Opinion
ID#: 9809004025
Submitted: August 5, 2002
Decided: October 3, 2002
ORDER
Upon Defendant's Pro Se Motion for Postconviction Relief — DENIED
On November 29, 2001 Delaware's Supreme Court affirmed Defendant's convictions for several crimes, including Unlawful Sexual Intercourse First Degree, Possession of a Deadly Weapon During the Commission of a Felony and related offenses. On May 31, 2002, Browne filed this motion for postconviction relief under Superior Court Criminal Rule 61.
Browne makes four claims. First, he argues that his trial and appellate counsel "labored under a conflict of interest when he failed to point out the negligence of the investigative team and his [law] partner." Second, Browne claims that he was denied the right to a speedy trial and he was prejudiced "because his witnesses moved and couldn't be located for trial testimony." Third, Browne argues that the court violated his rights by improperly admitting into evidence his incriminating statement and incriminating letters. Finally, Browne makes claims about various pretrial matters that he characterizes as "illegal." For example, Browne challenges the decisions concerning the bail setting process.
After preliminary consideration under Rule 61(d) the court required the State's response under Rule 61(f)(1). The State made its submission opposing Browne's motion on August 5, 2002. Browne filed a reply on September 4, 2002. He also filed motions for appointment of counsel, for an evidentiary hearing and for funds to hire an expert witness.
Under Rule 61(e)(1) the court will appoint counsel "only in the exercise of discretion and for good cause shown, but not otherwise." As presented below, Browne has not shown good cause for providing court-appointed counsel and for funds to hire an expert. The only reason for hiring an expert, according to Browne, is his conclusory claim that "the case still needs to be investigated and witnesses that have not testified should be subpoenaed to testify under the penalty of perjury." Moreover, after considering the motion for postconviction relief, the State's response, the movant's reply, the record and the added materials submitted by Browne, the court finds under Rule 61(h)(1) that an evidentiary hearing is not desirable. Accordingly, under Rule 61(h)(3) it appears that the case is appropriate for summary disposition.
I. Appointed Counsel's "Conflict of Interest"
Browne's claim about his appointed counsel's conflict of interest is based on his allegation that the attorney originally assigned to represent him made several mistakes and the attorney who finally represented him at trial and on appeal overlooked those things in order to avoid embarrassing another lawyer with whom he worked. Despite how Browne characterizes it, that is a claim of ineffective assistance of counsel. Defendant must focus on the specific ways that his original counsel's efforts failed to meet professional standards and whether any established shortcoming caused prejudice to him. It is axiomatic that if Browne cannot establish that his original counsel did something wrong, he cannot establish any "conflict of interest."
Along the same line, several of the examples of "conflicts of interest" that Browne presents actually concern decisions made by his trial counsel. They have nothing to do with his original counsel. For example, Browne complains that his trial counsel failed to ask for a mistrial after the deliberating jury sent out a note suggesting that it might be deadlocked. That flatly is an allegation of ineffective assistance of trial counsel. It has nothing to do with his original counsel, much less any conflict of interest on his trial counsel's part.
To support the challenge to his appointed counsels' efforts, Browne presents a long assortment of mistakes they allegedly made before and during trial. Generally, Browne attempts to establish the alleged mistakes by categorical statements and citations to inapplicable case authorities.
Browne begins his "conflict of interest" argument by reciting various legal duties that he says his original counsel violated. His first specific claim is that the "docket sheet reflects [his original counsel's] negligence due to the filing of untimely pretrial motions, which clearly violated movant's 6th and 14th amendment rights and denied movant a fair trial." Browne then cites generally to a federal case that is not helpful here.
The motion to which Browne refers was a motion to suppress his incriminating statement. The motion was based on a possible violation of Browne's right against self-incrimination. On cross-examination during Browne's preliminary hearing in the Court of Common Pleas on September 21, 1998, the Chief Investigating Officer testified that after his arrest, "[Browne] was transported up and Mirandized by myself. Mr. Browne initially indicated that he wasn't aware of what this was all about. . . ." At trial, the State introduced Defendant's videotaped statement, which begins with the interrogating officer's reading Browne his Miranda rights and with Browne agreeing to testify.
Most significantly, Browne's statement to the police was incriminating in the sense that he admitted having sexual relations with the complaining witness and he corroborated some of the other allegations by the complaining witness. It was exculpatory, however, in the sense that Browne's statement was consistent with his trial defense of consent. As for Browne's letters that were admitted into evidence, the police did not seize them from Browne. They were turned over to the police by someone else and they were admissible. Thus, even if counsel were negligent for not filing a motion to suppress sooner, it made no difference. Browne's motion to suppress was meritless. Taking the record into account, however, Browne only established that no pretrial motion was filed, not that a motion was called for.
Browne's next example of misrepresentation is that his original counsel "violated the cannons of professional responsibility when [counsel] quit representing the movant without filing a motion with the court." That claim is frivolous.
Browne's third specific complaint of misrepresentation is that his trial counsel went to trial unprepared. Browne does not even attempt to prove that claim. Meanwhile, the record shows that on June 1, 1999, shortly after he entered the case, Browne's trial counsel asked the court for a trial continuance because, in deed, he was unprepared. The continuance was granted, however, and the case was rescheduled to July 27, 1999. For reasons that are unclear, the trial was rescheduled again, to September 14, 1999, which is when the trial was held. Accordingly, Browne's trial counsel had approximately three months to prepare.
In summary, Browne's original counsel filed an untimely motion to suppress Browne's incriminating statement, but the motion was unnecessary and meritless. And Browne's trial counsel was not prepared for trial initially, but he asked for and received a continuance. So when Browne's specific claims are considered, they do not establish ineffective assistance of counsel or, to use Browne's terms, a "conflict of interest." Although it does not prove that Browne's trial counsel was effective, it bears mention that Browne's trial counsel secured Browne's outright acquittal on two charges and acquittals on the lead charges in the remaining counts. That bolsters, somewhat, the presumption of effectiveness.
II. Speedy Trial
Browne did not make a speedy trial claim on direct appeal. Accordingly, it can be said that his speedy trial claim has been procedurally defaulted under Rule 61(i). Nevertheless, the court will consider the four-well established factors that apply to motions to dismiss based on alleged denial of the right to a speedy trial. Defendant was arrested on September 11, 1998. As mentioned, his trial began on September 14, 1999. Thus, the time from arrest to trial was one year. The court will not draw a bright line and declare that a delay between arrest and indictment of one year is presumptively prejudicial, although the court knows that a case's anniversary tends to be the break point. Taking into consideration the seriousness of the indictment against Browne, the court tends to view the delay as not presumptively prejudicial. Accordingly, the court is not obliged to consider the other factors that apply to speedy trial motions.
Even so, the court observes that the case completed the case review process on January 25, 1999. The court scheduled the trial to be held on June 10, 1999. On June 1, 1999, as mentioned, Browne's trial counsel asked for a continuance. It appears from the record that the court then attempted to find a trial date to counsels' liking. It issued trial scheduling orders on June 11, 1999; July 9, 1999 and July 23, 1999. The July 9, 1999 trial schedule order called for trial on September 28, 1999. The subsequent trial scheduling order of July 23, 1999 moved the trial ahead two weeks to September 14, 1999. That pattern of scheduling orders is consistent with the typical back-and-forth between the court's trial scheduling staff and counsel for the parties. In any event, it is beyond dispute that the initial trial date was continued at Browne's request.
The court categorically rejects any responsibility for delay associated with the case review process. Browne was indicted on October 26, 1998. He was arraigned on November 17, 1998. His first case review was December 14, 1998 and his final case review was on January 25, 1999. In other words, Defendant completed the entire case review process in less than 90 days. The court then scheduled his trial for approximately four months later. The delay between final case review and original trial date is regrettable, but not excessive. The court continued the trial for an almost undeniable reason, defense counsel's unpreparedness due to last-minute substitution.
As to Browne's assertion of his right to speedy trial, the court recognizes that Browne filed his own motion asserting his right to speedy trial after the substitution of counsel. Nevertheless, the court is reluctant to place much weight on such a motion. In many cases, as a practical matter, delay is to a defendant's advantage. In many cases, especially cases where their clients face long prison sentences and the defense is weak, defense attorneys do not press speedy trial claims out of concern that their clients will get what they want. Allowing a defendant and his attorney to take contradictory positions on trial scheduling matters is unseemly and it puts the court in a predicament. No matter what the court does, the defense can complain.
While the court will presume that Browne sincerely wanted his trial in June, it also will presume that Browne's trial counsel weighed Browne's long-term best interest before asking for the continuance. Accordingly, the court will take into consideration but discount Browne's pro se request for a speedy trial. Moreover, the court observes that the trial took place barely more than three months after Browne's pro se assertion of his right to speedy trial.
Finally and most importantly, Browne's claim of actual prejudice is confounded by his own motion. Specifically, Browne asserts:
Movant claims that he submitted a list of witnesses to his attorney . . . [,] she claimed that she could only locate one witness which was interviewed by an investigator of the Public Defenders.
By his own pleading, therefore, Browne acknowledges that all but one of his potential witnesses were missing even before the original trial date. That, of course, assumes that those witnesses actually existed and that they could have helped Browne had they appeared for trial. The only support for those assumptions is a memorandum from the Public Defender's Special Investigative Unit to Browne's attorney dated September 22, 1998 and a paper denominated "Affidavit" dated either June 12, 2000 or March 12, 2001.
The memorandum suggests that Browne's first cousin, who "has no affection" for the complaining witness had bad things to say about the way the complaining witness behaved toward Browne. The memorandum further indicates that when the investigator tried to corroborate Browne's cousin's claims about the complaining witness, the investigator was unsuccessful. The investigator reported that Browne's cousin could not provide corroboration, although the cousin said she would try.
By the same token, the "Affidavit" contains allegations against the complaining witness and her family based on heresay and the declarant's eyewitness accounts. The declarant, however, admits that she intentionally made herself unavailable for Browne's trial allegedly because she was afraid of the complaining witness and the complainant's family. In other words, the delay between Browne's arrest and trial played no role in that potentially helpful witness being unavailable. To the contrary, the passage of time seems to have weighed on the declarant's conscious and made her more willing to testify. In short, Brown's broad claims of prejudicial delay not only are unsupported, they are incorrect. Browne has proved no prejudice and the court sees none. Meanwhile, Browne benefitted from the trial continuance because it gave his trial attorney more time to prepare, as requested. Any presumption of prejudice has been rebutted.
III.
Browne's third ground involves an assortment of claims about how his rights were violated. Those claims were either rejected on direct appeal or procedurally defaulted. To the extent that Browne uses those claims to establish a claim of ineffective assistance of counsel, he has not attempted to overcome the presumption of effectiveness by proving that his trial counsel's efforts fell below a professional standard and that those shortcomings helped lead to his conviction.
Much of Browne's final ground for postconviction relief concerns the admission of his statement, which has been addressed above. Finally, Browne's memorandum in support of his motion includes additional claims for relief concerning various alleged errors by the court during trial and at sentencing. Browne complains about the way the court responded to notes from the jury during deliberation and that his sentence exceeded the sentencing guidelines, but not the statutory maximum for his offenses. All of Browne's assorted claims were defaulted and they are meritless. For example, taking his criminal history into account, Browne's sentence was within the sentencing guidelines. In any event, based on his record, Browne's sentence is appropriate. Moreover, Browne's assorted claims were procedurally defaulted without cause, or they were previously adjudicated in Browne's direct appeal.
IV.
Having reviewed Browne's motion, its extensive appendix, the State's response and Browne's lengthy reply to the State's response, the court is satisfied that he is not entitled to postconviction relief under Superior Court Criminal Rule 61. For the reasons presented above, Browne's May 31, 2002 motion for postconviction relief is DENIED.
IT IS SO ORDERED.