Opinion
ID No. 90010077DI.
Submitted: December 18, 2006.
Decided: May 9, 2007.
On the Defendant's Motion for Postconviction Relief.
Kim Ayvazian, Esquire, Deputy Attorney General, and William L. George, Esquire, Deputy Attorney General, Department of Justice, 820 North French Street, Wilmington, DE 19801. Attorneys for the State.
Joseph M. Bernstein, Esquire, 800 N. King Street Suite 302 Wilmington, Delaware, 19801. Attorney for the Defendant.
OPINION AND ORDER
This matter comes before the Court on the motion of the Defendant, Glenn E. MacDonald, seeking postconviction relief pursuant to Superior Court Criminal Rule 61. Upon reviewing the submissions of the parties, that which follows is the Court's resolution of the issues so presented.
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
The facts forming the primary underpinnings of the instant litigation are fairly straightforward. On September 30, 1990, Julie Spencer, the former girlfriend of Glenn E. MacDonald, the Defendant, disappeared. One week later, Ms. Spencer's body was found in a marshy area near Delaware State Route 9 at Augustine Beach in New Castle County. After an autopsy was performed by the State Medical Examiner, it was determined that the cause of Ms. Spencer's death was blunt force trauma injuries to the head and asphyxiation due to ligature strangulation. The Delaware State Police considered the Defendant and Allan "Al" Smith, the Defendant's friend, to be the prime suspects in the murder of Ms. Spencer. After Mr. Smith gave a statement to police implicating him, the Defendant was arrested and charged with Murder First Degree on October 19, 1990. From this point forward, the scenario becomes much more complex.
A more detailed description of the overall circumstances underlying the crime and other aspects of the case is set forth in the Court's opinion dated April 4, 2000 and incorporated herein by reference. ( State v. MacDonald, 2000 WL 1211311 Del. Super.) Accordingly, only those facts germane to the instant petition will be repeated here.
The Defendant was tried twice for the Murder of Julie Spencer.
The first trial commenced on February 24, 1992. The Defendant was represented by Joseph W. Benson, Esquire and Andrew G. Ahern, III, Esquire. Mr. Smith testified that the Defendant confessed to him that he strangled Ms. Spencer with wire in his garage. Mr. Smith further testified that the Defendant admitted to dumping Ms. Spencer's body in a marsh after strangling her. The jury failed to reach a verdict and on March 30, 1992, a mistrial was declared.
Messrs. Benson and Ahern subsequently withdrew as the Defendant's counsel. Joseph A. Gabay, Esquire and Jerome M. Capone, Esquire, were appointed by the Court to represent the Defendant during the second trial. That trial began on January 20, 1993. It ended with a verdict of guilty as charged on February 17, 1993.
During the Defendant's second trial, the jury heard evidence that was very similar to that which was presented during the first trial. Mr. Smith provided testimony consistent with that he had provided at the first trial as did Renee Norem and Catherine Wright, both friends of the victim, Ms. Spencer. Both Ms. Norem and Ms. Wright testified that Ms. Spencer was afraid of the Defendant. Detective Daniels, one of the police officers charged with investigating Ms. Spencer's murder, testified that Ms. Spencer made statements to Ms. Wright who in turn related that information to him about her fear of the Defendant. The jury also heard a taped statement made by Shirley MacDonald, the Defendant's mother. That statement was entered into evidence because Shirley MacDonald was unable to recall the events she had related in an interview with the Defendant's counsel prior to the first trial.
After the verdict but prior to sentencing following the second trial, the Defendant was arrested and charged with Criminal Solicitation First Degree and Conspiracy First Degree. The new charges stemmed from the Defendant's attempts, while in custody, to have Al Smith murdered. On March 11, 1993, the Defendant pled guilty to the aforementioned charges and waived his right to appeal or seek any other post-conviction remedies arising from the murder conviction entered against him on February 17, 1993. He was sentenced to life in prison without the possibility of parole on the murder charge and five years each on the conspiracy and solicitation charges. Shortly thereafter, Messrs. Gabay and Capone withdrew as the Defendant's counsel.
Gary F. Traynor, Esquire and Thomas C. Marconi, Esquire were appointed as counsel to the Defendant. On March 8, 1996, they filed a motion on behalf of the Defendant with this Court to withdraw his guilty pleas to the conspiracy and solicitation charges. This motion was later re-filed as a motion for post-conviction relief pursuant to Superior Court Criminal Rule 61. On March 5,2004, the Defendant filed a motion for post-conviction relief seeking to overturn his murder conviction as well. This Court reserved ruling on that motion until the first motion was adjudicated.
The Defendant's motion to withdraw his guilty pleas was denied by this Court on April 12, 2000, after an evidentiary hearing and oral argument. The Defendant appealed that decision to the Delaware Supreme Court. The Supreme Court reversed this Court, holding that the Defendant had not intelligently and voluntarily entered guilty pleas on March 11, 1993. It also directed that the Defendant be re-sentenced for the Spencer murder. That event took place on January 25, 2002, when the Defendant was sentenced to life in prison without the possibility of probation, parole or other manner of sentence reduction.
MacDonald v. State, 778 A.2d 1064 (Del.Supr. 2001).
Nearly a month after the Supreme Court ruling, Messrs. Traynor and Marconi filed a motion to withdraw as the Defendant's counsel. That motion was granted on January 25, 2002. Neil R. Lapinski, Esquire was subsequently appointed to represent the Defendant during his direct appeal of the Spencer murder conviction. Mr. Lapinski's efforts were unsuccessful and the Defendant's conviction was ultimately affirmed by the Delaware Supreme Court.
MacDonald v. State, 816 A.2d 750 (Del.Supr. 2003).
The saga began anew on March 5, 2004, when the instant Rule 61 motion was filed on behalf of the Defendant. From that point up to and including the present, the Defendant has been represented by Joseph M. Bernstein, Esquire. It appears from the record that Mr. Lapinski's representation of the Defendant ended after the Spencer murder conviction was affirmed and Mr. Bernstein's entry of appearance took place shortly thereafter.
The Defendant's request for relief is predicated on the contention that his attorneys failed to provide him with effective assistance of counsel during his second trial (Messrs. Capone and Gabay) and his direct appeal of the resulting conviction (Mr. Lapinski). He claims that the failure to do so violated his right to counsel which is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, relying on the decision by the United States Supreme Court in Strickland v. Washington and its progeny to define the requisite standard of representation. Five distinct arguments are offered in support of this motion.
U.S. CONST. Amends VI XIV.
Strickland v. Washington, 466 U.S. 668 (1984).
First, the Defendant argues that the failure of Mr. Lapinski to appeal the trial court's ruling concerning the admissibility of Shirley MacDonald's tape recorded statements amounts to ineffective assistance of counsel. He contends that the tape should have been excluded based on the holding of In Re Pennell. The facts surrounding the production of the tape in question are not in dispute.
In Re Pennell, 583 A.2d 971, 974 (Del. 1989).
During preparations for the Defendant's first trial for the murder of Julie Spencer, Messrs. Capone and Gabay interviewed Shirley MacDonald, the Defendant's mother. The interview was tape recorded. During preparation for the Defendant's second trial, the State issued an Attorney General's subpoena pursuant to 29 Del. C. § 2504 to Shirley MacDonald. This Court held that since Ms. MacDonald could not recall the events she had related to the Defendant's counsel during the original interview, the tape recording of the interview would be admitted into evidence.
See Am. and Restated Mot. for Postconviction Relief at 11.
Id.
The Defendant's second claim is based on the failure of Messrs. Capone and Gabay to object to the testimony of Det. Daniels concerning an interview with Catherine Wright. The Defendant argues that allowing Det. Daniels to testify about the state of mind of Julie Spencer and his attorney's failure to object to this testimony constituted ineffective assistance of counsel.
The Defendant's next contention is that trial counsel's cross examination of Ms. Norem was ineffective because it elicited damaging testimony and evidenced a lack of any strategy by the defense. Accordingly, this facet of his representation also contravened that required by the Sixth and Fourteenth Amendments.
The Defendant goes on to contend that his right to counsel was abridged because Messrs. Capone and Gabay failed to locate and call as witnesses at trial certain individuals who would have provided testimony critical to the defense. Specifically, the Defendant alleges that Wendy Mazza and Thomas Davis should have been called to testify on his behalf. The failure to do so, the Defendant argues, undermined the outcome case.
Finally, the Defendant states that Messrs. Capone and Gabay did not adequately advise him concerning whether he should have testified nor did they prepare him to do so. Had he been properly advised and/or prepared, he would not have taken the stand or his testimony would have helped exonerate him. Those failures, the Defendant contends, also combined to violate his right to counsel. The State, as might be expected, opposes the Defendant's motion. Generally speaking, the State submits that the level of representation did not fall below that expected of counsel in murder cases. The Defendant has not, therefore overcome the "strong presumption" contained in Strickland that conduct about which he complains was professionally reasonable and did not abridge the Sixth Amendment right to counsel. Even if that prong of Strickland were violated, the State contends that there was no actionable prejudice to the Defendant's case and the reliability of his conviction was not undermined as a result. Stated differently, the Defendant has not shown that but for counsel's unprofessional errors, the result of the trial would have been different.
The State further contends that appellate counsel is not required to raise every possible claim on appeal and that trial counsel did in fact object to the original introduction of Ms. Wright's statement attributed to Julie Spencer about her alleged fear of the Defendant. In addition, the cross-examination about which the Defendant complains was a common trial tactic to elicit potentially damaging testimony first rather than waiting for the opposing side to elicit the same. The State goes on to contend that the testimony of the witnesses trial counsel did not call during the second trial would have been cumulative of and/or inconsistent with that which was in fact put before the jury.
Finally, both the State and trial counsel contend that the Defendant was keenly aware that the decision on whether to take the stand and testify was his alone. Counsel assert that they met with the Defendant several times and engaged in extensive discussions concerning whether the Defendant should testify and what that testimony would have been. Any damage or harm to the defense which followed the Defendant's testimony were caused by factors other than the advice of and preparation by trial counsel, i.e., the Defendant himself.
See Aff. of Joseph A. Gabay, Para. 13 (g)(iii).
Id.
Id. During their practice sessions for the Defendant's testimony, Mr. Gabay noted that MacDonald's performance was "dreadful" and went further to say that, "In my over 22 years of practice he was far and away the worst defendant witness I have had as a client."
DISCUSSION
A predicate to addressing the merits of a postconviction relief motion is an examination to determine whether any procedural bars exist. The procedural bars set forth in Rule 61(i)(1)-(4) may only be lifted if there is a mechanism to do so in the pertinent subsection of Rule 61. If no such relief is available, the "catchall" provision of Rule 61(i)(5) is available to provide relief from procedural bars contained in 61(i)(1-3).To be specific, 61(i)(5) provides that the aforementioned bars may be raised where the defendant establishes a colorable claim that there has been a "miscarriage of justice". A colorable claim of "miscarriage of justice" occurs when there is a "constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This exception to the procedural bars is very narrow and is only applicable in very limited circumstances. The burden of proving that he has been deprived of a "substantial constitutional right" is placed upon the moving defendant.
State v. Johnson, Del. Super., Cr. ID No. 83004982DI, Poppiti, J. (July 20, 1983).
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
In this case, it is readily apparent that the procedural bars set forth in Rule 61(i)(1-4) will not prevent consideration of the merits of Mr. McDonald's claims for several reasons.
First, the petition was filed within the applicable time limits set forth in Rule 61 and it is not a formerly adjudicated claim. The bars of Rule 61(i) (1 4) would not therefore apply. Second, since this is the Defendant's first post-conviction relief application, the same conclusion must be reached relative to Rule 61(i)(2). Third, the only bar which might be said to be applicable here would be that contained in Rule 61(i)(3) given the fact that the Defendant did appeal his conviction for the murder of Julie Spencer, but did not raise his ineffective assistance of counsel claims at trial or during that appeal. However, by their very nature, ineffective assistance of counsel claims are not procedurally barred given the obviously import and stated purpose of Rule 61(i)(5). Put another way, a claim of ineffective assistance of counsel is a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of a proceeding for purposes of that subsection of Rule 61(i). The Court, as a consequence, will proceed to examine the merits of the claims raised by the Defendant as described above.
See Mason v. State, 725 A.2d 442 (Del. 1999); and State v. McRae, 2002 Del. LEXIS 495, at *5. When a movant alleges a colorable claim of ineffective assistance of counsel which is potentially procedurally barred under Rule 61(i)(1), (2) or (3), it appears that Rule 61(i)(5) would also cause the bar or bars to be raised because such a claim, by definition, is likely to constitute a "constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceeding." Super. Ct. Crim. R. 61(i)(5).
The Strickland Standard
As noted above, in order to establish a Sixth Amendment ineffective assistance of counsel claim, a defendant must comply with a two prong test which is set forth in Strickland. Under Strickland, a movant must show that defense counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. In order for the first prong of the Strickland test to be satisfied, the movant must demonstrate that his counsel's representation fell below an objective standard of reasonableness via a preponderance of the evidence. Additionally, there is a strong presumption that the representation was professionally reasonable that must be overcome by the movant in order to satisfy the first prong of the Strickland test.
Strickland, 466 U.S. at 668.
Id. at 694.
State v. Wright, 653 A.2d 288 (Del.Super. 1994), aff'd 671 A.2d 1353 (Del.Supr. 1996).
Albury v. State, 551 A.2d 53, 59 (Del.Super. 1988).
The showing necessary to meet the second prong of the Strickland test is not as exacting as the first. To be precise, the U. S. Supreme Court has stated:
We believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome of the case. . . . The result of a proceeding can be rendered unreliable and hence the proceeding itself unfair, even if the errors of the counsel cannot be shown by a preponderance of the evidence to have determined the outcome.
Strickland, 466 U.S. at 693-94.
The second prong of the Strickland test has, therefore, a lower standard of proof than the first. Because the Strickland test clearly requires the movant to satisfy both prongs of the test in order to sustain a claim for ineffective assistance of counsel, the failure to prove either prong will be fatal to a defendant's postconviction relief challenge.
Delaware law imposes a similar burden in at least two significant aspects relevant here. First, there is a strong presumption that counsel's trial strategy fell within the wide range of reasonable professional assistance. Second, a defendant must make concrete allegations of actual prejudice and substantiate them. It is in light of these precepts that the assistance rendered by the Defendant's appellate and trial counsel must be evaluated.
See Stone v. State, 690 A.2d 924, 925 (Del. 1996) (quoting Flamer v. State, 585 A.2d 736, 753 (Del. 1990)("Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that the representation was professionally reasonable." (internal citation omitted)).
Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996); Jordan v. State 1994 WL 466142 (Del.); State v. Brittingham, 1994 WL 750341 (Del.Super.).
Failure to Raise Issues on Appeal
In order for this Court to determine whether the failure to appeal a meritorious issue amounts to ineffective assistance of appellate counsel as defined by Strickland, three factors must be examined. A defendant must demonstrate that: (1) the issue not raised was significant and obvious; (2) the issue not raised was clearly stronger than the issues raised on appeal; and,
(3) the decision not to raise an issue on appeal lacked an articulable strategy. If the response to each of these factors is in the affirmative, the first prong of Strickland, i.e., deficient performance, is satisfied.
Gray v. Greer, 800 F.2d 644, 646 (1986).
Just showing that counsel's failure to raise a meritorious issue on appeal constitutes representation that fell below an objective standard of reasonableness, is not enough. The Defendant must still satisfy the second prong of Strickland. He must demonstrate that there is a reasonable probability that but for appellate counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case. Otherwise, the challenge will fail.
Strickland, 466 U.S. at 694.
As noted above, the Defendant contends that Mr. Lapinski's failure to appeal the admission into evidence of the taped statement of Shirley MacDonald constituted ineffective assistance of appellate counsel. An investigation of the record in light of the controlling authority leads the Court to conclude that Mr. Lapinski's performance was not defective as charged.
The issue which the Defendant claims that Mr. Lapinski should have raised, but did not do so, was not significant and obvious as required by Gray. The issue was not significant because, even if the Court's decision regarding Mrs. MacDonald's taped statement had been overturned on appeal, any error in admitting her statement into evidence would have been harmless.
More specifically, it is undisputed that the jury heard substantially the same evidence from a different source — a prosecution witness named Jeff Wiley, to whom the Defendant told the same story after his arrest. The taped statement was merely cumulative of evidence already made a part of the record at the Defendant's trial. The Court is unable to conclude that this issue, given the content of the statement and the existence of similar evidence, was significant or obvious. The Defendant has therefore failed to establish the first factor outlined in Gray.
Mr. Lapinski raised five errors he claims that this Court made which he felt entitled the Defendant to a new trial. They are as follows:
1. The trial court committed plain error in refusing to declare a mistrial when the prosecution impeached the Defendant's testimony during cross examination based on prior inconsistent statements the Defendant made to the police.
2. The trial court did not grant a mistrial when the prosecution stated that the Defendant had hired an attorney for a pre-arrest interview conducted by the police investigating Ms. Spencer's murder.
3. The trial court failed to grant a mistrial by allowing references by the prosecution to the defendant's first trial for the murder of Julie Spencer.
4. The trial court erred by improperly admitting character evidence that unfairly prejudiced the Defendant.
5. The trial court erred by precluding references in a police investigative report detective regarding the amount of time the Ms. Spencer's body could have been on Augustine Beach.
As noted, the first issue the Defendant raised on appeal centered on the cross-examination of the Defendant by the prosecution. The Defendant claimed that this Court's denial of his request for a mistrial constituted plain error. The Defendant's counsel moved to terminate the proceedings when it appeared that the prosecutor had "commented on his Defendant's failure to testify at the last trial." The Supreme Court analysis of this issue and the time the Court took in distinguishing the Defendant's case from Doyle v. Ohio, are reliable indicators that this issue was significant and had arguable merit. Obviously, the failure to appeal the evidentiary ruling relating to Mrs. McDonald's taped statement pales when compared to the Doyle issue that was so advanced.
MacDonald, 816 A.2d at 753.
Id.
Doyle v. Ohio, 426 U.S. 610 (1976). The prosecution in Doyle impeached the defendant's testimony on cross examination based on the defendant's failure to tell an exculpatory story to the arresting officer after receiving their Miranda warnings. The United States Supreme Court reversed the conviction in Doyle reasoning, "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." The Delaware Supreme Court distinguished the instant case from Doyle in that the Defendant's statements used for impeachment purposes here were made prior to the Defendant's arrest and before his Miranda rights had attached. There was no comment on the invocation of his right to remain silent.
The second and third issues concerned prosecutorial comments relative to the hiring of an attorney by the Defendant before being charged and cryptic references to his first trial for the murder of Julie Spencer, which the defense contended constituted an abridgement of the Defendant's right to a fair trial. The fourth and fifth issues related to evidentiary rulings adverse to the defense. Like the Doyle argument, these issues were of substantial consequence in that each concerned evidence that had a clear and discernable impact on the Defendant's claim of innocence as well as the conduct of the trial in general. And, there does not appear to be anything in the record that would render any successful appeal of the conduct and/or rulings in question harmless.
The same can not be said of the issue the Defendant charges should have been raised. Again, Mrs. McDonald's taped statement was at best duplicative of that already admitted and about which the Defendant has never complained. To the extent that reasonable minds could differ as to whether the issue should have been raised, it is well settled that appellate counsel is not required to raise every possible claim of error when appealing an unfavorable verdict in this context. The choice belongs to counsel. Counsel is also not required to raise issues of dubious worth at the risk of burying arguments that might have a good chance of success before the appellate tribunal.
Curiously, the Defendant does not complain about, challenge or otherwise reference any concern relative to the content of the Wiley testimony in this regard.
Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).
Id. (quoting Smith v. Murray, 477 U.S. 527, 536 (1986).
What the Defendant suggests is to ignore legal reality. The arguments that were in fact appealed were clearly stronger than that about which the Defendant complains. It is equally apparent in this context that the failure to include another issue appears to be strategic and not subject being second guessed. Thus, the answers to the second and third inquiries in the three part Gray analysis are negative. That being the case, the Defendant has failed to establish that Mr. Lapinski's representation of the Defendant on appeal was deficient. It is not necessary, as a result, to reach the second prong of Strickland, i.e., any such conduct rendered the verdict unreliable.
MacDonald, 816 A.2d at 755 (quoting 399, 403 (Del.Supr. 1993)).
Failure Of Trial Counsel To Make Certain Objections
The Defendant apparently contends that Messrs. Capone and Gabay were ineffective because they failed to object to the admissibility of statements made by Catherine Wright regarding Julie Spencer's alleged fear of the Defendant. That testimony was put before the jury on two occasions during the course of the trial. The first was Tice v. State, 624 A.2d the failure to object to the testimony of Det. Daniels about statements made by Ms. Wright recounting what Ms. Spencer had told her on the subject prior to trial. The second was the failure to object to the testimony presented by at trial by Ms. Wright on the same subject. The Defendant contends that the testimony was inadmissible as a matter of law and that the objection had a good chance of succeeding had counsel raised it. The sole basis for the Defendant's contention is Delaware Rule of Evidence 803(3). The Court disagrees with the Defendant for two reasons.
DRE 803(3) reads:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . (3) Then existing mental, emotional or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation or physical condition (such as plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed. Unless it relates to the execution, revocation, identification or terms of declarant's will.
First, the testimony of Det. Daniels was admitted pursuant to 11 Del. C. § 3507. The issue was addressed in the Defendant's direct appeal and the Supreme Court noted that the objection was expressly waived because the evidence was being offered pursuant to 11 Del. C. § 3507. And, while it is true that counsel did not object to the admission of the testimony on that basis, it is apparent that there was no legal justification to do so given the pronouncements by that Court in response to the Defendant's appeal. Indeed, the Defendant has not argued otherwise.
11 Del. C. § 3507(a). In a criminal prosecution, the voluntary out-of-court statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.
MacDonald, 816 A.2d at 757.
Second, the Defendant is mistaken at least in part. The record indicates that trial counsel did in fact object during the testimony of Catherine Wright concerning the victim's fear of the Defendant. The record also reflects that the prosecution agreed with the trial counsel's objection and instructed the witness to limit her testimony in that regard.
State v. MacDonald, Cr. ID No. 90010077DI, Barron, Jury Trial Transcript at 79:19-23 (January 20, 1993) ("Tr. at ___").
Id.
As noted above, this Court must entertain the "strong presumption that counsel's conduct was professionally reasonable." The record before this Court indicates that the trial counsel's view of the state of the law, both as 11 Del. C. § 3507 and of DRE 803(3) was correct and they made objections on the record where it was professionally appropriate to do so. Such choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. In light of the foregoing, the first prong of Strickland has not been established and there is even less support for the proposition that counsel's behavior resulted in any prejudice to the Defendant even if it were necessary to reach that question.
Albury, 588 A.2d at 59.
Strickland, 466 U.S. at 690.
In his reply brief, at 6, the Defendant suggests that it was counsel's failure to appeal the Court's rulings regarding Ms. Wright's testimony via Det. Daniels. Notwithstanding the belated assertion of this issue which had not previously surfaced, nowhere is there a discussion of the legal standard set forth in Gray. Similarly absent is any argument rebutting the strong presumption that counsel's conduct was professionally reasonable. Accordingly, no violation of the Defendant's right to counsel can be deemed to have occurred in so far as this argument is concerned.
Cross Examination of Renee Norem
The Defendant claims that Messrs. Capone and Gabay employed no strategy or plan of action during their cross examination of Renee Norem. The Defendant bases that accusation on the belief that their questioning of Ms. Norem elicited testimony that negatively impacted upon the presentation of his defense. Given that result, the Defendant argues that counsel's efforts fell below the applicable standard mandated by Strickland and that he suffered prejudice which undermines the reliability of his conviction.
Effective representation does not require that the Defendant prevail nor that the his counsel doesn't make mistakes. Eliciting damaging testimony, under certain circumstances, is a viable trial tactic that this Court will not second guess. Furthermore, eliciting potentially damaging testimony first is a common strategy used by defense attorneys.
State v. Redding, 1992 WL 240346 (Del.Super.) (quoting State v. Hicks, Super. Ct., Cr. A. No. IK88-08-0963R1, Gebelein, J. (October 29, 1991)).
State v. Mundy, 2001 WL 789666 at *5 (Del.Super.).
During the course of the trial, in addition to Ms. Norem, the jury heard testimony about the victim's fear of the Defendant from Ms. Wright. Given that fact, it appears that counsel elicited the testimony in question first to lessen its impact since the Court had already ruled that such testimony was admissible. It also appears that the testimony was elicited to demonstrate that notwithstanding those statements, any concern Ms. Spencer had must have ameliorated since she agreed to meet with the Defendant on the day she disappeared.
Other than to engage in conclusory arguments, the Defendant has failed to support his challenge with references to specific references in the record. That is not enough to overcome the presumption that counsel's conduct was reasonable. Moreover, assuming once again that counsel did not act in a professionally appropriate manner, the Defendant has failed to show that but for the mistake of counsel there is a reasonable probability that the outcome of this trial would have been different. The movant must support the ineffective assistance of counsel claims with concrete allegations of actual prejudice. He can not simply disagree with or disapprove of the tactics and strategy employed by his counsel. The Court must conclude as a consequence that counsel's performance in this area was not constitutionally defective.
Albury, 588 A.2d at 59.
Failure to Call Witnesses Davis and Mazza
The Defendant claims that trial counsel's failure to call two witnesses, Thomas Davis and Wendy Mazza, amounts to ineffective assistance of counsel because the testimony of these witnesses would have aided the defense. At the time of Ms. Spencer's murder, Mr. Davis was a neighbor of the Defendant and Ms. Mazza was Al Smith's girlfriend. The Defendant claims that Mr. Davis' testimony would have placed the Defendant at his home the night the Ms. Spencer disappeared and that Ms. Mazza's testimony would have implicated Mr. Smith in her murder. Both of these claims fall short in light of the record that exists.
To be specific, trial counsel called witnesses that provided the same information that Mr. Davis would have related. It appears that those witnesses, Cynthia Prall and Jeff Wiley, were strategically chosen because their recollections were more specific and tied to certain events or dates. Ms. Prall testified at trial for the defense that she remembered seeing the Defendant at home the night the victim disappeared because it was the same day her ex-boyfriend pressed harassment charges against her. Mr. Wiley testified that he saw the Defendant working in his garage sometime between 6:00 and 8:00pm on the night Ms. Spencer disappeared. Counsel chose not to call Mr. Davis because his recollection was vague and he could not recall why in fact he remembered seeing the Defendant on the night the victim disappeared.
Tr. at 119:2-11 (February 9, 1993).
Tr. at 45:12-23, 46:1-16 (February 3, 1993).
With regard to Ms. Mazza, it appears from the record that the defense counsel made a strategic choice not to call her to testify. Ms. Mazza's contribution, had she been called to testify, was that she noticed fresh bruises on Al Smith the week after Ms. Spencer disappeared. Presumably this was to show that Ms. Spencer fought with her attacker and that Al Smith was that individual. However, this testimony would have contradicted forensic evidence introduced at trial that Ms. Spencer did not attempt fend off her assailant. Ms. Mazza would not, as a consequence, have been of any assistance to the defense.
Simply put, the Defendant has failed to demonstrate what, if anything, was not put before the jury because Mr. Davis and Ms. Mazza did not testify. Contrary to what the Defendant now contends, the record reveals that trial counsel pursued evidence and solicited testimony that would exonerate the Defendant. The Defendant may not have appreciated the strategy that Messrs. Capone and Gabay employed in choosing the witnesses to testify on his behalf. However, he has not been able to articulate what the witnesses not called could have contributed that would have been helpful to the defense that was not presented via other witnesses or evidence. The Court must again conclude as a result that the representation afforded did not fall below that which was professionally reasonable under the circumstances, and in any event, the result of the proceedings would not have been different had trial counsel acted as the defense belatedly contends.
Failure to Prepare the Defendant to Testify
Lastly, the Defendant asserts that he received representation that was constitutionally defective, upon which he relied, in deciding to testify on his own behalf. His primary focus is on the advice that he allegedly received from Mr. Capone that he would not be cross-examined on pre-arrest statements that were inconsistent with the posture taken at trial. Moreover, he was advised that if the State attempted to do so, counsel would object. The Defendant goes on to suggest that counsel should have known of the decision by the U.S. Supreme Court in Doyle and at least two of its progeny, which approved of such cross examination once the Defendant took the stand. The failure to so advise the Defendant fell below the minimum standard expected of counsel in such circumstances and that he was clearly prejudiced as a result given what the Defendant characterizes as the "devastating" cross examination by the State.
Doyle, 426 U.S. at 610; Jenkins v. Anderson, 447 U.S. 231 (1980); Anderson v. Charles, 447 U.S. 404 (1980).
The State answers that the Mr. Capone's advice was limited to questions by the State as to why the Defendant did not testify at his first trial and implicate Al Smith as the perpetrator of the Spencer murder. That advice did not extend to inconsistent pre-arrest statements by the Defendant to the police, notwithstanding Mr. Capone's hazy recollection to the contrary twelve years after the fact.
It appears that the State's version of what took place is correct. The advice was so limited. The State did ask a question which could have reasonably been interpreted to refer to the Defendant's failure to take the stand during his first trial and implicate Al Smith. Mr. Capone objected and that objection was sustained. If there was no incorrect statement, there could not be any transgressions of the Defendant's right to counsel, contrary to what the Defendant contends.
State v. MacDonald, Cr. A No. IN90-10-1063, Toliver, J. Evidentiary Hearing, Tr. at 157:16-23, 158:1-14 (March 19,1997)
It is equally apparent, based upon the record, including the affidavits of both Mr. Capone and Mr. Gabay, that counsel put in a great deal of time and effort preparing the Defendant to testify. The record also reflects that the counsel had differing opinions on whether the Defendant should take the stand, but that it was made very clear that the decision was the Defendant's alone. The Court must conclude as a result that the advice so given was reasonable under the circumstances and did not constitute a violation of the first prong of Strickland as a result.
See Aff. of Joseph A. Gabay, Para. 13 (g)(i-viii).
Id.
Lastly, the Defendant has not indicated that but for the advice he claims was given by Mr. Capone, he would not have taken the stand and been convicted. Indeed, the most he claims is that his decision was "influenced" by that alleged advice and that the State's cross examination in that area was "devastating". Those arguments are conclusory and it is settled Delaware law that conclusory arguments are legally insufficient to prove ineffective assistance of counsel.52 Nor do they refer to the quantity and/or quality of the other evidence of the Defendant's guilt put before the jury. Consequently, even if counsels' performance were deficient, the Defendant has failed to establish that the outcome would have been called into serious question as a result.
CONCLUSION
For the reasons set forth above, the Court must conclude that the Defendant has failed to establish the existence of any grounds that would entitle him to relief pursuant to Superior Court Criminal Rule 61. Consequently, his motion for post-conviction relief seeking to overturn his conviction for the Murder First Degree of Julie Spence, must be, and hereby is, denied.IT IS SO ORDERED.