Opinion
ID#: 9408012457.
Submitted: July 17, 2000.
Decided: October 27, 2000.
Upon Defendant's Motion for Postconviction Relief — DENIED .
ORDER
On January 22, 1996 a jury convicted Taylor. The conviction was affirmed on March 14, 1997. has filed a motion for postconviction relief under Superior Criminal Rule 61. Taylor challenges his conviction in twelve ways. As discussed below, all but one of those claims are procedurally barred by Superior Court Criminal Rule (i)(3) Only Taylor's ineffective assistance of counsel claim is before the Court properly. Taylor, however, fails both of the tests for that sort of claim.
Taylor v. State, Del. Supr., 690 A.2d 933 (1997).
Super. Ct. Civ. R. 61(i)(3): 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.
Strickland v. Washington, 466 U.S. 668 (1984); Flamer v. State, Del. Supr., 585 A.2d 736 (1990).
I.
The sordid details of Defendant's crimes are provided in Taylor v. State. At this point, what Taylor did is beside the point. The relevant factual inquiry begins after Taylor's arrest on August 18, 1994. It appears that Taylor, on advice of counsel, waived a preliminary hearing on August 24, 1994. He was indicted on September 12, 1994. While the record reflects substantial pretrial litigation in the Superior Court, including several motions for reductions of bail, a case review and other pretrial hearings, the docket and file do not show an arraignment. It is entirely possible that Defendant was arraigned during a pretrial appearance. Rather than ordering transcripts from all those proceedings, the Court simply will assume that Taylor's allegation is true and that he was not arraigned.Taylor's trial began on October 6, 1995. It ended in a mistrial after the jury deadlocked. As mentioned above, Defendant was convicted by a second jury after trial on January 22, 1996.
After his conviction was affirmed, Defendant filed a mandamus action. He sought records from the Department of Correction to support his potential claims for postconviction relief. In a written decision, the Court refused to issue a Writ of Mandamus on April 8, 1998.
Taylor originally filed for mandamus in the Delaware Supreme Court. His petition was denied on jurisdictional grounds. Taylor v. State, Del. Supr., 716 A.2d 975 (TABLE).
II.
Postconviction relief proceedings in Delaware are narrow and highly regulated. While the Superior Court has made provision for reconsidering criminal convictions even after those convictions have been appealed and affirmed, Delaware's criminal justice system strongly favors a single appeal at which a convicted defendant exhausts every challenge to the conviction. If Superior Court Criminal Rule 61 provides a way to postconviction relief, it does not provide a mechanism for serial appeals.Rule 61 specifically provides, as noted above, "any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, . . . 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." Furthermore, Rule 61(i)(5) provides:
Super. Ct. Crim. R. 61(i)(3).
Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, . . . is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
The bars to relief under Rule 61 not only apply to issues that were raised during appeal, they also apply to issues that should have been raised on appeal unless the convicted defendant demonstrates "a colorable claim that there was 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."
Gattis, 697 A.2d at 1178 (Defendant alleged that several claims were not raised below or on direct appeal due to ineffective assistance of counsel. The Court stated that, "[u]nder . . . 61(i)(3), such issues are procedurally barred from appellate review unless the defendant successfully demonstrates that counsel was ineffective and that counsel's ineffectiveness prejudiced his rights." Court found that defendant failed to overcome the procedural bar.); Scott at 2 (If issues defendant raised were not raised on direct appeal, "they are of the nature that they should have been." Defendant "must show cause for not raising them and prejudice by their not being raised." No basis found for relief from Rule 61(i)(3)'s bar.).
Super. Ct. Crim. R. 61(i)(5).
In other words, in order to invoke Rule 61(i)(5) and by-pass Rule 61 (i)(3)'s procedural bars, Taylor not only must raise a colorable claim that there was a miscarriage of justice, he also must show that the miscarriage of justice was caused by a constitutional violation. Further, he must demonstrate that the constitutional violation involved not only a mistake, but Taylor also must show that the mistake undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to his conviction. While the thresholds imposed by Rules 61(i)(3), (4) and (5) are not insurmountable, they are substantial and they are enforced.
In order to obtain postconviction relief under Rule 61, a defendant must do more than identify a mistake that happened before or during trial. Once defendant's conviction has been affirmed, the courts only are interested in mistakes that are so substantial they call into question whether defendant is innocent or, at least, whether his conviction was wrong. That is why, for example, Rule 61(i)(5) refers to "a miscarriage of justice" that is "fundamental." The fact, if it is a fact, that a mistake has been made in a pretrial proceeding or at trial does not mean that any subsequent conviction amounts to a "miscarriage of justice." Nor does every mistake necessarily undermine a conviction's foundation.
So, for example, the fact that Taylor never was arraigned has no demonstrated bearing on his guilt or innocence. By the same token, the lack of an arraignment in no way undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to Taylor's conviction. As his prosecution commenced, Taylor's arraignment was potentially important. At this point, its absence merely is a technical defect with no fundamental significance. The legal and factual insignificance of whether Taylor was arraigned has been addressed previously and it is mentioned below.
Taylor v. State, Del. Super., Cr. A. No. 98M-03-094, Silverman, J. (Apr. 8, 1998) (ORDER).
Taylor's exaggerated concern about being arraigned typifies his other claims. He has parsed the record and culled from it an assortment of possible defects, each of which he characterizes in conclusory boilerplate language as amounting to "a constitutional violation that undermined the fundamental legality. . . ." Taylor never establishes that any of the alleged defects in the proceedings fundamentally undermined his conviction. That failure is fatal to Taylor's attempt to invoke Rule 61 (i)(5) and by-pass the Rule's procedural bars.
III.
After Taylor filed his motion for postconviction relief, the Court called for the State's response. The State's June 30, 2000 submission addresses the motion nicely, with only one important exception. The State primarily relies on the affidavit provided by Taylor's trial counsel. And as discussed below, the affidavit is helpful. The State's response, however, does not place enough emphasis on the fact that before he ultimately was convicted, the case against Taylor was presented to a prior jury. As mentioned above, that jury deadlocked. The first trial more than made up for any arraignment. Not only were the charges read in open court and Taylor denied them on the record, the Court explained the charges and Taylor was allowed to explain his not guilty plea. The mistrial also almost conclusively repudiates any claim that Defendant and his trial counsel were in the dark about the State's case by the time of the second trial. Defendant's first trial virtually was a dress rehearsal for the trial that resulted in his conviction. Moreover, having sat through an entire trial together, Taylor cannot claim convincingly that he and his trial counsel did not spend enough time consulting with each other and preparing for his second trial.
Super. Ct. Crim. R. 61(f).
Super. Ct. Crim. R. 61(g)(2).
IV.
Each of the following eleven claims is procedurally defaulted:
• Failure to provide a preliminary hearing;
• Failure to arraign Defendant in open court;
• Improper filing of a superceding indictment;
• Failure to conduct adequate voir dire during jury selection;
• Improperly changing the indicted date of offense;
• Insufficiency of the indictment;
• Improper admission of victim's out-of-court statements;
• Prosecutorial misconduct, including alleged misstatements to the Court, vouching for witnesses, offering other personal opinions. etc.;
• Improper admission of expert's opinion on ultimate fact;
• Misstatements of law during jury instruction and failure to charge on a lesser-included offense; and
• Assorted incorrect evidentiary rulings that amount to "judicial misconduct."
Taylor does not attempt a showing under Rule 61(i)(3). Instead, he tries to avoid Rule 61's procedural bars by characterizing each alleged error as "resulting in a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction." While Taylor repeatedly protests that his rights were violated before and during trial, he nowhere establishes that any of those violations led to his conviction, much less that any of them undermine his conviction's foundation.
Super. Ct. Crim. Rule 61(i)(5).
See discussion supra, section II.
As discussed in the Court's earlier decision on mandamus and as mentioned above, whether Defendant had a preliminary hearing and whether he was arraigned has no bearing on his trial and conviction. That is especially true in light of the fact that Defendant was indicted after he waived preliminary hearing and the trial at which he was convicted was the second one on the indictment. Similarly, whether Defendant was tried on the original or a superceding indictment makes no difference to the fundamental fairness or integrity of his conviction.
Taylor's claim that the Court "failed to conduct a voir dire examination of prospective jurors, as to their ability to be impartial and follow the laws instructed . . ." simply is wrong in fact and in law. Taylor's jury was impaneled in the standard fashion, which includes questioning the prospective jurors as a group and individual jurors as required. Similarly, Taylor's complaints about an alternate juror who did not participate in deliberations also does not undermine his conviction's foundation. Assuming that the State's chief investigating officer sat with the prosecutor during jury selection, and the record does not establish that she did, that mistake was not fundamental.
Taylor's various challenges to the indictment do not undermine the direct and indirect testimony of his victims to the effect that he actually committed each element of the crimes of which he was accused. Moreover, as discussed above, assuming that the indictment failed to put Defendant on notice as to the crimes for which he faced trial, which it did, that failure was cured for Rule 61 purposes by the original trial.
Concerning Taylor's insufficiency of evidence claims, his characterizations of the victims' testimony notwithstanding, the victims provided sufficient and graphic descriptions of what Taylor did to them. To be sure, the trial turned largely on the victims' credibility. Nevertheless, the victims' admissible out-of-court statements and their testimony was highly incriminating and credible. And even if, as Taylor insists, he did not use force on the boys, they were of tender years. Force, the threat of it, or the display of deadly weapons is not an element of the crimes that Taylor committed. Under 11 Del. C. § 775 (a)(4), as it existed when the crime occurred:
A person is guilty of unlawful sexual intercourse in the first degree when the person intentionally engages in sexual intercourse with another person and . . . [t]he victim is less than 16 years of age and the defendant is not the victim's voluntary social companion on the occasion of the crime.
Moreover, under 11 Del. C. § 761 (h):
a victim who is less than 16 years of age . . . is not the voluntary social companion of a defendant in whose custody or care the victim is placed. A victim who is less than 12 years of age is not the voluntary social companion of a defendant 18 years or older.
Taylor's argument concerning the opinions of the expert medical witness misstates the rules of evidence and it mischaracterizes the expert's testimony. The doctor offered opinions based on circumstantial evidence available to him and his opinions were tested through vigorous cross-examination. The doctor did not vouch for the credibility of any witness, except to the extent that his opinion tended to corroborate that testimony. Again, even if the expert's testimony had been admitted improperly, which it was not, its final impact was not so great as to render Taylor's trial a fundamental miscarriage of justice.
Finally with respect to the eleven procedurally defaulted grounds for relief, Taylor's claims of judicial and prosecutorial misconduct, at worst, involve overreaching by the prosecutor and erroneous rulings by the Court. In at least one instance, Taylor complains about an evidentiary ruling made at his original trial. Obviously, that ruling has no bearing on the trial at which he was convicted. In another instance, Taylor recites the Court's ruling on his trial counsel's motion for directed verdict. Because the Court, as the law requires, then considered the evidence against Taylor in the light most favorable to the State, Taylor "claims that [the Court] formed a negative opinion of [Taylor]." Taylor similarly mischaracterizes and misconstrues other rulings.
On appeal, Taylor only focused on potentially inflammatory outbursts by a witness. He did not raise any of the claims discussed above. Those claims are procedurally defaulted. Moreover, Taylor's claims do not involve constitutional violations of his rights, much less a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the conviction, which resulted in a miscarriage of justice. Perhaps most importantly, with the exception of the possibility that he was not arraigned, there was no error in the proceedings leading to Taylor's conviction.
V.
By now, the Court has suggested the several reasons why Taylor's ineffective assistance of counsel claim is unimpressive. Obviously, in a sense it always can be argued by a convicted defendant that trial counsel was ineffective. A guilty verdict, by definition, proves some ineffectiveness. But that argument is illogical because it implies, but does not establish, that better counsel would have obtained an acquittal. That specious argument also invites the impossible comparison between a defendant's trial counsel and theoretical perfection. A convicted defendant cannot establish ineffective assistance of counsel simply by claiming that trial counsel was less than perfect.
It is firmly settled that Taylor must meet a two-part test in order to establish that his trial counsel was ineffective. First, Taylor must establish that his trial counsel's effort fell below the level expected of typical trial attorneys practicing before this Court. Second, Taylor must demonstrate that his trial counsel's failure to meet the basic standards probably caused Taylor's conviction, which would not have occurred had Taylor's trial counsel's efforts met the appropriate standard.
Strickland, 466 U.S. at 694; Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988) (Defendant must show that "'counsel's representation fell below an objective standard of reasonableness'" and that there was "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have different.'") (citing Strickland); Somerville v. State, Del. Supr., 703 A.2d 629, 631 (1997) (To prevail on an ineffective counsel claim, defendant must meet Strickland's test.). Moreover, Albury states that, "[w]hen an appellate court examines the representation of counsel pursuant to the first prong of the Strickland test, that review is subject to a strong presumption that counsel's conduct was professionally reasonable." (citing Strickland at 689). See also Dawson v. State, Del. Supr., 673 A.2d 1186, 1190 (1996) (Counsel's efforts . . . enjoy a strong presumption of reasonableness." (citing Flamer, 585 A.2d at 753-54.)).
Other than making a passing reference to American Bar Association standards, Taylor makes no effort to establish the local standards by which his trial counsel's effectiveness should be measured. Taylor simply recapitulates his alleged assortment of mistakes and oversights by his trial counsel. Generally, Taylor's allegations include pre-trial failure to investigate and consult with Taylor, failure to conduct voir dire of jurors, failure to object to inadmissable evidence, improper prosecutorial comments and to incorrect jury instructions. Finally, Taylor alleges that trial counsel failed to make an adequate post-trial motion for a judgment of acquittal and trial counsel failed to raise these points during Taylor's direct appeal.
The Court already has considered Taylor's claims of inadequate preparation and consultation before trial. Not only has Taylor failed to demonstrate that his trial counsel's pre-trial efforts fell below what was reasonably expected, it appears that trial counsel was unusually well-prepared by the time of the trial that resulted in Taylor's conviction. The Court's finding in that regard is buttressed not only by the fact of the original mistrial, it is supported by trial counsel's post-trial affidavit. Similarly, as presented above, the Court has considered Taylor's claims concerning jury selection. Those claims are not factually correct. And again, Taylor also has not established trial counsel's ineffectiveness under the Strickland tests.
Taylor's claims concerning his trial counsel's trial tactics, including alleged failures to object, amount to nothing more than second-guessing. In several instances, Taylor seriously mischaracterizes the evidence. For example, Defendant alleges in his motion: "It was corroborated by several witnesses that Mr. Aiken was always at home when the alleged crime supposedly occurred." From that premise, Taylor argues that Aiken should have been called as a witness. At trial, however, Defendant admitted on cross-examination that there were times when he was alone with the victims in their house and there were times when he was alone with the children in his room. In other instances, Taylor claims that trial counsel failed to subpoena and call potentially favorable defense witnesses. Those claims, however, are unsupported. And with respect to trial counsel's decisions not to object to certain evidence, trial counsel's tactical decisions were correct. Moreover. Taylor also has not met either of Strickland's tests.
In summary with respect to Taylor's ineffective assistance of counsel claims, trial counsel was unusually well-prepared for trial and he was an active participant in the trial. The defense strategy, casting doubt on the victims' credibility, was thoughtful and appropriate. Trial counsel's approach was consistent with the defense strategy. At the second trial, the State's case seemed stronger, while Taylor's testimony was more argumentative and less persuasive. It has not been established that trial counsel's efforts fell below and objective standard of reasonableness, much less that trial counsel's shortcoming led to Taylor's conviction.
VI.
For the foregoing reasons, Defendant's March 13, 2000 Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.