Opinion
ID. No. 9612001997
Submitted: August 23, 2001
Decided: January 31, 2002
On the Defendant's Motion for Postconviction Relief DENIED.
Lloyd Anderson, M.P.C.J.F., P.O. Box 9561, 1301 East 12th Street, Wilmington, Delaware 19809, Pro Se.
Julie Fessel Flanigan, Esquire, Department of Justice, 820 North French Street, Wilmington, Delaware 19801, Deputy Attorney General.
OPINION AND ORDER STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
On December 4, 1996, the Defendant, Lloyd Anderson, was arrested on charges of Trafficking Marijuana, Possession with the Intent to Deliver Marijuana, Maintaining a Vehicle for Distribution or Use of Marijuana, and Conspiracy in the second degree. His arrest was the culmination of an investigation that stemmed from the interception of a package containing approximately ten pounds of marijuana at a Federal Express facility.
Upon receiving the information of the contents of the package, the Delaware State Police established a surveillance operation of the Federal Express facility and arrested Shantel Wright as she claimed the package. Upon questioning by the police, Ms. Wright stated that a friend, Juanita Masten, requested that she pick up the package for her. However, the ultimate recipient of the package was to be Mr. Anderson. At the police's request, Ms. Wright delivered the package to Mr. Anderson's place of business under police surveillance and when he accepted the package from Ms. Wright he was arrested.
A jury trial was held on February 3-4, 1998. Following the presentation of all evidence, a jury found Mr. Anderson not guilty of Maintaining a Vehicle for the Distribution or Use of Marijuana and Conspiracy Second Degree and a mistrial was declared as to the charges of Trafficking in Marijuana and Possession with the Intent to Deliver Marijuana.
Mr. Anderson was retried by a jury on the later two charges on September 2, 1998. At trial, the State introduced portions of Ms. Wright's recorded statement, pursuant to 11 Del. C. § 3507, this statement described Mr. Anderson's participation in a series of prior drug shipments with Ms. Masten. This evidence was admitted after Mr. Anderson's trial counsel was afforded the opportunity to cross-examine Ms. Wright with respect to her personal observations made during the course of her relationship with Ms. Masten. The Court, applying the guidelines set forth in Getz v. State, 538 A.2d 726 (Del.Supr. 1998), admitted the recorded statement. Defense Counsel initially objected to this admission but subsequently withdrew the objection. At the close of the trial, the jury delivered a guilty verdict on both charges.
Mr. Anderson appealed his convictions to the Delaware Supreme Court. The issue raised on appeal was the admission of the recorded statement. On March 27, 2000, the Delaware Supreme Court affirmed this Court's decision and specifically ruled that the admission of the statement pursuant to Getz was proper. Anderson v. State, Del. Supr., No. 364, 1999, Walsh, C.J. (March 7, 2000) (ORDER).
Mr. Anderson now moves for postconviction relief pursuant to Superior Court Criminal Rule 61. His motion is based upon two general grounds: 1) abuse of discretion by the trial court; and 2) ineffective assistance of both Trial and Appellate Counsel. Mr. Anderson's abuse of discretion claims center on the admission of Ms. Wright's recorded statement. He contends that the trial court erred as a matter of law in this regard entitling him to relief pursuant to Rule 61(I)(5) in that it constitutes a miscarriage of justice.
He claims violations under Article I, Section 7 of the Delaware State Constitution and Amendments V, VI and XIV of the United States Constitution.
Mr. Anderson contends Counsel, during the trial and on the appeal of the conviction which resulted, erred in five different respects: 1) Trial Counsel's errors during the cross-examination of Ms. Wright "opened the door" for the admission of the recorded statements, which were otherwise inadmissible heresay; 2) Trial Counsel's failure to properly object to the admission of the recorded statement resulted in a forfeiture of his rights to raise that issue on appeal; 3) Trial Counsel's refusal to investigate a beneficial witness as was requested by Mr. Anderson caused him to suffer undue prejudice; 4) Trial Counsel's failure to file a motion to suppress the recorded statement likewise caused him undue prejudice; and finally, 5) Mr. Anderson was unduly prejudiced by Appellate Counsel's failure to raise a claim of ineffective assistance on Mr. Anderson's appeal to the Delaware Supreme Court.
As in his assertions attacking Trial Counsel, Mr. Anderson likewise claims his constitutional rights were violated in his appeal via Article I, Section 7 of the Delaware Constitution and Amendments V, VI and XIV of the United States Constitution.
DISCUSSION
Before the Court examines the merits of a petition filed under Rule 61, it is required to determine whether any of the procedural bars set forth in Superior Court Criminal Rule 61(I) are applicable to this motion. Younger v. State, 580 A.2d 552, 554 (Del.Supr. 1990). Summary dismissal of a Rule 61 Motion for postconviction relief is appropriate when ". . . it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief. . . ." Super. Ct. Crim. Rule 61(d)(4). To protect the integrity of Delaware's procedural bars in the context of a Rule 61 motion, the merits of the defendant's petition ordinarily should not be considered if such a procedural bar is found to exist. State v. Gattis, Del. Super., Cr. A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger, 580 A.2d at 554; Saunders v. State, Del. Supr., No. 185, 1994, Walsh, J. (Jan. 13, 1995) (ORDER); and Hicks v. State, Del. Supr., No. 417, 1991, Walsh, J. (May 5, 1992) (ORDER)).The procedural bar set forth in Rule 61(I)(4) holds,
[a]ny ground for relief that was formerly adjudicated, whether in proceedings leading to the judgement of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding is thereafter barred, unless reconsideration is warranted in the interest of justice.(emphasis added).
In order to state a viable claim under this "interest of justice" exception, the "movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Flamer v. State, 585 A.2d 736, 746 (Del.Supr. 1990).
Similarly, Rule 61(I)(3) provides:
[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. (emphasis added)
"Cause" is established when the defendant establishes a legitimate external impediment that prevented him from raising the issue on appeal. Younger, 580 A.2d at 556. Once established, the defendant must then demonstrate that he or she was prejudiced as a result of the impediment. Specifically, the defendant must show that but for this impediment there is a substantial likelihood that had the issue been raised in the previous proceeding, the outcome would have been different. Flamer, 585 A.2d at 747. However, the procedural bars set forth in Rule 61 are inapplicable to a colorable claim that the defendant suffer a miscarriage of justice due to a "constitutional violation that undermined the fundamental legality, reliability, integrity, or fairness of the proceedings leading to the judgement of conviction." Super. Ct. R. 61(I)(5); see also Cobb v. State, Del. Supr., No. 362, 1995, Walsh, J. (Jan. 10, 1996) (Order at 7).
To establish a legitimate claim of ineffective assistance of counsel, the defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial . . ." Strickland v. Washington, 466 U.S. 668, 686 (1984), reh'g denied, 467 U.S. 1267 (1984). In this regard, it must be established that: 1) counsel's representation fell below an objective standard of reasonableness; and 2) that the prejudice suffered resulted in a "reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 688-689. Finally, counsel is entitled to a strong presumption that his or her conduct was reasonable. Id. at 689; and Flamer, 585 A.2d at 753. The contentions raised in Mr. Anderson's petition will be examined in light of the foregoing.
Trial Court's Admission of the Recorded Statement
Consideration of Mr. Anderson's contentions regarding the Trial Court's admission of Ms. Wright's recorded statement is foreclosed by the procedural bar found in Rule 61(I)(4) in that the issue was adjudicated in the appeal of his case. Although Mr. Anderson's argument states that he suffered a miscarriage of justice by the admission of the statement, this contention is nothing more than the argument made on appeal to the Supreme Court, albeit couched in different terms. Simply stated, the Court may not, and will not revisit an issue previously adjudicated merely because the defendant rephrases his argument.
Counsel's Failure to Properly Cross-Examine Witness
Mr. Anderson claims that he received ineffective assistance of counsel because Trial Counsel elicited testimony from Ms. Wright that "opened the door" for the admission of the her recorded statement, which was, he contends "otherwise inadmissible". The Court disagrees. It is the opinion of this Court as well as that of the Delaware Supreme Court that the recorded statement was not "otherwise inadmissable". To the contrary, both Courts specifically found the recorded statement to be admissible under Delaware Rule of Evidence 404(b). Stated differently, the State could have introduced the evidence notwithstanding Trial Counsel's cross examination of Ms. Wright. As such, Mr. Anderson's allegations pertaining to this "blunder" are without merit.
Trial Counsel's Waiver of its Objection to the Introduction of the Recorded Statement
Mr. Anderson's second attack on the effectiveness of Trial Counsel focuses on Counsel's waiver of an objection to the recorded statement of Ms. Wright. Once again, Mr. Anderson's contention is premised on a finding that the recorded statement was "otherwise inadmissible". As is stated above, and for the same reasons, this argument fails. Furthermore, Mr. Anderson's assault on this waiver is curious in light of the fact that Counsel sought Anderson's ratification of this waiver. The record in this case reveals that the Court went to great lengths to ensure that Mr. Anderson knowingly and voluntarily concurred with Counsel's position on this matter. The Court even insisted that Counsel explain to Mr. Anderson in private the ramifications of this waiver.
Counsel's Failure to Investigate a Witness
Mr. Anderson asserts he was unduly prejudiced when Trial Counsel failed to pursue and ultimately call Ms. Masten as a witness. He contends that Ms. Masten would have testified that Ms. Wright was engaged in the illegal drug trafficking without the assistance of Mr. Anderson, thereby rebutting Ms. Wright's testimony which identified him as the rightful recipient of the marijuana. In support of this assertion Mr. Anderson refers to an alleged sworn affidavit by Ms. Masten. Mr. Anderson identifies this affidavit as "Exhibit B" in his petition. However this exhibit is not attached to the petition or anywhere else in the record. As a result, this contention as entirely conclusory and therefore legally insufficient to prove ineffective assistance of counsel. State v. Brittingham, Del. Super., Cr. A. No. IN91-01-1009-R1, Barron, J. (Dec. 29, 1994) (ORDER at 3).
Counsel's Failure to File a Motion to Suppress Evidence
Mr. Anderson makes a veiled attempt to make a collateral estoppel claim under the guise of ineffective assistance of counsel. This issue was available and could have been raised at trial or on appeal. No reason is given for the failure to do so. It is therefore is barred as a procedural default pursuant to Rule 61(I)(3).
Appellate Counsel's Failure to Raise a Claim of Ineffective Assistance on Appeal
The Delaware Supreme Court will not entertain, on direct appeal, a claim of ineffective assistance of counsel not first raised below. Harris v. State, 293 A.2d 291 (Del Supr. 1972). The trial record is clear; never, during the course of the trial or during the appeal which followed did the defendant raise the issue of ineffective assistance of counsel notwithstanding the existence of separate counsel during the trial and appeal portions of the case. Normally this issue can be raised in such circumstances and is not barred by Rule 61. Younger, 580 A.2d at 555 (Del.Supr. 1988). However, the Defendant has again failed to identify acts or omissions of counsel that are the result of unreasonable professional judgment. As a result, the Defendant has failed to show that counsel's representation fell below an objective standard of reasonableness. Similarly missing is any allegation that but for Counsel's conduct, it is likely that a different result would have occurred. Strickland, 466 U.S. at 694. In such circumstances the Defendant's failure to meet the burden imposed by Strickland results in the denial of his or her claim in any event.
CONCLUSION
For the foregoing reasons, the Defendant's motion for postconviction relief must be, and hereby is denied.
IT IS SO ORDERED.