Opinion
Def. ID No. 0010006075.
Submitted: March 12, 2004.
June 16, 2004.
Alonzo I. Cannon, Smyrna, DE.
E. Stephen Callaway, Esquire, Georgetown, DE.
Adam D. Gelof, Esquire, Department of Justice, Georgetown, DE.
Memorandum Opinion — Motion for Postconviction Relief
Dear Mr. Cannon and Counsel:
This is my decision on defendant Alonzo I. Cannon's ("Cannon") motion for postconviction relief. Cannon was charged by Indictment on November 2, 2000 with one count each of Possession with Intent to Deliver Cocaine, Possession with Intent to Deliver Marijuana, Possession of Cocaine within 1000 Feet of a School, Possession of Marijuana within 1000 Feet of a School, Criminal Impersonation, and Possession of Drug Paraphernalia. After a three-day jury trial, Cannon was convicted on April 25, 2001 of Possession with Intent to Deliver Cocaine, Possession with Intent to Deliver Marijuana, Possession of Cocaine within 1000 Feet of a School, Possession of Marijuana within 1000 Feet of a School, Criminal Impersonation, and Possession of Drug Paraphernalia.
There were also three counts of Rape in the Fourth Degree that were "ignored" by the Grand Jury.
I sentenced Cannon on June 22, 2001 to 41 years at supervision level V, suspended after serving 18 years at supervision level V for 23 years of declining levels of probation. Cannon filed an appeal with the Supreme Court on June 27, 2001. The Supreme Court affirmed Cannon's convictions on January 31, 2002. Cannon filed his motion for postconviction relief on May 2, 2003. This is Cannon's first motion for postconviction relief and it was filed in a timely manner. Therefore, it is not barred by Superior Court Criminal Rule 61(i)(2).
Cannon v. State, Del. Supr., No. 298, 2001, Veasey, C.J. (January 31, 2002).
Super. Ct. Crim. R. 61(i)(1).
Cannon alleges four claims in support of his motion for post conviction relief. Specifically, Cannon alleges (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) false testimonial evidence; and (4) a Miranda violation. All of these claims, except for the ineffective assistance of counsel claim, were either raised on appeal, or could have been raised on appeal, and are therefore procedurally barred. Nevertheless, I will address them briefly.
See Wright v. State, 513 A.2d 1310, 1315 (Del. 1986).
Super. Ct. Crim. R. 61(i)(4); Super. Ct. Crim. R. 61(i)(3).
I. Ineffective Assistance of Counsel
Cannon was represented by E. Stephen Callaway, Esquire ("Callaway"). He alleges that Callaway's representation of him was deficient in that he (1) both failed to develop mitigating evidence and to thoroughly investigate the case; (2) both failed to review prior written documents and to prepare for trial; (3) failed to object to inadmissible statements; and (4) failed to cross-examine witnesses properly and effectively.
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 his claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, Cannon must show (1) that Callaway's actions fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for any errors made by Callaway, the outcome of the proceedings would have been different. Mere allegations of ineffectiveness will not suffice. Cannon must make specific allegations of actual prejudice and substantiate them. Moreover, any review of Callaway's representation is subject to a strong presumption that his representation of Cannon was professionally reasonable.
A. Counsel allegedly both failed to develop mitigating evidence and to thoroughly investigate the case.
Strickland v. Washington, 466 U.S. 688 (1984).
Strickland, 466 U.S. 668, 688, 694 (1984).
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996); Younger v. State, 580 A.2d 552, 555-56 (Del. 1990).
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Cannon alleges that Callaway provided ineffective assistance of counsel by failing to retain a handwriting expert. Cannon claims that the decision not to do this prejudiced his defense because Marshay Smalls' authentication of the handwriting on a letter and envelope that was prejudicial to Cannon's defense was undisputed. As a result, the letter and envelope were entered into evidence. Cannon also claims that Callaway's actions in this regard affected his decision as to whether or not to go to trial.
The letter at issue was allegedly written and sent by Cannon to Marshay Smalls' mother, Priscilla Barnes ("Barnes"), asking Barnes to speak with him about the trial and offering Barnes $1,000 to help him. The State argued that Cannon confessed to a crime in this letter, and it was, therefore, according to the State, an admission of guilt by Cannon. Callaway argued that the letter was not an admission of guilt. Callaway also argued that the State had failed to show beyond a reasonable doubt that the letter was even written by Cannon.
Tr. at C 72-74.
Tr. at C73-74.
Callaway responded to Cannon's allegations. He stated that the envelope at issue was a standard issue prison envelope similar to numerous other envelopes sent by Cannon to Callaway. As such, Callaway believed that the envelope had been written by Cannon.
However, Callaway did question the authenticity of the letter and sent copies of letters received from Cannon along with a copy of the disputed letter to a "handwriting expert." The expert was unable to give an opinion based on the copy of the letter, but he did tell Callaway that an examination of the original would not be beneficial to Cannon. Based on this advice, Callaway told the "handwriting expert" not to take any further action. There is a strong presumption that Callaway's representation of Cannon was professionally reasonable. There is no indication whatsoever that Callaway acted unreasonably under these circumstances or that the outcome would have been different if such an expert was presented. Quite simply, the expert was not able to offer testimony that would be helpful to Cannon's defense. Therefore, Cannon has failed to satisfy the Strickland standard.
B. Counsel allegedly both failed to review prior written documents and prepare for trial.
Cannon alleges that Callaway failed to review Officer Layfield's ("Layfield") report where he indicates that Officer Messick weighed and tested the drugs seized and failed to confront Layfield when his testimony was inconsistent with this report. As discussed more fully below, I do not believe that Layfield testified that he actually weighed the drugs himself. Callaway also did not believe this to be the case. Therefore, Callaway's decision not to confront Layfield as to this alleged inconsistent statement did not fall below an objective standard of reasonableness.
C. Counsel allegedly failed to object to inadmissible statements.
Cannon alleges that Callaway failed to object to the admission of statements made by Cannon. This is factually incorrect. Callaway prepared and filed a Motion to Suppress these statements. A suppression hearing was held and the matter was raised on appeal. Callaway satisfied his obligations to Cannon. Thus, this claim is without merit.
D. Counsel allegedly failed to cross-examine properly and effectively.
Cannon alleges that Callaway failed to vigorously cross-examine Marshay Smalls and Priscilla Barnes about the letter and envelope. The letter contained a request for Barnes to speak with Cannon about the trial and included Cannon's offer to pay her $1,000 for "helping me." Although the letter was not a clear admission by Cannon to any of the charged offenses or a direct request for Barnes to commit perjury, Callaway perceived vigorous cross-examination to be counterproductive to Cannon's defense. Callaway's decision was a strategic one. Cannon has failed to show that Callaway's decision was in any way unreasonable or that the outcome would have been different if Callaway had taken a different approach to the cross-examination. Therefore, this claim fails.
II. Prosecutorial Misconduct
A. Improper comments and prejudicial statements
Cannon alleges that he was denied his 6th Amendment right to a fair and impartial jury because of the improper and prejudicial comments made by the prosecutor at the closing of the trial. Cannon contends that these comments also violated the 14th Amendment and were contrary to the American Bar Association Standards found in the Canons of Professional Ethics.
Cannon alleges that the prosecutor stated his own personal belief during his closing argument, which extended into the credibility of two witnesses for the State and a letter and envelope that were admitted into evidence. I have reviewed the pages in the transcript where Cannon alleges misconduct. The transcript simply does not support his arguments. During closing arguments, the prosecutor made the following comments:
And when was this letter turned over? If Priscilla Barnes and Shay Smalls was [sic] out to get Alonzo Cannon, Boogie, they are friends up until now, you know, they could have put together a better confession, a statement through the form of a letter if they were out to get him. Why would they wait two months to turn it over to the State only at the State's request? So the State believes it is consistent with this letter. Again, it is an acknowlegement of guilt.
Def.'s Mot. at 166-7.
The prosecutor simply drew a conclusion based on the evidence presented at trial. This is allowable. Moreover, any potential error was eliminated when I instructed the jury to "disregard any personal opinion or belief concerning testimony or evidence which an attorney may have offered during the course of the trial . . . what an attorney states in his or her opening and closing arguments is not evidence."
Tr. at C 32.
Cannon alleges that he was prejudiced when State witnesses offered inconsistent and conflicting testimony during the trial. However, "the jury is responsible for determining witness credibility, resolving conflicts in testimony, and for drawing any inferences from the proven facts." In Delaware, "the jury is the sole trier of fact." It is within the jury's discretion to accept the testimony of one witness and reject conflicting testimony of other witnesses. Furthermore, "a jury verdict will not be set aside merely because it is based upon conflicting evidence." Therefore, this claim is without merit.
State v. Ashley, 1999 WL 1568345, at *7 (Del.Super.Ct.), citing Chao v. State, 604 A.2d 1351, 1363 (Del. 1992); Pryor v. State, 453 A.2d 98, 100 (Del. 1992); Tyre v. State, 412 A.2d 326, 330 (Del. 1980).
Johnson v. State, 737 A.2d 530 (Del. 1999) (Order), citing Robertson v. State, 596 A.2d 1345, 1355 (Del. 1991).
Ashley, 1999 WL at *7 (citations omitted).
Id.
Cannon further alleges that the prosecutor improperly vouched for the credibility of Layfield. Cannon alleges that he was prejudiced as a result of the prosecutor's closing remarks because, in his view, a jury tends to give an officer's testimony more weight or credibility than other witnesses. The prosecutor made the following remarks during his closing argument regarding statements made by Cannon:
It wasn't taped. Think about it. Mr. Callaway will point out, well, Officer Layfield could have been lying about that. Officer Layfield was going to lie about that? He could have given me something better. He could have gave [sic] me a full confession: Yeah, I was dealing, supporting my kids. He didn't give you that. Why did he not give me that? Draw your conclusions. He told you what the truth was as to what his statement was.
Def.'s Mot. at 170. (Emphasis added).
Cannon alleges that the prosecutor's comments amounted to a violation of the Confrontation Clause because the statements were equivalent to testimony of a witness Cannon was unable to cross-examine. Cannon relies on Fensterer v. State, 509 A.2d 1106 (Del. 1986), to support his argument. However, Fensterer is quite different from the case at bar. In Fensterer, the prosecutor stated, "To believe the defendant and disbelieve the State, you would have to believe that [the two police officers] committed perjury in this case. And I would assert to you they have not." The prosecutor implied that in order to acquit the defendant, the jury had to find that the State's witnesses committed perjury. Obviously, the Court found these comments to be improper and unacceptable. The jury could acquit the defendant even if it did believe the State's witnesses because it could find that the evidence against the defendant was insufficient to find guilt beyond a reasonable doubt. This case cannot be compared to Fensterer. Here, the prosecutor left it up to the jury to decide whether or not it found Cannon or Layfield to be more credible. The prosecutor did not vouch for the credibility of Layfield and the referenced closing remark does not touch upon a central point of the case. Furthermore, this case was not a close one. The Court considers three factors when determining whether the fairness of a trial was adversely affected by prosecutorial action, including (1) the centrality of the issue affected by the alleged error; (2) the closeness of the case; and (3) the steps taken to mitigate the effects of the alleged error. Consequently, this claim fails.
Fensterer v. State, 509 A.2d 1106 (Del. 1986).
Fensterer, 509 A.2d at 1111.
Id. at 1112.
Id.
Id.
See Lewis v. State, 626 A.2d 1350, 1358 (Del. 1993), citing Weddington v. State, 545 A.2d 607, 612 (Del. 1998), and Hughes v. State, 437 A.2d 559, 571 (Del. 1981). This Court decided to consider a fourth factor two years after the trial was concluded in this case. The fourth factor is: "whether the prosecutor's errors are repetitive, i.e., whether there is a pattern or history of prosecutorial misconduct that has persisted despite the Court's oft-repeated admonitions against such practices." Chapman v. State, 821 A.2d 867, 870 (Del. 2003), citing Hunter v. State, 815 A.2d 730 (Del. 2002). The Hunter error analysis is not given retroactive effect. See 821 A.2d at 870.
Moreover, no objections to these statements were made at trial and the matter was not raised on appeal. This ground for relief is procedurally barred by Superior Court Criminal Rule 61(i)(3) because it was not raised in the proceedings leading to the judgment of conviction and Cannon has failed to show cause for relief from the procedural default and prejudice from the alleged violation of his rights. Since Cannon has failed to establish a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrityor fairness of the proceedings leading to the judgment of conviction, he cannot overcome this procedural bar.
Super. Ct. Crim. R. 61(i)(5).
B. Perjured testimony
Cannon alleges that the prosecutor knowingly allowed Layfield's perjured testimony to be presented to the jury. Cannon argues that Layfield committed perjury when his testimony as to the weight of the drugs conflicted with his written report. Cannon's argument is not supported by the facts. In a written document, Layfield stated that Officer Messick weighed and tested the drugs. During cross-examination, the following exchange took place:
Q: There also appears to be a difference in the weight of when you weighed them and a difference in the weight that Mr. Daneshgar has testified to yesterday. Would you explain the difference in weight?
A: His scales are certified and ours are not, our set of scales, the ones we have at the troop. It is an approximate weight. We send it to the Medical Examiner's Office.
* * *
A: Again, the difference in the weight as to what you weighed and what the State Chemist weighed, why is there a difference?
Q: It might be the scales. I weigh mine with the bag also. I'm not able to cut the bags and measure the product and then place it back into the bags. That may be the difference in the total weight of the product . . . Again, our scales are not as precise as the Medical Examiner's scales.
Def.'s Mot. at 105-6.
Layfield was clearly referring to the way in which drugs are weighed at the Delaware State Police (the "DSP") station. Layfield did not commit perjury. I believe that Layfield understood the "you" in the question to refer to the DSP, and not only to him. It would have been clearer if Layfield had stated that Officer Messick had weighed and tested the drugs in a particular manner. However, Cannon has not shown that he was prejudiced by Layfield's response to the question. If anything, it was harmless error and this claim fails.
III. Due Process Violation Due to the Use of False Testimonial Evidence
Cannon alleges that he was denied his 14th Amendment right to due process because an Officer falsely testified in order to obtain a rule or order of the court. More specifically, Cannon asserts that Layfield committed perjury when he responded to a question regarding the difference in the weight of drugs recorded by the officers and the State Chemist. This argument has already been addressed above in Section IIB. I will not consider it again. This claim fails for the reasons set forth above.
IV. Miranda Violation
Cannon alleges that his 5th and 6th Amendment rights were violated as a result of a defective Miranda warning. Cannon raised this issue on appeal to the Supreme Court where the decision of the trial court was affirmed. The Delaware Supreme Court found "no error in the trial court's finding that Cannon was properly Mirandized and Layfield's in-court recitation of the warnings omitted one warning because he was nervous and interrupted by the trial judge." Superior Court Criminal Rule 61(i)(4) precludes consideration of this claim unless such consideration is warranted in the interest of justice. Rule 61(i)(4) provides the following:
Cannon v. State, Del. Supr., No. 298, 2001, Veasey, C.J. (January 31, 2002).
Id. at 5.
Former adjudication. 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).
Delaware Courts have defined the "interest of justice" exception narrowly 'to require the movant to show that the trial Court lacked the authority to convict or punish [the movant].' Cannon has failed to show that reconsideration of this claim is warranted in the interest of justice. Therefore, since this claim was already raised on appeal, it is barred.
State v. Denston, 2003 WL 22293651, at *3 (Del.Super.Ct.), citing State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
Super. Ct. Crim. R. 61(i)(4).