Opinion
ID No. 91003457D1
Date Submitted: April 21, 1999
Date Decided: August 26, 1999 Motion Denied: February 8, 2000
Upon Review of Defendant's Motion for Post-Conviction Relief, DENIED.
Steve Wood, Esq., State of Delaware Department of Justice, Wilmington, Delaware, for the State of Delaware.
Robert Ashley, pro se.
OPINION AND ORDER
This is the Court's decision on Defendant Robert E. Ashley ("Defendant")'s Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the following reasons, the Motion is DENIED.
BACKGROUND
The following are the facts as found at Defendant's trial: On March 30, 1991, Defendant stabbed Steven Johnson ("Johnson") in the back after a drug deal had gone bad. Johnson was approached by two men, whom he did not know, who wanted to buy drugs. Apparently, Johnson had an informal agreement with Defendant, a drug dealer, to bring him customers in exchange for drugs. Johnson brought the two men to Defendant, who was waiting in front of his apartment building. Defendant told the men to follow him into the basement. Shortly thereafter, Johnson heard a commotion and went to investigate. Once in the basement, Johnson realized the two men were attempting to rob Defendant, and he tried to intervene. As Johnson approached the basement, one of the drug customers hit him in the head, punched him in the chest and ran out the back door. Johnson attempted to flee the building by running up the stairs. As he did so, Defendant stabbed him in the back with a steak knife. Johnson staggered across the road to a Pizza Hut parking lot. Johnson suffered a punctured lung.
As reiterated in Ashley v. State, Del. Supr., 633 A.2d 368 (1993).
At trial on January 21 and 22, 1992, Defendant admitted that he stabbed Johnson, but argued that he did so in self-defense after being jumped by two other males. According to Defendant's version of the incident, Johnson and the two other men accosted him in the hallway outside his apartment. When Defendant refused Johnson's request for money, all three men attacked him and Johnson was stabbed in the struggle.
The New Castle County Police, while investigating the incident, found human blood evidence in an apartment. The chief investigating officer ascertained that Defendant had gone into that apartment. Defendant's roommate and lessee allowed the officer into the apartment. The officer ascertained that Defendant was not present in the apartment. The officer obtained a search warrant. During the search of the apartment, the officer found blood in the kitchen sink. The officer believed that Defendant had returned to the apartment after stabbing Johnson and washed the steak knife in the kitchen sink. The officer also found numerous empty vials commonly used to store cocaine.
Ashley was then arrested and charged with Assault in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony. After a jury trial, Defendant was found guilty of both crimes. He was sentenced on April 3, 1992.
Defendant appealed his conviction to the Supreme Court on three grounds:(1) he was denied a fair trial because police failed to collect and preserve blood samples from the crime scene; (2) the trial court erred in instructing the jury that Ashley's attempted escape from prison while awaiting trial could be considered as a circumstance reflecting a consciousness of guilt; and (3) evidence of his alleged drug dealing was admitted in violation of D.R.E. 404(b) as evidence of other crimes. On September 30, 1993, the Supreme Court affirmed the judgment of this Court.
Defendant filed this motion on September 19, 1996. Subsequently, this Court ordered that Defendant's prior counsel and the State file an affidavit and legal memorandum, respectively, in response to Defendant's motion. Defendant's prior counsel filed an affidavit on July 28, 1998. The Department of Justice filed a legal memorandum on February 16, 1999.
As a result of the time span between Defendant's filing of the Motion Postconviction relief and the responses by counsel, this Court informed Defendant by letter that he would be permitted to file a response by April 21, 1999. Instead of a response by Defendant directed at documents previously filed by counsel pursuant to Court Order, on April 22, 1999, Defendant filed a Motion for Transcripts, Certified Copy of the Record, Return of Property and Extension of Time. The April 22, 1999 motion will not be addressed in this Opinion as it raises separate issues and requests alternative relief than that which is herein requested.
This is the Court's decision on Defendant's Motion for Postconviction Relief.
DISCUSSION 1. Defendant's Grounds for Relief
Defendant files this pro se Motion for Postconviction Relief pursuant to Rule 61 of the Superior Court Rules of Criminal Procedure ("Rule 61"), seeking relief from judgment of this Court. Defendant asserts several grounds in support of his motion.
First, Defendant asserts that he was denied effective assistance of counsel: (1) at the preliminary hearing because his counsel failed to communicate with him and failed to perform discovery, conduct a voir dire, investigate the case, properly prepare for trial or properly perform at trial; and (2) on direct appeal because his counsel failed to communicate with him, perform discovery, investigate, raise issues on appeal or to competently prepare the brief
Second, Defendant claims that an illegal search and seizure was conducted. Specifically, he alleges that his apartment was seized before a search warrant was obtained, that the residents of the apartment were seized and held before a search warrant was obtained, that the search warrant was obtained under false pretenses because none of the blood stains found by police were preserved.
Third, Defendant alleges a Jencks violation, claiming that the transcripts of all statements made by two state witnesses were not provided at trial and that if they were, defense counsel kept them hidden from Defendant.
Fourth, Defendant alleges three issues of prosecutorial misconduct: (1) during rebuttal, the prosecutor intentionally misstated the evidence and then used such misstatements as a foundation to "wrongfully" state that Defendant lied on the stand, thereby misleading the jury and unfairly undermining Defendant's credibility; (2) the prosecutor inflamed the jury by eliciting testimony and asserting that Defendant's roommate was disabled and that Defendant was taking advantage of him; and (3) the prosecutor inflamed the jury by eliciting testimony concerning the witness' status as a disabled Vietnam Veteran.
Fifth, Defendant claims that the state rebuttal witness, Defendant's then-roommate, rebutted testimony that was never given which further supported the prosecutor's effort to mislead the jury.
Sixth, Defendant claims that the state rebuttal witness, Defendant's then-roommate, was permitted to offer testimony that Defendant sells drugs despite admitting on direct examination and cross-examination that he had never witnessed Defendant sell drugs.
Seventh, Defendant claims that the following were not disclosed to him prior to trial as a possible result of ineffective assistance of counsel: (1) promise of leniency police made to Defendant's then-roommate concerning pending charges in exchange for testimony against Defendant, (2) criminal history of at least one state witness; (3) taped phone conversation between Defendant and investigating officer; (4) Defendant's taped statement to police; (5) statement to police made by another of Defendant's roommates; (6) statement to police made by Defendant's neighbors; (7) medical report of Johnson; (8) arrest warrant; (9) search warrant return; (10) drug paraphernalia taken from apartment, (11) photographs; (12) diagrams; (13) clothing; and (14) state's witness list.
Eighth, Defendant claims that false testimony by the police was offered at trial in that Defendant claims that during trial, the investigating officer falsely testified that Defendant had never called him and reported the incident in detail the day following the occurrence. The investigating officer stated that Defendant only wanted to know if there was an outstanding arrest warrant on him.
Finally, Defendant states that there was insufficient evidence to support a conviction in that if the trial would have been conducted in a fair manner, there would have been no evidence to support a conviction.
Defendant states that grounds one through three were not raised prior to his Rule 61 Motion because his counsel was ineffective.
2. Procedural Bars
Prior to addressing the merits of the individual claims in the motion for post-conviction relief, this Court must first apply the procedural bars of Rule 61. Delaware Superior Court Criminal Rule 61(i)(3)
Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) (citing Harris v. Reed, 489 U.S. 255, 256 (1989))
The Supreme Court has held that Rule 61(i)(3) bars all claims on a collateral review of a defendant's convictions if the claims could have been railed on direct appeal but were not, unless a defendant can show cause for his failure to do so and actual prejudice.
Flamer v. State, Del. Supr., 585 A.2d 736, 747 (1990); Younger, 580 A.2d 555-56; see also Jones v. State, Del. Supr., No. 285, 1989, Moore, J. (July 31, 1989) (ORDER); State v. Atkins, Del. Super., Cr. A. No. IN89-02-0923R1, Gebelein, J. (Mar. 8, 1996) (ORDER).
In the case sub judice, following Defendant's conviction, a direct appeal was filed in the Supreme Court of Delaware. The appeal set forth specific grounds alleging evidentiary mismanagement on behalf of the police officers and prejudicial evidentiary jury instructions. The Supreme Court affirmed the lower court's conviction in its decision of September 30, 1993. Therefore, unless the Defendant can show that he satisfies the "cause" and "prejudice" exceptions under the Rule 61(i)(3), the above mentioned grounds for post-conviction relief, which were not alleged in the direct appeal, are procedurally barred. The direct appeal did not address issues of prosecutorial misconduct, illegal search and seizure, Jencks violations or ineffective assistance of counsel. As an initial matter, therefore, unless Defendant can show cause and prejudice resulting from his failure to assert nearly all of his current contentions on appeal, his current contentions are barred. Defendant has failed to demonstrate cause and resulting prejudice for any of his contentions.
Rule 61(i)(3) provides as follows:
(i) Bars to Relief.
(3) Procedural Default. Any 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.
Defendant asserts several claims couched in ineffective assistance of counsel, which may establish cause; however, as discussed below, Defendant fails to demonstrate that he received ineffective counsel. ""[Clause' is recognized if the defendant shows that he received ineffective assistance of counsel under the Sixth Amendment" or that some external impediment prevented his attorney from raising a claim during trial or on direct appeal." Delaware Superior Court Criminal Rule 61(i)(5)
Jackson v. State, Del. Supr., No. 157, 1995, Veasey, C.J. (July 19, 1995) (ORDER) at 7.
Murray v. State, Del. Supr., No. 432, 1992, Moore. J. (Feb. 26, 1993).
Rule 61(i)(5) provides that the procedural bar to relief set out in Rule 61(i)(3) "shall not apply. . . to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Under Rule 61(i)(5), the defendant "bears the burden of proving the existence of a constitutional violation. . . ." Thus, this Court will review Defendant's contentions in order to ascertain if they rise to the level of a "colorable claim that there was a miscarriage of justice because of a constitutional violation. . . ." Often, as in the instant case, the constitutional violation alleged is violation of the Sixth Amendment right to counsel. Therefore, it is necessary to consider whether Defendant received ineffective assistance of counsel.
While Rule 61(i)(5) provides for postconviction consideration of issues which have not been previously litigated and may entail a miscarriage of justice, Rule 61(i)(4) allows for consideration of certain issues which have been previously litigated "in the interest of justice." State v. Rosa, Del. Super., Cr.A. No. IN90-02-1345R1, Goldstein, J. (Sept. 29, 1992).
Under rule 61(i)(4), the claims made in this motion are barred from further examination after having been considered previously on appeal because Defendant has failed to demonstrate that "substantial legal developments have revealed that the trial court lacked the authority to convict or punish" him. Flamer, 585 A.2d at 746.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1130 (1991) (citing Younger, 580 A.2d at 555).
3. Ineffective Assistance of Counsel
The Strickland Standard
Defendant advances his first claim and claims four through nine as support for his allegation of ineffective assistance of counsel. Summarily, he contends that his counsel's ineffective performance prior to and after the trial caused an adverse effect on his conviction and in the appellate process. He contends that such ineffectiveness is the sole cause for his failure to previously raise such issues. Of course, Rule 61(i)(3) is immediately implicated.
Pursuant to Super. Ct. Crim. Rule 61(i)(3) any ground for relief that was not asserted in the proceedings leading to the judgement of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows: (1) cause for relief from the procedural default; and (2) prejudice from violation of the defendant's right.
To prevail in proving an ineffective assistance of counsel, Defendant must demonstrate that: "(1) defense counsel's conduct fell below an objective standard of reasonableness; and (2) that counsel's actions were prejudicial because but for counsel's error, there is a reasonable probability that the result would have been different."
Flamer v. State, Del. Supr., 585 A.2d 736, 753 (1990), citing Albury v. State, Del. Supr, 551 A.2d 53, 58 (1988) (setting forth the standard from Strickland, 466 U.S. at 688).
Under Strickland, Defendant must make concrete allegations of ineffective and unreasonable conduct by his attorney. Conclusory allegations are legally insufficient to substantiate the claim. In addition, a claim of ineffective assistance based solely on counsel's strategic choices made after a thorough investigation of law and facts is insufficient to prove the claim that counsel's professional performance was ineffective. When dealing with the prejudice prong of the Strickland test in the context of the claim of counsel's failure to investigate, the determination of the prejudice depends on whether the expected evidence would have changed the outcome of the trial. Defendant's Allegations of Ineffective Assistance
Outten v. State, Del. Supr., 720 A.2d 547, (1998); Dawson v. State, Del. Supr., 673 A.2d 1186, 1196; (1996).
Duffy v. State, Del. Supr., No. 529, 1992, Horsey. J. (Jan. 27, 1993).
Strickland v. Washington, 466 U.S. 66 [ 466 U.S. 668] (1984).
Hill v. Lockhart, 474 U.S. 52; 106 S.Ct. 366; (1985) (elaborating on the Strickland test's prejudice prong).
In his motion for post-conviction relief of September 17, 1996, Defendant makes several allegations of ineffective assistance of counsel in an attempt to overcome the Rule 61(i)(3) procedural bar. This Court will not afford Defendant relief on these issues unless he makes substantial and concrete allegations of deficient attorney performance. Ground One: Defendant claims that his counsel was ineffective from the preliminary hearing through voir dire at the trial to his direct appeal. Defendant's counsel submitted an affidavit in response to the motion for post-conviction relief wherein he stated that in the interest of Defendant's claim of self-defense, counsel investigated the incident scene and contacted prospective defense witness'. At trial, defense counsel cross-examined the State's witness' and introduced three defense witnesses. Counsel notes in his affidavit that he did not recall any communication problems with Defendant.
Mumford v. State, Del. Supr., 703 A.2d 644, 1997; Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989).
Counsel also states that during trial preparation, Defendant insisted on subpoena of several witnesses who were not beneficial to Defendant's case. Specifically, Defendant insisted that two "alibi" or positive character witnesses be called at trial. First, at Defendant's insistence, defense counsel requested that the State locate a State witness, who the State did not intend to call at trial, so that such witness could be considered a defense witness. Defense counsel and Defendant disagreed about the effectiveness of this witness, and when the witness ultimately testified at trial, on behalf of Defendant, "he came across as a poor soul who did not help [the] case" for the Defendant.
Affidavit of Mr. Raymond J. Otlowski, Esq., p. 2 (July 22, 1998).
Second, upon Defendant's insistence, another possible trial witness was located by defense counsel. Defense counsel spoke with the witness, and it became clear that the witness would not testify, the way Defendant indicated he would. Defense counsel prudently decided not to call him at trial.
Id.
As Strickland test provides, Defendant has the burden to prove that his counsel's conduct fell below the professional standard and that but for that conduct the outcome of the case would have been different. Defendant has failed to rebut the presumption of effective assistance with his general objections. Defendant first fails to satisfy this Court that his allegations are true, and second, even if such allegations are true, he fails to demonstrate how they constitute ineffective assistance and resulting prejudice. A mere disagreement with counsel's trial tactics does not provide valid grounds for a claim of ineffective assistance of counsel. Defendant simply presented his objections to his counsel's strategic choices, rather then demonstrated any situations where his counsel's conduct was deficient, thereby failing to demonstrate either cause or prejudice.
Ground Four: Ground four of Defendant's motion is a complaint of prosecutorial misconduct couched in a claim of ineffective assistance. Defendant claims that during rebuttal the prosecutor intentionally misstated the evidence and then used such misstatements as a basis to wrongfully attempt to prove that Defendant's testimony was untruthful. He further alleges that the prosecutor's conduct misled the jury and unfairly undermined his credibility.
The witness to whom Defendant refers as a basis for this allegation is Jeff Modelski ("Modelski"). The trial transcript indicates that he was asked questions about his relationship with Defendant, if and how he knew Defendant sold drugs, and what he knew about the incident in question. Modelski testified that Defendant lived with him for "at least a month, during 1991", that Modelski's name was the only name on the lease, that he did not witness the stabbing, that Defendant did not work, that Modelski and Defendant used cocaine together, and that Defendant did not pay Modelski rent money, but rather paid for his rent in cocaine. Modelski testified on cross-examination that on the night of the stabbing, Defendant came into the apartment and got water from the sink. Modelski testified that he did not see a knife, nor did he ever see Defendant actually sell drugs.
Trial Transcript (Tr. Trans.) at 174-177.
Id. at 179-80.
In closing, the State referred to Modelski's testimony to rebut Defendant's testimony regarding his good character. It is clear that the character of an accused can be challenged by the prosecution to rebut the defendant's claim of good character through reputation evidence. Modelski's testimony was factual in nature; that is, Modelski had personal knowledge of the fact that Defendant did not work, used drugs, and used a barter system in exchange for lodging. Using this evidence, the State rebutted Defendant's character testimony. Furthermore, such evidence is tangential to the central issue of the case — whether Defendant was guilty of stabbing Johnson or whether Defendant act in self-defense. The additional allegations of prosecutorial misconduct also fall short of demonstrating a damaging impact on the central issue of the case. As a result, Defendant has proven neither cause or prejudice under Strickland in advancing this prosecutorial misconduct argument.
D.R.E. 405(a).
Defendant also alleges that the State elicited irrelevant testimony regarding Modelski's possible mental disabilities and Modelski's status as a disabled Vietnam veteran. Defendant contends that such testimony was prejudicial and improperly inflamed the passions of the jury.
Finally, a court is not required to reconsider a previously adjudicated claim simply because it has been "refined or reinstated." As such, Defendant's claim of improper testimony by Modelski is a reformulation, a restatement, of his D.R.E. 404(b) claim made on direct appeal.
Riley v. State, Del. Supr., 585 A.2d 219, 221 (1990).
Grounds five and six: Defendant then alleges inadmissible evidence and inadmissable hearsay in that Modelski rebutted testimony that was never given and that he offered testimony that Defendant sold drugs. Again, as previously discussed, Modelski testified to matters within his personal knowledge and admitted never having seen Defendant sell drugs — Modelski's testimony regarding his and Defendant's drug use and drugs-for-rent practice between the two men, were matters within Modelski's personal knowledge. As such, his testimony was not an in-court recitation of a prior out-of-court statement. Additionally, the State may properly call a witness in rebuttal that "was not called as part of its principal case" who contradicts a defendant's testimony.
Gatson v. State, Del. Supr., 234 A.2d 324, 324 (1967) stating:
[t]he fact that a witness called in rebuttal, even though not called in the case in chief, strengthens the case in chief is immaterial if, in fact, his testimony rebuts the defense offered. . . . In the cited case, it was specifically held that a party has a right to give evidence in rebuttal in reply to the case of the other side even if such evidence in rebuttal as an incidental matter tends to corroborate and strengthen the case in chief . . . [A]s a general rule the order of proof lies within the discretion of the trial court. . . . there must be some flexibility in the conduct of a trial to be governed by the exercise of the trial judge's sound discretion.
Id., citing, Garboctowski v. State, Del. Supr., 123 A. 395 (1923), Roberts v. State, Del. Supr., 79 A. 396 (1911). See Taylor v. State, Del. Supr., 620 A.2d 859 (1993) Duffy v. State, Del. Supr., 614 A.2d 1275 (1992).
Again, Defendant couches allegations five and six under the heading of ineffective assistance. Clearly, he has not satisfied the Strickland standard with such allegations.
Ground Seven: Defendant enumerates fourteen allegations of failure by the State to disclose items to him. Superior Court Criminal Rule 16(a)(1)(A-E) states that a defendant is entitled, upon request, to receive from the State: (1) his oral statements made in response to interrogation before or after arrest and before a grand jury; (2) his prior criminal history; (3) documents and tangible objects material to the preparation of the defendant's defense or that will be used by the State at trial; (4) scientific reports and examinations that are material to the defense; and (5) expert witness identity and substance of opinions.
In the case sub judice, Defense counsel states that discovery was conducted within the scope of Rule 16, and Defendant fails to provide this Court with evidence that such Rule 16 evidence was requested and not produced. Defendant appears to misunderstand that the disclosure rule contemplates that such disclosures be made to defense counsel and the information therein then be discussed and shared with the defendant. The rule does not contemplate that Defendant have each disclosure in his, and not in his attorney's, possession. Defendant fails to prove by other than conclusory reference that any disclosure made by the State to the defense was not shared or discussed with him. As a result, Defendant has failed to demonstrate that there were any deficiencies in the discovery process, and assuming arguendo that there were, he has not demonstrated that he therefore suffered prejudice or that a miscarriage of justice was committed.
Ground Eight: Defendant claims that the police offered false testimony by stating that Defendant did not call the officer to report the stabbing incident; but rather, that Defendant contacted the officer only to ascertain if there was an outstanding arrest warrant against him. In this instance, it is within the jury's province, right and duty to evaluate a witness' testimony and a witness' credibility. And further, the officer's testimony is tangential to the central issue of the case — as a result, it is clear Defendant has not demonstrated the falsity of such testimony or any resulting prejudice from the officer's testimony.
Robertson v. State, Del. Supr., 630 A.2d 1084, 1095 (1993).
Ground Nine: Defendant states that had his trial been conducted in a fair manner, there would have been no evidence to support a conviction. This appears to be a last-ditch, catch-all effort by Defendant to substantiate grounds that would afford him postconviction relief.
This claim of insufficiency of evidence is reviewable only if the Defendant first presented it to the trial court, either in a motion for a directed verdict or a Rule 29 motion for judgment of acquittal. In the absence of such a motion, the claim is waived. This Court may excuse a waiver, however, if it concludes that the trial court committed plain error, which is "limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice." In the absence of "plain error" this claim is without merit.
Monroe v. State, Del. Supr., 652 A.2d 560, 563 (1995).
Gordon v. State, Del. Supr., 604 A.2d 1367, 1368 (1992).
Monroe v. State, Del. Supr., 652 A.2d 560, 563 (1995).
Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986), cert. denied, 479 U.S. 869 (1986) (citing Bromwell v. State, Del. Supr., 427 A.2d 884, 893 n. 12 (1981)).
Defendant produces no present evidence to substantiate the claim that his conviction was not supported by sufficient evidence or that "plain error" exists on record. The standard for reviewing a claim of insufficiency of the evidence is "whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt." In a jury trial, however, the jury is responsible for determining witness credibility, resolving conflicts in testimony, and for drawing any inferences from the proven facts.
Robertson v. State, Del. Supr., 596 A.2d 1345, 1355 (1991).
Chao v. State, Del. Supr., 604 A.2d 1351, 1363 (1992); Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982); Tyre v. State, Del. Supr., 412 A.2d 326, 330 (1980).
The record of the instant case indicates that at trial the State presented seven witnesses to prove the charges of Assault in the First Degree and Possession of a Deadly Weapon During a Felony. The defense, in turn, introduced its three witnesses to support Defendant's claim of self-defense. A jury returned a verdict of guilty on both charges; it found that the State had proven beyond a reasonable doubt that Ashley was guilty. On a direct appeal, the Supreme Court affirmed Defendant's conviction. There clearly was sufficient evidence to support the conviction. There is no proof of prejudice contained within this ground. Not only is this ground unsubstantiated on its face, it is unsubstantiated in light of this Court's resolutions as previously discussed.
As for all of Defendant's claims of ineffective assistance as discussed above, in each instance, he fails to demonstrate how the allegations constitute ineffective assistance of counsel because he neither demonstrates unreasonable performance by his counsel nor does he demonstrate prejudice. Additionally, because Defendant seeks and fails to overcome the Rule 61(i)(3) procedural bar by asserting ineffective assistance, his motion is barred.
4. Illegal Search and Seizure
Defendant alleges illegal seizure of the apartment, illegal search of the apartment and illegal seizure of the individual at the apartment. Since such issues were not asserted in the proceedings leading to the judgment of conviction, Defendant must demonstrate cause from the procedural default and a substantial likelihood that if the issue had been raised, the outcome would have been different. If he cannot demonstrate this, then, under Rule 61(i)(5), Defendant will be afforded relief if he can demonstrate a miscarriage of justice because of a constitutional violation.
The constitutional violation upon which Defendant relies is an alleged violation of the Fourth Amendment of the Constitution of the United States and Article I, section 6 of the Delaware Constitution. Such provisions protect the "right of the people to be secure. . . against unreasonable searches and seizures" by requiring the police to obtain a warrant, supported by probable cause before searching any area in which an individual has an expectation of privacy. Probable cause exists where the facts and circumstances within the officers' knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. Search of the Apartment Pursuant to a Warrant: In order for Defendant to prevail on the illegal search and seizure grounds asserted in the motion, Defendant must have had a reasonable or legitimate expectation of privacy in the apartment he shared with Modelski. Fourth Amendment protection is not invoked absent a reasonable or legitimate expectation or privacy. A defendant enjoys a reasonable expectation in the area searched if (1) he has exhibited an actual expectation of privacy, showing that he seeks to preserve something as private; and (2) if society is prepared to recognize as reasonable his actual expectations of privacy, whether his expectation, viewed objectively, is justifiable under the circumstances. It is not disputable that Defendant had a reasonable expectation of privacy in the apartment he shared with Modelski, despite how Defendant paid for it. As such, a search of the apartment could not be conducted without a warrant or consent.
State v. Rossitto, Del. Super., Cr.A. No. IN86-04-0587, Martin, J. (Sept. 9, 1988) (Mem. Op).
Id., State v. DePasquale, Del. Super., IN91-01-2271 to 2275, Goldstein, J. (July 18, 1991).
Rakas v. Illinois, 439 U.S. 128 (1978); see supra n. 41.
U.S. v. Chadwick, 453 U.S. 62 [ 433 U.S. 1] (1977); Gibbs v. State, Del.Supr., 479 A.2d 266 (1984).
Smith v. Maryland, 442 U.S. 736 (1979); Katz v. United States, 389 U.S. 347 (1967).
The New Castle County Police executed a valid search warrant, based on probable cause, to search the apartment. A search warrant is lawful if a neutral and detached magistrate is able to review the "four corners" of the warrant and verify that probable cause to search exists. An affidavit satisfactorily states probable cause if it states "facts adequate to warrant a reasonable man in the belief that an offense has been committed and that seizable property would be found in a particular place or on a particular person."
11 Del. C. § 2306. The statutory requirements for establishing constitutionally sufficient probable cause are as that the application or complaint must: (1) be in writing, signed by the complainant and verified by oath or affirmation; (2) designate the house, place, conveyance or person to be searched and the owner or occupant; (3) describe, with particularity, the things or persons sought; (4) substantially allege the cause for which the search is made or the offense committed by or in relation to the persons or things searched for; and (5) state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and a factual basis for such suspicion. Id.
Pierson v. State, Del. Supr., 338 A.2d 571 (1975).
Jensen v. State, Del.Supr., 438 A.2d 105 [ 482 A.2d 105], 110-111 (1984). If the facts set out in the affidavit for a search warrant are such that a reasonably discreet and prudent person would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a search warrant. Id.
The police had sufficient facts to support their affidavit for probable cause and to belief that the weapon used in the assault and blood evidence would be found in Defendant's apartment (N-2). Johnson reported to the police that he had been stabbed in an altercation with a "man who lived in apartment N-2 of the Country Squire Apartments" and the circumstances of his being in the basement of building N. The police investigated the scene and verified Johnson's report, in part, from the blood trial in the basement of the apartment building that lead into apartment A-2. This provided the police with reasonable belief that crime evidence would be found in Defendant's apartment.
Based on the above information, the police obtained a warrant that complied with 11 Del. C. § 2306. During the search, the police recovered blood and small vials typically used to store cocaine. The items were seized pursuant to the warrant. Initial Seizure of the Apartment: In the instant case, the police had probable cause, based on the Johnson's report and the blood evidence, to believe that Johnson's assailant was in apartment N-2 of the Country Squire Apartments. The police arrived at the apartment and discovered blood in the common hallway area. When the officers ascertained that the suspect (eventually, Defendant) had come from that apartment, the officers knocked on the door and Modelski answered it. Modelski, a resident of the apartment, consented to the officers entering the apartment.
See 11 Del. C. § 2309(a) ("any papers, articles which are the subject matter of a search warrant may be seized. . ."). Despite the absence of the seizure of any evidence not specified in the warrant, Defendant's contentions are also thwarted as seizure of evidence under the plain view doctrine is permitted where: (1) the view of the evidence results from a lawful police activity such as execution of a search or arrest warrant; (2) police contact with the evidence is inadvertent; and (3) the item, when seized, is of "immediately apparent evidentiary value." Boardley v. State, Del. Supr., 612 A.2d 150 (1992).
The apartment was searched to make sure nobody else was in the apartment and the officers remained at the apartment until the search warrant was obtained. Officer John Downs ("Downs") testified that nothing was taken in or out of the apartment at that time. The apartment was secured at 11:30 p.m. in the evening while police obtained a search warrant. The warrant was signed at 2:10 a.m. the following morning, less than three hours after police initially secured the apartment.
The police did not enter the premesis prior to obtaining the warrant other than to assure themselves that nobody else was there. Modelski, Defendant's roommate, allowed the officers to enter the apartment simply to determine if anybody else was there. The police permissibly secured the premises for the time necessary to secure a warrant so that evidence would not be destroyed in their absence. Warrantless searches and seizures inside a residence are "presumptively unreasonable unless the occupants consent or exigent circumstances exist to justify the intrusion." In the case sub judice, it is clear that both Payton exceptions are met: (1) Modelski consented to the officers' entrance into the apartment to ascertain if there were additional occupants; and (2) exigent circumstances existed because there was a real possibility that the then-suspect, now-Defendant would return to the apartment and destroy or remove evidence.
State v. Ellison, Del. Super., No. 9701020567, 9701020483, Carpenter, J. (Aug. 13, 1998).
Id. citing Payton v. New York, 445 U.S. 573 (1980). Exigent circumstances refer to a situation in which the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action. Ellison, supra n. 42, citing United States v. Flickinger, 573 F.2d 1355 (9th Cir. 1978), cert. denied, 439 U.S. 836 (1978), rev'd on other grounds, United States v. McConney, 728 F.2d 1195 (9th Cir. 1984).
Thus, Defendant's contention, that an illegal seizure was committed when the officers secured the apartment, is unfounded.
Seizure of Modelski: In light of the above discussion of Fourth Amendment and Delaware Search and Seizure jurisprudence, Defendant has no standing to object to police actions with regard to the seizure of Modelski. Defendant cannot claim a possessory interest in Modelski.
Because Defendant's allegations of illegal search and seizure are unfounded, he has clearly not overcome the procedural bar of Rule 61(i)(3) and has failed to meet the standard of Rule 61(i)(5). Therefore, he cannot be afforded relief on these grounds.
5. Jencks violations
Defendant alleges that statements made by two state witnesses, Johnson and Modelski, were not provided to him pursuant to Jencks v. United States and Superior Court Criminal Rule 26.2(a), which require that after a witness other than the defendant has testified on direct examination, the court, on motion by the non-calling party, shall order the State or the defendant and his attorney, to produce, for examination and use, any statement of the testifying witness that is in their possession and that relates to the subject matter concerning the witness' testimony.
353 U.S. 657 (1957).
Johnson's statement was taped and played into evidence. Defense counsel requested a copy of the tape, and was afforded the opportunity to cross examine Johnson. Modelski's prior statement was provided to the defense, and defense counsel cross examined Modelski regarding that statement.
While Johnson and Modelski were not the only witnesses presented by the State, they are the witnesses to whom Defendant refers in his Jencks violation allegation. The trial transcript clearly demonstrates that the relevant statements were provided by the State to the defense as required by Jencks. Defendant, therefore, has not demonstrated the requisite cause and prejudice required to overcome the Rule 61(i)(3) procedural bar, nor has he satisfied the Rule 61(i)(5) exception. As a result, this Court will not afford Defendant relief because there was no Jencks violation in the case sub judice.
CONCLUSION .
Defendant's motion does not satisfy the "cause" and "prejudice" exceptions under the Rule 61(i)(3). He has failed to demonstrate to this Court that his counsel was ineffective under Strickland. There was no illegal search or seizure, nor was there a Jencks violation. Therefore, Defendant is not entitled to postconviction relief.
Moreover, Defendant has failed to overcome the Rule 61(i)(3) procedural bar by virtue of Rule 61(i)(5) because he has not demonstrated a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
Bailey v. State, Del. Supr., 588 A.2d 1121, 1130 (1991), citing Younger, 580, A.2d at 555.
For the above stated reasons Defendants motion for Post-Conviction relief is DENIED.
IT IS SO ORDERED.
.