Opinion
Def. ID # 0102006383.
Submitted: March 7, 2005.
June 24, 2005.
Darus E. Young, Sussex Correctional Institution, Georgetown, DE.
Adam D. Gelof, Esquire, Deputy Attorney General, Department of Justice, Georgetown, Delaware.
Vincent H. Vickers, II, Esquire, Stumpf, Vickers, and Sandy, P.A., Georgetown, DE.
Memorandum Opinion — Motion for Postconviction Relief
Dear Mr. Young and Counsel:
This is my decision on Darus E. Young's ("Young") motion for postconviction relief. The State of Delaware (the "State") charged Young with Possession with Intent to Deliver Cocaine, Conspiracy in the Second Degree, and Possession of Drug Paraphernalia. The State was represented by Adam D. Gelof, Esquire ("Gelof"). Young was represented by Vincent H. Vickers, II, Esquire ("Vickers"). Young was convicted after a four-day jury trial of all three charges. The Supreme Court affirmed Young's convictions. Young filed his motion for postconviction relief on February 8, 2005. This is his first motion for postconviction relief and it was filed in a timely manner. Therefore, Young's motion is not barred by Superior Court Criminal Rule 61(l)(1).
Darus Young v. State of Delaware, Del. Supr., No. 60, 2002, Walsh, J. (November 19, 2002) (ORDER).
Young's motion for postconviction relief is based upon allegations of ineffective assistance of counsel. He alleges five grounds in support of his motion. Specifically, Young alleges that (1) Vickers would not allow him to testify at trial, (2) Vickers did not appeal the proper issues to the Supreme Court, (3) Vickers did not file a motion for judgment of acquittal, (4) Vickers failed to object to inadmissible evidence, and (5) Vickers failed to fully preserve the numerous errors involving prosecutorial misconduct. Vickers has filed an affidavit in response to Young's allegations. I have denied Young's motion for postconviction relief for the following reasons.
STANDARD OF REVIEW
The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief. In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis. First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal." It is also necessary that the defendant "rebut a 'strong presumption' that trial counsel's representation fell within the 'wide range of reasonable professional assistance,' and this Court must eliminate from its consideration the distorting effects of hindsight when viewing that representation.'" There is no procedural bar to claims of ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 688 (1984).
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Id. At 687.
Id. At 687.
State v. Coleman, 2003 WL 22092724 (Del.Super.Ct.).
Coleman, 2003 WL at *2, quoting Strickland, 466 U.S. at 689.
Coleman, 2003 WL at *1, citing State v. Johnson, Del. Super. Ct., Cr. A. No. 97-10-0164 (R1), Graves, J. (August 12, 1999) at 2; State v. Gattis, Del. Super. Ct., Cr. A. Nos. IN90-05-1017 to 1019, Barron, Jr. (December 28, 1995) at 7, aff'd, 637 A.2d 1174 (Del. 1997).
DISCUSSION
I. Right to TestifyYoung alleges that Vickers did not tell him that it was ultimately his decision to testify or not at trial. Indeed, Young's allegations go further than this. He alleges that he wanted to testify, but that Vickers would not let him. Thus, according to Young, Vickers deprived him of his only real defense. A critical piece of the State's evidence in this case was a taped phone conversation between two men discussing the purchase of drugs. William Sharpe testified at trial that the voices on the tape belonged to him and Young. Young argues that if Vickers had allowed him to testify, then his testimony would have changed the outcome of the trial.
Vickers has denied Young's allegations. Vickers states in his affidavit that he had many conversations with Young about his right to testify, and that it was Young's decision not to testify. Vickers also states that one of the voices on the tape sounded remarkably similar to Young's, and that while Young denied that the voice on the tape was his, he was adamant about not testifying. I have no reason at all to believe that Vickers did not tell Young about his right to testify. I also have no reason at all to believe that Vickers would not allow Young to testify. Moreover, Young has not stated what his testimony would have been if he had testified and why it might have changed the outcome of his trial. Therefore, I have concluded that this allegation is without merit.
II. Appeal
Young alleges that Vickers failed to consult with him in preparation for his appeal and that Vickers also failed to appeal the proper issues to the Supreme Court. Young further alleges that this lack of communication resulted in Vicker's appealing issues that were clearly without merit. Vickers states in his affidavit that he met with Young on at least two occasions to review the transcript and the appellate brief. Vickers also states that Young sent him a letter suggesting he raise four issues on appeal, but that Young never identified the four issues. Vickers, in his appeal on behalf of Young, asserted two claims of error. First, Vickers alleged that the trial court erred in permitting the State to introduce certain evidence of Young's prior bad acts. Second, Vickers alleged that the prosecutor engaged in impermissible vouching in his closing summation to the jury. The Supreme Court did not find merit in either of these claims.
Young now alleges that two additional issues should have been raised in his appeal. First, Young argues that the issue of whether or not the trial court abused its discretion by not excluding a witnesses' testimony about Young's prior drug transactions should have been appealed. This is essentially the same issue that Vicker's raised in Young's appeal to the Supreme Court. Thus, Vickers did raise this argument on appeal, and the Supreme Court found it to be without merit Second, Young alleges that the issue of whether he actually or constructively possessed the cocaine found in the vehicle should have been appealed. The cocaine in question was found by a Delaware State Police Officer at the base of the front corner of the driver's seat next to the center console on the floor. The Supreme Court has stated that "a person can be "in possession" of an item that is found in or about the defendant's person, premises, belongings, vehicle, or otherwise within the defendant's reasonable control." The State presented evidence that Young was sitting in the front passenger seat and that Bettie Whaley was the driver of the vehicle. A Delaware State Police Officer testified that it would be easy for a person in Young's position to just drop the cocaine down on the other side of the console. William Sharpe testified that he and Young had discussed a drug transaction. As evidenced by the jury's verdict, the jury found the evidence convincing enough to find Young guilty beyond a reasonable doubt. Furthermore, the purpose of an appeal is to obtain a reversal of the conviction, and this is usually accomplished by focusing on the stronger arguments and casting aside the weaker ones. If Vickers decided not to raise this issue on appeal, it is most likely because he believed it to be unconvincing. I agree that it is an unconvincing argument. There was certainly more than enough evidence to support the jury's finding that the Young possessed the cocaine. Therefore, I have concluded that this allegation is without merit.
Fletcher v. State, 870 A.2d 1191, 2005 WL 646841, at *2.
Tr. at B-75,76.
Zebroski v. State, 822 A.2d 1038 (Del. 2003).
III. Failure to file a Motion for Judgment of Acquittal
Young alleges that Vickers was ineffective because he did not move for judgment of acquittal. However, Young does not state any reason why Vickers was in error for not doing this. Vickers states in his affidavit that he did not move for judgment of acquittal because the State had offered enough evidence to overcome it. I heard the evidence and had Vickers made this motion then I would not have granted it. As the Supreme Court explained in Bordley v. State, Del. Supr., No. 65, 1995, Veasey, C.J. (August 1, 1995) at 3-4, "in determining a motion for judgment of acquittal, the trial judge must consider the evidence and all legitimate inferences to be drawn therefrom, in a light most favorable to the State. Acquittal is appropriate only when the State has presented insufficient evidence to sustain a guilty verdict." "The Court is not required to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. It must merely inquire as to whether any rational trier of fact could have found that guilt was established." There was clearly enough evidence that, when viewed in the light most favorable to the State, that a rational finder of fact could have found Young guilty beyond a reasonable doubt. Therefore, I have concluded that this allegation is without merit.
IV. Failure to object properly to inadmissible evidence
Young alleges that Vickers was ineffective because he failed to properly object to inadmissible evidence. However, Young has not identified the inadmissible evidence or identified what objections Vickers should have raised. Young's contentions are mere allegations and without more information there is simply nothing for me to consider. Therefore, I have concluded that this allegation is without merit.
V. Failure to fully preserve the numerous egregious errors involving prosecutorial misconduct
Young alleges that Vickers failed to preserve numerous errors involving prosecutorial misconduct. However, once again Young has not identified the prosecutorial misconduct that Vickers failed to preserve for appeal. If Young believed that the prosecution engaged in misconduct, then he must identify the misconduct and describe the prejudice caused by it. He did not do this. Again, there is simply nothing for me to consider. Therefore, I have concluded that this allegation is without merit.
CONCLUSION
Young's motion for Postconviction Relief is denied.