Opinion
Def. ID# 0005011315.
Submitted: October 8, 2004.
Decided: October 14, 2004.
DECISION ON REMAND REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
Robert W. Hassett, III, pro se, Sussex Correctional Institution, Georgetown, DE.
James W. Adkins, Esquire, Georgetown, DE.
Thomas D.H. Barnett, Esquire, Georgetown, DE.
This pending motion for postconviction relief which Robert W. Hassett, III ("defendant") filed pursuant to Superior Court Criminal Rule 61 ("Rule 61")is currently before the Court on a remand from the Supreme Court. Hassett v. State, Del. Supr., No. 468, 2003, Holland, J. (May 20, 2004). The remand is limited to this Court considering defendant's claims of ineffective assistance of counsel. This is my decision denying the motion on the ground that trial counsel was ineffective.
PROCEDURAL HISTORY
On May 14, 2000, Sherri Hassett, defendant's stepmother, was stabbed to death with a knife. Defendant was arrested for and tried on the charges of murder in the first degree and possession of a deadly weapon during the commission of a felony. Defendant's defense was that his friend Jason Coggin killed her; Coggin's testimony was that defendant killed her. The jury rejected defendant's version of events and convicted him as charged. The Delaware Supreme Court affirmed the judgment of the Superior Court. Hassett v. State, Del. Supr., No. 420, 2001, Steele, J. (May 15, 2002).
On May 2, 2003, defendant filed motions for a new trial and a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). The Court denied the motion for a new trial. State v. Hassett, Del Super., Def. ID# 0005011315, Stokes, J. (August 25, 2003) at 3-5. The Court also denied the motion for postconviction relief. Id. at 5-15.
Defendant appealed those decisions to the Supreme Court. The Supreme Court reviewed the filings and determined that "[u]nder the circumstances alleged in Hassett's postconviction motion, it would be helpful to have a more complete record." Hassett v. State, Del. Supr., No. 468, 2003, Holland, J. (May 20, 2004)at 2. That Court remanded the matter to this Court to obtain trial counsel's response to the postconviction motion and then to determine if a hearing was desirable. Id.
Thomas D.H. Barnett ("trial counsel") submitted a response to the Rule 61 motion in affidavit form. Thereafter, defendant filed two pleadings. One sought a hearing on the postconviction relief motion. The other, labeled "Motion for Production of Mental Health Records", set forth allegations which previously had not been made in this Court. These allegations are that due to mental health issues that he was suffering after his arrest, defendant was not competent to render a decision as to his defense and had trial counsel rendered effective assistance of counsel, there would have been "a better way of proceeding to best fit the defendant's interests." It could be argued that defendant made these arguments at page 11 of his brief filed with the Supreme Court. Because this case was due back to the Supreme Court, this Court considered it more expedient to hold a hearing rather than require further submissions on these issues. Thus, the Court held a hearing on October 8, 2004, on the limited issues of whether defendant was competent prior to and during trial and whether trial counsel rendered effective assistance of counsel in connection with defendant's mental health situation.
A mere allegation of a defendant's incompetency in a postconviction relief motion will not result in a hearing on that issue.
In this decision, I reconsider the portion of the Rule 61 motion dealing with ineffective assistance of counsel claims. This decision replaces that portion of this Court's decision of August 25, 2003, which addresses the ineffective assistance of counsel claims. All other portions of the August 25, 2003, decision remain intact.
DISCUSSION
I) Applicable standard
Where a defendant makes a claim of ineffective assistance of counsel, he must show that counsel's errors were so grievous as to fall below an objective standard of reasonableness and he must show to a reasonable degree of probability that but for counsel's unprofessional errors, actual prejudice resulted. Strickland v. Washington, 466 U.S. 668 (1984). In addition, the allegations must be concrete; vague and conclusory allegations fail. Younger v. State, 580 A.2d 552, 555 (Del. 1990).
II) Specific allegations
1) Failure of trial counsel to have defendant evaluated by a psychiatrist for defendant's competency to aid in his defense
As previously noted, defendant contended that he was not competent at the time of trial to make an informed decision regarding his defense. Defendant refined his contention at the hearing. His argument, as refined, is as follows. Mr. Barnett was aware that defendant suffered a mental illness. That fact required Mr. Barnett to have him undergo a mental evaluation. Because defendant was not on psychological medications before and during the trial, he was not sane and could not make a rational decision regarding his defense. Thus, Mr. Barnett was ineffective for not having defendant evaluated to determine his lack of competency.
During the Rule 61 hearing, the Court asked defendant twice if he wished to testify under oath. Both times, he declined. The only sworn evidence from defendant which this Court can consider regarding his mental competency at the time of trial is his sworn testimony on cross-examination set forth below.
During the hearing, defendant explained several times that he currently was on medications for his mental illnesses and those medications where what allowed him to be able to intelligently participate in this hearing. The Court observed defendant's demeanor and participation in this hearing. There is no doubt that he was competent at this hearing. This finding is made to foreclose any future argument defendant might want to make regarding his ability to participate in these postconviction proceedings and the Rule 61 hearing.
Q. If your mother said something on the tape to the police like he said I killed a family member and I asked him are you sure and he said, yes, mom, then she's wrong about that too?
A. Yes.
Q. Because she is just some type of nut case?
A. I didn't say she was a nut case, but, yes, she did have problems.
Q. More than you?
A. If you say I do. I have been evaluated. They say I'm sane.
Q. You know what you are doing, don't you?
A. Yeah, I do. I know what I'm doing; I'm telling the truth.
Trial Transcript from proceedings held on June 19, 2001, at F-122-23.
At the Rule 61 hearing, Mr. Barnett testified as did Allen Weiss, M.D. Also, defendant's medical records from the time of his incarceration until the present were submitted.
When defendant was incarcerated on May 14, 2000, he was experiencing symptoms of mental illnesses. Dr. Weiss, a psychiatrist who worked at Sussex Correctional Institute, evaluated him on May 16, 2000, and diagnosed him with schizoaffective disorder, polysubstance abuse disorder, alcohol dependence, antisocial personality disorder, and post-traumatic stress disorder. Dr. Weiss prescribed medications. Defendant's symptoms of mental illness began subsiding. In December, 2000, defendant told the doctor he no longer wanted to be on the medications and they were causing him to gain weight. Dr. Weiss, concluding that defendant was stable and did not appear to be a threat of danger to himself or others, allowed defendant to go off the medications based on his refusal to continue to take them. Defendant continued to be evaluated by the mental health professionals at the prison for the purpose of determining whether he continued to remain mentally stable. Dr. Weiss stopped working at the prison in February, 2001. However, defendant's medical records make clear that defendant did not exhibit any symptoms of active mental illnesses from December, 2000 through the trial. Defendant's illnesses are cyclical, and he was stable from the time he was off his medicines through his trial.
Dr. Weiss opined that based on his observations of defendant and the medical records, defendant, during the time in question, had sufficient present ability to consult with a lawyer rationally, had a rational and factual understanding of the proceedings against him, and was able to assist in preparing his defense.
Mr. Barnett testified to the following. He was aware that defendant had had "issues" before the murder. Mr. Barnett, at the urging of defendant's mother, took steps to have defendant undergo a mental evaluation with Dr. Sibley. The purpose of the evaluation would have been to determine if there was a basis for a defense of diminished capacity. However, once defendant adamantly refused to admit that he had killed Sherri Hassett in order to advance such a defense, Mr. Barnett saw no reason to pursue the mental evaluation and he never had defendant evaluated. Mr. Barnett did not review defendant's medical records from his incarceration. Mr. Barnett never witnessed any behavior of defendant that was anything but normal before and during the trial; i.e., defendant never exhibited any bizarre behavior which would have indicated that he might be suffering from any active mental illness. Defendant was able to review evidence with Mr. Barnett, defendant directed his own defense, defendant sent letters to the Court during this time frame which were coherent and oriented as to time and place, defendant was attentive during his trial and defendant knew what was occurring. Defendant was quite capable of participating in his defense. He was perfectly rational. There was no reason for Mr. Barnett to question defendant's competency and have him evaluated.
This Court observed defendant during trial and during his testimony at that trial. There never was any behavior to cause the Court to question defendant's competency. He was attentive during trial. He responded to the questions asked. He was oriented as to time and place.
I make the following findings of fact based on the evidence. Defendant was competent from December 2000 through the trial. Furthermore, there was nothing to indicate to Mr. Barnett that defendant was suffering any active symptoms of mental illnesses from December, 2000 through his trial in 2001. There was no basis for Mr. Barnett to have defendant undergo a mental evaluation to determine his competency. There was nothing to indicate that defendant was anything but competent during this time period.
Defendant seems to think that just because he had suffered a mental illness, been treated for it, and was no longer treating, that in itself shows he was not competent. The fact a person is mentally ill is not what determines competency. Competency is determined by whether the defendant is able to consult with his lawyer rationally, whether the defendant has a rational as well as a factual understanding of the proceedings against him, and whether the defendant is able to assist in preparing his defense. State v. Shields, 593 A.2d 986, 1004 (Del. 1990). The evidence shows that during the time period in question, nothing occurred which would have put Mr. Barnett on notice that defendant needed to be evaluated for competency issues. Mr. Barnett was fully justified in concluding that defendant was competent to participate in his defense. Mr. Barnett was not ineffective for failing to have defendant evaluated for competency to stand trial.
Besides failing to establish trial counsel was not ineffective for failing to have defendant examined for his mental competency, defendant also has failed to show prejudice. First, defendant would not have been found incompetent if examined. Even assuming defendant would have been deemed incompetent during the time period in question, defendant would have had to go to trial once he was deemed competent. He has failed to state what his defense would have been once that occurred. Defendant, to this day, never has stated that he would have employed a defense where he admitted to killing Sherri Hassett and how that defense would have been successful so that the outcome would have been something other that what it was. Thus, defendant has failed to establish either Strickland prong.
This ground fails.
2) Failure of trial counsel to investigate the evaluations and findings of Dr. Weiss
Although he has not advanced the argument before this Court, defendant did argue to the Supreme Court that Mr. Barnett was ineffective for failing to investigate the evaluation and findings of Dr. Weiss. The testimony showed that Dr. Weiss considered defendant stable and competent during the time period in question. Thus, even if I found Mr. Barnett was ineffective for failing to investigate defendant's mental health treatment during his incarceration, I conclude there was no prejudice in this failure.
The only prejudice is that which Mr. Barnett noted during the hearing: prejudice to the justice system. If Mr. Barnett had talked with Dr. Weiss and examined defendant's mental health records before the trial, then, as Mr. Barnett noted, defendant would have been foreclosed from raising this issue post-trial.
This claim fails.
3) Mental health issues, drug issues, and an alternative defense
Defendant advances three separate arguments which relate to one premise. The premise is that defenses of extreme emotional distress, diminished mental capacity or temporary insanity might have been more successful than the "I did not do it" defense was. These arguments differ from the competency issue examined above. They are alternative arguments.
First, defendant argues that trial counsel failed to investigate or pursue defendant's mental health issues and that if he had, defendant might have been found not guilty or guilty of a lesser charge based on defenses of extreme emotional distress, diminished mental capacity or temporary insanity. He also argues that trial counsel failed to obtain the opinion of any drug expert prior to trial regarding the effects of various drugs and how those effects affected the defendant's psychological condition. Finally, defendant argues that because trial counsel only met with him three times and did not fully discuss the facts of the case with him, trial counsel did not gather sufficient information to pursue a better defense than the one that he was not guilty.
Defendant does not contend that intoxication should have been asserted as a defense. Instead, he argues that his drug usage resulted in a psychological condition which could have lessened his culpability.
Trial counsel's testimony at the Rule 61 hearing echos what he explained in his affidavit with regard to these alternative defenses:
(A) Counsel did speak with Mr. Hassett and his mother regarding his mental condition and reviewed documents provided by other family members. Counsel also wrote to Dr. Sibley regarding the possible mental health issues. However, when counsel explained to Mr. Hassett that he would have to admit to stabbing his stepmother in order to raise the defenses he refused to do so and counsel was left with the sole defense that Jason Coggin had killed Sherry [sic] Hassett.
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(C)Evidence of voluntary intoxication is not admissible under Rule 401(c) as a defense. Further, the defendant would have had to have admitted he stabbed Mrs. Hassett which he refused to do. Counsel sees no way such a defense could be raised when Mr. Hassett adamantly denied killing his stepmother. Therefore, any defense of this type was not available to counsel.
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(E) Counsel has no record of exactly how many meetings there were with Mr. Hassett, either in the Courthouse or at the prison. However, counsel does deny that the facts of the case were not discussed with Mr. Hassett. Counsel kept Mr. Hassett apprised of the case and also spoke with his mother and Mrs. [June] Bramble [Mr. Hassett's aunt] on several occasions. Mr. Hassett not only participated in the defense and strategy of his case, he directed counsel on how to proceed and what defense to use.
Trial counsel's response incorporated a June 5, 2001, letter he wrote the Court, as an officer of the Court. This letter was written before the trial began on June 11, 2001, and it sets forth the various preparations trial counsel had taken in connection with the case, which included meeting with defendant, his mother and his aunt. Of significance is the following statement:
I also spoke with David Sibley, M.D., in Dover regarding a possible mental examination but after meeting with Mr. Hassett at the prison that idea was discounted as a defense.
Defendant's trial testimony is consistent with the defense strategy which was based on his contention he did not kill his stepmother.
A. * * * She [Sherri] went and stepped in front of Jason and Jason stabbed her.
Q. Did you know Jason was going to stab her?
A. No. . . .
Trial Transcript from proceedings held on June 19, 2002, at F-72.
Q. Is it your testimony that you did not kill Sherri Hassett?
A. Yes, that's my testimony.
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Q. Did you intend to killed [sic] Sherri Hassett?
A. No.
Q. Did you plan to kill Sherri Hassett?
A. No.
* * *
Q. Were you surprised when Jason Coggin stabbed Sherri Hassett?
A. Yes, I was.
Q. Did you expect that he was going to stab her when you were standing outside with him?
A. No, I wasn't.
Trial Transcript from proceedings held on June 19, 2001, at F-78-79.
The previously quoted portion of defendant's testimony on cross-examination underscores his understanding of his version of the killing where he emphatically states that he is telling the truth.
To have employed the alternative defenses would have required defendant to have admitted that he had culpability in Sherri Hassett's death. Ross v. State, 768 A.2d 471 (Del. 2001) (raising an affirmative defense constitutes an admission of culpability in the death). Defendant does not clearly set forth his argument regarding the alternative defenses. Part of the reason for the lack of clarity is defendant's refusal to admit he killed Sherri Hassett. It may be that defendant is arguing trial counsel should have presented alternative defenses to the jury; i.e., defendant did not kill his stepmother, but if he did, his mental health problems lessened his culpability. It may be that he is arguing that if trial counsel had spent enough time with him and more thoroughly investigated the case, then trial counsel would have been able to determine that one of the affirmative defenses would have been a better defense than the "I did not do it" defense, despite defendant's contention he did not kill Sherri Hassett.
Trial counsel could not have taken either strategy alluded to above because to do so would have required him to present fraudulent evidence, something he could not have done. Delaware Lawyers' Rules of Professional Conduct, Rule 3.3. Once defendant told trial counsel that he had not killed his stepmother, defenses which sought to reduce or excuse his culpability were not available to defendant. Consequently, trial counsel was not required to investigate or pursue defendant's mental health issues or to obtain the opinion of any drug expert prior to trial regarding the effects of various drugs on defendant's psychological capacity. Thus, defendant cannot show, based on his trial strategy and his testimony, that the outcome of his case would have been different had his trial counsel performed an investigation regarding his mental state and/or psychological capacity or had trial counsel spent more time with him.
In Delaware Lawyers' Rules of Professional Conduct, Rule 3.3, it is provided in pertinent part as follows:
(a) A lawyer shall not knowingly:
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(3) offer evidence that the lawyer knows to be false.
These grounds for postconviction relief fail.
4) Investigation of witnesses
Defendant asserts that trial counsel failed to investigate or properly prepare for cross-examination in order to be able to properly impeach witnesses. Defendant never specifies what it is that trial counsel would have learned in such an investigation and how that would have changed the outcome of the trial. Instead, what he does is submit citations to transcript pages, questionnaires from several people, an unverified, unsworn statement from his mother, and an unverified, unsworn report from his mother's psychiatrist in support of vague statements that no investigation was done.
Defendant submitted this report from Mark S. Borer, M.D., his mother's psychiatrist. His mother thereafter requested that the Court seal this document. The document contains inadmissible hearsay and the information in it does not in any way advance defendant's request for postconviction relief. Accordingly, the Court previously ordered that this report by Dr. Borer be sealed and not be opened absent leave from this Court. State v. Hassett, supra at 14 n. 7.
Trial counsel responded as follows to this claim:
Counsel was not informed by the State of the witnesses [sic] identity until the trial began, and only received copies of their statements on the day that the witness took the stand, both of which are standard procedure in criminal trials.
Defendant disputes this contention. Whether this statement on trial counsel's part is totally accurate is irrelevant because defendant leaves it to the Court to figure out what he is arguing. Establishing ineffective assistance of counsel is not the Court's responsibility; that responsibility lies with defendant. Without specifying how trial counsel's investigation was not reasonable and how the outcome of the trial would have been different had trial counsel conducted an otherwise reasonable investigation, the vague assertions fail. Younger v. State, 580 A.2d at 555.
This claim fails.
5) Failure to interview witness
Defendant argues that trial counsel failed to secure and interview the person who reported possible contact between Juror No. 2 and a member of Sherri Hassett's family. Trial counsel's response clarifies that June Bramble, who is defendant's aunt, reported this encounter.
This Court was not made aware of the identity of the court spectator who reported the possible contact until trial counsel submitted his response.
As explained in my August 25, 2003, decision on the Rule 61 motion, the following occurred regarding Juror No. 2. Ms. Bramble reported to trial counsel that a member of Sherri Hassett's family possibly may have had an encounter with Juror No. 2. Ms. Bramble left the courthouse. The Court questioned Juror No. 2 in Chambers regarding any possible encounter. Juror No. 2 told the Court that no one had had contact with her about the case. The Court was satisfied with her answer. Since Ms. Bramble was not available, the Court instructed trial counsel that if he learned that Ms. Bramble had a different version from that of Juror No. 2, then the Court would question Ms. Bramble. Trial counsel said he would follow up with Ms. Bramble and clarify what it was that she saw, noting that she could have been mistaken. Nothing more was placed on the record regarding the issue.
Defendant has access to Ms. Bramble. He has not submitted any information establishing that Ms. Bramble actually saw contact with the juror. As a consequence, defendant cannot show that the outcome of the trial would have been anything other than what it was. He does not meet the Strickland standards, and this claim fails.
CONCLUSION
For the foregoing reasons, the Court denies defendant's Rule 61 motion on the claims of ineffective assistance of counsel.
IT IS SO ORDERED.