Opinion
ID No. 0107017049.
Submitted: April 8, 2008.
Decided: July 31, 2008.
On Defendant's Motion for Postconviction Relief. DENIED.
R. David Favata Esquire, Department of Justice, Delaware.
Andrew W. Gonser, Esquire, Gonser Gonser, Wilmington, DE.
ORDER
On this 31st day of July, 2008, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. On June 26, 2007, Mr. Hassan-El ("Defendant") filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). For the reasons set forth below, Defendant's Motion for Postconviction Relief is DENIED.
2. The Defendant's arrest and subsequent conviction stem from the attempted robbery and shooting on July 18, 2001 in the area of 10th and Madison streets in the City of Wilmington. Hassan-El and his co-defendant, Tyrone Guy, conspired to rob the driver of a Jack and Jill Ice Cream truck while he was on his route. During the course of the robbery Abdullah Alameri was shot and died a short time later.
This factual recitation is taken primarily from the Delaware Supreme Court's decision affirming Hassan-El's conviction in Hassan-El v. State, 911 A.2d 385 (Del. 2006).
3. The first trial, where Hassan-El was tried with his co-defendant Tyrone Guy, ended in a mistrial when the jury failed to reach a unanimous verdict. At the second jury trial, the Defendants were tried separately and Hassan-El was convicted of the following charges: Murder First Degree (felony murder), Murder Second Degree (a lesser-included offense of intentional murder), Possession of a Firearm During the Commission of a Felony, Attempted Robbery Second Degree, and Conspiracy Second Degree. Thereafter, the Defendant was sentenced to life in prison for the felony murder conviction, plus forty-five years at Level 5 for the remaining convictions. On appeal, the Supreme Court affirmed Hassan-El's convictions and a mandate was issued on July 18, 2006. Defendant filed a timely motion for postconviction relief and was appointed counsel, who filed the present amended motion before the Court. At the Court's request, Defendant's attorneys for trial and appeal, Andrew J. Witherell, Esquire, and Joseph M. Bernstein, Esquire ("Counsel"), filed affidavits in response to the claims of ineffective assistance of counsel.
4. In his postconviction motion Defendant raises numerous claims of ineffective assistance of counsel, along with other violations of his constitutional rights. His complaints are best addressed categorically:
A. Claims regarding Witness Marcus Archy
5. Defendant raises several claims relating to the testimony of State's witness Marcus Archy, who, when cross-examined, denied he had knowledge of any leniency or benefit he received from testifying against the Defendant, when in fact he had entered into a plea bargain with the State. Prior to addressing the merits of a postconviction claim, the Court must determine whether the procedural requirements of Rule 61 have been met. A ground for relief is procedurally defaulted if it was not asserted in the proceedings below leading to the judgment of conviction, unless the movant can show both cause for relief, and prejudice from the violation of his rights. In his motion Defendant claims the State violated his due process rights by failing to disclose to the jury the plea agreement between Archy and the State, and by failing to turn over discovery documents that could have been used to impeach Archy. Because Defendant failed to raise these issues on his direct appeal, they are procedurally defaulted pursuant to Rule 61(i)(3). However, putting the procedural bar aside, they simply have no merit. There is no legal requirement for the State during its direct examination of a witness to disclose the existence of, or the details of, its plea agreement with that witness. While many times it is a good tactical practice by the prosecutor to do so, it is ridiculous to argue that some legal obligation exists. In addition, in spite of the Defendant's assertions otherwise, defense counsel did have the pertinent plea document information before Mr. Archy testified, and he was examined extensively regarding it by counsel. The only issue relating to this matter was avoiding disclosure to the jury that the plea occurred after the first trial of the Defendant in which the jury was unable to reach a decision. This limitation was made to ensure a fair trial for the Defendant and clearly the Defendant was not prejudiced by this ruling by the Court.
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. 255, 265 (1989)).
Super. Ct. Crim. R. 61(i)(3).
6. Next, The Defendant claims that his counsel was ineffective for failing to alert the Court or request a mistrial when Marcus Archy claimed he was ignorant of any "deal" with the State in exchange for his testimony, and for failing to raise these issues on appeal. First of all, having presided at the trial, it is fair to say that Mr. Archy was not the brightest light in his intellectual understanding of the legal process. So it was quite conceivable that he was not familiar with the "legalese" of the deal. But even assuming that Mr. Archy was not completely candid, it is hard to imagine why counsel would want to request a mistrial, assuming he even had grounds to do so, when the credibility of a State witness has been significantly damaged on cross-examination.
It is the Court's recollection that there was some dispute whether the plea agreement with Mr. Archy was reached so he would testify against the defendant which may have led to the alleged confusion by Mr. Archy.
To establish a claim for ineffective assistance of counsel, the Defendant must meet the two-part test set forth in Strickland v. Washington. A defendant must show both that 1) counsel's representation fell below an objective standard of reasonableness, and 2) a reasonable probability exists that but for counsel's errors, the outcome of the proceeding would have been different. Whenever evaluating the conduct of counsel, the Court must indulge "a strong presumption that counsel's conduct was professionally reasonable." As to this issue, not only was counsels' conduct reasonable, the Defendant benefitted from the poor performance by this State witness. As counsel point out in their affidavits, it was unlikely that Archy's denial of a plea agreement with the State was an outcome-determinative issue for the jury. As Mr. Witherell stated:
466 U.S. 668 (1984).
Wright v. State, 608 A.2d 731(Del. 1992), citing Albury v. State, 551 A.2d 53, 58 (Del.Super. 1988).
Albury v. State, 551 A.2d 53, 59 (Del. 1998).
Archie claimed ignorance in that he did not know of a deal, did not know the prosecutor with whom he made the deal nor did he recall the plea agreement. In essence, the witness did not look credible as he could not, or would not, answer the most obvious of questions.
Witherell Aff. at ¶ 1.
Similarly, Mr. Bernstein noted:
On cross-examination, Archie was confronted with the details of the "deal" he made with the State and the details of the lenient sentences he received. Archie denied having any knowledge of these matters . . . It should have been clear to the jury that Archie in fact received favorable treatment from the State. It should also have been clear to the jury that Archie's denial that he received favorable treatment from the State was not believable, which went to his credibility and possible bias.
Bernstein Aff. at 1-2.
7. The Court finds, based on the statements in counsel's affidavits and its own recollection of the trial, that Archy was thoroughly cross-examined by counsel as to the plea agreement he entered into with the State, and despite his proclaimed ignorance of a "deal," the jury was presented with sufficient facts to draw their own conclusions about his credibility. Therefore, even if there was some basis for counsel to request a mistrial or object further to Archy's testimony, the failure to do so is insufficient to undermine confidence in the outcome of the case, and therefore Defendant's claim fails. Having found counsels' conduct was not deficient at trial, there is no need to question their decision not to raise the issue on appeal.
See Strickland, 466 U.S. at 693-94.
B. Procedurally Defaulted Claims
8. The Defendant claims he was denied the right to a speedy trial, and a fair trial. Because the Defendant failed to raise these Constitutional issues on his direct appeal, they are procedurally barred and the Court need not address them unless cause and prejudice is shown by the Defendant. In addition, as to the claim that Defendant's right to a speedy trial was violated, the Defendant has failed to show "some external impediment" which prevented him from raising the claim on direct appeal. His general comment claiming an unfair trial is simply a self serving statement without any basis. As such, the Court finds the Defendant has failed to establish cause or prejudice that would warrant review of otherwise barred issues.
See Def. Motion at ¶ 25; ¶ 27.
See Super. Ct. Crim. R. 61(i)(3).
See Younger v. State, 580 A.2d 552, 556 (Del. 1990). The delay of Defendant's first trial was primarily due to two factors — numerous conflicts involving the representation of the Defendants, and the temporary stay of pending trials in capital first-degree murder cases. See Docket Entry Nos. 26 and 92.
9. In paragraph 17 of Defendant's Motion, he appears to be making an argument that there was insufficient evidence to support his convictions for Conspiracy and Felony Murder. If that is indeed what Defendant is arguing, such a claim would be procedurally defaulted because it was not raised on appeal. Because Defendant presents no showing of cause or prejudice, this claim is barred.
C. Summarily Dismissed Claims
10. Pursuant to Rule 61(d)(4), a claim may be summarily dismissed under certain circumstances if "it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal. . ." To avoid summary dismissal, a movant must do more than make conclusory assertions of law or fact. He or she must support the assertions with "concrete allegations of actual prejudice, or risk summary dismissal." While many of the allegations stated by the Defendant probably fall into this category, two of Defendants claims clearly do. First, Defendant claims counsel were ineffective for "failing to object in the second trial to the out of court statements of both Robert Zayas and Keith Flowers." Not only did counsel object at trial to the Zayas statement and preserve this issue for appeal, the Supreme Court devoted a lengthy portion of its opinion to address this issue. The Court found the trial court's error in admitting the statements into evidence, over defense objection, was harmless. As for Keith Flowers' statement, Defendant simply asserts a conclusory statement that a Section 3507 violation occurred. Such conclusory statements simply fail to give the Court some hint as to the significance of the issue, and must be summarily dismissed.
Super. Ct. Crim. R. 61(d)(4).
State v. Childress, 2000 WL 1610766, at *1 (Del.Super. Sept. 19, 2000).
Def. Motion at ¶ 19.
See Hassan-El v. State, 911 A.2d 385, 395-398 (Del. 2006).
Counsel notes in his affidavit that he did request redactions be made to the Flowers' statement, which were agreed to by the State. See Bernstein Aff. at 4.
11. In addition, Defendant claims counsel were ineffective when they failed to "attempt to recreate in the second trial exactly the same strategy, witnesses, arguments, objections and motions and overall choreography of the first trial. . ." The Court finds this allegation to be nothing more than Defendant using general assertions to attack counsel's trial strategy. The Court cannot fathom a retrial ever being an exact duplicate of a prior trial, considering how both parties are apt to change tactics since neither was victorious the first time around. Because it is clear to the Court the Defendant is not entitled to relief on this ground the Court will not address it further.
Def. Motion at ¶ 28.
D. Ineffective Assistance of Counsel Claims — Pretrial Matters
12. Defendant makes numerous claims that counsel were ineffective in preparing for trial. First, Defendant claims counsel were ineffective for failing to file a motion to suppress a .25 bullet found at co-defendant Tyrone Guy's home. At the first trial, a motion to suppress the bullet was filed by Defendant Guy and denied by the Court. As counsel note in their affidavits, they did not file a motion to suppress because the Defendant lacked standing to challenge the search of Defendant Guy's residence, and any evidence seized as a result. Additionally, the Defendant cannot claim he was prejudiced by counsel's failure to file a motion that had already been denied by the Court. Therefore, this claim fails.
Id. at ¶ 9.
Witherell Aff. at ¶ 2; Bernstein Aff. at 2.
13. Next, Defendant claims counsel were ineffective for "failing to review the statements of, and to interview any of the State's witnesses before the start of Defendant's second trial," some of whom wished to recant their original statements.
Def. Motion at ¶ 16.
In response, Mr. Bernstein stated in his affidavit:
Prior to the second trial, Defense Counsel reviewed all prior out-of-court statements and the prior testimony of all of the witnesses who testified in the second trial. Counsel was aware that John Rice and Tacola Austin might testify differently from their testimony in the first trial. Even if that was so, Rice and Austin would still be subject to cross-examination about their prior testimony, which was damaging to the defense.
Bernstein Aff. at 3-4. See also Witherell Aff. at ¶ 6 ("Counsel believes all transcripts of statements and/or prior testimony were ordered and reviewed prior to the trial").
This claim fails because Defendant cannot satisfy the prejudice prong of Strickland. He has failed to show, in concrete terms, a reasonable probability that such intervie ws would have affected the outcome of his case, or even why interviewing them a second time was necessary. Counsel had already tried the case once and was familiar with the testimony of each witness. Nothing more was required to find that counsels' conduct was reasonable. For these reasons, Defendant's claim fails under Strickland.
See Hill v. Lockhart, 474 U.S. 52, 59 (1985)("When dealing with the "prejudice" prong in the context of claims of counsel's failure to investigate facts, the determination of prejudice depends on whether the expected evidence would have changed the outcome of the trial.").
Because a movant is required to prove both prongs of Strickland in order to succeed on an ineffectiveness claim, the failure to prove either will render the claim unsuccessful, and the Court need not go on to address the remaining prong. See Stevenson v. State, 469 A.2d 797 (Del. 1983).
14. Defendant claims counsel were ineffective for failing to visit the crime scene in preparation for trial, and for failing to object to the jury viewing the crime scene. Both parts of Defendant's allegation are simply without merit, as both counsel note in their affidavits that they each visited the crime scene prior to trial, taking note of landmarks, vantage points, and routes of flight for all persons involved. In addition, there was an objection to the circumstances of the jury's daytime viewing of the crime scene. In a letter dated May 23, 2005, Mr. Bernstein stated "if there is to be a jury view, it should be done at nighttime," because that was the time the crime actually occurred. The Court rejected this argument. Defendant's assertions are clearly not based on proper facts, and the Court need not continue with a Strickland analysis on these claims.
Def. Motion at ¶¶ 23-24.
Witherell Aff. at ¶ 13; Bernstein Aff. at 5-6.
See Docket entry no. 143.
E. Ineffective Assistance of Counsel at Trial
15. Defendant raises numerous grounds of ineffective assistance of counsel based on the representation he received at trial. Specifically, Defendant takes issue with counsels' failure to call certain witnesses for the defense who were used to establish Defendant's alibi at the first trial. In their affidavits counsel noted that they believed calling these witnesses (Reginald Johnson, Russell Flowers, and Tacola Austin) would be either unhelpful or detrimental to Defendant's case. It appears to the Court that these claims are simply extensions of the Defendant's prior argument that counsel should have "recreated the first trial." As previously noted, there is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance and the decision as to who should be called as a witness is one solely within the province of counsel. Considering the affidavit submitted by counsel and the trial record, the Court finds counsel's actions did not fall below an objective standard of reasonableness. Having found this claim fails the first prong of Strickland, the Court need not address the second.
Def. Motion at ¶¶ 11-12.
Strickland, 466 U.S. at 689.
See n. 29, supra.
16. Defendant claims counsel were ineffective for failing to discuss and use questions posed by him during trial for cross-examination purposes, and for failing to call witnesses suggested by him. Again, the Defendant is confusing the role of counsel (to control the tactics and strategy of the trial) and the defendant's role (to assist in the defense). According to counsel's affidavit, the Defendant "gave counsel many pages of questions that he wanted to be asked" and counsel often incorporated the Defendant's suggestions into questions they asked, just in a different form. It is the sole province of counsel to determine, in the end, which witnesses and questions are relevant at trial. In addition, the Defendant claims counsel were ineffective for failing to raise certain issues on appeal that Defendant wished to include. In counsel's affidavit he notes that he sent letters to Defendant explaining why certain issues were not being raised on appeal. Again, it is within the province of counsel to make reasonable decisions as to which appealable grounds have the most merit. Both trial and appellate counsel are not simply a spokesperson for the Defendant to be manipulated at his whim. They are bound by their professional responsibility to use their independent and legally trained judgment to determine appropriate trial strategy and what matters to appeal. Simply because the Defendant disagrees or would have preferred additional arguments or decisions to be made does not provide a basis to grant a Rule 61 petition. The Court finds counsels' conduct to be reasonable under the circumstances and therefore this claim fails the first prong of Strickland. While the Court need not address the prejudice prong of the Strickland test, it notes that counsels' process of "picking and choosing" which of Defendant's questions to use on cross-examination was most likely to his benefit, as it prevented repetitive, irrelevant or damaging testimony.
Def. Motion at ¶ 15 and ¶ 21.
Bernstein Aff. at 5.
Id. at 4.
17. Defendant claims counsel were ineffective for failing to cross-examine witness Robert Zayas about his statement that he had smoked PCP, a hallucinogenic drug, on the day in question, and for failing to hire an expert to testify to the effects of PCP. Counsel did in fact cross-examine Zayas about his drug use, and was able to elicit that Zayas had first lied about using PCP, then later admitted it to police. In addition, Zayas testified that smoking "wet," or PCP, can "make you feel crazy." With this claim, Defendant has failed to show how a more extensive cross-examination or the testimony of an expert on drug use would have changed the outcome of his case, or even the relevance of the expert's testimony. The critical factor was for the jury to learn of Zayas' drug use, which clearly called into question his credibility and the reliability of his testimony. An expert was not needed to accomplish this.
Def. Motion at ¶¶ 13-14.
See Trial Tr. May 24, 2005, pp. 7-12; p. 51.
18. Defendant claims counsel was ineffective for failing to object to improper statements made by counsel for the State during closing arguments, and for the State's use of an "unrelated handgun" in front of the jury during the penalty phase. As for the prosecutor's comments, the Defendant uses as examples the statement "crimes occur where criminals live," and calling the Defendant "stupid." While the Defendant makes the generalized statement that counsel should have objected, he fails to articulate a basis for the objection or the harm that was allegedly caused by counsels' inaction. These statements were made in closing arguments and the jury was told they were not evidence they should rely upon to make a decision. The failure of counsel to object is a strategic decision that did not prejudice the Defendant.
Def. Motion at ¶ 26; ¶ 20.
The handgun was one seized from the Defendant in another case and was used to reflect the Defendant's criminal propensity, as it was fired by the Defendant on the street after a verbal altercation with another individual. Particularly since this occurred during the penalty hearing, counsel had no basis to object. Given the strong presumption of reasonableness applied to counsel's conduct under Strickland, the Court finds counsels' failure to object was not deficient, nor did it call into question the reliability of the proceedings as a whole. Therefore, this claim fails.
19. Additionally, Defendant claims that at some point during trial a juror came forward and revealed that she had been threatened. Defendant believes counsel should have requested a mistrial or at a minimum excused the juror, and question the remaining jurors. Neither counsel can recall anything specific about a juror being threatened, however the Court was able to determine the relevant exchange from the record. Juror no. 2 advised chambers that she had received a phone call at her home at her home on a Friday night, during the trial, in which the male caller stated he was from the MS Society and asked for her address and phone number. When the Juror declined, the caller stated "It's me and I'm going to get ya." The Juror received a second phone call the next day around noon. The caller, a woman, stated she was from the Special Olympics and requested updated information. The caller said the same thing as the male caller the day before. The following exchange occurred during a voir dire of Juror no. 2:
See Witherell Aff. at ¶ 11; Bernstein Aff. at 5.
Trial Tr. June 1, 2005 p. 18-41.
Id. at 20.
The Court: Now, based upon anything that may have been said to you or anything, do you think it will influence your decision as you consider this case?
Juror No. 2: No. Not at all.
The Court: Do you feel intimidated or threatened or anything?
Juror No. 2: No.
The Court: Are you willing to listen to the evidence and base your verdicts simply on the testimony that's presented in the courtroom?
Juror No. 2: Yes.
The Court: And I take it you've followed my request this morning and haven't told any other juror about it.
Juror No. 2: No, I didn't say anything.
Id. at 21-22.
The Court then proceeded to question every juror whether they received similar phone calls, spoke about the case with anyone, read the newspaper or heard anything about the case whatsoever. They all answered in the negative. The Court determined she should remain as a juror. Counsel for the State and the defense agreed. Based on the responses of Juror no. 2 and the rest of the panel, the Court finds counsels' failure to object was not unreasonable, since there was no apparent threat of prejudice to the Defendant under the circumstances. In addition, the Defendant has failed to show a reasonable probability that the outcome of the trial would have been different based on the objection. For these reasons Defendant's claim fails.
F. Conclusion
20. For the reasons set forth above, the Defendant's Motion for Postconviction Relief is hereby DENIED. The Court believes it is important to emphasize that counsel who file these motions also are expected to exercise independent judgment based upon their legal training as to what issues have merit and not simply create a laundry list of possible issues hoping that one will gain some footing. Unfortunately the petition filed here at times read as if it was being controlled and manipulated by the defendant. As is expected of trial counsel, counsel in these motions are expected to only raise issues that they believe have merit and warrant the Court's consideration.
IT IS SO ORDERED.