Opinion
Cr.A. No. IK91-06-0816, 0817-R1.
January 13, 2000.
John Williams, Esq., Deputy Attorney General, Dover, Delaware 19901, for the State of Delaware.
Keith Warren, pro se, Jarratt, Virginia.
COMMISSIONER'S REPORT AND RECOMMENDATION Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Following a ten day jury trial the defendant, Keith Warren ("Warren") was found guilty of Murder in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony. He was sentenced by President Judge Ridgely to life in prison without probation or parole on May 1, 1992. On appeal to the Delaware Supreme Court, Warren raised three claims: 1) failure of the Court to give a Deberry lost evidence instruction; 2) improper admission of evidence in violation of D.R.E. 404(b); and 3) failing to dismiss the indictment because a baseball bat is not a deadly weapon. The Supreme Court affirmed Warren's convictions and thereafter issued its mandate on April 27, 1993.
Warren v. State, Del. Supr., No. 218, 1992, Horsey, J. (April 8, 1993) (ORDER).
On May 27, 1994 Warren filed a motion for a new trial and for appointment of counsel. David Jones, Esquire, was appointed by the Court to represent Warren in his Motion for a New Trial. In the Amended Motion for a New Trial, Warren alleged that a prosecution witness, George Randy Goodlett ("Goodlett"), stated that his trial testimony was false. The motion was denied by this Court and no appeal was taken. Over four and a half years after the issuance of the Supreme Court's mandate, Warren filed the pending petition for postconviction relief pursuant to Superior Court Criminal Rule 61. Warren raises a number of alleged claims for relief including ineffective assistance of counsel.
State v. Warren, Del. Super., IK91-06-0816, Ridgely, P. J. (May 31, 1995) (ORDER). adopting Commissioner's Report Recommendation, A.M. Maybee, C. (May 12, 1995).
I. FACTS
After reading the entire trial transcript, and numerous witnesses statements, and listening to several witnesses taped statements, the following facts are apparent. Late Friday evening, May 24, 1991, and into the early morning hours of May 25, 1991, the defendant, and a number of his friends, decided to go to the Villa Bar and
Warren and his friends who went to the Villa are African Americans. The victim Gilbert Mello was Caucasian. The State throughout the trial argued that the murder was committed because of racial tension.
Restaurant with the express purpose of "stirring things up," "making trouble" and to "F__k up white people." When the six or more car loads of teenagers, including Warren, arrived at the Villa, a fight was already in progress between two white males, one of whom was attempting to defend himself against attack by holding up a carpet knife. As the black youths gathered around, a van drove up and the white man with the carpet knife jumped in and sped off. At this point, Warren walked up to the other white male and said "nice going" and proceeded to sucker punch him. A melee then broke out. Several other white males who were leaving the Villa at the time were attacked by the youths.
Throughout the trial there was a vast difference in the testimony of the defendant's friends and that of others interviewed soon after the crime. I have carefully reviewed the entire record and find the initial statements to be more credible. In this instance I discredit the testimony at trial that the group was going to a "teen dance" at the Villa.
Soon after the fight broke out Gilbert Mello ("Mello"), the victim, and his friend Michael Goff, were leaving the Hardees Restaurant across the street and noticed the fighting. The two proceeded back to the Villa, where they had been earlier in the evening, to try and break up the fight. Unfortunately for his efforts Mello was brutally struck down, with a blow to the head from an aluminum baseball bat, as he ran for shelter in the Villa. The one violent blow which hit Mello caused his death a few days later. As Mello fell to the ground, one of Warren's companions shouted, "You killed him." Everyone fled. Fortunately, two bystanders followed the fleeing cars and were able to give the police the license plate numbers.
For a more detailed recounting of the facts, see the Supreme Court's Opinion in Warren v. Stare, supra, at 1-2 and State v. Warren, supra, Commissioner's Report and Recommendation at 2-7.
II. WARREN'S CONTENTIONS
In his motion and attached memorandum of law, Warren lists the following seventeen grounds for relief:
1. That he was never indicted by the Grand Jury. 2. That the indictment was "fatally deficient." 3. That there was insufficient evidence. 4. That his arrest was illegal as no probable cause existed. 5. That witnesses perjured themselves. 6. That Federal Rule of Evidence 404(b) was violated. 7. That there was an impermissibly suggestive identification procedure. 8. Prosecutorial misconduct by obtaining testimony thru coercion and intimidation. 9. Judicial misconduct. 10. Failure of counsel to move for a judgment of acquittal as to the First Degree Murder charge. 11. Failure of counsel to file a suppression motion. 12. Failure of counsel to request an expert witness. 13. Failure of counsel to effectively cross-examine witnesses. 14. Failure of counsel to cross examine the Medical Examiner. 15. Police misconduct. 16. Failure of counsel to give defendant medical records. 17. Overarching ineffective assistance of counsel.
III. PROCEDURAL CONSIDERATIONS
Under Delaware Law, the Court must first determine whether Warren has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61 postconviction claims for relief must be brought within three years of the conviction becoming final. Warren's motion was not filed in a timely fashion, thus the bar of Rule 61(i)(1) applies to the motion. The bar of Rule 61(i)(1) calls for dismissal of Warren's motion unless he asserts a retroactively applicable right that is newly recognized after the judgment of conviction. This bar to relief is inapplicable to a jurisdictional challenge or to a colorable claim or miscarriage of justice stemming from a constitutional violation that "under mines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction." Warren has not alleged any newly recognized right in his petition.It is clear that Warren's petition is therefore time barred under the three year limitation imposed by Rule 61(i)(1) and must be dismissed unless his claims fall within the fundamental fairness exception of Rule 61(i)(5). The fundamental fairness exception is a very narrow exception and is only applicable in certain limited circumstances. The defendant bears the burden of proving the existence of a constitutional violation under the Rule.
State v. Brokenbrough, supra.
Bailey v. State, 588 A.2d @ 1130; Smith v. State, Del. Supr., No. 322, 1992, Moore, J., (December 15, 1992) (ORDER); Younger v. State, Del. Supr., 580 A.2d 552, 555 (1990).
Bailey v. State, 588 A.2d at 1130; see also Younger v. State, 580 A.2d at 555.
In his motion, Warren alleges that the Court lacked jurisdiction and that several constitutional violations occurred which caused a miscarriage of justice. However, Warren is mistaken in his assumption that merely asserting a claim of either lack of jurisdiction or a constitutional violation is sufficient to warrant relief under Rule (i)(5). The claim must also have merit. Following a careful review of each of Warren's claims, it is clear that he has failed to meet his burden to establish a colorable claim that there was a miscarriage of justice because of a constitutional violation. To assist the Court in its review, I will briefly discuss the lack of merit to each of Warren's claims below.
Mills v. State, supra, at 2.
IV. DISCUSSION
Warren's first ground for postconviction relief is a claim of lack of subject matter jurisdiction. Warren alleges he was never indicted by the Grand Jury. This allegation is factually incorrect because Warren was indicted by the Kent County Grand Jury on June 3, 1991 in K-91-06-0816 and K-91-06-0817. In fact, a copy of the signed Grand Jury indictment is attached as Exhibit A(2) to Warren's Appendix submitted in conjunction with this postconviction relief motion. Thus, the allegation of ground one is factually incorrect and legally meritless.
In ground two for postconviction relief, Warren alleges that his Grand Jury indictment was deficient because of some alleged difference in the numbering of the charges. This ground for relief is factually and legally meritless, because there is no defect in Warren's Grand Jury indictment and any possible discrepancy in the numbering of the charges does not affect the subject matter jurisdiction of the Superior Court. This ground for relief is clearly meritless.
In his third ground for relief, Warren claims that there was insufficient evidence to convict him. Warren argues that there was no physical evidence presented in his case. However, physical evidence is not required for a conviction. Warren could be and was in fact convicted on the basis of circumstantial evidence and eyewitness testimony. Warren also claims that the element of intent for the first degree murder charge was not proven. However, a jury could reasonably infer that when Warren violently hit Gilbert Mello in the head with a baseball bat on May 25, 1991, Warren was acting intentionally. This ground for relief is meritless.
Compare Travis v. State, Del. Supr., No. 199, 1993, Moore, J. (December 22, 1993) (ORDER) (victim in first degree murder prosecution beaten on head with a baseball bat).
Ground four argues that Warren's arrest was illegal because there was no probable cause and that the Affidavit of Probable Cause prepared by the police was false. Even assuming arguendo that Warren's allegations are correct, when Warren was indicted by the Kent County Grand Jury on June 3, 1991, a separate probable cause determination was made and, thereafter, the Grand Jury indictment was the basis for Warren's ultimate 1992 prosecution in the Kent County Superior Court. In any event, probable cause was established in the three page May 27, 1997 Affidavit of Probable Cause attached as Exhibit B-6 to Warren's Appendix to this postconviction relief motion. The thirty-nine separate allegations contained in the police Probable Cause Affidavit fully support the subsequent judicial finding that probable cause existed for the arrest of Warren on the homicide and deadly weapon charges. Warren has offered no convincing evidence that any of the thirty-nine specific allegations of the May 27, 1991 Affidavit of Probable Cause in his case are, in fact, false. This ground for relief is meritless.
Next, in his fifth ground for relief, Warren alleges perjury by various prosecution witnesses at his 1992 trial. These allegations are merely conclusory and unsupported by any substantial evidence. For the most part, Warren's allegations amount only to attacks on witness credibility because of minor inconsistencies in testimony and the fact that some of the trial witnesses were either prison inmates or allegedly intoxicated at the time of the murder. Warren also fails to identify which witnesses allegedly committed perjury. It was the duty of the jury to resolve any possible issues of witness credibility and conflicting testimony. Warren's jury in its discretion was free to accept the testimony of one witness, while rejecting conflicting testimony from other witnesses. A jury verdict will not be set aside merely because it is based upon conflicting evidence. Furthermore, the possible intoxication of some witnesses normally affects the weight of such witness testimony, not its admissibility. Additionally, any allegations concerning the alleged perjury of George Goodlett has already been decided by this Court in Warren's earlier motion for a new trial. Therefore, that ground for relief is barred under Superior Court Criminal Rule 61(i)(4). This ground for relief is also meritless.
See Knight v. State, Del. Supr., 690 A.2d 929, 932 (1996) (trier of fact sole judge of witness credibility); Quarles v. State, Del. Supr., 696 A.2d 1334, 1340 (1997); Robertson v. State, Del. Supr., 630 A.2d 1084, 1095 (1993); Chao v. State, Del. Supr., 604 A.2d 1351, 1363 (1992); Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982); Tyre v. State, Del. Supr., 412 A.2d 326, 330 (1980).
See Zutz v. State, Del. Supr., 160 A.2d 727, 729 (1960).
The sixth ground for relief asserts a violation of Federal Rule of Evidence 404(b). Warren presumably is in fact alleging a violation of Delaware Rule of Evidence 404(b). This claim is however, also barred by Rule 61(i)(4) as it was previously denied by the Delaware Supreme Court in Warren's direct appeal. Warren has not made any allegations that there is any newly recognized case law on this point that would call for reconsideration of the Supreme Court's earlier denial. Therefore, this ground is procedurally barred and meritless.
Warren v. State, supra, at 3-4.
Ground seven of Warren's postconviction relief claim is simply a conclusory allegation that his in court identification was impermissibly suggestive. Warren does not specify how the in court identification was impermissibly suggestive, nor does he explain how his in court identification was anything other than cumulative evidence in this case. Clearly Warren has failed to meet the burden of proof as to this claim and as such it is utterly meritless.
Both ground eight and nine of Warren's postconviction relief claims alleged prosecutorial and judicial misconduct respectively at the 1992 Superior Court trial proceeding. Neither claim amounts to anything other than a conclusory allegation with no specific evidence offered by Warren to support either claim. Both claims are clearly factually and legally meritless.
In a similar vein, Warren's fifteenth claim for relief is also a conclusory allegation, this time of police misconduct. Warren alleges that the police altered unspecified documents including the Affidavit of Probable Cause submitted to the Justice of the Peace. Warren does not state what specific documents, other than the Affidavit of Probable Cause, the police allegedly altered. Clearly this claim lacks any factual specificity and is meritless.
Warren's seven remaining grounds for postconviction relief (Grounds 10-14, and 16-17) are all allegations of ineffective assistance of legal counsel. As noted, even these seven claims of ineffective assistance of legal counsel are barred by Del. Super. Ct. Cr. R. 61(i)(1) because Warren did not raise these ineffective assistance claims within three years of the issuance of the Delaware Supreme Court Mandate on April 27, 1993.
Jackson, 654 A.2d at 832-33.
In order to substantiate an ineffective assistance of counsel claim, Warren must show that his trial counsel's representation fell below an objective standard of reasonableness, and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the trial proceeding in 1992 would have been different. Mere allegations of ineffectiveness of trial counsel are insufficient, and Warren must make, and substantiate, specific allegations of actual prejudice or risk summary dismissal.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Accord, e.g., Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997); Gattis v. State, Del. Supr., 697 A.2d 1174, 1178 (1997); Dawson v. State, Del. Supr., 673 A.2d 1186, 1190, cert. denied, 117 S.Ct. 127 (1996).
Gattis, 697 A.2d at 1178-79; Wright v. State, Del. Supr., 671 A.2d 1353, 1356, cert. denied, 116 S.Ct. 2509 (1996); Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990).
Under Strickland, Warren has the burden of proving by a preponderance of the evidence his postconviction relief claims that trial counsel was ineffective. Not only does Warren have the burden of proof to establish ineffective assistance of trial counsel, but as the United States Supreme Court has observed, "Strickland's standard, although by no means insurmountable, is highly demanding."
State v. Wright, Del. Super., 653 A.2d 288, 294 (1994) aff'd, Del. Supr., 671 A.2d 1353, cert. denied, 116 S.Ct. 2509 (1996).
Kimmelman v. Morrison, 477 U.S. 365, 382 (1996).
It is not constitutionally required that legal counsel's performance be error free in order to satisfy the constitutionally effectiveness standard. There is a strong presumption that legal counsel's representation was professionally reasonable. The presumption is that legal counsel's representation was professionally reasonable and judicial scrutiny of counsel's actions is highly deferential. In order to succeed in his postconviction relief claims of ineffective assistance of trial counsel, Warren must rebut the "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and a reviewing court must eliminate the "distorting effects of hindsight" in assessing trial counsel's performance.
See McMann v. Richardson, 397 U.S. 759, 770-71 (1970).
Strickland, 466 U.S. at 689; Righter, 704 A.2d at 264; Gattis, 697 A.2d at 1178; Dawson, 673 A.2d at 1190, 1196; Wright, 671 A.2d at 1356; Flamer v. State, Del. Supr., 585 A.2d 736, 753 (1990); Riley v. State, Del. Supr., 585 A.2d 719, 727 (1990).
Strickland, 466 U.S. at 689; Wright, 671 A.2d at 1356.
Strickland, 466 U.S. at 689; Gattis, 697 A.2d at 1178.
Even if Warren is able to satisfy the first prong of the two part Strickland ineffective assistance of counsel test by showing that trial counsel's actions fell below an objective standard of reasonableness, Warren must still establish by a preponderance of the evidence that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of his 1992 Superior Court trial would have been different. The second part of the Strickland ineffective assistance of counsel test is frequently referred to as the "prejudice" prong. In this context in order to show actual prejudice, Warren must establish by a preponderance of the evidence a reasonable probability that, but for trial counsel's alleged failures, Warren would have been acquitted at the 1992 Superior Court trial.
Strickland, 466 U.S. at 688, 694.
Strickland, 466 U.S. at 694; Dawson, 673 A.2d at 1190; Flamer, 585 A.2d at 753-54. See Righter, 704 A.2d at 264; Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992).
For purposes of satisfying the prejudice prong of Strickland, a reasonable probability is defined as a "probability sufficient to undermine confidence in the outcome." Whether or not trial counsel's actions fell below an objective standard of reasonableness, this Court in reviewing Warren's various allegations of ineffective assistance of counsel, including the general summary allegation in ground seventeen, can deny relief merely on the basis of a lack of sufficient prejudice accruing to Warren even if it is assumed trial counsel was ineffective in one or more of the grounds claimed by Warren in his 1998 postconviction relief motion.
Righter, 704 A.2d at 264 (quoting Strickland, 466 U.S. at 694); Wright, 753 A.2d at 293.
Strickland, 466 U.S. at 697.
In his affidavit, Warren's trial counsel responds to the six specific allegations of ineffective assistance of counsel asserted as Grounds 10-14 and 16 of Warren's postconviction relief motion, as well as, the allegation of general ineffective assistance of counsel contained in ground 17 of Warren's Rule 61 motion. With the exception of ground 10, trial counsel's affidavit clearly shows the factual and legal meritlessness of Warren's ineffective assistance of counsel claims in this case. As to these grounds for relief, I find counsel's affidavit more credible than Warren's self serving allegations of ineffectiveness. Warren has failed to establish his counsel's ineffectiveness or to demonstrate prejudice. These claims are clearly meritless.
Finally, Warren's tenth ground for relief alleges that trial counsel was ineffective for failing to move for a judgment of acquittal on the first degree murder charge. Trial counsel concedes in his affidavit that no such motion was made; however, trial counsel points out that the trial evidence introduced in 1992 was that Warren struck the victim, Gilbert Mello, violently in the back of the head with a baseball bat. Nevertheless, despite the clear evidence of intent, trial counsel in his affidavit states that he ". . . believes that his failure to move the Court for judgment of acquittal from First Degree Murder to Second Degree Murder constituted ineffective assistance of counsel." (emphasis added).
While trial counsel now makes this concession, the jury finding was clearly to the contrary. The jury was instructed on several lesser included offenses, one of which was second degree murder. There was, without a doubt, sufficient evidence produced at trial from which a reasonable trier of fact could conclude that one who strikes another individual in the head violently with a baseball bat possesses the intent necessary for a first degree intentional murder conviction. Therefore, despite trial counsel's belief that he was constitutionally ineffective for not making a trial motion for judgment of acquittal to reduce the first degree murder charge to second degree murder, this does not mean that he was in fact constitutionally ineffective.
See Travis, supra, at 1 (Exhibit D); State v. Anderson, Del. Supr., No. 97, 1992, Walsh, J. (October 7, 1992) (ORDER) at 2.
Absent a showing that the trial court would have granted the motion for judgment of acquittal, Warren can not establish any resulting prejudice from trial counsel's failure to move for a judgment of acquittal on the first degree murder charge. I find there was sufficient evidence presented at the 1992 trial from which a rational trier of fact could conclude that Warren did intentionally cause the death of Gilbert Mellow by striking him in the head with a baseball bat. The only difference between a first and second degree murder charge in this case is the intent element, in that in order to have been convicted of second degree murder the jury would have had to conclude that Warren recklessly caused the death of Mello under circumstances manifesting a cruel, wicked and depraved indifference to human life. Since Warren's jury obviously agreed that Warren was acting intentionally in this case, Warren can not show any resulting prejudice even if his trial counsel now thinks his own failure to move for a judgment of acquittal to reduce the homicide charge to second degree murder was ineffective assistance of legal counsel.
V. CONCLUSION
After a complete review of the record in this case, I find that Warren's motion is clearly barred by the time limit of Superior Court Criminal Rule 6(i)(1) as well as Rule 61(i)(3) and (4). Furthermore, I concluded that Warren has failed to met his burden of proof that a colorable constitutional violation exists concerning any of the issues raised in his motion nor has he demonstrated that any fundamental miscarriage of justice occurred at his trial which undermined the jury's verdict. Consequently, I recommend that the Court deny Warren's motion.