Opinion
ID No. 88001884DI Cr.A. No. IN88-03-1027, 1028R1 IN88-04-0833, 0834R1 IN88-04-0835, 0836R1
Date Submitted: June 18, 2002
Date Decided: August 22, 2002
Upon Defendant's Motion for Postconviction Relief: DENIED.
ORDER
Upon review of Movant Vicky Chao ("Defendant")'s Motion for Postconviction Relief and the record, it appears to the Court that:
1. Defendant was convicted in the Superior Court of first-degree murder, first-degree arson, and first-degree burglary, and she appealed. The Supreme Court affirmed those convictions on direct appeal. In July 1992, Defendant filed a motion for postconviction relief in the Superior Court and was granted a new trial.
2. Defendant's second trial began in October 1995 and the jury at the second trial convicted her of three counts of first-degree felony murder and various offenses, and she appealed. The Supreme Court remanded the case. The Superior Court found that Defendant's ineffective assistance allegations were without merit, and the Supreme Court affirmed the Superior Court's judgment on that issue. After Defendant's new appellate counsel discovered that the Supreme Court had not ruled on two issues that Defendant had raised in her direct appeal, the Supreme Court recalled the mandate on her case in order to decide those issues.
3. Defendant filed her pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on May 22, 2002, following a filing of mandate from the Supreme Court affirming Superior Court's judgment on October 11, 2001.
4. In support of her motion, Defendant organizes her allegations into four specific grounds. In ground one, Defendant alleges that "My Fourth Amendment rights were violated, my right to counsel and interpreter during interview for hours," and that it was "unjust to take advantage of the people who did not know their rights." In ground two Defendant alleges that "the importance of Mr. Liu's letter that was found by police in his apartment was overlooked by defense attorneys Mr. Hurley and O'Donnell, who did not know the Chinese culture," and that "because Mr. Liu did not sleep that night, so he skipped one day and misdated the letter." In ground three Defendant alleges that "my trial attorney failed to call the Fire Insurance investigator Mr. Ron Thomson to testify. That could create a reasonable doubt in my case." Finally, in ground four she alleges that "my trial attorney failed to call coroner to cross-examination. In the autopsy report, the head hemorrhage of Chen's wife and daughter might have injuries consistent with a blow. It might show that they were harmed or unconscience [sic] by Chen before the fire set."
5. Under Delaware law, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claim. Under Rule 61(i), claims for relief must be brought within three (3) years of the conviction becoming final. Any ground for relief not asserted in a prior postconviction motion is thereafter barred unless consideration of the claim is necessary in the interest of justice. Similarly, grounds for relief not asserted in the proceedings leading to the judgment of conviction are thereafter barred, unless the movant demonstrates: (1) cause for the procedural default, and (2) prejudice from the violation of the movant's rights. Additionally, any ground for relief that was formerly adjudicated, whether in a proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990); (citing Harris v. Reed, 489 U.S. 225 (1989)).
Del. Super. Ct. Crim. R. 61(i)(1).
Del. Super. Ct. Crim. R. 61(i)(2).
Del. Super. Ct. Crim. R. 61(i)(3).
Del. Super. Ct. Crim. R. 61(i)(4).
6. A review of the record shows that the issues in grounds one and two in Defendant's motion have already been litigated. Neither federal nor state courts are required to relitigate in postconviction proceedings those claims which have been previously resolved, unless consideration of those claims are warranted in the interest of justice.
See Kuhlmann v. Wilson, 477 U.S. 436, 445-55, 106 S.Ct. 2616, 2621-2628, 91 L.Ed.2d 364 (1986); Sanders v. United States, 373 U.S. 1, 7-22, 83 S.Ct. 1068, 10L.Ed.2d 148 (1963).
7. Defendant's allegation in ground one regarding the appointment of an interpreter was addressed by the Supreme Court in an opinion issued on January 29, 1992, holding that there was no merit in the contention that the trial court committed plain error in failing sua sponte to appoint an interpreter for Defendant at her suppression hearing. Similarly, Defendant's allegations regarding violation of Fourth Amendment rights and right to counsel were addressed in a memorandum opinion issued by this Court on July 14, 1989, denying Defendant's motion to suppress four separate statements she made to the police.
Chao v. State, 604 A.2d 1351 (Del. 1992).
State v. Chao, 1989 WL 89691 (Del.Super.).
8. Defendant herself submitted to the Court the letter from Steven P. Wood, Chief Prosecutor New Castle County to Richard R. Wier Jr., Esquire dated May 17, 2000, which addresses the concerns raised in ground two of her postconviction relief motion. In his letter Mr. Wood acknowledges the existence of a letter dated "'3/8 LGA airport' (the murders occurred on the morning of March 9, 1988.)" written by "defendant Liu in which he apologizes for 'beating and kicking her.'" Mr. Wood writes that "the letter was inside of Liu's green gym bag, along with 2 other letters," and that "according to my trial notes, all three of the letters found in the gym bag were introduced into evidence at your client's second trial. The letter of interest to your client was State's Exhibit 147 or 148."
Letter from Steven P. Wood, Chief Prosecutor — New Castle County to Richard R. Wier, Jr., Esq. of 5/17/00, at 1.
Id.
9. Under the circumstances, this Court finds that reconsideration of the claims in grounds one and two are not warranted in the interest of justice. Defendant's motion for postconviction relief pertaining to those two grounds must be denied as it is procedurally barred pursuant to Rule 61(i)(4). To protect the integrity of the procedural rules, the Court will not consider the merits of the postconviction claims where a procedural bar exists.
State v. Gattis, Del. Super., Cr. A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger v. State, 580 A.2d. At 554; Saunders v. State, Del. Supr., No. 185, 1994, Walsh, J. (Jan. 13, 1995) (ORDER); Hicks v. State, Del. Supr., No. 417, 1991, Walsh, J. (May 5, 1992) (ORDER)).
10. In order to prevail on a claim of ineffective assistance of counsel, Defendant must satisfy the two-part test set forth in Strickland v. Washington. Thus, Defendant must first show that his attorney's conduct fell below that of reasonable professional standards, and second, that such conduct caused him actual prejudice. In the context of an ineffective assistance of counsel claim, "a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal."
466 U.S. 668, 687 (1984).
Strickland, 466 U.S. at 687, 688.
Id. at 687, 693.
Walls v. State, Del. Supr., No. 59, 1995, Holland, J. (Jan. 4, 1996) (ORDER) at 7; citing Younger, 580 A.2d at 556.
11. Grounds three and four in Defendant's postconviction relief motion are claims for ineffective assistance of counsel. Even though Defendant filed an earlier postcinviction relief motion asserting ineffective assistance of counsel, it pertained to her first trial. This is Defendant's first motion for postconviction relief pertaining to her second trial that asserts ineffective assistance of counsel and the Court has determined that no procedural bars listed in Rule 61 are applicable and the Court may consider the merits of Defendant's application that pertain to grounds three and four.
12. In its January 23, 1998 opinion, the Supreme Court of Delaware, while ruling on Defendant's direct appeal after the case returned to the Supreme Court following remand, addressed Defendant's ineffective assistance of counsel claim from her first trial. While rejecting Defendant's assertion that defense counsel was ineffective because he called her to testify, the Court stated, "We see no reason to second-guess the decision of Chao's counsel to call her to testify at trial. Where the prosecution's evidence is strong, it is reasonable to assume that acquittal is unlikely absent defendant's testimony. Under such circumstances, counsel's tactical decision to call defendant to the stand does not constitute ineffective assistance."
Chao v. State, 707 A.2d 765, (Del. 1998).
Chao v. State, 707 A.2d 765, (Del. 1998); (citing Flamer v. State, 3rd Cir., 68 F.3d 710, 731 (1995), cert denied, 516 U.S. 1088, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996)).
Chao v. State, 707 A.2d 765, (Del. 1998).
13. In the case at bar, the same logic applies, and the Court sees no reason to second-guess the decision of Chao's counsel for not calling either the Fire Insurance Investigator Mr. Ron Thomson or the coroner to testify. There is no evidence that Defendant's attorney's conduct fell below that of reasonable professional standards, and that such conduct caused her actual prejudice.
14. The two-part Strickland test is very hard to satisfy, and leads to a "strong presumption that the representation was professionally reasonable." Allegations of ineffective assistance must be concrete, and must find adequate support in the record.
Flamer v. State, 585 A.2d 736, 753 (Del.Super. 1990).
See Dawson v. State, 673 A.2d 1186, 1196 (Del.Super. 1996); Younger v. State, 580 A.2d 552, 556 (Del. 1990).
15. In grounds three and four, Defendant's assertions of what might have happened if the coroner or the Fire Insurance Investigator had testified are speculative. There are no concrete allegations and there is no support for Defendant's assertions in the record. Defendant has therefore, failed to carry her burden of showing ineffective assistance of counsel under Srickland.
Based upon the foregoing, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.