Opinion
ID No. 9403015006.
Submitted: December 6, 1999.
Decided: February 25, 2000.
On Defendant's Pro Se Motion for Postconviction Relief. SUMMARILY DISMISSED in part and DENIED in part.
On Defendant's Application for Funds to Retain an Expert Witness. DENIED.
ORDER
This 25th day of February, 2000, upon consideration of Defendant's pro se Motion for Postconviction Relief and "application for funds to obtain expert witness", it appears to this Court that:
1. Bobby K. Price (Defendant) has filed this pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Defendant requests that his conviction be reversed. For the reasons stated below, Grounds One and Three of Defendant's motion for postconviction relief are SUMMARILY DISMISSED. Ground Two of Defendant's motion for postconviction relief is DENIED. Defendant has also filed a letter with the Court requesting funds to obtain an expert witness. For the reasons stated below, Defendant's application for funds is DENIED.
2. On July 29, 1993, Lestardo's, a bar, liquor store, and cash checking establishment located in Bear, Delaware, was burglarized. The Police investigation led to Defendant and on April 4, 1994, Defendant was arrested for Burglary Third Degree in violation of 11 Del. C. § 824, Theft in violation of 11 Del. C. § 841, and Criminal Mischief in violation of 11 Del. C. § 811. From May 8 to May 11, 1995 a jury trial was held which resulted in the conviction of Defendant as to the theft charge and acquittal as to the third degree burglary and criminal mischief charges.
3. Defendant has filed this motion for postconviction relief asserting three grounds supporting reversal of his conviction. Ground One of the motion alleges "Prosecutor Misconduct" and has two separate parts. Ground One states that
A) Prosecutor illicited [sic] expert testimony from Detective Mark Hawk, Sargeant [sic] Richard Hall as well as from [sic] Tracey Trant where witnesses did not qualify to render such testimony as they gave concerning the U.S. Currency as allegedly being burned [sic] and where there is no voir dire in the record to support such testimony.
B) Prosecutor intentionally referred to and argued facts outside the record and/or not in evidence. Prosecutor made forceful arguments to jury that burned money was found in possession of defendant which was never proved to be burned at all. Prosecutor improperly elevated [sic] missing evidence into fact which amounted to gross miscarriage of justice.
Defendant's Motion for Postconviction Relief at 3 and back of 3.
Ground Three of Defendant's motion alleges that the "[t]rial court erred as a matter of law" and states that
Trial Court erred in allowing arresting officers to testify regarding the U.S. currency (and alleged debris) as being burned where testimony exceeded bounds of proper lay opinion and crossed over into realm of expert testimony where no voir dire examinations are in the record to support testimony.
Id.
Defendant elaborates on the three grounds alleged in his motion in a lengthy "Memorandum of Law and Brief in Support For Post Conviction [sic] Relief."
4. When considering a motion for postconviction relief, the Court must first apply the procedural bars of Rule 61(i) before considering the merits of the individual claims. To protect the integrity of the procedural rules, ordinarily the Court should not consider the merits of a postconviction claim where a procedural bar exists. Under Rule 61(i)(3), any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the Rules of Superior Court, is thereafter barred unless the movant shows both (1) cause for relief from the procedural default and (2) prejudice from violation of the movant's rights. A showing of cause is not satisfied by showing merely that a claim was not timely raised; a movant must show "some external impediment" which prevented him from raising the claim. To show prejudice, a movant must show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different.
Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)); see also Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Flamer v. State, Del. Supr., 585 A.2d 736, 745 (1990); Winn v. State, Del. Supr., No. 257, 1992, Moore, J. (Feb. 9, 1993) (ORDER); Webster v. State, Del. Supr., No. 65, 1992, Horsey, J. (Apr. 1, 1992) (ORDER).
State v. Gattis, Del. Super., Cr. A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) ( citing Younger v. State, 580 A.2d at 554; Saunders v. State, Del. Supr., No. 185, 1994, Walsh, J. (Jan. 13, 1995) (ORDER); Hicks v. State, Del. Supr., No. 417, 1991, Walsh, J. (May 56, 1992) (ORDER)).
Younger, 580 A.2d at 556 ( citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
Flamer, 585 A.2d at 748.
5. On his original direct appeal to the Supreme Court, Defendant had asserted
(1) that the trial court erred in instructing the jury concerning whether or not it was necessary for the jury to find that he was at the scene of the crime in order for the jury to find that he committed the offense of theft, and (2) that his conviction of the theft felony charge was legally inconsistent with his acquittal on the third degree burglary charge.
Price v. State, Del. Supr, No. 367, 1995, Hartnett, J. (Aug. 19, 1996) (ORDER) at 1-2.
Defendant failed to raise grounds One and Three asserted in his motion for postconviction relief on appeal. Furthermore, Defendant has failed to show (1) "some external impediment" which prevented him from raising the claim and (2) a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different.
6. For the reasons stated, Grounds One and Three of Defendant's pro se Motion for Postconviction Relief are SUMMARILY DISMISSED.
7. Ground Two of the motion alleges six related claims of ineffective of assistance of counsel and Defendant states that
1) Defense counsel failed to move for funds to hire a expert [sic] to have scientific or chemical analysis done on the alleged burned U.S. currency for exculpatory evidence or failed to move to suppress for unfair prejudice. (2) Defense counsel failed to object to technical testimony from Detective Mark Hawk; Sargeant [sic] Richard Hall and Tracey Trent where there was no voir dire in the record to support there testimony which amounted expert [sic] testimony. (3) Defense counsel failed to object to the states [sic] forceful misstatements of evidence. (4) Defense counsel failed to ask for a missing evidence instruction for states [sic] failure to conduct analysis on the U.S. currency. (5) Defense counsel failed to interview witness Donna Gehron for further impeachment of state [sic] witness Stevens. (6) Defense counsel failed to ask for a judgment of acquittal for states [sic] failure to prove every element of the offense charged. Money was not proved to be burned in any way.
Id.
8. The State filed an answering brief addressing only the six claims of ineffective assistance of counsel alleged in Ground Two of Defendant's motion. The State contends that "defense counsel's actions met an objective standard of reasonableness and defendant has failed to substantiate any allegations of actual prejudice. Subsequently, Defendant filed a reply to the State's response reiterating the six claims of ineffective assistance of counsel.
State's Response to Defendant's Rule 61 Motion for Postconviction Relief at 6.
9. To succeed on a claim of ineffective assistance of counsel, a defendant must show both (a) that "counsel's representation fell below and objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." In setting forth a claim of ineffective assistance, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. Review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1998) ( quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1985)).
Dawson v. State, Del. Supr., 673 A.2d 1186, 1196 (1996).
Flamer v. State, Del. Supr., 585 A.2d 753 (1990) ( citing Albury v. State, Del. Supr., 551 A.2d 59).
10. Addressing claims one, two, and four relating to the burned currency, this Court finds that expert testimony relating to the burned currency was not necessary because the issue was not if or how the money was burned, but rather who was the source of the money. Furthermore, the testimony by the State's witnesses referencing the burned currency did not require the special knowledge. skill, experience, or training associated with an expert witness. The State had no duty to conduct any chemical analysis on the money and therefore defense counsel had no duty to seek a missing evidence instruction. Claims one, two, and four of Defendant's motion fail to show how defense counsel's actions fell below an objective reasonable standard.
Addressing claims three and five, this Court finds that Defendant's allegations that misstatements were made at trial is unfounded. This Court also finds that defense counsel's failure to move for judgment of acquittal was reasonable based upon the overwhelming evidence presented by the State. Moreover, the Defendant has failed to show how the outcome of the trial would have been different if defense counsel had so moved.
Claim six alleges that defense counsel failed to interview defense witness Donna Gehron. Defendant contends that Donna Gebron would have testified that she did not give any information about the security system at Lestardo's to Defendant. Assuming Donna Gehron would have testified as Defendant alleges, this Court finds the outcome of the trial would not have been different and Defendant has not shown actual prejudice.
11. This Court finds that Defendant's allegations in Ground Two of the motion do not meet the standard set forth in Strickland in alleging ineffective assistance of counsel. Defendant has not shown how the actions of defense counsel "fell below an objective standard of reasonableness" or that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." Ground Two of Defendant's motion is DENIED.
12. In an August 4, 1999 letter, Defendant made an application for finds to "obtain an expert witness trained in the fields of chemical analysis and/or mutilated currency." Defendant's motion for postconviction relief claiming ineffective assistance of counsel has been summarily dismissed, therefore Defendant's application for funds is DENIED.
Defendant's letter of August 4, 1999.
IT IS SO ORDERED.