Opinion
Def. ID# 9909027880.
February 28, 2005.
Julian Bodnari Andrew J. Witherell, Esquire Adam D. Gelof, Esquire Department of Justice.
Memorandum Opinion — Motion for Postconviction Relief
Gentlemen:
This is my decision on Julian Bodnari's ("Bodnari") Motion for Postconviction Relief. Bodnari and his co-defendant, Herman Garcia ("Garcia"), were traveling southbound on U.S. Route 113 when they were stopped for speeding by a Delaware State Police ("DSP") officer. The routine traffic stop turned into a drug bust when the officer discovered nearly 2.2 pounds of cocaine and a semi-automatic 9 mm pistol hidden in the vehicle's center console. Bodnari and Garcia were then arrested and charged by the State of Delaware (the "State") with numerous drug and weapon offenses. Garcia pled guilty to several offenses and, as part of his plea agreement, agreed to testify against Bodnari.
The State was represented at Bodnari's trial by Deputy Attorney General Adam D. Gelof ("Gelof"). Bodnari was represented by Andrew J. Witherell ("Witherell"). Garcia did testify against Bodnari. The jury found Bodnari guilty of most of the more serious offenses. Bodnari filed Motions for a New Trial and Judgment of Acquittal, which I denied. The Supreme Court affirmed Bodnari's convictions.
This is Bodnari's first Motion for Postconviction Relief. It was filed on June 30, 2004. Therefore, it was filed on time. Bodnari seeks relief based upon three grounds. Ground one is an allegation of ineffective assistance of counsel. It is based upon Witherell's alleged failure to listen to the tape of DSP Officer Andrew J. Goode's ("Goode") interview of Garcia on September 20, 1999 and to impeach Garcia's credibility using the information on the tape. Ground two is an alleged violation by the State of Bodnari's rights under the discovery rules, Brady, Jencks, and 11 Del. C., § 3507. It is based upon the State's alleged failure to disclose to Bodnari all of Garcia's statements. Ground three is an allegation of ineffective assistance of counsel. It is based upon Witherell's alleged failure to request a mistrial after Garcia admitted at trial that he had lied to the DSP about other people being involved with him and Bodnari in the distribution of drugs. Gelof and Witherell filed affidavits responding to Bodnari's allegations.
A. Violation of Various Rights
Bodnari's second ground for relief could have been raised on appeal and is, therefore, procedurally barred pursuant to Superior Court Criminal Rule 61(I)(3) unless Bodnari is able to show cause for relief from the procedural bar and prejudice as a result of any violation of his rights. However, "this bar to relief does not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Bodnari alleges that the State interviewed Garcia five times and failed to turn over all of Garcia's statements to him in violation of his rights. I addressed this argument in Bodnari's Motion for a New Trial and concluded that it had no merit because the State had, in fact, disclosed to Bodnari all of Garcia's statements long before the trial started. Bodnari has not raised anything new regarding this allegation in his Motion for Postconviction Relief that has changed my mind. Therefore, having concluded previously that it is without merit, I will not revisit this argument in its entirety now.
Outten v. State, 720 A.2d 547, 556 (Del. 1998).
Outten, 720 A.2d at 556, citing Super. Ct. Crim. R. 61(i)(5).
One, September 19, 1999; Two, September 20, 1999; Three, March 10, 2000; Four, April, 2000; Five, before trial, 2000.
However, I will address one part of Bodnari's argument now because Bodnari did not clearly raise it in his Motion for a New Trial and I did not clearly address it when I denied that motion. Bodnari alleges that Goode interviewed Garcia again sometime in April, 2000. This is the alleged "fourth interview." Bodnari also alleges that the State did not disclose to him any of Garcia's statements made during this interview. Specifically, Bodnari alleges that Garcia told Goode that there were "other people" involved in the sale of drugs with him. Bodnari further alleges that these "other people" comprised a group of 14 people that were convicted of distributing more than 10 million dollars worth of marijuana and cocaine in 1999 and 2000. The "other people" were led by Eduardo Hernandez, who was, according to Bodnari, Garcia's good friend. A private investigator hired by Bodnari is the source of this information. All of this is important, according to Bodnari, because the fact that "other people" were involved with Garcia in the distribution of drugs could have been exculpatory.
The basis for Bodnari's allegation that Goode interviewed Garcia in April, 2000 is a statement that Garcia made at trial. Garcia admitted that he had lied previously to Goode because he "didn't want to get a couple other people involved in it." Later on in his testimony Garcia stated that he told Goode the truth when he talked to him again. It is clear to me from my review of the record that Garcia, when he said that he had lied to Goode, was referring to his September 20, 1999 and March 10, 2000 interviews with Goode. Garcia did meet again with Goode as part of Gelof's trial preparation. This puts Garcia's statements about lying to Goode and then later telling him the truth about his and Bodnari's role in a drug distribution conspiracy in the proper context and accounts for all of the interviews that Garcia had with the State.
I have no reason to believe that Garcia ever told the State the real names of the other people involved with him and Bodnari in a drug distribution conspiracy. I also have no reason to believe that these "other people" were later convicted in 1999 and 2000 of distributing 10 million dollars of marijuana and cocaine. Gelof stated in his affidavit that he does not have any knowledge of Goode or anyone else for the State conducting any interview of Garcia before Bodnari's trial that focused at all on "other people" being involved with Garcia in a drug distribution conspiracy. Bodnari has not presented me with any convincing information that anyone else associated in any way with Garcia was later convicted of selling large quantities of drugs. I would think that if Bodnari's private investigator really had this information, then he would have some proof of it. Instead, I only have Bodnari's vague allegations, which are nothing more than that. They simply have no basis whatsoever in fact. Therefore, I have no reason to believe that Garcia told the State the real names of the "other people" that were involved with him and Bodnari in distributing drugs. This is just something that Garcia mentioned for the first time at trial. Thus, there was no violation of Bodnari's rights because the State was unaware of this particular information before trial.
As an aside, it is obvious that there were other people involved with Garcia and Bodnari in distributing drugs. Garcia gave statements to the State, which were given to Bodnari before his trial, making it clear that there were other people involved with him and Bodnari in distributing drugs. For example, Garcia told the DSP about how Bodnari got drugs and how he used other people to deliver and protect the drugs and money. However, Garcia only used partial names and nicknames like "Rasher," "Sam," and "Mooch." The only complete name the DSP got was Sam Stumhofer, who Bodnari and Garcia identified as "Sam." Sam owned the motor vehicle that Bodnari and Garcia were riding in when they were stopped. Thus, it is no surprise that there were "other people" involved. There were just no "other people" involved that Garcia ever identified in any useful way for the State.
B. Ineffective Assistance of Counsel
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. 668 (1984).
Strickland, 466 U.S. at 687.
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, J. (December 28, 1995) at 7, aff'd, 637 A.2d 1174 (Del. 1997).
1. Failure to Investigate
Bodnari alleges that Witherell did not listen to the tape of Goode's interview of Garcia on September 20, 1999. Witherell acknowledges that he did not listen to the tape. However, Witherell did have and review Goode's police report that summarized Garcia's statements. Charles M. Oberly, III, Esquire, Bodnari's appellate counsel, obtained the tape, had it transcribed, and concluded that it did not differ in any material way from the summarized version in Goode's police report. Thus, it does not matter that Witherell did not listen to the tape because he did review Goode's report, which accurately summarized the information on the tape. Bodnari implicitly agrees with this because all of his complaints about Witherell are based on information that was in Goode's report. Bodnari's real complaint is what Witherell did with the information, not with the fact that he did not listen to the tape.
Bodnari alleges that Garcia was the State's star witness. Given Garcia's importance, Bodnari alleges that Witherell had a duty to investigate Garcia's statements and impeach his credibility. I have concluded that Witherell did do this, just not in the manner that Bodnari would have preferred. Witherell read Goode's report, gave it to Bodnari and discussed it with him. Witherell also used the report when he went to Reading, Pennsylvania, Bodnari's hometown, to investigate various matters that Garcia had discussed with Goode. Bodnari alleges that Goode's police report contains four statements made by Garcia that could have been used to impeach his trial testimony.
One. Garcia told Goode on September 20, 1999 that he and Bodnari were going to see "Rasher" in Chesapeake, Virginia. Goode's report does not mention anyone named "Mooch." Garcia testified at trial that he and Bodnari were going to see "Mooch." Bodnari alleges that these are inconsistent statements and that they could have been used by Witherell to impeach Garcia's credibility.
Two. Garcia told Goode on September 20, 1999, that "Sam" usually drives the vehicle Bodnari was driving at the time of his arrest and that "Sam" is Bodnari's girlfriend's brother. Bodnari had told the trooper at the scene that the vehicle he was driving was owned by his brother-in-law, but that he could not remember his brother-in-law's name. Bodnari later told Goode that the owner of the vehicle was not his brother-in-law, but that he was a friend who was going out with his sister and that this makes him like his brother-in-law. Bodnari alleges that the State was able to impeach his credibility even though he never testified and that he could not respond. Bodnari goes on to claim that he and Garcia are the only persons that are able to explain the relationship issue with respect to "Sam."
Three. The DSP found approximately $1400 on Garcia when they arrested him on September 19, 1999. Garcia told Goode on September 20, 1999 that $1200 came from his family's restaurant and $200 was his spending money. Garcia testified at trial that $1,300 of the money was payment from Bodnari for prior work. Bodnari alleges that the State used this statement to show that Garcia worked for Bodnari and that Bodnari was the "top dog" in a drug distribution conspiracy. Bodnari also alleges that the statements are inconsistent and could have been used to impeach Garcia's credibility.
Four. Garcia told Goode on September 20, 1999 that he had never been to Virginia before. Bodnari says that this is the only place where Garcia states that he had never been to Virginia before. Garcia testified at trial that he had been to Virginia before, but that Bodnari went along with him this time since he did not know exactly where he was going. Bodnari's defense at trial was that he was with Garcia only to show him how to get to Virginia. According to Bodnari, Garcia knew that Bodnari and his family took vacations in Virginia. Bodnari alleges that Witherell should have used this statement during Garcia's examination to both support Bodnari's defense and impeach Garcia's credibility.
I find that Witherell's representation did not fall below an objective standard of reasonableness. The fact that Witherell did not listen to the tape is irrelevant because he reviewed Goode's police report, which accurately summarized Garcia's statements. The issue is whether Witherell did an adequate job of impeaching Garcia's credibility. I have concluded that he did. Garcia's first, third and fourth statements to Goode are inconsistent with his trial testimony. This is hardly a surprise since Garcia readily admitted at trial that he had lied repeatedly to the DSP officers. In any event, it is difficult to see how all of this was going to help Bodnari. It is not surprising that Garcia, who was in possession of 2.2 pounds of cocaine and a 9 mm semi-automatic pistol, might lie when he was first stopped by the DSP officer about where he was going, who he was going to see, and the source of a large amount of cash that was on him. Garcia's second statement to Goode is consistent with his trial testimony and is simply some unpleasant testimony for Bodnari that Witherell could not attack because "Sam" would not even talk to Witherell.
Witherell did an excellent job of impeaching Garcia's credibility. He made Garcia admit before the jury that he had lied repeatedly to the DSP officers that had interviewed him. Witherell also made it clear to the jury that Garcia had entered into a very favorable plea agreement with the State and that he would do whatever was necessary to get out of prison as soon as possible so that he could go home and see his children. Witherell very ably proved the point that Garcia was a liar and had every reason to keep lying. This is exactly what Bodnari wanted done and it is exactly what Witherell did. I can find no fault at all in Witherell's representation of Bodnari merely because he accomplished this objective without attacking a few of Garcia's statements.
2. Brady Material
Bodnari alleges that Witherell did not act appropriately when Garcia testified at trial that he had previously lied to the police because he did not want to get "other people" involved. Bodnari alleges that the fact that "other people" may have been involved was unknown to him, that it was Brady material, and that it should have been disclosed by the State to Bodnari before trial. Bodnari alleges that Witherell should have either asked for a mistrial or demanded that the State immediately disclose all Brady material to him. Instead, according to Bodnari, Witherell did nothing. I have concluded that this argument is without merit because there was nothing for Witherell to do.
Witherell stated in his affidavit that he specifically requested that all Brady material be turned over by the State. Witherell further stated that there was no information turned over to the defense regarding "other people." Gelof stated in his affidavit that he gave all Brady material to defense counsel. Gelof also stated that he was not aware of Garcia ever stating prior to trial that there were "other people" involved in drug trafficking with him that were subsequently convicted of selling large quantities of drugs. As I stated earlier, Garcia did tell the DSP, by using partial names and nicknames, about people who supplied Bodnari with drugs and how Bodnari used other people to deliver and protect the drugs and money. The State gave Bodnari all of these statements before the trial. However, given the denials in Gelof's affidavit and the vagueness of Bodnari's allegations, I have no reason to believe that Garcia ever gave the State any real names of other who were involved with him and Bodnari in distributing drugs. Bodnari has simply not demonstrated that the State withheld any evidence concerning "other people," or how this evidence may have impacted his case. Given this, there was nothing at all deficient in the manner in which Witherell handled this matter.
CONCLUSION
Bodnari's Motion for Postconviction Relief is DENIED for the foregoing reasons.