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holding that counsel's deficient failure to seek suppression of defendant's statements to police on Sixth Amendment grounds did not prejudice the defendant under Strickland because "[e]ven if the statements had been suppressed, the other evidence of Andrus' guilt was overwhelming"
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No. 190, 2003.
Submitted: February 10, 2004.
Decided: March 12, 2004.
Superior Court of the State of Delaware in and for New Castle County, Cr. I.D. No. 9504004126.
Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE and JACOBS, Justices, constituting the Court en Banc.
ORDER
This 12th day of March 2004, it appears to the Court that:
(1) Jeffrey Fogg and the defendant, Daryl Andrus, were convicted of Murder in the First Degree and Conspiracy in the First Degree in connection with the beating death of James Dilley in 1995. The circumstances surrounding the murder are not at issue in this appeal, and we will not repeat them generally here. After his conviction and appeal, Andrus filed a motion pursuant to Superior Court Criminal Rule 61, asserting six grounds for postconviction relief. The Superior Court denied the motion, and Andrus appeals to this Court. We review for abuse of discretion the Superior Court's denial of postconviction relief.
Andrus v. State, No. 359, 1996, 1998 Del. LEXIS 359 (Del. Oct. 1, 1998) (ORDER).
The facts have previously been stated by this Court in its decision on Andrus' direct appeal. Id. at *6, *10.
Kiser v. State, No. 600, 2002, 2003 Del. LEXIS 173, at *3 (Del. Mar. 25, 2003) (ORDER) (citing Outten v. State, 720 A.2d 547, 551 (Del. 1998)); see also Albury v. State, 551 A.2d 53, 60 (Del. 1988) ("We find no abuse of discretion in denying Albury's motion for postconviction relief based upon the alleged violation of his Sixth Amendment right to counsel.").
(2) Andrus argues that his trial counsel, Mr. Foley, rendered ineffective assistance at trial and on direct appeal, in violation of Andrus' constitutional right to effective assistance of counsel. Andrus asserts that Foley's assistance was ineffective because Foley: (a) failed effectively to challenge the credentials of the state's expert witness, Dr. Perlman; (b) failed to call attorney William Erhart to testify at the suppression hearing regarding Erhart's instructions to police not to interrogate Andrus, or he failed to investigate the matter properly; (c) failed to object to the prosecutor's statements during closing remarks about Andrus' alleged lack of remorse or to request a curative instruction; (d) did not hire an independent pathologist earlier in the case or provide that pathologist with all of Dr. Perlman's notes, slides, and other information; (e) did not hire a crime scene expert to investigate the case; and (f) failed to request a limiting instruction concerning evidence of a prior fight between Andrus and Dilley. Andrus also contends that Foley's assistance on appeal was ineffective because Foley failed to raise, during the direct appeal in this case, the issues presented in this postconviction appeal.
See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.").
(3) Foley's assistance was not constitutionally deficient because it did not result in the prejudice to Andrus required by Strickland v. Washington. In order to prove ineffective assistance of counsel, a defendant in a postconviction proceeding must demonstrate that counsel's representation "fell below `an objective standard of reasonableness,' and that counsel's actions were prejudicial, i.e., there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different." In applying the Strickland standard, there is a "`strong presumption that the representation was professionally reasonable.'"
466 U.S. 688 (1984).
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Strickland, 466 U.S. at 690, 694).
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (quoting Flamer v. State, 585 A.2d 736, 753 (Del. 1990)).
(4) Andrus first contends that Foley rendered ineffective assistance because he failed to challenge Dr. Perlman's qualifications as a board certified forensic pathologist or to demonstrate that she had misrepresented those qualifications. Dr. Perlman testified for the State about the cause of Dilley's death and also opined that unique rings worn by Andrus and Fogg caused certain particular injuries on Dilley's body and that a pair of Andrus' boots had made certain marks found on Dilley's body.
(5) Foley did not render ineffective assistance of counsel by failing to challenge Dr. Perlman's qualifications. Dr. Perlman was well-qualified to offer an expert opinion regarding the cause of Dilley's death. She was trained as a physician, was eligible to take the board examination in pathology and had worked for several years as a medical examiner in both Pennsylvania and Delaware. Had Foley more carefully attacked Dr. Perlman's qualifications, it is not reasonably probable that the jury would have weighed differently her credibility against that of the defense pathologist sufficiently to affect the outcome of the trial. In any event, Foley did explore Dr. Perlman's qualifications at trial. He caused her to admit that she was not certified by the "Board of American Pathology." In addition, Dr. Hoffman, the expert witness presented by the defense, testified that he was certified by the American Board of Pathology and that this was the only way for a physician to be certified as a forensic pathologist. Dr. Hoffman also undermined the respectability of the American College of Forensic Examiners, the board of which Dr. Perlman was a member. Dr. Perlman's qualifications were sufficiently challenged. In any event, there was insufficient prejudice to support Andrus' claim of ineffective assistance of counsel.
Presumably, trial counsel and Dr. Perlman intended to refer to the American Board of Pathology, the board that certifies physicians in the field of pathology. See Appellant's Opening Brief at 11 (discussing the "qualifications, credentials, and board certification of the forensic pathologist," as described in RANDY HANZLICK MICHAEL GRAHAM, FORENSIC PATHOLOGY IN CRIMINAL CASES § 1.2 (2d ed. 2000)).
State v. Andrus, I.D. No. 9504004126, 2003 WL 1387115, at *10 (Del.Super.Ct. Mar. 12, 2003).
Id.
(6) Andrus contends that Foley rendered ineffective assistance by failing to call attorney William Erhart at a suppression hearing to testify about Erhart's directions to the police not to question Andrus, in order to have suppressed two taped statements made by Andrus to the police. At the Rule 61 hearing, Andrus presented Erhart's testimony that before Andrus gave the two taped statements, Erhart directed the police not to question Andrus. Erhart testified that he received a call from Andrus at approximately 11:00 a.m. on the day of Andrus' arrest. During the same phone call, Erhart spoke with Detective McLaren of the New Castle County Police and directed him not to question Andrus. Erhart testified that he remembered the call was in the morning because he had just returned from a settlement meeting that ended in the morning and his office was quite warm, which it is in the morning because of its orientation toward the morning sun. Detective McLaren testified that he did not recall speaking with Erhart. Furthermore, he recorded in a police report that Andrus first attempted, without success, to contact Erhart at 3:46 p.m, after the second taped statement had already been made. According to the same report, Andrus first spoke to Erhart at 4:05 p.m. The two recorded interviews began at 12:04 p.m. and 1:05 p.m. Andrus argues that Foley should have procured Erhart's testimony in support of his attempt to suppress the statements at trial.
The junior prosecutor, who arrived on the murder scene at approximately 9:00 a.m. the morning of Andrus' arrest, also provided testimony consistent with Erhart's account of the timing of his contact with Andrus: "I do recall being told by one of the detectives that — and this was after we got back to [the police station], so in the early afternoon, that Mr. Andrus had talked to his attorney. . . . [I]t was the afternoon, and Mr. ____ as far as I knew, Mr. Andrus had invoked several hours before that, so we weren't interviewing Mr. Andrus anymore anyway."
Andrus also indicates in his opening brief that he sought before trial to suppress a statement he made to Detective McLaren in McLaren's police car and a written statement he made at the police station. In this appeal, he does not challenge the admission of those statements because they were completed before Erhart directed police not to question him.
(7) Foley's assistance was not constitutionally deficient either because he failed to call Erhart to testify at the suppression hearing or because he failed to investigate the matter more extensively. Before trial, Foley sought to suppress Andrus' statements on Fifth Amendment grounds. The later discovery of Erhart's involvement revealed that Foley also should have sought to suppress the statements on Sixth Amendment grounds. Foley should have uncovered Erhart's involvement and included violations of Andrus' right to counsel as grounds for suppressing Andrus' statements at trial. Foley made no strategic decision not to investigate the circumstances surrounding Andrus' making statements to the police. Foley simply failed to inquire at all into the matter from a right to counsel perspective. That failure rendered his assistance deficient, constituting cause under Strickland. Nevertheless, the assistance Andrus received was not constitutionally ineffective because Foley's failure to seek suppression of the statements on Sixth Amendment grounds did not prejudice Andrus under the Strickland standard. This is because the admission of the statements was harmless. Even if the statements had been suppressed, the other evidence of Andrus' guilt was overwhelming, including the patterned injuries and their relation to Andrus' ring and boots.
See Fellers v. United States, 124 S.Ct. 1019, 1022-23 (2004) (discussing the circumstances under which statements taken from a defendant may violate the Sixth Amendment even though no violation of the Fifth Amendment occurred); Weber v. State, 457 A.2d 674, 685 (Del. 1983) (holding that a suspect cannot intelligently and knowingly waive the right to counsel when the "suspect does not know that an attorney, who has been retained or properly designated to represent him, is actually present in the police station seeking an opportunity to render legal assistance, and the police do not inform him of that fact").
Cf. Strickland v. Washington, 466 U.S. 668, 691 (1984) ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.").
(8) Andrus next argues that Foley rendered ineffective assistance by failing to object to the prosecutor's statements about Andrus' alleged lack of remorse or to request a curative instruction. During closing remarks, the prosecutor stated that Andrus had not expressed "one scintilla, one crumb of remorse" in his statements to the police. Foley's failure to object to those remarks did not constitute ineffective assistance of counsel. Although direct questioning and prosecutorial comments about a defendant's lack of remorse raise Fifth Amendment concerns, the prosecutor's comment at Andrus' trial did not rise to the level of a Fifth Amendment violation.
See Jackson v. State, 643 A.2d 1360, 1379 (Del. 1994) (expressing the belief that "direct questioning and prosecutorial comment about remorse" raise "Fifth Amendment concerns . . ., since the only affirmative way for a defendant to express remorse is to waive his right to remain silent. Indeed, a true expression of remorse requires the ultimate form of self-incrimination — an admission of guilt" (citations omitted)).
(9) In Jackson v. State, the prosecutor questioned three witnesses about the defendant's remorse and "repeatedly emphasized [the defendant's] lack of remorse" during the closing argument. The Court nonetheless held that the trial court did not abuse its discretion by refusing to grant a mistrial, because any error was harmless beyond a reasonable doubt. The Jackson Court expressed concern over prosecutorial comments on lack of remorse, but it did not reach the issue whether they constituted reversible error. In the present case, the prosecutor briefly commented about Andrus' lack of remorse. He did not "repeatedly emphasize" the remorse issue, nor was any testimony presented by third-party witnesses about Andrus' level of remorse. The prosecutorial comments on remorse constituted harmless error and their exclusion, or the issuance of a curative instruction, would not have affected the outcome of the trial. Andrus therefore suffered no prejudice because of Foley's failure to object to the comments, and Foley's assistance was not ineffective.
Id. at 1377-78.
Id. at 1379-80.
Id. at 1380.
See A-53 ("Is there one scintilla of remorse in the statements or actions of the defendants that you see through the transcripts, through the audio tape, through the videotape? Is there one scintilla, one crumb of remorse or regret expressed in those materials by either defendant?"); id. (commenting on Andrus' sipping coffee with a neighbor after calling 911); A-54 (stating, when recounting Andrus' characterization of an earlier fight with Dilley as a minor scrape the cause of which Andrus could not remember, "The compassion flows from Daryl Andrus's lips").
(10) Foley did not render ineffective assistance by not hiring an independent pathologist earlier in the case or by not providing that pathologist with all of Dr. Perlman's notes, slides, and other information. Dr. Hoffman did review some of the information considered by Dr. Perlman — photographs, slides, and "anything provided to us by the AG's office having to do with cause of death." Andrus has not shown how an earlier retention of an independent pathologist would have benefitted Andrus' case. "A defendant must make specific allegations of actual prejudice and substantiate them." Andrus has not satisfied that burden here.
Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003).
(11) Nor was Foley's representation ineffective because of his failure to hire a crime scene expert to investigate the case. Andrus did not meet his burden of substantiating specific allegations of actual prejudice on this issue. In addition, Foley explained his reason for not hiring a crime scene expert: "[T]here wasn't really any crime scene issues [sic] that jumped out at me as being, you know, highly disputed." The strong presumption of professionally reasonable representation leads to the conclusion that Foley's assessment of the need for a crime scene expert was reasonable, and that he therefore did not render ineffective assistance.
(12) Foley also did not provide ineffective assistance of counsel by failing to request an adequate limiting instruction concerning evidence of a prior fight between Andrus and Dilley. The state had moved in limine seeking to admit the evidence. The Superior Court admitted the evidence, but it issued a limiting instruction to the jury. "The Court instructed the jury that it could not `use that evidence as proof that Mr. Andrus [wa]s a bad person[,]' but only as `evidence in connection with all other evidence presented at trial in helping [the jury] decide whether . . . Andrus committed the offenses charged in the indictment." This Court has stated that where a court admits evidence under an exception to the inadmissibility of prior bad acts evidence in Delaware Uniform Rule of Evidence 404(b), the court should instruct the jury concerning the purpose for its admission. That instruction must be specific. Andrus contends that the Superior Court's limiting instruction did not adequately constrain the jury's consideration of the evidence of the prior fight to a permissible Rule 404(b) purpose.
Order Denying Defendant's Motion for Postconviction Relief, State v. Andrus 27 (Del.Super.Ct. Mar. 12, 2003).
Id. at 28 (alterations in original).
Getz v. State, 538 A.2d 726, 734 (Del. 1988).
Cobb v. State, 765 A.2d 1252, 1256 (Del. 2001) (stating that the jury must be told the "specific purpose or purposes for which the evidence may be considered").
(13) Even if the Superior Court's limiting instruction were insufficient, an issue that we need not decide, Foley's failure to object and to request an adequate instruction did not cause sufficient prejudice to satisfy the Strickland test for ineffective assistance of counsel. In order for an error to render counsel's assistance constitutionally ineffective, the error must prejudice the defendant. This standard of prejudice requires "a reasonable probability that the outcome of the proceedings would have been different," absent the error. The Strickland standard for ineffective assistance of counsel is "is highly demanding and leads to a `strong presumption that the representation was professionally reasonable.'" In addition, "[t]he prejudice prong of the Strickland standard requires `attention to whether the result of the proceeding was fundamentally unfair or unreliable.'"
Campbell v. State, No. 297, 2003, 2003 Del. LEXIS 423, at *3 (Del. Aug. 21, 2003) (ORDER) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Id. (quoting Flamer v. State, 585 A.2d 736, 753 (Del. 1990)).
Shelton v. State, 744 A.2d 465, 475 (Del. 1999) (quoting Outten v. State, 720 A.2d 547, 552 (Del. 1998)).
(14) Foley's failure to object to the court's limiting instruction did not result in this level of prejudice to Andrus. The State presented substantial physical, direct, and circumstantial evidence against Andrus, and the jury could reasonably have found Andrus guilty of Dilley's murder without relying on an impermissible character inference about Andrus based on his prior fight with Dilley. Thus, it is not reasonably probable that the outcome of the trial would have been different had the Superior Court issued a more specific limiting instruction concerning Andrus' prior bad acts. In addition, because of the substantial evidence against Andrus, any deficiencies in the limiting instruction did not render the result of Andrus' trial fundamentally unfair or unreliable.
Cf. Stevens v. State, No. 323, 1995, 1996 Del. LEXIS 68, at *9-10 (Del. Jan. 24, 1996) (ORDER) (holding that defendant's counsel's failure to object to evidence of defendant's prior bad acts was not constitutionally deficient where the evidence was "tangential to the central issues of the case" and the defendant had not shown that counsel's failure to object affected the outcome of the trial).
(15) The analysis of Foley's assistance on appeal tracks that of his assistance at trial. He did not render constitutionally ineffective assistance of counsel on any of the grounds asserted by Andrus.
(16) Because we conclude that Andrus received effective assistance of counsel at trial and on appeal, we also conclude that the remainder of Andrus' arguments in this postconviction appeal are procedurally barred. Andrus did not raise at trial or on appeal the issues of the effect of Erhart's involvement on the admissibility of Andrus' taped statements, the State's misrepresentation of Dr. Perlman's qualifications, the adequacy of the Superior Court's Rule 404(b) limiting instruction, the failure to hire a crime scene investigator, or the prosecutorial comments on Andrus' lack of remorse.
(17) Because Andrus did not raise these issues at trial or on appeal, he must overcome the procedural bar established by Rule 61. Rule 61 bars postconviction relief for procedural default if any ground for relief was not raised in the proceedings leading to the judgment of conviction, unless the movant can show (a) "[c]ause for relief from the procedural default," and (b) "[p]rejudice from violation of the movant's rights." Andrus is unable to overcome these hurdles. On each issue, Andrus asserts the allegedly ineffective assistance he received at trial and on appeal as the cause for the procedural default. Because we have found the assistance rendered by Andrus' counsel to be effective, Andrus is unable to meet even the first requirement for overcoming the procedural bar.
DEL. SUPER. CT. CRIM. R. 61(i)(3).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.