Opinion
ID. No. 0808022374
06-12-2017
STATE OF DELAWARE v. JONATHAN L. STEVENS Defendant.
John Williams, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware. Christopher S. Koyste, Esquire for defendant.
RK08-10-0891-01 PFDCF (F)
RK08-10-0892-01 Robbery 1st (F)
RK08-10-0894-01 PDWBPP (F)
RK08-10-0895-01 Disguise (F)
RK08-10-0896-01 Conspiracy 2nd (F)
RK08-10-0897-01 Criminal Mischief < 1,000 (M)
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
John Williams, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware. Christopher S. Koyste, Esquire for defendant. FREUD, Commissioner
The defendant, Jonathan L. Stevens ("Stevens"), was found guilty, following a jury trial on May 21, 2009 of one count of Possession of a Firearm During the Commission of a Felony, 11 Del. C. § 1447A; one count of Robbery in the First Degree, 11 Del. C. § 832; one count of Possession of a Deadly Weapon (Firearm) by a Person Prohibited, 11 Del. C. § 1448; one count of Wearing a Disguise During the Commission of a Felony, 11 Del. C.§ 1239; Conspiracy in the Second Degree, 11 Del. C.§ 512 and Criminal Mischief < $1,000, 11 Del. C.§ 811. The State entered a nolle prosequi on one count of Possession of a Deadly Weapon During the Commission of a Felony. A presentence office investigation was ordered by the Court. On June 19, 2009, the State moved to have Stevens declared a habitual offender. Prior to sentencing the Court granted the State's motion and declared Stevens a habitual offender pursuant to 11 Del.C. § 4214(a). On July 14, 2009, Stevens was sentenced to a total of sixty-five years, thirty days incarceration, suspended after fifty-eight years for probation, thirty-five of which were minimum mandatory time.
Stevens, through counsel, appealed his conviction to the Delaware Supreme Court. The issues raised on appeal were that:
'the State was erroneously permitted to present to the jury Detective Robert Roswell's ... irrelevant and unduly prejudicial opinion that Stevens was involved in other robberies; opinion as to the credibility of the State's key witnesses; characterization of the evidence; and misstatement of the evidence.' The detective's statements were contained within a DVD of his interrogation of the juvenile co-defendant, Jeffrey Boyd ("Boyd"), the
redacted DVD was introduced into evidence by the State, as prior statements of Boyd, under title 11, section 3507 of the Delaware Code.The Supreme Court, on July 22, 2010, affirmed Stevens' conviction and sentence. Next Stevens filed a pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61 in which he alleged three grounds for relief as follows:
Ground one: Defendant was denied his constitutional right to effective assistance of counsel when his trial counsel ignorance of the governing law caused counsel to fail to render inadmissible prejudicial comments by a third party relied upon to support the Defendant's conviction.
Ground two: Defendant was denied his constitutional right to effective assistance of counsel when defense counsel's ignorance of the law led him to decline to present a defense.
Ground three: Ineffective assistance of counsel: cross-examination.
Defendant's counsel was ineffective in failing to conduct a reasonable pre-trial investigation, in violation of
Defendant's rights under the 6 and 14th Amendments. Specifically, trial counsel failed to properly cross-examine State's witness, amounted to ineffective assistance of counsel.
Stevens v. State, 3 A.3d 1070 (Del. 2010).
The matter was referred to the Court Commissioner for a Report and Recommendation. I found that Stevens had failed to avoid the procedural bars of Superior Court Criminal Rule 61(i) and that his counsel had represented him effectively. I recommended that the motion be denied as procedurally barred by Rule 61(i)(3) and (4) for failure to prove cause and prejudice and as previously adjudicated. The Court accepted my findings and recommendations and denied Stevens pro se motion. Stevens appealed the denial to the State Supreme Court who remanded the motion due to the fact that during the pendency of Stevens appeal this Court amended Rule 61 to provide for the appointment of counsel in a first postconviction motion. The Supreme Court declined to address the merits of the motion. On remand counsel was appointed to represent Stevens and subsequently filed an amended motion for postconviction relief.
Stevens v. State, Del. Supr. 196, 2013, Sept. 10, 2013 at 2.
FACTS
Following are the facts as set forth by the Delaware Supreme Court on the initial appeal of Stevens' conviction:
On the evening of August 1, 2008, Tamara Stratton ("Stratton"), Stevens, and seventeen-
year old Boyd left the residence of Stratton's aunt, and rode together to where Stratton lived. During this trip, Stevens asked to borrow Stratton's pickup in order to go to a hotel to see someone. Stratton was dropped off at her home in Dover a little before 10 p.m. that evening. Stevens and Boyd left in her truck.
Later that evening, Xiu Zhang ("Zhang") was working as a cook at the China King restaurant in Dover when two black men wearing disguises on their faces rushed in through the restaurant's back door. According to Zhang, the shorter of the two intruders was armed with a knife, while the other man appeared to have a gun. As Zhang attempted to flee out the front door, he was chased by the person with the knife. The pursuer hit Zhang with his fists and a chair. While Zhang was being assaulted, he saw the other intruder take the store's cash register drawer.
After attacking Zhang and seizing the register drawer with $700 in cash, the two robbers ran out the back door and fled southward. Chairs, a door and the store computer for the China King were all damaged during the robbery. Zhang was treated for his injuries at Kent General Hospital. Photographs of the injuries were introduced as evidence at Stevens' trial.
After Stratton read a newspaper article about the robbery at the China King restaurant, she telephoned the Dover Police Department on August 14, 2008. She told the police that on August 1,2008, at around 10:00 p.m., she lent her pick-up truck to Stevens, a friend of hers. They were at her aunt's house when Stevens told her that he needed to go to a hotel to see someone. Stevens and his friend "Jeffrey" then drove Stratton home and departed in her truck.
Stratton also told police that later that same night she received a call from Stevens, who told her that her truck had ran out of gas and that he needed her to 'come pick them up.' She went to Governor's Avenue, where the truck was parked. When Stratton arrived at the Governor's Avenue location, she saw Stevens and Boyd behind an apartment building.
At Stevens' trial, Stratton testified that 'They were setting fire to papers and what appeared to me to be a cash register.' When asked at trial if Stevens said anything to her, she replied: 'At the time I really didn't get any response besides everything is okay, everything is okay, basically proceed; go get your truck; you don't know anything.' On cross-examination at trial, Stratton clarified her testimony about what Stevens and Boyd were burning, by explaining that the two men
were not attempting to burn an entire cash register, but the 'drawer to a cash register.' Stratton testified that she called the police because she was afraid her truck would be linked to the robbery.
After speaking with Stratton, the police put together a line up which included Stevens' photograph. The line up was shown to Zhang, who was not able to identify the assailant. In separate photo lineups, however, Stratton identified Stevens and Boyd as the persons who borrowed her truck and whom she saw burning a cash register.
Dover Police Detective Roswell obtained warrants for the arrest of Stevens and Boyd, and on August 22, 2008, he took the juvenile suspect, Boyd, into custody. Boyd and his mother were transported to the Dover Police station where Boyd was interviewed by Detective Roswell in the presence of his mother. Boyd waived his Miranda rights and the interview was recorded on a DVD.
During his recorded police interview on August 22, 2008, Boyd told Detective Roswell where he and Stevens had left the cash register drawer. Detective Roswell went to 34 South Governor's Avenue and located the black cash register drawer near the garage where Boyd said it was located. Although Boyd was arrested for the China King robbery
on August 22, 2008, the Dover Police were not able to locate Stevens until October 2, 2008.
Stevens did not give a statement to police. Nor did he testify at trial. The record reflects that the defense rested at Stevens' trial without presenting any evidence.
Stevens, 3 A.3d at 1071-72.
STEVENS' CONTENTIONS
Stevens' Appointed Counsel filed an Amended Motion for Postconviction Relief pursuant to Superior Court Rule 61. In the motion there are five grounds for relief:
Ground one: Trial counsel was ineffective for failing to object, review, or request a curative instruction in relation to the admission of Jeffrey Boyd's 3507 statement in violation of Mr. Stevens' Sixth and Fourteenth Amendment Rights under Article I, §§ 4 and 7 of the Delaware Constitution.
Ground two: The State's failure to redact Jeffrey Boyd's 3507 statement amounts to prosecutorial misconduct in violation of Mr. Stevens' Fourteenth Amendment rights under the United States Constitution and his rights under
Article I, §§ 4 and 7 of the Delaware Constitution.
Ground three: The State committed a Brady violation by failing to disclose Tamara Stratton's criminal conviction in violation of Mr. Stevens' Fourteenth Amendment rights under the United States Constitution and his rights under Article I, §§ 4 and 7 of the Delaware Constitution.
Ground four: Jonathan Stevens' constitutional right to a fair trial was denied due to cumulative due process error in violation of Mr. Stevens' Fourteenth Amendment rights under the United States Constitution and his rights under Article I, §§ 4 and 7 of the Delaware Constitution.
Ground five: An Evidentiary hearing is required to fully develop the factual record in review of the claims raised in this motion.
As detailed in this report, I find Stevens' grounds for relief meritless and consequently there is no need for an evidentiary hearing.
DISCUSSION
Under Delaware law, the Court must first determine whether Stevens 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 one year of the conviction becoming final. Stevens'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 Stevens'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, 588 A.2d 1121, 1127 (Del. 1991).
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 relief from the procedural default; 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 that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
To some extent, each of Stevens' four claims are premised on allegations of ineffective assistance of counsel. Stevens has therefore alleged sufficient cause for not having asserted these grounds for relief at trial and on direct appeal. Stevens's ineffective assistance of counsel claims are not 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 Stevens, 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, 1995 WL 790961 (Del. Super.).
[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.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.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
466 U.S. 668 (1984).
551 A.2d 53, 58 (Del. 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, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
Id.
See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL 466465, at *1 (Del. Supr.)).
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, Stevens 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." Stevens claims prejudice as a result of his Trial Counsel's actions arguing the case against him was weak and only turned against him due to counsel's errors. A review of the complete record, however, leads me to conclude that Stevens suffered no prejudice as a result of the alleged actions of his Trial Counsel. Contrary to Stevens argument, I find the case against him was strong and that any slight error was undoubtedly harmless. Therefore his claims are barred by Rule 61(i)(3).
Strickland, 466 U.S. at 687.
Id. at 697.
State v. Gattis, 1995 WL 790961 (Del. Super.).
Strickland, 466 U.S. at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
Nevertheless I will briefly address Stevens' contentions for the benefit of the Court. As to Ground one, on direct appeal, Stevens' argued that the trial court committed plain error when it failed either to issue a curative instruction or to declare a mistrial when the jury was exposed to inadmissible comments by Detective Roswell during the playing of codefendant Boyd's, taped statement to the jury pursuant to 11 Del. C.§ 3507 ("3507"). The Delaware Supreme Court rejected Stevens' argument, holding that defense counsel's "... initial decision not to move for a mistrial or to accept the trial judge's offer of a curative jury instruction and counsel's failure to object to Detective Roswell's subsequent statements, all preclude any review for plain error." The Court noted that, "... [t]he plain error standard of appellate review is predicated upon a defense counsel's failure to object to the admission of improper evidence through oversight." Because defense counsel initially objected to the admission of Detective Roswell's personal opinion embedded in the 3507 statement, decided not to move for a mistrial or to accept the trial judge's offer of a curative jury instruction and decided not to object to Detective Roswell's subsequent statements, the Supreme Court concluded that there was no oversight by defense counsel and therefore, plain error appellate review was precluded.
Stevens, 3A.2d at 1077.
Id. at 1076.
In its opinion upholding Stevens' conviction, the Supreme court suggested that the propriety of defense counsel's trial strategy could be better analyzed on a record expanded by a Rule 61 motion for postconviction relief.
In his initial response to Stevens' motion for postconviction relief, his counsel, Mr. Schmid, pointed out that he had engaged in pre-trial discussions with the State about redactions of the co-defendant's statement so that potentially prejudicial comments would be removed prior to playing the statement to the jury. This is certainly a reasonable pre-trial strategy.
Mr. Schmid did admit, however, that he did not review the redacted statement prior to its playing to the jury, which arguably should have been done. He was, nevertheless, paying very close attention to the 3507 statement while it was being played to the jury because as the record shows he immediately objected when Detective Roswell made inadmissible comments during his interview of Boyd. Mr. Schmid's quick action thereby limited the jury's exposure to any other possible inadmissible comments by Detective Roswell. As Schmid stated in his affidavit, he did not ask for and declined the court's offer to give a curative jury instruction because he did not want to call anymore attention to the officer's comments than had already been given. Clearly, this was a judgment call by an experienced criminal defense trial attorney. A decision made during many trials by many experienced and not so experienced, trial lawyers. I do not find that Mr. Schmid's decision was erroneous under the circumstances.
Trial Counsel went on to explain that he did not ask for a mistrial because he believed that under the circumstances at that point in the trial it would not be granted. It is reasonable to assume that this decision was based in large measure on Mr. Schmid's long and extensive trial experience in Kent County Superior Court.
Interestingly, in paragraph two of Mr. Schmid's second affidavit filed subsequent to the Supreme court's decision on direct appeal, he again confirms that he did not request a mistrial because in his personal opinion, no doubt borne of experience, it would not have been granted. Schmid suggests in hindsight that he might now request a mistrial under similar circumstances. Clearly, this is a result of the Supreme Court's opinion.
Mr. Schmid also confirms in his subsequent affidavit that his reason for not requesting or accepting the trial court's offer for a curative jury instruction was his belief that the jury would not be effected by the testimony (Detective Roswell's comments embedded in the 3507 statement), since he had "stopped the tape soon enough that the offending reference might not leave an impression with the jury." I conclude that Mr. Schmid's decision was both reasonable and appropriate under the circumstances.
Affidavit of Lloyd A. Schmid, Jr., Sept. 16, 2011, ¶ 3.
At page 11 of the amended Rule 61 motion, Appointed Counsel argues that there was an insufficient foundation to admit Boyd's recorded statement because Boyd did not specifically say this his prior statement was truthful. What the prosecutor asked Boyd about the prior questions by Detective Roswell was: "And the questions that he asked you, you answered to the best of your ability at the time?" (A-71). Boyd Answered: "At the time." (A-71). Certainly implicit in this exchange between the prosecutor and Boyd was that the co-defendant was being truthful during the police interview. The witness also agreed that he was not being threatened during the police questioning and his mother was present in the room (A-71). While the specific word "truthful" is not used in this exchange (A-71), a fair reading of the entire context of Boyd's trial questioning was that the witness had been truthful in his prior out-of-court statement (A-70, A-71), especially since in the statement to the police Boyd admitted his own participation in the China King robbery. (A-29 to A-45).
The issue raised in the amended Rule 61 motion is whether answering "to the best of your ability" is sufficiently analogous to saying the prior out-of-court statement was "truthful" to permit the introduction of the taped police interview of Boyd pursuant to 11 Del. C.§ 3507. By necessity there is some flexibility in the truthfulness affirmation requirement since on of the original purposes of § 3507 was to permit the introduction of prior inconsistent statements of turncoat witnesses who may disavow the truthfulness of the prior statement when questioned at trial. Boyd's acknowledging that he spoke to the police about the China King robbery "to the best of [his] ability" (A-71) is sufficient to satisfy any truthfulness foundation requirement of § 3507 here. Unfortunate prosecutorial syntax is not a basis to exclude the co-defendant's recorded police interview.
Compare Ray v. State, 587 A.2d 439, 443 (Del 1991); Adkins v. State, 2010 WL 922765, at *2 (Del. March 15, 2010); Cintra v. State, 2004 WL 1195450, at *2 (Del. May 25, 2004) (When asked if her statement to the police office was truthful, she gave conflicting answers"); Russell v. State, 1996 WL 539823, at *2 (Del. Sept. 18, 1996)("There is no requirement . . .that the declarant affirm the truthfulness of his out-of-court statement. Indeed, § 3507 statements frequently are admitted into evidence in situations where the declarant is a so-called 'turncoat' witness who totally disavows the prior statement."); State v. Gibbs, 2015 WL 353932, at *4 (Del. Super. Jan. 27, 2015)(No requirement that witness testify out-of-court statement true since witness can testify that statement is true, is not true, or witness cannot remember.).
See Hoskins v. State, 14 A.3d 554, 565-66 (Del. 2011)("did you [ ] agree at the time of your plea that the statements you gave to the police were truthful" a sufficient truthfulness inquiry).
There was no ineffectiveness assistance by Trial Counsel in not insisting upon a more direct questioning about the truthfulness of Boyd's prior out-of-court statement or in not objecting to a lack of a proper foundation for admission of a § 3507statement of a trial witness. It is not particularly helpful to the defense to ask the co-defendant if his incriminating statement about the accused is also true. Vouching is normally to be avoided. Likewise, the trial judge did not abandon his duty as a gatekeeper for the admission of evidence in permitting Boyd's recorded police interview to be played for Stevens' jury. There was no reason to think that Boyd was being untruthful in admitting to the police that he committed a robbery with Stevens.
Stevens' contention here and his remaining claims that there was a State Constitutional violation may be summarily rejected for failure to follow the proper form for raising such an argument. Conclusory allegations that a defendant's right as guaranteed by the Delaware Constitution of 1897 have been violated is insufficient to sustain such an argument,
See Sykes v. State , 953 A.2d 261, 266 n. 5 (Del. 2008)("Sykes's conclusory assertion that his rights under the Delaware Constitution have been violated results in his waiving the State constitutional law aspect of this argument."); See also Jackson v. State, 990 A.2d 1281, 1288 (Del. 2009); Belts v. State, 983 A.2d 75, 76 n. 3 (Del. 2009); Jenkins v. State, 970 A.2d 154, 158 (Del. 2009); Wallace v. State, 956 A.2d 630, 637-38 (Del. 2008).
In Ortiz v. State, the Delaware Supreme Court delineated the proper form for raising a State Constitutional claim. In footnote 4, the Supreme Court expressly warned, "In the future, conclusory assertions that the Delaware Constitution has been violated will be considered to be waived on appeal." Stevens has made no attempt in Ground one or elsewhere in his amended Rule 61 motion to delineate a proper State Constitutional claim. Accordingly, this portion of Stevens' argument in Ground one and elsewhere has been waived and should be denied.
869 A.2d 285, 290-91 & n.4 (Del. 2005).
Ortiz, 869 A.2d at 291 n. 4.
See Jones v. State, 745 A.2d 856, 864-65 (Del. 1999) (listing criteria).
In addition to accusing Trial Counsel of being ineffective in regard to the admission of prior out-of-court statement of a prosecution witness, Appointed Counsel argues in Ground two that there was prosecutorial misconduct because the pretrial redactions in Boyd's recorded police interview were not extensive enough. This contention was not raised at trial in May 2009 or on direct appeal in 2010; accordingly, the claim is now procedurally barred by Superior Court Criminal Rule 61(i)(3), unless Stevens can demonstrate cause and prejudice sufficient to excuse the procedural default. Stevens can establish neither cause nor prejudice as to the new prosecutorial misconduct claim.
The August 22, 2008 recorded police interview of co-defendant Boyd by Dover Police Detective Roswell (A-8-47) "lasted a little over an hour. . . ." (A-75). Before the 2009 Superior Court jury trial, the prosecutor had redacted portions of the lengthy interview and the edited version played at trial was approximately 45 to 50 minutes in length (A-75). During the second day of trial, May 20, 2009, the State began playing the edited version of Boyd's prior recorded interview at 10:39 a.m. (A-75). Approximately thirty-five minutes later, the Boyd interview tape was stopped at 11:14 a.m. to address a defense objection at sidebar (A-75-76).
Initially, Trial Counsel objected to any further playing of Boyd's taped interview (A-76). In response, the prosecutor stated: "The detective is trying to ask him if he did anything else. He says no. He says he doesn't know if Jonathan did anything else. He did mention that Jonathan got pulled over in Maryland, he had a gun and weed in the truck. That's redacted." (A-76). The prosecutor then advised the trial judge that he wanted to continue playing the Boyd tape because there is a reference to Stevens having a knife and Boyd admits his involvement in the China King Robbery (A-76).
The prosecutorial misconduct claim now being asserted focuses on a few sentences near the end of the Boyd interview where Detective Roswell asks Boyd if Boyd and Stevens "have done some more stuff," and Boyd replies: "Oh nah. Be honest with you I haven't." (A-45). After this denial of other criminal activity by Boyd, Detective Roswell asks what else Stevens has done, and Boyd answers, "Only thing I know about is when he had the truck." (A-45). This vague reference to unspecified activity in "the truck" apparently involves Stevens being stopped in Maryland while driving Stratton's truck and having a gun and marijuana in his possession (A-76). Thus, it appears that the State did redact any reference to gun and marijuana possession, but missed four lines where Detective Roswell inquires about other criminal activity, and Boyd denies personally doing anything else and makes an oblique reference to Stevens doing something "when he had the truck." (A-45).
Equating this brief exchange between Detective Roswell and Boyd to the introduction of other crimes evidence against Stevens overstates the record. Boyd expressly denied committing other crimes with Stevens (A-45), and when asked only about other conduct by Stevens, Boyd made only a vague reference to unspecified activity when Stevens had Stratton's truck (A-45). This does not amount to the introduction of D.R.E 404(b) other crimes evidence against Stevens.
Not every prosecutorial oversight in the redaction of a lengthy recorded interview requires reversal. Only omissions that are so unduly prejudicial that the reliability of the verdict is diminished require a new trial. Note every omission or oversight that occurs at trial amounts to prosecutorial misconduct. As the Delaware Supreme Court has observed in connection with such minor matters, "The phrase 'prosecutorial misconduct' is not a talismanic incantation, the mere invocation of which will automatically lead to a reversal . . . we do not condone the magic bullet approach...loosely based on 'prosecutorial misconduct.'"
See Daniels v. State, 859 A.2d 1008, 1011 (Del 2004).
Kurzmann v. State, 903 A.2d 702, 713-14 (Del. 2006).
The four unredacted lines of the lengthy Boyd record interview (A-45) upon which Stevens focuses appear to be nothing more nefarious than the prosecutor neglecting to remove some vague and extraneous matter. Boyd denies committing any other crimes with Stevens (A-45), and all the witness knows about Stevens' other activities is an unidentified matter when Stevens had Stratton's truck (A-45). None of this is sufficiently prejudicial to excuse the procedural default of this new argument. While no action was taken at trial about these four now contested sentences (A-45), this was not a close case (B-59), and the inquiry did not affect a central issue in the robbery prosecution of Stevens.
Del. Super. Ct. Crim. R. 61(i)(3).
See Hughes v. State, 437 A.2d 559, 571 (Del 1981); Sawyer v. State, 634 A.2d 377, 380 (Del. 1993).
As to Ground three, claim that the State's committing a Brady violation for failing to disclose Ms. Stratton's conviction for Shoplifting nine years earlier. Mr. Schmid's affidavit points out that the record shows that he extensively cross-examined Stratton during the trial. Although he did not bring out her shoplifting conviction from July, 2000, (the only conviction he could have used pursuant to DRE 609 to impeach her credibility), I conclude it would not have changed the outcome of the trial. Additionally, it is clear from a review of the transcript that counsel was aware that Ms. Stratton had some criminal history because the fact that she was on probation at the time of the offense was discussed due to her curfew requirement. In fact Trial Counsel asked Ms. Stratton about a curfew requirement. Boyd's statement, which the jury heard, corroborated entirely the testimony of Stratton. Moreover, there has been no evidence presented either during trial or post-trial that Boyd and Stratton conspired to blame Stevens for a crime he did not commit. If anything, the trial evidence supports the exact opposite conclusion, i.e., Stevens actively participated in the charged crimes.
In addition, this was not even a close case. The State presented convincing evidence establishing Stevens' guilt beyond a reasonable doubt, including but not limited to Boyd's confession detailing Stevens' role in the robbery, the victim's in-court identification of Stevens as the person who robbed the restaurant and beat him mercilessly during the robbery and the testimony of the Stevens' friend, Stratton, who said that she had loaned him her pick-up truck the night of the robbery and saw him burning the cash register drawer in an alley when she picked both defendants up after they had run out of gas while fleeing the area immediately following the robbery. The restaurant's cash register was taken during the robbery and the register's cash drawer was recovered exactly where Stratton said she saw the defendants burning it.
In his motion and response Appointed Counsel mistakenly claims Ms. Stratton testified she saw Stevens and Boyd burning a [complete] cash register. A review of the transcript reveals she stated she saw them only burning a cash register drawer. Transcript at A92-93.
Stevens' failure to show the outcome of the trial would have been different but for a lack of cross examination concerning Ms. Stratton's nine year-old Shoplifting conviction requires that his request for postconviction relief be denied. Furthermore, because this issue was not raised in the proceeding leading to the judgment of conviction or on direct appeal, it is procedurally barred under Rule 61(i)(3).
Appointed Counsel for Stevens argues that his due process rights were violated by the cumulative error of the matters alleged in Grounds one - three. This contention was never previously raised, even in Stevens' pro se 2010 Rule 61 motion (B-16-26), so the claim is now procedurally defaulted and barred by Delaware Superior Court Criminal Rule 61(i)(3). This catch-all contention must also be rejected because it is not a basis for postconviction relief.
If none of Stevens' first three claims is a basis for postconviction relief, including the new contentions of prosecutorial misconduct for sloppy redactions and a Brady violation, an amalgation of these three alleged deficiencies affords no greater entitlement to relief. When none of Stevens' first three claims qualify the petitioner for a new trial, a combination of the same meritless arguments is no more compelling.
See Michaels v. State, 970 A.2d 223, 231-32 (Del. 2009) ("Cumulative error must derive from multiple errors that caused 'actual prejudice.' Here, none of the incidents upon which Hawthorne relies were prejudicial.")(citing Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008)).
See State v. Sykes, 2014 WL 619503, at *38 (Del. Super. Jan. 21, 2014).
Stevens has failed to demonstrate any concrete prejudice stemming from counsel' representation. Consequently, Stevens' claims are not only procedurally barred they have no merit.
The Tenth Circuit Court of Appeals addressed this type of contention, thusly: "The final argument on appeal is that even if none of the above four grounds amount to reversible error in itself, the cumulative effect thereof compels reversal. We disagree with this reasoning. Zero plus zero equals zero, and four zeros added together still equals zero." In Stevens' case three zeros added together still equals zero. The adage "zero plus zero equals zero" applies to Ground four.
United States v. Villa, 1995 WL 20268, at *3 (10th Cir. Jan. 18, 1995).
See United States v. Elwell, 2011 WL 5007883, at *9 (D.N.J. Oct. 20, 2011); Zebroski v. State, 822 A.2d 1038, 1049 (Del. 2003)("Thus, a cumulative review of all the unfounded allegations of ineffective assistance of trial counsel would not change the result."). --------
As for Stevens' fifth ground, request for an evidentiary hearing, as noted earlier I find there is no need for a hearing because I have concluded that the grounds for relief are meritless.
CONCLUSION
After reviewing the record in this case, it is clear that Stevens has failed to avoid the procedural bars of Rule 61(i). A review of his counsel's affidavit clearly shows that counsel represented Stevens in a competent fashion and was not ineffective. Additionally, Stevens has failed to demonstrate any concrete prejudice. Consequently, I recommend that Stevens' motion be denied as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice.
/s/ Andrea M. Freud
Commissioner AMF/dsc