Summary
denying in part Defendant's first Motion or Postconviction relief in which he contended that: he "was denied his right to confront and cross-examine [Co-Defendant] when [Co-Defendant] failed to take the witness stand relative to his out-of-court statements introduced at trial;" "[the trial court] erred when it did not instruct the jury on accomplice liability; and Defendant's counsel was ineffective for failing to object to the out-of-court statements made by Co-Defendant pertaining to Defendant's involvement in the victim's death
Summary of this case from State v. FoggOpinion
ID# 9504002666
Submitted: June 17, 2002
Decided: September 10, 2002
DETERMINATION PURSUANT TO SUPREME COURT RULE 19(c) FOLLOWING THE SUPREME COURT'S REMAND ORDER OF AUGUST 9, 2001 "TO CONSIDER THE ALLEGATIONS OF INEFFECTIVE ASSISTANCE OF COUNSEL."
PROCEDURAL HISTORY
This case has a complicated procedural history. Jeffrey R. Fogg ("Fogg") was jointly tried in a non-capital murder prosecution with codefendant Daryl Andrus, ID# 9504004126 ("Andrus") in 1996. The jury convicted both Fogg and Andrus of Murder First Degree (title 11, section 636 of the Delaware Code) and Conspiracy First Degree (title 11, section 513 of the Delaware Code) for the April 5, 1995 death of James Dilley ("Dilley"). Fogg was sentenced to life without probation or parole for the murder conviction.
At their joint trial, the State introduced out-of-court statements made by Andrus which implicated Fogg in Dilley's death; "this evidence had not been disclosed by the State at the time of. . .[this court's earlier] decision [denying]. . .[a jointly filed] severance motion." On direct appeal, the Supreme Court sua sponte identified a potential Bruton problem, and requested "supplemental memoranda. . .regarding the inculpatory statements by Andrus and their effect on Fogg. . . ." The Supreme Court then remanded the case to this court on December 22, 1997 "for reconsideration of its severance decision under the holding of Bruton and its progeny with regard to the effect at the joint trial on the rights of both Fogg and Andrus."
Fogg v. State, Del. Supr., No. 325, 1996, Holland, J. (Dec. 22, 1997), Order at 2 (hereinafter "Fogg, Dec. 22, 1997 Order").
Bruton v. United States, 391 U.S. 123 (1968) (holding that a defendant is deprived of his rights under the Confrontation Clause of the Sixth Amendment when his nontestifying codefendant's confession naming him as a participant in a crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the confessing codefendant).
Fogg, Dec. 22, 1997 Order at 2.
Id. at 2-3.
On the first remand, Fogg argued to this court that "no redaction whatsoever [of the out-of-court statements made by Andrus which implicated Fogg] could have been. . .feasible. . .because references to [Fogg]. . .were `so intertwined with the references to Andrus that severance should have been granted." This court found, however, that redaction "sufficient to eliminate any reference to the existence of Fogg was entirely feasible and would have been the more appropriate remedy than severance."
State v. Fogg, Del. Super., ID #9504002666, Cooch, J. (Feb. 20, 1998), "Findings of Fact and Conclusions of Law" at 10
Id.
Following this court's conclusion of law that redaction (rather than severance) would have been the appropriate remedy given Andrus's out-of-court statements, the Supreme Court affirmed Fogg's conviction. In so doing, the Supreme Court found that "the error in admitting into evidence Andrus's statement incriminating Fogg was contrary to the holding of Bruton[,] but was harmless beyond a reasonable doubt when . . . considered in the context of the admissible evidence of Fogg's guilt."
Fogg v. State, No. 325, 1996, 1998 WL 736331 (Del.Supr. Oct. 1, 1998). The Supreme Court also concluded that this court had properly rejected Fogg's challenges to the admissibility of statements he had earlier given to the police.
Id. at *4 (citation omitted).
Following the Supreme Court's 1998 decision affirming Fogg's conviction, Fogg, represented by Eugene J. Maurer, Jr., filed a motion for postconviction relief in this court on September 30, 1999 alleging, inter alia: 1) that Fogg was denied his right to confront and cross-examine Andrus when Andrus failed to take the witness stand relative to his out-of-court statements introduced at trial; 2) that this court erred when it did not instruct the jury on accomplice liability; and 3) that Fogg's counsel, James A. Bayard, Jr., was ineffective both at trial and on appeal in that counsel failed to object to the out-of-court statements made by Andrus which implicated Fogg in Dilley's death, failed to object to Andrus's closing argument that Fogg was solely responsible for Dilley's death, failed to object to the State's closing argument incorporating the out-of-court statements, failed to object to or redact statements admitted at trial and which Fogg had given the police and others about his prior conduct while drinking, and failed to raise all of these issues on direct appeal.
This court found that the first two above asserted claims were procedurally barred under Superior Court Criminal Rule 61(i). The court also determined that Fogg had failed to demonstrate the requisite deficiency in counsel's performance and resulting prejudice that are required to prove ineffective assistance of counsel because of the procedural bars contained within Superior Court Criminal Rule 61(i), because some of the evidence was strategically offered by Fogg's counsel at trial, and because Fogg failed to demonstrate that redaction of the complained-of statements would not have altered the outcome of his trial.
State v. Fogg, ID# 9504002666, 2000 WL 1211510, at *6 (Del.Super. Aug. 1, 2000).
Fogg appealed this court's denial of his motion for postconviction relief. The Supreme Court determined that the record was not sufficiently developed insofar as the claim for ineffective assistance of counsel was concerned, and remanded (the second remand) the case to this court. The Supreme Court ordered that an "evidentiary hearing [be held] to consider the allegations of ineffective assistance of counsel." Fogg was represented in the Superior Court upon this second remand by Nancy Jane Perillo. This is the court's report to the Supreme Court pursuant to Supreme Court Rule 19(c) following the holding of such evidentiary hearing, as jurisdiction was retained by the Supreme Court.
Fogg v. State, Del. Supr., No. 426, 2000, Berger, J. (Aug. 9, 2001), Order at 1.
FACTUAL HISTORY
The court recites the facts as stated in the Supreme Court's 1998 decision on Fogg's direct appeal, as follows:
In his Opening Brief filed in this court, Fogg states that the evidence adduced at trial "is summarized — generally accurately — in the Supreme Court's [O]rder. . .[found at 1998 WL 736331]. . . ." Def.'s Opening Br. at 8.
On April 4, 1995, there was a party at 407 7th Street, Holloway Terrace, the residence of Daryl "Babe" Andrus. John "Dwayne" Cathell brought over a case of beer around noon and sat on the porch drinking with Andrus and two other men. Fogg arrived around 2:30 p.m. with a 12-pack of beer and Cheryl Adams. James "JD" Dilley ("Dilley") was there also. Dilley and Andrus had been friends for years, although two weeks earlier Andrus had severely beaten Dilley on the face. Dilley was a small man, weighing about 150 pounds and five feet three inches tall. He had a clawed right hand.
The party migrated from the front porch to the back where Fogg provoked Cathell into fighting by kicking Cathell's leg and knocking his hat off. Subsequently, the party moved down to the basement where Cathell and Fogg fought again. Dilley got between the two of them, but Andrus hit Dilley out of the way and broke up the fight.
Around 8:00 p.m., Andrus, Fogg and Adams went to a tavern. They stayed there for about an hour and a half. According to Adams, Fogg and Andrus were rowdy and excited from the drinking and the earlier fighting.
On their way back to Andrus's residence, they stopped at a liquor store. They arrived at Holloway Terrace at approximately 10:00 or 10:30 p.m. Dilley was there. When Adams left approximately 20 minutes later, only three people remained in the dwelling: Dilley, who was in the living room trying to get a fire started in a wood stove, and Andrus and Fogg, who were in the kitchen pouring glasses of black sambucca.
The next morning at approximately 7:30 a.m., an ambulance from the local fire company responded to 407 7th Street. When they arrived on the scene, Fogg directed them inside where they found a body wearing boxer shorts and socks. There was blood all over the walls and carpets of the house. Fogg started mouth-to-mouth resuscitation while the emergency medical technicians began CPR compressions. Fogg told them, "I don't understand what happened, we were talking to him this morning."
A short time later, paramedics arrived. Andrus directed them to the victim. Examining Dilley, the paramedics found signs of rigor mortis in his jaw and finger and no pulse. CPR was discontinued and Dilley was pronounced dead at 7:42 a.m.
When Officer Romi Allen of the New Castle County Police Department arrived, the paramedics informed Allen that this was a crime scene. The victim's face was a bloody pulp. As described by the medical examiner at trial, Dilley had suffered multiple severe injuries cause by "kicking, punching, stomping and striking or being struck with blunt objects as well as hands and shod feet," to the extent that some of these actions left imprints on his body. The injuries to his face were so severe that his nose was torn away from his cheek and his ears were torn away from the back of his head. A false plate inside his mouth was broken into multiple pieces because he had been kicked. The hyoid bone underneath his chin was fractured. According to the medical examiner, Dilley died as a result of extreme blood loss complicated by the inhalation of blood and vomit into his airway.
After inspecting the residence, Officer Allen separated Fogg and Andrus since they were possible witnesses. Allen asked Fogg to have a seat in the police vehicle. When a second officer arrived at the scene, Andrus was placed in the second vehicle.
Detective Quinton Watson of the New Castle of the New Castle County Police Department arrived at approximately 8:30 a.m. He spoke with Fogg who was seated in the back seat of the patrol vehicle. Fogg told Watson that the previous evening, after Adams had brought the men back to Andrus's residence, he had come inside and "crashed on the couch."
He was awakened in the morning by Andrus calling his name from the hallway outside the bathroom. He went to the bathroom and saw Dilley lying face up in the bathtub, cold and bloody. Fogg and Andrus pulled him out of the tub and dragged him by the arms to Andrus's bedroom.
They put blankets on him and a heater next to him. Andrus started mouth-to-mouth resuscitation. Then Andrus went across the street to call for an ambulance. Fogg continued to perform mouth-to-mouth breathing on Dilley who was making gurgling sounds.
Shortly thereafter, the police then transported Andrus and Fogg to police headquarters for more questioning. Andrus was arrested and charged with hindering prosecution. In his final interview which started at 8:40 p.m., Fogg admitted to the police that he had struck Dilley with his hand. Fogg was arrested and charged with first degree murder and hindering prosecution. On May 1, 1995, Andrus and Fogg were jointly indicted on charges of Murder in the First Degree and Conspiracy in the First Degree.
While Andrus and Fogg were at police headquarters being questioned, other police officers were gathering evidence inside the Andrus residence. The living room wall facing the front door had what the police described as an enormous amount of blood on it. The floor was stained with apparent blood, as were the hallway and walls leading to the back of the residence. Similar stains were found on the refrigerator door in the kitchen and on the venetian blinds, sink, and shower in the bathroom. The bathtub was three-quarters filled with red-brown water and numerous items were floating in it, including a pillow, beer can, and shampoo containers. A pair of black boots was discovered in the living room and a pair of cowboy boots and a single black boot were located in the bedroom a few feet away from the body. The police found pieces of broken denture in the bathtub, on the living room floor, and on the bedroom floor next to the victim's body. A tooth was located in the hallway. A pair of wet and bloody jeans was found on the door handle of a second bedroom, and a wet shirt and sock were discovered outside the basement on the ground. On the back deck, the police found a t-shirt, lamp base, and a comforter stained with blood that DNA analysis later matched to Dilley.
The day following the defendant's arrests, the Medical Examiner's Office called the police to ask whether any jewelry had been seized at the scene or from the defendants. The police provided the Medical Examiner with a wizard ring belonging to Andrus, Fogg's ring that had on it a skull's face wearing a Viking helmet, and also several pair of boots. At trial, the Assistant Medical Examiner, Dr. Adrienne Perlman, testified that Dilley had very distinct "patterned injuries" on his body. She ultimately identified four distinct "patterned injuries" that were caused by the defendants' rings, and the cowboy boots and single black boot recovered from Andrus's bedroom. The cowboy boots, State's Exhibit No. 74, were later identified by a podiatrist as matching casts of Andrus's feet. Dr. Perlman also stated that one ring had to have had a stone in it to have caused the "patterned injuries" she saw on Dilley's body, even though when she saw the ring, the stone was missing.
On April 5, 1995, the police had observed fingerprints, smears and palm prints in reddish-brown stains on the south wall of the living room.
Corporal Ronald Webb lifted several palm prints off that wall, the east wall at the corner of the hallway and from the outside of the door of the master bedroom. At trial, he testified that the ten palm prints that were of value for identification purposes belonged to Andrus and Fogg.
Robert Richmond, an inmate at the Delaware Correctional Center, was called as a witness by the State. Richmond testified that he had met Andrus at Gander Hill. Andrus had told Richmond about his crime, stating that the victim, who lived with Andrus, had slapped Andrus in the face and that Andrus had started fighting. The victim fell to the floor, and Andrus and the co-defendant, who was staying there at the time, kicked and stomped the victim. Andrus said that he had hit the man in the face and apparently was concerned that his ring, which was taken from him by the police, would match 17 cuts to the man's face. According to Richmond, Andrus had claimed that his co-defendant, whose name Richmond did not remember, had gotten carried away with the beating and went too far. The incident took place in the living room and afterward, they dragged the victim to the bathroom to clean him up. Their main concern was to clean up the house. They had plans of getting rid of the body, but too many people knew that Dilley had been there and that they had been fighting. Andrus told Richmond that he went to bed and, the next morning after sobering up, he called 911.
The defense for Andrus presented evidence that he had sustained a gunshot wound in 1994 that had left him partially paralyzed on his right side and in his left leg. He would not have been able to kick with any force, although he could have performed some of the injuries described in the autopsy such as punching and striking with blunt objects or hands.
Neither Andrus nor Fogg testified at trial. The jury subsequently found them both guilty as charged. There is additional evidence relevant to this court's determination of the performance of Fogg's counsel that appears not to have been considered by the Supreme Court in its decision on Fogg's direct appeal:
Fogg, 1998 WL 736331, at *1-*4.
1) In addition to his live testimony, a transcript of a statement given by Robert Richmond to Detective Watson prior to Fogg's case coming to trial was admitted into evidence. Assertions included in the statement but apparently not specifically testified to include, in pertinent part, the following:
Det. Watson: You say once. . .[Andrus and Fogg] beat. . .[Dilley] up, they drug him to the bathroom?
Richmond: Put him in the bath tub.
Det. Watson: Did. . .[Andrus] say how long they beat him up for?
Richmond: Nah, he didn't.
Det. Watson: Just real quick, huh?
Richmond: It was probably just a real quick thing.
Det. Watson: And what was the reason why they took him to the bathroom?
Richmond: For the blood and he was bleeding real bad. That and they were trying to revive him so they says then after that he claimed he uh, he passed out hisself. . .[Andrus] did. And then the next morning, supposedly ran across the street and dialed 911.
July 7, 1995 statement of Robert Richmond at 3-4 (Ex. "A" to Def.'s Reply Br.).
Richmond's statement, as well as his handwritten notes reflecting the same, were introduced without objection; Fogg's counsel made the following statement to the court at the time of trial:
Mr. Bayard: All right. Your Honor, I would like — if we could approach sidebar for a moment please.
The Court: Court reporter.
Mr. Bayard: Your Honor, the transcript of. . .[Richmond]'s statement indicates there was an attempt by Fogg and Andrus to revive him, not try the next day, but try then and there. Obviously that's important to us because it shows the idea of concern of compassion. I would like to have this statement put into evidence and I would like to ask. . .[Richmond] some questions from this taped statement. And I thought, rather than us getting into a hassle in front of the jury, we could discuss it now.
Trial Tr. of 4/30/96 at 66 (Ex. "D" to Def.'s App.).
2) In his final interview with the police (which started at 8:40 p.m. on April 5, 1995, as stated above), Fogg gave statements other than the one wherein he admitted having struck Dilley with his hand. These statements, as well as a contemporaneously made videotape, were admitted into evidence. Detective W. Scott McLaren questioned Fogg:
Det. McLaren: Can you control yourself when you get in a frenzy?
Fogg: Yeah.
Det. McLaren: Can you hold back?
Fogg: Uh-huh.
Det. McLaren: When you get in a fight? If you tag somebody and you win, is that it with the fight?
Fogg: Usually.
Det. McLaren: Usually?
Fogg: I try not to fight usually, but if I do. . .
Det. McLaren: Have you ever kicked anybody?
Fogg: Sometimes.
Det. McLaren: Uh-huh. But when you're fighting, you get pissed off, normally.
Fogg: Yeah.
Det. McLaren: When was the last time you got involved in a fight?
Fogg: Quite a while. During this interview, Detective McLaren further explored Fogg's admission of kicking others when fighting:
Det. McLaren: Did you ever beat up anybody that bad [as Dilley was beaten] before?
Apr. 5, 1995 statement of Jeffrey R. Fogg, at 16-17 (Ex. "E" to Def.'s App.).
Fogg: No.
Det. McLaren: You said you've kicked people before.
Fogg: Just like fighting you know, not. . .
Det. McLaren: I take it they lived through it, right?
Fogg: Yeah.
Det. McLaren: Did they ever have to go to the hospital or anything?
Fogg: No.
Det. McLaren: OK.
Fogg: Not that I know of.
Det. McLaren: So you never kicked anybody to this extreme before? Or slapped anybody or anything that you remember?
Fogg: No, I know I haven't.
Det. McLaren: OK. Just by realizing, in a way, you're telling me that that's what happened. I know a lot of kicking went on. Now he might have been swinging at you at the time. But there was kicking that happened. Do you have any bruises on your legs or anything?
Fogg: I don't think so.
Det. McLaren: Turn your shins this way. Nice big bruise there.
Fogg: They're only scars.
Det. McLaren: What about this one?
Fogg: That's not a bruise. I used to race motorcycles.
Det. McLaren: And this stuff's old too.
Fogg: Those are scabs on there. They're not bruises. Detective Watson also questioned Fogg about his temperament when drinking:
Det. Watson: You know, I can tell even just from talking to people and different, you're a different person when you get drinking. When you get drinking a lot, you're a different person. Your temper is a lot shorter. It's like a little wick on a. . .
Apr. 5, 1995 statement of Jeffrey R. Fogg, at 48-49 (Ex. "E" to Def.'s App.).
Fogg: Can I get another soda?
Det. Watson: Yeah. You're like a little wick on a dynamite. You blow right off man when you get mad. That's basic. I see it. I've seen it happen before. I know that it happens. In this situation, people told me enough about you that I know that's what happens. You get a little rammy when you get drunk and I know that's what happens. You know, the fact of the matter is you want to try to tell me that you don't. You know you do and if you don't know when you're doing it, you know when people tell you the next day how you were acting the night before. You know, you get rammy.
Fogg: Yeah. Sometimes I do.
Det. Watson: Yeah, I know you do.
Fogg: Everybody does. These statements were admitted into evidence at trial without objection.
Apr. 5, 1995 statement of Jeffrey R. Fogg, at 46-47 (Ex. "E" to Def.'s App.).
3) Other testimony relevant to Fogg's behavior while drinking was introduced when Cheryl Adams (the person accompanying Fogg to Andrus's residence) testified at trial to questions posited by Deputy Attorney General Peter N. Letang:
Mr. Letang: Let's talk about the night before [the party at Andrus's residence]. Let's look at April, or the evening of April 3rd were you living at the Marlex Motel?
Ms. Adams: Yes.
Mr. Letang: Where is that located, please?
Ms. Adams: On Route 40.
Mr. Letang: Did you have Mr. Fogg and someone else at your house on the third of April?
Ms. Adams: Yes, I did.
Mr. Letang: For the evening?
Ms. Adams: Yeah.
Mr. Letang: Describe what took place there, just in brief detail, if you would?
Ms. Adams: I told them they could come down to my room but I had somewhere else to go. And we had all been drinking that evening. I had a date with my boyfriend up on Maryland Avenue, I couldn't take them, and they didn't have any anywhere else to go where they could drink, so I told them they could spend the night in my room while I went to Maryland Avenue to my boyfriend's and I would bring them home the next day.
Mr. Letang: What happened in that room?
Ms. Adams: They trashed my room.
Mr. Letang: Were you able to go back in the Marlex Motel after the evening of April 3, 1995?
Ms. Adams: No. Not until my damages were paid for. Adams's testimony was admitted into evidence without objection.
Trial Tr. of 4/17/96 at 145-46.
4) In addition to Assistant Medical Examiner Dr. Adrienne Perlman's testimony at trial (cited in the Supreme Court's decision on direct appeal), Dr. Perlman's written postmortem findings were also admitted into evidence at trial. In pertinent part, Dr. Perlman's written report states:
Based on close examination of the injuries with the naked eye, a magnifying glass and photographic enlargements, similar examination and comparison with the tread, the label and the tack on the [single black boot the police removed from Andrus's residence], as well as comparable measurements with minimal variation, these injuries [resulting in Dilley's death] are caused by. . .[Dilley] being stomped on multiple times, and within a reasonable degree of medical certainty, were caused by the [single black] boot which was examined at the time of autopsy. Additionally, when questioned by Deputy Attorney General Letang, Dr. Perlman testified at trial as follows:
Postmortem Findings of Dr. Adrienne Perlman at 7 (Ex. "H" to Def.'s App.).
Mr. Letang: Let's talk about the degree of force necessary to cause the damage to Mr. Dilley as you have described for the jury. How would you characterize the degree of force needed to cause these injuries?
Dr. Perlman: The kick to the throat [resulting in the broken hyoid bone] is a tremendous amount of force. He has to get to an area that is fractured, and again, I know it's a kick because there is pattern injuries on the throat similar to one of the boots. The injuries on the back, even though we do see patterned injuries, we usually don't see them this clearly where you actually have this absolute cookie cutter pattern on the body. To be able to do that, it takes a lot of force. It takes a lot of force. Usually we'll see bits and pieces. This was a good example. Mr. Dilley had these injuries on his back, but he also had a hemorrhage inside. If you look at the inside tissues, it wasn't deep in his body, but it was deep in his skin and deep in the soft tissue surrounding his ribs. So it takes a lot of force.
Trial Tr. of 4/25/96 at 49-50 (Ex. "H" to Def.'s App.).
5) Additionally, certain relevant jury instructions given at trial were as follows:
There are two defendants in this case. In effect, there are two different cases being tried together. While a criminal offense may be committed jointly by two or more defendants, if you should be satisfied beyond a reasonable doubt that one of the defendants is guilty, this does not mean that the other defendant is also guilty. You must bear in mind at all times that the defendants are charged here as individuals and you must consider the law that I state to you in light of the evidence against each defendant. So you must weigh the evidence separately as it applies to each defendant and render a separate verdict as to each defendant and as to each of the charges.
Trial Tr. of 5/2/96 at 175 (Ex. "G" to Def.'s App.).
. . . .
Certain audio and/or videotapes have been admitted as exhibits.
Transcripts containing an interpretation of what appears on these tapes were furnished to you as an aid or guide to assist you in listening to these tapes. However, although the transcripts have been marked as exhibits, they are not, in and of themselves, evidence of what appears on the tapes.
The tapes and not the transcripts are the evidence of the conversations which appear on them. You alone should make your own interpretation of what appears on a tape based upon what you hear. If you think you hear something differently than appears on a transcript, then what you hear is controlling.
Also, you may notice that certain portions of the tapes and/or transcripts have passages that have been deleted. You are not to speculate as to what may have been contained in those deleted passages, nor should you speculate as to the reasons for the deletions.
Id. at 188-89.
. . . .
An element of a criminal offense deals with the state of mind of the defendants. It is, of course, difficult to know what is going on in another person's mind. Therefore, you are permitted to draw an inference, or, in other words, to reach a conclusion about a defendant's state of mind from the facts and circumstances surrounding the act the defendants are alleged to have done. In reaching this conclusion, you may consider whether a reasonable man in the defendants' circumstances would have had or lacked the requisite intention or recklessness or knowledge or belief. You should, however, keep in mind at all times that it is the defendants' state of mind which is at issue, and, in order to convict the defendants, you are required to find beyond a reasonable doubt that they are — that they in fact, had the intention or recklessness or knowledge or belief required for a finding of guilt. In addition to Murder First Degree and Conspiracy First Degree, the jury was also instructed that it could potentially find each codefendant liable for the lesser-included offenses of Murder Second Degree (title 11, section 635 of the Delaware Code), Manslaughter (title 11, section 632 of the Delaware Code), or Conspiracy Second Degree (title 11, section 512 of the Delaware Code).
Id. at 190-91.
See Trial Tr. of 5/2/96 at 177-85 (Ex. "G" to Def.'s App.).
THE NEW CLAIM RAISED FOR THE FIRST TIME IN FOGG'S APPEAL OF THIS COURT'S DENIAL OF HIS MOTION FOR POSTCONVICTION RELIEF
Pursuant to the Supreme Court's August 9, 2001 remand to hold an "evidentiary hearing. . .to consider the allegations of ineffective assistance of counsel," this court permitted Fogg to assert all grounds supporting his claim of ineffective assistance of counsel. Fogg therefore asserted the admission of a partially redacted statement given by Andrus to the police that mentioned Fogg in several portions. This evidence was admitted at trial, and was first complained of by Fogg in his reply brief in the Supreme Court on appeal of this court's August 1, 2000 denial of his motion for postconviction relief.Those sections of Andrus's statements naming Fogg follow:
Det. McLaren: Who did. . .[Dilley] have a problem with last night?
Andrus: He argued with a few of them boys.
Det. McLaren: Who?
Andrus : Everybody did. Jimmy [Dilley]. . .
Det. McLaren: Who did he have a big problem with? Did he have a problem with Jeff [Fogg]?
Andrus: I don't remember. I don't remember.
Apr. 5, 1995 statement of Daryl Andrus at 7 (Ex. "F" to Def.'s App.).
. . . .
Det. McLaren: Somebody beat the hell out of. . .[Dilley].
Andrus: Well, I don't know [who].
Det. McLaren: Who else. . .who else was in the house?
Andrus: I don't know. Just me. . .[Dilley] and Jeff [Fogg] when I got up.
Det. McLaren: What would that lead you to believe?
Andrus: Well Jeff [Fogg] was asleep. I had to wake him up. So evidently it was somebody in the house earlier that evening, later that evening. I don't know.
Id. at 10.
. . . .
Det. McLaren: Daryl, somebody did this in your house and we have a pretty good. . .
Andrus: Wait a minute. We tried to wake. . .[Dilley] up. I tried to wake. . .[Dilley] up as soon as I woke Jeff [Fogg] up. All right. I remember. After. . .[Fogg and I] were up, I, I, I turned on the shower, you know? We left him in the bathtub at first.
Id. at 26.
. . . .
Det. McLaren: Let's do it this way. All right? You're at the house [across the street from your own residence]. You just got off the phone to 911. OK? What did you do right before that? When you came across the street, did you see anybody?
Did you stop anybody?
Andrus: Before I dialed 911, no. Went right to the um, right to. . .[my neighbor]'s house as soon as I saw. . .[Dilley] was in bad shape as he was. As a matter of fact, I think, I think he laid back down.
Det. McLaren: Who laid back down?
Andrus: Jeff [Fogg] said he was going to lay back down and I told him, no. I said, this guy's in bad shape. We've got to get, I've got to go call 911 because I couldn't get him back. Wait a minute, I brought him back. I brought him back and I heard him breathing. I remember that much.
Det. McLaren: In the bathtub or on the floor?
Andrus: On the floor, after we got him warm.
Id. at 28.
. . . .
Det. McLaren: Who, and when I told Jeff [Fogg], I said, Jeff, let's use your brain here, OK, Jeff. I said we've got a dead body in the tub in a house. OK? I have other witnesses say that the victim never left that house. All right?
Andrus: Uh-huh.
Det. McLaren: Which means this went down in the house.
Andrus: ________________________
Det. McLaren: Listen to me! Then I say, Jeff, there were only two people in that house were you and Daryl. What happened? And I'm going to tell him exactly the same thing. He's gonna say, Daryl [Andrus] had a problem a couple weeks ago and beat the [s__] out of him. Better look at Daryl [Andrus].
Andrus: Probably.
Det. McLaren: Hmm?
Andrus: Probably.
Det. McLaren: Cause he's gonna do anything in the world to get everything off of him.
Andrus: I don't, well, probably.
Det. Watson: You're right.
Andrus: But I have to let it go at that. I can't tell you. I can't tell you.
Det. Watson: But the thing about it is that see, I told you, we've been in these situations before. I'm telling you.
Det. McLean: He's gonna dump on you.
Det. Watson: You get the first shot. And what you do with it determines what we find out later on and we find out that you may not. . .now listen to me. Listen to me.
Andrus: After you talk to the witnesses, officer, I can call my lawyer then. If you guys weren't friendly, I'm telling you I didn't see anybody do it.
Id. at 32-33.
. . . .
Det. McLaren: I just want you to take a polygraph to say, to verify what you told us is true. Everyone thinks lie with polygraph.
Andrus: I would do it, yeah.
Det. McLaren: Let me ask you this. If I met you and Jeff [Fogg] in a room. . .
Andrus: Uh-huh.
Det. McLaren: To talk about this, OK, would you be able to be in a situation where you would be able to help us out? If Jeff told you something?
Andrus: If, if, if the same way you guys pull this out of, you know, if that worked.
Apr. 5, 1995 statement of Daryl Andrus at 37 (Ex. "F" to Def.'s App.).
. . . .
Det. McLaren: What were they bitching about downstairs [when the party moved to the basement]?
Andrus: I don't know. It could have been a pool game, it could have been any number of things.
Det. McLaren: But voices got loud?
Andrus: Yeah, and then I went down and broke it up.
Det. McLaren: Who'd you break up?
Andrus: I don't remember. They weren't. . .I don't know.
Det. McLaren: Daryl, who did you break up?!
Andrus: I don't know.
Det. McLaren: You have enough about you. . .
Andrus: I don't know if it was Jeff [Fogg] or Jimmy [Dilley], or it's [my neighbor] Jason. I remember Jason stepping to me.
Id. at 41.
. . . .
Det. McLaren: Who was having a problem outside?
Andrus: That was when Jason step. . .where were we? I think me and Jeff were in the car. I'm not sure about that. I remember being in the car and Jason came up to the car. Then he said something about, ___ oh, I know, they started calling him a little gook.
Det. McLaren: Who?
Andrus: Jason because he has them, he's, he's got those eyes, he's a Japanese boy.
Id. at 43.
THE AFFIDAVIT SUBMITTED BY FOGG'S COUNSEL AND THE EVIDENTIARY HEARING HELD BY THIS COURT
On October 1, 2001, this court held an evidentiary hearing pursuant to the Supreme Court's August 9, 2001 order. At the hearing, Fogg's former counsel was questioned by Fogg's current counsel and by a Deputy Attorney General. Pertinent parts of the transcript of that hearing are set forth below.Fogg's former counsel testified that he had been a public defender for "about 25 years," and that he had tried "close to a dozen" Murder First Degree cases.
Hr'g Tr. of 9/1/01 at 67 (Ex "K" to Def.'s App.).
The reason that Fogg's counsel did not object to the admission of Richmond's statement relaying what Andrus had told him was further explored at the evidentiary hearing. Although Mr. Bayard could not recall the specifics of the introduction of the statement into evidence at trial, the following exchange did take place at the evidentiary hearing:
Ms. Perillo: When do you recall becoming aware of the Richmond evidence?
Mr. Bayard: I think at the trial or during the early, the very early portions of it. I think it was a last — it was a revelation that came late and it may have been early in the trial itself.
Ms. Perillo: Now, neither. . .[Fogg nor Andrus] testified in this case at trial?
Mr. Bayard: That's my recollection — yes, neither man testified.
Ms. Perillo: And the severance motion, as you've already indicated, was denied?
Mr. Bayard: Please.
Ms. Perillo: Did — do you recall objecting to the admission of the Richmond evidence at trial?
Mr. Bayard: Again, I'd have to review the transcript to give you a qualified answer. I don't know whether I did or not. As I stated to you earlier this — and, please, I just didn't see the Richmond thing being the dispositive factor that was going to have — for the jury.
Ms. Perillo: Well, is it fair to say that — that Mr. Richmond's testimony and statements kind of gave a scenario about how Mr. Dilley died?
Mr. Bayard: I thought really the forensic people for the State did that.
Ms. Perillo: Well, notwithstanding that evidence?
Mr. Bayard: Yeah.
Ms. Perillo: Mr. Richmond's testimony and statements did give the scenario of how Mr. Dilley was killed, correct?
Mr. Bayard: The only thing that stands out in my mind is that phrase about Andrus making some comment to Richmond that he felt that "Fogg went too far or got a little carried away with himself."
Hr'g Tr. of 9/1/01 at 55-56 (Ex "K" to Def.'s App.).
Regarding the effect of the Richmond's testimony, Fogg's counsel further explained:
Ms. Perillo: Well, what did Mr. Richmond actually testify to?
Mr. Bayard: I think the thing that perhaps Mr. Fogg had trouble with was the — something about a statement abouf Fogg going a little bit overboard. Is that what you're driving at?
Ms. Perillo: Didn't Mr. Richmond testify to conversations that he had with Mr. Andrus at Gander Hill?
Mr. Bayard: Indeed. Indeed. That's my recollection.
Ms. Perillo: Statements that Mr. Andrus made to Richmond?
Mr. Bayard: That's correct.
Ms. Perillo: And the Bruton rule was implicated because Andrus never testified at trial, correct?
Mr. Bayard: Well, Bruton had already been laid down before then, that's correct. But I think if I understand correctly, one has to see whether there was, what do they call it, substantial independence — substantial independent evidence linking Mr. Fogg in this case to the events of the case; and the answer is yes, put inside, Richmond was dirt enough to convict Mr. Fogg and Mr. Andrus. The answer's yes. Did Richmond make the crucial linchpoint [sic] difference? I certainly don't think so. I think it was more window-dressing by the State. It wasn't certainly to gain a conviction. In connection with Fogg's postconviction motion filed in this court, Mr. Bayard had originally submitted an affidavit, the pertinent portion of which states that:
Id. at 48-49.
1. Counsel balanced the testimony of inmate Robert Richmond as an inmate and that the conversation between Mr. Richmond and Mr. Andrus took place in prison. Counsel concluded that a jury would find little credibility in Mr. Richmond's testimony.
James A. Bayard, Jr. Aff. of Nov. 15, 1999 § 1 (Ex. "J" to Def.'s App.).
With regard to Fogg's earlier fighting with John "Dwayne" Cathell, Mr. Bayard testified at the October 1, 2001 evidentiary hearing as follows:
Ms. Perillo: I'd like to turn to the issues involved in this post-conviction motion that form the basis of the ineffectiveness claim and ask you if you're familiar with the Getz decision?
Mr. Bayard: Yes. I believe I brought a copy with me.
Ms. Perillo: Can you tell us what rule of evidence Getz relates to?
Mr. Bayard: I believe we're talking about the 404(b) balancing.
Ms. Perillo: And is one of the requirements of the Getz decision a limiting jury instruction?
Mr. Bayard: I didn't read it that closely. I don't — you know, I understand it in general, but to say I know it pinpoint, no, I'm not going to answer that. I don't know.
Ms. Perillo: Were you more familiar with the Getz decision at the time this case was tried?
Mr. Bayard: I was aware of it and I was also aware of the 404(b) that you're raising. Are we discussing about the fights that. . .[Fogg] was in prior to the actual death of Mr. Dilley?
Ms. Perillo: Correct.
Mr. Bayard: I was — yeah, I was aware of those.
Ms. Perillo: But my focus right now is on your knowledge of the Getz decision and what it required at the time this case was tried.
Mr. Bayard: I looked at the 404(b) aspect as to whether, in this case, you know, we should raise an objection about the fight upstairs on the porch and the one out in the pool room and concluded that we couldn't do anything to stop them from coming in, if that's what you're driving at, please.
Ms. Perillo: Well, I asked you a minute or so ago whether Getz requires a limiting instruction with respect to — with respect to prior bad acts evidence.
Mr. Bayard: I would imagine. Honestly, to sit here and tell you I know the Getz decision pat would be a waste of time. I don't.
Hr'g Tr. of 9/1/01 at 24-26 (Ex "K" to Def.'s App.).
Counsel explained his reasoning behind his belief that "we couldn't do anything to stop. . .[the evidence of Fogg's earlier fighting on the night in question] from coming in" at the October 1, 2001 evidentiary hearing as follows:
Ms. Perillo: Do you recall requesting. . .a [limiting] instruction at Mr. Fogg's trial?
Mr. Bayard: No. I know — I feel reasonably comfortable in saying no, I did not, and again, I mean we're really going back to the 404(b) issue. And when we look at the two fights that he was involved in, there was no remoteness in time. It was all within X number of hours less than 12. The fight — if you look at the statement that you were just making in reference to that Mr. Fogg made. . .[in the 8:40 p.m. statement of April 5, 1995][,] the police were asking him about those and they were clearly pointing out in their mind they thought the combination of the fight upstairs on the porch and the one downstairs where they were chiding Mr. Fogg. . .that those were predicates to the final incident there with Mr. Dilley. In other words, it went to motive. I think, in that case, that's really what they were trying to show.
Ms. Perillo: Well, the purpose of a limiting instruction is what? Is it to narrow the jury's use of the evidence or —
Mr. Bayard: I think that might be a fair way to express it.
Ms. Perillo: And you say you're pretty certain you didn't request such an instruction under Getz?
Mr. Bayard: I probably looked, counsel, under 404(b) and recognized that, you know, that it was something that — it wasn't remote. It was a predicate, it did show motive, and with those thought in mind, it was going to come in. And one does not like to get up there and make a lot of motions during the course of a trial when you think you're not going to be successful. It doesn't do anything for the general tenure of your case.
Id. at 34-35.
When questioned by Deputy Attorney General John Williams at the evidentiary hearing about the evidence of Fogg's earlier fighting on the night in question, Mr. Bayard replied as follows:
Mr. Williams: All right. Well, are you familiar with the concept of prior bad acts or 404(b) evidence that the Delaware Supreme Court has characterized as being inextricably intertwined with other evidence in the case? Are you familiar with that?
Mr. Bayard: Yes, I've gritted my teeth when that's been thrown at me before.
Mr. Williams: So in '96 [during Fogg's trial], were you familiar with that kind of concept as well?
Mr. Bayard: Indeed. Indeed.
Mr. Williams: In this particular case, did you consider the prior bad acts evidence regarding Mr. Fogg as being in any way inextricably intertwined with other admissible evidence in the case?
Mr. Bayard: Yes, going to the proximity of the time, it was all within about three or four — well, maybe six hours.
Id. at 69-70.
Regarding the 8:40 p.m. statement of April 5, 1995 that Fogg gave to the police, Mr. Bayard testified as follows:
Ex. "E" to Def.'s App.
Ms. Perillo: Did you ever — did it ever occur to you that you could have perhaps redacted these portions of Mr. Fogg's statement to the police that were — that depicted him as a chronic drunk and a violent person?
Mr. Bayard: I'll be honest with you. I'm not sure of whether that was something that was really thought of with a great — a great deal and I think that's — that's probably an honest answer. . . .It had been an ongoing problem for the gentleman [since he was in a truck accident where his shoulder was injured] and he had shared that [with the interrogating officers] right from the beginning.
Ms. Perillo: Well, when there's — is it fair to say that when there's damaging information that's essentially inadmissible in a statement, one technique is to redact that information out of the statement; correct?
Mr. Bayard: It can be done. Please.
Ms. Perillo: And did you think this depiction of Mr. Fogg as a chronic drunk and a violent person, did you think — did you think that was beneficial to him?
Mr. Bayard: It wasn't any more beneficial then where he put his hand through a ceiling at some motel, Marlex, Starlex, whatever that place was called. I mean it was just one more example of unfortunate behavior that he was going through at the time.
Ms. Perillo: Well, could I get a yes or no answer to my question? Did you think it was beneficial to Mr. Fogg that the jury heard these things about him?
Mr. Bayard: I don't think it was beneficial. Unfortunately, it's the history he wrote for himself.
Ms. Perillo: So was — was your — I gather you're saying you didn't make a strategic decision to not redact the statement to delete those passages?
Mr. Bayard: Looking at his total background, no, that is correct.
Hr'g Tr. of 9/1/01 at 32-33.
The pertinent portions of Mr. Bayard's affidavit originally submitted in connection with Fogg's postconviction motion reflects that:
3. Counsel was not aware that Mr. Fogg had any prior convictions for kicking a person. The primary reference to kicking was in the form of statements by the police. There were conclusions and accusations made by the police as they questioned Mr. Fogg. Mr. Fogg explained how he had marks on his leg from riding a motorcycle. Counsel was aware that medical testimony regarding boots, that were in evidence, could not be linked to Mr. Fogg.
None of the boot marks on the victim's body could be attributed to the boots a medical doctor linked to Mr. Fogg.
4. (a). . .The overbearing nature of the police interview in the. . .[8:40 p.m. statement Fogg gave on April 5, 1995] brought into serious question the credibility of all information derived from that interview.
. . . .
(c) The police made accusations that the defendant had a short temper when drunk. The defendant responded by asking for another soda. . . .Counsel did not see a significant prejudice to. . .[Fogg] from that exchange of police accusation and defendant's response.
(d) Counsel did not consider or weigh the statements by the police officers regarding the defendant doing things on prior occasions when he was drunk.
James A. Bayard, Jr. Aff. of Nov. 15, 1999 §§ 3, 4 (Ex. "J" to Def.'s App.).
Regarding the real evidence adduced at Fogg's trial, Mr. Bayard testified as follows:
Ms. Perillo: Would you — would you disagree that the physical evidence implicated Andrus far more than it did Fogg?
Mr. Bayard: No. I — I think you have to weigh what physical evidence we're thinking of in terms of Mr. Fogg. Clearly his boot marks were not shown there on the body. His ring marks were. Andrus's boot marks and ring marks were shown on the body. However, when one sees Mr. Andrus and Mr. Fogg, one can quickly guess where a lot of the damage came from just owing to the disparity in their sizes. Mr. Fogg is a much bigger human being and probably capable of more damage or at least that could be an assumption that a layperson could make just watching these two men sit there.
Ms. Perillo: But there wasn't any evidence that Mr. Fogg was the principal assailant, correct?
Mr. Bayard: I don't think there was any evidence as to either one of them. I think they were viewed as coequals in the eyes of the State.
Hr'g Tr. of 9/1/01 at 62-63.
When questioned by the Deputy Attorney General on this point, Mr. Bayard replied as follows:
Mr. Williams: Was [Fogg's statement to the police wherein he admitted striking Dilley] an incriminatory admission. . .?
Mr. Bayard: Indeed.
Mr. Williams: What was the substance if you recall?
Mr. Bayard: That he acknowledged that he was responsible in part for some of the injuries to Mr. Dilley; that he had, in fact, had hit, struck the gentleman more than once.
Mr. Williams: And given that evidence and given the coconspirator of [sic] vicarious liability, did you see this as a very difficult case to defend?
Mr. Bayard: I think as much as it was difficult inasmuch as not only what we have just discussed, but the physical evidence. When you look at Mr. Dilley's dental plate was kind of strewn up and down the hallway, the way Mr. Dilley died, of course, and the blood that was literally in the bathtub, down the hallway, in the bedroom, in the living room, on the walls, to be polite, it was off-putting to the average citizen
Id. at 79-80.
The pertinent portion of Mr. Bayard's affidavit submitted in connection with Fogg's postconviction motion states:
5. Counsel sought to explain how the defendant had caused an injury to his hand. The defendant [Fogg] was accused of beating the victim. Prior to. . .[Dilley]'s death. . .[Fogg] had hurt his hand during an outburst at the Marlex Motel. In trial preparation. . .[Fogg] wanted the jury to know the reason he had a prior injury to his hand. In the. . .[8:40 p.m. statement Fogg gave on April 5, 1995]. . .[Fogg] spoke of a three day old injury to his hand. There was a balancing of the prior bad act and a comment on. . .[Fogg]'s character against an explanation of how. . .[Fogg] suffered a hand injury prior to the beating death of. . .[Dilley].
James A. Bayard, Jr. Aff. of Nov. 15, 1999 § 5 (Ex. "J" to Def.'s App.).
As for his failure to request an accomplice liability instruction at trial, Mr. Bayard testified at the evidentiary hearing that:
Ms. Perillo: Let's move on to the accomplice liability instructions. Did you believe that accomplice liability instructions were appropriate in this case?
Mr. Bayard: In this — this was a situation where we had — I think what the State was trying to establish, there was a vicarious liability between the two defendants in this matter. We also had a situation where the Court kindly provided us with jury instructions that included lesser-includeds all the way down to, I think it was, like manslaughter. And when you recognize that and the fact that they — that there was this vicarious liability, I felt that that really took care of the issue.
Hr'g Tr. of 9/1/01 at 42-43.
In his affidavit, Fogg's counsel wrote that:
9. Counsel for Mr. Andrus did seek an instruction on accomplice liability. Counsel believed that the jury would find that instruction applicable to. . .[Fogg as well]. THIS COURT'S AUGUST 1, 2000 DENIAL OF FOGG'S MOTION FOR POSTCONVICTION RELIEF As stated above, an evidentiary hearing was held in this court on October 1, 2001 to consider Fogg's claims of ineffective assistance of counsel. The hearing was held on order of the Supreme Court, which has retained jurisdiction of Fogg's appeal of this court's August 1, 2000 denial of Fogg's motion for postconviction relief. The substance of that decision, which summarily dismissed in part and denied in part Fogg's requested relief, follows.
In fact, no such instruction was requested by Andrus, as is reflected in this court's August 1, 2000 decision denying Fogg's postconviction motion. See Fogg, 2000 WL 1211510, at *2.
James A. Bayard, Jr. Aff. of Nov. 15, 1999 § 9 (Ex. "J" to Def.'s App.).
Fogg had asserted in his motion for postconviction relief that Richmond "was permitted to testify to statement[s] of [Andrus] inculpating [Fogg] where [Andrus] did not testify at trial." This court, citing the Supreme Court's conclusion that the error in admitting into evidence Andrus's statement incriminating Fogg had been "harmless beyond a reasonable doubt," determined that Fogg's claim of a denial of his right to confront Andrus was procedurally barred. Specifically, this court found that Superior Court Criminal Rule 61(i)(4) applied, and that further consideration of the issue was not warranted "in the interests of justice."
Fogg, 2000 WL 1211510, at *1.
Id. at *2.
That rule provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." Super. Ct. Crim. R. 61(i)(4).
Fogg, 2000 WL 1211510, at *2.
Fogg had also asserted that this court "erred by failing to instruct the jury on accomplice liability." However, in its decision, this court noted that no party "requested an accomplice liability instruction and none was given," and that this claim had been "raised for the first time in. . .[Fogg]'s Motion for Postconviction Relief as it was not raised on direct appeal." This court then ruled that this claim was procedurally barred by Superior Court Criminal Rule 61(i)(3) because Fogg failed to articulate an "external impediment" which had prevented him "from raising this ground in the proceedings leading to the judgment of conviction," and because Fogg had failed to show a "`substantial likelihood' that if the issue had been raised on appeal, the outcome would have been different."
Id.
Id.
That rule provides that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction. . .is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights." Super. Ct. Crim. R. 61(i)(3).
Fogg, 2000 WL 1211510, at *2.
Fogg's final assertion in his postconviction motion was that he had received ineffective assistance of counsel, in support of which Fogg had listed "some eleven instances. . .at the trial level and three instances at the appellate level." This court's disposition of Fogg's ineffectiveness claims was (citations and footnotes are omitted) as follows:
In Ground Four (A)(1) of his motion, Defendant alleges that [c]ounsel failed to object to the testimony of inmate Robert Richmond regarding statements made by co-defendant Andrus to Richmond which inculpated the defendant, and which plainly violated the defendant's right to confrontation and cross examination. The co-defendant did not testify. These statements were later used by the State and co-defendant's counsel in summation to bolster the argument that the defendant was jointly (State) or solely (co-defendant's counsel) responsible for the homicide.
In Ground Four (A)(7) of his motion, Defendant argues that [t]rial counsel failed to object to the argument of co-defendant's counsel in summation where co-defendant's counsel utilized the statement to Richmond to argue to the jury that Defendant Andruss [sic] was not responsible for the homicide and that defendant Fogg was solely responsible.
In Ground 4(A)(8) of his motion, Defendant contends that "[c]ounsel failed to object to the State's summation comments regarding Richmond."
In Grounds Four (B)(1), (2) and (3) Defendant alleges that appellate counsel was equally ineffective in his representation because he "failed to identify the confrontation issue at trial, failed to demonstrate to the appellate court how the error was not harmless [which] resulted in a Supreme Court finding of harmless error." Defendant alleges that defense counsel failed to apprise the appellate court that
(1) The State's reliance on the testimony of Richmond in its summation over six pages of transcript as it applied to both Andrus and Fogg;
(2) More significantly, the argument of co-defendant's counsel, made at the conclusion of his summation, and without an opportunity for rebuttal by Fogg's counsel, that Richmond's statement showed that Fogg was the individual solely responsible for the homicide; and
(3) A detailed listing of the testimony of Richmond and the statement admitted into evidence, showing how damaging the statement was to Fogg in all its particulars.
Fogg also claimed that this court erred by admitting statements Fogg had made to the police which he claimed were in violation of his Miranda rights. This court determined that his claim was procedurally barred under Superior Court Criminal Rule 61(i)(4) because the Supreme Court affirmed this court's earlier ruling that it had not committed error. See Fogg v. State, 1998 WL 736331, at *4 (Del.Supr.). In any event, any claim of a Miranda violation has not been asserted in this court.
Fogg, 2000 WL 1211510, at *1.
The court notes that in connection with his motion for postconviction relief, Fogg "had [originally] requested an evidentiary hearing but [then] withdrew that request." Fogg, 2000 WL 1211510, at *1 n. 2.
This Court finds that the above claims of ineffective assistance of counsel at the trial and appellate level are merely refinements of the Bruton issue which was rejected by the Delaware Supreme Court in Defendant's direct appeal. Defendant has merely raised the same issue through an ineffective assistance of counsel claim. The Supreme Court has already ruled that the error in admitting Richmond's testimony was harmless error beyond a reasonable doubt. This issue has been previously resolved and is therefore barred by Rule 61(i)(4). Furthermore, this Court finds that consideration is not "warranted in the interest of justice" and Defendant has offered no reasons for this Court to believe that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him."
Grounds Four (A)(1), (7),(8) and (B)(1),(2) and (3) are summarily dismissed.
Defendant's Other Claims of Ineffective Assistance of Counsel Fail Under the Strickland Test To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. In addition, the Delaware Supreme Court has consistently held that when setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
In Ground Four (A)(3) of the motion, Defendant alleges that [c]ounsel failed to object to, or seek redaction of certain questions and answers in his taped statement regarding other fights in which he may have been involved in which he kicked other people. This was mentioned and questioned on by the police officers at least five times in the statement. Such testimony constituted impermissible prior bad acts evidence irrelevant to this case and prejudicial to the defendant.
This is particularly so where the act of kicking played a prominent role in the claimed cause of death at trial. No limiting instruction was sought by the defense or given by the Court.
Trial counsel for Defendant has responded to this allegation by stating that the "primary references to kicking was in the form of statements by the police." Furthermore, there was testimony from John "Dwayne" Cathell, a prosecution witness, addressing Defendant's previous kicking and any statements with respect to kicking made by Defendant was, according to trial counsel for Defendant, considered cumulative. Defendant has not met the second prong of Strickland because he has failed to show how the redactions would have resulted in a different outcome. Ground Four (A)(3) of Defendant's motion is denied.
Ground Four (A)(4) of Defendant's motion alleges in five subparts that "[c]ounsel failed to seek redaction of other questions and answers in his statement." The pertinent part of Defendant's statements are
(a) Statements by the police officers expressing their personal opinion of the defendant and his guilt, indicating that they "knew" what happened;
(b) Statements by police officers to the effect that the "knew" what the defendant's "record" is'
(c) Statements by police officers incorporating inadmissible and prejudicial hearsay regarding the defendant's drinking and temper when he drank;
(d) Statements by the police officers regarding the defendant's doing things on prior occasions when he was drunk;
(e) Statements by the defendant regarding his prior usage of the drug PCP. No objection was made by the defense and no limiting or curative instructions were sought or given.
Ground Four (A)(5) of Defendant's motion alleges that [c]ounsel failed to object to the testimony of Cheryl Adams regarding the defendant's drinking and "trashing" of her room at the Marlex Motel on the day preceding the homicide. Indeed, counsel himself repeated the testimony on cross examination and introduced into evidence photographs depicting the damage done to the room. Such evidence was inadmissible prior bad acts evidence irrelevant to the case and prejudicial to the defendant's character.
With respect to the statements, defense counsel had moved, unsuccessfully, to suppress the statements made by Defendant to the police.
With respect to the statements about Defendant's drinking and the testimony of Adams, trial counsel for Defendant stated in his affidavit that he did not see "significant prejudice to the [Defendant] from the that exchange of police accusation and [Defendant's] response." "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. . . ." Any inadvertence of counsel does not amount to "cause" unless it rises to the level of ineffectiveness in violation of the 6th Amendment. Defendant has not met the first prong of Strickland because he has failed to show that trial counsel's strategic choice not to object to or redact these statements was unreasonable. Ground Four (A)(4) and (5) of
Defendant's motion is denied. Additionally, in its August 1, 2000 denial of Fogg's motion for postconviction relief, this court considered Fogg's claim that his counsel's failure to request an accomplice liability instruction was grounds to support ineffective assistance of counsel:
Fogg, 2000 WL 1211510, at *3-*5.
Even if Defendant's claim with respect to an accomplice liability jury instruction were to survive procedural default, trial counsel's failure to ask the Court for such an instruction does not amount to ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. In addition, the Delaware Supreme Court has consistently held that when setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
Under this analysis, Defendant has failed to meet the first prong.
The Court instructed the jury on lesser included offenses, and no other attorney requested the accomplice liability instruction. Defendant has failed to show how trial counsel's representation fell below an objective standard of reasonableness.
Id. at *3.
THE PARTIES' CONTENTIONS ON THIS SECOND REMAND FOLLOWING THE EVIDENTIARY HEARING Fogg's Contentions
The overarching argument Fogg now makes is that he was deprived of his right to the effective assistance of counsel both at trial and in the direct appeal of his convictions. Each stage of the alleged ineffectiveness of Fogg's counsel will be addressed separately.Fogg's Assertions Regarding Counsel's Represenation at Trial
Fogg contends that "but for the deficient performance of his trial counsel, the Bruton violation which concededly occurred at his trial, would not have happened." Fogg argues that counsel's "failing to object — or even to discern — the Bruton problem raised by the "Richmond evidence" and "related failure to request a limiting instruction with respect to that evidence" fell below and objective standard of reasonableness. Quoting Roberts v. Russell, Fogg argues that his counsel's failure to "discern or object" to the "Bruton problem" constitutes prejudice such that his counsel's ineffectiveness is "clear." Fogg also contends that the Andrus statements admitted into evidence (apparently in a somewhat redacted form) violated Bruton's holding because the redactions were "made by deleting most of the portions. . .which implicated. . .[Fogg], leaving blank spaces in the transcripts," and thus were in contravention of the holding of Gray v. Maryland. Fogg also claims that the admission of the "Richmond evidence" and Andrus's statements into evidence violated Richardson v. Marsh because "the Andrus statements were not factually redacted in accordance with that decision and. . .the trial judge failed to give the jury `a proper limiting instruction'." Fogg maintains that the admission of all of this evidence "constitute[s] reversible error," and that counsel has "offered no reasonable explanation. . .for his deficient performance. . . ."
Def.'s Opening Br. at 24.
Id. at 25.
392 U.S. 293 (1968) (per curiam) (stating that "the constitutional error [resulting when Bruton applies and is violated] presents a serious risk that the issue of guilt or innocence may not have been reliably determined").
Def.'s Opening Br. at 27-28. This assertion by Fogg was raised for the first time in his Reply Brief in the Supreme Court on his appeal of this court's August 1, 2000 denial of his motion for postconviction relief.
523 U.S. 185 (1998) (holding that redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration leave statements that so closely resemble Bruton's undredacted statements as to warrant the same legal result).
481 U.S. 200 (1987) (holding that the Confrontation Clause of the Sixth Amendment is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant's name, but any reference to his existence).
Def.'s Opening Br. at 29.
Id. at 29-30.
Although he recognizes that the procedural bars of Superior Court Criminal Rule 61(i) would normally apply to defeat his claim (given that this court has previously ruled on Fogg's assertions of ineffective assistance of counsel), Fogg argues that he fits within several "exceptions" to that Rule. Citing Weedon v. State, Fogg argues that the Supreme Court "`clearly erred' in its initial disposition of the defendant's Bruton claim on direct appeal" because the Supreme Court "was apparently unaware. . .on direct appeal of the additional Bruton error arising. . .from the introduction of. . .[Andrus]'s statements. . .which alters the factual basis of the confrontation claim of the appellant here." Fogg also argues that the "equitable concerns of preventing injustice" enunciated in Weedon apply here.
750 A.2d 521 (Del. 2000) (holding that the procedural bar of Rule 61(i)(4) (former adjudication) is inapplicable where a previous ruling was clearly in error or there has been an important change in circumstances or when the equitable concern of preventing injustice arises).
Def.'s Opening Br. at 38 (emphasis in original).
Id.
Fogg also claims that the "prior bad acts" evidence that was introduced at trial through Fogg's 8:40 p.m. statement of April 5, 1995 (Fogg's prior drinking habits, short temper while drinking, kicking others while fighting, etc.) was "highly prejudicial. . .and in no sense. . .in. . .[Fogg]'s `best interest'." Fogg claims that the admission of this evidence violated the holding of Getz v. State and "functioned only to depict. . .[Fogg] as having a "bad character" and buttressing the evidence of his guilt in the incident involved here." Fogg therefore believes that this court "erred in its resolution of. . .[Fogg]'s ineffective-assistance claim in his post- conviction motion. . . ."
Id. at 31.
538 A.2d 726 (Del. 1988) (setting forth a six-point "guideline" to govern the admissibility of evidence of other crimes, wrongs, or acts under Delaware Uniform Rule of Evidence 404(b)).
Def.'s Opening Br. at 32 n. 24.
Id. at 32.
Fogg's final complaint regarding trial counsel's performance is that "this [c]ourt manifestly erred in its summary rejection of. . .[Fogg]'s claim that his trial counsel was ineffective for failing to request accomplice- liability instructions at trial." Fogg claims that "the jury should have been instructed under 11 Del. C. § 271(2)," and because it was instructed as to the lesser-included offenses of Murder Second Degree and Manslaughter, "the jury should have been instructed under 11 Del. C. § 274 . . . ." Fogg submits that "given the physical evidence that. . .[Andrus] was. . .[Dilley]'s principal assailant. . .[the jury] could have found. . .[Fogg] guilty of a lesser degree of homicide or even of a degree of assault." Fogg argues that counsel's failure to request accomplice liability instructions "fell below an objective standard of reasonableness." Fogg cites Murray v. Carrier for the proposition that ineffective assistance of counsel is "cause" for a procedural default under Superior Court Criminal Rule 61(i)(3).
Id. at 33.
That section provides that "A person is guilty of an offense committed by another person when: [i]ntending to promote or facilitate the commission of the offense the person [s]olicits, requests, commands, importunes or otherwise attempts to cause the other person to commit it; or [a]ids, counsels or agrees or attempts to aid the other person in planning or committing it; or [h]aving a legal duty to prevent the commission of the offense, fails to make a proper effort to do so[.]" DEL. CODE ANN. tit. 11 Del. C. § 271(2) (2001).
That section provides that "When, pursuant to § 271 of this title, 2 or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with that person's own culpable mental state and with that person's own accountability for an aggravating fact or circumstance." DEL. CODE ANN. tit. 11 Del. C. § 274 (2001).
Def.'s Opening Br. at 33.
Id. at 35.
Id. at 34.
477 U.S. 478 (1986) (holding that a federal habeas corpus petitioner could not show "cause" for a procedural default by establishing that his counsel, although competent, failed to raise a substantive claim through inadvertence rather than deliberation).
Def.'s Opening Br. at 24.
Fogg's Assertions Regarding Counsel's Representation on Appeal
Fogg's two principal arguments regarding his counsel's performance on direct appeal are that: 1) it is unrealistic to expect counsel to raise his own error committed at trial at the appellate level; and 2) the violations committed at trial were not harmless, contrary to the Supreme Court's finding of error having been "harmless beyond a reasonable doubt" in its affirmance of Fogg's direct appeal.Fogg argues that counsel's failure to raise the Bruton violations which occurred at trial as a claim of error on appeal "establish `cause' for. . .[Fogg]'s procedural default under Murray. . . ." Fogg maintains that "the Bruton violations. . .if pursued by a `reasonably competent' attorney, should have led to the reversal of his convictions by. . .[the Supreme Court] on appeal." Fogg contends that counsel's failure to raise on appeal the "improper admission" of the "prior bad acts" evidence admitted at trial through Fogg's statement to the police, and his failure to inform the Supreme Court that this court "failed" to give an accomplice liability instruction "was professionally unreasonable. . .[also] establishing `cause' under Murray. . . ."
Id. at 39.
Id. at 40.
Id.
Fogg advocates that "on the totality of the record," the Supreme Court erred when it concluded that the Bruton violation that occurred at trial "was `harmless beyond a reasonable doubt when considered in the context of the admissible evidence of Fogg's guilt'." To support his claim, Fogg argues that the jury "was. . .exposed to not only Richmond's improper in-court testimony, but also to. . .[Richmond's own handwritten notes of what Andrus had conveyed to him and the statement Richmond gave to the police]. . . ."; Fogg argues that "on the record here, the Bruton violation was far more devastating to. . .[Fogg] than the technical Bruton violation in [the] Schneble v. Florida [decision cited by the Supreme Court on appeal]." Fogg argues that the Supreme Court "was incorrect in its assertion that there was considerable `admissible evidence of. . .[his] guilt'."
Id. at 41.
Def.'s Opening Br. at 42.
405 U.S. 427 (1972) (holding that where defendant gave a "minutely detailed" confession "completely consistent with the objective evidence," and confessing codefendant who did not testify at trial gave a statement that "undermined" the defendant's earlier denial of having committed murder, introduction of codefendant's confession was "harmless error").
Def.'s Opening Br. at 43.
Id.
The State's Contentions
The chief argument the State makes in response to Fogg's contentions is that this court previously ruled on the asserted grounds for postconviction relief, and that the evidentiary hearing held in October 2001 "does not warrant reversal of any of. . .[this court's] decisions rejecting all of the previously asserted post-conviction relief claims."The State argues that Fogg's asserted claims are barred by Superior Court Criminal Rule 61(i). Specifically, the State contends that "Fogg's claims regarding prior bad acts evidence and the lack of an accomplice liability instruction are. . .procedurally defaulted under Del. Super. Ct. Cr. R. 61(i)(3) since they were not raised at trial or on direct appeal." The State advances that "Fogg's complaint about the Bruton violation stemming from Richmond's testimony is procedurally barred by Rule 61(i)(4) because it was previously adjudicated on direct appeal."
Id. at 21.
Id.
Regarding Fogg's "prior bad acts," the State argues that it was not error to admit the evidence of Fogg's earlier fights with Cathell because "that evidence at least in part showed motive and. . .[was] inextricably intertwined with other admissible evidence in the case." Citing Pope v. State for the proposition that when evidence is inextricably intertwined with other evidence no Getz analysis is required for its admission, the State argues "trial counsel was not ineffective for not requesting a limiting jury instruction." Additionally, the State points out that since "some prior bad acts evidence [i.e., Fogg's drinking at the Marlex Motel] was affirmatively offered by. . .[Fogg] as a strategic response to the apparent injury to. . .[his hand], it is difficult to see what additional harm resulted from other cumulative evidence that Fogg was involved in. . .other fighting. . .immediately prior to the homicide." In its examination of counsel's choice to affirmatively offer Fogg's prior bad act of drinking at the Marlex Motel, the State additionally comments that "while th[is] strategy was not free from risk, it was, nonetheless, a reasoned approach to anticipated trial evidence, including questions regarding how Fogg's hand had been injured." Reiterating that this court has already ruled on the propriety of counsel's tactic in so offering the Marlex Motel incident, the State concludes "there is no reason to reach a different result after the October 1[,] [2001] remand hearing."
Id. at 13.
632 A.2d 73 (1993) (holding that evidence of a "second" shoot-out and of a bank robbery for which defendant was not charged was admissible against him in his trial for a collision with a civilian vehicle occurring during his flight from robbing the bank and firing upon the pursuing police vehicle).
State's Answering Br. at 13.
Id. at 14.
State's Answering Br. at 17.
Id.
The State additionally posits that Fogg's prior bad act of kicking others during fights was "cumulative" because the jury "saw Fogg's videotaped statement wherein he admitted punching Dilley and heard about the physical evidence of `patterned injuries' to Dilley's body which were linked to Fogg and his skull face ring."
Id. at 15.
Regarding a possible redaction of the 8:40 p.m. statement Fogg gave to the police on April 5, 1995, the State asserts that "[s]ince four of the challenged statements are not statements of. . .[Fogg], but simply questions posed by the interrogating officers, it was obvious to Fogg's jury that those four police statements contained in the interrogation were part of the police interrogation technique and not evidence offered by any witness. . . ." The State also points out that this court "previously. . .credited trial counsel's affidavit wherein trial counsel stated that he did not see significant prejudice to Fogg in the exchange with the police requiring a trial objection to the questions," a fact the State now characterizes as "a choice made by trial counsel[,]. . .[a] strategy. . . ."
Id.
Id.
Regarding counsel's choice not to request a jury instruction on accomplice liability, the State points to the fact that its prosecution of Fogg and Andrus proceeded under a theory of conspiratorial rather than accomplice liability; the State concludes that since the jury found both Fogg and Andrus of Conspiracy First Degree, "[h]aving a separate instruction to the jury to determine whether or not the two defendants were also accomplices. . .would add nothing to the case except to provide an additional mechanism to find the two defendants guilty." The State argues that "trial counsel [therefore] can not be faulted for failing to request. . .an [accomplice liability] instruction."
State's Answering Br. at 18.
Id.
Regarding the admission of Andrus's statements to Detectives McLaren and Watson, the State argues in its "Answer to the Amended Motion for Postconviction Relief" that Fogg's claim of error is procedurally barred by Superior Court Criminal Rule 61(i)(2), while in its Answering Brief it argues Fogg's claim is procedurally barred by Superior Court Criminal Rule 61(i)(3). In any event, the State argues that counsel's performance was not "unreasonable" because the redactions to Andrus's statements "were in accordance with existing case law at the time [of trial]," i.e., before the United State Supreme Court decided Gray v. Maryland, supra.
See Exhibit "B" in Defendant's Appendix at 3-4.
That rule provides "[a]ny ground for relief that was not asserted in a prior postconviction proceeding. . .is thereafter barred, unless consideration of the claim is warranted in the interest of justice." Super. Ct. Crim. R. 61(i)(2).
State's Answering Br. at 20.
See State's Answering Brief at 20 and "Answer to the Amended Motion for Postconviction Relief" (Ex. "B" to Def.'s App.) at 2.
Regarding Fogg's claim of ineffective assistance of counsel, the State correctly articulates the standard for such claims to succeed, namely that Fogg must show that his "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 would have been different." The State also correctly identifies that "Fogg must rebut the `strong presumption' that [his] counsel's representation fell within the `wide range of professional assistance' and that. . .[this court] must eliminate the `distorting effect of hindsight' in assessing. . .[the] performance [of Fogg's former counsel]." The State argues that "[n]one of the alleged errors of counsel, either individually or collectively, were so substantial that the result of. . .[Fogg's] jury trial would have been different." The State asserts that Fogg's asserted claims of ineffective assistance of counsel "ignore the substantial evidence presented against. . .[him] and the fact that no reasonable alternative explanation was ever provided inasmuch as both. . .[Fogg and Andrus] declined to testify at their joint trial."
See State's Answering Brief at 22.
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
State's Answering Br. at 23 (quoting Strickland, 466 U.S. at 689).
State's Answering Br. at 23.
Id. at 24.
The State's summarizes its argument rebutting Fogg's asserted claims of ineffective assistance of counsel as follows:
It is the substantial nature of the incriminatory trial evidence that still exists regardless of the. . .alleged deficiencies in defense counsel's trial performance that was the basis for the jury's decision and that evidence remains regardless of the post-conviction claims now argued by Fogg. The jury was convinced beyond a reasonable doubt that Fogg and Andrus committed the homicide and none of the. . .claims of error by trial counsel, either individually or collectively, cast[ ] any reasonable doubt upon the validity of the jury's decision. Given the compelling trial evidence of guilt as to both defendants, Fogg has simply not met his burden of establishing ineffective assistance of counsel sufficient to entitle him to a new trial.
Id. at 26.
THIS COURT CONCLUDES, PURSUANT TO THE SUPREME COURT'S ORDER OF REMAND OF AUGUST 1, 2001, THAT FOGG DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL
In order to succeed on a claim of ineffective assistance of counsel, a defendant 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 would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
"A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that, under the circumstances, the challenged action `might be considered sound trial strategy'."
Id. at 689.
This court initially notes that the claims Fogg now makes, with the exception of the "new" claim relating to the admission at trial of Andrus's written statement, normally would be procedurally barred under the "former adjudication" rule of Superior Court Criminal Rule 61(i)(4); the claim relating to Andrus's statements being admitted at trial would normally be barred under the "repetitive motion" rule of Superior Court Criminal Rule 61(i)(2). Because Fogg alleges ineffective assistance of counsel, however, these procedural bars may potentially be overcome, either under the "interest of justice" exception contained within Rule 61(i)(4) itself, or under the "miscarriage of justice" exception contained in Rule 61(i)(5). But this court must bear in mind that it has already once ruled on Fogg's assertion of ineffective assistance of counsel, because under the "former adjudication" rule, an "ineffective assistance of counsel claim [already ruled upon] must be barred. . .unless. . .[the movant] can establish that reconsideration of the claim is warranted `in the interest of justice'."
That rule provides that the "repetitive motion" bar of Rule 61(i)(2) "shall not apply 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)(5).
Jackson v. State, No. 157, 1995, 1995 WL 439270, at *2 (Del.Supr. July 19, 1995).
The "Richmond Evidence"
Robert Richmond, then an inmate at the Delaware Correctional Center, was called as a witness by the State in its prosecution of Fogg. Richmond testified that he had met Andrus, Fogg's codefendant, while Andrus and Richmond were incarcerated in Gander Hill. The crux of Richmond's testimony was that Andrus had told him that the beating of the victim, James Dilley, had taken place in Andrus's living room before Andrus and Fogg dragged the victim to the bathroom to clean him up, and that Fogg had "gotten carried away" during the beating. Counsel for Fogg now notes that in addition to his live testimony, a transcript of a statement Robert Richmond gave to the police prior to Fogg's case coming to trial was admitted into evidence, and that that statement contained assertions not testified to at trial. Richmond's handwritten notes reflecting the same assertions Richmond gave to the police were also admitted at trial.As indicated above, the Supreme Court sua sponte identified the Bruton problem raised by Richmond's testimony before ruling that "the error in admitting into evidence [through Richmond] Andrus's statement incriminating Fogg was contrary to the holding of Bruton[,] but was harmless beyond a reasonable doubt when. . .considered in the context of the admissible evidence of Fogg's guilt." Thus the "former adjudication" bar of Rule 61(i)(4) would normally apply to prevent relitigation of the propriety of admitting into evidence Richmond's testimony and written statement.
Fogg, 1998 WL 736331, at *4 (citation omitted).
In his effort to defeat the application of the procedural bar, Fogg alleges ineffective assistance of trial counsel in that his counsel's failure to object to or discern the Bruton issue relating to Richmond's testimony fell below an objective standard of reasonableness and prejudice resulted from this. However, insofar as Richmond's trial testimony is concerned, Fogg's counsel has already stated in the affidavit he submitted in connection with Fogg's postconviction motion that counsel "balanced" Richmond's testimony and the fact that the conversation between Richmond and Andrus took place in prison before concluding that the jury would find little credibility in Richmond's testimony. Regarding Richmond's statement that was admitted into evidence, the above-cited trial transcript demonstrates that Fogg's counsel wanted to have the statement put into evidence because Richmond stated that there was an attempt by Fogg and Andrus to revive Dilley, a fact Fogg's counsel considered important to Fogg's defense because it showed compassion on Fogg's part.
James A. Bayard, Jr. Aff. of Nov. 15, 1999 § 1 (Ex. "J" to Def.'s App.).
Trial Tr. of 4/30/96 at 66 (Ex. "D" to Def.'s App.).
This court previously ruled in its August 1, 2000 decision on Fogg's postconviction motion that Fogg's asserted claim of ineffective assistance of counsel relative to the introduction of Andrus's statement through the testimony of Robert Richmond was barred by the "former adjudication" rule of 61(i)(4), given that the Supreme Court had determined that the inclusion of such testimony at trial was harmless error. Additionally, counsel for Fogg made a strategic choice to introduce Richmond's written statement, as counsel believed that the statement demonstrated compassion on Fogg's behalf. Given that "a court must indulge a strong presumption that, under the circumstances. . .[a] challenged action `might be considered sound trial strategy'," this court finds that such an action was not unreasonable. Accordingly, Fogg's claim of ineffectiveness as it relates to the Richmond evidence is unavailing given the bar of Rule 61(i)(4) and the fact that counsel made strategic choices at trial that appear to this court to have been not unreasonable. Fogg's 8:40 p.m. Statement of April 5, 1995
Fogg, 2000 WL 1211510, at *2.
Strickland, 466 U.S. at 689.
Fogg claims that the "prior bad acts" evidence that was introduced at trial through Fogg's 8:40 p.m. statement on April 5, 1995 (Fogg's prior drinking habits, short temper while drinking, kicking others while fighting, etc., and the videotape of same) violated Getz and that his counsel was therefore ineffective for not seeking to exclude or limit that evidence. Fogg additionally argues that his counsel's failure to raise the issue on direct appeal further illustrates the "unreasonableness" of his counsel's performance. This court again notes that these issues were considered in this court's August 1, 2000 postconviction decision.
Fogg's counsel testified that Fogg's statement to Detective McLaren (in which Fogg related he had previously kicked people during fights and that his temper was short when he was drinking) was insignificant, as the "overbearing nature" of the police during the interview "brought into serious question the credibility of all information derived from that interview." While trial counsel testified at the evidentiary hearing that he did not make a strategic decision to permit the statement to be introduced in unredacted form (and also indicated in his affidavit that he did not "consider or weigh" the statements by the police officers interrogating Fogg), counsel did indicate in his affidavit that he "did not see a significant prejudice to. . .[Fogg] from that exchange of police accusation and. . .[Fogg]'s response."
James A. Bayard, Jr. Aff. of Nov. 15, 1999 § 4 (Ex. "J" to Def.'s App.).
Id.
This court sees no reason why it should alter its previous ruling that Fogg "has not met the second prong of Strickland because he has failed to show how. . .redactions [to the 8:40 statement Fogg gave] would have resulted in a different outcome," and that counsel's inadvertence did not amount to "cause" because Fogg had "failed to show that trial counsel's strategic choice. . .not to redact. . .was unreasonable." "Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice," because attorney errors "come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial." Fogg's claim on this ground is procedurally barred because he has failed to show the requisite prejudice.
Fogg, 2000 WL 1211510, at *5.
Strickland, 466 U.S. at 693.
Adams's Statements
Cheryl Adams testified at trial that Fogg had gotten drunk in the motel room where she resided and then trashed the room on the night immediately before Andrus's party. Fogg now claims, as he did in his postconviction motion, that admission of this "prior bad acts" evidence was prejudicial, and that his counsel was ineffective for not objecting to (and in fact offering some of) Adams's testimony. In his affidavit, trial counsel explained that he balanced "the prior bad act and a comment on . . . [Fogg]'s character against an explanation of how. . .[Fogg] suffered a hand injury prior to the beating death of. . .[Dilley]." The State is correct in its statement that "while th[is] strategy was not free from risk, it was, nonetheless, a reasoned approach to anticipated trial evidence, including questions regarding how Fogg's hand had been injured." Fogg has therefore failed to prove cause and this court finds no reason to depart from its previous ruling to that effect.
James A. Bayard, Jr. Aff. of Nov. 15, 1999 § 5 (Ex. "J" to Def.'s App.).
State's Answering Br. at 17.
Evidence of Fogg's Fights with John "Dwayne" Cathell
The jury heard evidence of Fogg's two fights with Cathell the night before Dilley was found dead in that "Fogg provoked Cathell into fighting by kicking Cathell's leg and knocking his hat off," and that later the "party moved down to the basement where Cathell and Fogg fought again." Fogg claims that the admission of this evidence violated the holding of Getz and demonstrates his counsel's ineffectiveness. The State responds that this argument is procedurally barred by Rule 61(i)(3) since it was not raised at trial or on direct appeal, and that the evidence "at least in part showed motive and . . . [was] inextricably intertwined with other admissible evidence in the case." The State additionally argues that "trial counsel was not ineffective for not requesting a limiting jury instruction," and that since "some prior bad acts evidence [i.e., Fogg's drinking at the Marlex Motel] was affirmatively offered by . . . [Fogg] as a strategic response to the apparent injury to . . . [his hand], it is difficult to see what additional harm resulted from other cumulative evidence that Fogg was involved in . . . other fighting . . . immediately prior to the homicide."
Fogg, 1998 WL 736331, at *1.
State's Answering Br. at 13 (citing Pope v. State, 632 A.2d 73 (1993) (holding that evidence of a "second" shoot-out and of a bank robbery for which defendant was not charged was admissible against him in his trial for a collision with a civilian vehicle occurring during his flight from robbing the bank and firing upon the pursuing police vehicle)).
State's Answering Br. at 13.
Id. at 14.
Counsel for Fogg testified that he "concluded that. . .[Fogg] couldn't do anything to stop. . .[the earlier fight evidence] from coming in," and that he could not recall whether Getz required a limiting instruction to be given when "prior bad acts" evidence is admitted. Counsel testified that he "recognized that. . .[the earlier fight evidence] was something that. . .wasn't remote," and that the fighting "show[ed] motive and. . .it was going to come in."
See Hr'g Tr. of 9/1/01 at 24-26 (Ex. "K" to Def.'s App.).
Id. at 34-35.
This court, in conducting a review under Getz and Deshields v. State finds that it would have admitted the evidence of Fogg's fights with Cathell even over an objection raised by Fogg. Additionally, this court finds it did not err when it "failed" to give either a contemporaneous or closing limiting instruction relative to this unobjected-to "prior bad acts" evidence.
706 A.2d 502 (Del. 1998) (stating that there are "at least nine" factors that a court should consider in applying the Rule 403 balancing test to Rule 404(b) evidence and then listing them).
The State is incorrect in its assertion that for "inextricably intertwined" 404(b) evidence no Getz analysis is required, as it is "only if the evidence of uncharged misconduct. . .is not admissible pursuant to. . .D.R.E. 404(b), or for any other consistent purpose, that a trial judge may consider the admissibility of such evidence pursuant to the. . .`inextricably intertwined' doctrine." Pope, 632 A.2d at 76 (citations omitted).
The court notes that counsel may choose not to request "cautionary" jury instructions "for tactical reasons [in order] to avoid emphasis. . . ." Major v. State, No. 26, 1994, 1995 WL 236658 (Del.Supr. Apr. 20, 1995). In fact, Mr. Bayard testified that he did not request such a limiting instruction specifically for that reason. See note 39, supra, and accompanying text.
Applying the Getz and Deshields factors, this court finds that the "prior bad acts" evidence complained of was material in that it tended to show state of mind or motive (which are both purposes sanctioned implicitly or explicitly by of Rule of Evidence 404(b)), there was in fact plain, clear and conclusive evidence of the acts being done by Fogg and such acts were not remote in time and were undisputedly done, the probative force of the evidence was high insofar as showing Fogg's motive or state of mind relative to the death of Dilley, and such acts were capable of proof without unnecessarily prolonging the proceedings. Fogg's counsel was therefore not ineffective for failing to limit or exclude the evidence relating to Fogg's prior fights with Cathell. Additionally, there is no requirement of the giving of a contemporaneous limiting instruction in every case involving evidence of other wrongs under 404(b), and when a trial judge has determined that evidence can be admitted under 404(b), it is not plain error for the judge fail to give a limiting instruction at the end of the case.
That rule provides that evidence of other crimes, wrongs or acts may be admitted "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." D.R.E. 404(b).
O'Connor v. State, No. 457, 1988, 1990 WL 72606 (Del.Supr. Apr. 26, 1990).
Wooters v. State, No. 258, 1992, 1993 WL 169129 (Del.Supr. Apr. 23, 1993).
Because Fogg's counsel was not ineffective on this point, the State is correct in asserting that Fogg's argument is procedurally barred by Rule 61(i)(3) since it was not raised at trial or on direct appeal.
Superior Court Criminal Rule 61(i)(3) provides that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction. . .is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights."
Andrus's Written Statement
As stated above, Fogg raised a new claim of ineffective assistance of counsel in his Reply Brief in the Supreme Court in his appeal of this court's August 1, 2000 decision denying and dismissing his motion for postconviction relief. The new claim involves the admission at trial of a partially redacted statement given by Andrus to the police that mentions Fogg by name in several parts. In its discretion, and because Fogg raised the issue in his Reply Brief in the Supreme Court, this court permitted Fogg to include a claim in this second remand that that evidence violated Bruton and its progeny. Consideration of the United States Supreme Court's Confrontation Clause jurisprudence as it relates to this case is warranted because Andrus did not testify at trial.In Bruton v. United States, the Supreme Court held that a defendant was deprived of his rights under the Confrontation Clause of the Sixth Amendment when his nontestifying codefendant's confession naming the defendant as a participant in a crime was introduced at their joint trial, even though the jury was instructed to consider that confession only against the codefendant. The Court's rationale for so holding was that it was incorrect to assume that a jury would follow instructions to disregard the "powerfully incriminating extrajudicial statements of a co-defendant who stands accused side-by-side with the defendant."
391 U.S. 123 (1968).
Id. at 135-36.
The Supreme Court revisited Bruton in Richardson v. Marsh when it held that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant's name, but any reference to his existence. In so doing, the Court rejected a "contextual implication analysis" (which requires an examination of a confession in the context of all of the evidence admitted at trial followed by a determination of whether the confession incriminates any jointly-tried defendant) insofar as a case involves a non-testifying codefendant's confession that has been redacted to remove all reference to the existence of accomplices. The Court's reasoning was predicated on the fact that where a codefendant's statement only incriminates a defendant when linked with other evidence, it is "a less valid generalization that the jury will not likely obey the instruction to disregard the evidence."
481 U.S. 200 (1987).
See Richardson at 208-211.
Richardson, 481 U.S. at 208.
In Gray v. Maryland, the Supreme Court held that redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration leave statements that so closely resemble Bruton's unredacted statements as to warrant the same result as Bruton. The Court found that the holding of Richardson did not apply because in contrast to the incriminatory statements in Richardson, the incriminatory statements involved in Gray were statements that, despite redaction, obviously referred to someone, most often the nontestifying defendant.
523 U.S. 185 (1998).
See Gray at 195-97.
The Supreme Court has held, however, that not all trial errors which violate the Constitution automatically call for a reversal, and that where evidence bearing upon a defendant's guilt is overwhelming and a codefendant's statements improperly admitted at trial are merely cumulative, any error the trial court committed is harmless beyond a reasonable doubt. (Similarly, the Delaware Supreme Court has held that upon a finding that a defendant's constitutional rights were violated, the reviewing court must "weigh the significance of the error against the strength of the untainted evidence of guilt to determined whether the error may have affected the judgment.") Whether a Confrontation Clause error is harmless beyond a reasonable doubt "depends on a host of factors," including "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and. . .the overall strength of the prosecution's case."
Chapman v. California, 386 U.S. 18 (1967).
Schneble v. Florida, 405 U.S. 427 (1972) (holding that where defendant gave a "minutely detailed" confession "completely consistent with the objective evidence," and confessing codefendant who did not testify at trial gave a statement that "undermined" the defendant's earlier denial of having committed murder, introduction of codefendant's confession at trial was "harmless error"); see also Harrington v. California, 395 U.S. 250 (1969) (holding that where three of four jointly-tried codefendants confessed implicating non-testifying fourth codefendant and those confessions were introduced at trial with a limiting instruction, the fact that non-testifying codefendant could not question two of the three confessing codefendants because they did not testify at trial was harmless error because of "overwhelming evidence" of defendant's guilt, including defendant's. . .
Van Arsdall v. State, 524 A.2d 3, 11 (Del. 1987) (holding that a "blanket" restriction on a defendant's right to cross-examine a witness for bias violated the defendant's confrontation right, and that such a violation was not harmless).
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (vacating Supreme Court of Delaware's earlier decision that trial court's denial of defendant's opportunity to impeach prosecution witness for bias, while a violation of defendant's confrontation rights, was not subject to harmless error analysis).
Fogg claims in this court that the Andrus statements admitted into evidence violated Bruton's holding because the redactions were "made by deleting most of the portions. . .which implicated. . .[Fogg], leaving blank spaces in the transcripts"; Fogg argues that this court "failed to give the jury a proper limiting instruction," as required by Richardson v. Marsh, supra, and that the redactions employed were in contravention of Gray v. . . .admission that he was present at the scene of the crime, and because non-testifying fourth codefendant had opportunity to cross-examine one confessing codefendant who testified at trial). Maryland, supra. The State responds with the argument that counsel's performance was not unreasonable because the redaction to Andrus's statements "were [done] in accordance with existing case law at the time [i.e., Richardson]."
Def.'s Opening Br. at 27-28.
Id. at 29.
See State's Answering Brief at 20 and "Answer to the Amended Motion for Postconviction Relief" (Ex. "B" to Def.'s App.) at 2.
This court finds that, despite Fogg's urging, the statement Andrus gave which was admitted into evidence does not fall under Bruton or its progeny. Bruton protects against "powerfully incriminating" out-of-court statements of a co-defendant such as the introduction at a joint trial of a nontestifying codefendant's confession naming another nontestifying codefendant as a participant in a crime; while Robert Richmond's testimony fits within the protection of Bruton, this court cannot say the same for the introduced statement that Andrus made. And under the Court's reasoning in Richardson, supra (where it was found to be a "less valid" generalization that a jury will not obey an instruction to disregard evidence of a codefendant's statement that only incriminates a defendant when linked with other evidence), Fogg's assertion is still unavailing; Andrus's statement, rather than being a confession incriminating Fogg, tends to exculpate Fogg in that it shows that neither Fogg nor Andrus were aware of what actually happened to Dilley (apart from placing Fogg in Andrus's residence at the end of the night with Andrus and Dilley — a fact already testified to by Cheryl Adams, among others). Finally, courts generally have tended to hold that Gray does not have retroactive application, so Richardson controls.
See, e.g., United States v. Gio, 58 F. Supp.2d 920 (N.D.Ill. 1999) (holding that "the rule in Gray may not be applied retroactively"); United States v. Sanin, 252 F.3d 79 (2d Cir. 2001) (holding that Gray was not to be applied retroactively and thus a defendant convicted before Gray was decided was procedurally barred from relying on Gray in his motion to vacate sentence); Garcia v. United States, 278 F.3d 1210 (11th Cir. 2002) (holding that Gray was not to be given retroactive application because it "was an application of Bruton's principles, protecting the same interests in essentially the same terms.").
Because this court finds that Fogg's argument that Andrus's statement admitted at trial was not subject to Bruton, it need not reach Fogg's argument that the additional Bruton error he claims arises from the introduction of that statement alters the "factual basis" under Weedon. Even if Bruton were found to apply, this court believes that the introduction of Andrus's statement would be subject to the same harmless error standard as was Richmond's testimony at trial. Accordingly, this court finds that Fogg's "new" claim relating to the introduction of Andrus's statement is procedurally barred under Rule 61(i)(2) because it was not asserted in a prior postconviction proceeding, there is no colorable claim that there was a "miscarriage of justice," and consideration of the claim is not warranted "in the interest of justice."
That rule provides "[a]ny ground for relief that was not asserted in a prior postconviction proceeding. . .is thereafter barred, unless consideration of the claim is warranted in the interest of justice." Super. Ct. Crim. R. 61(i)(2).
Lack of an Accomplice Liability Instruction
Fogg previously asserted in his motion for postconviction relief that this court "erred by failing to instruct the jury on accomplice liability"; in ruling that this claim was procedurally barred by the "procedural default" rule of Rule 61(i)(3), this court noted that no party "requested an accomplice liability instruction and none was given," and that this claim was "raised for the first time in. . .[Fogg]'s Motion for Postconviction Relief as it was not raised on direct appeal." This court further found that Fogg had failed to articulate an "external impediment" which had prevented him "from raising this ground in the proceedings leading to the judgment of conviction." This court denied Fogg's contention that his counsel's failure to request an accomplice liability instruction amounted to ineffective assistance, as Fogg failed to show how his counsel's representation fell below an objective standard of reasonableness because the court "instructed the jury on lesser included offenses and no other attorney requested. . .[an] accomplice liability instruction."
Id.
Fogg, 2000 WL 1211510, at *2.
Id. at *3.
In the briefs he submitted following the evidentiary hearing, Fogg claims that "this [c]ourt manifestly erred in its summary rejection of. . .[Fogg]'s claim that his trial counsel was ineffective for failing to request accomplice-liability instructions at trial," and that the jury should have been instructed under title 11, sections 271(2) and 274 of the Delaware Code.
That section provides that "A person is guilty of an offense committed by another person when: [i]ntending to promote or facilitate the commission of the offense the person [s]olicits, requests, commands, importunes or otherwise attempts to cause the other person to commit it; or [a]ids, counsels or agrees or attempts to aid the other person in planning or committing it; or [h]aving a legal duty to prevent the commission of the offense, fails to make a proper effort to do so[.]" DEL. CODE ANN. tit. 11 Del. C. § 271(2) (2001).
That section provides that "When, pursuant to § 271 of this title, 2 or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with that person's own culpable mental state and with that person's own accountability for an aggravating fact or circumstance." DEL. CODE ANN. tit. 11 Del. C. § 274 (2001).
In response to this court's finding that he failed to articulate an "external impediment" which prevented him from raising this ground on direct appeal, Fogg relies on Murray v. Carrier for the proposition that ineffective assistance of counsel is "cause" for a procedural default.
477 U.S. 478 (1986) (holding that a federal habeas corpus petitioner could not show "cause" for a procedural default by establishing that his counsel, although competent, failed to raise a substantive claim through inadvertence rather than deliberation).
The State responds that its prosecution of Fogg and Andrus proceeded under a conspiracy rather than accomplice theory. The State argues that Fogg's counsel was not ineffective for not requesting an accomplice liability instruction because such an instruction "would add nothing to the case except to provide an additional mechanism to find the two defendants guilty."
State's Answering Br. at 18.
Fogg's counsel testified at the evidentiary hearing that "there was a vicarious liability between the two defendants," and that this court had "provided. . .jury instructions that included lesser-includeds," which counsel believed "took care of the issue." In fact, this court, in addition to Murder First Degree and Conspiracy First Degree, also instructed the jury that it could find each codefendant liable for the offenses of Murder Second Degree, Manslaughter, or Conspiracy Second Degree. This court also instructed the jury using the "State of Mind" Superior Court criminal jury instruction so that the jury was aware that it would need to determine the degree of culpability of each codefendant separately relative to the offenses the jury found each one guilty of.
Hr'g Tr. of 9/1/01 at 42-43.
Once a principal-accomplice relationship in a homicide crime is established, a jury must determine what degree of guilt is compatible with each defendant's own mental state. The practical effect of such an instruction is akin to the effect of the instructions that were in fact given in this case, i.e., as part of the jury's determination that Fogg was or was not a conspirator with Andrus, "it [c]ould assess. . .[his] degree of culpability in accordance with the hierarchy of instructions given. . . ." Chance had not yet been decided when this case was tried. For these reasons, Fogg's counsel was not ineffective for not requesting an accomplice liability instruction.
See Chance v. State, 685 A.2d 351 (Del. 1996) (en banc) (holding that trial court did not commit plain error by failing to instruct the jury to separately assess each codefendant's culpability in homicide crime because if the jury had found that a principal-accomplice relationship existed between codefendants, each could be held individually responsible for homicide without specifically intending death).
Chance, 685 A.2d at 360-61.
While under Murray ineffective assistance of counsel may be "cause" for a procedural default, Fogg has failed here to demonstrate that his counsel was in fact ineffective. As such, Fogg has failed to articulate an "external impediment" which prevented him from timely raising this ground. This claim is therefore procedurally barred by the "procedural default" rule of Rule 61(i)(3), as this claim was raised for the first time in Fogg's postconviction motion and not on direct appeal.
The Real Evidence Adduced at Trial and the Supreme Court's Finding of Harmless Error
Fogg advocates that "on the totality of the record," the Supreme Court erred when it concluded that the Bruton violation that occurred at trial "was `harmless. . .when considered in the context of the admissible evidence of Fogg's guilt'." Fogg argues that "on the record here, the Bruton violation was far more devastating to. . .[Fogg] than the technical. . .violation in Schneble v. Florida [decision relied upon by the Supreme Court on direct appeal]." Fogg argues that the Supreme Court "was incorrect in its assertion that there was considerable `admissible evidence of. . .[his] guilt'."
Def.'s Opening Br. at 41.
Id. at 43.
Id.
The State responds that "[n]one of the alleged errors of counsel, either individually or collectively, were so substantial that the result of. . .[Fogg's] jury trial would have been different." The State posits that the jury was convinced beyond a reasonable doubt that Fogg and Andrus killed Dilley, as the "substantial" evidence apart from the "alleged deficiencies in defense counsel's performance. . .remains. . . ."
State Answering Br. at 23.
Id. at 26.
As stated above, the State medical examiner that testified at trial described the "tremendous" amount of force that was needed to inflict the injuries upon Dilley from which he died; Dr. Perlman related in her statement that Dilley's injuries were caused by his "being stomped on multiple times. . .within a reasonable degree of medical certainty. . .by the [single black] boot. . .examined at the time of autopsy." Although that single black boot was never positively identified as having been worn by Fogg, an inference could be made that Fogg in fact wore the boot while kicking and stomping Dilley to death, particularly in light of the fact that Andrus was partially paralyzed and possibly would not have been able to kick with any real force. Fogg's counsel himself realized this when he testified at the evidentiary hearing that although Fogg's own boot marks were not shown on Dilley's body, "when one sees Andrus and Fogg, one can quickly guess where a lot of the damage came from just owing to the disparity in their sizes." Fogg's counsel also acknowledged that this case was difficult for him to defend in part because of Fogg's admission that he had struck Dilley, and in part because of the way Dilley's "dental plate was kind of strewn up and down the hallway. . .[and there was] blood. . .in the bathtub. . .hallway. . . bedroom. . .living room. . .[and on the] walls. . . ."
Postmortem Findings of Dr. Adrienne Perlman at 7 (Ex. "H" to Def.'s App.).
Fogg is a much larger person than Andrus.
Hr'g Tr. of 9/1/01 at 63.
Id. at 79-80.
This court cannot say that Fogg's prosecution was totally without error, both on behalf of counsel, and on behalf of the court. This court finds, however, that the jury could reasonably have convicted Fogg based on the evidence properly adduced at trial. On the "totality of the record," this court cannot say that Fogg's counsel was ineffective. Fogg was entitled "to a fair trial but not a perfect one." The court therefore finds no reason to disturb the finding of the jury.
Bruton, 391 U.S. at 135 (citations omitted).
CONCLUSION
For all of the reasons stated above, and after holding an evidentiary hearing "to consider the allegations of ineffective assistance of counsel," this court determines that Fogg has failed to demonstrate that his counsel was ineffective.
This court is quite aware that the Supreme Court remanded this case to this court over one year ago. However, there are several reasons for the delay, which this court believes appropriate to set forth. On September 27, 2001, Andrus filed a motion for postconviction relief; one of the claims in that motion was an alleged Brady violation in connection with Robert Richmond's trial testimony (Andrus asserted that Richmond had received certain promises from the State in exchange for his testimony and that the State did not disclose this fact to Andrus). This court permitted Fogg to join in Andrus's claim of the alleged Brady violation. A hearing on this issue was scheduled for January 25, 2002. Counsel for Fogg, Andrus, and the State all agreed that any final decision by this court in connection with Fogg's motion for postconviction relief should also include a ruling on both codefendants' Brady claim in the interests of judicial economy. After considerable delay in locating Richmond (he was no longer in the Delaware correctional system at that time), Richmond was finally located in Georgia in mid-March through the efforts of a private investigator hired by Andrus. Following the locating of Richmond, there was a difficulty in extraditing him to Delaware to testify relative to Andrus's (and Fogg's) Brady claim. A second hearing was scheduled for June 17, 2002 at which time it was thought that Richmond would have been extradited back to Delaware. That hearing was cancelled when Richmond had not been brought back to Delaware; Richmond has still not been extradited to Delaware.
During the ensuing delay, counsel for Fogg and Andrus considered how letters that Richmond allegedly wrote and which formed the basis of the Brady claims now asserted by each codefendant might otherwise be admitted into evidence on the postconviction motions in lieu of Richmond's live testimony. At an office conference held on June 10, 2002, Fogg withdrew his request that a decision on his motion for postconviction relief be postponed until Richmond testified on the Brady issue. Fogg instead sought admittance of the Richmond letters. Contemporaneously herewith, this court has issued an order denying Fogg's request that those letters be admitted into evidence incorporating by reference a bench ruling made on June 17, 2002, the date on which the court and the parties anticipated hearing live testimony from Robert Richmond. In connection with his postconviction motion, Andrus has not waived his claimed right to Richmond's live testimony. Andrus's motion for postconviction relief (in which he claims violations of his right against self-incrimination due to the admission of certain recorded statements and through the prosecutor's commenting on his "lack of remorse" in closing argument; violation of his due process rights because of the "misleading" testimony Dr. Perlman gave at trial regarding her qualifications; violation of his right to have the evidence of his prior fight with Dilley excluded; and ineffective assistance of counsel) is currently being briefed in this court.