Opinion
ID. No. 0204017314.
Submitted: October 18, 2004.
Decided: January 7, 2005.
On Defendant's Motion for Post Conviction Relief. DENIED.
Cynthia R. Kelsey, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Geoboris White, Smyrna, Delaware.
ORDER
Upon this 7th day of January 2005, it appears to the Court that:
1. Defendant Geoboris White ("Defendant") has filed a motion seeking post conviction relief from his convictions for Trafficking in Cocaine, Possession With Intent to Deliver a Narcotic Schedule II Controlled Substance and Conspiracy Second Degree. A jury convicted Defendant on February 27, 2003. He was sentenced for Trafficking in Cocaine to 5 years at Level V, which was suspended after 3 years, for Possession With Intent to Deliver a Narcotic Schedule II Controlled Substance to 5 years at Level V, and for Conspiracy Second Degree to 1 year at Level V suspended immediately to 1 year at Level II. In March 2003, Defendant filed a Motion for Judgment of Acquittal and Motion for a New Trial. This Court denied both motions on April 14, 2003.
2. Defendant filed an appeal with the Supreme Court of the State of Delaware in May 2003. Defendant raised two grounds for appeal before the Delaware Supreme Court:
(1) The State presented insufficient evidence to convict Defendant;
(2) The prosecutor made "improper and un[d]uly prejudicial statements" that deprived Defendant of a fair trial.
Defendant's appeal was denied on December 24, 2003. The mandate from the Supreme Court was filed on January 14, 2004. Defendant filed the current motion on July 7, 2004.
Defendant had the opportunity to reply to the State's response but no reply was ever filed.
3. In the current motion, Defendant asserts fifteen grounds for post conviction relief:
(1) The State used perjured testimony in its opening statement when the prosecutor said that Defendant tampered with evidence because he threw cocaine out of the car in which he was a passenger. Defendant claims this was "prosecutorial misconduct" because the State knew co-defendant Michael Hackett had pled guilty in the matter and in Hackett's guilty plea he admitted that he had thrown the cocaine from the car;
(2) The prosecutor impermissibly asserted her personal belief as to the credibility of a witness when she told the jury that Defendant was the person who threw the cocaine from the car even though co-defendant Hackett had testified that he had thrown the cocaine from the car;
(3) The State appealed to the jury's "sense of personal risk or level of safety in community" by using a report by a police officer, which had been "suppressed," in which the officer testified that Defendant was combative when approached by the police;
The report had not been "suppressed"; instead, statements made by Defendant, which were not in the first police report provided to Defendant but were in the revised report that was not provided to Defendant until trial, were excluded.
(4) The State used "suppressed" evidence from a police report when a police witness was allowed to testify from a second police report, which was not given to Defendant prior to trial, that was different from the first report provided to Defendant;
(5) This Court committed error by not granting Defendant's Motion for Judgment of Acquittal at the end of trial because there was insufficient evidence to convict him;
(6) The State did not prove its prima facie case, i.e., the State did not prove every element of the charges that Defendant was convicted of committing because Defendant was found not guilty of several of the crimes with which he was charged;
(7) The State misrepresented the facts of his co-defendants' involvement in the crimes because the prosecutor told the jury that Defendant possessed the cocaine that was thrown from the car when the State knew co-defendant Hackett had pled guilty to being in possession of the cocaine;
(8) The State withheld exculpatory evidence, i.e., a receipt showing Defendant bought a car stereo for the car used in the commission of the crime;
(9) The State failed to properly maintain the chain of custody for the cocaine introduced into evidence at trial, i.e., one police witness opened the evidence envelope and a second police witness testified that the evidence envelope had not been altered;
(10) This Court erred by instructing the jury on accomplice liability;
(11) The State improperly impugned Defendant's credibility in its closing summation by stating that defendant had not been completely "candid" in his testimony when Defendant did not testify:
(12) The State and a police witness improperly referred to the cocaine in evidence as "probably the evidence that we were looking for";
(13) The State failed to properly maintain the chain of custody for the cocaine introduced into evidence, i.e., the cocaine had been thrown from the car during police pursuit and the container it was in broke spilling the cocaine;
(14) Defendant's trial counsel was ineffective because he was told by the Court to try and resolve objections at sidebar and not before the jury;
(15) Defendant's trial counsel was ineffective because he did not move for a mistrial after a juror spoke to trial counsel and the prosecutor during a break.
4. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Super. Ct. Crim. R. 61. Rule 61(i)(1) provides that "[a] motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court." This Court finds that Defendant has met the requirements of Rule 61(i)(1) by filing his motion for post conviction relief within three years of his conviction becoming final.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super. Ct. Crim. R. 61(i)(1).
Rule 61(i)(3) states that "[a]ny 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." This Court has held that "[when a] claim [is] not raised in Defendant's direct appeal [t] the Delaware Supreme Court] it is procedurally barred pursuant to Rule 61(i)(3)."
Super. Ct. Crim. R. 61(i)(3).
State v. Kendall, 2001 Del. Super. LEXIS 131 * 8.
Rule 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." "The interest of justice [exception under Rule 61(i)(4)] has been narrowly defined to require the movant to show that the trial court lacked the authority to convict or punish him."
Super. Ct. Crim. R. 61(i)(4).
State. Wright, Del. Super., 653 A.2d 288, 298 (1994) (citing Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990)).
5. The Delaware Supreme Court has formerly adjudicated Defendant's claims for relief numbered (5), (6), (11), and (12). Because claims for relief numbered (5), (6), (11), and (12) have been previously raised and adjudicated, and no colorable claim for reconsideration "in the interest" justice has been raised, these three grounds are procedurally barred pursuant to Rule 61(i)(4).
White v. State, 840 A.2d 643 (Del. 2003).
6. Claims (1), (2), and (7) are, in essence, claims based on the sufficiency of the evidence and inconsistent verdicts; however, these claims are barred pursuant to Rule 61(i)(4). Defendant has previously argued to this Court and the Supreme Court that the guilty plea by one of his co-defendants had somehow eliminated any potential liability to himself. The Supreme Court affirmed this Court's denial of Defendant's motion for judgment of acquittal, which had attacked the sufficiency of the evidence to convict him and inconsistency between his guilty verdict and a guilty plea by another co-defendant. These three claims are nothing more than an attempt to relitigate claims that have already been adjudicated and are therefore procedurally barred by Rule 61(i)(4)
7. Claims (3), (4), (8), (9), (10) and (13) are new claims and have not been previously adjudicated; however, as they are being raised for the first time in this motion, Defendant must show that they are not procedurally barred by either Rule 61(i)(2) or (3) because they were not raised in any proceeding leading to conviction or in any previous appeal. Defendant has attempted to save these claims by making a blanket assertion that all of his claims not raised below or on appeal were the result of ineffective assistance of counsel. In order to prevail in an ineffective assistance of counsel claim, Defendant must show that his attorney's representation fell below an objective standard of reasonableness and that but for counsels unprofessional errors the outcome of the trial would have been different. The defendant must make concrete allegations of ineffectiveness and substantiate those allegations by showing actual prejudice or risk summary dismissal. There is a strong presumption that the defense counsel's conduct was professionally reasonable.
Strickland v. Washington, 466 U.S. 668 (1984).
Gattis v. State, 697 A.2d 1174, 1178-79 (Del. 1997).
Strickland v. Washington, 466 U.S. at 689.
Defendant has not shown how in any of these six claims his attorney's "representation fell below an objective standard of reasonableness and that but for counsels unprofessional errors the outcome of the trial would have been different." None of these six claims has any merit. In each of the six claims, Defendant has either misapplied the law or mischaracterized the evidence. In Claims (3) and (4), statements made by Defendant, which were not in the first police report but were in the revised version, were excluded at trial; the police witness was allowed to testify as to what he observed. In claim (8), Defendant has not shown how the receipt for the car stereo was exculpatory and thereby Brady material. Defendant has failed to show how in claims (9) and (13) that the chain of custody had been broken; instead, Defendant makes the conclusory statement that the chain of evidence was broken and then supports his contention by merely reciting the case law on prosecutorial misconduct and abuse of discretion. Claim (10) is a misstatement of the law; the State does not have to allege accomplice liability under 11 Del. C. § 271 as an element of an offense.
Strickland v. Washington, 466 U.S. 668 (1984).
Dixon v. State, 673 A.2d 1220 (Del. 1996).
8. In claims numbered (14) and (15), Defendant has made two separate claims of ineffective assistance of counsel. In claim number (14), Defendant argues that trial counsel was ineffective because counsel was told by the Court to not make objections before the jury but rather to resolve issues at sidebar. Defendant has not alleged that counsel was precluded from making objections to evidence but only that the objections were heard out of hearing of the jury. Trial counsel avers that he "believe[s] [he] represented [Defendant] adequately and preserved all his rights for appeal." There is no grounds for a charge of ineffective assistance of counsel relative to this claim.
Affidavit of Leo John Ramunno, Esquire at ¶ 4.
Defendant's second claim of ineffective assistance of counsel, claim number (15), is based on trial counsel not requesting a mistrial after this Court inquired about a juror's contact with both attorneys. The juror in question had spoken to the attorneys and asked if they could alert a bailiff so she could enter the jury room. This Court queried the juror and was satisfied that the juror had not overheard any substantive conversation between counsel. Trial counsel's decision not to object or ask for a mistrial, given the Court's examination, did not fall below an objective standard of reasonableness and there is no evidence that the outcome of the trial would have been different had trial counsel objected. Trial counsel has averred that "[n]o request for a mistrial was requested since the juror was questioned by the Court and stated that she did not hear anything and was unaware of any discussion that occurred between defense counsel and the prosecutor."
Affidavit of Leo John Ramunno, Esquire at ¶ 3.
For the foregoing reasons, Defendant's motion for post conviction relief is DENIED.