Opinion
Def. ID# 9904016181.
Submitted: August 15, 2004.
November 22, 2004.
Jernel Ross, Delaware Correctional Center, Smyrna, DE.
Dear Mr. Ross:
Pending before the Court is the motion for postconviction relief which defendant Jernel M. Ross ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("R. 61"). This is my decision denying the motion.
Defendant and the victim Brandi Lee ("the victim") had been involved in a tumultuous relationship. Defendant was in an inpatient rehabilitation program when he called the victim on the morning of April 21, 1999, and discovered a male was at the victim's house. He checked himself out of the program, which was located in New Castle County, scrounged rides on buses and cars, acquired a gun, and made his way to the victim's home in Sussex County. He exhibited the gun to the victim and the male in the house. All three were in the house for a while. Meanwhile, another male, who was the father of the victim's small daughter, called the home. The victim told this second male that defendant was threatening to kill her and the first male. The second male came to the home to retrieve his small daughter. The victim told defendant she would be walking out to the car with the second male. As the victim was tying her shoes, defendant spoke to her, saying something along the lines of she was not going anywhere and pointed the gun at her. She took off running, heading out the door, and he started firing at her. He fired at least once, maybe twice, in the house, hitting her, and followed her out the door, firing at least three more shots at her. The gunfire hit the victim several times, and she suffered serious, permanent injuries.
The testimony of the victim, two male witnesses and even the defendant regarding the shooting corresponded. Self-defense was not an issue. The defense was that defendant was suffering extreme emotional distress and/or acted pursuant to an irresistible impulse. His expert witness was Mandell J. Much, Ph.D., DABPS, a licensed psychologist.
In rebuttal to defendant's defense that he did not intend to commit the crimes, the State presented evidence of prior bad acts of defendant against the victim which showed he previously had threatened her and had physically harmed her.
The jury did not accept the extreme emotional distress defense. It found defendant guilty of the following charges: attempted murder in the first degree; possession of a firearm during the commission of the felony of attempted murder in the first degree; reckless endangering in the first degree; possession of a firearm during the commission of the crime of reckless endangering; felony theft; and terroristic threatening with regard to Brandi Lee.
The jury found defendant not guilty of charges of reckless endangering in the first degree, possession of a firearm during the commission of a felony, and terroristic threatening with regard to Stephen Major.
Defendant appealed this judgment. The Supreme Court affirmed the decision on appeal. Ross v. State, Del. Supr., No. 232, 2000, Walsh, J. (Feb. 6, 2001). The mandate was dated February 22, 2001.
On February 4, 2004, defendant filed the pending Rule 61 motion, which I examine below. However, I set forth only those claims which are clearly stated. It is defendant's duty to set forth a clear argument which the Court can consider. If he did not state a claim clearly, then the Court does not address the claim in this decision.
The Court required trial counsel to respond to defendant's claims, which are convoluted and voluminous. It is clear from his response that he did not understand most of defendant's claims. The Court can decide the matter without trial counsel's responses; thus, trial counsel's failure to respond to each contention is insignificant.
Before reviewing the merits of the claim, I examine whether the claims are procedurally barred. They are not time-barred because defendant filed the motion within three years of the date of the Supreme Court mandate. Super. Ct. Crim. R. 61(i)(1).
All the remaining claims, except for the ineffective assistance of counsel claims, are barred because defendant did not raise them in the proceedings leading to the conviction. Super. Ct. Crim. R. 61(i)(3). Defendant argues that his trial counsel was ineffective for failing to raise the claims at the trial and/or on appeal, and consequently, that ineffectiveness provides cause for relief from this procedural default. No procedural bar exists with regard to the ineffective assistance of counsel claims since the first time they can be presented is within a postconviction relief motion. Thus, I examine all of the claims within the context of ineffective assistance of counsel.
In Super. Ct. Crim. R. 61(3), it is provided:
Procedural default. 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.
Where a defendant makes a claim of ineffective assistance of counsel, he must show that trial counsel's errors were so grievous as to fall below an objective standard of reasonableness and he must show to a reasonable degree of probability that but for counsel's unprofessional errors, actual prejudice resulted; i.e., that the outcome of the trial would have been different.Strickland v. Washington 466 U.S. 668 (1984). In addition, the allegations must be concrete; vague and conclusory allegations fail. Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Although I will review the various allegations below, my ultimate conclusion is they all fail because defendant has not shown, with regard to any of the claims, that the outcome of the trial would have been different. The case against defendant was overwhelming. Multiple eyewitnesses testified, including a victim who, remarkably, lived. The only hope defendant had for receiving lesser convictions was to convince the jury he suffered extreme emotional distress when he repeatedly shot the victim. He found an expert who testified to such, but the jury did not accept this testimony. Defendant, with Monday-morning quarter back perspective, raises a plethora of issues. Rather than establishing how the outcome of the trial would have been different if the alleged errors had not occurred, he conclusively asserts the occurrences of the errors rendered his trial unfair. If the alleged errors had not occurred, defendant might have had an absolutely perfect trial. However, defendant did not have the right to a perfect trial; he had the right to a fair trial. This was a well-tried case, and trial counsel thoroughly and effectively represented defendant. Because defendant has not met his burden in this postconviction proceeding, I deny all of his Rule 61 claims.
1) Issues regarding evidence admitted pursuant to Delaware Rules of Evidence, Rule 404(b)
In R. 404(b), it is provided:
Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Defendant and the victim, as noted earlier, had a tumultuous relationship which was peppered with acts of violence. The State filed a motion in limine to determine the admissibility, pursuant to Delaware Rules of Evidence, Rule 404(b) ("R. 404(b)"), of prior bad acts of defendant. These prior bad acts, which occurred on four different occasions, consisted of physical abuse of the victim and threats to harm her. The events, which took place on separate dates within three years preceding the shooting, resulted in defendant's arrests on various charges. The State sought to introduce these episodes as evidence of proof of motive, intent and absence of mistake to counter the defense. Specifically, the State contended the acts showed defendant's "state of mind, the fact that he was violent with her in the past, he indicated he wouldn't tolerate other men in her life. She was his property. If he couldn't have her, no one could." Transcript of Proceedings from February 22, 2000, at A-55.
Trial counsel objected to the admission of these episodes on several grounds. Transcript of Proceedings from February 22, 2000, at A-59-60.
The investigating police officers and the victim testified about these episodes. The victim did not recall all the details of the episodes. The police officers employed their police reports to aid them in their testimony. The testimony of the victim and the investigating officers established that defendant previously had physically assaulted the victim and threatened to harm her.
Defendant did not testify at this hearing. He contends that had he testified, he would have contradicted the police officers' testimony that he admitted to several of the crimes.
The Court ruled that, based on Gattis v. State, 637 A.2d 808 (Del. 1994) and State v. Magner, Del. Super., Def. ID# 9509007746, Alford, J. (Feb. 18, 1997), the State could not introduce this evidence in its case in chief; instead, it could introduce it only in rebuttal if defendant testified concerning accident or lack of intent. The Court also stated as follows:
I would ask the State, in whatever context, we are not to elicit testimony of an arrest and the arrest is neither here nor there. It is not a bad act. I also ask the State to instruct its witnesses not to refer to sales of drugs. That would be unfairly prejudicial.
Transcript of Proceedings from February 22, 2000, at A-64.
The hearing on the motion in limine took place on February 22, 2000. As of that hearing, the defendant was aware of the testimony of the police officers and the existence of the police reports. The defendant ultimately testified that he did not intend to kill or shoot the victim. On February 29, 2000, the State presented to the jury the testimony of the police officers and the victim regarding the prior bad acts.
Defendant asserts a multitude of arguments in support of his Rule 61 motion from the R. 404(b) situation. I examine these arguments below.
a) The first argument is that trial counsel did not appeal the decision of the Court to permit the evidence of prior bad acts over trial counsel's objections. Defendant cannot show the outcome of the proceedings would have been different. The trial court followed legal precedent in allowing the evidence into trial, and had the Supreme Court addressed the issue, it would have upheld the trial court based on Gattis v. State, 637 A.2d 808 (Del. 1994).
b) Defendant's next argument is that trial counsel was ineffective because defendant "was never asked or given an opportunity to testify" at the motion in limine hearing. He argues that his testimony would have contradicted the police officers' testimony that he admitted committing some of the prior bad acts. He also would have testified the charges were dropped and that would have established he did not commit the crimes. His conclusion is that the Court, based on defendant's testimony, would have concluded that the prior bad acts were not proven by clear and conclusive evidence and would therefore, not have admitted the prior bad acts into evidence.
Defendant admitted to pleading guilty to offensive touching with regard to the episode on October 22, 1998. Transcript of Proceedings from February 23, 2000, at B-124. Furthermore, defendant admitted during cross-examination to hitting the victim during the February, 1997, episode. Transcript of Proceedings from February 23, 2000, at B-122.
The prior bad acts were proven by eyewitness testimony, which constituted plain, clear and conclusive evidence as required byDiaz v. State, 508 A.2d 861 (Del. 1986). Defendant's testimony, which would have disputed the officers' testimony in small areas, would have been irrelevant to the Court in making its admissibility determination. There was no error in not calling defendant to testify at the motion in limine. Even if he had been called and had testified as he claims he would have, the outcome would have been the same; the Court would have allowed in the evidence. Defendant has not shown that the outcome would have been different even if the defendant had testified regarding the admissions and the dropping of the charges.
c) Defendant argues that the State failed to turn overBrady and Jencks material. He claims that the notes of the officers who testified in connection with the R. 404(b) matters constituted Brady material and/or Jencks material. He argues that trial counsel was ineffective for not objecting to this evidence; the surprise of it prejudiced him and deprived him of the opportunity to rebut that testimony.
Brady v. Maryland, 373 U.S. 83 (1963).
Jencks v. United States, 353 U.S. 657 (1957).
I will assume, without deciding, that the information constituted Brady or Jencks material and was not produced before trial. However, what defendant overlooks is that the information which defendant claims was a surprise was disclosed during the motion in limine hearing on the admissibility of this evidence on February 22, 2000; it was another week (on February 29, 2000) before that testimony was presented to the jury. Defendant cannot claim surprise because by the time the evidence was presented to the jury, defendant was well aware of the information. He cannot show, nor does he even attempt to show, how the outcome of the trial would have been different had trial counsel objected to the use of these notes. This argument fails.
d) Defendant has submitted an affidavit of Brandi Lee which he references in connection with his prior bad acts argument. The submission is not an original document and the Court does not consider it. Even if the Court considered it, its content is insignificant. The affidavit is dated July 14, 2000, after the trial. Therein, the victim explains that the charges against defendant for committing prior bad acts were dismissed, and she complains she was not to allowed to testify the charges were dropped. That statement is not completely true because defendant admitted to pleading guilty to offensive touching with regard to the episode on October 22, 1998. Transcript of Proceedings from February 23, 2000, at B-124. The dropping of the charges was irrelevant to whether the crimes had occurred. The victim also asserts the prosecutor instructed her not to talk about defendant's drug use. That command resulted from this Court's instruction to so inform her witnesses. The victim also asserts she was able to only answer the questions asked. There is nothing wrong with that. The assertions in the affidavit are insignificant and do not give rise to any claims for ineffective assistance of counsel. To the extent defendant bases any claims of ineffective assistance of counsel on the affidavit, the claims fail.
2) Victim's alleged perjury
Somehow, defendant's argument involving the victim's affidavit evolves to an assertion that the victim committed perjury. Parts of his argument regarding the perjury are unintelligible and I ignore those parts.
Defendant argues trial counsel was ineffective for "allowing the . . . [victim] to testify untruthful throughout the entire trial." There is no support for that broad, conclusory assertion.
The only argument concerning the victim's alleged perjury which is decipherable is his contention that the victim committed perjury when she testified that the defendant did not live with her after February, 1999. He argues that because of that lie, he had to bring in his probation officer to establish that the victim's residence was an approved residence for him during March, 1999. He further argues that having to bring in the probation officer would have caused the jury to look unfavorably upon him. Defendant argues trial counsel was ineffective for not requesting a cautionary instruction be made for the jury not to consider the probation officers' testimony for any reason other than to establish defendant's address; i.e., not to consider him to be a bad person. He also argues the Court should have issued the instruction sua sponte, and trial counsel was ineffective for not objecting to the lack of such.
Defendant assumes that it was established the victim was lying about the address issue. That is not an assumption which the Court makes.
There was no entitlement to such an instruction. In any case, defendant merely asserts he was not given a fair trial and the jury would have considered him a bad person because he was a sentenced individual. Defendant fails to establish how the issuance of a limiting instruction would have resulted in verdicts other than the ones reached; consequently, this argument fails.
3) Prosecutorial misconduct
Defendant raises a number of ineffective assistance of counsel claims with regard to several episodes of what he claims to have been prosecutorial misconduct. He also asserts that the prosecutorial misconduct violated his constitutional rights and consequently, the provisions of R. 61(i)(5) provide an exception to the procedural bar of R. 61(i)(3). As explained inState v. McKamey, Del. Super., Def. ID# 9406017814, Ableman, J. (Nov. 26, 2003) at 15, aff'd, Del. Supr., No. 613, 2003, Holland, J. (April 14, 2004):
In R. 61(i)(5), it is provided:
Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to 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.
The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal. This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal. [Footnotes and citations omitted.]
Defendant has not stated a claim which fits within this exception. Defendant's claim regarding prosecutorial misconduct survives only through the ineffective assistance of counsel claims.
a) As noted earlier, the Court instructed the prosecutor not to elicit testimony of defendant's arrests. Defendant maintains that several state witnesses "violated the trial court ruling out of bad faith by testifying to arrest when they were already barred" and he contends the prosecutor elicited that testimony. He argues that trial counsel was ineffective for not asking for a mistrial, for not objecting to the statements, for not raising the issues on appeal, and for not contending that the trial court abused its discretion.
First, I find that the arrest references were spontaneous, not elicited by the prosecutor. Second, I note that when the arrests were mentioned, this Court issued curative instructions, and the jury is presumed to have followed these instructions. In light of the issuance of the instructions, defendant cannot show that but for the failures of trial counsel, assuming they even existed, the outcome of the trial would have been other than what it was.
b) Defendant argues the prosecutor committed prosecutorial misconduct when she questioned defendant's expert, during cross-examination, on whether defendant could have been diagnosed with anti-social personality disorder. Defendant maintains trial counsel was ineffective for not objecting to this questioning and for not raising the issue on appeal.
Defendant's underlying premise, that the cross-examination was improper, is wrong. Thus, the rest of his arguments based on this premise fail.
4) Arguments concerning Dr. Much's testimony
One of defendant's arguments concerns the lack of supporting documentation for his expert's testimony. Dr. Much did not review any high school records of defendant which he contends would have supported the doctor's testimony that defendant's IQ had dropped since high school. He also argues had Dr. Much had information regarding defendant's childhood, his conclusion that defendant did not suffer from anti-social personality disorder would have been bolstered. Defendant contends trial counsel was ineffective by not talking to family members, friends or teachers from high school, and acquiring school records. According to defendant, such evidence would have strengthened Dr. Much's testimony and would not have allowed for him to be discredited on cross-examination.
Trial counsel explains that Dr. Much did not ask for such information, and had he done so, he would have provided it. Dr. Much was the expert. It was his responsibility to inform trial counsel if he needed additional information to reach a diagnosis. Since he reached a diagnosis without the information, there was no obligation on trial counsel to produce the information.
This argument stating there was ineffective assistance of counsel is clearly a Monday-morning quarterback argument. Trial counsel was effective. Furthermore, defendant has not shown that had trial counsel produced the information, then the outcome would have been otherwise. Dr. Much testified that defendant's IQ had dropped and defendant did not have an anti-social personality disorder, and he based his conclusions on facts which were in the record. Again, defendant has not shown a different outcome would have occurred had trial counsel produced the cumulative documentation.
Defendant argues trial counsel was ineffective for not correcting the misstatement in Dr. Much's report that defendant's grandparents raised him. Defendant does not show how this discrepancy affected the outcome of the case.
Defendant argues trial counsel was ineffective for not correcting the misstatement in Dr. Much's report that defendant used crack. Defendant argues that what he used was powder cocaine. Again, defendant does not show how the outcome would have been different had this fact been corrected.
Defendant argues trial counsel was ineffective because Dr. Much labeled him "crazy" and said he would have problems with following the prison rules. The diagnosis was based on Dr. Much's professional assessment of defendant. It has nothing to do with ineffective assistance of counsel.
5) Miscellaneous arguments
Defendant argues trial counsel did not effectively cross-examine the victim. Trial counsel did cross-examine her and attempt to discredit her. Defendant argues trial counsel was ineffective for not presenting evidence that the victim had provoked the defendant in the past and played "head games" with him. This would not have been an effective strategy for defendant to have employed, even if allowed in. Defendant has failed to establish how the outcome would have been different, and this claim fails.
Defendant throws in an assertion that his jury was all white, he was black and the victim was white. He does not develop this argument, and it fails.
For the foregoing reasons, the motion for postconviction relief is denied. Because this Court has been able to decide the pending motion on the written submissions, no need for a hearing exists and the request for a hearing is denied.
IT IS SO ORDERED.