Opinion
Cr. ID No. 0710032212.
Submitted: April 21, 2010.
Decided: May 18, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF AND MOTION FOR A NEW TRIAL SHOULD BE DENIED.
Brian D. Ahern, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Robert Jacobs, Esquire, Jacobs Crumplar, P.A., Wilmington, Delaware, Attorney for Defendant Lamb.
This 18th day of May, 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court as follows:
I. PROCEDURAL HISTORY
Following a two day Superior Court jury trial, on August 14, 2008, Defendant Juanita Lamb was convicted of Theft, two counts of Attempted Theft, and two counts of Conspiracy in the Second Degree. Defendant was sentenced on October 17, 2008. On the theft conviction, Defendant Lamb was sentenced to three years at Level V, to be suspended after thirty months for six months at Level III probation. On each of the attempted theft convictions, she was sentenced to three years at Level V, to be suspended after one year for one year at Level II probation. On each of the conspiracy convictions, she was sentenced to one year at Level V, to be suspended for one year at Level II probation.
Defendant filed an appeal with the Delaware Supreme Court, which was denied on March 17, 2009. The Delaware Supreme Court denied Defendant Lamb's direct appeal after carefully reviewing the record and concluding that Lamb's appeal was wholly without merit and devoid of any arguably appealable issue. The Delaware Supreme Court was also satisfied that Lamb's counsel made a conscientious effort to examine the record and the law and properly determined that Lamb could not raise a meritorious claim in her appeal.
Juanita Lamb v. State, 2009 WL 685166 (Del.).
Id. at 1.
Defendant Juanita Lamb's convictions stemmed from her scam in which she would target elderly women in an effort to scam money from them. The three victims in this case, Janet Johnson, Anne Krier and Agnes Brown, ages 72, 87 and 76, respectively, were all elderly women. Each victim was alone at the time she was approached by the Defendant. All three victims were approached by a well spoken, professionally well-dressed woman as she was entering or exiting her automobile. All three victims were approached in a parking lot of a shopping center. The Defendant approached each of the victims with a wallet or some type of bag containing money. Each time the Defendant claimed to have just found the money, suggested that she and the victim count the money together, try to determine who the money belonged to, and attempt to return it, implying that there may also be something in it for them. If the scam was able to progress, as it did in two of the incidents, the Defendant called a male conspirator on a cell phone that assisted in furthering the execution of the scam.
Defendant Lamb was actually indicted on nine counts. Five of the counts were charges stemming from the three victims discussed above and were the counts that proceeded to trial. The remaining four counts were charges stemming from two other alleged victims, both of whom were also elderly women, ages 88 (Dorothy Rimm) and 65 (Judith Lynch). The charges relating to the other two women were dismissed prior to trial.
At the time of Defendant's sentencing, the prosecutor represented that the charges against the other two alleged victims were dismissed because the victims were unavailable due to health reasons. See, October 17, 2008 Sentencing Transcript, pg. 5.
At the time of sentencing, the Court noted that had these convictions been Defendant's only offenses, her sentence would have been very different. The Court stated that given Defendant's prior criminal history, consisting of convictions in New York, Pennsylvania, Connecticut and New Jersey, for theft and deception charges, and the repetitive nature of Defendant's criminal behavior, a lesser sentence would unduly depreciate the seriousness of the subject offenses. When imposing Defendant's sentence, the Court acknowledged that the sentence exceeded sentencing guidelines due to the Defendant's repetitive criminal behavior, intentional targeting of seniors and unduly appreciating the seriousness of offenses.
October 17, 2008 Sentencing Transcript, pgs. 4-11.
On February 5, 2009, Defendant Lamb filed a pro se motion for postconviction relief pursuant to Rule 61. Defendant filed the motion while her appeal was still pending in the Delaware Supreme Court. Consequently, her motion was held in abeyance until the appeal had been decided. After the Delaware Supreme Court issued its mandate on April 7, 2009, the stay on the motion was lifted. Defendant subsequently retained counsel and a revised motion was filed by counsel on July 21, 2009.
II. FACTS
The specific facts pertaining to each of the victims is discussed below.
The First Victim-Janet Johnson
The first victim, Janet Johnson, a 72 year old woman, testified that on May 29, 2007, in the early afternoon, she had finished shopping at Happy Harry's at the Branmar Shopping Center, North Wilmington, Delaware and was getting into her car in the parking lot when a woman approached her and asked her if she dropped a coupon book. The woman opened the front passenger door of Ms. Johnson's car and sat in the front passenger seat. The woman insisted that Ms. Johnson look at the coupon book to see if it was hers and when Ms. Johnson opened the book she saw a stack of one hundred dollar bills.
August 12, 2008 Trial Transcript, pgs. 19-21.
The woman told Ms. Johnson that she worked at Wilmington Trust Bank and that they would call her boss, Mr. Einstein, at Wilmington Trust Bank to see if they could keep the money. The woman called "Mr. Einstein" on a cell phone and put Ms. Johnson on the phone. They discussed how the money would be divided and that Ms. Johnson would get some of the money. Mr. Einstein asked Ms. Johnson about the balances on her bank accounts. Ms. Johnson advised Mr. Einstein that she banked at Wilmington Trust and had a money market account with $3,000.
August 12, 2008 Trial Transcript, pgs. 19-25.
The woman told Ms. Johnson that they had to drop off the coupon book to Mr. Einstein at Wilmington Trust Bank so that he could count the money. Ms. Johnson drove the woman over to Wilmington Trust Bank and the woman got out of the car and walked towards the bank. Ms. Johnson waited in her car for the woman to return. Ms. Johnson never saw the woman actually go inside the bank because the woman told Ms. Johnson to park beside a big van which obstructed Ms. Johnson's view of the bank.
August 12, 2008 Trial Transcript, pgs. 25-27.
After the woman returned to the car, they drove to a nearby store so that Ms. Johnson could get a drink. Ms. Johnson thought the store might have been a Starbucks. The woman bought Ms. Johnson a Snapple ice tea. When they returned to the car the woman told Ms. Johnson that they had to pick up the money they left with Mr. Einstein. The woman told Ms. Johnson that someone had dropped the money off at the Grayland Shopping Center. The woman told Ms. Johnson to wait in the car while she got out to pick up the money. A few minutes later the woman returned to the car with the money. The woman told Ms. Johnson to withdraw $2,500 out of her Wilmington Trust bank account and give it to her and then Ms. Johnson would get the money inside the coupon book.
August 12, 2008 Trial Transcript, pgs. 27-28, 35-36.
August 12, 2008 Trial Transcript, pgs. 28-29.
The woman instructed Ms. Johnson to drop her off at the 7-Eleven while Ms. Johnson withdrew the money from her bank account at the Wilmington Trust Bank branch on Route 202. Ms. Johnson was instructed to then return to the 7-Eleven to pick up the woman.
August 12, 2008 Trial Transcript, pgs. 29-30.
When Ms. Johnson went inside the Wilmington Trust Bank she began to get suspicious and asked a bank officer if a Mr. Einstein worked at the Wilmington Trust Bank at the Branmar Shopping Center. The bank officer advised Ms. Johnson that, in fact, there was no one by the name of Mr. Einstein that worked at the Wilmington Trust Bank at the Branmar Shopping Center. The bank officer called the police.
August 12, 2008 Trial Transcript, pgs. 30-31.
The next day, May 30, 2007, Ms. Johnson gave a description of the perpetrator to the police. Ms. Johnson described the perpetrator as a very business-like black female, 30 to 35 years old, 5'5" to 5'7", and 130 to 140 pounds.
August 12, 2008 Trial Transcript, pgs. 33-35.
On October 23, 2007, Detective Sean Duffy showed a photographic lineup containing the Defendant's photograph to Ms. Johnson. Ms. Johnson identified the Defendant's photograph as the woman who tried to scam her on May 29, 2007.
August 12, 2008 Trial Transcript, pgs. 31-32.
At trial, Ms. Johnson described the woman as a very business-like, black woman, maybe 5'4" in height, 150 pounds in weight, in her mid-thirties. The perpetrator was dressed very nicely on the day of the incident in a pant suit. The Second Victim-Anne Krier
August 12, 2008 Trial Transcript, pg. 19.
The second victim, Anne Krier, a 76 year old woman testified that on July 16, 2007, between 1:00 p.m. and 2:00 p.m., she had just parked her friend's car (a Chevy Impala) in the Pathmark parking lot at Kirkwood Highway, when a woman approached her. The woman made comments about how nice the car was and asked if it was a Cadillac. The woman looked inside the car and made comments about the leather seats. The woman made about four or five comments about how nice the car was that it made Ms. Krier nervous. Ms. Krier thought that the woman wanted the car.
August 12, 2008 Trial Transcript, pgs. 39-42.
The woman showed Ms. Krier a wallet. The woman told Ms. Krier that she had found the wallet in the Kohl's parking lot, which was adjacent to the Pathmark parking lot, and asked Ms. Krier if she knew where the wallet came from. Ms. Krier advised the woman that she did not know where it came from. Ms. Krier suggested they look inside the wallet to see if there was any identification. When the woman opened the wallet, Ms. Krier observed a large amount of cash. Ms. Krier was very surprised to see all the money in the wallet but got the feeling that the woman knew what was in the wallet because the woman did not seem surprised.
August 12, 2008 Trial Transcript, pgs. 39-45.
The woman suggested they get inside the car and count the money. Ms. Krier thought the woman could be trying to steal the car so she told the woman that she would help her count the money if she wanted the help, but they would count it on the back of the car. Ms. Krier asked the woman where she found the wallet, and when the woman told her she found it in the Kohl's parking lot, Ms. Krier knew something was amiss. Although Kohl's and Pathmark are in the same shopping center they are not next to each other, and Ms. Krier was suspicious that if a wallet was found in the Kohl's parking lot, why the woman would go to the Pathmark parking lot to try to find the person who lost the wallet.
August 12, 2008 Trial Transcript. pgs. 39-45.
August 12, 2008 Trial Transcript, pgs. 44-46.
Ms. Krier advised the woman if it had been her that had found the money, she would take it to Kohl's or to the police. Ms. Krier thought that maybe a supplier may have dropped it. The woman agreed with Ms. Krier and turned and walked away. Ms. Krier testified that her encounter lasted "five to ten minutes".
August 12, 2008 Trial Transcript, pgs. 46-47.
August 12, 2008 Trial Transcript, pg. 53.
Ms. Krier told her neighbor about the incident and her neighbor urged Ms. Krier to call the police. Ms. Krier called the police either that night or the next day. When she spoke to the police she gave a description of the woman as a black woman, 30 to 35 years old, 5'7" to 5'9", 115 to 130 pounds, dressed in a beige or light tan blouse and a dark jacket. Ms. Krier emphasized that the woman "spoke beautifully"; her diction was very, very good.
August 12, 2008 Trial Transcript, pgs. 49-50.
On October 23, 2007, Detective Sean Duffy showed Ms. Krier a photographic lineup which contained the Defendant's photograph. Ms. Krier identified the Defendant's photograph as the woman she encountered in the Pathmark parking lot on July 16, 2007.
August 12, 2008 Trial Transcript, pgs. 51-52.
At trial, she described the woman as being a little taller than herself (she is 5'6"), maybe 150 to 160 pounds (she testified that she is not good at estimating weights), very dark auburn hair worn in a pageboy cut. She was wearing a light tan or a beige blouse with a bow and a dark jacket. She was wearing dark bottoms either slacks or a skirt. The woman "spoke beautifully". The Third Victim-Agnes Brown
August 12, 2008 Trial Transcript, pgs. 42, 50.
The third victim, Agnes Brown, an 87 year old woman, testified that on July 16, 2007 (the same day as Anne Krier incident), between 2:00 p.m. and 3:00 p.m., a woman approached her in the K-Mart parking lot at Limestone Road. The woman was a well-dressed woman, very pleasant, wearing a tan/beige suit. The woman had short, dark hair and olive skin. The woman said her name was Tina.
August 12, 2008 Trial Transcript, pgs. 56-57, 66.
The woman had a "package or case" that contained money. The woman told Ms. Brown that she had found the "package or case" and wanted Ms. Brown to go with her to verify that money was in there and that she had found it. The woman used a cell phone to call a Mr. Wilson. The woman told Ms. Brown that Mr. Wilson suggested they go to Citibank which was across the street from the K-Mart.
August 12, 2008 Trial Transcript, pgs. 57-60.
Ms. Brown drove the woman to Citibank and the woman instructed her to park to the side of the building. The woman got out of the car and walked towards Citibank but from where Ms. Brown was parked she could not see and did not know whether or not the woman actually went inside the bank. The woman told Ms. Brown that she would get a portion of the money but that Ms. Brown had to take $6,345 out of her bank account and give it to the woman.
August 12, 2008 Trial Transcript, pgs. 59-63.
The woman told Ms. Brown to drop her off at the Shell gas station and then go to her bank at Wilmington Trust (located at Kirkwood Highway and Limestone Road) to withdraw the money from her account. Ms. Brown withdrew the $6,345 in cash from her account but began to get a little suspicious so after leaving Wilmington Trust she drove to the Artisan Bank where she had another account and deposited the $6,345.00. She then drove back to the Shell gas station and told the woman that she had deposited the money she withdrew from the Wilmington Trust bank account into her Artisan bank account.
August 12, 2008 Trial Transcript, pgs. 62-67.
The woman then phoned Mr. Wilson who told Ms. Brown that they had to have the cash and instructed Ms. Brown to go back to Artisan Bank and withdraw the money. Ms. Brown dropped the woman off at a McDonald's and drove to Artisan Bank, withdrew the $6,345 from her account, and returned to McDonald's and gave the woman the $6,345 in cash.
August 12, 2008 Trial Transcript, pgs. 67-68.
Ms. Brown was directed to go directly home, which she did. The woman did not ask for, and Ms. Brown did not provide her address or phone number, or any contact information for getting in touch. Ms. Brown was not sure how she was supposed to get her share of the money.
August 12, 2008 Trial Transcript, pgs. 67-68.
The evening of the incident, when Ms. Brown spoke to the police she described the woman as a black female, short black hair, 25 to 30 years old, 5'8" to 5'9", with a thin build.
August 12, 2008 Trial Transcript, pgs. 68-71.
On October 23, 2007, Detective Sean Duffy showed Ms. Brown a photographic lineup which contained the Defendant's photograph. Ms. Brown did not pick anyone out of the lineup and informed Detective Duffy that too much time had passed and she was not sure if the lineup contained the suspect in her case.
August 12, 2008 Trial Transcript, pgs. 69.
Restitution in the amount of $6,370 ($6,345 for the monies stolen and $25 for travel expenses) was ordered as part of Defendant Lamb's sentence for her conviction of the felony theft of Ms. Brown. Ms. Brown noted on her Victim Loss and Impact Statement that she is on a fixed income and could not afford the loss of $6,345. As a result of the loss of that money, she has had to use money from her savings to pay bills. On her Victim Loss and Impact Statement, Ms. Brown (now age 89) stated that she is trying to find a job to help her financial situation but has not been successful in her efforts to do so.
Defendant Juanita Lamb
Defendant Juanita Lamb was born on September 27, 1957, and was 50 at the time of her arrest. On the police report to secure the arrest warrant, Defendant Lamb was described as 5'5" in height and 210 pounds in weight. Her race is black and her hair is black. Defendant's arrest occurred on or about October 26, 2007.
August 12, 2008 Trial Transcript, pgs. 11, 90-91.
III. DEFENDANT'S POST-CONVICTION RELIEF MOTION
In the subject motion for post-conviction relief, Defendant raises six grounds for relief all stemming from trial counsel's alleged ineffective assistance. Specifically, Defendant contends as follows:
1) Counsel failed to move the Court to suppress identification testimony;
2) Counsel failed to move for judgment of acquittal of Counts III, IV and V;
3) Counsel's failure to preserve for appellate review the issue regarding the legal sufficiency of the evidence convicting Defendant of the charges contained in Counts II, IV and V;
4) Counsel failed to move for a separate trial in the charges in the indictment pursuant to Superior Court Criminal Rule 14;
5) Counsel failed to object to the Court's jury instructions; and
6) Counsel failed to request specific jury instructions.
Since each of Defendant's claims involve ineffective assistance of counsel contentions, before addressing Defendant's specific contentions, it is necessary to first discuss the standard for judging an ineffective assistance of counsel claim.
To prevail on an ineffective assistance of counsel claim, the defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness," and (2) "the deficient performance prejudiced the defense." The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires her to show "that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different." When a court examines a claim of ineffective assistance of counsel, it may address either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Id. at 687-88, 694.
Strickland, 466 U.S. at 697.
Indeed, Strickland establishes that the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.
Id. at 686.
Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy. In considering post-trial attacks on counsel, Strickland cautions that trial counsel's performance should be reviewed from the defense counsel's perspective at the time decisions were being made. Second guessing or "Monday morning quarterbacking" should be avoided.
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
Strickland, 466 U.S. at 689.
Id. at 688-89.
With the standard that controls an ineffective assistance of counsel claim as the backdrop, we now turn to Defendant's specific claims.
1) Failure to Seek the Suppression of Identification Testimony
Defendant claims that her trial counsel was ineffective because he did not move to suppress the "victims' identification testimonies."
In Defendant's opening brief, she failed to set forth any legal or factual basis for the suppression of either the pre-trial or trial testimony of the identification of the perpetrator. In Defendant's reply brief, she contended only that trial counsel "never made a pre-trial motion to suppress the complaining witnesses' identification testimonies on the grounds of suggestiveness."
Defendant's Response to the State's Response to the Defendant's Motion for Post Conviction Relief dated January 7, 2010, pg. 3.
Defendant, however, fails to provide any factual or legal basis to support a suppression motion. Defendant merely contends that because trial counsel did not do so, he was ineffective. Conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel. Defendant fails to provide any basis to support a motion that the procedures utilized by the police were impermissibly suggestive in any regard.
State v. Brown, 2004 WL 74506, at *2 (Del.Super. 2004).
Trial counsel does not have to file meritless motions; in fact, counsel has an obligation not to do so. Defendant's contention that her trial counsel was somehow ineffective for failing to file a motion with no apparent legal or factual basis is without merit.
Moreover, it is obvious that the defense strategy at trial was to attack the identification of the Defendant by the victims. From the defense counsel's opening statement, during cross-examination of each of the three victims, throughout the trial and during closing argument, the principal argument made by trial counsel was that the State's case was not sufficient to identify the Defendant as the perpetrator of the crimes that were charged. Trial counsel's questions primarily focused on the description given by the victims to the police following their contact with the defendant and their later viewing of a photographic lineup.
August 12, 2008 Trial Transcript, pgs. 10-15.
Janet Johnson-August 12, 2008 Trial Transcript, pgs. 33-37; Anne Krier-August 12, 2008 Trial Transcript, pgs. 49-53; Agnes Brown-August 12, 2008 Trial Transcript, pgs. 70-72.
August 14, 2008 Trial Transcript, pgs. 15-27.
Given this defense strategy, defense counsel needed to focus on the identification testimony of the victims following their contact with the Defendant and their later viewing of a photographic lineup. Great weight and deference are given to tactical decisions by the trial attorney. There is a strong presumption that Defendant's trial counsel's conduct constituted sound trial strategy. Defendant has not overcome that strong presumption.
Strickland, 466 U.S. at 689.
2) Failure to Move for Judgment of Acquittal of Counts III, IV and V.
Defendant claims that trial counsel was ineffective for failing to move for a judgment of acquittal of Counts III, IV and V.
Count III of the indictment related to the attempted theft of Anne Krier, Count IV related to the theft of Agnes Brown, and Count V related to the charge of conspiracy to commit the theft of Agnes Brown.
a) Count III
Turning first to Defendant's claim that trial counsel was ineffective for failing to move for a judgment of acquittal of Count III, the attempted theft of Anne Krier, Defendant contends in the first instance that the State has not presented sufficient evidence of an attempted theft. In Defendant's reply brief, she refines her argument and claims that the evidence was insufficient to establish a felony attempted theft, an attempted theft of property valued in excess of $1000, since the issue of money never came up during the parties interaction. Defendant contends therefore that the State has not presented sufficient evidence as to the value of the attempted theft to sustain the felony threshold.
Because the refined argument was raised for the first time in Defendant's reply, the court asked the State to supplement its response and address this issue. After receiving the State's supplemental response, the court asked trial counsel to provide an explanation as to his thought process with regard to not having moved for a judgment of acquittal as to Count III. Defense trial counsel explained that he did not move for a judgment of acquittal as to Count III because he did not believe he had a good faith basis to do so.
Edmund M. Hillis letter of April 21, 2010.
Whether or not trial counsel was deficient for failing to move for a judgment of acquittal on Count III, Defendant cannot establish the prejudice prong of the ineffective assistance of counsel claim. Defendant cannot show that the outcome of the trial would have been different because she cannot show that the motion, even if it had been made, would have been granted.
A motion for judgment of acquittal pursuant to Superior Court Criminal Rule 29 is to be granted only if, after viewing the evidence and all legitimately drawn inferences in the light most favorable to the State, the State has presented insufficient evidence to sustain a verdict of guilt.
Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982).
Considering the evidence in the light most favorable to the State, including all legitimately drawn inferences, Defendant's claim must fail. The State had established a common scheme or plan. A well-spoken, professionally well-dressed woman approaches an elderly woman, either coming from or going to her car, in the parking lot of a shopping center. The elderly woman is always alone. The woman claims she just found a bag/wallet containing money and suggests they count it together, see if they can determine who it belongs to, and attempt to return it, implying that there may also be something in it for them. If the scam is able to proceed, the woman contacts a male conspirator who assists in the scam. They insist on a sizeable amount of money from the elderly woman, which is to serve as a deposit, until the "found money" is able to be distributed between them.
Because the State established a common scheme, each of the separate three incidents should not be considered in a vacuum. The other two incidents provide context for the Anne Krier incident. Indeed, the Agnes Brown incident occurred the very same day, within an hour or two, of the Anne Krier incident, in the same general area. In the Janet Johnson incident, the perpetrator sought to scam $2,500 from her. In the Agnes Brown incident, the perpetrator successfully scammed $6,345 from her.
Applying the appropriate standard, viewing the evidence and all legitimately drawn inferences, in the light most favorable to the State, the State has presented sufficient evidence to sustain a verdict of guilt.
In the light most favorable to the State, the perpetrator approached Anne Krier, an elderly woman who was driving an expensive car, as her target. The perpetrator continued to comment on how nice the car was and looked inside commenting on the leather seats and asking if the car was a Cadillac. The perpetrator's intent at the time of the approach was to try to scam a significant amount of money from Anne Krier. The perpetrator intentionally targeted an elderly woman driving a nice car. Her intent, from all legitimately drawn inferences, was to seek in excess of $1,000 from Anne Krier if the scam was able to progress to that point.
Although it is likely that the perpetrator would have accepted any amount that she could have actually gotten, that does not change the fact that at the time she approached Anne Krier to begin putting her scam into action, her intent was to scam over $1000.00, if able to do so. Viewing all the evidence and all legitimately drawn inferences in the light most favorable to the State, the State has presented sufficient evidence to sustain a verdict of guilty. Defendant's claim fails.
b) Counts IV and V
Defendant also claims that trial counsel was ineffective for failing to move for a judgment of acquittal as to Counts IV and V-the charges related to the theft of Agnes Brown and the conspiracy to commit the theft of Agnes Brown.
Again, like Count III, whether or not trial counsel was deficient for failing to move for a judgment of acquittal on these charges, Defendant cannot show that the outcome of the trial would have been different because she cannot show that the motion, even if it had been made, would have been granted.
Considering the evidence in the light most favorable to the State, including all legitimately drawn inferences, Defendant's claim must fail. Defendant seeks to attack this case piecemeal and ignores the whole of the evidence that was presented, which must be viewed in the light most favorable to the State. It is the totality of the State's case that must be considered. Each of the three incidents was part of a common scheme, and none of the incidents should be considered in a vacuum.
Agnes Brown, although unable to identify the Defendant either pretrial or at trial, does not end the analysis of the charges. Ms. Brown was able to give a general description of the perpetrator. Ms. Krier, who was approached by the perpetrator the same day and within an hour or two of Ms. Brown, was able to provide additional details and able to provide a more specific identification.
Viewing all the evidence and all legitimately drawn inferences in the light most favorable to the State, Agnes Brown was approached by the same perpetrator as Janet Johnson and Anne Krier, and that perpetrator was the Defendant Juanita Lamb, as identified by Anne Krier and Janet Johnson.
After viewing all the evidence and all legitimately drawn inferences in the light most favorable to the State, the State presented sufficient evidence to sustain a verdict of guilty as to Counts IV and V. Defendant cannot establish prejudice as a result of her counsel's failure to make a motion for judgment of acquittal of these counts. Defendant has therefore failed to make concrete allegations of actual prejudice and substantiate them. Defendant's ineffective assistance of counsel claim must therefore be denied.
3) Failure to Preserve for Appeal the Legal Sufficiency of the Evidence
Defendant claims that trial counsel was ineffective for failing to preserve for appellate review the issue regarding the legal sufficiency of the evidence convicting the Defendant of the charges contained in Counts III, IV and V.
Defendant contends that by counsel's failure to move for a judgment of acquittal as to Counts III, IV and V, he failed to preserve the issues for appellate review. Because Defendant would not have prevailed on a motion for a judgment of acquittal on these counts, there was no reason for the issue to be preserved for appeal.
Moreover, defense counsel did file a timely Notice of Appeal of the jury's verdict and brief pursuant to Rule 26(c) and represented to the Delaware Supreme Court that he undertook a review of the record and that there were no appealable issues. The Delaware Supreme Court likewise performed its own review and reached the same conclusion. The Defendant was provided with the brief, informed of her right to supplement her attorney's presentation, and given the opportunity to raise any additional issue/argument that she desired. She did not raise any additional issue and she never raised an argument regarding the sufficiency of evidence.
Juanita Lamb v. State, 2009 WL 685166 (Del.).
Defense counsel was not ineffective in this regard.
4) Failure to Move for a Separate Trial of the Charges
Defendant's fourth claim is that trial counsel was ineffective for failing to move for a separate trial of the charges in the indictment pursuant to Superior Court Criminal Rule 14.
Whether or not trial counsel was deficient for failing to move for a separate trial of the charges, Defendant cannot show that even had the motion been made, it would have been granted. Defendant cannot therefore establish prejudice as a result of her counsel's failure to make a motion for a separate trial of the charges.
a) Severance of the Charges
Under Superior Court Criminal Rule 8(a), a defendant may be tried simultaneously for two or more offenses if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Rule 8 must be read in conjunction with Superior Court Criminal Rule 14 which states, in pertinent part, that if it appears that a defendant is prejudiced by a joinder of offenses, the court may elect to order separate trials of counts or provide whatever other relief that justice requires.
The decision to grant or deny a motion for severance rests within the sound discretion of the trial court. The determination by the trial judge in denying a motion for severance will not be reversed except for a clear abuse of discretion, that is, on appeal it must appear that the trial judge had the likelihood of the reasonable probability of prejudice before him when he denied the motion.
Younger v. State, 496 A.2d 546, 549-50 (1985).
State v. Revel, 2007 WL 4575913, *1 (Del.Super.)
Rule 8 was designed to promote judicial economy and efficiency, and those objectives outweigh a defendant's unsubstantiated claims of prejudice. Defendant must demonstrate that there is a reasonable probability that "substantial injustice" would result from joinder of offenses.
State v. Hammons, 2001 WL 1729119, at *2 (Del.Super.); Bates v. State, 386 A.2d 1139, 1141-42 (Del. 1978).
In Wiest v. State, the Delaware Supreme Court described three circumstances where such prejudice might be sufficient to overcome joinder. A defendant might suffer prejudice from joinder because: (1) a jury may cumulate the evidence relating to one incident to convict him of the other; (2) a jury may rely on evidence relating to one or more of the incidents to infer that he has a general criminal disposition in order to find guilt of the other crime or crimes; and (3) the defendant may be subject to embarrassment or confusion in attempting to present different defenses to different charges.
Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988); State v. Hammons, 2001 WL 1729119, at *3 (Del.Super.).
Where the offenses charged are of the same general nature and there is evidence of a modus operandi, severance has been denied, even in the face of obvious prejudice to the defendant. Each severance application is fact intensive.
State v. Hammons, 2001 WL 1729119, at *3 (Del.Super.); Younger v. State, 496 A.2d 546, 550 (Del. 1985).
State v. Flagg, 739 A.2d 797, 800 (Del.Super. 1999)
In the subject action, the State's case showed a common modus operandi amongst all of the charged offenses. This is a situation in which severance is not warranted since the offenses charged are of the same general nature and give evidence of a common modus operandi, even though obvious prejudice existed to the defendant.
Indeed, the charge of attempted theft of Anne Krier and the theft of Agnes Brown both occurred on the same day, within an hour or two of each other, in the same general area. If the Anne Krier attempted theft was not tried together with the Agnes Brown theft, the jury would be left without any context of the overall scheme. In the Anne Krier incident, the perpetrator approached Anne Krier with the bag of money and suggested that they count it together and determine who it belonged to, but Anne Krier was suspicious and did not take the bait. Anne Krier suggested that the perpetrator call the police or turn the money into Kohl's, and the perpetrator realizing that Anne Krier was not going to fall for the scam, walked away. If the Anne Krier attempted theft was tried alone, it would have no context. The jury would not know how the scam would have progressed if permitted to do so. The jury would not know what occurred an hour or so later, when the perpetrator was able to find a victim to take the bait.
See, for example, Howard v. State, 549 A.2d 692, 694 (Del. 1988) (evidence of other charges may be necessary to the jury's understanding of the State's case).
Although evidence of other crimes is not admissible to prove the character of the person in order to show that she acted in conformity therewith, it is admissible to prove a common plan or scheme.
There is no question Defendant Lamb would have greatly preferred each of the incidents to be tried separately. Defendant certainly desired this case to be viewed piecemeal and in a vacuum, with each incident to be considered separate, apart and independent of the others. Where multiple incidents circumstantially point to the perpetrator's identity, severance has been denied because the evidence is of the same type and impact. Here, the State has established a sufficient commonality of design and purpose and severance of these charges, in the interests of justice, was not warranted. Defendant was not unfairly prejudiced by trying all the charges together in one trial.
Id.
Applying the first and second prongs as set forth in Wiest to the subject action, this is not the type of case where the charges were so numerous that the jury would be unable to resist the cumulative effect of evidence linking the defendant to separate charges and would impute to the defendant a general criminal disposition based on the sheer mass of the charges. In the subject case, only five charges involving only three victims (two attempted thefts, one theft, and two conspiracy charges) were sent to the jury for consideration.
This is not a case where there were numerous incidents and a multitude of charges which raises concerns about cumulating the evidence. In State v. McKay, the defendant was charged with 35 counts in eight separate incidents involving nine victims, including various offenses such as rape, kidnapping and robbery. The sheer mass of charges in the case rendered it extremely unlikely that a jury would be able to resist the cumulative effect of evidence linking the defendant to separate charges. The sheer mass of the charges warranted severance to avoid the potential that the jury would cumulate the evidence. In McKay, there was a real risk that a jury would impute to the defendant a criminal disposition in light of the sheer mass of the charges.
State v. McCay, 382 A.2d 260, 262 (1969).
This case more closely resembled Younger and Revel , each involving three incidents which were of the same or similar character or general nature. There was sufficient commonality of design and purpose present to warrant non-severance.
Younger v. State, 496 A.2d 546 (Del. 1985) (two rapes and an attempted rape properly tried together);
State v. Revel, 2007 WL 4575913 (Del.Super.) (five count indictment stemming from two robberies and one attempted robbery properly tried together)
As to the third prong set forth in Wiest, this is not the type of case in which the defendant would be subjected to embarrassment or confusion since the defendant was not presenting different and separate defenses to the different charges. The issue in this case was one of identity and did not present either embarrassment or confusion. This was not a case were the defendant presented separate types of defenses to the charges. In State v. Flagg , severance was granted because the defendant would be presenting a psychiatric defense to one set of charges and challenging identity as to the other charges. The defense in this case, challenging identity, was the same defense in all the charges.
State v. Hammons, 2001 WL 1729119 (Del.Super.) (in an eleven count indictment stemming from two incidents where the issue in each incident is one of identity, does not require the jury to possess an unusual degree of detachment to consider each charge separately nor does it present embarrassment or confusion to the Defendant.)
State v. Flagg, 739 A.2d 797, 800 (Del.Super. 1988).
Defendant's reliance on Getz v. State in this case is misplaced. In Getz, the Court did not deal with the severance of charges but rather whether D.R.E. 404 permitted the State to offer evidence of defendant's prior uncharged sexual contact with his daughter to support a general inference of the defendant's bad character. That is not the situation presented here. First, the State did not seek to use evidence of defendant's prior uncharged misconduct. For that matter, the State did not seek to use evidence of Defendant's prior convictions in other states on other charges. The State sought only to prove each of the charged offenses. Second, in this case, the evidence of the crimes were not being used to establish a general inference of defendant's bad character, but instead were being used to establish a common plan and scheme. A use that is permissible and admissible under D.R.E. 404(b).
Getz v. State, 538 A.2d 726, 730 (Del. 1988).
Kendall v. State, 726 A.2d 1191, 1194-96 (Del. 1999) (evidence of defendant's prior common scheme or plan was highly probative and admissible to show intent, knowledge, and common scheme in theft prosecution arising from homebuilding scam.)
In the subject action, substantial injustice has not been demonstrated that would warrant a severance of these charges.
b) Failure to Give Jury Instruction Not to Cumulate Evidence
Defendant contends that it is "clear" that the jury cumulated the evidence as they were not "instructed that they should not cumulate the evidence." Defendant contends that because the Court instructed the jury: "If you should find the evidence from any of the witnesses to be conflicting, you should try to make one harmonious story of it all," that sentence "clearly" resulted in the jury improperly cumulating the evidence.
Defendant takes this one sentence out of context. Jury instructions must be considered as a whole with no one statement to be viewed out of context in judging the propriety of the instruction.
Confrancesco v. Shop-Rite Supermarkets, Inc., 2001 WL 541482, at *6 (Del.Super.)
Specifically, the trial court instructed:
You are the sole judge of the credibility of each person who has testified and of the weight to be given to the testimony of each. You are to judge the credibility of all of the witnesses that have testified before you, whether for the prosecution or the defense.
If you should find the evidence from any of the witnesses to be conflicting, you should try to make one harmonious story of it all. However, if you cannot do so, it is your privilege as to the judges of the facts to accept that part of the testimony that you conclude is more credible and to reject any part which, in your judgment, is unworthy of credit.
In considering the credibility of witnesses and in considering any conflict in testimony, you should take into consideration each witnesses means of knowledge, strength of memory and opportunity for observation, the reasonableness or unreasonableness of the testimony, the consistency or inconsistency of the testimony, the motives influencing the witness, the fact, if it is a fact, that the testimony has been contracted, the witness' bias, prejudice or interest in the outcome of this litigation, the ability to have acquired the knowledge of the facts to which the witness testified, the manner and demeanor upon the witness stand, and the apparent truthfulness of the testimony, and all other facts and circumstances shown by the evidence which affect the credibility of the testimony.
August 14, 2008 Trial Transcript, pgs. 42-43.
In the proper context, there was nothing improper about the complained instruction.
Moreover, the jury instructions as read to the jury were a product of discussion between the State, defense trial counsel and the Court. The jury instructions as a whole informed the jury of the law and its application to the facts as the jury finds them. The jury instructions provided that no single instruction states all of the laws applicable and that all the instructions should be considered together in reaching the verdicts.
State's Response to Defendant's Rule 61 Motion, paragraph 14.
Garden v. State, 815 A.2d 327, 341 (Del. 2003) (superseded by statute on other grounds).
August 14, 2008 Trial Transcript, pg. 30.
Replete throughout the jury instructions, the trial court reiterated that the jury must specifically find that all of the elements of each offense must be established beyond a reasonable doubt. See, for example, "if you do not find that all of the elements of the crime charged have been proven beyond a reasonable doubt, or if you have a reasonable doubt concerning the guilt of the defendant as to a particular charge, then your verdict must be not guilty of that offense."
August 14, 2008 Trial Transcript, pgs 34, 35, 37, 38, 40-44, 46
August 14, 2008 Trial Transcript, pg. 46.
Viewed in its entirety, as it must, the jury charge is an accurate reflection of Delaware law. Defense trial counsel was not ineffective for failing to object to the Court's instructions.
5) Failure to Object to Court's Jury Instructions
Defendant's fifth claim is that trial counsel was ineffective because of his failure to object to the jury instructions. Defendant fails, however, to state which instruction(s) were objectionable. Defendant merely argues in conclusory fashion that if an objection had been made to the jury instructions, the verdict would have been different. As previously discussed, conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel. Defendant presents no legal or factual basis for this argument, and it therefore must fail.
State v. Brown, 2004 WL 74506, at *2 (Del.Super. 2004).
6) Failure to Request Specific Jury Instructions
Defendant's final claim is that trial counsel failed to request specific jury instructions. Defendant makes two arguments in support of this claim: first, that counsel failed to request that the court instruct the jury to consider liability for and the elements of each charge separately; second, that counsel failed to request an instruction regarding cross-racial identification.
As previously stated, the jury instructions as read to the jury were a product of discussion involving the State, trial counsel and the Court. A defendant does not have a right to have the jury instructed in a particular form. The defendant is entitled to have the jury instructed with a correct statement of the substantive law. The primary function of jury instructions is to inform the jury of the law and its application to the facts as the jury finds them. Each case should be viewed on its own facts and each set of jury instructions must be viewed in its entirety.
Stones v. State, 1996 WL 145775, at *3 (Del.)
Guy v. State, 913 A.2d 558, 563 (Del. 2006)
Garden v. State, 815 A.2d 327, 341 (Del. 2003) (superseded by statute on other grounds).
As to the first argument, the Court instructed that the jury must find the Defendant guilty beyond a reasonable doubt as to each element of each offense and reiterated that instruction throughout the jury instructions about seven times. Moreover, the State established evidence of a common plan or scheme and the jury was free to use that evidence in its findings of guilt.
August 14, 2008 Trial Transcript, pgs 34, 35, 37, 38, 40-44, 46
The jury instructions as given were adequate. Counsel was not ineffective for failing to request anything additional.
Defendant's final argument is that trial counsel was ineffective because he failed to request an instruction regarding cross-racial identification. Viewing the jury instructions as given in this case in its entirety, they were fair, they adequately advised the jury of the applicable law, adequately advised the jury how to weigh the testimony, and how to fairly evaluate the case.
Indeed, the Court instructed the jury on how to consider conflicting testimony of witnesses, to assess the credibility and the weight to be given their statements, to assess the motivations and interests of the witnesses, and all other significant parameters that should be considered when evaluating the testimony of witnesses.
August 14, 2008 Trial Transcript, pgs. 42-43.
The Court also instructed the jury that their verdict must be based solely and exclusively on the evidence in the case, and not governed by passion, prejudice, bias or sympathy, or any motive whatsoever except a fair and impartial consideration of the evidence.
August 14, 2008 Trial Transcript, pgs. 31.
Perhaps a jury instruction on cross-racial identification may be appropriate in the proper circumstance, but in this case, under these facts, viewing the jury instructions in their entirety, Defendant cannot establish that trial counsel was ineffective for not requesting such an instruction. In fact, Defendant cannot first establish that the Court would have granted the request if such a request was made. Second, Defendant cannot establish that there was a reasonable probability that the result would have been different had the specific instruction been given.
The Delaware Supreme Court has previously recognized that including a cross-racial identification jury instruction may do little more than suggest a judicial bias against the reliability of the eyewitness testimony. Presenting the proposition that cross-racial identifications are less likely to be accurate in the context of a jury instruction raises that proposition to the level of a rule of law, which implies a degree of certainty that social science rarely achieves, and comes perilously close to a comment on the evidence contrary to the constitutional restriction. Commenting on the evidence is better left to the defense counsel than by the judge.
Garden v. State, 815 A.2d 327, 341 (Del. 2003) (superseded by statute on other grounds).
Garden v. State, 815 A.2d 327, 341 (Del. 2003) (superseded by statute on other grounds).
Here, Defendant has failed to demonstrate how that specific instruction would have changed the proceedings. Defense counsel commented on, and attacked the sufficiency of the identification of the Defendant, at every stage of the trial.
There is no showing that even if defense counsel had requested such a jury instruction, the Court would have given it. Defendant has failed to establish either prong of the Strickland test, and therefore, her claims of ineffective assistance of counsel fail.
IV. MOTION FOR A NEW TRIAL
Great weight and deference are given to tactical decisions by the trial attorney. As noted in Strickland, there is a strong presumption that defense counsel's conduct constituted sound trial strategy. Defendant has not overcome that strong presumption.
There being no trial deficiencies, Defendant's request for a new trial is denied.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for Postconviction Relief and Motion for a New Trial should be denied.