Opinion
ID NO. 9511006992. CR.A. NO: IN95-11-1047-R1.
Submitted: September 17, 1999.
Decided: December 21, 1999.
Upon Defendant's Motion for Postconviction Relief. Denied.
Upon Defendant's Motion for Evidentiary Hearing. Denied.
Loren C. Meyers, Esquire, Deputy Attorney General, Wilmington, Delaware, for the State.
Leo John Ramunno, Esquire, Wilmington, Delaware, for the Defendant.
OPINION
This is the Court's decision on Movant David Stevenson's motion for postconviction relief, filed pursuant to Super. Ct. Crim. R. 61 (Rule 61). Having reviewed the parties' submissions, as well as the record of the proceedings and supplemental materials, the Court concludes that both the motion for postconviction relief and the motion for an evidentiary hearing must be denied.
I. POSTURE AND FACTS
On the morning of November 13, 1995, Kristopher Heath, who worked as a security officer at Macy's department store, was preparing to appear in Superior Court. He was scheduled to testify against David Stevenson, who had been charged with numerous criminal offenses in connection with his job in the ladies' shoe department at Macy's. Based in part on information provided by Mr. Heath, Stevenson had been indicted on nine counts of felony Theft and nine counts of felony Unlawful Use of a Credit Card.
Mr. Heath never made it to court. Instead, he was shot in the head and back, and left for dead. When the police arrived minutes later, eyewitnesses described the shooter, his accomplice and the blue car in which the two men fled the scene. Using a license plate number written down by one of the witnesses, the police traced the car to Stevenson's address in Wilmington. Less than an hour after the shooting, the police arrested Stevenson and his friend Michael Manley for the murder of Kristopher Heath.
In December 1995, Stevenson and Manley were indicted on charges of Murder First Degree and numerous related offenses. Prior to trial, this Court denied Movant's motion to sever, as well as his motion to suppress. A joint trial began on October 30, 1996, and concluded on November 12, 1996. The jury found both defendants guilty as charged.
State v. Manley, Del. Super., No. 9511007022, Barron, J. 1996 WL 527322 (Aug. 1, 1996) (Mem. Op.).
State v. Manley, Del. Super., 706 A.2d 535 (1996).
In addition to the murder charge, both defendants were found guilty of Conspiracy in the First Degree, Aggravated Act of Intimidation, Conspiracy in the Second Degree and two counts of Possession of a Firearm During the Commission of a Felony, as charged in the indictment.
At the penalty phase of the trial, the jury unanimously found as to both men that the evidence showed beyond a reasonable doubt the existence of four statutory aggravating circumstances. In regard to Stevenson, eight jurors recommended the death penalty, and four jurors recommended a life sentence. In regard to Manley, seven jurors recommended the death penalty, and five jurors recommended a life sentence.
At the sentencing hearing held on January 10, 1997, this Court announced its decision that, as to both Stevenson and Manley, the aggravating circumstances outweighed the mitigating circumstances, and sentenced both defendants to death. The convictions and sentences were affirmed on appeal.
See State v. Manley, Del. Super., No. 951107022, Barron, J. 1997 WL 27094 (Jan. 10, 1997) (Findings After Penalty Hearing).
See Stevenson v. State, Del. Supr., 709 A.2d 619, cert. denied, 119 S.Ct. 414 (1998).
As a prelude to the postconviction process. Stevenson filed a motion requesting the trial judge to recuse himself. The motion was denied. Stevenson filed his motion for postconviction relief on February 8, 1999, and the State answered on February 22, 1999. After briefing was completed, the Court requested affidavits from trial counsel and gave Stevenson the opportunity to respond. The issues are now ripe for decision.
See State v. Stevenson, Del. Super., No. 9511006992, Barron, J. (Jan. 8, 1999) (Mem.Op).
Rule 61(g).
II. ISSUES
Stevenson raises ten grounds for relief. First, he alleges numerous instances of ineffective assistance of trial counsel. Second, he argues that the State presented insufficient evidence to support his convictions and sentence. Third, he challenges the legality of his arrest and the resulting seizure of evidence against him. He alleges six reversible errors on the part of the trial judge, including denying the motion to suppress without holding an evidentiary hearing, admitting evidence of other crimes, denying severance, violating the right to counsel, erroneous instruction on accomplice liability, and denial of the motion to recuse. Finally, Stevenson argues that he was denied a fair trial because of what he describes as a "death-oriented jury." To develop a factual record, Stevenson seeks an evidentiary hearing on the above issues.
Defendant's Memorandum of Points and Authorities in Support of his Motion for Post-Conviction Relief at 6, 31. This document is subsequently referred to as "Mem. at page no."
III. DISCUSSION
A. Ineffective Assistance of Counsel. Under the Sixth Amendment, a criminal defendant has a right to "reasonably effective assistance of counsel." The standard for evaluating a claim of ineffective assistance of counsel under the Sixth Amendment is the Strickland test. To prevail on such a claim, a defendant bears the burden of proving 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. Stated differently, "the presence or absence of prejudice, with respect to claims of ineffective assistance of counsel at [both] the trial and appellate levels, hinges upon the fairness of the trial and the reliability of the judgment of conviction resulting therefrom."
Strickland v. Washington, 466 U.S. 668, 688 (1984).
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)).
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.
Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997).
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." Stevenson must therefore substantiate concrete allegations of actual prejudice or risk summary dismissal. Although Strickland is a two-part test, the showing of prejudice is so crucial that when "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." 1. Recusal of trial judge. Stevenson asserts that he urged defense counsel to move for recusal of the trial judge and that counsel was ineffective for failing to do so. In an affidavit requested by the Court, trial counsel indicate that they have no record or recollection that either Stevenson or his family members asked that counsel move for recusal. Counsel further states that, even if such a request had been made, no factual basis existed for such a motion.
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.
Strickland v. Washington, 466 U.S. at 697 (emphasis added). See also Getz v. State, Del. Supr., No. 301 1994, Veasey, C.J. (Oct. 31, 1994) (ORDER at 8) (concluding that when issues have been previously resolved against a petitioner, a claim of ineffective assistance of counsel on the same issue must fail for lack of prejudice).
On direct appeal, the Delaware Supreme Court rejected the argument that recusal was warranted. It therefore follows that Stevenson cannot show prejudice from counsel's failure to seek the trial judge's recusal. That is, even if counsel had moved for recusal, the motion would have been denied and the trial would have proceeded with the same judge presiding. As the Strickland Court observed, if a movant cannot show sufficient prejudice to support a claim of ineffective assistance, the claim should be disposed of for that reason. The Court finds that Stevenson cannot demonstrate prejudice and that this claim must therefore fail.
Stevenson v. State, 709 A.2d at 635.
See Harley v. Dept. of Corrections, Del. Supr., No. 43, 1999, Berger, J. (July 25, 1999) (ORDER) (holding that "[t]o the extent that the trial judge was familiar with [petitioner] because of prior judicial proceedings, that familiarity does not require recusal").
Strickland v. Washington, 466 U.S. at 697.
Stevenson also asserts that recusal was warranted because the judge's brother once worked as a security guard. This assertion fails to raise any legal issues and is therefore not addressed in this Opinion.
Stevenson further elaborates the recusal claim by arguing that counsel was ineffective for failing to investigate the process by which judges of the Superior Court are assigned to capital murder cases. He seeks to question either the President Judge of the Superior Court or the trial judge at a postconviction relief hearing in open court. However, Stevenson has not shown that he has a right, constitutional or otherwise, to "investigate" the Superior Court's procedure for assigning cases, and therefore cannot overcome the strong presumption that counsel's decision not to "investigate" this matter was professionally reasonable. This claim is unavailing.
Flamer v. State, 585 A.2d at 753.
2. Failure to present exculpatory evidence. Stevenson asserts that he and his family wanted trial counsel to call certain witnesses to testify but that trial counsel refused to call them. Stevenson argues that the testimony of these witnesses would have undermined the State's theory of the case. The witnesses in question are Jessica Wing, Susan Brown, Valerie Era, Carol Schweda and Marlene Farmer. In both affidavits submitted to the Court, trial counsel tell a different story. In Affidavit I, counsel unequivocally state that "all available alibi witnesses provided by the defendant testified at trial."
On July 15, 1999, in response to a written request from the Court, trial counsel filed a document entitled "Affidavit of J. Dallas Winslow, Jr. and Timothy J. Weiler, Trial Attorneys for Defendant, in Response to Defendant's Motion for Postconviction Relief." The Court subsequently requested that counsel provide additional information regarding five witnesses whose testimony Stevenson asserts would have aided in his defense. On August 20, 1999, counsel provided the requested information in a document entitled "First Supplemental Affidavit of J. Dallas Winslow, Jr. and Timothy J. Weiler, Trial Attorneys for Defendant, in Response to Defendant's Motion for Postconviction Relief." These documents are referred to as "Affidavit I" and "Affidavit II," respectively, in this Opinion.
Affidavit I at 3.
In Affidavit II, trial counsel assert that Stevenson asked for the following three witnesses to testify: his mother, his sister, and the driver of the DART bus in which Stevenson was sitting at the time of his arrest. In support of this assertion, counsel presented a copy of a memorandum from Weiler's file. Dated October 22, 1996, and initialed by Weiler, the memorandum briefly describes Weiler's visit to Gander Hill on October 10, 1996, to meet with Stevenson. The topics discussed were potential witnesses, the motion to suppress, voir dire questions and jury selection. There is no reference to the five witnesses Stevenson asserts that he requested. The memo states that Weiler asked Stevenson which witnesses he wanted to testify at both phases of the trial. Stevenson asked that his mother, his sister and the DART bus driver be called. In the sworn affidavit, both defense attorneys assert that they have no recollection of Stevenson or any of his family members asking that any other witnesses be called. The Court finds counsels' statements to be credible and concludes that neither Stevenson nor his family sought to have the five witnesses appear at trial.
The real question is whether the absence of these witnesses at trial rendered Stevenson's convictions and sentences unreliable. In Affidavit II, trial counsel state that Jessica Wing's testimony would have corroborated the State's case. The police report shows that the only deviation in Wing's statement was that she thought the hands on the steering wheel were white. Wing's perception is easily explained in light of the fact that Stevenson is lightskinned.
Stevenson also asserts that defense counsel should have called Susan Brown to testify, although he does not indicate which portion of her statement is exculpatory. Brown described a tall black male wearing a blue baseball cap and dark blue clothing. This description fits Defendant Manley, and a blue baseball cap was recovered near the getaway car.
Valerie Era saw a medium-sized, four-door black vehicle drive away after the shooting. Stevenson's vehicle was a dark blue, a medium-sized, four-door vehicle.
Carol Schweda told police that she saw a white male seated in a dark colored vehicle. Defense counsel state in Affidavit II that Schweda's observations were at odds with other witnesses and that her testimony at trial would have served no useful purpose. In light of the overwhelming evidence which placed both defendants at the scene of the crime, the Court agrees.
Marlene Farmer told police that she saw a medium-sized, white male wearing a dark jacket, light-colored pants and no hat walk quickly away from the victim's body. He got into the passenger's side of a small, dark-colored vehicle and quickly drove away. Defense counsel felt that her testimony would have little or no effect in light of the overwhelming direct and circumstantial evidence against the defendants.
Strickland requires deference to counsel's decision not to present certain evidence where the decision is both fully informed and strategically based on all the available evidence. In this case, Stevenson's trial attorneys decided not to put these five witnesses on the stand only after familiarizing themselves with the available evidence. In general, the testimony of all five witnesses would have corroborated the State's case. For this reason, the Court finds that the decision to forego calling these witnesses was reasonable and did not render Stevenson's conviction unreliable.
Strickland v. Washington, 466 U.S. at 690-91.
In response to trial counsel's statement that these five witnesses would not have helped Stevenson at trial, Stevenson asserts that trial counsel should have developed these witnesses' testimony because counsel had an "obligation to explore and research all possible avenues" of defense. This assertion finds no support in the law. While effective representation depends on "adequate investigation and pre-trial preparation," trial counsel is "not required to pursue every path until it bears fruit or until all conceivable hope withers." Rather, counsel may make reasonable, tactical decisions not to investigate particular facts or legal theories or not to call a particular witness. The reasonableness of these decisions is to be assessed in light of all the circumstances that existed at the time. Under this standard, the Court concludes that counsel's decisions in this case fall within Strickland's wide range of permissible professional legal conduct.
Defendant's Response to the First Supplemental Affidavit of J. Dallas Winslow, Jr., and Timothy J. Weiler, at 2.
Riley v. State, Del. Supr., 585 A.2d 719, 727 (1990) (citing Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir. 1984), cert. denied, 483 U.S. 1026 (1987)).
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) (citing Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980)). See also Strickland v. Washington, 466 U.S. at 690-91 (the duty to investigate is not an absolute duty to investigate every possibility).
Strickland v. Washington, 466 U.S. at 691 (cited in State v. Censurato, Del. Super., Cr. A. No. IN-94-02-0019, Cooch, J. (Dec. 1, 1995) (ORDER)).
Outten v. State, Del. Supr., 720 A.2d 547, 557 (1998) (citing United States v. Lively, 817 F. Supp. 453, 462 (D.Del.), aff'd, 14 F.3d 50 (3rd Cir. 1993)).
Id.
Strickland v. Washington, 466 U.S. at 689.
Next, Stevenson asserts in conclusory fashion that counsel failed to develop certain inconsistencies in the testimony of two of the State's witnesses, Lance Thompson and Patrolman Daniel Meadows of the New Castle County Police Department. On the morning of the murder, Thompson looked out his third floor window after hearing gunfire and wrote down the license plate number of the getaway car. He went outside and gave the paper to Officer Meadows, who immediately broadcast the number over the police dispatcher and returned the paper to Thompson. The tag number, DE 727970, was registered to the owner's address at 206 West 20th Street, Wilmington, Delaware. Officers were dispatched to that address, where the defendants were seen getting out of the car. Both men were apprehended shortly thereafter, despite their best efforts to escape.
Thompson and Meadows both indicated that Meadows returned the paper to Thompson, who did not keep it. At trial, defense counsel argued that the piece of paper was evidence lost by the police and requested a Hammond instruction. The Court denied the request in light of Meadows' immediate broadcast of the number and Thompson's testimony that he was sure that he had copied the number accurately. Although Stevenson expresses concern about what happened to the piece of paper, he does not articulate a factual or legal basis sufficient to warrant reconsideration of this question.
See Hammond v. State, Del. Supr., 569 A.2d 81 (1989); Deberry v. State, Del. Supr., 457 A.2d 744 (1983).
3. Failure to present mitigating evidence. In addition to his claims that counsel failed to call specific witnesses, Stevenson asserts that counsel generally failed to present mitigating evidence in both phases of his trial. He also asserts that counsel prevented him from testifying as to his alibi defense in the guilt phase of his trial, although he provides no information as to the alleged alibi. In Affidavit I, trial counsel summarize the alleged alibi as follows. Stevenson stated that he and Manley were together the evening before the murder. They went to Taco Bell on Kirkwood Highway and then to Stevenson's house, where they spent the night. Stevenson stated that his sister, his nephew, his sister's friend, mother and his mother's boyfriend were also at the house. Stevenson stated that he played with his one-year-old nephew until 1:45 a.m. The next morning, Stevenson got up at 7:00 and woke Manley up as well. He walked Manley to the bus stop, and then decided to go to Comcast Cellular on Concord Pike to purchase a phone and beeper prior to appearing at court for his felony trial that morning at 8:30.
See Affidavit I at 4-5.
Counsel aver that they were unable to verify this alibi. For this reason, they informed Stevenson prior to trial that if he wanted to present this version of the events he would have to testify. They also warned him that testimony appearing to be perjurious would hurt his defense. As trial counsel correctly observe, Stevenson is not able to identify any alibi witness or any type of evidence that counsel should have presented to the jury. Thus, as to the guilt phase, Stevenson offers unsupported conclusory assertions.
As to the penalty phase, Stevenson's current counsel states in his Reply to the State's Answer that he found references to three federal cases that might help his client, although he was unable to locate or read the cases. As discussed below, the cases are readily distinguishable from the case at bar and do not support Stevenson's contentions.
Reply Memorandum in Support of Stevenson's Motion for Post-Conviction Relief at 2.
In Moore v. Johnson, the Fifth Circuit affirmed a district court finding that defense counsel's constitutionally deficient performance prejudiced Moore at the penalty phase of his capital murder trial. The district court had found that defense counsel was ineffective at both the guilt and punishment phases of Moore's trial, but found prejudice and granted relief as to the capital sentence only. The State of Texas appealed the grant of relief, but Moore failed to cross appeal the finding that Moore was not prejudiced at the guilt phase by his attorney's deficient performance. Thus, the questions presented to the Fifth Circuit for review were whether counsel was constitutionally ineffective at both phases of the trial and, if so, whether the deficiencies prejudiced Moore in the penalty phase.
Moore v. Johnson, 194 F.2d 586 [ 194 F.3d 586] (5th Cir. 1999).
Id. at 590, 592. Nevertheless, the Fifth Circuit explicitly approved the district court's conclusion that counsel's errors did not prejudice Moore at the guilt phase of his trial. Id. at 619.
Counsel's errors, which occurred during both phases of the trial, included (1) inadequate investigation into similar crimes that were made admissible by Moore's alibi defense; (2) complete lack of knowledge of the evidence of other crimes that the prosecution introduced in rebuttal; (3) deficient handling of Moore's confession, where defense counsel redacted portions that indicated that the shooting was an accident because defense counsel believed those portions would undermine the alibi defense; (4) deficient cross-examination where defense counsel obliterated the alibi defense and established almost every element of the crime upon cross-examination of police officer; and (5) failure to investigate and offer any available mitigating evidence during the punishment phase.
In the case at bar, Stevenson has not shown that counsel made errors that are comparable in either type or degree to those that occurred in Moore. Stevenson has failed to establish the significance of the evidence which he asserts that counsel should have presented (the five witnesses discussed above and the piece of paper with his license plate number on it). As for his alleged alibi defense, Stevenson has not indicated what his alibi was, and therefore a fortiori he cannot show prejudice.
Moore is also factually dissimilar in regard to the penalty phase. The Moore court found that defense counsel's complete rather than partial failure to investigate or present evidence of Moore's horrific childhood was not the product of an informed strategic choice but rather was an example of ineffective representation. In contrast, Stevenson's defense team presented extensive evidence of Stevenson's constructive life prior to the chain of events that culminated in the murder of Kristopher Heath. As stated in Moore, "[m]itigating evidence concerning a particular defendant's character or background plays a constitutionally important role in producing an individualized sentencing determination that the death penalty is appropriate in a given case." This is exactly the type of evidence Stevenson's defense team presented at his penalty hearing. The mitigating evidence included Stevenson's close family relationships, reputation for peacefulness, excellent academic and work record, and constructive conduct while in prison.
Id. at 619.
Id. at 612 (citing Woodson v. North Carolina, 428 U.S. 280 (1976)).
Even if counsel had not presented such evidence, the failure to develop mitigating evidence is not per se deficient performance, and counsel is "not required to pursue every path until it bears fruit or until all conceivable hope withers." In other words, a defendant must still show that counsel's errors caused actual prejudice. Thus, Moore lends Stevenson no support.
Id. at 614 (citing Ranson v. Johnson, 126 F.3d 716, 723 (5th Cir.), cert. denied, 118 S.Ct. 361 (1997)).
Id. at 616 (quoting Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980)).
Stevenson also suggests that Parker v. Bowersox might support his position. In Parker, the Eighth Circuit affirmed a district court's denial of Parker's petition for a writ of habeas corpus but reversed the district court's denial of relief on Parker's death sentence. In regard to the guilt phase of the trial, the only ostensible similarity between Parker's claims and Stevenson's claims is Parker's assertion that his trial counsel failed to present a theory of the defense. The court rejected this contention, noting that there is no requirement that counsel present a formal defense theory, and that the petitioner relied on cases where counsel had failed to present "obvious defenses."
188 F.3d 923 (8th Cir. 1999).
Id.
Id. at 928 (citing Hill v. Lockhart, 28 F.3d 832, 842 (8th Cir. 1994); Chambers v. Armontrout, 907 F.2d 825, 831 (8th Cir. 1990) (en banc)).
In the penalty phase of Parker's trial, the State presented evidence of the statutory aggravating factor that Parker killed his girlfriend because he believed she was a potential witness in an assault case against him. The jury unanimously found that the aggravating circumstance existed and sentenced Parker to death. However, defense counsel had failed to present evidence that Parker's previous defense attorney had informed Parker well before the murder that the assault case would be nolle prossed. The Court of Appeals found that this failure constituted ineffective assistance of counsel because the critical question at sentencing was whether Parker's reason for murdering his girlfriend was that she was a potential witness against him.
Id. at 931.
In the case at bar, it is uncontested that Mr. Heath was scheduled to testify against Stevenson on the day of the murder, and Stevenson has not identified anyone who could have rebutted the inference that Mr. Heath was murdered to prevent him from testifying. Thus, Parker actually works against Stevenson, because no "obvious defenses" came to light during the trial or in the current postconviction process.
Stevenson also urges that Stouffer v. Reynolds might be helpful to his position. In Stouffer, the Tenth Circuit held that the petitioner was entitled to an evidentiary hearing on the issue of ineffective assistance of counsel. The record showed that defense counsel (1) was unable to prepare exhibits for admission, (2) reinforced the State's case during cross-examination, (3) negated key defense evidence because of inability to advance it, (4) failed to present an opening statement and in a sworn affidavit could not offer a reasonable tactical explanation; and (5) presented no mitigating evidence during the penalty phase. Referring to counsel's numerous deficiencies, the court stated that
16 F.3d 1155 [ 168 F.3d 1155] (10th Cir. 1999).
Id. at 1158.
[t]aken alone, no one instance establishes deficient representation. However, cumulatively, each failure underscores a fundamental lack of formulation and direction in presenting a coherent defense. Whether that amounts to a viable Sixth Amendment violation satisfying Strickland's two-pronged inquiry requires further evidentiary exploration to assure that hindsight has not distorted these examples.
Id. at 1163-64.
Thus, even while acknowledging counsel's "failures," the court stated that no single failure constituted ineffective representation and reiterated Strickland's warning against the distorting effects of hindsight. An evidentiary hearing was warranted to assess the cumulative effect of counsel's failures. In the case at bar, Stevenson has not demonstrated any comparable failures, and the Court concludes that Stouffer does not support Stevenson's request for an evidentiary hearing. As an other court has stated, "an evidentiary hearing and the opportunity to brief issues in order to `flesh out' all of the claims are not matters of right, but arise only upon the Court's determination that justice requires further inquiry and development." 4. Pre-trial motions. Stevenson asserts that trial counsel failed to file any motions to exclude or limit the State's evidence. The record shows otherwise. On August 28. 1996, defense counsel filed a motion to suppress, arguing that Stevenson's arrest and the seizure of his car were illegal and that all evidence collected therefrom should be suppressed. On September 12, 1996, defense counsel supplemented the motion with a letter requesting a hearing on the matter. The Court denied the motion to suppress without holding a hearing.
See Section IV of this Opinion for a discussion of Stevenson's motion for an evidentiary hearing.
DeShields v. Snyder, 830 F. Supp. 819, 823-24 (D.Del. 1993) (citations omitted).
State v. Manley, 706 A.2d at 540.
On October 11, 1996, defense counsel filed a motion to expand the record and to reargue the motion to suppress. The Court ruled that, although there were no viable suppression issues at the time, defense counsel was not precluded from conducting voir dire out of the jury's presence if such issues arose during the trial. On October 10, 1996, defense counsel filed a motion in limine, which was denied. Thus the record shows that Stevenson's assertion is factually inaccurate and therefore warrants no further consideration. 5. Motion for continuance and right to counsel of his choice. Stevenson alleges that trial counsel failed to timely request a continuance so that Stevenson could obtain private counsel and that he was therefore "forced to proceed to trial with his public defenders." Stevenson also asserts that "the Public Defender's Office neglected to notify the Court until the eve of trial that private counsel had been retained." In support of his argument, Stevenson submitted a copy of a letter signed by Stevenson's sister informing defense counsel of the family's intention to retain private counsel. Stevenson asserts that defense counsel failed to act on this letter until the eve of trial, at which time the Court denied his request for a continuance.
See Brittingham v. State, Del. Supr., No. 25, 1995, Berger, J. (Nov. 8, 1995) (ORDER).
Mem. at 3.
Id. at 25.
Trial counsel respond that, on the Friday prior to trial, Louis Savino, Esquire, a Philadelphia attorney, verbally informed trial counsel that he had been retained to represent Stevenson. However, at no time did Savino submit a Substitution of Counsel form to counsel. Nor is there any record that he filed a written motion for admission pro hac vice, as required by Supreme Court Rule 71. The Court concludes that, if Stevenson and his family were dissatisfied with trial counsel well before the trial began, they were free to retain private counsel but failed to take the necessary steps to ensure that a substitution could be timely made.
The United States Supreme Court has recognized that "[t]rial courts necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. . . . [O]nly an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." The Court is satisfied, now as it was on the eve of trial, that Stevenson's last-minute desire to obtain alternative representation was a less than compelling reason to continue the trial.
Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). The Moore Court explicitly rejected the argument that the Sixth Amendment right to counsel includes a "meaningful relationship" between a defendant and his attorney. Id. at 14.
6. Failure to object to inflammatory remarks and inadmissible evidence. Stevenson argues that trial counsel failed to object to certain evidence and remarks, but he fails to identify them. His assertion that "counsel only objected a couple of times during the trial" does not raise a justiciable issue. As to allegedly improper remarks made during the State's closing statement, this issue was resolved against Stevenson on appeal, and he therefore cannot show prejudice. This claim is unavailing.
Mem. at 26.
Stevenson v. State, 709 A.2d at 633-34.
As another court has said, "[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements by the prosecutor, the failure to object during closing argument and opening statement is within the `wide range' of permissible legal conduct, and thus does not [typically] constitute ineffective assistance of counsel." United States v. Lively, 817 F. Supp. 453, 466 (D.Del. 1993) (citing Strickland v. Washington, 466 U.S. at 689).
7. Damaging evidence. Buried among Stevenson's repetitive assertions that trial counsel was unprepared is a separate assertion that trial counsel presented evidence that was damaging to Stevenson's defense. Rather than identify the allegedly damaging evidence and explaining the damage it caused, Stevenson merely quotes from Manley's appellate brief regarding the decision to call Elissa Brown to the stand. Stevenson implies that if Brown had not testified, Stevenson would not have been convicted.
The pertinent facts are as follows. On the night before the murder, Heath's fiancee, Debbie Dorsey, was at home in the apartment she shared with Heath. At approximately 7 p.m., she answered a knock at the door. A black man asked if Heath was home. Ms. Dorsey did not recognize the man, although she was positive that he was not David Stevenson, whom she had met at work at Macy's. The lighting was not very good, but Dorsey was able to ascertain that the man's height was somewhat less than 5' 10". Ms. Dorsey had never met Manley, who is approximately 5' 8" tall. Later that evening, between 8 p.m. and 9 p.m., Melissa Magalong, the occupant of Heath's previous residence, heard a knock on her door and the mumbling sound of male voices. Ms. Magalong did not answer the door, and the men apparently left. The State also presented evidence that Stevenson worked at the University of Delaware library that night from 9 p.m. to midnight and that Manley was seen at the library during that time.
During the defense case, Stevenson's sister, Elissa Brown, was called to testify as to Stevenson' reputation for peacefulness. On cross-examination, Ms. Brown was asked about her prior statement to police that the defendants picked her up at a friend's house during the first quarter of the Dallas football game. She testified that she must have been mistaken about the time, because it was dark when the defendants arrived at the house. A copy of the News-Journal was introduced to show that the game started at 4 p.m. that day.
Even if Ms. Brown had not testified, other witnesses testified that the defendants were together the night before the murder. Michael Manley's mother, Myla Fisher (at whose home the defendants picked up Elissa Brown) and two employees of the University of Delaware testified to this fact. Although Ms. Brown was forced to acknowledge an inconsistency in her prior statement, her testimony on cross-examination did not make it less likely that the defendants were together on the eve of the murder or that they went to Heath's prior residence and his current apartment before Stevenson went to work at 9 p.m. that night. Nor did her testimony undermine an otherwise solid alibi, as Stevenson suggests. The Court finds that, in light of the other evidence introduced as to the defendants' activities on the night before the murder, Brown's testimony did not prejudice the defense.
Stevenson also asserts that Manley's defense attorneys would be willing to testify as to their opinion that Stevenson's trial attorneys were "ill-prepared and ineffective and did not adequately represent Stevenson." Stevenson has not submitted an affidavit from Manley's attorneys to that effect. Even if he had, the Court notes that Manley's attorneys are not disinterested witnesses, in light of their argument to the Supreme Court that the testimony of Elissa Brown hurt Manley as much as it hurt Stevenson.
Mem. at 28.
8. Overview of counsel's representation. Stevenson urges the Court to consider the allegations of ineffective assistance of counsel both separately and cumulatively. The Court has done so and has assessed trial counsel's conduct in light of both state and federal cases, including those cited by Stevenson. Viewing each claim separately, the Court does not find either attorney error or any prejudice resulting from the alleged deficiencies, as discussed above. Viewing the claims as a totality, the standard is the same. As Strickland states, "the proper standard for attorney performance is that of "reasonably effective assistance." The Court is satisfied that counsel's actions were reasonable under the circumstances and that Stevenson was provided with constitutionally effective representation at both the guilt and penalty phases of his trial.
See Riley v. State, 585 A.2d at 728; Younger v. State, 580 A.2d at 556.
Even assuming, arguendo, that counsel's representation was deficient, Stevenson has not shown any prejudice. The Court concludes that Stevenson has failed to show that counsel did not provide the reasonable representation guaranteed under the Sixth Amendment. For these reasons, "it cannot be said that [Stevenson's] conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Having failed to meet the benchmark for any claim of ineffectiveness of counsel, Stevenson cannot prevail on this claim.
Strickland v. Washington, 466 U.S. at 687.
Id.
Id. at 689.
B. Grounds for Relief Other Than Ineffective Representation. When considering a motion for postconviction relief, the Court must apply the procedural bars before considering the merits of a movant's claims. If a claim fails on procedural grounds, this Court will not address the substantive issues. This is for two reasons. First, a postconviction relief motion is a collateral attack on a final conviction, not a substitute for direct appeal, and the procedural safeguards are intended to eliminate claims that have been or should have been previously raised, as well as claims that lack a factual or legal foundation. Second, in order for state procedural default rules to be given preclusive effect in subsequent federal litigation, the state court must plainly state that its decision rests on independent state procedural grounds.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, 580 A.2d at 554 (citing Harris v. Reed, 489 U.S. 255 (1989)).
Younger v. State, 580 A.2d at 554.
DeShields v. Snyder, 829 F. Supp. 676 (D.Del. 1993).
In the, case at bar, several of Stevenson's claims are subject to the procedural default set forth in Rule 61(i)(3). That is, because Stevenson did not timely raise some of the issues he now raises collaterally, he must show "cause" for his failure to raise them in the proceedings leading to his conviction and "actual prejudice" resulting from the error he now alleges.
Rule 61(i)(3) provides as follows:
Procedural default. 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.
Younger v. State, 580 A.2d at 555.
Stevenson is also barred from raising issues that have already been adjudicated, unless reconsideration is warranted in the interest of justice. The Delaware Supreme Court has defined the "interest of justice" standard to require a showing that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish" the accused.
Rule 61(i)(4) provides as follows:
Former adjudication. Any 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.
Flamer v. State, 585 A.2d at 746; Gholdson v. State, Del. Supr., No. 240, 1997, Hartnett, J. (Nov. 7, 1997) (ORDER).
The procedural bars to relief do not apply to a claim that the Court lacked jurisdiction or 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. This is a narrow exception which has been recognized in cases where a movant makes a colorable claim of a mistaken waiver of important constitutional rights. In the case at bar, Stevenson does not assert that this exception applies to him.
Rule 61(i)(5).
Webster v. State, Del. Supr., 604 A.2d 1364 (1992).
1. Insufficient evidence. Stevenson alleges that the State presented insufficient evidence in the guilt phase to support his convictions and in the penalty phase to establish the aggravating factors to justify the death penalty. As to the sufficiency of the evidence at trial, this Court denied defense counsel's motion for judgment of acquittal, and the issue is therefore barred as formerly adjudicated. Furthermore, on direct appeal, the Delaware Supreme Court found that "there was substantial independent direct and circumstantial evidence to establish Stevenson's guilt for murder and the other charges in this case."
See Fenton v. State, Del. Supr., No. 462, 1988, Christie, C.J. (Oct. 6, 1989) (ORDER); State v. Gordon, Del. Super., Cr.A. No. P88-09-1061, — 62, Del Pesco, J. (June 29, 1990) (Mem.Op.).
Stevenson v. State, 709 A.2d at 629. The Supreme Court made this finding in the context of Movant's challenge to this Court's denial of his motion for severance, which required the Supreme Court to consider whether the jury was able to make "a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993).
The issue of sufficient evidence to establish the aggravating circumstances was also resolved on direct appeal. After reviewing each of the aggravators adduced by the State, the Court concluded that "[t]he record reflects that the evidence supported the Superior Court's findings that all four of the statutory aggravating circumstances alleged by the State, and enumerated in Section 4209(e). were established beyond a reasonable doubt in Stevenson's case." Stevenson's attempt to relitigate these questions is therefore barred by Rule 61(i)(4).
Stevenson v. State, 709 A.2d at 638.
2. Denial of motion to suppress. Stevenson argues that the police lacked probable cause to arrest him and that the trial court erred in denying the motion to suppress evidence that was seized as a result of the arrest. However, Stevenson did not raise this issue on appeal and he does not show cause for the default. This ground for relief is therefore barred by Rule 61 (i)(3).
3. Evidence of Stevenson's other crimes. Stevenson alleges that this court erred in admitting evidence of Stevenson's other crimes, specifically, the thefts at Macy's. On direct appeal, the Delaware Supreme Court found that the evidence was admissible and that the trial court's limiting instruction to the jury was proper. Having been previously adjudicated, this claim is procedurally barred pursuant to Rule 61(i)(4) and will not now be considered on the merits. 4. Severance. Stevenson alleges error in this court's denial of his motion for severance. The issue of severance was adjudicated prior to trial and again on direct appeal. It is therefore procedurally barred pursuant to Rule 61(i)(4).
Id. at 632-33.
Younger v. State, 580 A.2d at 556.
State v. Manley, Del. Super., No. 9511007022, Barron, J., 1996 WL 527322 (Aug. 1, 1996) (Mem. Op.).
Stevenson v. State, 709 A.2d at 628-30.
5. Continuance. Stevenson alleges that his rights to counsel and due process were denied when this court denied his motion for a continuance the day before jury selection began. This issue was resolved against Stevenson on direct appeal and is therefore barred by Rule 61(i)(4).
Id. at 630-31.
6. Accomplice liability. Stevenson argues that this Court did not properly instruct the jury on accomplice liability and that "there is no assurance that the jury agreed to unanimously on [sic] one set of facts in it's [sic] deliberation[s]." This issue was settled on appeal and is therefore barred by Rule 61(i)(4).
Mem. at 5. Stevenson also seems to argue that the death penalty is inappropriate because it is unclear whether he or Manley fired the shot or shots that killed Heath. Id. at 28-29. However, in order to find Stevenson guilty of the charges against him, the jury had to find that Stevenson either intentionally killed Heath or that he intentionally aided and assisted in the killing. This more than satisfies the rule established in Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987).
Stevenson v. State, 709 A.2d at 634-35.
7. Jury selection. Although Stevenson provides lengthy summaries of other cases regarding death-qualified juries, he stops short of applying the law to the facts of his own case. His argument consists of the following sentence: "Stevenson was denied his constitutional right to a fair and impartial trial with the selection of a death oriented jury and in excluding potential jurors who were opposed to the death penalty." Stevenson fails to state the legal standard for determining whether a jury is properly "death qualified," and, in fact, seems to argue that juries on capital cases should not be death-qualified. He also fails to offer any facts to support his assertion that his trial was unfair because of the make-up of the jury. Thus, the claim has no basis in law or in fact. Furthermore, because this claim was not raised in the prior proceedings and Stevenson makes no attempt to show cause and prejudice, the claim is subject to procedural default.
Mem. at 31.
Under Delaware's current death penalty statute, the jury must be death-qualified. State v. Cohen, Del. Supr., 604 A.2d 846, 855 (1992). This is because "[a]ny personal prejudices concerning the death penalty which would seriously impair a juror's ability to perform his [or her] duty, under the instructions given by the trial judge, are impermissible and contrary to legislative intent as reflected in the death penalty statute." Jackson v. State, Del. Supr., 684 A.2d 745, 749 (1996).
Rule 61(i)(3); Younger v. State, 580 A.2d at 555-6.
Finally, the Court notes that, to warrant relief under Rule 61, there must be a showing that a retrial would reasonably be expected to result in a different verdict and judgment. In this case, the Court finds that such an expectation is unreasonable in light of the evidence against Stevenson.
State v. Curran, Del. Super, 116 A.2d 782 (1955), aff'd, Del. Supr., 122 A.2d 126, cert. denied, 352 U.S. 913 (1956).
IV. MOTION FOR EVIDENTIARY HEARING
Throughout his written submissions to the Court, Stevenson reiterates his request for an evidentiary hearing. Specifically, he seeks to (1) explore Superior Court procedures for assigning cases; (2) call as a witness either the President Judge of Superior Court or the trial judge to ascertain how this case was assigned; (3) present expert testimony "concerning the affect [sic] of seeing someone and hearing that person in the context of a suppression hearing three months prior to his death and whether the facts as we know them would affect the decision maker consciously or subconsciously"; (4) call Manley's trial counsel to testify as to the ineffectiveness of Stevenson's trial counsel; and (5) establish a record of trial counsel's ineffectiveness and failure to prepare for trial.
Mem. at 21; Reply Mem. at 3.
Mem. at 21.
Id. at 22.
Id. at 28.
Reply Mem. at 1.
The appropriate place to begin consideration of the request for a hearing is Rule 61 itself. A motion for postconviction relief is addressed to the discretion of the Superior Court. Under subdivision (h), which governs requests for evidentiary hearings, the judge is required to consider the record as well as the motion, the answer, the reply and any added materials in order to determine "whether an evidentiary hearing is desirable." If the motion fails to make a proper showing for relief, the Court in its discretion may deny the request for a hearing: "If it appears that an evidentiary hearing is not desirable, the judge shall make such disposition of the motion as justice dictates." Subdivision (I), which includes special provisions for capital cases, is silent as to evidentiary hearings, and the question is therefore governed by subdivision (h).
Shockley v. State, Del. Supr., 565 A.2d 1373, 1377 (1989); Grace v. State, Del. Supr., No. 111, 1996, Walsh, J. (July 9, 1996) (ORDER).
Rule 61(h)(3).
The subdivision on capital cases provides that a capital defendant has the right to one postconviction proceeding under this subdivision, and that "[t]he other subdivisions of this rule shall apply except insofar as they are inconsistent with the special provisions of this subdivision." Rule 61(I)(1).
The Delaware Supreme Court has provided further guidance as to when an evidentiary hearing is appropriate in capital case postconviction proceedings. For example, Jack Outten, who was sentenced to death for his role in the murder of Wilson Mannon, argued on appeal of this Court's summary denial of his postconviction relief motion that he was denied the "opportunity to be heard, to argue, and to present evidence that the proceedings below were fundamentally unfair." Outten further asserted that as a threshold matter this Court should have conducted a hearing to allow factual development on whether there was cause to excuse any of the procedural defaults, including inquiry into trial counsel's competence.
Outten v. State, Del. Supr., 720 A.2d 547, 551 (1998).
Id.
In their general import, these claims are similar to Stevenson's. In addressing Outten's claims, the Delaware Supreme Court observed that, even in capital cases, summary dismissal of a postconviction motion is appropriate under certain circumstances and that such a decision is within the discretion of this Court:
While the decision to hold an evidentiary hearing in a postconviction proceeding is within the discretion of the Superior Court, in capital cases, holding such an evidentiary hearing should be the norm, not the exception. Nonetheless, if it appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, then summary disposition of the motion is appropriate.
Id.
In Stevenson's case, the record has been expanded to include full briefing, as well as affidavits from the trial attorneys and Stevenson's responses to those affidavits. Despite these opportunities, Stevenson is unable to substantiate his claims, as discussed in previous sections of this Opinion. The Court notes that Strickland does not encourage "intrusive posttrial inquiry into attorney performance or [provide] detailed guidelines for its evaluation" because these factors would result in a "proliferation of ineffectiveness challenges." The Strickland Court accurately foresaw that "[c]riminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense." This Court believes that conducting an evidentiary hearing to explore unsupported allegations is similarly unwise, even in capital cases.
Rule 61(g)(2).
Strickland v. Washington, 466 U.S. at 690.
Id.
In Outten, the Delaware Supreme Court stated that "[w]hile the decision to hold an evidentiary hearing in a postconviction proceeding is within the discretion of the Superior Court, in capital cases, holding such an evidentiary hearing should be the norm, not the exception." 720 A.2d at 551. The court assumes that this pronouncement is based on the understanding that "death is different," Ford v. Wainwright, 477 U.S. 399, 411 (1986) (MARSHALL, J., plurality opinion), and that capital proceedings require a "correspondingly greater degree of scrutiny." California v. Ramos, 463 U.S. 992, 998-999 (1983).
The Court recognizes and joins what the United States Supreme Court has described as its "`death-is-different' jurisprudence." As Justice Marshall stated, "[t]his especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties." When a defendant demonstrates the possibility that the proceedings leading to a sentence of death are "marred by constitutional error," further factfinding is imperative. In the case at bar, Stevenson has submitted to the Court a long list of alleged errors, none of which is grounded in either fact or law. As another court has said, "bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing" on a claim of constitutionally deficient representation. Based on a full consideration of the law and the facts, the Court finds that Stevenson's arguments are at best conclusory, if not fanciful or frivolous.
Simmons v. South Carolina, 512 U.S. 154, 184 (1994) (SCALIA, J., dissenting opinion).
Ford v. Wainwright, 477 U.S. 399, 411 (1986) (MARSHALL, J., plurality opinion).
Mayberry v. Petsock, 821 F.2d 179, 185, cert. denied, 484 U.S. 946 (1987).
The Court is well satisfied that David Stevenson's trial was constitutionally sound and the outcome reliable. Stated otherwise, the Court finds no basis for "a second trial, this one of counsel's unsuccessful defense."
V. CONCLUSION
For all the foregoing reasons, Stevenson's motion for postconviction relief must be and hereby is DENIED . The motion for an evidentiary hearing is also DENIED .
It Is So ORDERED .