Opinion
C.A. No.: ID# 96-03-0135, Attempted Murder 1st Degree S96-03-0134
Submitted: August 23, 2000
Decided: November 29, 2000
DECISION ON POSTCONVICTION RELIEF MOTION — MOTION DENIED
Leland W. McCluskey, S.C.I., P.O. Box 500, Georgetown, DE 19947
Melanie Withers, Esquire, Department of Justice, 114 E. Market Street, Georgetown, DE 19947
Charles E. Whitehurst, Esquire, 502 South State Street, Dover, DE 19901
Pending before the Court in this matter is the motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") which defendant Leland W. McCluskey ("defendant") has filed. This constitutes my decision on the motion.
FACTS
Not all facts are set forth in this section. Some of the facts first appear in the discussion section where they are pertinent to a resolution of the ground considered.
On February 22, 1996, defendant was arrested on the charge of criminal solicitation in the first degree. On March 11, 2000, he was indicted on the charge of criminal solicitation in the first degree as well as a charge of attempted murder in the first degree.
After his arrest, defendant underwent a mental examination wherein the examining psychiatrist reached the following conclusions. Defendant, as of the time of the examination on March 21, 1996, was not suffering from any mental illness or defect; defendant was able to comprehend and appreciate the nature of the information and penalties to which he would be subjected if found guilty; and defendant was able to assist his attorney in the preparation of his case. Defendant was not suffering from any mental illness, defect or condition on or about February 22, 1996. Defendant did not lack capacity to appreciate the wrongfulness of his conduct, he did not lack sufficient willpower to choose whether he would commit the crime or refrain from doing it, and he did have the capacity and control to choose to conform his conduct to the requirements of the law.
The case was tried before a jury on July 22-24, 1996. Charles E. Whitehurst, Esquire ("defense counsel") represented defendant during trial and on appeal.
The evidence at trial established the following. Defendant asked William Littleton ("Littleton"), a friend, if Littleton knew of someone who could kill defendant's estranged wife. Littleton reported this request to the Seaford Police. The Seaford Police then executed a plan to determine if defendant intended to have his wife killed, and if so, to capture defendant and prevent the execution of his wife. They had Littleton tape conversations with defendant. They also had Littleton give defendant the name and telephone number of an undercover officer, who was falsely identified as a "hit man". Defendant called the supposed hit man, who was Detective Robert Agnor. The supposed hit man told defendant that the job would cost $5,000 and that defendant must provide him with a picture of the victim and a map. Ultimately, on February 22, 1996, defendant and the supposed hit man met in a hotel room in Seaford, Delaware, where defendant gave the supposed hit man, among other things, $2,500, a map of the road his wife took from work, and directions that he wanted his wife murdered. Defendant did not have a photograph of his wife with him, but he promised to obtain one. He also promised to obtain the balance of the money and more detailed information on his wife's work schedule.
As defendant was leaving the hotel room, he was arrested on the criminal solicitation charge.
Audiotapes and a videotape recorded defendant's commissions of the crimes charged. Consequently, defendant's trial strategy was limited. He conceded the criminal solicitation charge. However, he argued that he did not commit the crime of attempted murder because he had not taken sufficient steps to be convicted of the attempted murder charge. In support of that argument, defendant pointed to the following facts. He had paid only $2,500 of the $5,000 which the supposed hit man had requested and he had not provided the supposed hit man with a photograph of the victim. In addition, defendant argued that it was clear that another meeting was required before the supposed hit man would have taken any steps to kill the victim.
The jury found defendant guilty of both of the charged crimes. After this verdict, defendant filed a motion for judgment of acquittal or in the alternative, for a new trial on the ground that no reasonable jury could have found him guilty of attempted murder. The Court denied the motion.
Defendant appealed to Delaware's Supreme Court. On appeal, he argued that the attempted murder conviction should have been set aside because there was insufficient evidence to support the jury's verdict and because the trial court incorrectly held that solicitation could form the factual basis of attempted murder. The Supreme Court held: "A rationale juror could conclude, from these facts, that McCluskey had taken a 'substantial step' toward the commission of the crime of murder." State v. McCluskey, Del. Supr., No. 422, 1996, Berger, J. (October 7, 1997) at 5. Defendant thereafter moved for reargument; the Supreme Court denied this motion.State v. McCluskey, Del. Supr., No. 422, 1996, Berger, J. (October 28, 1997).
The Supreme Court mandate was dated October 30, 1997.
Defendant filed his first Rule 61 motion on August 10, 2000. He submitted an amended motion on August 23, 2000. The grounds advanced in the original and amended motions are detailed below in the discussion section.
DISCUSSION
I. Non-Rule 61 Claim: Loss of Legal Papers
Before examining the claims which arguably fall under Rule 61, I eliminate an argument which clearly does not entitle defendant to Rule 61 relief. Defendant argues that the State of Delaware ("the State") interfered with his communication with the Court. In support thereof, he submits a letter from Lt. Earl Messick of Sussex Correctional Institution dated December 9, 1997, which states in pertinent part as follows:
On November 6, 1997, a major shakedown was conducted in the SCI Medium Building, at which time Inmate McCluskey and several other inmates did apparently lose some legal paperwork that may be important to their cases.
The loss of legal papers in November, 1997 had absolutely nothing to do with the proceedings leading to defendant's convictions in July, 1997 and affirmance thereof in October, 1997. That loss does not provide either a factual or legal basis for a collateral attack upon the convictions. Rule 61(a). Consequently, the Court dismisses this assertion as legally frivolous.
In Rule 61(a), it is provided in pertinent part:
Scope of rule. (1) Nature of proceeding. This rule governs the procedure on an application by a person in custody or subject to future custody under a sentence of this court seeking to set aside a judgment of conviction ... on the ground that the court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction.... A proceeding under this rule shall be known as a postconviction proceeding.
(2) Exclusiveness of remedy. The remedy afforded by this rule may not be sought by a petition for a writ of habeas corpus or in any manner other than as provided herein.
II. Rule 61 Claims
A) Procedural bars
The Court first must determine if there are any procedural bars to the claims in the postconviction relief motion, and if there are, the Court must apply them. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990)
This motion is not time-barred since it was brought within three years from the date when the conviction became final. Rule 61(i)(1). See Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995). In addition, since this is defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply.
In Rule 61(i)(2), it is provided:
(i) Bars to relief. * * *
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice.
However, the procedural bar of Rule 61(i)(3) applies to all of defendant's claims except for the ineffective assistance of counsel claims. Therein, it is provided:
Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows:
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
As explained in Downes v. State, Del. Super., Cr. A. No. 94-09-0152, et al., Graves, J. (August 12, 1999) at 3: "This is a two-pronged requirement imposed upon the defendant, and if he fails to satisfy either the cause prong or the prejudice prong, then the procedural bar shall apply."
I now examine each ground which defendant has asserted. I note that defendant attaches legal labels to his grounds, such as due process or equal protection violations, but a review of the allegations evidences these labels to be legally invalid. Consequently, I address the allegations themselves, not the labels defendant has attached to the allegations.
B) Procedurally barred claims
As held above, Rule 61(i)(3) bars each of defendant's claims, except for the ineffective assistance of counsel claims. Defendant may avoid the bar of Rule 61(i)(3) if he shows "the court lacked jurisdiction" or if he establishes "a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Rule 61(i)(5). Defendant has not attempted to establish that either of these exceptions exist in connection with any of the claims which are procedurally barred pursuant to Rule 61(i)(3). Consequently, I conclude neither of these exceptions applies to any of defendant's claims.
Below, I set forth defendant's claims and rule they are procedurally barred. However, I go on to examine the claims to explain how they would have failed even if defendant had argued the bar of Rule 61(i)(3) does not apply.
1) Littleton's testimony
Defendant argues that his rights were violated or laws were broken because promises were made to Littleton in exchange for his testimony. His argument is as follows. Littleton was promised that his probation would not be violated if he testified. This amounted to the State promising something for testimony. "Promising of value to secure truthful testimony is as must [sic] prohibited by law as buying perjured testimony." Defendant also contends that Littleton falsely testified in the following exchange on cross-examination:
Q You were on probation at the time this offense occurred?
A Yeah.
Q When you met with Detective Morris, you said, "I want you to help me out with my probation"?
A No.
Q No?
Q You didn't have a violation hearing coming up?
A Not that I knew of.
Trial Transcript at page A-118 ("TT at ____")
This claim is procedurally barred because defendant failed to advance it during the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant has made no attempt to establish cause for relief from this procedural bar, and even if he had developed the cause prong, he could not establish the prejudice prong as the discussion below evidences.
The testimony of the State's witnesses established that Littleton's probation was violated after his arrest and that the police officers spoke to the Court about his help in this case before the violation of probation hearing. However, there is nothing in the record establishing that Littleton was promised that his probation would not be violated if he testified.
A review of the record of Littleton's file in Cr. A. No. S92-10-0384 confirms the testimony about Littleton's probation. Littleton was violated on probation on January 12, 1996 and sentenced on that probation violation. His probation officer sought a review of his probation by a report dated March 1, 1996. The Seaford Police spoke to the Court about Littleton's aid to it in the case against defendant. The Court found Littleton in violation of his probation on March 29, 1996.
These facts establish two things. First, defendant's contention that Littleton's probation was not violated is factually incorrect. Second, a violation report was not filed until after defendant' s arrest.
Based on the foregoing, this claim is meritless.
2) Victim's presence in courtroom
Defendant argues that the victim was allowed to sit in the courtroom, and this was an extraneous influence which contaminated the jury.
This claim is procedurally barred because defendant failed to advance it during the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant has made no attempt to establish cause for relief from this procedural bar, and even if he had developed the cause prong, he could not establish the prejudice prong.
The State requested that the victim be allowed to view, pursuant to 11 Del. C. § 3512, Littleton's testimony regarding this involvement in the matter and the videotape of the hotel meeting between defendant and the supposed hit man. Defense counsel objected to her presence on the ground that defendant's due process rights were violated. Defense counsel, after voicing that objection, did note that he did not see how her presence during those portions of the trial could prejudice any testimony which she might have. The Court, in balancing defendant's rights with the mandate of the Legislature, ruled that the victim could be present during those requested portions, but must be sequestered during other times, and "[s]pecifically, at any time during the testimony of the defendant or specific allegations concerning communication with her involvement." TT at A-42.
In 11 Del. C. § 3512, it is provided:
Any victim or the victim' s immediate family shall have the right to be present during all stages of a criminal proceeding even if called upon to testify therein, unless good cause can be shown by the defendant to exclude them.
Ellen McCluskey testified about her job, her marital status, the marital troubles preceding the crime charged, the fact she told defendant the marriage was over and that she intended to file for divorce, and that she believed defendant's former brother-in-law was a member of the Pagans.
Defendant has made a conclusory statement that Ellen McCluskey's presence impacted the jury. The Court will not consider conclusory allegations. Younger v. State, 580 A.2d at 556.
Defendant has failed to establish prejudice; this ground is merit less.
3) Tapes and transcripts of tapes
Defendant makes numerous arguments regarding the tapes and transcripts thereof. I set forth the facts regarding the tapes and transcripts in order to provide a framework for dealing with the arguments.
After the jury had been picked and before trial began, the State represented that it had four audiotapes as well as a videotape which it intended to play to the jury. Contrary to defendant's contentions, the tapes were not enhanced or altered. The State also explained that it had transcripts of the audiotapes and videotape to aid and assist the jury, explaining "[a]t least one of the conversations is very difficult to hear portions of it." TT at A-33.
The audiotapes played were originals, not copies.
Defense counsel stated that he had not had a chance to review the accuracy of the transcripts or to review the copy of the videotape. The Court provided him with the opportunity to review the original and copy of the videotape and to compare the respective transcripts to the videotape and the audiotapes.
Ultimately, the original videotape was played at trial. Consequently, viewing the copy became a moot point.
Defendant himself, during his testimony, agreed that the audiotapes were accurate and the videotape was accurate, for what they contained. TT at C-32-33 and C-38.
Defense counsel, after listening to the tapes and viewing the video, agreed that the transcripts, with a correction made, were fairly accurate. Defense counsel stated as follows:
There are some points which are really of no concern, where they are talking about collateral issues that are unclear, and I don't think it makes any differences. [sic]
TT at A-56.
The first audiotape played recorded a phone call between defendant and Littleton which took place after the police instructed Littleton to call defendant. Littleton verified that nothing had been added or deleted from the tape. The Court instructed the jury regarding the use of a transcript:
Members of the jury, this tape is going to be played for you. Because of the quality of the tape and the circumstances in which the reporting was made and the natural problems when you are reporting individuals talking, there may be parts of the tape that are difficult for you to understand.
As a result of this, a transcript has been prepared by someone who was able to slow the tape down and make every effort to get the entire language reduced to a transcript. However, it is someone's effort at making a transcript of what was said on the tape. The tape is the evidence in this case. You should listen to the tape.
To the extent that what you understand to be said on the tape differs from what is on the transcript, you use your recollection of what is on the tape. In other words, the transcript is only to assist you in listening to the tape. If you hear something different than the person who prepared the transcript, you rely on what you heard.
TT at A-101.
Another tape recording of another conversation between defendant and Littleton was played to the jury. Littleton verified its accuracy. The Court again cautioned the jury regarding the use of the transcript of this conversation.
The third and fourth audiotapes recorded telephone conversations between defendant and Detective Agnor.
Detective Agnor testified to the following regarding the third tape. Defendant called him and the detective saw that the recorder was not recording the first part of the conversation. He pushed the button and started the recording in the middle of the conversation. The detective verified the accuracy of the recording. A transcript was given to the jury members after the Court instructed them regarding the limited use of the transcript.
The fourth audiotape recorded a conversation which took place on the day of defendant's arrest. Only the detective's side of the conversation was taped. Before Detective Agnor began testifying, defense counsel argued that the fact only one side of the conversation was recorded entitled defendant to an instruction that the unrecorded information was favorable to the defendant. The State argued that Detective Agnor, who participated in the conversation, would be able to testify to the "missing" side of the conversation. The Court ruled as follows. The issue was credibility. If the evidence showed that there was some mishandling which rose to a level of excluding or destroying or losing evidence, then it would give the missing evidence instruction. As long as it went to credibility, there was no instruction. Ultimately, no missing evidence instruction was given.
Detective Agnor testified as follows. He called defendant. The police put a recording device on the phone, but only the detective's voice is heard on the recording. The detective verified that nothing had been added or deleted from the tape. It was played and a transcript was provided to the jury.
The final recording to address is the videotape. The meeting in the hotel between defendant and the detective was recorded by videotape. The detective verified the accuracy of the videotape. A transcript was provided to the jury after the appropriate instructions regarding its use was given.
With that background in mind, I turn to defendant's contentions. First, I hold that all of defendant's claims regarding the tapes are procedurally barred because he failed to advance them during the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant has made no attempt to establish cause for relief from this procedural bar, and even if he had developed the cause prong, he could not establish the prejudice prong as is explained below.
a) Allowing the jury to read tapes of telephone conversations constituted prejudice.
Defendant does not show how prejudice was occasioned, and the Court does not address conclusory statements. Younger v. State, 580 A.2d at 556.
b) The transcripts of the tapes included quotation marks which reflected the State's theory of the case.
The transcripts did not contain any quotation marks. This argument is factually frivolous.
c) The Court should not have permitted jurors to use the altered tapes, many of which could not be understood and tapes that did not contain complete conversations because there was little other identification evidence.
There were no altered tapes; consequently, this portion of this argument is factually frivolous. Defendant makes no effort to explain how the lack of complete conversations constituted prejudice. This portion of the argument fails because it is conclusory. Id.
d) A transcript of the tape recorded telephone conversation was unauthenticated and it identified defendant as a speaker; the speaker's identity was not substantiated prior to presentation to the jury.
Defendant agreed when he was testifying that the tapes were accurate. The transcripts were deemed accurate. There was no prejudice; consequently, this argument fails.
e) The tapes were not surrendered pursuant to discovery requests prior to trial so defendant's attorney could prepare an adequate defense.
The tapes were given to defense counsel prior to trial pursuant to discovery requests answered on April 3, 1996. This argument is factually frivolous.
f) Defendant himself was not allowed to listen to the tapes to determine if the contents therein were correct or to compare the copies of the tapes with the originals, and his attorney was not able to say if the contents were correct without defendant having listened to the tapes. He makes the same argument regarding the fact he did not have the opportunity to review the transcripts. He argues it was an abuse of discretion or plain error to have permitted these tapes into evidence.
Defendant admitted during trial that the tapes were accurate. He fails to show how the lack of opportunity for him to review the transcripts prejudiced him. This argument fails because it is conclusory. Id.
g) The tapes were not verified.
The tapes were authenticated, which is what the Rules of Evidence require. Delaware Rules of Evidence, Rule 901. This argument is meritless.
h) The tapes were leading and "did prejudice."
This argument is conclusory and thus, fails. Younger v. State, 580 A.2d at 556.
i) Defendant cites to page A-102 of the Trial Transcript and argues that a tape was not played but the transcript was passed around.
The transcript clearly reflects the tape was played. This argument is factually meritless.
j) Defendant's attorney did not listen to the copies of the tapes.
There was no need or reason for defense counsel to listen to the copies of the tapes; the originals were played. This argument is factually and legally frivolous.
k) Defendant appears to question the transcripts' accuracy when he asserts that the Court stated that it was impossible to understand the tapes if they were not enhanced and the Court later stated that the transcripts were "prepared by someone who was able to slow the tape down and make every effort to get the entire language reduced to a transcript." TT at A-101.
As explained above, the tapes were not enhanced and the transcripts were accurate. This ground fails.
1) The tape of a telephone conversation between defendant and the proposed hit man recorded only the proposed hit man's side of the conversation, and the non-taped side was missing evidence which entitled defendant to a missing evidence instruction pursuant to Deberry, Hammond and Lolly.
Deberry v. State, Del. Supr., 457 A.2d 744 (1983).
Hammond v. State, Del. Supr., 569 A.2d 81 (1989).
Lolly v. State, Del. Supr., 611 A.2d 956 (1992).
The tape in question was authenticated and the missing portion was discussed, on both direct examination and cross-examination, by the detective, defendant, and a person who overheard defendant's portion of the conversation. The fact defendant's portion of the conversation was not recorded was not material to defendant's guilt or innocence, and consequently, even if that portion was considered to be "missing evidence", there was no prejudice to defendant by any failure to give a missing evidence instruction. Cook v. State, Del. Supr., 758 A.2d 933 (2000).
4) Competency issues
Defendant makes a number of arguments based upon his contention that he was incompetent due to his mental condition occasioned by strokes and his medication.
This claim is procedurally barred because defendant failed to advance it during the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant has made no attempt to establish cause for relief from this procedural bar, and even if he had developed the cause prong, he could not establish the prejudice prong as the discussion below evidences.
As noted earlier, a psychiatrist examined defendant, and the report established that he was not incompetent either at the time of the crime or at the time of the examination. At the trial, the following was placed on the record.
For the purposes of the record, this morning we had a chambers conference with Judge Graves. I informed him that Mr. Mccluskey wanted to be examined by a neurologist to indicate whether his will had been overcome in regards to this case and that, perhaps, could form some sort of defense. I asked the Judge for permission to do that, and he denied that.
Just to clarify things, Mr. McCluskey is an epileptic. His Dilantin level was therapeutic when he was admitted to prison when he was arrested. He believes that he may have had some seizure activity at or near the time that he was arrested, and he certainly has had seizure activity during the time that the has been in prison. In fact, his therapeutic level has not been returned to what it should be now. * * * Judge Graves denied any opportunity for us to investigate that. I simply wanted to made that a matter of record.
TT at A-52
Defendant contends as follows. He requested services of a neurologist at a pretrial motion to address problems with his mental condition and the extent of his disability. There is clear evidence he suffered from a mental disability and mental condition, and his medical records clearly show that his medication levels were not therapeutic during all pretrial proceedings and during trial. Because defendant was incompetent, the failure of the Court to allow for an adequate competency determination constituted error which resulted in violations of defendant's constitutional rights as well as violations of the American with Disabilities Act. The prosecutor was "delinquent in her duties when she did not question [J]udge Graves [sic] denial of request for Neurological Evaluation (violates her oath to State and to American Bar Association), to seek justice."
Since defendant was deemed to have been competent at the time of the commission of the crimes, the only argument defendant would have had regarding competency is that he was incompetent at the time of trial. Defendant did not present, at the time of trial, and has not presented now any information that even remotely suggests that he was incompetent at the time of the trial. In fact, defendant's participation in the trial, including his testimony, which was logical and coherent, clearly establishes he was competent to stand trial. Thus, there was no prejudice in the denial of his request for a neurological examination. This ground is meritless.
Defendant's testimony was clear and logical. His testimony took into account the facts as established by the various tapes and he presented a story which, if believed, may have rendered him not guilty. The testimony clearly was that of a person with a rational understanding of the proceedings against him and the evidence presented. Defendant testified as follows. He initially contacted Billy Littleton to talk to him about playing ball. When they got together, they ended up talking about defendant's marital problems. They talked about Chip Darling, whom they both knew and who had been a Pagan. Littleton was the one who suggested defendant kill his wife. Littleton gave him the name of a person to call and defendant called the person because he was upset and curious. When the supposed hit man called him back, defendant told him that it was a bad day, to stay where he was. He thought the supposed hit man was upstate. When he learned the supposed hit man was in Seaford, defendant again told him it was a bad day. He thought the supposed hit man was a Pagan. Defendant "really wanted out of this thing." TT at C-22. Defendant went to the hotel and became frightened when the supposed hit man frisked him. Defendant purposefully did not take a picture of his wife because he wanted to get out of the whole thing. He did not tell the supposed hit man his wife's work schedule because he wanted out. He gave the supposed hit man the $2500 with the hope of appeasing him. He had no intentions of going through with the plan. He planned to tell the supposed hit man later, over the phone, that he was not going through with the plan.
In connection with his alleged illness, defendant asserts numerous times that the American with Disabilities Act ("ADA") was violated. This Act provides:
Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
The ADA provides defendant absolutely no basis for seeking and obtaining postconviction relief. Every claim based on the ADA is meritless.
Defendant also argues that the State exploited his disability and disregarded his will after defendant stated in a telephone conversation with Detective Agnor that he did not wish to participate in the crime. In support of this contention, he cites to the unsworn statement of Reverend Valentine Miller. In that unsworn statement, dated August 11, 1998, Reverend Miller states, but does not swear, as follows:
I clearly remember on this date Feb 22nd on or about 10:30 in Sam's Print Shop. I answered the phone called Lee to the phone, and heard conversation to these words: "no — today is not a good day" thereafter Lee asked me if I would stay and answer the phone. his reply was I will be back in 1 1/2 hr
Defendant argues that Reverend Miller's unsworn statement establishes that he did not wish to participate in the crime but he was coerced into doing so. I refuse to accept Reverend Miller's unsworn statement. He testified at trial and did not mention what is contained in the statement. He cannot add to his testimony by way of an unsworn statement submitted after the trial was completed.
Defendant sets the coercion argument within the framework of his alleged disability, arguing the police were aware of his disability and exploited it to force defendant to commit crimes.
Reverend Miller's testimony at trial established there was no coercion. Reverend Miller was asked if he heard what defendant said in response to the person who was talking. He testified he recalled that conversation. When asked if could tell the members of the jury what that was, he responded:
Yes. He was less than two feet from me. And the conversation, as I heard only him speak, was the fact that he only had X number of dollars at that point, and I heard him say twenty-five hundred dollars. I heard the amount, and it was twenty-five hundred dollars
TT at B-135.
The following colloquy occurred:
Q Did you observe him visually when he was talking on the phone?
A I saw nothing out of the way. I saw no excitement on his part. He was Lee McCluskey.
Q Did you form an opinion as to whether he wanted to leave the office or not?
A I saw nothing. He said, "Mr. Miller, would you stay and answer the phone? I may be a little while before I get back."
TT at B-136.
The following exchange took place on cross-examination:
Q ... You saw nothing out of the ordinary at all?
A Nothing.
Q When he was speaking on the phone?
A Nothing, ma'am.
Q He didn't seem uncomfortable that you were there?
A He did not show any excitement or over-excitement. He was not in a hurry to leave. I saw nothing different.
TT at 2-137.
Thus, this argument of coercion and exploitation of a disability fails.
Defendant also contends that Detective Parker of the Seaford Police Department, knew of defendant's epilepsy and condition of disability. I assume defendant is arguing that the police knew defendant was disabled, took advantage of that fact, and thereby forced him to participate in the crimes. There is absolutely no evidence of record that Detective Parker knew of any condition of defendant. This argument fails, also.
5) Medication
Defendant asserts that the State chemically introduced Abulia, which interfered with his communication with his attorney and the Court and which amounted to coercion and a violation of the ADA. He further alleges:
Due to State discontinuing my corrective medication and introducing Tricyclic (against manufactures [sic] recommendation) did induce seizures stroke and mini stroke and did destroy a large portion of my intellect making it impossible to carry on communication with the court. All of this did obstruct Justice in fact it did not allow the truth to come to light.
This claim is procedurally barred because defendant failed to advance it during the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant has made no attempt to establish cause for relief from this procedural bar, and even if he had developed the cause prong, he could not establish the prejudice prong. I hold here, as I did earlier, that there is absolutely no evidence that defendant was not competent at the time of trial. In fact, the evidence clearly shows he was competent.
6) Prosecutorial Misconduct
Defendant argues that the prosecutor stated that he was on probation. During the trial, the following exchange took place:
Q So it was the following evening that you had a discussion with the defendant about his being on probation?
A Yes.
MR. WHITEHURST: I believe that is a mischaracterization. I don't believe they were talking to the defendant about his being on probation. Should that be Mr. Littleton?
THE COURT: I believe that was a misstatement. It is not the defendant who was on probation; it was Mr. Littleton.
MS. WITHERS: If I misspoke, I apologize.
TT at 2-7-8.
This claim is procedurally barred because defendant failed to advance it during the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant has made no attempt to establish cause for relief from this procedural bar, and even if he had developed the cause prong, he could not establish the prejudice prong. It was immediately clarified that the reference to defendant being on probation was a misstatement. There was no prejudice. This is a meritless argument.
7) Jencks Material Violation
Defendant makes the following contention: Ex. 23 A-123 Told no Jencks Material Yet clear Misinformation.
This claim is procedurally barred because defendant failed to advance it during the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant has made no attempt to establish cause for relief from this procedural bar, and even if he had developed the cause prong, he could not establish the prejudice prong as is evidenced by the following discussion.
Defense counsel represented to the Court that when he requestedJencks material, he was told there was none other than what was in the police report, which was provided to defendant. Defendant has not explained what material was not produced. Conclusory allegations fail.Younger v. State, 580 A.2d at 556.
Jencks v. United States, 353 U.S. 657 (1957).
8) Exhibit 35
Defendant has attached, as Exhibit 35, a "List of violations by State and Court of Federal Constitution before during and after trial." I do not consider any of these "violations" because of one or more of the following reasons: they were events which occurred after trial and they are not matters which were related to defendant's conviction; they are references to the ADA, which does not provide defendant a basis for postconviction relief; or they contain assertions which have been addressed above. Defendant may have intended this document to be a complaint pursuant to the ADA. However, a civil complaint may not be filed in this criminal proceeding. Defendant must follow the appropriate procedures in filing such a complaint.
C) Claims which are not procedurally barred: ineffective assistance of counsel claims
Defendant advances a number of ineffective assistance of counsel arguments. I turn to State v. Gattis, Del. Super., Cr.A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7-9, aff'd, Del. Supr., 637 A.2d 1174 (1997), for setting forth the standard to apply to such a claim:
This type of claim is normally not subject to the procedural default rule, in part because the Delaware Supreme Court will not hear such a claim for the first time on direct appeal, and therefore as a practical matter the first opportunity to raise this issue is in a collateral attack such as the Rule 61 motion for postconviction relief. [Citations omitted.] For this reason, many defendants... allege ineffective assistance of trial counsel in order to overcome the procedural default.
However, this path creates confusion for the defendant if he does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. For example, the United States Supreme Court has stated that
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth amendment itself requires that responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.'
Ineffective assistance of counsel, then, is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986) (emphasis added). A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two-part analysis enunciated in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Delaware Supreme Court in Albury v. State, Del. Supr., 551 A.2d 53 (1988)
The Strickland test requires the movant to show first that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Strickland at 687. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional errors the outcome of the proceedings would have been different, that is, actual prejudice. Id. at 694. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. [Citations omitted.]
Generally, the claim for ineffective assistance fails unless both prongs of the test have been established. Strickland at 687. However, the showing of prejudice is so central to this claim that the Strickland Court stated that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697. In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone.
Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable' professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation." Strickland at 689.
I address below each of defendant's ineffective assistance of counsel claims.
a) Defendant argues:
Defense Attorney was ineffective when he did not object to denial of Neurological examination as violation of Federal Constitution, which did not allow proper defense and did not allow method in which evidence was acquired to be to be [sic] questioned.
As discussed above, there was no prejudice occasioned by defendant not having a neurological examination. Competency was not an issue and defendant was not entitled to a neurological examination.
b) Defendant further argues:
Also did not allow presentation of Violations of State of [sic] Federal Constitution previous to trial which did not allow fullness of the truth to be presented to court.
This argument is conclusory. Conclusory allegations fail. Younger v. State, 580 A.2d at 555.
c) Defendant argues:
Defense Attorney did not object to fact of Coercion and Intimidation and violation of rights guarantee [sic] by Federal Constitution while obtaining evidence. (By State and Officers obtaining evidence.)
Defense Attorney did not object to fact of Coercion and Intimidation and violation of rights guaranteed by Federal Constitution by state while trying to communicate with Attorney and communicate with court.
Defense Attorney did not object to violations of Federal constitution by State during the Exploitation of Defendants Disability By those involved obtaining evidence; the Prosecution violating oath to Bar to seeking Justice not merely conviction Knowing of violation of Federal Constitution and not responding, to Judges denying Rights granted by Federal Constitution, to violations of Federal Constitution by State through [sic]
As discussed above, there was no evidence of coercion. There was no prejudice.
d) Defendant argues his attorney provided misinformation when he stated that defendant's Dilantin level was therapeutic when defendant entered prison upon his arrest. Defendant has not shown how prejudice occurred; conclusory allegations fail. Younger v. State, 580 A.2d at 555.
e) Defense counsel was ineffective because he did not verify, before Littleton testified, whether the following information was correct:
BY [PROSECUTOR]:
Q Did you ever talk to Seaford Police about your violation of probation hearing? A Yes.
Q Do you have any idea when that occurred?
A It was — as a matter of fact, it was the day that I was informed when I went to report and she give me a notice that I had to appear in court on such and such a date because she, I guess, had been messing with paperwork or something, because I didn't even know this until she told me I was going to court for a review.
TT at A-126.
The record of the criminal proceedings show that the violation report on Littleton was filed after defendant was arrested. If the defense counsel had examined Littleton's criminal file, he would have found information which verified this testimony. Consequently, there was no prejudice to defendant.
f) Defendant further asserts trial counsel was ineffective for failing to obtain information which would have verified the following exchange:
Q Did he [Littleton] ever talk to you about the fact that the was on probation —
A He —
Q — around the time when this case occurred?
A Yes. He discussed that he was on probation in a meeting that I had with Mr. Littleton. I believe we had our first meeting with him Monday. I believe it would be Tuesday evening when we had a meeting with Mr. Littleton concerning the progress of the case, and so forth, and he mentioned to us at that time that he was on probation.
TT at B-6.
There was no way to verify this information. The witness testified this is what occurred and either it was believed or not. This is a frivolous argument.
All of the ineffective assistance of counsel claims fail.
III) Unintelligible Claims
Defendant sets forth numerous statements which I cannot relate to any argument and/or which I cannot decipher. They are as follows:
Ex. 13 A-81 Littleton states he had played softball with defendant (Again can and would have shown Littleton had fore knowledge [sic] of my condition.)
Ex. 14 A-92 Line 19 again softball
Ex. 15 A-93 Again softball
Ex. 16 A-94 Littleton asked defendant to help him move
A-103 Corrections made defendant did not have chance to review.
A-104 Corrections made defendant did not have chance to review.
A-105 Corrections made defendant did not have chance to review.
Ex. 19 A-106 Corrections made defendant did not have chance to review....
Ex. 20 A-111 Line 3 Ask to help Littleton to move.
Ex. 28 B-15 line 15
Ex. 33 B-79 Line 22 Original not played or introduced. At point of defendants [sic] viewing of tape can show epileptic event a matter of State record Episode induce by State's interjection of Tricyclic and non therapeutic anticonvulsant Level Ex. 9, 10, 11. Violates 8th Amendment not Questioned by defense attorney. Ineffective Assistance of Council [sic]
Because these statements are unintelligible, I do not address them.
CONCLUSION
For the foregoing reasons, defendant's Rule 61 motion is denied.