Opinion
IK94-04-0143-R1 through IK94-04-0145-R1
July 20, 2001
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Dennis Kelleher, Esq., Deputy Attorney General, The Green, Dover, Delaware, for the State of Delaware.
Jeffrey L. Crippen, pro Se.
COMMISSIONER'S REPORT AND RECOMMENDATIONS
On October 20, 1994 the Defendant, Jeffrey L. Crippen ("Crippen") was found guilty by a jury of one count of Delivery of Cocaine, 16 Del. C. § 4751, one count of Trafficking Cocaine, 16 Del. C. § 4753 (a)(2)(a), and one count of Conspiracy in the Second Degree, 11 Del. C. § 512. During the second day of his trial, Crippen failed to return after the lunch break. The trial continued without Crippen and resulted in the aforementioned finding of guilt. Crippen was subsequently apprehended in Georgia a year later. On October 29, 1995 the Court sentenced Crippen to 25 years incarceration followed by probation. A substantial portion of the jail time was minimum mandatory time based upon Crippen's criminal history. Following sentencing, Crippen's counsel moved to withdraw as counsel due to a conflict of interest which arose following the sentencing. The Court granted the motion and appointed other counsel to represent Crippen on appeal.
A timely notice of appeal was filed. Crippen's appointed appellate counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to withdraw, appellate counsel represented that he conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter counsel informed Crippen of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief which identified four arguable issues for the Court's consideration. The four issues were: 1) The Superior Court abused it's discretion in denying Crippen's pretrial motion to dismiss the indictment on the grounds of unnecessary delay by the State in presenting the charges to the grand jury; 2) The Superior Court erred in permitting the trial to continue after Crippen failed to return to Court on the second day of trial; 3) The Superior Court erred in it's ruling on the chain of custody of the drug evidence; and 4) That there was insufficient evidence to convict Crippen. Crippen was informed of his right to supplement his attorney's presentation but raised no additional issues. The Supreme Court on appeal affirmed each of Crippen's convictions and sentences. Next, Crippen filed the pending postconviction motion in which he raises four grounds for relief including ineffective assistance of counsel.
Crippen v. State, Del. Supr., No. 434, 1995, flartnett, J. (June 20, 1997)(ORDER).
I. FACTS
The following is a summary of the facts as noted by the Supreme Court in its opinion:
The state presented the following evidence at trial. On August 3, 1993, Detective Dwight Booker of the New Castle County Police Department and Special Agent Larry Whitfield of the Federal Drug Enforcement Agency were conducting a joint undercover investigation into narcotics dealing in the Dover area. The target of their investigation that day was Crippen. Detective Booker and a confidential informant contacted Crippen by telephone. Detective Booker told Crippen that he wanted an ounce of crack cocaine. They agreed to meet one half hour later in an area called "The Green."
When Detective Booker and the informant approached the area in their car, they saw Crippen standing on the other side of the street. Crippen approached the car and Detective Booker informed Crippen that he wanted to buy an ounce. Crippen stated that he had to page another person and that it would take several minutes, so Detective Booker told Crippen that he was going to a convenience store and that he would be back later. When Detective Booker returned, he saw another person, whom he knew as Bobby Knox. Knox approached the car and told Detective Booker that the package would cost $1,200. Detective Booker told Knox that Crippen had quoted a price of $1,000. While Detective Booker and Knox were talking, a young boy, later identified as being a twelve year old, approached the car and handed Detective Booker a plastic bag. The contents of the bag later tested positive for cocaine having a net weight of 21.9 grams.
Detective Booker never observed Crippen handling the package prior to its delivery, although Detective Booker did observe Crippen standing about twenty yards away watching the transaction. Detective Booker testified that, after he weighed the package, he gave Knox $1,000. Detective Booker then motioned for Crippen to come over to the car. When he approached, Crippen told Detective Booker that the package was not his and that he would have to call someone else to get Detective Booker what he wanted. Crippen was not arrested for his alleged participation in this transaction until March 25, 1994.
At trial, the State presented the testimony of both Bobby Knox and the twelve-year-old child who testified regarding Crippen's role in the transaction. The child testified that Crippen, whom he knew and identified in court, handed him the package to deliver to the car. On cross examination, however, he admitted to telling a police officer previously that it was Bobby Knox who had handed him the package to deliver. Knox, however, testified that he saw Crippen hand the package to the boy and that Crippen instructed Knox to retrieve the money from Detective Booker and Murphy in the car.
On the second day of Crippen's trial, after Detective Booker and the child testified but before Knox's testimony, Crippen left the courtroom for lunch recess and failed to return. Although defense counsel moved for a mistrial, the Superior Court determined that the trial would continue the following day despite Crippen's absence. Defense counsel also objected to the admissibility of the drugs into evidence on the ground that there was a gap in the chain of custody. The defense rested without calling any witnesses. The jury convicted Crippen on all charges.
Id at 3-5.
II. CRIPPEN'S CONTENTIONS
In his motion for postconviction relief, Crippen asserts the following four grounds for relief: 1) That his trial counsel was ineffective for sending another attorney, whom counsel was affiliated with, to represent Crippen at sentencing; 2) That counsel was ineffective due to a conflicted interest stemming from counsel's representation of Crippen's sister following Crippen's trial; 3) That the prosecution erred in withholding a statement made by, and the criminal record of one Jimmy Murphy; 4) That the evidence was insufficient to convict him. The Court ordered Crippen's former counsel to reply to the allegations of ineffectiveness of counsel. Counsel and the State have responded to each of Crippen's original claims.III. PROCEDURAL CONSIDERATIONS
Under Delaware Law the Court must first determine whether Crippen has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within three years of the conviction becoming final. Crippen's motion was filed in a timely fashion, thus the bar of Rule 61(i)(l) does not apply to the motion. As this is Crippen's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 554 (1990) ( citing Harris v. Reed, 489 U.S. 255 (1989)). See Dawson v. State, Del. Supr., 673 A.2d 1186, 1190 (1996).
Super. Ct. Crim. R. 61(i)(1).
Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: (1) cause for the procedural fault and (2) prejudice from a violation of the movant' s rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim or miscarriage of justice stemming from a constitutional violation that "undermines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction. "
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
Only Crippen's first and second claims are premised on allegations of ineffective assistance of counsel. Thus, Crippen has minimally raised counsel's effectiveness in two of his four grounds for relief. Crippen has therefore seemingly alleged sufficient cause for not having asserted these grounds for relief at trial and on direct appeal. These types of claims are not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Crippen, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567D1-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance"; ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) (" Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel' s errors were so grievous that his performance fell below an objective standard of reasonableness. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687. See Dawson, 673 A.2d at 1190.
Id. at 694. Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d 1170 1172 (1992).
Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997) Younger v. State, 580 A.2d at 556; Robinson v. State, Del. Supr. 562 A.2d 1184, 1185 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER) Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation."
Strickland at 687.
Id. at 697.
State v. Gattis, Mem. Op. at 9.
Strickland at 689; Dawson, 673 A.2d at 1190; Wright V. State, Del. Supr., 671 A.2d 1353, 1356 (1996).
In the case at bar, Crippen attempts to show cause for his procedural default by making merely conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Crippen's Rule 61 petition and should result in summary dismissal for each of his ineffective assistance of counsel claims. The case against Crippen was strong. He contracted to sell cocaine directly to an undercover police officer. The Supreme Court found no error in the handling of the evidence. Crippen can prove no prejudice based upon counsel's actions. Concerning Crippen's sentence, as pointed out by Crippen's former counsel in his affidavit, Crippen was subject to minimum mandatory penalties, Crippen had an extensive criminal record and he fled during his trial. Crippen's self serving conclusory allegations of prejudice are unsubstantiated and merit dismissal. As for the issue of a conflict of interest, it is clear from counsel's affidavit that counsel immediately withdrew his representation of both Crippen and his sister as soon as he became aware of any potential conflict. Despite Crippen's protests to the contrary, there is no evidence of counsel's representation being inadequate or prejudicial to Crippen. Furthermore, a review of the record shows counsel's representation of Crippen was more than adequate under Strickland, especially in light of Crippen's flight during the trial.
See e.g. Wright, 671 A.2d at 1356; Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 1992) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).
Crippen's third ground for relief was not raised earlier and as such is barred by Rule 6(i)(3) absent a demonstration of cause and prejudice. Crippen has made no attempt to justify his failure to have raised this issue on direct appeal and it is therefore procedurally barred. Furthermore, although Crippen claims the State failed to provide the statement and criminal record of Jimmy Murphy, he fails to note that Mr. Murphy was never called as a witness during trial. Crippen's claim that these documents are exculpatory is entirely conclusory. This ground for relief should also be dismissed as procedurally barred.
Turning briefly to Crippen's fourth ground for relief. Rule 61(i)(4) bars any ground for relief that was formerly adjudicated unless reconsideration of the claim is warranted in the interest of justice. Crippen raised his fourth claim concerning the sufficiency of the evidence in his direct appeal to the Supreme Court which found the claim meritless. Crippen did not challenge the Supreme Court's ruling. Crippen has made no attempt to argue why reconsideration of this claim is warranted in the interest of justice. The interest of justice exception of Rule 61(i)(4) has been narrowly defined to require that the movant "show that the subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Crippen has made no attempt to demonstrate why his claim should be revisited. This Court is not required to reconsider Crippen's claim simply because it is "refined or restated." For this reason, Crippen's fourth and final ground for relief should be dismissed as previously adjudicated under Rule 61(i)(4).
Super. Ct. Crim. R. 61(i)(4).
Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990); Maxion v. State, Del. Supt., No. 50, 1996, Holland, J. (July 2, 1996) (ORDER) at 2.
Riley v. State, Del. Supr., 585 A.2d 719, 721 (1990).
IV. CONCLUSION
After reviewing the record in this case, it is clear that Crippen has failed to avoid the procedural bars of Rule 61(i). Consequently, I recommend that Crippen's postconviction motion be dismissed as procedurally barred by Rule 61(i)(3) and (4) for failure to prove cause and prejudice and as previously adjudicated.