Opinion
Case No. 0110013949-R1.
Decided: January 8, 2004.
Dear Mr. White:
The Court has had the opportunity to study your Rule 61 application, together with the Court's file. For the reasons stated below the Court denies your motion for post conviction relief.
Following a jury trial you were convicted of robbery in the first degree, assault in the third degree, and possession of drug paraphernalia. You were sentenced on June 14, 2002, with the benefit of a presentence investigation. Based upon your record you received a sentence of 24 years on the robbery charge and probation on the remaining charges. Your conviction was affirmed by the Delaware Supreme Court. Waverly N. White v. State, Del.Supr. No. 354, 2002, Steele, J. (Feb. 6, 2003)
You raise two grounds as to why your conviction should be set aside, and both are based on ineffective assistance of counsel. You allege that your attorney was ineffective in his cross examination of a State's witness concerning his prior criminal history. Specifically, you claim he was ineffective "when he failed to cross-examine Petrocitto concerning his multiple arrests". You claim that the jury would have heard about Petrocitto's prior arrests, his willingness to fabricate incidents, and his unreliable character.
Ground Two is similar in nature in that you claim that defense counsel was ineffective for not requesting a continuance to subpoena the criminal records of Mr. Petrocitto. This information was obtained in discovery, but it came late and the defense was given this information a week before trial. It is your allegation that trial counsel was ineffective for failing to seek a continuance and to subpoena Mr. Petrocitto's records.
These claims are not procedurally barred as this is the first Rule 61 application filed by the defendant and therefore it is his first opportunity to raise ineffective assistance of counsel. Any claim of ineffective assistance of counsel is judged by the standards determined appropriate by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The defendant must establish both that his attorney's representation fell below an objective standard of reasonableness, and that had it not been for those errors, the outcome of the proceedings would have been different. If the defendant fails to establish either deficient performance by his attorney or prejudice, his claim fails. For that reason the claim can be dismissed if there has been no showing of prejudice, regardless of the merits of the deficient performance claim.
As to counsel's failure to effectively cross examine Petrocitto as to his criminal record or to ask more probing questions, it is appropriate to examine the entire transcript on this issue and not just a single page selected by the defendant.
The transcript evidences defense counsel's concerns as to whether or not there had been any discussion with the State's witness concerning the witness's pending charges in New Castle County. In other words, the defense counsel was interested as to whether any communications had taken place as to favorable treatment of the witness's pending charges based upon the witness's testimony against Mr. White. There was also an interest in cross-examining the defendant as to potential misdemeanors which, if a conviction existed, would be relevant under DRE 609(a)(2). After cross-examination, out of the presence of the jury, and with the information provided by the State, there was apparently no showing that a conviction had occurred; nor any showing that there had been any communications at all concerning a deal for the witness's present testimony.
When questioning resumed before the jury, defense counsel did not cross-examine the defendant concerning his arrest, which is the basis of the present complaint. An arrest is irrelevant under DRE 609(a)(2), and it would not have been admissible under DRE 608(b). The witness had denied giving a false report. His charges were then pending. The proof of the allegations concerning the false report charge could have only been explored by way of cross-examination. Knowing that the witness was denying the pending charge it is not unreasonable for defense counsel to have chosen to stay away from this area, especially in view of the other provisions of DRE 608 concerning the privilege of self-incrimination. In other words, I do not find it unreasonable for defense counsel to decide to avoid this issue in light of the responses he obtained from the witness on cross-examination, out of the presence of the jury, and the problems that he would have faced under DRE 608.
But, this present application really fails on the prejudice issue, which is the second prong. Mr. White, in this present petition, offers nothing to show that had his trial attorney been more vigorous in cross-examining Mr. Petrocitto, there would have been anything elicited that would have changed the result in the trial. There has been no showing that Mr. Petrocitto had any criminal convictions which would have admissible under DRE 609, nor has there been any proffer as to what further cross-examination would have elicited, which is admissible, under Rule 608(b).
As to Ground Two, the defendant alleges his trial attorney was ineffective for his failure to request a continuance and further explore the defendant's criminal record. Again, the defendant offers nothing which would support that the defendant was prejudiced by the failure of his attorney to request a continuance for the purpose of further investigation. The defendant argues the failure to investigate issue but ignores any prejudice argument. There is no proffer on this specific issue. The defendant only makes conclusory allegations that his attorney's failure to investigate lost the opportunity to discredit Petrocitto's testimony, thus creating reasonable doubt.
By failure to meet and adequately address the prejudice prong, the defendant fails in his claim of ineffective assistance of counsel.
For the aforementioned reasons, the defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.