Opinion
ID No. 9601010776. Cr.A. Nos. IN96-09-1627-R1, 1629-R1, 1630-R1, 1631-R1, 1632-R1, 1634-R1 and IN96-09-2109-R1.
Submitted: January 31, 2000.
Decided: February 3, 2000.
Maria T. Knoll, Esquire, Attorney General's Office, 820 N. French Street, Wilmington, DE 19801
Alfred J. Lindh, Esquire, 1401 Ridge Road, P.O. Box 1792, Wilmington, DE 19899
Dear Counsel:
This the Court's decision on a postconviction relief motion filed on behalf of Defendant Liket in the above-referenced criminal matters. In 1997, Liket was convicted of Attempted Assault in the First Degree and related offenses, and was sentenced to ten years of incarceration to be followed by lesser sanctions. The Delaware Supreme Court affirmed.
Licket v. State, Del. Supr., 719 A.2d 935 (1998).
In his postconviction motion, Liket raises two claims of ineffective assistance of counsel. He alleges that trial counsel was constitutionally ineffective for failing to (1) move for production of Liket's statements to Michael Feldman and (2) secure a continuance when the State called Feldman as a surprise witness.
Standard of Review for Claims of Ineffective Assistance of Counsel. To prevail on a claim of ineffective assistance of counsel a defendant must meet the two-part test of Strickland v. Washington. A defendant must show first that defense counsel's conduct fell below an objective standard of reasonableness. Second, he must show that counsel's deficiencies were prejudicial, creating a reasonable probability that, but for those errors, the result of the proceedings would have been different.
Flamer v. State, Del.Supr., 585 A.2d 736, 753 (1990) (citing Albury v. State, Del.Supr., 551 A.2d 53, 58 (1988) (adopting the standard from Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Id. at 753.
Grace v. State, Del.Supr., No. 111, 1996, Walsh, J. (July 9, 1996) (ORDER) (citing Strickland v. Washington, 466 U.S. at 688-94); Flamer v. State, 585 A.2d at 753.
The review of counsel's representation is subject to a strong presumption that counsel's representation was professionally reasonable, and judicial scrutiny of counsel's performance must be "highly deferential." Liket must therefore substantiate concrete allegations of actual prejudice or risk summary dismissal) Failure to Seek Production of Defendant's Statement to an Acquaintance. Liket asserts that if defense counsel had properly sought production of Liket's statements he would have discovered that Liket made an oral statement to Michael Feldman that amounted to a complete confession. Pursuant to Super. Ct. Crim. R. 16(a)(1)(A), the State is required to disclose to the defense the substance of any "relevant oral statement made by the defendant . . . in response to interrogation by any person then known by the defendant to be a state agent. . . ."
Grace v. State, supra.
Strickland v. Washington, 466 U.S. at 688.
Younger v. State, Del.Supr., 580 A.2d 552, 556 (1990); Grace v. State, Order at 2.
Because Liket's statement to Feldman was not made during "interrogation" and Feldman was not a State agent, Liket's oral statement to him was not discoverable. It follows that Liket cannot meet either prong of Strickland, and this claim must fail as a matter of law.
The Supreme Court, on appeal, held that when the testimony or background of a witness has no exculpatory value, the State does not have to disclose the identity of that witness prior to that witness' testimony. Liket v. State, 719 A.2d at 937.
Failure to Request a Continuance. Next, Liket asserts that trial counsel was ineffective for not asking for a continuance or adjournment following Feldman's direct testimony. Liket contends that even a brief continuance would have allowed for an effective cross-examination of Feldman. However, Liket fails to identify any facts that counsel failed to uncover or to suggest how the cross-examination should have been conducted. On its face, this ground is both speculative and conclusory. Liket must substantiate concrete allegations of actual prejudice or risk summary dismissal.
It is also speculative to assume that anything other than a very brief continuance request would have been granted by the court. See Super. Ct. Crim. R. 26.2(d). The Court notes that there was no evidence suggesting that Feldman's expected testimony had ever been reduced to writing or otherwise recorded. Super. Ct. Crim. R. 26.2(f).
Younger v. State, 580 A.2d at 556.
Furthermore, the record belies Liket's implied contention that counsel's cross-examination was less than competent. On cross, Feldman was forced to acknowledge that the victim, Dana Fleming, had given him a ride to the courthouse on the day Feldman testified. Feldman also admitted that he and Fleming had discussed the incident and that Fleming had introduced Feldman to the prosecutor. Finally, trial counsel elicited from Feldman that he and Fleming worked for the same company. In brief, trial counsel effectively demonstrated Feldman's possible favorable bias toward the victim, thus, calling Feldman's credibility into question.
See Trial Transcript of April 10, 1997, pages 3 through 21, hereinafter referred to as "T. at ___."
T at 8.
T. at 15.
T. at 11.
T. at 18.
In light of Liket's silence as to any facts that counsel left untouched and the admissions that defense counsel elicited on cross-examination, the Court concludes that Liket has failed to meet either prong of Strickland. This ground for relief must also fail.
Conclusion. Liket has failed to show either less than reasonable performance on the part of his attorney or actual prejudice from the alleged errors. The Court concludes that no reasonable probability exists that, but for trial counsel's alleged errors, the result of the proceedings would have been different or that the judgment of conviction was unreliable.
Because it plainly appears from the motion and the record that Liket is not entitled to relief, his motion for postconviction relief is hereby summarily dismissed.
It Is So ORDERED.
Norman A. Barron, Judge