Opinion
IK95-10-0190-R1, IK95-10-0191-R1 ID No. 9509017343
Submitted: November 27, 2001
Decided: February 28, 2002
Upon Defendant's Motion for Postconviction Relief. DENIED.
Stephen R. Welch, Jr., Esq., Deputy Attorney General, for the State of Delaware.
Charles E. Whitehurst, Esq. of Whitehurst Curley, P.A., Dover, Delaware, for the defendant.
OPINION
Defendant Bruce R. Spell ("Spell") has moved for postconviction relief under Superior Court Criminal Rule 61 subsequent to entering pleas of guilty to Murder in the Second Degree, 11 Del. C. § 635, and Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447. Spell is serving a life sentence as an habitual offender under 11 Del. C. § 4214(a). The motion was initially referred to a Superior Court Commissioner for findings and a recommendation. The Commissioner recommended that the motion be denied and Spell filed objections. I decided to review the matter de novo. After an evidentiary hearing over the course of several days and briefing, I conclude that Spell is not entitled to postconviction relief. Accordingly, his motion is denied.
I. BACKGROUND
On September 24, 1995 Spell was taken into custody and ultimately indicted on the charges of Murder in the First Degree, 11 Del. C. § 636, and Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447A. The charges arose from the stabbing death of Frankie Lee Myhand at the Cartanza Labor Camp near Little Creek, Delaware. The case was prosecuted as a capital crime based upon Spell's criminal history of violent crime.
The statutory aggravating circumstances under 11 Del. C. § 4209 include "[t]he defendant was previously convicted . . . of a felony involving the use of, or threat of, force or violence upon another person." 11 Del. C. § 4209(e)(1)i.
On June 16, 1997 Spell entered into a plea agreement with the State. He pled guilty before Resident Judge N. Maxson Terry, Jr. to Murder in the Second Degree and Possession of a Deadly Weapon During the Commission of a Felony. The agreement stated also that "Defendant agrees and stipulates that he is eligible under 11 Del. C. § 4214(a) for a discretionary life sentence." A presentence investigation was ordered.
On August 8, 1997 Resident Judge Terry declared Spell an habitual offender based upon the stipulation within the plea agreement and his prior convictions for Robbery with a Deadly Weapon, Robbery, and Strong Armed Robbery. Spell, his counsel, and the Deputy Attorney General then addressed the Court on the appropriate sentence. Resident Judge Terry read and considered a 30-page letter submitted by Spell in addition to the presentence report. Spell also read into the record a second letter he had written. Resident Judge Terry concluded that "this [was] one case where the habitual offender statute [was] appropriate," and he sentenced Spell to life imprisonment. Spell did not appeal but filed on September 4, 1997 a timely application for postconviction relief and for the appointment of counsel. Resident Judge Terry appointed counsel for Spell and present counsel was later substituted.
Spell seeks postconviction relief upon five alleged grounds:
A. Ineffective assistance of counsel due to failure to thoroughly investigate Spell's claim of self-defense.
B. Ineffective assistance of counsel because he was told he would receive a maximum sentence of twenty years.
C. Ineffective assistance of counsel because he was told there was a substantial chance he would receive the death penalty when he had a strong defense of self-defense.
D. Denial of his right to speedy trial and ineffective assistance of counsel due to a continuance request by defense counsel and their failure to file a motion to dismiss.
E. Ineffective assistance of counsel at sentencing because defense counsel did not permit Spell to exercise his full right of allocution.
II. FACTS
During September of 1995 Spell and Myhand were migrant laborers and roommates at the Cartanza Labor Camp near Little Creek, Delaware. Myhand was believed to be mildly mentally retarded. On September 23, 1995 Spell and Myhand argued and Spell ejected him from their room. Because it was cold that night, Spell eventually let Myhand back in.The next morning Myhand spoke with Anthony Newsome, the camp foreman and his cousin. Myhand told Newsome that Spell was hiding a knife under his bed. During this conversation, Spell entered Newsome's office and assaulted Myhand. Myhand bit Spell on the chest while defending himself and drew blood. Spell later told his attorneys that Myhand actually attacked him, but this was contrary to Newsome's description of this event.
Spell returned to his room and treated his wound. He learned then from a woman that Myhand was suspected of having AIDS. Spell became alarmed at this and went to Newsome to ask him to take him to the hospital. Newsome did so. On the way Newsome told Spell he would move Myhand out of the room.
At the hospital the police spoke with Spell about filing a complaint against Myhand. He declined. After being treated, Spell returned to the camp and went to his room where he found the door "busted in" and Myhand inside. According to witnesses, Spell yelled at Myhand to leave and said he was going to kill him for giving him AIDS. Spell struck Myhand in the upper chest left shoulder area and then struck him a second time with what appeared to be a screwdriver. Spell was saying,"You bit me, you gave me AIDS" and stabbed Myhand in the back of the neck as he tried to flee. The eyewitnesses did not see Myhand with a weapon nor did they see him make any aggressive moves toward Spell. Spell later told his attorneys that he believed Myhand had a knife.
My hand was bleeding profusely but managed to reach Newsome's room leaving a trail of blood behind him. As Newsome called 911, Myhand stumbled out of the room and collapsed outside where he died. According to the autopsy, Myhand had three stab wounds to his right chest, left throat and right neck. Spell has admitted he was not cut at all during this altercation.
Spell was observed by witnesses standing with what appeared to be a bloody screwdriver or "pot handle" in his hand. The object was never recovered. Nor was any knife recovered from the room. When the police arrived, Spell calmly walked up to them. When asked if he had stabbed Myhand he respond "yes."
Representation of Spell was referred to the Public Defender's Office. Spell was initially represented by Howard Hillis, Esq. and Lloyd Schmid, Esq. Hillis was succeeded by Richard Baumeister, Esq. in 1996. The assigned investigator was Joseph Klenoski.
The State had an open file policy in this case. Defense counsel focused on the defense of self-defense as claimed by Spell and the mitigating circumstance of extreme emotional distress. Spell told his counsel that there were no witnesses to the stabbing. Thus, on the self-defense claim that Myhand attacked Spell with a knife, there was only Spell's testimony to support it. On the extreme emotional distress claim the defense did obtain the opinion of a psychiatrist to support that contention and there was evidence to corroborate Myhand's behavior and the bite incident. Spell had explained to his attorneys that Myhand had on numerous occasions masturbated on his food and kitchen utensils and that he was upset about getting AIDS from him. If extreme emotional distress was found by the jury, it would have reduced the offense to manslaughter. Based on Spell's record he nonetheless would have been sentenced to mandatory life imprisonment without probation or parole for manslaughter under 11 Del. C. § 4214(b).
See 11 Del. C. § 641.
There were two continuances of trial dates in this case. The first trial date of June 3, 1996 was continued at the request of the State because of the unavailability of witnesses. The trial was rescheduled for September 16, 1996 which was within one year of the date of arrest. This trial date was continued at the request of Mr. Schmid because Mr. Hillis suddenly left the Public Defender's Office in the late summer of 1996. The trial was rescheduled for June 27, 1997 with the concurrence of Spell. Spell ultimately decided, in consultation with his counsel, that it was in his best interest to enter into a plea agreement that avoided any risk of a death sentence and which allowed the sentencing judge the discretion to impose less than life imprisonment for the homicide. The guilty pleas were entered on June 16, 1997.
Dkt. No. 107, Tr. of Evidentiary Hr'g, Vol. C (Nov. 17, 2000) at 36.
During the plea colloquy Spell testified under oath before Resident Judge Terry that he understood the nature of the charges, that he was in fact guilty of them, that no promises were made about what his actual sentence would be, and that he understood he could receive up to life imprisonment in the discretion of the Court as an habitual offender. Spell also said no one threatened or forced him to plead, that he gave true answers to all questions on the guilty plea form, that he understood each of the constitutional rights he was giving up, and that he was voluntarily entering the plea because he was guilty of Murder in the Second Degree and Possession of a Deadly Weapon During the Commission of a Felony. He acknowledged discussing the matter "fully" with his attorneys. He swore that he was satisfied that they had done all that they reasonably could do for him.
Dkt. No. 57, Tr. of Plea Colloquy (June 16, 1997) at 4-9.
III. DISCUSSION
None of the procedural bars of Rule 61 apply in this case. In order to prevail on his motion for postconviction relief on the grounds of ineffective assistance of counsel, Spell must show that "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Spell must rebut a "strong presumption" that defense counsels' 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." The two-part Strickland test applies to challenges to a guilty plea based upon alleged ineffective assistance of counsel.A. The alleged failure to thoroughly investigate claim of self-defense
Although the failure to investigate a critical source of potentially exculpatory evidence may present a case of constitutionally defective representation, that is not the case here. Apart from Spell's own testimony there was no other evidence that Myhand was armed or that he threatened or assaulted Spell upon his return from the hospital. Spell adamantly maintained to Hillis that there were no witnesses to the stabbing and the police found no weapons at the scene. Nothing at the Rule 61 hearing credibly suggested that defense counsel or their investigator would have found any exculpatory evidence if they had done more. Thus, even assuming that they should have done more, Spell has failed to show prejudice or that he would not have pled guilty to murder in the second degree and the weapon charge in order to obtain the benefit of the plea agreement.
United States v. Baines, 687 F.2d 659, 666 (3rd Cir. 1992).
B. The alleged promise of a maximum sentence of twenty years
There is no credible evidence to support Spell's claim that his counsel promised him a maximum sentence of twenty years. Counsel testified that no such promise was made and I accept their testimony. The plea agreement itself contained Spell's stipulation that he could be sentenced to life imprisonment. Spell testified under oath when the plea was made that he was not promised what sentence he would be given. This was consistent with his answer to a similar inquiry on the guilty plea form.
This claim is without merit.
C. The alleged advice that there was a substantial chance Spell would receive the death penalty
Spell argues he was rendered ineffective assistance of counsel because he was told there was a substantial chance that he would receive the death penalty if convicted when he in fact had a strong defense of self-defense.
Defense counsel and Spell were on notice that the State intended to seek the death penalty in this case. Counsel had a duty to discuss this aspect of the case with Spell.
I am not persuaded that defense counsel told Spell that there was a substantial chance he would receive the death penalty if convicted. They told Spell that if convicted it was not "overwhelmingly likely" that a death sentence would be imposed. They also told him that if convicted the possibility of a death sentence was not something to be "lightly dismissed." This advice on the facts of this case was within the broad range of reasonable professional assistance. Additionally, the evidence does not support Spell's contention that he had a strong defense of self-defense.
D. The denial of speedy trial claim
Under the circumstances of this case defense counsel's request for a continuance was reasonable and appropriate. Mr. Baumeister required time to become oriented to the case and to prepare for trial together with Mr. Schmid. Spell was in agreement that the case be continued. Further, there was no demand filed for a speedy trial.
Spell has failed to show that counsel were ineffective in seeking a continuance. Moreover, Spell has not shown prejudice from any failure to move for dismissal. Such a motion would have been denied on these facts due to lack of merit and because Spell acquiesced in the delay. Finally, in the course of his guilty plea Spell expressly waived his right to a speedy trial.
E. The denial of allocution claim
There is no credible evidence that Spell was denied his right to allocution. At sentencing he was given the right to address the Court and did so at length. His comments were supplemented by a 30-page letter which he submitted and Resident Judge Terry read. Spell also read into the record another letter he wrote.
This claim is without merit.
IV. CONCLUSION
Spell entered his guilty plea knowingly and voluntarily. Defense counsels' representation in this case did not fall below an objective standard of reasonableness. Even if I accepted Spell's contentions that his counsel should have done more, he has not shown prejudice or that he would not have pled guilty to murder in the second degree and the weapon charge in order to obtain the benefit of the plea agreement. The plea agreement made was advantageous to him and his counsel provided reasonable professional assistance to him.
Accordingly, Spell's motion for postconviction relief is DENIED.
IT IS SO ORDERED.