to call Dr. Mechanik was trial counsel's decision, not Lee's. There are practical and human reasons why trial counsel, as a matter of professional relations, would discuss such a decision with his client. But even assuming that Lee's trial counsel did not discuss the decision with Lee and Lee's family, that has no bearing on whether Lee's trial counsel was competent, much less on whether failing to discuss the decision not to call Dr. Mechanik had a bearing on Lee's conviction.
II.
Substantively, there is no doubt that trial counsel's decision not to call Dr. Mechanik was strategic. The issue surfaced when the State filed a motion in limine to prevent Dr. Mechanik from testifying. The State's position was that Dr. Mechanik's opinion was not a psycho-forensic opinion. It merely was cumulative of Lee's and some of his percipient witness's testimony.
In his affidavit, Lee's trial counsel confirms that his decision was strategic. In the first place, he called for the evaluation, in part, "to effect a better plea offer from the State." Lee's trial counsel decided not to call Dr. Mechanik because "Dr. Mechanik would reveal to the jury detrimental personal information about [Lee] as well as open the door to other potential confidential information in the possession of Dr. Mechanik." One of Lee's delinquent acts, for example, involved his participating in a sexual assault of a girl with whom he went to school. That incident severely undermines Lee's attempt to portray himself as a victim. Moreover, Lee's trial counsel revealed that Lee did not provide the same information to Dr. Mechanik as he provided to his trial counsel. Lee's explanation to Dr. Mechanik for why Lee had obtained the handgun was more self-serving then what he told his trial counsel. In his reply to his trial's counsel's submission, Lee ignores the risk of calling Dr. Mechanik and the ethical dilemma that would have presented.
Reasonable minds could differ over whether trial counsel's decision not to call Dr. Mechanik was correct. The court tends to believe it was. But even if another trial attorney might have called Dr. Mechanik, the court cannot conclude that trial counsel's decision fell below a reasonable standard of professionalism. By the same token, it cannot be said that calling Dr. Mechanik would have resulted in Lee's conviction for Manslaughter, much less his outright acquittal. Assuming that the court would have denied the State's motion in limine, which is probably true, Dr. Mechanik would mostly have only put a professional gloss on Lee's testimony. As explained above, however, that benefit would have come at the considerable risk that the jury would decide that Lee was a juvenile delinquent and a bully in his own right, rather than the victim of a bully. And that easily could have meant Lee's conviction for intentional murder. As mentioned, Lee focuses on how Dr. Mechanik's testimony might have helped. Yet, he ignores the potentially greater harm that Dr. Mechanik's testimony could have done.
Meanwhile, Defendant testified in his defense. He told the jury how the decedent initially confronted and threatened him, and how his "heart started beating," and then how he "got a little nervous." Lee testified that the decedent started following him on the street, and the decedent threatened Lee: "I told you I was going to get you." Then, according to Lee's unrebutted testimony, the decedent "swung" at Lee, who ducked the punch. After that, the decedent "rushed" Lee, and Lee started backpedaling. The decedent knocked Lee down and they struggled. On cross-examination, however, Lee further testified that the reason Lee chose not to defend himself with his fists was because, "I had a gun on me." Lee also told the jury, when asked if the decedent was threatening to kill him, "I don't know what he had in mind." But Lee did not see a firearm on the decedent. And when he was asked "because [the decedent] was wrestling with you, you felt it was alright to shoot him?" Lee answered, "No."
In deciding Lee's motion for postconviction relief, the court considered arguments not now advanced by Lee. For example, part of the basis for Dr. Mechanik's opinions were psychological evaluations done by mental health professionals before the shooting. Apparently, Defendant told at least one of those experts that he generally feared for his life and he did not expect to live until adulthood. Testimony to that effect might have helped convince the jury that Lee's fears were real, rather than recent fabrications. That, in turn, would support Lee's justification and extreme emotional distress claims. Trial counsel probably could have put that information before the jury through Lee's direct testimony, without opening the door to all of Lee's past misbehavior. Even so, the court cannot find that trial counsel's failure to pursue that tack meets either prong of the Strickland v. Washington test.
In summary, Lee's trial counsel attempted in various ways to put across Lee's justification and extreme emotional distress claims from start to finish. As presented above, Lee's trial counsel succeeded to a significant extent. The possibility that another attorney might have handled Lee's defense differently does not establish the ineffectiveness of Lee's trial counsel. The jury was given an expansive view of what happened between Lee and the decedent. The State always conceded that the decedent started the confrontation ending in his own death. The jury also heard Lee's largely unrebutted testimony about his feelings and their basis.
The undisputed facts remain that the decedent was unarmed and Lee, who had armed himself anticipating a confrontation, shot the decedent again and again at point-blank range. There was no room for the jury to have reasonable doubt that even if he did not intend to kill the decedent when he started firing, Lee disliked the decedent and he did not care whether the decedent lived or died. Lee almost said as much. Basically, Lee told the jury that he did not use deadly force because it was necessary. He used deadly force because it was available. And along the same lines, whatever justification Lee had to use non-deadly force in self-defense, that justification paled in comparison to the amount and deadly nature of the force used by Lee as he repeatedly shot the unarmed decedent.
Finally, while it theoretically is possible that the past history between a bully, like the decedent and his victim, like Lee, would form the basis for an extreme emotional distress defense, it is not difficult to see why Lee's personal history and Lee's history with the decedent do not establish "a mental or physical feeling of such exceptional stress, excitement or disturbance as to produce a sort of frenzy of mind that makes one deaf to the voice of reason." Even if Lee had testified that he was in a frenzied state as he wrestled with the decedent, which he did not allege, Lee's explanation for using deadly force is unreasonable. And taking the negative behavior that Dr. Mechanik knew about, but to which the jury was not exposed because Lee's trial counsel chose not to call him, Lee's defense concerning his mental state at the time of the killing would have been even less convincing. Thus, Lee cannot show prejudice.
DEL. P.J.I. Crim. ¶ 7.b4 (2001).
For the foregoing reasons, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.