Opinion
ID No. 0303001118.
Submitted: July 30, 2007.
Decided: August 10, 2007.
ORDER
This 10th day of August, 2007, upon consideration of the defendant's motion for postconviction relief, the responses of the State and defense counsel, Michael Heyden, and the defendant's responses it appears that:
1. On January 16, 2004, after a two day jury trial, defendant, Tyrone Bunting (Bunting) was found guilty of one count of Robbery 1st and one count of Robbery 2nd. He was found not guilty of one additional count of Robbery 1st.
2. On March 12, 2004, Bunting was declared a habitual offender and was sentenced on the charge of Robbery 1st to Level V incarceration for twenty (20) years, a mandatory sentence. He was sentenced on the charge of Robbery 2nd to Level V incarceration for five (5) years followed by six (6) months at Level III probation.
3. Bunting filed a direct appeal of his conviction challenging the trial judge's denial of his pre-trial suppression motion. The conviction was affirmed by the Supreme Court on October 21, 2004.
Bunting v. State, Del. Supr., 860 A.2d 809, No. 128, 2004, Steele, CJ. (Oct. 5, 2004).
4. On June 7, 2007, Bunting filed this motion for postconviction relief alleging: (1) "tainted and contaminated jury poll [sic]," (2) "abuse of court disoretion [sic]," (3) "prosecutor's misconduct," and (4) "ineffective, inadequate and incompetet [sic] assistance of counsel."
5. All four of these claims are based on a single occurrence. A witness for the State, a victim of one of the robberies, entered the courtroom during jury selection.
6. As to his claim that the jury pool was tainted and contaminated Bunting states:
By the witness being seated with movants jury poll [sic] has caused prejudice, bias, and has violated movants constitutional due process rights to a fair and inbias [sic]. And inprejudives [sic] trial.
7. As to his claim that the Court abused its discretion Bunting states:
Judge Del Pesco, should had [sic] removed this witness, and inguired [sic] and investigate the jurors to found [sic] out what if anything the states witness may have said to them, being as states witness was seated in same jury poll [sic] movant was picking from. This by her not doing so has caused movant prejudice. And has denied him of his rights to a fair trial.
8. As to his claim of prosecutorial misconduct Bunting states:
Once it became know [sic] to persecutor [sic] Brian Robertson that his states witness was seated with in movant's jury poll [sic], than it was his legal dutie's [sic] and obligations to also have stoped [sic] jury picking process. And had [sic] this witness removed. And inguired [sic] of the jury poll [sic] what if this witness may have said to them. Once this state's witness was seated in the jury poll [sic]. The poll [sic] immediately became contaminated. And illegally tainl'ed!!
9. As to his claim of ineffective assistance of counsel Bunting states:
Once it became known to my then court appointed counsel, Mr. Michael C. Heyden, esq. that the state's witness was seated with in movant's jury poll [sic]. Then it was his legal duties [sic]. And obligations to sercure [sic] all of my legal constitutional due process rights to a faie [sic] trial. It is legally guaranteed to me by. And through my legal six amendment. Constitutional right to have effectire [sic], adeguate [sic] and competent first direct appeal. Counsel must. And or shall do more for his-or-her client than just make a court appearance. This same jury was allowed to decide my guilt-or-innocents [sic]. Which, subseguently [sic] I was find [sic] guilty by this same tainted and contaminated jury poll [sic].
10. To prevail on a postconviction relief claim based on ineffective assistance of counsel, defendant is required to meet both prongs of the test set forth in Strickland v. Washington. That is, a movant must show both "that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Strickland v. Washington, 466 U.S. 668.
Id. at 694.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Flamer, 585 A.2d at 753.
11. In response to the claim of ineffective assistance of counsel (paragraph 9), Mr. Heyden has provided an affidavit which states that "[t]he occurrence was fleeting and momentary and counsel did not see nor hear any exchange between the witness and the potential jurors."
12. Applying the Strickland standard here, this Court cannot now say that Bunting's counsel was ineffective. Bunting has failed to demonstrate that Mr. Heyden's performance fell below an objective standard of reasonableness.
13. There is no basis to believe that if Mr. Heyden had brought the matter to the attention of the Court and asked for some inquiry about the witness that the result of the proceeding would have been different. According to Mr. Heyden, Bunting was identified on the store surveillance videotape and he also confessed to the crime which was recorded on videotape. Bunting does not allege that any member of the jury pool was aware of the identity of the State's witness prior to the time that person was asked to leave the room. Bunting has not presented any facts which would lead this Court to conclude that the jury which convicted him was contaminated by the brief presence of a State's witness in the courtroom during jury selection.
14. None of Bunting's three other claims offers any factual basis that entitles him to relief. He makes no allegation of actual contact between the witness and any potential juror, and offers no evidence that the witness did anything other than sit passively in the courtroom until noticed and asked to wait outside during jury selection. Based on this occurrence, Bunting makes conclusory allegations against the prosecutor, the trial judge, and his own attorney. He does not articulate in what manner he was prejudiced by the presence of this witness, or why the mere presence of the witness in the courtroom during jury selection contaminated the jury.
15. Bunting did not raise the jury contamination issue on direct appeal. Under Superior Court Criminal Rule 61(i)(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."
16. These claims of due process violation, abuse of discretion and prosecutorial misconduct are barred because Bunting has not shown cause for relief or prejudice from violation of his rights as required by Rule 61(i)(3). Bunting alleges nothing more than the fact that a witness for the State unintentionally entered the courtroom during jury selection and remained there until asked to leave. There is nothing in the record to indicate that the witness spoke to or interacted in any way with any member of the jury pool.
17. Superior Court Criminal Rule 61(i)(5) states that the bar to relief in 61(i)(3) "shall not apply to a claim that the court lacked jurisdiction or 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."
18. Bunting does not claim that the Court lacked jurisdiction and has not raised a colorable claim that there was a miscarriage of justice. His claims are conclusory at best and are factually insufficient to cause this Court to doubt the fundamental legality, reliability, integrity or fairness of the proceedings.
WHEREFORE, defendant's motion for post-conviction relief is DENIED.
IT IS SO ORDERED.