Opinion
ID No. 0408012099 WCC.
Submitted: July 3, 2007.
Decided: October 29, 2007.
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
Kevin M. Carroll, Deputy Attorney General, Wilmington, Delaware.
Sylvester Miller, SBI# 532861, Smyrna, Delaware, Pro se.
ORDER
On this 29th day of October, 2007, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. On July 11, 2006 Sylvester Miller ("Defendant") filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61). For the reasons set forth below, Defendant's Motion for Postconviction Relief is denied.
2. The Defendant was indicted and charged with eight counts of First Degree Rape and one count of Continuous Sexual Abuse of a Child. The victim was the Defendant's daughter. Following a jury trial, the Defendant was convicted on March 28, 2005 of six counts of First Degree Rape and one count of Continuous Sexual Abuse of a Child. On June 17, 2005 the Defendant was sentenced to a mandatory term of fifteen years imprisonment for each count of Rape, and two years imprisonment, followed by a period of probation supervision for the count of Continuous Sexual Abuse of a Child. On appeal, the Delaware Supreme Court affirmed Mr. Miller's convictions, and a mandate was issued on March 14, 2006. Thereafter, the Defendant filed this timely Motion for Postconviction Relief. At the Court's request, Defendant's attorney for trial and appeal, David J. J. Facciolo ("Counsel"), filed an affidavit in response to the claims of ineffective assistance of counsel.
3. Mr. Miller states sixteen grounds for relief in his Motion. Because the Defendant presents numerous arguments within each ground, his complaints are best addressed categorically:
A. Constitutional Violations
4. Defendant claims his 6th Amendment right to counsel and 5th Amendment privilege against self incriminat ion were violated during his interview with the police. Mr. Miller also claims his 8th Amendment rights were violated when the trial judge failed to provide him with a copy of the presentence report.
5. Before addressing the merits of a postconviction claim, the Court must determine whether the procedural requirements of Rule 61 have been met. Because Mr. Miller failed to raise these alleged constitutional violations on his direct appeal, they are procedurally barred and the Court need not address them unless cause or prejudice is shown by the Defendant. Mr. Miller was represented by counsel, so his 6th Amendment argument is simply another expression of his ineffective assistance of counsel arguments that will be addressed later in this opinion. The Court further finds that the Defendant has failed to establish that there is a "substantial likelihood" that if the other "alleged" Constitutional issues had been raised on appeal, the outcome would have been different. Counsel for the Defendant was provided a copy of the presentence report to review prior to the Defendant's sentencing and the Defendant denied any involvement in the alleged sexual acts during the police interview. As such, the Court finds the Defendant has failed to establish cause or prejudice that would warrant review of otherwise barred issues.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
"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." Super. Ct. Crim. R. 61(i)(3).
Flamer v. State, 585 A.2d 736, 748 (Del. 1990).
B. Juror Issues
6. Mr. Miller raises three claims regarding juror conduct. First, the Defendant believed that a potential juror who admitted prejudice against him actually served. In reality that juror was excused, and thus this claim is summarily dismissed.
Tr. 3/22/05 at 35-36.
7. Second, the Defendant makes generalized complaints that the jury was prejudiced and biased against him in favor of the State. No such issue was argued on direct appeal, and Mr. Miller does not point to specific instances that would support the allegations. Thus, this claim is procedurally defaulted.
Super. Ct. Crim. R. 61(i)(3).
8. Next, Mr. Miller claims the trial judge abused his discretion in failing to ask on voir dire whether jurors would give more weight to a police officer's testimony than to any other testimony. This same claim was argued and decided by the Supreme Court on direct appeal. The Court held that the trial judge acted within his discretion and any error was harmless beyond a reasonable doubt. Rule 61 bars postconviction claims that have been formerly adjudicated, and Mr. Miller's claim of trial error was thoroughly reviewed by the Supreme Court. The interests of justice do not warrant reconsideration.
Miller v. State, 893 A.2d 937, 947 (Del. 2006).
To invoke the "interest of justice" exception of Rule 61(i)(4), a movant must show that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Flamer, 585 A.2d at 746.
C. Prosecutorial Misconduct
9. Mr. Miller raises two claims relating to prosecutorial misconduct. First, the Defendant states that the prosecutor misstated evidence to the Court and the jury, and second, Mr. Miller alleges the prosecutor inappropriately "vouched" for the credibility of the State's witnesses. Because no objection was made at trial relating to either of these two claims of misconduct, nor were they presented on appeal, the Defendant is barred from raising them here. Furthermore, Mr. Miller makes no showing of cause or prejudice.
Super. Ct. Crim. R. 61(i)(3).
D. Indictment Issues
10. Mr. Miller raises two complaints relating to the indictment by the grand jury. First, the Defendant states the indictment against him was "false" because his daughter's birthday was listed incorrectly on the indictment. Second, Mr. Miller claims the indictment was false because his daughter was not present in the United States before 1995. At trial, the errors in the indictment were corrected and counsel made no objection. Because there was no objection at trial, and no indictment issues were raised on appeal, these claims are procedurally defaulted. Mr. Miller makes no showing of cause or prejudice to overcome the default.
Tr. 3/22/05 4-6.
Super. Ct. Crim. R. 61(i)(3).
E. Witness Credibility and Perjured Testimony
11. In his motion Mr. Miller makes numerous allegations of false testimony by the State's witnesses: Detective Diane Smith, Alicia Miller (the Defendant's daughter) and Anthony Miller (the Defendant's son). These allegations are made in general terms asserting that the witnesses perjured themselves and that the Court and the prosecutor "should have known" the witnesses were lying. The Delaware Courts consistently recognize that questions of witness credibility are "the sole province of the fact finder," and the trial judges generally will not substitute their own judgment for that of a jury which weighed the facts, inferences and testimony heard in court. The Court is not quite sure how it should have known the witnesses were lying, but it finds any alleged perjury is simply a fiction created by the Defendant because the witnesses' testimony did not conform to his version of what allegedly occurred. Accordingly, this claim fails.
Def. Mot. at 4, 11, 20, 22, 23, 39.
Poon v. State, 880 A.2d 236, 238 (Del. 2005).
F. Ineffective Assistance of Counsel
12. The majority of the Defendant's remaining claims are for ineffective assistance of counsel at trial. To establish such a claim, a defendant must meet the two-part test set forth in Strickland v. Washington. Mr. Miller must show both that 1) counsel's representation fell below an objective standard of reasonableness, and 2) a reasonable probability exists that Mr. Miller would not have been convicted but for counsel's error. All of Mr. Miller's claims fail under the Strickland analysis.
466 U.S. 668 (1984).
Wright v. State, 608 A.2d 731 (Del. 1992), citing Albury v. State, 551 A.2d 53, 58 (Del.Super.Ct. 1988).
13. The Defendant first claims counsel was ineffective for failing to call certain witnesses, including Defendant's ex-wife, to testify. Counsel's affidavit notes that he discussed the possibility of Defendant's ex-wife testifying, but concluded that she was an adverse witness who could be "highly detrimental" to Mr. Miller's defense. Thus, counsel's decision not to subpoena or call her as a witness was a tactical decision, and did not fall below an objective standard of reasonableness. The same analysis applies to Mr. Miller's claim that counsel failed to investigate his children's aunt, Fiona Riley, as a defense witness. Counsel's affidavit demonstrates a thorough attempt to determine the substance of this testimony, and found her to be unhelpful and "highly adverse." Therefore, this claim failed, as Miller is unable to satisfy either prong of Strickland.
Miller's ex-wife was the first person to learn of the victim's allegations of sexual abuse and contacted the police. Facciolo Aff. at ¶ 12.
There is a strong presumption that defense counsel's conduct constituted sound trial strategy. Strickland, 466 U.S. at 689.
Facciolo Aff. at ¶ 17-18.
14. Next, the Defendant claims counsel was ineffective when he failed to give Defendant a copy of discovery and a police report before trial. Counsel denies these allegations and submits that he discussed and reviewed discovery with the Defendant. While it is obviously the best practice for counsel to thoroughly discuss and review with his client the discovery material provided by the State, there is no obligation by rule or practice that requires counsel to provide copies of the documents to the Defendant. As such, even if Mr. Miller's assertion is correct, it provides no basis for relief.
Id. at ¶ 19.
15. Mr. Miller next claims that a videotape of his interview with police should have been suppressed and that counsel was ineffective for not moving to suppress it. Counsel explains in his affidavit that the decision not to suppress the videotape was a strategic one, as it provided an opportunity for the defense to present to the jury the Defendant's denial of the charges, without requiring him to testify. Counsel's affidavit stated that "counsel discussed with the defendant the possible usefulness of his statement to the police which was equivocal, in part, but wherein the defendant denied that he would ever commit the crimes." As such, it appears that counsel's tactical decision not to suppress the tape was to Miller's benefit, as it allowed the jury to see his denial of the charges without being subject to cross-examination. The Court finds counsel's decision to be reasonable under the circumstances and therefore this claim fails the first prong of Strickland.
Facciolo Aff. at ¶ 8.
Id.
16. Mr. Miller also claims counsel was ineffective for failing to read and review the presentence report with Defendant prior to Defendant's sentencing. The Court first finds that this claim could not satisfy the prejudice prong of Strickland, because he has failed to state what information was incorrect or how, even if true, the outcome of his sentence would have been different had counsel reviewed the presentence report with him. In addition, the rules of the Court only require the presentence report to be provided to counsel, and while obviously counsel should discuss it with his client, there is no rule mandating such conduct. However, candidly, with the amount of mandatory incarceration required by the statutes under which the Defendant was convicted, the presentence report had little, if any, bearing on the overall sentence and thus this claim is without merit.
17. Finally, Mr. Miller adds general complaints of counsel's failure to object, call certain witnesses, and investigate the facts. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Considering the affidavit submitted by counsel and the trial record, the Court finds counsel's actions did not fall below an objective standard of reasonableness.
Strickland, 466 U.S. at 689.
G. Miscellaneous Assertions
18. Any remaining allegations in Mr. Miller's motion not specifically addressed by the Court are no more than general statements of legal rules or rambling commentary by the Defendant. These claims are therefore summarily dismissed as they do no more than make conclusory assertions of law or fact.
State v. Childress, 2000 WL 1610766, at *1 (Del.Super.). This proposition applies to all grounds for relief, including claims of ineffective assistance of counsel. State v. Robbins, 1996 WL 769219, at *1 (Del.Super.).
H. Conclusion
19. For the reasons set forth above, Mr. Miller's Motion for Postconviction Relief is hereby denied.
IT IS SO ORDERED.