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refusing to address "vague allegation" in motion for postconviction relief because the court could not "discern what defendant maintains is a wrong."
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Cr. A. Nos. S95-03-0572 and -0573, R1.
Date Submitted: October 15, 1999
January 27, 2000.
John A. Keperling, Jr.
James W. Adkins
Dear Mr. Keperling and Mr. Adkins:
Pending before the Court is the motion of defendant John A. Keperling ("defendant") for postconviction relief filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). The State of Delaware ("the State") and defendant's trial attorney ("trial counsel") have filed affidavits in response to the Rule 61 motion.
Both Merritt Burke, III, Esquire and Thomas D.H. Barnett, Esquire were defendant's trial attorneys. However, Mr. Burke was lead counsel, and he filed the affidavit. The term "trial counsel" references Mr. Burke only.
Defendant has asked that counsel be appointed to represent him in this Rule 61 proceeding. The motion at hand does not present complex matters, and since the claims are meritless, there is no need for the appointment of counsel. Thus, I deny defendant's request for appointment of counsel.
This constitutes my decision on the pending motion.
FACTS
On April 17, 1995, defendant was indicted on charges of murder in the first degree and possession of a deadly weapon during the commission of a felony in connection with the death of defendant's mother, Judith R. Irvine. After a five day trial, defendant was found guilty as charged on both counts. On October 18, 1996, defendant was sentenced as follows. As to the murder in the first degree conviction, he was sentenced to Level V for the remainder of his natural life. As to the conviction for possession of a deadly weapon during the commission of a felony, he was sentenced to Level V for a period of twenty (20) years, which sentence is to be served consecutive to the murder in the first degree sentence.
Defendant appealed his conviction. Trial counsel represented him on appeal. The sole issue pursued on appeal was that the Superior Court abused its discretion by permitting the projection of four autopsy photographic slides during the testimony of the Deputy Chief Medical Examiner. Keperling v. State, Del. Supr., 699 A.2d 317 (1997). The Supreme Court ruled that the Superior Court properly exercised its discretion in allowing the State to display the questionable slides to the jury, and it affirmed the judgments of the Superior Court. Id. at 320. The Supreme Court issued its mandate on September 30, 1997, and that is the date the direct appeal process was complete for purposes of Rule 61.Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995).
On August 31, 1999, defendant filed his first motion for postconviction relief. In that document, he sets forth three bases for the motion: ineffective assistance of counsel; suppression of favorable evidence by a prosecutor; and change in the original search warrant by an unknown source. The Court also considers, in this Rule 61 motion, a letter dated August 12, 1999, which defendant filed. In that letter, defendant asserts as grounds for postconviction relief that the State used circumstantial evidence to convict him; he was tried in prison garb; and his counsel was ineffective in numerous ways.
This argument is totally meritless. The State has every right to use circumstantial evidence to convict a defendant. See Cannon v. State, Del. Supr., No. 467, 1992, Walsh, J. (February 3, 1994) at 4 ("[A] guilty verdict may be supported solely by circumstantial evidence."). The Court will not address such a patently frivolous argument.
DISCUSSION
A) PROCEDURAL BARS
This Court first must determine if there are any procedural bars to the claims in the postconviction relief motion, and if there are, the Court must apply them. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990)
There is no time bar for this motion since it was brought within three years from the date when the conviction became final. Rule 61(i)(1). See Jackson v. State, 654 A.2d at 833. In addition, since this is the defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply.
In Rule 61(i)(2), it is provided:
(i) Bars to relief. ***
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice.
However, the procedural bar of Rule 61(i)(3) applies to several claims. Therein, it is provided:
Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows: (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant's rights.
As explained in Downes v. State, Del. Super., Cr. A. No. 94-09-0152, et al., Graves, J. (August 12, 1999) at 3: "This is a two-pronged requirement imposed upon the defendant, and if he fails to satisfy either the cause prong or the prejudice prong, then the procedural bar shall apply."
If a defendant fails to raise an issue on direct appeal, then he is procedurally barred from raising it in a postconviction motion unless he can demonstrate "`some external impediment' which prevented him from raising the claim in a timely fashion."Id. at 4. As the Court further explained at page 4:
To avoid the bar of procedural default due to not presenting a claim earlier, the defendant may show that the Court lacked jurisdiction. He may also show that he has a colorable claim that there was a miscarriage of justice due to a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to his conviction.
I now examine each ground which defendant has asserted; determine whether the ground is procedurally barred; and if not, I consider the ground on its merits.
B) Grounds for Postconviction Relief
1) Ground One: Suppression of favorable evidence by prosecutor
Defendant alleges that the prosecution withheld fingerprint findings, it withheld DNA evidence, and it did not mention other evidence.
This ground is procedurally barred because defendant did not raise it on direct appeal. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists. Id. Finally, as more fully discussed below, even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
First, defendant alleges "other evidence not mentioned." Defendant does not specify what this other evidence is. The Court will not address conclusory statements. Younger v. State, 580 A.2d at 555. Thus, this allegation fails.
Defendant further asserts that the State withheld fingerprint findings and DNA evidence. The State maintains in its affidavit that no fingerprint evidence and no DNA evidence were withheld. The State also details what evidence was found and what information was provided to defendant; those details establish no fingerprint and no DNA evidence were withheld. The record shows that defendant's assertions are unfounded. These allegations fail.
For the foregoing reasons, this ground fails.
2) Ground two: The original search warrant was changed by unknown source
Again, this ground is procedurally barred because defendant failed to raise this issue at trial and on appeal. Rule 61(i) (3). In addition, defendant has failed to establish that an exception to the procedural bar exists. Id. Furthermore, even if he should establish cause for his failure to raise the issue earlier, he would fail to establish prejudice.
In its affidavit, the State explains that there were four search warrants in this case and none were changed in substance without being initialed and dated by the Chief Investigating Officer, Gregory D. Nolt. The State details these changes and the initiallings.
The record is clear that there is no basis for defendant's assertion that the original search warrant was changed by an unknown source. This ground is denied.
3) Ground three: Defendant was tried in prison garb
Defendant was tried in his prison clothes. Trial counsel explains that defendant never requested street clothes.
This ground is procedurally barred. Rule 61(i)(3). Defendant should have objected to being tried in prison garb at the trial level and should have pursued that matter through the appeal. SeePayne v. State, Del. Supr., 367 A.2d 1010, 1018 (1976). He makes no attempt to overcome this procedural deficiency. Thus, this claim is barred.
4) Ground four: Ineffective assistance of counsel
Defendant has a litany of complaints regarding trial counsel's representation. After setting forth the standard to be applied to such a claim, I will consider each claim individually.
I turn to State v. Gattis, Del. Super., Cr.A. Nos. IN90-05-1017 et al., Barron, J. (December 28, 1995) at 7-9, aff'd, Del. Supr., 697 A.2d 1174 (1997), for setting forth the standard to apply to such a claim:
This type of claim is normally not subject to the procedural default rule, in part because the Delaware Supreme Court will not hear such a claim for the first time on direct appeal, and therefore as a practical matter the first opportunity to raise this issue is in a collateral attack such as the Rule 61 motion for postconviction relief. [Citations omitted.] For this reason, many defendants . . . allege ineffective assistance of trial counsel in order to overcome the procedural default.
However, this path creates confusion for the defendant if he does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. For example, the United States Supreme Court has stated that
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth amendment itself requires that responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.' Ineffective assistance of counsel, then, is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986) (emphasis added). A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two-part analysis enunciated in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Delaware Supreme Court in Albury v. State, Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant to show first that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Strickland at 687. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional errors the outcome of the proceedings would have been different, that is, actual prejudice. Id. at 694. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. [Citations omitted.]
Generally, the claim for ineffective assistance fails unless both prongs of the test have been established. Strickland at 687. However, the showing of prejudice is so central to this claim that the Strickland Court stated that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697. In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone.
Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation." Strickland at 689.
I now apply that law to the claims asserted.a) Trial counsel failed to call witnesses on defendant's behalf.
Defendant asserts as follows regarding the calling of witnesses. First, he generally states that trial counsel was to call witnesses on his behalf, but failed to do so. He further asserts that trial counsel should have located and called a key witness on his behalf because "[t]his witness was pertinent to [his] case and whereabouts along with other key information."
Defendant has not set forth any names of witnesses whom he requested trial counsel to call nor has he explained to what these uncalled witnesses would have testified. The absence of these concrete allegations precludes consideration of this claim.Younger v. State, 580 A.2d at 555; Tice v. State, Del. Supr., No. 346, 1995, Berger, J. (November 13, 1995) at 7. This claim fails.
b) Trial counsel failed to fulfill his promise to send defendant copies of the court transcripts.
Even if true, the failure to send defendant copies of the court transcripts could not have had any impact on the outcome of the proceedings and cannot constitute an attack on the judgment of conviction; thus, it is not a valid claim for relief pursuant to Rule 61. See State v. Bratcher, Del. Super., Cr. A. Nos. IK95-07-0592-R1 — 0594-R1, Maybee, Comm. (June 16, 1998),adopted, Del. Super., Cr. A. Nos. IK95-07-0592-R1 — 0594-R1, Ridgely, P.J. (July 14, 1998), aff'd, Del. Supr., 723 A.2d 395 (1998). Thus, this ground fails.
c) Trial counsel was unprepared for trial.
Defendant asserts that trial counsel was unprepared for trial. Defendant is correct in asserting that the lead counsel position was switched just before trial began. Mr. Barnett had been lead counsel during pretrial proceedings involving defendant's case. Mr. Burke was co-counsel. However, Mr. Barnett's mother's illness required Mr. Barnett to step aside as lead counsel. Mr. Burke became lead counsel four days before trial.
A review of the file in this case, the trial transcript, and trial counsel's affidavit shows the following.
There was an office conference on August 22, 1996, involving the Court, defense counsel, and the State. Mr. Barnett explained his mother's illness would preclude his presence during part of the trial. The deputy attorney general expressed concerns that this situation might result in a Rule 61 motion. Mr. Burke informed the Court he was prepared to try the case, and neither the defense nor the State requested a continuance. The Court concluded Mr. Burke was prepared to defend defendant.
Due to his alcoholism, defendant had no memory of what occurred. He told trial counsel and he testified at trial that he did not remember killing his mother; in his heart, he did not think he killed her, "but if I did, God forgive me."
After becoming lead counsel and before trial, Mr. Burke discussed with defendant the possibility of entering a plea to murder in the first degree, with the other charge being dismissed. Defendant agreed to the plea. However, he immediately changed his mind and decided that the State should prove the charges against him since he could not remember committing the offense.
During this meeting, Mr. Burke reviewed with defendant statements of defendant's friends and acquaintances which the State had provided to the defense. The State had subpoenaed all of these people. Defendant acknowledged receipt of those statements. The defendant had no other witnesses other than those whom the State already had called.
The defense did not present any expert witnesses. According to trial counsel, there was no evidence of a psychiatric disorder and the DNA testimony was of such a nature that it had little or no bearing on the trial.
The transcript evidences that trial counsel presented a thorough defense. Circumstantial evidence, and lots of it, pointed directly to defendant as the killer. Trial counsel did an admirable job of attempting to throw doubt on that circumstantial evidence and of attempting to create reasonable doubt. There is nothing in the record to indicate trial counsel was unprepared for trial; in fact, the record is clear that trial counsel was well-prepared for trial. See State v. Bradley, Del. Super., Cr. A. Nos. IN89-12-0163R1, 0168R1, Gebelein, J. (August 17, 1992) at 2-3, aff'd, Del. Supr., No. 408, 1992, Moore, J. (February 17, 1993).
Defendant has not attempted to show that the outcome of the trial would have been different had Mr. Barnett, rather than Mr. Burke, been lead counsel. Absent a showing of prejudice, this ground fails. Duffy v. State, Del. Supr., No. 529, 1992, Horsey, J. (January 27, 1993) at 3.
d) Trial counsel failed to ask for the fingerprint findings.
The record shows that the State provided trial counsel the fingerprint findings before trial. Since the record belies this assertion, this ground fails.
e) Trial counsel failed to raise an issue concerning problems with a search warrant.
In connection with this claim, defendant asserts the following:
My counsel failed to raise the issue of a search warrant that had expired and was changed by an unknown source which most likely was the detectives. This had to do with one thing being searched at an early date then a couple of weeks later was researched by old warrant that the date was crossed out and a new date wrote on the old warrant.
Defendant does not make clear what he maintains is a problem. There was a search warrant issued on March 22, 1995, which mistakenly had the date March 10, 1995 on it. The March 10, 1995 date was crossed out and "March 22, 1995" was placed on the warrant. The vehicle where the victim's body was found was searched pursuant to that warrant.
I cannot discern what defendant maintains constituted a wrong. This vague allegation fails, and the Court will not consider it.See State v. Parker, Del. Super., Cr. A. Nos. S90-06-0427, et al., Lee, J. (January 31, 1992) at 9, aff'd, Del. Supr., No. 89, 1992, Moore, J. (November 17, 1992).
f) Trial counsel failed to call a medical expert on his behalf for his alcohol addiction of many years.
Defendant's intoxication was voluntary. Addiction does not make the consumption of the intoxicating substance involuntary. Red Dog v. State, Del. Supr., 616 A.2d 298, 309 n. 13 (1992). See 11 Del. C. § 421. Voluntary intoxication is not a defense to a criminal charge. Id. Even if an expert had been produced, testimony thereby would not have provided a defense. Thus, defendant has suffered no prejudice. See State v. Censurato, Del. Super., Cr.A. Nos. IN95-02-0019 — 0023, Cooch, J. (December 1, 1995) at 5-6. This ground fails.
g) Trial counsel failed to present expert testimony on the medical condition of the victim which would have shown that a man of his size and strength would have caused fractures of bones, etc.
Apparently, defendant is maintaining that if he had killed his mother, there would have been fractures of her bones. Defendant cannot make this assertion without expert opinion supporting it.See Delaware Rules of Evidence, Rule 702; Rea v. Midway Realty Corporation, Del. Super., C.A. No. 88C-JL6, Graves, J. (March 14, 1990) at 3. This ground fails.
h) Trial counsel never brought up complete DNA findings from victim and himself which could have or would have suggested another person who was actually guilty.
This claim is unclear. As I read it, defendant is asserting that DNA findings existed which showed the presence of another person at the scene of the crime. If that is what defendant is alleging, then that allegation fails. The record clearly establishes that the DNA findings showed the victim had been brutally killed and that some of her blood was on defendant's belongings and that other blood of the victim was present on items in the vehicle which defendant was driving after the murder. The State's experts testified to all of the DNA findings, and there were no DNA findings which implicated a third person.
If defendant is arguing something other than the above, I cannot discern what that argument is. I will not consider vague allegations.
See State v. Parker, supra.
This ground fails.
i) Defendant was tried in prison garb.
To the extent defendant alleges that trial counsel was ineffective for failing to tell him to dress in non-prison attire, defendant's claim fails since he does not provide or proffer any evidence as to how the trial outcome might have been different had counsel told him to wear non-prison attire. See Re: Criminal Action No. 89-06-0089, 0090 PCR #1, Del. Super., Cr. A. No. 89-06-0089, 0090, Graves, J. (January 21, 1992) at 4, aff'd, Del. Supr., No. 67, 1992, Holland, J. (September 11, 1992).
j) Appellate counsel raised only one issue on appeal.
Defendant does not set forth what other issues should have been raised on appeal; thus, this ground fails. Slater v. State, Del. Super., Cr.A. Nos. 90-08-0106, et al., Graves, J. (April 19, 1994) at 20.
k) Conflict of interest.
Defendant argues that trial counsel wanted him to accept a plea bargain to first degree murder, and when defendant refused the plea, trial counsel did not seem to try his best at trial, and a conflict of interest developed.
Again, as noted earlier, trial counsel did an admirable job in defending a strong case against defendant. Defendant provided no aid to trial counsel. Trial counsel was effective in defending defendant. Furthermore, defendant has failed to specify any prejudice. This claim, as did all the others, fails.
CONCLUSION
For the foregoing reasons, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.