Opinion
I.D. No. 0710007029
10-17-2013
STATE OF DELAWARE v. MARVIN BURROUGHS Defendant
Steven P. Wood, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State. Christopher D. Tease, Esquire, Wilmington, Delaware, Attorney for the Defendant.
On Defendant's Motion for Postconviction Relief.
DENIED. ORDER Steven P. Wood, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State. Christopher D. Tease, Esquire, Wilmington, Delaware, Attorney for the Defendant. COOCH, R.J.
This 17th day of October 2013, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that: 1. Defendant Marvin Burroughs filed this motion for postconviction relief based upon claims of ineffective assistance of trial counsel and upon a witness's proposed recantation of trial testimony. In short, Defendant has alleged ineffective assistance of counsel based upon his trial attorney's failure to request the trial Court to suppress an out-of-court identification and to object to impermissible rebuttal evidence under 11 Del C. §3507. Additionally, Defendant seeks postconviction relief based upon a co-defendant's alleged recantation of his trial testimony, which would allegedly implicate someone other than Defendant. 2. The facts of this case are more fully set forth in the opinion of the Delaware Supreme Court affirming the conviction on Defendant's direct appeal. In essence, the facts are these: On October 1, 2007, a 17 year-old female high school student was robbed in Wilmington by three men. The three defendants ordered the victim to lie down on her back, demanded money, patted her down and then ordered the victim to strip off her clothing. 3. During an interview with police later that day, the victim identified one of the three men as someone who attended her same high school. The next day, using a high-school yearbook, the detective was able to assist the victim in identifying one of the men as Jaron Smullen ("Smullen"). When the police interviewed Smullen, he identified his two co-defendants as Martel Washington and Marvin Burroughs ("Defendant") and confessed to his role in the robbery. 4. Subsequently, Detective Matt Hall of the Wilmington Police Department returned to the victim's home to show the victim two photographic line-ups, with each one containing one photo of the co-defendants named by Smullen. When the victim was shown the line-up containing Defendant, the victim stated that she was unsure because one defendant wore a hat at the time of the robbery. Detective Hall used a coaster present on the kitchen table and used it to simulate a hat by covering the foreheads of the men in the line-up. Eventually, the victim identified Defendant as one of the robbery co-defendants. 5. Washington and Defendant were tried jointly, and much of the trial and pre-trial procedures involved the Court's analysis addressing the victim's identification of Defendant. 6. During the State's pre-trial interview of the victim, the victim explained to prosecutors that she had made tentative identifications of two other men other than Defendant before ultimately identifying Defendant as the suspect. The victim explained that after each misidentification, Detective Hall said words to the effect of "no, try harder." This matter was brought to the attention of counsel for both Defendants and in response, Defendant's trial counsel promptly moved to suppress the out-of-court identification as being generated from an impermissibly suggestive procedure. A pre-trial hearing was held on this motion at which the victim and Detective Hall testified. After argument on the motion, this Court denied the motion to suppress. 7. On May 16, 2008, Defendant was convicted by a jury of Robbery First Degree, Possession of a Firearm during the Commission of a Felony, Possession of a Firearm by Person Prohibited and Conspiracy Second Degree. On appeal to the Delaware Supreme Court, the conviction was affirmed. On February 22, 2011, Defendant filed the instant motion for postconviction relief. 8. Defendant's motion alleged ineffective assistance of counsel based upon two grounds. First, Defendant claims that his trial counsel was ineffective as a result of counsel's failure to suppress the victim's out-of-court identification. 9. However, following the State's response and conceding the fact that the State's photographic line-up procedures were held to be not unnecessarily suggestive under the Due Process clause, counsel requested that Defendant be permitted to amend the motion for postconviction relief to instead reflect the claim that the trial counsel was ineffective for having failed to raise the issue on appeal and for having failed to present expert testimony regarding the procedures to be used in conducting a photographic line-up. 10. In a letter memorandum following the evidentiary hearing dated May 6, 2013, Defendant waived this claim due to the inability to secure an expert to testify on this issue. 11. Second, Defendant also moves for postconviction relief based upon what the Defendant argues was a Court's error in failing to prevent Detective Hall's interpretive narrative under 11 Del C. §3507. Morgan v. State, 922 A.2d 395 (Del. 2007) addressed whether §3507 would bar the testimony in question. It held that "it is the actual statement of the witness, not the police officer's interpretive narrative, which qualifies for admission under section 3507." 12. Specifically, during Detective Hall's attempts to highlight inconsistencies in a witness's testimony, Defendant argues that Hall repeatedly referenced his conversations with the victim during the lineup procedure without properly limiting himself to the witness's immediate statements. Rather, according to Defendant, Hall's 11 Del C. §3507 testimony was marred by his "full interpretive narrative" which unfairly encouraged the jury to allow improper persuasive value to the Detective's testimony. In other words, the Defendant argues that Detective Hall's testimony went impermissibly beyond the limits set both by the Court and in Morgan, and that defense counsel was ineffective in failing to raise an objection. 13. To successfully articulate an ineffective assistance of counsel claim, a claimant must demonstrate first that counsel's performance was deficient. To prove counsel's deficiency, a Defendant must show that counsel made errors of such seriousness that the counsel failed to fulfill the Constitution's requirements under the Sixth Amendment. Secondly, a Defendant must demonstrate that the deficiencies prejudiced the Defendant by depriving the Defendant of a fair trial with reliable results. A successful Sixth Amendment claim of ineffective assistance of counsel requires a showing that there is a "reasonable probability" that but for the counsel's unprofessional errors, the proceeding's results would have been different. 14. In response to objections raised at trial, the Court ruled as follows:
Burroughs v. State, 988 A.2d 445 (Del. 2010) (holding that the prosecutor did not improperly vouch for two police witnesses or improperly comment on Defendant's right not to testify).
Def's Mot. For Postconviction Relief at 1.
Id.
Id. at 2.
Id.
State's Response to Def's Mot. For Postconviction Relief at 2.
Id.
Id.
Id. at 4.
State at 2.
State at 2.
State at 3.
State at 3.
T. May 13 pp 169-178.
Burroughs, 988 A.2d at 451.
Strickland v. Washington, 466 U.S. 668 (1984).
I'll instruct the witness, Detective Hall, to make no interpretive narrative. However, that doesn't preclude him from testifying to what [s]he said [and] the words she used and to describe minimally but, if necessary, physical gestures, because that's just part and parcel of the photo array process.15. Defendant contends that, despite that ruling, Detective Hall provided interpretive narrative testimony when he testified that the victim stated "along those lines" or said "things of that nature." Defendant argues that these statements clearly demonstrate that Hall was not reading from notes, but rather was speaking purely from memory. According to Defendant, this is exactly the type of testimony that Morgan was concerned about. Specifically, that a vague recollection of events would be allowed to be used to contradict a witness's testimony and that more weight would be given to that of a police officer, rather than a civilian witness. 16. In response, the State argues that this issue has also already been fully adjudicated by the Court and as such is barred by Rule 61(i)(4). Even if the Court considers the merits of the claim, the State argues that Defendant is still unsuccessful. That standard requires the Defendant to show that the counsel's representation did not meet an objective standard of reasonableness and there is a reasonable probability that without the counsel's errors, the Defendant would not have been convicted. The State argues that great deference must be shown to the trial counsel's tactical choices. 17. The Court agrees with the State that this claim was previously adjudicated and is now barred by Rule 61(i)(4). Alternatively, Defendant's trial counsel was not deficient when it failed to object to Detective Hall's testimony. Trial counsel conducted a cross examination of the witness as part of a reasonable trial strategy that does not rise to the level of ineffective assistance. Trial counsel's representation meets an objective standard of reasonableness and therefore fails to meet the Strickland test. 18. Thirdly, Defendant seeks postconviction relief based initially upon information and belief that Defendant's co-defendant Smullen was prepared to recant his trial testimony. In subsequent briefing the Defendant argues that in an interview by a private investigator, Smullen indicated that he initially sought to incriminate Defendant because he resented Defendant for previously exposing him to criminal activity. Smullen apparently indicated during the interview that the actual robbery was committed by two men that Smullen knew as Aaron and O.G; not Defendant and Washington. Defendant requested that the court conduct an evidentiary hearing so that Smullen could testify before the Court. The State did not object and an evidentiary hearing was finally held on April 26, 2013 after much difficulty in arranging for Smullen, who had been in federal custody, to appear in Delaware for an evidentiary hearing. 19. At the evidentiary hearing, Smullen took the stand and recanted any previous recantation of his trial testimony. He stated that Aaron and O.G. were "not real people" and that he did not remember what he had said to the private investigator because his "memory is a little shot." He said any statements he may have made recanting his prior testimony were made in fear of retaliation and, notably, that his testimony at the trial was truthful. 20. A letter memorandum with respect to this claim submitted by Defendant's counsel at this Court's request failed to address the issue of Smullen's testimony at all, instead focusing on the two preceding claims. The State responded with a letter stating they intended to rely on its previously submitted responses. 21. Motions for a new trial based upon recanted witness testimony are "generally viewed with suspicion." The Larrison test adopted by Delaware courts requires a new trial be granted on the basis of such testimony when:
(a) The Court is reasonably well satisfied that the testimony given by a material witness is false, (b) That without it the jury might have reached a different conclusion, (c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.
"Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." Super. Ct. Crim. R. 61(i)(4).
Strickland, 466 U.S. at 694.
Id. at 698. See also Allison v. State, 2010 WL 3733919 (Del. Sept. 24, 2010) (ORDER) (decisions made in pursuit of reasonable trial strategy do not constitute ineffective assistance of counsel).
Def.'s Reply to St.'s Ans. to Def.'s Mot. for Post-Conviction Relief and Mot. to Amend for Post-Conviction Relief.
Id.
Blankenship v. State, 447 A.2d 428, 433 (Del. 1982).
Id. (quoting Larrison v. State, 447 A.2d 428, 433 (7th Cir. 1982 )).
"Where the court determines the original trial testimony to be 'true and accurate,' the court does not need to address the second and third prongs of the [Larrison] test." 22. As in Dencker, Smullen recanted any possible recantation at the evidentiary hearing and insisted that his trial testimony was truthful. Therefore, the Court need not proceed past the first prong of the Larrison test. This Court is not reasonably well satisfied that Smullen's testimony at trial was false. 23. Defendant's motion for postconviction relief based on ineffective assistance of counsel for failure to raise objection to Detective Hall's testimony is DENIED. Defendant's motion for postconviction relief based on Smullen's recanted testimony is DENIED. Therefore, for the reasons stated above, Defendant's motion for postconviction relief is DENIED.
State v. Dencker, 2002 WL 31814547 (Del. Super. Dec. 9, 2002) (ORDER) (citing Monies v. State, 520 A.2d 1045 (Del. 1987). In Dencker, the court denied Defendant's motion for a new trial because the witness at the hearing recanted her recantation and affirmed that her testimony at trial was truthful. Id. at *2.
Cf. Downes v. State, 771 A.2d 289 (Del. 2001) (finding an affidavit and testimony from third parties that witness was lying or admitted to lying during trial not enough to be considered a recantation and therefore the Larrison test does not apply.) --------
IT IS SO ORDERED.
/s/_________
Richard R. Cooch, R.J. cc: Prothonotary