Opinion
ID No. 0104005738.
Submitted: December 29, 2006.
Decided: March 30, 2007.
Stephen M. Walther, Deputy Attorney General; Wilmington, Delaware 19801.
Brady Couch; Delaware Correctional Center; 1181 Paddock Road; Smyrna, Delaware 19977. Pro se.
Todd E. Conner, Esquire; Assistant Public Defender; 820 N. French Street; Wilmington, Delaware 19801.
ORDER
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
On this 30th day of March 2007, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. Brady Couch, ("Defendant"), has filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"), to which the State has responded. At the request of the Court, Defendant's trial attorney, Todd E. Conner, Esquire ("Counsel"), filed an affidavit refuting the allegations of ineffective assistance of counsel. For the reasons set forth below, Mr. Couch's Motion for Postconviction Relief is DENIED.
2. On July 16, 2002, after Mr. Couch waived his right to a jury trial, a bench trial commenced resulting in the Defendant being found guilty of one count of Robbery First Degree. Upon application by the State, Mr. Couch was declared a habitual criminal offender, and on September 20, 2002 he was sentenced to twenty years of incarceration. Thereafter, Mr. Couch's appeal to the Supreme Court of Delaware was denied, and a mandate was issued on May 28, 2003. On May 5, 2006, Mr. Couch filed this motion for postconviction relief asserting claims of ineffective assistance of counsel, that the expert testimony was improperly admitted, and that he involuntarily waived his right to a jury trial. As indicated above, both the State and trial counsel have responded to Mr. Couch's motion, and Mr. Couch has since replied.
PROCEDURAL BARS
3. Prior to delving into the merits of a postconviction relief claim, the Court must first determine that the motion meets the procedural requirements of Rule 61(i)(3), which bars any ground for relief that was not "asserted in the proceedings leading to the judgment of conviction" unless the defendant can show both cause for relief from the bar and prejudice to the defendant. Because this is the first time Mr. Couch puts forth either the expert or waiver claims he is currently asserting, he must first overcome these procedural requirements, which he has failed to do. As a result, the Defendant's assertions as independent claims of error are procedurally barred.4. However, Mr. Couch indirectly asserts these claims in his ineffective assistance of counsel argument. In his first claim, Mr. Couch argues that Officer Sammons testified in violation of the Delaware Rules of Evidence, but the Defendant also indirectly asserts that the testimony was introduced because of errors his trial counsel committed. In his second claim, Mr. Couch asserts that he did not knowingly, voluntarily and intelligently waive his right to a jury trial because he executed the waiver at the behest of ineffective assistance of counsel. Thus, the Court will review both assertions by Mr. Couch in the context of ineffective assistance of counsel since those claims are not barred pursuant to Rule 61(i)(5).
Rule 61(i)(5); State v. St. Louis, 2004 WL 2153645 (Del.Super.Ct.); State v. Folks, 2006 WL 2742315 (Del.Super.Ct.).
Officer Sammons is a Fingerprint Identification Officer who testified on behalf of the State.
Mr. Couch indicated on the postconviction relief form that he had ineffective assistance of counsel which caused the evidentiary violation, but Mr. Couch does not state within his memorandum that he had ineffective assistance of counsel. He merely argues that the evidence was not appropriately introduced.
Rule 61(i)(5) ; Bailey, 2004 WL 2914320 (Defendant did not assert his claim of involuntarily waiving his right to a trial by jury in his appeal to the Delaware Supreme Court, and the Court therefore only reviewed the claim in the light of his ineffective assistance of counsel.)
INEFFECTIVE ASSISTANCE OF COUNSEL
5. A successful claim of ineffective assistance of counsel requires a defendant to meet the two-part test set forth in Strickland v. Washington . To do so, a defendant must first establish that the representation provided at trial was deficient. While not insurmountable, there is a "strong presumption that the representation was professionally reasonable," and it is the defendant's burden to overcome this presumption. Second, even if a defendant overcomes this presumption and establishes the representation he received was not objectively reasonable, the defendant must further establish that the errors committed by counsel were so serious that the defendant was deprived of a fair trial. Thus, the defendant must show that trial counsel's deficiency resulted in prejudice to the defendant, and but for that deficiency, the outcome would have been different. The Court finds the Defendant cannot meet his burden.A. Fingerprint Testimony
6. With respect to Officer Sammons' testimony relating to the fingerprints found at the scene of the crime, and any testing done thereafter, the record reflects that Counsel acted reasonably, and Mr. Couch has offered nothing to establish otherwise. On direct examination, a foundation establishing Officer Sammons' expertise with respect to fingerprint comparison and analysis was properly laid, including the number of years Officer Sammons worked in the field (since 1988), the number of fingerprint examinations he had conducted in the past (tens of thousands), the various training seminars and schools which he had attended, and that Officer Sammons previously testified as a fingerprint expert in this Court. Officer Sammons then explained to the Court the method used in this case to compare the known fingerprints of the Defendant to those found at the scene and that, in his expert opinion, those prints matched Mr. Couch.
Trial Tr. vol. 1, 122-123, July 16, 2002.
Id. at 123-130.
7. A review of the transcript reflects that Mr. Conner cross-examined Officer Sammons thoroughly, including questioning the procedures and methods used to identify the suspect's prints. In addition, Counsel pointed out an error in Officer Sammons' report that was corrected just prior to trial, and he strenuously questioned Officer Sammons regarding the accuracy of how many points or islands were found in the fingerprints used for comparison. Based on the record, Mr. Conner acted in a reasonable manner in his attempt to discredit Officer Sammons' findings, and Mr. Couch has offered nothing to indicate otherwise. As a result, Mr. Couch cannot meet his standard under the Strickland test, as he fails to establish that Mr. Conner acted in an unreasonable manner.
Officer Sammons stated that the initial report in April 2001 incorrectly listed one of the prints as Mr. Couch's left ring finger, when it was really Mr. Couch's left index finger. Officer Sammons corrected the error in a supplemental report prior to trial.
Trial Tr. vol. 1, 141, July 16, 2002.
Mr. Couch's argument that fingerprint analysis in general is unreliable is not an appropriate argument unless Mr. Couch is arguing Counsel should have objected to the testimony at trial. But, even if the Court reviewed Mr. Couch's motion with respect to the testimony of Officer Sammons on its merits, the Court is convinced, based on the foundation laid, that the testimony was appropriate and met the standards required for its admission.
8. Further, Mr. Couch is unable to show that, but for the fingerprint evidence being introduced due to Counsel's alleged unreasonable conduct, there is a substantial likelihood Mr. Couch would not have been convicted. While the Court appreciates the strength of fingerprint evidence, even if the testimony of Officer Sammons was excluded, eyewitness testimony linked Mr. Couch to the crime scene. Mr. Couch met the general overall description provided to the police, and one witness described a distinctive growth or mole feature that makes the eyewitness testimony quite strong. As a result, Mr. Couch is also unable to establish prejudice, the second prong of the Strickland test. Since the Court has found no unreasonable behavior by Counsel, and the Court has found no prejudice with respect to the use of the testimony of Officer Sammons, Mr. Couch's motion for postconviction relief on the grounds of ineffective assistance of counsel as it relates to the testimony of fingerprint analysis is hereby denied. B. Waiver of Jury Trial
George Bratcher, the employee of Ferschk's Beauty and Barber Supply who initially encountered the Defendant, testified that the person who robbed him was a 5'7", small to medium size black male with light-medium skin tone, no facial hair and had a mole on the right side of his cheek close to his upper lip. According to the record, Mr. Couch fits this description. Trial Tr. vol. 1, 61-64, July 16, 2002.
Hamm v. Delaware, 903 A.2d 322 (Del. 2006) ("All of Hamm's claims are premised on his argument that the fingerprint evidence used to convict him of burglary should not have been admitted at trial. However, the record reflects no basis for exclusion of the fingerprint evidence and no basis for excluding the testimony of the prosecution's fingerprint expert at trial. . . . As such, the Superior Court properly denied Hamm's motion for postconviction relief.").
9. Secondly, Mr. Couch asserts his trial counsel acted unreasonably by misrepresenting facts to the Defendant which coerced Mr. Couch into waiving his right to a jury trial. Specifically, the Defendant states that he was initially charged with two counts of Robbery First Degree, and that he was advised by Counsel that if he waived his right to a jury trial, the State would file a nolle prosequi for the second robbery charge. Mr. Couch would then only stand trial for one count of robbery. Mr. Couch further asserts that Mr. Conner incorrectly advised him that the State had strong evidence to find him guilty of both counts of robbery. Mr. Couch states his decision to waive his right to a jury trial was based "solely upon this misrepresentation by counsel," and Mr. Couch now believes the State did not have evidence to form a basis for a second robbery charge.
In fact, Mr. Couch did waive his right to a jury trial and the State did enter a nolle prosequi with respect to the second robbery charge.
Def. Mot. at 13.
Id. at 14.
10. As indicated above, Mr. Couch bears the burden of showing that the actions of his defense counsel were unreasonable, and if so, whether that deficiency caused Mr. Couch's waiver of a jury trial to be tainted — in other words, did it prejudice Mr. Couch. Here, given the extensive dialog the Court had with Mr. Couch on this issue, the Defendant simply cannot establish he was prejudiced by Counsel's actions, regardless of the degree of reasonableness.
11. In general, prior to accepting a waiver from the Defendant, the Court is required to engage in a colloquy, ensuring "the defendant understands the nature of the jury trial right that he or she is waiving, but without jeopardizing other fundamental rights ensured to a defendant in a criminal proceeding." In this case, the Court engaged in a thorough colloquy with the Defendant prior to his decision to waive his right to a jury trial.
Davis v. State, 809 A.2d 565, 569 (Del. 2002).
12. The Court advised Mr. Couch that he had a right to a jury trial, and that if he chose to waive that right the Court would be the sole fact-finder. Mr. Couch was specifically advised that "the decision is really up to you." The Defendant responded with the following:
Trial Tr. vol. 1, 2-3, July 16, 2002.
Id. at 3.
I'd like to state on the record that there's a lot of things that's going on between me and my attorney that we're not agreeing about.
Also, I would like to state that I feel that the State is being maliciously vindictive in terms of willing to drop the second charge against me. If I take it to a bench trial they make it seem as if I entered a deal with them and I never did. I decided I wanted a bench trial for the Judge to do justice on the merits of the case.
Id. at 4.
The Court then reiterated to Mr. Couch that he had a right to a jury trial, and if he chose to exercise that right, a jury panel would be brought to the courtroom to start the jury selection process. When the Defendant responded with ". . . I'm going with a bench trial, but I'm taking it reluctantly," the Court again emphasized to Mr. Couch the importance of his decision, that it was Mr. Couch's decision to make regardless of what his attorney advised him and that the Court was not willing to accept a waiver that was not clear and unambiguous. In fact, the Court cautioned Mr. Couch that "[i]f you're not sure, the best thing to do is to have a jury trial . . . "to which the Defendant responded "I agree to have a bench trial."
Id. at 5.
Id. at 6.
13. Understanding the gravity of Mr. Couch's decision, the Court did not end the colloquy there. The Court again cautioned Mr. Couch that his decision was final, and he could not change his mind once the trial started. After this final warning, the Court once again asked Mr. Couch if he would like to have a jury trial. Mr. Couch again indicated he would proceed with a bench trial. After explaining to the Defendant his rights and asking the Defendant four separate times whether he chose to waive his right to a jury trial, the Court was satisfied that Mr. Couch's decision was done knowingly and intelligently and in full appreciation of his rights, and the Court allowed Mr. Couch to waive his right to a jury trial.
Trial Tr. vol. 1, 7, July 16, 2002.
Id.
14. The record reflects that before Mr. Couch's decision was accepted, the Court insured Mr. Couch understood his rights, understood the seriousness of the decision and understood it was his decision alone to make. Based on the record established, Mr. Couch made this decision voluntarily, knowingly and intelligently. Regardless of whether Mr. Couch's trial attorney was deficient in any respect, Mr. Couch fails to establish that he was prejudiced. Any deficiency was cured prior to the Mr. Couch's final decision since the Court clearly emphasized to the Defendant his right to a jury trial and the consequences of waiving that right. As a result, Mr. Couch's assertion that his attorney was ineffective as it relates to the waiver of his right to a jury trial is simply not supported by the record. The Court also notes that the Defendant received a significant benefit for this decision as the State agreed not to pursue a second Robbery First Degree charge that, if convicted, would have resulted in additional significant mandatory Level 5 time.
Hall v. State, 408 A.2d 287, 288 (Del. 1979), citing Faretta v. California, 422 U.S. 806 (1975); Johnson v. Zerbst, 304 U.S. 458 (1938) (A waiver of any constitutional right, including the right to trial by jury, must be knowing, intelligent and voluntary); Davis, 809 A.2d at 569 (A waiver is voluntary and intelligent if the defendant is "aware of the right in question and the likely consequences of deciding to forego that right.").
15.For the foregoing reasons, Mr. Couch's Motion for Postconviction Relief is hereby denied.
IT IS SO ORDERED.