Opinion
I.D. No. 0607010551.
Submitted: June 26, 2008.
Decided: July 30, 2008.
Motion for Postconviction Relief. Summarily Dismissed.
Clifford W. Wright, Pro Se.
Ipek Medford, Esquire, Deputy Attorney General. Attorney for the State of Delaware.
OPINION
This is Movant Clifford Wright's first Motion for Postconviction Relief, filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Movant was convicted of two counts of delivery of cocaine and raises ten grounds for relief from those convictions. For the reasons explained below, his motion is summarily dismissed.
On July 8, 2006, Movant was at the Tailgates Bar on Ogletown Road in Newark, Delaware. At that time he was temporarily living with a friend named Raheem Cannon, a dealer in cocaine. At some point during the evening of July 8, Cannon telephoned Movant and asked him if he knew anyone who wanted to buy drugs. Movant called him back in less than an hour and said that he knew someone and asked for 1.6 grams of cocaine. Cannon brought the drugs to the parking lot of Tailgates Bar where he met Movant in the parking lot. They exchanged money for the drugs and Cannon dropped the packaged drugs on the grounds and drove away. An hour later, Cannon got a call from Movant asking for a smaller quantity of cocaine. When Cannon got to the Tailgates Bar parking lot, Movant was there with another person, and the same exchange of money for drugs was made.
Less than a week later, Cannon told the police about these incidents and was given immunity in exchange for testifying against Movant as to these events. Police sought out Movant and questioned him about the cocaine deals of July 8. When Movant admitted the purchases and acknowledged selling the cocaine to other people, he was arrested and charged with two counts of delivering cocaine. At trial, he was found guilty as charged and sentenced to one year in prison followed by probation. His convictions were affirmed on appeal. Movant has filed a timely Motion for Postconviction Relief, in which he asserts ten claims of error.
Wright v. State, 2008 WL 361138 (Del.).
Movant makes a blanket assertion that Grounds 1 through 7 are claims of ineffective assistance of counsel. However, the claims do not conform to the two-part test in Strickland v. Washington, 466 U.S. 668, and. with the exception of Ground 2, the Court does not treat them as such. The scope of Rule 61 is claims that "the court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction. . . ." (Rule 61(a)(1) (emphasis added).)
Movant asserts first that the State failed to prove that he actually picked up, that is, took possession of, the cocaine. At trial, Cannon testified that he and Movant agreed to a drug sale, that Movant gave him money for cocaine and that he dropped the drugs on the ground for Movant to retrieve. A reasonable jury could infer from this evidence that Movant picked up the drugs, especially since Movant told Det. Abram that he had purchased cocaine from Cannon two times on the night in question. Movant also stated that he delivered the drugs to other people. Rule 61(a)(i) requires that any alleged ground for relief provide a "sufficient factual and legal basis for a collateral attack upon a criminal conviction." Movant's first alleged claim has no basis in law or fact.
Second, Movant asserts that trial counsel was constitutionally ineffective for failing to subpoena any witnesses, but Movant does not identify any potential witnesses or indicate any exculpatory testimony they could have offered . As has been said by this Court before, a claim of ineffective assistance of counsel cannot and will not be considered if the movant does not make specific and concrete allegations of prejudice.
Duffy v. State, 620 A.2d 857 (Del. 1992) (citing Strickland v. Washington, 466 U.S. 668, 694)). See also State v. Outten, 1997 WL 855718 (Del.Super.) (citing Palmer v. State, 1994 WL 202281 (Del.Supr.)); Hall v. State, 2005 WL 1654595 (Del.Super.).
Third, Movant asserts that defense counsel failed to give him a duplicate copy of the discovery materials provided by the State so that he could become familiar with the elements of the offense and also so that he could prepare for trial. This argument has several problems. First, discovery materials do not acquaint a defendant with the elements of the charged offenses. Second, defense counsel does not have an obligation to give a client separate copies of discovery materials. Movant has not shown any rule or other authority that states that adequate trial preparation can take place only if a defendant has his own set of materials. This claim has no merit.
Fourth, Movant argues that defense counsel never showed an investigatory videotape to the judge, even though the tape would have shown that Movant did not commit the crime. This is another conclusory assertion that is not subject to analysis. Movant does not identify the tape or explain how it would have vindicated him. This claim has no merit.
Fifth, Movant asserts that Raheem Cannon's confession was coerced. When a defendant seeks to exclude testimony or statements of a third party on due process grounds, the burden of proving coercion is on the defendant, and, unless he can show that the existence of a factual dispute which would more likely than not result in exclusion, no remedy is available. At trial, the State used Cannon's transcribed statement and presented his live testimony as well. Cannon said on the stand that he was testifying willingly but not exactly voluntarily because he had to, meaning that he had to testify to maintain his immunity from prosecution. Defense counsel objected and the Court ruled that pursuant to 11 Del. C. § 3507 Cannon gave his testimony "voluntarily but reluctantly." This is the only reasonable inference to be made from Cannon's remarks, and Movant has not shown any factual dispute which shows that the statement should have been excluded. The Court finds no merit in this claim.
People v. Badgett, 895 P.2d 877 (Cal. 1995); LaFrance v. Bohlinger, 499 F. 2d 29 (1st Cir. 1974).
Transcript of the Trial (Dec. 7, 2006) at 35.
Sixth, Movant asserts that Cannon's testimony as either an expert or lay witness that the substance he sold to Movant was cocaine was misleading and unfairly prejudiced him. Because the substance was not recovered, having been sold according to the State's theory, it was not subject to testing. The only evidence that the substance was cocaine was the testimony of Cannon, who stated that he was able to identify it based on its texture, smell and look of it after two years of dealing in it. On appeal, the Supreme Court found that Cannon's lay opinion testimony was sufficient testimony from which a reasonable jury could infer the substance to be cocaine. This claim has been resolved against Movant, and he has not shown that it should be reconsidered in the interest of justice.
Trial Tr. (Dec. 7, 2006) at 28-29.
Wright v. State, 2008 WL 361138 (Del.Super.).
Rule 61(I)(4).
Seventh, Movant argues that the State failed to preserve evidence that would have been favorable to him, although he does not identify it. Presumably, he means the cocaine. The State's theory of the case was that Movant sold the cocaine, which is a reasonable inference based on the evidence presented. Movant's assertion does not have either a factual or legal basis and is therefore not a cognizable claim for relief.
Eighth, Movant argues that this Court erred when it failed to grant his motion to dismiss based on the corpus delicti rule. This issue was resolved against Movant on direct appeal, and he has not shown that the interest of justice warrants reconsideration here.
Ninth, Movant asserts error in the Court's denial of the motion of acquittal based on failure to prove that the substance Cannon sold to Movant was cocaine. This issue was also resolved against Movant on direct appeal, and will not be revisited absent a showing that the interest of justice warrants it, a showing which Movant has not made.
Movant's final assertion is that defense counsel's failure to file a motion to suppress before trial was prejudicial. He does not identify which evidence he refers to or how it prejudiced his case. This conclusory claim has no merit.
For all these reasons, Movant Clifford Wright's Motion for Postconviction Relief is Summarily Dismissed. It Is So ORDERED.